Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 1 of 55 Page ID #:1

1 LATHAM & WATKINS LLP

2

Wayne S. Flick (Bar No. 149525) wayne.s.flick@lw.com

3 Manuel A. Abascal (Bar No. 171301) manny.abascal@lw.com

4 James H. Moon (Bar No. 268215)

james.moon@lw.com 5 Kristin P. Housh (Bar No. 286651)

6

kristin.housh@lw.com Robin A. Kelley (Bar No. 287696)

7 robin.kelley@lw.com 355 South Grand Avenue, Suite 100

8 Los Angeles, California 90071-1560

9

Telephone: +1.213.485.1234 Facsimile: +1.213.891.8763

10 AMERICAN IMMIGRATION COUNCIL CENTER FOR CONSTITUTIONAL

11 Melissa Crow (pro hac vice pending)

RIGHTS

mcrow@immcouncil.org

Baher Azmy (pro hac vice pending)

12 Karolina Walters (pro hac vice pending)

bazmy@ccrjustice.org

13

kwalters@immcouncil.org Kathryn Shepherd (pro hac vice pending)

Ghita Schwarz (pro hac vice pending) gschwarz@ccrjustice.org

14 kshepherd@immcouncil.org 1331 G Street, NW, Suite 200

Angelo Guisado (pro hac vice pending) aguisado@ccrjustice.org

15 Washington, DC 20005

666 Broadway, 7th Floor

16

Telephone: +1.202.507.7523 Facsimile: +1.202.742.5619

New York, NY 10012 Telephone: +1.212.614.6464

17 Attorneys for Plaintiffs

Facsimile: +1.212.614.6499

18

19

UNITED STATES DISTRICT COURT

20

CENTRAL DISTRICT OF CALIFORNIA

21 AL OTRO LADO, INC., a California Case No. 2:17-cv-5111

corporation; ABIGAIL DOE,

22 BEATRICE DOE, CAROLINA DOE, COMPLAINT FOR

23

DINORA DOE, INGRID DOE and JOSE DOE, individually and on behalf

DECLARATORY AND INJUNCTIVE RELIEF FOR:

24 of all others similarly situated,

(1) VIOLATION OF THE

25

Plaintiffs,

IMMIGRATION AND

NATIONALITY ACT, 8

26

v.

U.S.C. § 1101, ET SEQ.

27 JOHN F. KELLY, Secretary, United

28

States Department of Homeland Security, in his official capacity;

(2) VIOLATION OF THE ADMINISTRATIVE

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 2 of 55 Page ID #:2

1 KEVIN K. MCALEENAN, Acting

PROCEDURE ACT, 5 U.S.C.

2

Commissioner, United States Customs and Border Protection, in his official

§ 551, ET SEQ.

3

capacity; TODD C. OWEN, Executive (3) Assistant Commissioner, Office of

VIOLATION OF THE FIFTH AMENDMENT TO THE

4 Field Operations, United States

UNITED STATES

Customs and Border Protection, in his 5 official capacity; and DOES 1-25,

CONSTITUTION (PROCEDURAL DUE

6 inclusive,

PROCESS)

7

Defendants.

(4) VIOLATION OF THE NONREFOULEMENT DOCTRINE

8 CLASS ACTION
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 3 of 55 Page ID #:3

1

I. INTRODUCTION

2

Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”), a non-profit legal services

3 organization, and Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe,

4 Ingrid Doe and Jose Doe (“Class Plaintiffs”), acting on their own behalf and on

5 behalf of all similarly situated individuals presenting themselves at Ports of Entry

6 (“POEs,” or individually, “POE”) along the U.S.-Mexico border to seek asylum in

7 the United States, allege as follows:

8

1. U.S. Customs and Border Protection (“CBP”) officials have

9 systematically violated U.S. law and binding international human rights law by

10 refusing to allow individuals, including Class Plaintiffs – who present themselves

11 at POEs along the U.S.-Mexico border and assert their intention to apply for

12 asylum or a fear of returning to their home countries – to seek protection in the

13 United States.

14

2. CBP is violating the law by utilizing various tactics – including

15 misrepresentations, threats and intimidation, verbal abuse and physical force, and

16 coercion – to deny asylum seekers, including Class Plaintiffs, access to the asylum

17 process. CBP officials have, for example, misinformed asylum seekers that they

18 could not apply for asylum because “Donald Trump just signed new laws saying

19 there is no asylum for anyone,” coerced asylum seekers into signing forms

20 abandoning their asylum claims by threatening to take their children away,

21 threatened to deport asylum seekers back to their home countries (where they face

22 persecution) if they persisted in their attempts to seek asylum, and even forcefully

23 removed asylum seekers from POEs.

24

3. The prevalence and persistence of CBP’s illegal practice of denying

25 asylum seekers access to the U.S. asylum process has been observed by Plaintiff Al

26 Otro Lado and Class Plaintiffs and has been well documented as occurring along

27 the entire U.S.-Mexico border through comprehensive reporting by non-

28 governmental organizations, such as Human Rights First, Amnesty International,

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

1

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 4 of 55 Page ID #:4

1 and Human Rights Watch; other experts working in the U.S.-Mexico border

2 region; as well as numerous news outlets, including The Washington Post, The

3 New York Times, and USA Today.

4

4. CBP’s illegal conduct is occurring as a humanitarian crisis drives

5 vulnerable people experiencing persecution in their home countries to seek refugee

6 protection in the United States. Asylum seekers, including Class Plaintiffs, have

7 fled persecution, violence and death, and face grave and immediate danger to their

8 lives if denied access to the asylum process – a system specifically designed to

9 protect refugees like them. CBP’s unlawful practice of turning asylum seekers

10 away from POEs is forcing asylum seekers, including Class Plaintiffs, to return to

11 Mexico and other countries where they remain susceptible to serious harm such as

12 kidnapping, rape, trafficking, torture or even death.

13

5. On information and belief, CBP’s unlawful acts were performed (and

14 continue to be performed) at the instigation, under the control or authority of, or

15 with the knowledge, consent, direction or acquiescence of, the Defendants named

16 in this action (“Defendants”). By refusing to follow the law, Defendants are

17 engaged in an officially sanctioned policy or practice that has caused, and will

18 continue to cause, Class Plaintiffs and Al Otro Lado concrete and demonstrable

19 injuries and irreparable harm.

20

6. Defendants have deprived Class Plaintiffs and similarly situated

21 individuals of their statutory and regulatory rights to apply for asylum, violated

22 their due process rights under the Fifth Amendment to the United States

23 Constitution and violated the United States’ obligations under international law to

24 uphold the principle of non-refoulement. Each Class Plaintiff has attempted to

25 access the asylum process and would seek to do so again, but for Defendants’

26 systematic, illegal practice at issue in this action, which has deprived them of such

27 access.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

2

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 5 of 55 Page ID #:5

1

7. Defendants have caused injury to Plaintiff Al Otro Lado by frustrating

2 its ability to advance and maintain its central institutional mission and forcing the

3 organization to divert substantial portions of its limited time and resources away

4 from its various programs in Los Angeles, California and Tijuana, Mexico to

5 counteract CBP’s unlawful practices.

6

8. Despite persistent advocacy by Al Otro Lado and other advocates, and

7 despite Class Plaintiffs’ desperate need to seek asylum in the United States, CBP

8 shows no signs of abating its illegal practice. Accordingly, Al Otro Lado and

9 Class Plaintiffs require the intervention of this Court to declare that CBP’s conduct

10 violates U.S. and international law, to enjoin Defendants from circumventing their

11 legal obligations and to order Defendants to implement procedures to ensure

12 effective oversight and accountability in the inspecting and processing of asylum

13 seekers. Absent the Court’s intervention, CBP’s unlawful conduct will continue to

14 imperil the lives and safety of numerous vulnerable asylum seekers.

15

9. In addition, because Class Plaintiffs face imminent and irreparable

16 injury if they are not afforded access to the asylum process, they seek immediate

17 injunctive relief in the form of a temporary restraining order ordering Defendants

18 to allow Class Plaintiffs to enter the United States to pursue their asylum claims.

19 Plaintiff Al Otro Lado and Class Plaintiffs also seek permanent injunctive relief to

20 ensure that Defendants no longer deny other asylum seekers the rights afforded to

21 them under U.S. and international law.

22

II. JURISDICTION AND VENUE

23

10. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

24 §§ 1331, 1346, and 1350. Defendants have waived sovereign immunity for

25 purposes of this suit pursuant to 5 U.S.C. § 702. The Court has authority to grant

26 declaratory relief under 28 U.S.C. §§ 2201 and 2202.

27

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

3

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 6 of 55 Page ID #:6

1

11. Venue is proper in this district under 28 U.S.C. § 1391(e). All

2 Defendants are sued in their official capacity. Plaintiff Al Otro Lado is an

3 organization that resides and is incorporated in Los Angeles, California.

4

III. PARTIES

5

12. Plaintiff Al Otro Lado is a non-profit, non-partisan organization

6 incorporated in California, and was established in 2014. Al Otro Lado is a legal

7 services organization serving indigent deportees, migrants, refugees and their

8 families, principally in Los Angeles, California and Tijuana, Mexico. Al Otro

9 Lado’s mission is to coordinate and to provide screening, advocacy and legal

10 representation for individuals in asylum and other immigration proceedings, to

11 seek redress for civil rights violations and to provide assistance with other legal

12 and social service needs. Defendants have frustrated Al Otro Lado’s mission and

13 have forced Al Otro Lado to divert significant resources away from its other

14 programs to counteract CBP’s illegal practice of turning away asylum seekers at

15 POEs.

16

13. Through its Refugee Program in Tijuana, Mexico, Al Otro Lado

17 assists individuals seeking protection from persecution in the United States. In

18 response to CBP’s unlawful practice, Al Otro Lado has had to expend significant

19 organizational time and resources and alter entirely its previously used large-scale

20 clinic model. For example, Al Otro Lado previously held large-scale, mass-advisal

21 legal clinics in Tijuana that provided a general overview on asylum laws and

22 procedures. This type of assistance (similar to the Legal Orientation Program of

23 the Executive Office for Immigration Review) only was workable when CBP

24 allowed asylum seekers into the United States in accordance with the law.

25

14. Since 2016, however, CBP’s illegal conduct has compelled Al Otro

26 Lado to expend significant time and resources to send representatives to Tijuana

27 from Los Angeles multiple times per month for extended periods to provide more

28 individualized assistance and coordination of legal and social services, including

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

4

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 7 of 55 Page ID #:7

1 individual screenings and in-depth trainings to educate volunteer attorneys and

2 asylum seekers regarding CBP’s practice and potential strategies to pursue asylum

3 in the face of CBP’s tactics. Whereas Al Otro Lado previously was able to

4 accommodate several dozen attorneys and over 100 clients at a time in its large-

5 scale clinics, Al Otro Lado has been forced to transition to an individualized

6 representation model where attorneys are required to work with asylum seekers

7 one-on-one and provide direct representation. Al Otro Lado has expended (and

8 continues to expend) significantly more resources recruiting, training and

9 mentoring pro bono attorneys to help counteract CBP’s unlawful practice.

10 Nevertheless, even asylum seekers provided with such individualized pro bono

11 representation are being turned away by CBP in violation of the law.

12

15. Al Otro Lado also has spent time and resources advocating that CBP

13 provide asylum seekers with access to the asylum process and cease using

14 unlawful tactics to circumvent its legal obligations. For example, Al Otro Lado

15 representatives have filed numerous complaints with the U.S. government detailing

16 examples of CBP’s unlawful practice depriving asylum seekers of access to the

17 asylum process.

18

16. Such diversion of Al Otro Lado’s time and resources negatively

19 impacts its other programs. For example, Al Otro Lado has not been able to pursue

20 funding for or otherwise advance the following programs: (1) its Deportee

21 Reintegration Program through which Al Otro Lado assists deportees who struggle

22 to survive in Tijuana, many of whom have no Mexican identity documents or

23 health coverage, and may not even speak Spanish; and (2) its Cross-Border Family

24 Support Program through which Al Otro Lado assists families with cross-border

25 custody issues, and helps connect family members residing in the United States to

26 social, legal, medical and mental health services. Other programs that have been

27 impacted include Al Otro Lado’s Deportee Financial Literacy Program, Deportee

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

5

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 8 of 55 Page ID #:8

1 Education Fund, Refugee Mental Health Program and Opioid Recovery Program,

2 among others.

3

17. In addition, the constraints on Al Otro Lado’s limited time and

4 resources has negatively impacted its operations in Los Angeles, including

5 delaying the opening of its Los Angeles office through which it coordinates

6 “Wraparound” services for low-income immigrants in Los Angeles. The increased

7 need for on the ground support in Tijuana has impacted Al Otro Lado’s ability to

8 satisfy its clinical obligations for low-income immigrants at the Wellness Center,

9 located on the grounds of the Los Angeles County+USC Medical Center, and to

10 conduct outreach to provide free legal assistance to homeless individuals in Los

11 Angeles to allow them to better access permanent supportive housing, employment

12 and educational opportunities.

13

18. Al Otro Lado continues to be harmed by Defendants because CBP’s

14 illegal practice at the border frustrates its organizational mission and forces Al

15 Otro Lado to divert resources from its other objectives. If Al Otro Lado had not

16 been compelled to divert resources to address CBP’s unlawful conduct at the U.S.-

17 Mexico border, it would have directed these resources toward its other programs to

18 further the advancement of its core mission.

19

19. Plaintiff Abigail Doe (“A.D.”) is a female native and citizen of

20 Mexico. She is the mother of two children under the age of ten. A.D. and her

21 family have been targeted and threatened with death or severe harm in Mexico by a

22 large drug cartel that had previously targeted her husband, leaving her certain she

23 would not be protected by local officials. A.D. fled with her two children to

24 Tijuana, where they presented themselves at the San Ysidro POE. On behalf of

25 herself and her children, A.D. expressed her fear of returning to Mexico and her

26 desire to seek asylum in the United States. CBP officials coerced A.D. into

27 recanting her fear and signing a form withdrawing her application for admission to

28 the United States. As a result of this coercion, the form falsely states that A.D.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

6

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 9 of 55 Page ID #:9

1 does not have a credible fear of returning to Mexico. As a result of Defendants’

2 conduct, A.D. and her children were unable to access the asylum process and were

3 forced to return to Tijuana, where they remain in fear for their lives. A.D. and her

4 children would like to present themselves again for asylum but, based on their

5 experience and the experience of others with CBP’s practice at the U.S.-Mexico

6 border, she understands that they would likely be turned away again. A.D. and her

7 children are currently living in temporary housing in Tijuana and can no longer

8 remain in Mexico and have no place else to turn for safety but the United States.

9

20. Plaintiff Beatrice Doe (“B.D.”) is a female native and citizen of

10 Mexico. She is the mother of three children under the age of sixteen. B.D. and her

11 family have been targeted and threatened with death or severe harm in Mexico by a

12 dangerous drug cartel; she was also subject to severe domestic violence. B.D. fled

13 with her children and her nephew to Tijuana, where they presented themselves

14 once at the Otay Mesa POE and twice at the San Ysidro POE. On behalf of herself

15 and her children, B.D. expressed her fear of returning to Mexico and her desire to

16 seek asylum in the United States. CBP officials coerced B.D. into recanting her

17 fear and signing a form withdrawing her application for admission to the United

18 States. As a result of this coercion, the form falsely states that B.D. and her

19 children have no fear of returning to Mexico. As a result of Defendants’ conduct,

20 B.D. and her children were unable to access the asylum process and were forced to

21 return to Tijuana, where they remain in fear for their lives. B.D. and her children

22 would like to present themselves again for asylum but, based on their experience

23 and the experience of others with CBP’s practice at the U.S.-Mexico border, she

24 understands that they would likely be turned away again. B.D. and her children are

25 currently living in temporary housing in Tijuana and can no longer remain in

26 Mexico and have no place else to turn for safety but the United States.

27

21. Plaintiff Carolina Doe (“C.D.”) is a female native and citizen of

28 Mexico. She is the mother of three children. C.D.’s brother-in-law was kidnapped

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

7

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 10 of 55 Page ID #:10

1 and dismembered by a dangerous drug cartel in Mexico, and after the murder, her

2 family also was targeted and threatened with death or severe harm. C.D. fled with

3 her children to Tijuana, where they presented themselves at the San Ysidro, POE.

4 On behalf of herself and her children, C.D. expressed her fear of returning to

5 Mexico and her desire to seek asylum in the United States. CBP officials coerced

6 C.D. into recanting her fear on video and signing a form withdrawing her

7 application for admission to the United States. As a result of this coercion, the

8 form falsely states that C.D. and her children have no fear of returning to Mexico.

9 As a result of Defendants’ conduct, C.D. and her children were unable to access

10 the asylum process and were forced to return to Tijuana, where they remain in fear

11 for their lives. C.D. and her children would like to present themselves again for

12 asylum but, based on their experience and the experience of others with CBP’s

13 practice at the U.S.-Mexico border, she understands that they would likely be

14 turned away again. C.D. and her children are currently living in temporary

15 housing in Tijuana and can no longer remain in Mexico and have no place else to

16 turn for safety but the United States.

17

22. Plaintiff Dinora Doe (“D.D.”) is a female native and citizen of

18 Honduras. D.D. and her eighteen-year-old daughter have been targeted, threatened

19 with death or severe harm, and repeatedly raped by MS-13 gang members. D.D.

20 fled with her daughter to Tijuana, where they presented themselves at the Otay

21 Mesa, POE on three occasions. D.D. expressed her fear of returning to Honduras

22 and her desire to seek asylum in the United States. CBP officials misinformed

23 D.D. about her rights under U.S. law and denied her the opportunity to access the

24 asylum process. As a result of Defendants’ conduct, D.D. and her daughter were

25 forced to return to Tijuana, where they remain in fear for their lives. D.D. and her

26 daughter would like to present themselves again for asylum but, based on their

27 experience and the experience of others with CBP’s practice at the U.S.-Mexico

28 border, she understands that they would likely be turned away again. D.D. is

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

8

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 11 of 55 Page ID #:11

1 currently living in temporary housing with her daughter in Tijuana and can no

2 longer remain in Mexico and have no place else to turn for safety but the United

3 States.

4

23. Plaintiff Ingrid Doe (“I.D.”) is a female native and citizen of

5 Honduras. She is the mother of two children and is currently pregnant with her

6 third child. I.D.’s mother and three siblings were murdered by 18th Street gang

7 members in Honduras. After the murders, 18th Street gang members threatened to

8 kill I.D. I.D. and her children were also subject to severe domestic violence. I.D.

9 fled with her children to Tijuana, where they presented themselves at the Otay

10 Mesa POE and at the San Ysidro POE. On behalf of herself and her children, I.D.

11 expressed her fear of returning to Honduras and her desire to seek asylum in the

12 United States. CBP officials misinformed I.D. about her rights under U.S. law and

13 denied her the opportunity to access the asylum process. As a result of

14 Defendants’ conduct, I.D. and her children were forced to return to Tijuana, where

15 they remain in fear for their lives. I.D. and her children would like to present

16 themselves again for asylum but, based on their experience and the experience of

17 others with CBP’s practice at the U.S.-Mexico border, she understands that they

18 would likely be turned away again. I.D. is currently living in temporary housing

19 with her children in Tijuana and can no longer remain in Mexico and have no place

20 else to turn for safety but the United States.

21

24. Plaintiff Jose Doe (“J.D.”) is a male native and citizen of Honduras.

22 J.D. was brutally attacked by 18th Street gang members in Honduras. The 18th

23 Street gang also murdered several of his family members and threatened to kidnap

24 and harm J.D.’s two daughters. J.D. fled Honduras and arrived in Nuevo Laredo,

25 Mexico, where he was accosted by gang members. J.D. presented himself at the

26 Laredo, Texas POE the next day. J.D. expressed his fear of returning to Honduras

27 and his desire to seek asylum in the United States. CBP officials misinformed J.D.

28 about his rights under U.S. law and denied him the opportunity to access the

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

9

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 12 of 55 Page ID #:12

1 asylum process. As a result of Defendants’ conduct, J.D. was forced to return to

2 Nuevo Laredo where he again was approached by gang members. J.D. fled to

3 Monterrey, Mexico, where he remains in fear for his life. J.D. would like to

4 present himself again for asylum but, based on his experience and the experience

5 of others with CBP’s practice at the U.S.-Mexico border, he understands that he

6 would likely be turned away again. J.D. is currently staying temporarily with his

7 wife’s relatives in Monterrey, Mexico and is afraid to return to Honduras. J.D. can

8 no longer remain in Mexico and have no place else to turn for safety but the United

9 States.

10

25. Defendant John F. Kelly is the Secretary of the United States

11 Department of Homeland Security (“DHS”). In this capacity, he is charged with

12 enforcing and administering U.S. immigration laws. He oversees each of the

13 component agencies within DHS, including CBP, and has ultimate authority over

14 all CBP policies, procedures and practices. He is responsible for ensuring that all

15 CBP officials perform their duties in accordance with the Constitution and all

16 relevant laws.

17

26. Defendant Kevin K. McAleenan is Acting Commissioner of CBP. In

18 this capacity, he has direct authority over all CBP policies, procedures and

19 practices, and is responsible for ensuring that all CBP interactions with asylum

20 seekers are performed in accordance with the Constitution and all relevant laws.

21 Defendant McAleenan oversees a staff of more than 60,000 employees, manages a

22 budget of more than $13 billion, and exercises authority over all CBP operations.

23

27. Defendant Todd C. Owen is the Executive Assistant Commissioner of

24 CBP’s Office of Field Operations (“OFO”). OFO is the largest component of CBP

25 and is responsible for border security, including immigration and travel through

26 U.S. POEs. Defendant Owen exercises authority over 20 major field offices and

27 328 POEs. Defendant Owen oversees a staff of more than 29,000 employees,

28 including more than 24,000 CBP officials and specialists, and manages a budget of

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

10

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 13 of 55 Page ID #:13

1 more than $5.2 billion. Defendant Owen is responsible for ensuring that all OFO

2 officials perform their duties in accordance with the Constitution and all relevant

3 laws.

4

28. Does 1 through 25, inclusive, are sued herein under fictitious names

5 inasmuch as their true names and capacities are presently unknown to Al Otro

6 Lado and Class Plaintiffs. Al Otro Lado and Class Plaintiffs will amend this

7 complaint to designate the true names and capacities of these parties when the

8 same have been ascertained. Al Otro Lado and Class Plaintiffs are informed and

9 believe, and on that basis allege, that Does 1 through 25, inclusive, were agents or

10 alter egos of Defendants, or are otherwise responsible for all of the acts hereinafter

11 alleged. Al Otro Lado and Class Plaintiffs are informed and believe, and on that

12 basis allege, that the actions of Does 1 through 25, inclusive, as alleged herein,

13 were duly ratified by Defendants, with each Doe acting as the agent or alter ego of

14 Defendants, within the scope, course, and authority of the agency. Defendants and

15 Does 1 through 25, inclusive, are collectively referred to herein as “Defendants.”

16

IV. FACTUAL BACKGROUND

17

A. Humanitarian Crisis South of the U.S.-Mexico Border

18

29. In recent years, children and adults have fled horrendous persecution

19 in their home countries and arrived at POEs along the U.S.-Mexico border to seek

20 protection in the United States through the asylum process. The vast majority of

21 these individuals come from Guatemala, Honduras and El Salvador, an area often

22 termed Central America’s “Northern Triangle.”

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

11

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 14 of 55 Page ID #:14

1

30. These governments are known for corruption,1 including having

2 corrupt police forces filled with gang-related members.2 Furthermore, the

3 “penetration of the state by criminal groups” is responsible, at least in part, for the

4 fact that as many as 95% of crimes go unpunished.3

5

31. The “pervasive and systematic levels of violence” associated with the

6 increasing reach of gangs in the Northern Triangle have been well documented.4

7 Those fleeing the Northern Triangle cite “violence [from] criminal armed groups,

8 including assaults, extortion, and disappearances or murder of family members,”5 as

9 reasons for their flight. These armed groups operate with impunity due to their

10 influence and control over the governments of Northern Triangle countries, which

11 have repeatedly proven to be unable or unwilling to protect their citizens.6 The

12

13

14 1

See Christina Eguizábal et al., Crime and Violence in Central America’s

15 Northern Triangle, The Wilson Ctr., 2 (2015), https://www.wilsoncenter.org/sites/

default/files/FINAL%20PDF_CARSI%20REPORT_0.pdf. 16
2 “Over the past five years, at least 435 members of the [Salvadoran] armed

17 forces were fired for being gang members or having ties to gangs . . . . Another 39

aspiring police officers were expelled from the National Public Security Academy 18 over the same period, of which 25 ‘belonged to’ the Mara Salvatrucha, or MS13,

19

while 13 were from the Barrio 18 gang. Nine more active police officers were also dismissed for alleged gang ties over the five years.” Mimi Yagoub, 480 Gang

20 Members Infiltrated El Salvador Security Forces: Report, InSight Crime (Feb. 22,

2016), http://www.insightcrime.org/news-briefs/did-480-gang-members-infiltrate-

21 el-salvador-security-forces.

22 3 Eguizábal et al., supra note 1, at 2.

23

4 UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico, 15 (2015), http://www.unhcr.org/en-

24 us/publications/operations/5630f24c6/women-run.html [hereinafter Women on the

Run].

25 5

Id.

26 6 Id. at 16 (finding that citizens of Northern Triangle countries are “murdered

27

with impunity”); id. at 23 (finding that 69% of women interviewed tried relocating within their own countries at least once before fleeing and indicating that 10%

28 “stated that the police or other authorities were the direct source of their harm”).

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

12

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 15 of 55 Page ID #:15

1 degree of violence suffered by people in the Northern Triangle has been compared

2 to that experienced in war zones.7

3

32. This violence and corruption is not limited to the Northern Triangle,

4 but also is experienced by individuals fleeing Mexico. Mexico has faced a drastic

5 rise in criminal activity since the early 2000s that is attributed to organized

6 criminal groups and has been accompanied by increases in violence and

7 corruption.8 Although the northern half of Mexico was often considered the most

8 dangerous, recent reports reveal an increase in violence in the central and southern

9 states of Mexico, particularly in Guerrero, Michoacán, and the State of Mexico.9

10 Along with the increase in violence and organized criminal activity, it is well

11 documented that the police and armed forces operate with impunity in Mexico,

12 leaving victims unable to resort to their own government for protection.10 Indeed,

13 “[i]n some regions of Mexico the state has become so closely identified with

14

15

16

17

7 Médecins Sans Frontières (Doctors Without Borders), Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian Crisis, 6 (2017),

18 https://www.doctorswithoutborders.org/sites/usa/files/msf_forced-to-flee-centralamericas-northern-triangle.pdf [hereinafter Forced to Flee].
19 8 Dominic Joseph Pera, Drugs Violence and Public [In]Security: Mexico’s

20 Federal Police and Human Rights Abuse, 2-4, 7 (Justice in Mex. Working Paper Series Paper No. 1, 2015), https://justiceinmexico.org/wp-content/uploads/2015/
21 12/151204_PERA_DOMINIC_DrugViolenceandPublicInsecurity_FINAL.pdf; see

U.S. Dep’t of State, Bureau of Democracy, Human Rights and Labor, Country 22 Reports on Human Rights Practices for 2014, https://www.state.gov/j/drl/rls/hrrpt/
23 2014humanrightsreport/index.htm?year=2014&dlid=236702#wrapper. 9 See, e.g., U.S. Dep’t of State, Bureau of Diplomatic Sec., Mexico 2015
24 Crime and Safety Report: Mexico City, https://www.osac.gov/pages/

25

ContentReportDetails.aspx?cid=17114 (reporting that a “common practice is for gangs to charge ‘protection fees’ or add their own tax to products and services with

26 the threat of violence for those who fail to pay”).

27

10 See Pera, supra note 8, at 4 (“Drug trafficking organizations have infiltrated government positions in many areas, and their influence over state personnel has

28 dramatic implications.”).

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

13

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 16 of 55 Page ID #:16

1 criminal gangs and drug cartels that these criminal organizations do not need to

2 corrupt the state – they essentially ‘are’ part of the state.”11

3

33. In addition, women and children often flee severe domestic violence.

4 Women report prolonged instances of physical, sexual and psychological domestic

5 violence, and most of their accounts demonstrate that the authorities in their home

6 countries were either unable or unwilling to provide meaningful assistance.12

7 Abusive partners are often members or associates of criminal armed groups.13

8 Abusers frequently threaten women with harm to their parents, siblings or children

9 if they try to leave.14 Some women who fled their countries have heard from

10 family members back home that their abusers continue to look for them.15

11

34. After fleeing their home countries, children and adults face an arduous

12 and dangerous journey to the United States.16 The situation along the popular

13 migration routes to the United States has been termed a “humanitarian crisis”

14

15

11 Alberto Díaz-Cayeros et al., Caught in the Crossfire: The Geography of 16 Extortion and Police Corruption in Mexico, 3-4 (Stanford Ctr. for Int’l Dev., Paper

17

No. 545, 2015), http://scid.stanford.edu/publications/caught-crossfire-geographyextortion-and-police-corruption-mexico.

18 12 Women on the Run, supra note 4, at 25. The women interviewed described

19

repeated rapes and sexual assaults as well as violent physical abuse that included: “beatings with hands, a baseball bat and other weapons; kicking; threats to do

20 bodily harm with knives; and repeatedly being thrown against walls and the

ground.” Id. 21 13 Id.

22 14 Id. at 27.

23 15 Id.

24 16 See id. at 43-45 (describing extortion, sexual violence, and physical violence); see also Rodrigo Dominguez Villegas, Central American Migrants and

25 “La Bestia”: The Route, Dangers, and Government Responses, Migration Info.

26

Source (Sept. 10, 2014), http://www.migrationpolicy.org/article/central-americanmigrants-and-%E2%80%9Cla-bestia%E2%80%9D-route-dangers-and-

27

government-responses (listing “injury or death from unsafe travelling conditions, gang violence, sexual assault, extortion, kidnapping, and recruitment by organized

28 crime” as dangers faced on the journey to the United States).

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

14

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 17 of 55 Page ID #:17

1 because of the extraordinary violence faced by those making the journey.17 In

2 2015 and 2016, 68% of migrants from the Northern Triangle region experienced

3 violence, including sexual assault, on their journeys through Central America and

4 Mexico.18 Perpetrators of violence “include[] members of gangs and other

5 criminal organizations, as well as members of the Mexican security forces.”19

6 Thus, the initial mistrust and inability to rely upon government authorities for

7 protection that leads many to flee their home countries accompanies them along

8 their journeys.20

9

35. In addition, Mexico’s northern border region is particularly plagued

10 with crime and violence, presenting renewed dangers for asylum seekers just as

11 they approach their destination.21 The most pervasive problems include

12 disappearances, kidnappings, rape, trafficking, extortion, execution and sexual and

13 17 See Eguizábal et al., supra note 1, at 3.
14 18 See Forced to Flee, supra note 7, at 11. Close to half (44%) of the migrants
15 reported being hit, 40% said they had been pushed, grabbed or asphyxiated, and 7% said they had been shot. Id. Nearly one-third (31.4%) of women and 17.2% of
16 men surveyed during that same time period had been sexually abused during their
17 journeys. Id. at 12. 19 Id. at 5.
18 20 See, e.g., Villegas, supra note 16 (referencing documentation of “the abuse
19 of power by various Mexican authorities, including agents from the National Migration Institute, municipal governments, and state police” against individuals
20 traveling to the U.S. border).

21 21 See U.S. Dep’t of State, Mexico Travel Warning (Dec. 8, 2016), https://

travel.state.gov/content/passports/en/alertswarnings/mexico-travel-warning.html

22 (reporting violent crime and an increase in homicide in the state of Baja California

23

(including Tijuana and Mexicali); criminal activity and violence in the state of Chihuahua (including Ciudad Juarez); violence and criminal activity, including

24 homicide, armed robbery, carjacking, kidnapping, extortion, and sexual assault in the state of Coahuila (particularly along the highways between Piedras Negras and

25 Nuevo Laredo); that the state of Sonora (including Nogales) is a key region in the

26

international drug and human trafficking trades; and violent crime, including homicide, armed robbery, carjacking, kidnapping, extortion, and sexual assault in

27

the state of Tamaulipas (including Matamoros, Nuevo Laredo, and Reynosa), where state and municipal law enforcement capacity is limited to nonexistent in

28 most parts of the state).

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

15

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 18 of 55 Page ID #:18

1 labor exploitation by state and non-state actors.22 Recently, the situation at the

2 border has worsened: smugglers have increased their prices, cartel members have

3 increased their surveillance and control of areas around border crossings, and the

4 number of migrants kidnapped and held for ransom has increased.23

5

36. By rejecting asylum seekers at POEs, Defendants are forcing them to

6 return to the dangerous conditions that drove them to flee their countries in the first

7 place.24

8

B. Defendants’ Systematic, Illegal Practice

9

37. Since at least the summer of 2016 and continuing to the present, CBP

10 officials, at or under the direction or with the knowledge of Defendants, have

11 consistently and systematically prevented asylum seekers arriving at POEs along

12 the U.S.-Mexico border from accessing the U.S. asylum process.25 CBP’s illegal

13

14

22 B. Shaw Drake et al., Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers, Human Rights First, 16 (2017),

15 https://www.humanrightsfirst.org/sites/default/files/hrf-crossing-the-line-report.pdf

[hereinafter Crossing the Line].

16 23 Id.

17 24 Id.; see also B. Shaw Drake, Violations at the Border: The El Paso Sector,

18

Human Rights First, 2-3 (2017), http://www.humanrightsfirst.org/sites/default/ files/hrf-violations-at-el-paso-border-rep.pdf (explaining the risks facing asylum

19 seekers who are turned away at U.S. POEs, including being deported back to their

home countries where they face persecution).

20 25 There is evidence that CBP officials began unlawfully dissuading asylum

21 seekers from pursuing their claims or flatly refusing them entry to the United

States even prior to 2016. See American Immigration Council, Mexican and

22 Central American Asylum and Credible Fear Claims: Background and Context,

23

10 (2014), https://www.americanimmigrationcouncil.org/sites/ default/files/research/asylum_and_credible_fear_claims_final_0.pdf (reporting that

24 Mexican asylum seekers arriving in El Paso “expressed a fear of persecution [but] were told by CBP that the U.S. doesn’t give Mexicans asylum, and they [we]re

25 turned back”); see also U.S. Comm’n on Int’l Religious Freedom, Report on

26

Asylum Seekers in Expedited Removal: Volume I: Findings & Recommendations, 54 (2005) [hereinafter 2005 USCIRF Report] (reporting that two groups of asylum

27

seekers who arrived at the San Ysidro POE were “improperly refused entry to the United States for . . . lacking proper documentation and [were] ‘pushed back’ . . .

28 without [being] refer[red] . . . to secondary inspection” and without a “record of the

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

16

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 19 of 55 Page ID #:19

1 practice, which violates U.S. and international law, has been documented in

2 hundreds of cases at POEs, including POEs in San Ysidro, California; Otay Mesa,

3 California; Tecate, California; Calexico, California; Nogales, Arizona; Eagle Pass,

4 Texas; El Paso, Texas; Laredo, Texas; and Hidalgo, Texas, among others.

5

38. CBP’s practice of denying asylum seekers access to the asylum

6 process has been well documented.26 Al Otro Lado and Class Plaintiffs, as well as

7 numerous non-governmental organizations27 and news outlets,28 have documented

8

primary inspection” being created); see also Human Rights Watch, “You Don’t

9 Have Rights Here”: US Border Screening and Returns of Central Americans to

10

Risk of Serious Harm, 2, 8 (2014), https://www.hrw.org/report/2014/10/16/youdont-have-rights-here/us-border-screening-and-returns-central-americans-risk

11 [hereinafter You Don’t Have Rights Here] (concluding that the “cursory screening [conducted by CBP officials] is failing to effectively identify [asylum seekers]”

12 and reporting that some “border officials acknowledged hearing [non-citizens’]

expressions of fear but pressured them to abandon their claims”). 13
26 See, e.g., Borderland Immigration Council, Discretion to Deny: Family

14 Separation, Prolonged Detention, and Deterrence of Asylum Seekers at the Hands

15

of Immigration Authorities Along the U.S.-Mexico Border, 12 (2017), https:// media.wix.com/ugd/e07ba9_72743e60ea6d4c3aa796becc71c3b0fe.pdf (reporting

16

that “it is commonplace for asylum seekers to be placed in expedited removal proceedings and summarily deported . . ., despite expressing fear”); U.S. Comm’n

17 on Int’l Religious Freedom, Barriers to Protection: The Treatment of Asylum

Seekers in Expedited Removal, 20 (2016) (reporting that despite findings and

18 recommendations in a 2005 study relating to primary inspection, USCIRF

19

observers in 2016 continued to find “several examples of non-compliance with required procedures” in CBP primary inspection interviews); see also 2005

20 USCIRF Report, supra note 25, at 54 (finding that, in approximately half of the inspections observed, inspectors failed to read the proper advisals regarding

21 asylum to the non-citizen and that “in 15 percent of [the] cases [ ] where an

arriving [non-citizen] expressed a fear of return to the inspector, that [non-citizen] 22 was not referred” for a credible fear interview).

23 27 See, e.g., Crossing the Line, supra note 22; Amnesty Int’l, Facing Walls:

USA and Mexico’s Violation of the Rights of Asylum Seekers, 19-22 (2017), 24 https://www.amnestyusa.org/reports/facing-walls-usa-mexicos-violation-rights-

25

asylum-seekers/ [hereinafter Facing Walls]; “You Don’t Have Rights Here,” supra note 25, at 2, 4.

26 28 Joshua Partlow, U.S. Border Officials Are Illegally Turning Away Asylum

27

Seekers, Critics Say, Wash. Post (Jan. 16, 2017), https://www.washingtonpost. com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum-

28 seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

17

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 20 of 55 Page ID #:20

1 well over 100 cases in which CBP officials have failed to comply with U.S. and

2 international law and arbitrarily denied access to the asylum process to asylum

3 seekers presenting themselves at POEs along the U.S.-Mexico border.

4

1. Defendants Have Violated Each of the Class Plaintiffs’

5

Rights to Seek Asylum

6 Plaintiff Abigail Doe

7

39. A.D. is a native and citizen of Mexico. She is the mother of two

8 children under the age of ten, with whom she previously lived in Central Mexico.

9 In May 2017, A.D.’s husband disappeared after he refused to allow drug cartel

10 members to use his tractor-trailer to transport drugs.

11

40. When A.D. reported her husband’s disappearance to governmental

12 authorities, members of the drug cartel abducted her, held her at gunpoint, and

13 threatened to kill her and her children if she continued to investigate her husband’s

14 disappearance. One cartel member told A.D. that she had to leave if she wanted to

15 live. Fearing for her life, A.D. fled to Tijuana with her children to seek asylum in

16 the United States.

17

41. After arriving in Tijuana, A.D. and her children immediately went to

18 the San Ysidro POE, where she informed CBP officials of her intent to apply for

19 asylum and her fear of returning to Mexico. CBP officials repeatedly misinformed

20 A.D. that she did not qualify for asylum. One CBP official threatened that her

21 children would be taken away from her if they allowed her to cross the border and

22 again misinformed her that only the Mexican government could help her.

23

42. CBP officials coerced A.D. into signing a document in English which

24 she could not read and did not understand. The document stated that she did not

25

html?utm_term=.83c7aed8fc6c; Caitlin Dickerson & Miriam Jordan, ‘No Asylum 26 Here’: Some Say U.S. Border Agents Rejected Them, N.Y. Times (May 3, 2017),

27

https://www.nytimes.com/2017/05/03/us/asylum-border-customs.html; Rafael Carranza, Are Asylum Seekers Being Turned Away at the Border?, USA Today

28 (May 5, 2017), https://www.usatoday.com/story/news/politics/2017/05/05/asylumseekers-turned-away/311552001/.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

18

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 21 of 55 Page ID #:21

1 have a fear of returning to Mexico and was withdrawing her application for

2 admission. CBP officials then instructed A.D. to say that she had agreed to accept

3 the assistance of the Mexican government and used a video camera to record her

4 statement. A CBP official then took A.D. and her children back to Mexico and left

5 them to fend for themselves.

6

43. The statements CBP coercively obtained from A.D. were and are still

7 false; A.D. does fear returning to and staying in Mexico and does not intend to

8 seek assistance from the Mexican government because she believes such efforts

9 would be futile.

10

44. A.D. and her children would like to present themselves again to seek

11 asylum but, based on their experience and the experience of others with CBP’s

12 practice at POEs, she understands that they would likely be turned away again or

13 that CBP would take her children away from her.

14

45. A.D. and her children are currently staying in temporary housing in

15 Tijuana, where A.D. continues to fear for her life and the lives of her children.

16 A.D. can no longer remain in Mexico and has no place else to turn for safety but

17 the United States.

18 Plaintiff Beatrice Doe

19

46. B.D. is a native and citizen of Mexico. In May 2017, B.D. fled her

20 hometown in Mexico with her three children, ages seven, eleven and fifteen, and

21 her nephew. B.D.’s nephew was targeted by the Zetas, a Mexican drug cartel that

22 controls most of Southern Mexico, for failing to pay a fee that the Zetas demanded

23 from all individuals who worked in the market. The Zetas threatened to kill B.D.’s

24 nephew and to harm his family if he did not pay the fees. The cartel also pressured

25 B.D.’s nephew to join their forces and threatened to increase the fee if he refused.

26 On two occasions when B.D.’s nephew failed to pay the fees, the Zetas beat him

27 up.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

19

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 22 of 55 Page ID #:22

1

47. B.D. herself suffered severe domestic violence at the hands of her

2 husband. In May 2017, she reported his abuse to two government agencies. When

3 Mexican government officials subsequently requested that B.D.’s husband meet

4 with them, he responded that he would continue to do what he wanted with B.D.

5 and his children. Terrified, B.D. left their house the same day.

6

48. B.D. fled with her children and nephew and traveled to Tijuana in

7 order to seek asylum in the United States. Initially, B.D. and her family went to

8 the Otay Mesa POE. When B.D. expressed their intent to seek asylum, a CBP

9 official told her that asylum-related services were not provided at that port, and

10 directed her to go to the San Ysidro POE. B.D. and her family then attempted

11 twice to request asylum at the San Ysidro POE, but CBP officials turned them

12 away both times.

13

49. The first time B.D. and her family presented themselves at the San

14 Ysidro POE, she explained that their lives were at risk in Mexico and that she was

15 afraid of her husband. CBP officials misinformed her that the U.S. government

16 had no obligation to help her or her family, that they did not have a right to enter

17 the United States because they were not born there, and that she should seek help

18 from the Mexican government.

19

50. Another CBP official then threatened to take B.D.’s nephew away

20 from her and to put her in jail if she refused to sign an English document which she

21 did not understand. Believing that she had no other option, she signed the

22 document. CBP officials then escorted B.D. and her family out of the POE.

23

51. The statement CBP coercively obtained from B.D. were and are still

24 false; B.D. and her children do fear returning to and staying in Mexico.

25

52. The next day, B.D. and her family returned to the San Ysidro POE. A

26 CBP official who recognized B.D. from the day before misinformed her that she

27 had no right to enter the United States or seek asylum, and that she would be put in

28 jail for three years if she returned to the POE. After another CBP official

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

20

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 23 of 55 Page ID #:23

1 separately threatened to transfer B.D.’s nephew to Mexican authorities and return

2 him to Southern Mexico, CBP officials again escorted B.D. and her family out of

3 the San Ysidro POE.

4

53. B.D. and her children would like to present themselves again for

5 asylum, but based on their experience and the experience of others with CBP’s

6 practice at POEs, she understands that they would likely be turned away again or

7 put in jail as the CBP officials threatened.

8

54. B.D. and her children are currently staying in temporary housing in

9 Tijuana, where B.D. continues to fear for her life and the lives of her children.

10 B.D. can no longer remain in Mexico and has no place else to turn for safety but

11 the United States.

12 Plaintiff Carolina Doe

13

55. C.D. is a native and citizen of Mexico. In May 2017, C.D. fled her

14 hometown in Mexico with her three children, ages nine, fifteen and eighteen, after

15 her brother-in-law, a high-ranking police official, was kidnapped, tortured and

16 killed by members of a drug trafficking cartel. His dismembered body was found

17 in garbage bags in a cemetery. C.D.’s husband witnessed the kidnapping and

18 showed C.D. a picture of one of the men who was involved. Drug cartel members

19 threatened C.D.’s husband after the murder, and C.D. and her husband saw the van

20 used in the kidnapping drive by their house twice. Two men followed C.D. and

21 her daughters on her way home from work, and several men came to their home at

22 night. C.D. was terrified and hid with her daughters in the bathroom because she

23 feared for her life and the lives of her daughters.

24

56. In May 2017, C.D. fled in the middle of the night with her daughters

25 and traveled to Tijuana in order to seek asylum in the United States. C.D. and her

26 daughters presented themselves at the San Ysidro POE, and C.D. explained that

27 they were afraid of returning to Mexico and wanted to seek asylum. CBP officials

28 locked them in a room overnight at the San Ysidro POE. In the morning, a CBP

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

21

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 24 of 55 Page ID #:24

1 official told C.D. that she would not be granted asylum and misinformed her that

2 the protection she was seeking in the United States could be provided by the

3 Mexican authorities. The CBP official threatened to take away C.D.’s fifteen-year-

4 old U.S. citizen daughter and put her in foster care, and told C.D. that if she did not

5 want her daughter taken away from her, then she had to make a statement on video

6 that she was not afraid of returning to Mexico.

7

57. The CBP officials coerced C.D. into recanting her fear on video. C.D.

8 initially did not respond as the CBP officials instructed her to do because the

9 responses they told her to say were not true. C.D. was afraid and wanted to

10 respond that she was very scared to return to Mexico. One of the CBP officials

11 repeated that the only way C.D. and her daughters would be able to leave

12 voluntarily without her U.S. citizen daughter being taken away from her was if

13 C.D. stated on video that she was not scared. Having been locked in a room

14 overnight, C.D. was tired and scared and felt like she was in jail. The CBP

15 officials continued to coerce her until she finally did what they told her to do,

16 believing she had no choice.

17

58. The CBP officials also coerced C.D. into signing a document in

18 English which she could not read and did not understand. The document stated

19 that she did not have a fear of returning to Mexico and was withdrawing her

20 application for admission. The statements CBP coercively obtained from C.D.

21 were and are still false; C.D. does fear returning to and staying in Mexico.

22

59. Several days after CBP turned away C.D. and her daughters at the

23 POE, C.D. made arrangements for her U.S. citizen daughter to cross into the

24 United States. C.D. and her other two children would like to present themselves

25 again for asylum, but based on their experience and the experience of others with

26 CBP’s practice at POEs, she understands that they would likely be turned away

27 again.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

22

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 25 of 55 Page ID #:25

1

60. C.D. and her two children are currently staying in temporary housing

2 in Tijuana, where C.D. continues to fear for her life and the lives of her children.

3 C.D. can no longer remain in Mexico and has no place else to turn for safety but

4 the United States.

5 Plaintiff Dinora Doe

6

61. D.D. is a native and citizen of Honduras. MS-13 gang members

7 repeatedly threatened to kill D.D. and her then-seventeen-year-old daughter if they

8 did not leave their house. After receiving the third threat, they fled to another city

9 where they remained in hiding.

10

62. When D.D. and her daughter subsequently returned home, three MS-

11 13 members held them captive for three days and repeatedly raped each of them in

12 front of the other.

13

63. When D.D. and her daughter finally escaped, they fled to a shelter in

14 Mexico. However, after being threatened by MS-13 gang members again in

15 Mexico, they knew they had to leave.

16

64. On three separate occasions in August 2016, D.D. and her daughter

17 went to the Otay Mesa POE and expressed their intent to seek asylum in the United

18 States. Each time, CBP officials turned them away.

19

65. During D.D.’s first attempt, CBP officials misinformed her that there

20 was no asylum in the United States and escorted D.D. and her daughter outside the

21 POE.

22

66. During her second attempt later the same day, one CBP official

23 misinformed D.D. that there was no asylum available in the United States for

24 Central Americans and that if they returned to the POE, they would be handed over

25 to Mexican authorities and deported to Honduras.

26

67. During her third attempt the next morning, a CBP official

27 misinformed D.D. that she could pass through the POE, but would have to leave

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

23

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 26 of 55 Page ID #:26

1 her daughter behind. When D.D. insisted that she and her daughter had a right to

2 apply for asylum, CBP officials escorted them out of the POE.

3

68. D.D. and her children would like to present themselves again for

4 asylum but, based on their experience and the experience of others with CBP’s

5 practice at POEs, she understands that they would likely be turned away again or

6 separated from each other.

7

69. D.D. and her daughter are currently staying in Tijuana. In June 2017,

8 D.D. received a call from a person connected to the MS-13 gang trying to identify

9 her location in Mexico. D.D. continues to fear for her life and the life of her

10 daughter. D.D. can no longer remain in Mexico and has no place else to turn for

11 safety but the United States.

12 Plaintiff Ingrid Doe

13

70. I.D. is a native and citizen of Honduras. I.D. has two children and is

14 pregnant and expecting her third child in September.

15

71. 18th Street gang members murdered I.D.’s mother and three siblings.

16 They also threatened to kill I.D.

17

72. For several years, I.D. and her children were subject to severe abuse

18 by her partner and the father of her son and the child that she is expecting. I.D.’s

19 partner regularly raped I.D., sometimes in front of her children. He would also

20 burn and beat I.D. One day, I.D.’s partner put a gun to I.D.’s head and threatened

21 to kill her.

22

73. In June 2017, I.D. fled with her children to Tijuana, where they

23 presented themselves at the Otay Mesa POE to seek asylum in the United States.

24

74. When they arrived at the Otay Mesa POE, I.D. approached CBP

25 officials and expressed her intent to seek asylum. The CBP officials misinformed

26 I.D. that they could not help her at the Otay Mesa POE and that she must go to the

27 San Ysidro POE.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

24

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 27 of 55 Page ID #:27

1

75. I.D. immediately went to the San Ysidro POE with her children,

2 approached several CBP officials, and expressed her intent to seek asylum. One of

3 the officials misinformed I.D. that there was no asylum and that she could not pass

4 through the POE because she did not have any documents. I.D. again stated that

5 she wanted to seek asylum and that she could not go back to Honduras because she

6 and her children would be killed. The CBP official responded that there was a new

7 law in the United States that meant that there was no more asylum. Another CBP

8 official then escorted I.D. and her children out of the port.

9

76. I.D. and her children would like to present themselves again for

10 asylum but, based on their experience and the experience of others with CBP’s

11 practice at POEs, I.D. understands that they would likely be turned away again.

12

77. I.D. and her children are currently staying in a shelter in Tijuana,

13 where I.D. continues to fear for her life and the lives of her children. I.D. can no

14 longer remain in Mexico and has no place else to turn for safety but the United

15 States.

16 Plaintiff Jose Doe

17

78. J.D. is a native and citizen of Honduras. J.D. operated a small banana

18 business in Honduras. 18th Street gang members began targeting his business for

19 extortion and brutally attacked J.D. with a machete when he fell behind on

20 payments. 18th Street later targeted another business J.D. established.

21

79. In 2016, 18th Street kidnapped and killed his wife’s cousin after she

22 resisted the gang, and threatened to kidnap and sexually assault J.D.’s two teenage

23 daughters. 18th Street also killed two of his wife’s uncles.

24

80. In June 2017, J.D. fled Honduras and took many buses through

25 Honduras and Guatemala to avoid detection. J.D. arrived in Nuevo Laredo and

26 was accosted by multiple gang members. J.D. presented himself at the Laredo,

27 Texas POE the next day after this terrifying encounter, and he explained that he

28 was afraid of returning to Honduras and wanted to seek asylum. CBP officials at

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

25

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 28 of 55 Page ID #:28

1 the POE misinformed J.D. that he needed a visa to apply for asylum and told him

2 that there was no one to handle his application. CBP officials sent J.D. back to

3 Nuevo Laredo, where he again was approached by gang members.

4

81. J.D. would like to present himself again to seek asylum but, based on

5 his experience and the experience of others with CBP’s practice at POEs, he

6 understands that he would likely be turned away again.

7

82. J.D. is currently staying temporarily with his wife’s relatives in

8 Monterrey, Mexico where he continues to fear for his life. J.D. cannot remain in

9 Mexico and has no place to turn for safety but the United States.

10

2. CBP Officials Have Systematically Denied Numerous Other

11

Asylum Seekers Access to the Asylum Process

12

83. Class Plaintiffs’ experiences reflect a systematic and persistent

13 practice by CBP that has unlawfully denied numerous other asylum seekers access

14 to the U.S. asylum process.

15

84. CBP officials have carried out Defendants’ systematic practice of

16 denying asylum seekers access to the U.S. asylum process by relying on certain

17 categories of tactics, including misrepresentations, threats and intimidation, verbal

18 and physical abuse, and coercion. Asylum seekers and advocates have experienced

19 and/or witnessed firsthand CBP’s illegal conduct.

20

a. Misrepresentations:

21

85. CBP officials misinform asylum seekers of the following: that the

22 United States is no longer providing asylum; that President Trump signed a new

23 law that ended asylum in the United States; that the law providing asylum to

24 Central Americans recently ended; that Mexicans are no longer eligible for asylum;

25 that the United States is no longer accepting mothers with children; that asylum

26 seekers cannot seek asylum at the POE but must go to the U.S. Consulate in

27 Mexico instead; that visas are required to cross at a POE; and that asylum seekers

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

26

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 29 of 55 Page ID #:29

1 must obtain a “ticket” from a Mexican government agency (Grupo Beta) before

2 they will be allowed to enter the United States to seek asylum.

3

86. Class Plaintiffs A.D., B.D., D.D., I.D., and J.D. each experienced this

4 practice. D.D. and I.D. both were told asylum was no longer available in the

5 United States. A.D. was told that only the Mexican government could help her.

6 B.D. was told that the U.S. government had no obligation to help her and that she

7 had no right to enter the United States. J.D. was told, falsely, that he needed a visa

8 in order to apply for asylum.

9

b. Use of Threats and Intimidation:

10

87. CBP officials threaten and intimidate asylum seekers in the following

11 ways: threatening to take asylum seekers’ children away from them if they did not

12 leave the POE; threatening to detain and to deport asylum seekers to their home

13 countries if they persisted in their claims; threating to call Mexican immigration or

14 otherwise turn asylum seekers over to the Mexican government if they do not leave

15 the POE; threatening to ban asylum seekers from the United States for life if they

16 continued to pursue asylum; and blocking asylum seekers from entering the CBP

17 office and threatening to let dogs loose if they did not leave the POE.

18

88. Class Plaintiffs A.D., B.D. and C.D. each experienced this practice

19 and were threatened that if they tried to cross and pursue their asylum claims, U.S.

20 government officials would take their children away or separate their families.

21 Additionally, D.D. was threatened that if she and her daughter returned to the POE,

22 they would be deported to Honduras. B.D. was told that if she returned to the

23 POE, she would be put in jail for three years.

24

c. Use of Verbal and Physical Abuse:

25

89. As part of their systematic practice of denying asylum seekers

26 arriving at POEs access to the U.S. asylum process, CBP officials also regularly

27 resort to verbal and even physical abuse.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

27

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 30 of 55 Page ID #:30

1

90. For example, CBP officials have resorted to the following verbal and

2 physical abuse: grabbing an asylum seeker’s six-year-old daughter’s arm and

3 throwing her down onto the ground; holding a gun to an asylum seeker’s back and

4 forcing her out of the POE; knocking a transgender asylum seeker to the ground

5 and stepping on her neck; telling an asylum seeker she was scaring her five-year-

6 old son by persisting in her request for asylum and accusing her of being a bad

7 mother; laughing at an asylum-seeking mother and her three children and mocking

8 the asylum seeker’s thirteen-year-old son who has cerebral palsy; and yelling

9 profanities at an asylum-seeking mother and her five-year-old son, throwing her to

10 the ground, and forcefully pressing her cheek into the pavement.

11

91. Class Plaintiffs D.D. and B.D. both experienced this practice. One

12 CBP official pulled D.D. inside a gate at the POE to try to separate her from her

13 daughter. Later, as CBP officials escorted D.D. and her daughter out of the POE,

14 one of the CBP officials tried to drag D.D. by her arm. B.D. also experienced

15 rough treatment and cried out in pain when a CBP official forcefully searched her

16 for drugs.

17

d. Use of Coercion:

18

92. CBP officials resort to coercion to deny asylum seekers arriving at

19 POEs access to the U.S. asylum process, including: coercing asylum seekers into

20 recanting their fear on video; and coercing asylum seekers into withdrawing their

21 applications for admission to the United States.

22

93. Class Plaintiffs A.D., B.D. and C.D. each experienced this practice of

23 coercion. Each was coerced to sign a form, written in English and not translated,

24 which they did not understand, that stated they were voluntarily withdrawing their

25 claims for asylum on the grounds that they did not fear returning to Mexico. The

26 forms CBP officials coerced them to sign were and still are false: A.D., B.D. and

27 C.D. still have a grave fear of persecution in Mexico.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

28

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 31 of 55 Page ID #:31

1

94. CBP officials’ use of various tactics, including misrepresentations,

2 threats and intimidation, verbal and physical abuse, and coercion, at the POEs

3 along the U.S.-Mexico border further evidence a systematic practice of denying

4 asylum seekers access to the U.S. asylum process.

5

95. The prevalence and persistence of CBP’s illegal practice has been

6 heavily documented by non-governmental organizations and other experts working

7 in the U.S.-Mexico border region.

8

96. In May 2017, Human Rights First, a respected non-governmental

9 organization, published an Exhaustive Report entitled, “Crossing the Line: U.S.

10 Border Agents Illegally Reject Asylum Seekers.”29 In that report, Human Rights

11 First details firsthand accounts of CBP officials turning away asylum seekers

12 without referring them for further screening or immigration court proceedings at

13 POEs across the U.S.-Mexico border. The report details the following conduct:

14

a. CBP officials simply ignore requests by individuals to seek

15

asylum;

16

b. CBP officials give false information about U.S. laws and

17

procedures, such as saying that “the United States is not giving

18

asylum anymore” and “[President] Trump says we don’t have

19

to let you in”;

20

c. CBP officials mock and intimidate asylum seekers;

21

d. CBP officials impose a “gauntlet” and “charade” of procedures,

22

including a “ticketing” system, to discourage asylum seekers;

23

and

24

e. CBP officials coerce asylum seekers into denouncing any fear

25

of persecution.

26

97. Despite the complete lack of statistics or recordkeeping on CBP’s

27 failure to comply with the law, Human Rights First’s Report references more than

28 29 See Crossing the Line, supra note 22.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

29

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 32 of 55 Page ID #:32

1 125 cases of CBP turning away individuals and families seeking asylum at POEs

2 along the U.S.-Mexico border between November 2016 and April 2017. This is

3 likely a small fraction of the number of asylum seekers being illegally denied

4 access to the asylum process.

5

98. In June 2017, Amnesty International, a non-profit human rights

6 organization, published a report on CBP’s ongoing practice of turning away

7 asylum seekers at the U.S.-Mexico border entitled “Facing Walls: USA and

8 Mexico’s Violations of the Rights of Asylum-Seekers.”30 In compiling the report,

9 Amnesty International interviewed more than 120 asylum seekers as well as

10 approximately 25 government officials and 40 civil society organizations. The

11 report documents numerous instances in which CBP officials denied asylum

12 seekers access to the asylum system at five different POEs along the U.S.-Mexico

13 border. The report details the following conduct:

14

a. CBP officials coerce asylum seekers into recanting their fear of

15

persecution on videotape and threaten to deport them back to

16

their home countries if they do not comply;

17

b. CBP officials tell asylum seekers that they will first have to get

18

a “ticket” from Mexican authorities before seeking asylum;

19

c. CBP officials coerce asylum seekers into signing a voluntary

20

return paper under the threat that, if they do not, then they will

21

be deported and will never be allowed into the United States;

22

and

23

d. CBP officials tell Mexican asylum seekers that there is no more

24

asylum for Mexicans.

25

99. From October 2016 to the present, the Women’s Refugee

26 Commission, a non-profit organization that advocates for women and children

27 fleeing violence and persecution, has investigated and documented numerous

28 30 See Facing Walls, supra note 27.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

30

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 33 of 55 Page ID #:33

1 instances in which CBP officials have turned asylum seekers away and refused to

2 process them at four POEs along the U.S.-Mexico border, including POEs in

3 Calexico, California; Nogales, Arizona; McAllen, Texas; and Laredo, Texas. The

4 Women’s Refugee Commission has documented the following conduct:

5

a. CBP officials tell asylum seekers there is no space for them;

6

b. CBP officials tell asylum seekers that the policies have changed

7

and that they no longer qualify for asylum;

8

c. CBP officials threaten to call Mexican immigration authorities

9

to remove asylum seekers from the POEs;

10

d. CBP officials forcibly remove asylum seekers from the POEs;

11

and

12

e. CBP officials tell asylum seekers to go away.

13

100. From October 2016 through the present, the Project in Dilley, which

14 provides pro bono legal services to mothers and children detained at the South

15 Texas Family Residential Center in Dilley, Texas, has identified more than 50

16 asylum-seeking mothers who were turned away by CBP officials at POEs along

17 the U.S.-Mexico border, including POEs in San Ysidro, California; McAllen,

18 Texas; Laredo, Texas; and Eagle Pass, Texas. The Project in Dilley has

19 documented the following conduct:

20

a. CBP officials tell asylum seekers that asylum law is no longer

21

in effect;

22

b. CBP officials tell asylum seekers that they have orders to send

23

away everyone who is seeking asylum;

24

c. CBP officials tell asylum seekers they cannot seek asylum

25

because there is no more space;

26

d. CBP officials threaten to deport asylum seekers to their home

27

countries; and

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

31

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 34 of 55 Page ID #:34

1

e. CBP officials use physical force to remove asylum seekers from

2

POEs, including by handcuffing them, throwing them to the

3

ground, shoving them and dragging them out of the POEs.

4

101. Since December 2015, representatives of Plaintiff Al Otro Lado have

5 accompanied more than 160 asylum seekers to the San Ysidro POE. Several

6 representatives have witnessed firsthand and/or otherwise documented the tactics

7 employed by CBP to prevent asylum seekers from accessing the U.S. asylum

8 process. Al Otro Lado representatives have documented the following conduct:

9

a. CBP officials tell asylum seekers they have to apply for asylum

10

at the U.S. Consulate in Mexico;

11

b. CBP officials tell asylum seekers that they must first obtain a

12

“ticket” from Mexican immigration in order to seek asylum;

13

c. CBP officials tell asylum seekers that they are not processing

14

asylum seekers at that POE and they must go to another POE to

15

be processed;

16

d. CBP officials tell asylum seekers that they cannot seek asylum

17

at that time and must be put on a waiting list;

18

e. CBP officials tell asylum seekers that they do not qualify for

19

asylum; and

20

f. CBP officials coerce asylum seekers into withdrawing their

21

asylum claims, including by threatening that they will be

22

deported if they do not do so.

23

102. On January 13, 2017, various non-governmental organizations

24 submitted an administrative complaint to DHS’ Office for Civil Rights and Civil

25 Liberties (“CRCL”) and Office of Inspector General (“OIG”).31 The

26

27

31 See American Immigration Council, Complaint Re: U.S. Customs and Border Protection’s Systemic Denial of Entry to Asylum Seekers at Ports of Entry

28 on U.S.-Mexico Border, 1-2 (Jan. 13, 2017), https://www.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

32

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 35 of 55 Page ID #:35

1 administrative complaint provided specific examples of CBP turning away asylum

2 seekers at POEs along the U.S.-Mexico border and urged CRCL and OIG to

3 conduct a prompt and thorough investigation into this illegal practice and take

4 swift corrective action.

5

103. Despite this administrative complaint, Defendants’ illegal practice

6 continues. In fact, CBP has acknowledged its illegal practice in sworn testimony

7 before Congress. On June 13, 2017, in questioning before the House

8 Appropriations Committee, the Executive Assistant Commissioner for CBP’s OFO

9 admitted that CBP officials were turning away asylum applicants at POEs along

10 the U.S.-Mexico border.32

11

V. LEGAL BACKGROUND

12

A. U.S. Law Requires that Individuals Be Provided a Meaningful

13

Opportunity to Seek Asylum in the United States

14

104. U.S. law requires CBP to give individuals who present themselves at a

15 POE and express a desire to apply for asylum or a fear of persecution in their home

16 countries the opportunity to seek protection in the United States.

17

105. Specifically, the Immigration and Nationality Act (“INA”) and its

18 implementing regulations set forth a variety of ways in which such individuals may

19 seek protection in the United States. See, e.g., 8 U.S.C. § 1157 (admission of

20 refugees processed overseas); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1231(b)(3)

21 (restriction of removal to a country where individual’s life or freedom would be

22 threatened); 8 C.F.R. §§ 208.16-18 (protection under the Convention Against

23 Torture).

24

25 americanimmigrationcouncil.org/sites/default/files/general_litigation/cbp_

26 systemic_denial_of_entry_to_asylum_seekers_advocacy_document.pdf.

27

32 Hearing on the Immigration and Customs Enforcement and Customs and Border Protection F.Y. 2018 Budgets. Before the Subcomm. on Homeland Sec. of

28 the H. Appropriations Comm., 115th Cong. (2017) (statement of John Wagner, Executive Assistant Comm’r for CBP’s Office of Field Operations).

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

33

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 36 of 55 Page ID #:36

1

106. The INA provides that any noncitizen “who is physically present in

2 the United States or who arrives in the United States” has a statutory right to apply

3 for asylum, irrespective of such individual’s status. 8 U.S.C. § 1158(a)(1). The

4 INA also specifies processes that must be followed when an individual states a

5 desire to seek asylum or expresses a fear of returning to his or her home country.

6 See 8 U.S.C. § 1158(d)(1) (“The Attorney General shall establish a procedure for

7 the consideration of asylum applications filed [by individuals physically present in

8 the United States or who arrive in the United States].”). Under the INA, CBP must

9 either:

10

a. Refer the asylum seeker for a credible fear interview (see 8

11

U.S.C. § 1225(b)(1)); or

12

b. Place the asylum seeker directly into regular removal

13

proceedings by issuing a Notice to Appear (“NTA”), which will

14

then allow the asylum seeker to pursue his or her asylum claim

15

before an immigration judge (see 8 U.S.C. §§ 1125(b)(2), 1229,

16

1129a).

17

107. The U.S. government has admitted that the duty to allow a noncitizen

18 access to the asylum process is “not discretionary.” See, e.g., Federal Defendant’s

19 Reply Brief in Support of Motion for Summary Judgment and Dismissal for Lack

20 of Jurisdiction, cited in Munyua v. United States, No. 03-4538, 2005 U.S. Dist.

21 LEXIS 11499, at *16-19 (N.D. Cal. Jan. 10, 2005) (“[D]efendant acknowledges

22 that [the immigration officers] did not have the discretion to ignore a clear

23 expression of fear of return or to coerce an alien into withdrawing an application

24 for admission”).

25

108. CBP is responsible for the day-to-day operation of POEs along the

26 U.S.-Mexico border. CBP’s obligations include inspecting and processing

27 individuals who present themselves at POEs to enable them to pursue their claims

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

34

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 37 of 55 Page ID #:37

1 for asylum in the United States. CBP officials themselves are not authorized to

2 evaluate, grant or reject an individual’s asylum claim.

3

109. All noncitizens arriving at POEs along the U.S.-Mexico border must

4 be inspected by CBP officials. See 8 U.S.C. § 1225(a)(3) (“All [noncitizens] . . .

5 who are applicants for admission or otherwise seeking admission . . . shall be

6 inspected by immigration officers.”) (emphasis added). During inspection, CBP

7 officials must determine whether a noncitizen may be admitted to the United

8 States. See 8 U.S.C. § 1182(a) (specifying grounds of inadmissibility). In order to

9 make this determination, CBP scrutinizes an individual’s entry documents. See 8

10 U.S.C. § 1181(a) (outlining documentation requirements for the admission of

11 noncitizens into the United States). Asylum seekers often flee their countries on

12 very short notice and thus frequently lack valid entry documents. Once a CBP

13 official makes a determination of inadmissibility, the individual becomes subject to

14 removal from the United States.

15

110. CBP officials must then place the noncitizen into either expedited

16 removal proceedings under 8 U.S.C. § 1225(b) or regular removal proceedings

17 under 8 U.S.C. § 1229.

18

111. Expedited removal proceedings involve a more streamlined process

19 than regular removal proceedings and are reserved for people apprehended at or

20 near the border. See 8 U.S.C. § 1225(b)(1)(A)(i) (permitting certain persons who

21 are seeking admission at the border to the United States to be expeditiously

22 removed without a full immigration judge hearing). However, Congress included

23 important safeguards in the expedited removal statute in an effort specifically to

24 protect asylum seekers.

25

112. The INA unequivocally states that if a noncitizen placed in expedited

26 removal proceedings “indicates either an intention to apply for asylum . . . or a fear

27 of persecution, the [CBP] officer shall refer the [noncitizen] for an interview by an

28 asylum officer.” 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added). The requirement

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

35

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 38 of 55 Page ID #:38

1 to refer an asylum seeker placed in expedited removal proceedings to an asylum

2 officer is mandatory.

3

113. Likewise, the applicable regulations promulgated under the INA

4 reinforce that if an individual in expedited removal proceedings asserts an intention

5 to apply for asylum or a fear of persecution, then “the inspecting officer shall not

6 proceed further with removal of the [noncitizen] until the [noncitizen] has been

7 referred for an interview by an asylum officer.” 8 C.F.R. § 235.3(b)(4) (emphasis

8 added).

9

114. Importantly, CBP officials must read a form to noncitizens subject to

10 expedited removal advising them of their right to speak to an asylum officer if they

11 express a desire to apply for asylum or a fear of returning to their home countries.

12 See 8 C.F.R. § 235.3(b)(2)(i); DHS Form I-867A.

13

115. Affirming that the CBP officials themselves are not authorized to

14 adjudicate asylum claims, the regulations specifically charge asylum officers from

15 U.S. Citizenship and Immigration Services with making initial determinations as to

16 whether there is a “significant possibility” that an individual can establish

17 eligibility for asylum. See 8 C.F.R. § 235.3(b)(4); see also 8 U.S.C.

18 § 1225(b)(1)(B)(ii). This is because asylum officers are trained in the often

19 complicated and evolving law surrounding asylum, and thus are uniquely

20 positioned to conduct such interviews, which themselves require particular

21 interviewing and assessment skills as well as comprehension of the social and

22 political contexts from which asylum seekers flee. In fact, the INA specifically

23 defines “asylum officer” as an immigration officer who “has had professional

24 training in country conditions, asylum law, and interview techniques comparable to

25 that provided to full-time adjudicators of applications under section 1158.” 8

26 U.S.C. § 1225(b)(1)(E).

27

116. Applicants who establish that they have a “significant possibility” of

28 proving their eligibility for asylum receive positive credible fear determinations.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

36

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 39 of 55 Page ID #:39

1 They are taken out of the expedited removal system altogether and placed into

2 regular removal proceedings, where they have the opportunity to submit an asylum

3 application, develop a full record before an Immigration Judge, appeal to the Board

4 of Immigration Appeals and seek judicial review of an adverse decision. 8 U.S.C.

5 § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 235.6(a)(1)(ii), (iii).

6

117. Alternatively, CBP officials may place noncitizens directly into

7 regular removal proceedings by issuing an NTA. 8 U.S.C. §§ 1225(b)(2),

8 1229(a)(1), 1229a. Once in regular removal proceedings, the asylum seeker can

9 submit an asylum application and must receive a full hearing before an

10 Immigration Judge, file an administrative appeal with the Board of Immigration

11 Appeals and seek judicial review. 8 U.S.C. § 1229a(a)(1) (“An immigration judge

12 shall conduct proceedings for deciding the inadmissibility or deportability of an

13 alien.”).

14

118. Despite these prescribed procedures, CBP regularly employs a variety

15 of egregious tactics (including those described above) that have one unlawful

16 result: depriving Class Plaintiffs, and the asylum seekers they represent, of any

17 access to the asylum process, and stripping them of their right to seek asylum

18 under U.S. law.

19

B. Defendants Have No Authority Under the INA to Turn a

20

Noncitizen Seeking Admission Away at a POE

21

119. CBP’s authority is limited to that granted by Congress in the INA.

22 Nothing in the INA authorizes Defendants, through their officers and employees,

23 to turn away a noncitizen who seeks admission at a POE.

24

120. When inspecting a noncitizen who arrives at a POE, CBP officials

25 must follow the procedures mandated by Congress in 8 U.S.C. § 1225. Pursuant to

26 this section, CBP officials are limited to the following possible actions with respect

27 to any arriving noncitizen who is not clearly and beyond a doubt entitled to be

28 admitted:

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

37

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 40 of 55 Page ID #:40

1

a. Place arriving noncitizens who are inadmissible under one of

2

two grounds specified by statute in expedited removal

3

proceedings pursuant to 8 U.S.C. § 1225(b)(1)(A)(i);

4

b. Refer any noncitizen placed in expedited removal proceedings

5

who expresses either an intent to apply for asylum or a fear of

6

persecution if returned to his or her home country to an asylum

7

officer for a credible fear interview pursuant to 8 U.S.C.

8

§§ 1225(b)(1)(A)(ii), 1225(b)(1)(B);

9

c. Place “other” arriving noncitizens (i.e., those who are not

10

placed in expedited removal proceedings under 8 U.S.C.

11

§ 1225(b)(1)(A) and who are neither crewmen or stowaways) in

12

removal proceedings under 8 U.S.C. § 1229a pursuant to 8

13

U.S.C. § 1225(b)(2);

14

d. Follow other removal procedures with respect to noncitizens

15

suspected of being inadmissible on terrorism or related security

16

grounds pursuant to 8 U.S.C. § 1225(c); or

17

e. Accept from the noncitizen a voluntary (i.e., non-coerced)

18

withdrawal of her application for admission pursuant to 8

19

U.S.C. § 1225(a)(4) and 8 C.F.R. § 235.4.

20

121. Defendants, through their officers and employees, act without

21 authority and in violation of the law when they turn away an individual at a POE.

22

C. Class Plaintiffs Are Entitled to Procedural Due Process Rights

23

Under the Fifth Amendment to the U.S. Constitution

24

122. The Due Process Clause of the Fifth Amendment to the U.S.

25 Constitution prohibits the federal government from depriving any person of “life,

26 liberty, or property, without due process of law.” U.S. Const. Amend. V. In

27 addition, where Congress has granted statutory rights and has directed an agency to

28 establish a procedure for providing such rights, the Constitution requires the

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

38

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 41 of 55 Page ID #:41

1 government to establish a fair procedure and to abide by that procedure. In the

2 asylum context, U.S. law mandates that asylum seekers be provided with such

3 process. Multiple courts have recognized that such procedural rights are critical in

4 the asylum context and can result in life or death decisions, because applicants

5 wrongly denied asylum can be subject to death or other serious harm in their home

6 countries. See, e.g., Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (“The

7 basic procedural rights Congress intended to provide asylum applicants . . . are

8 particularly important because an applicant erroneously denied asylum could be

9 subject to death or persecution if forced to return to his or her home country.”).

10

123. The INA and its implementing regulations provide Class Plaintiffs

11 with the right to be processed at a POE and granted access to the asylum process.

12 See, e.g., 8 U.S.C. §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii), 1225(b)(1)(B),

13 1225(b)(2). By systematically turning away asylum seekers presenting themselves

14 at POEs along the U.S.-Mexico border and thus denying them access to the asylum

15 process, Defendants have failed to comply with the due process procedures for

16 processing asylum seekers under the INA and its implementing regulations.

17

D. The Non-Refoulement Doctrine Under International Law

18

Requires Implementation and Adherence to a Procedure to

19

Access Asylum

20

124. The United States is obligated by a number of treaties and protocols to

21 adhere to the duty of non-refoulement – a duty that prohibits a country from

22 returning or expelling an individual to a country where he or she has a well-

23 founded fear of persecution and/or torture.

24

125. The primary treaty source for the duty of non-refoulement is the 1951

25 Convention on the Rights of Refugees. Article 33 of the Convention prohibits a

26 state from returning “a refugee in any manner whatsoever to the frontiers of

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

28 religion, nationality, membership of a particular social group or political opinion.”

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

39

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 42 of 55 Page ID #:42

1 1951 Refugee Convention, Art. 33. The United States adopted the protections of

2 Article 33 by signing onto the 1967 Protocol Relating to the Status of Refugees,

3 which incorporated Articles 2-34 of the 1951 Convention.

4

126. The prohibition against refoulement is likewise central to other

5 treaties ratified by the United States, including the International Covenant on Civil

6 and Political Rights (“ICCPR”) and the Convention Against Torture (“CAT”), both

7 of which prohibit returning an individual to harm and obligate the United States to

8 implement and follow legal procedures to protect refugees’ right to non-

9 refoulement. See ICCPR, Art. 13; CAT, Art. 3.

10

127. In order to effectuate an asylum seeker’s right to non-refoulement, the

11 United States is obligated to implement and follow procedures to ensure that his or

12 her request for asylum be duly considered. The United States implemented this

13 legal obligation with the passage of the 1980 Refugee Act, which established a

14 procedure for a noncitizen physically present in the United States or at a land

15 border or POE to apply for asylum. See Refugee Act of 1980, Pub. L. No. 96-212,

16 § 201(b), 94 Stat. 102 (1980).

17

128. In practice, the duty of non-refoulement covers not only those

18 refugees and asylum seekers already present inside the country, but also those who

19 present themselves at POEs along the U.S. border. The duty requires U.S. officials

20 such as Defendants to consider the claims of those seeking to cross the U.S. border

21 and not to deny them access to a lawful process to present a claim for asylum.

22

129. The norm of non-refoulement is specific, universal and obligatory. It

23 is so widely accepted that it has reached the status of jus cogens – a norm not

24 subject to derogation. Indeed, in 1996, the United Nations Executive Committee

25 on the International Protection of Refugees explicitly concluded that the non-

26 refoulement principle had achieved the status of a norm “not subject to

27 derogation.” Executive Committee Conclusion No. 79, General Conclusion on

28 International Protection (1996). The principle was recognized as such in the 1984

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

40

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 43 of 55 Page ID #:43

1 Cartagena Declaration on Refugees; was included in a portion of the Refugee

2 Convention from which derogation is not permitted; and has been recognized by

3 bodies, including the Inter-American Commission on Human Rights and the

4 Organization of American States General Assembly.

5

130. Defendants’ actions to deny Class Plaintiffs, and the asylum seekers

6 they represent, access to the U.S. asylum process violate their binding and

7 enforceable obligations under international law.

8

VI. CLASS ACTION ALLEGATIONS

9

131. Class Plaintiffs bring this action pursuant to Federal Rules of Civil

10 Procedure 23(a) and 23(b)(2) on behalf of themselves and all other persons

11 similarly situated. The proposed class is defined as follows:

12

All noncitizens who present themselves at a POE along the U.S.-

13

Mexico border, assert an intention to seek asylum or express a fear of

14

persecution in their home countries, and are denied access to the U.S.

15

asylum process by CBP officials.

16

132. The class is so numerous that joinder of all members is impracticable.

17 CBP’s misconduct toward asylum seekers at POEs along the U.S.-Mexico border

18 has been the focus of monitoring, reporting and advocacy by numerous well-

19 respected non-governmental organizations. These organizations have investigated

20 and documented hundreds of examples of asylum seekers being turned away by

21 CBP officials. Many more asylum seekers have likely been the victims of this

22 unlawful conduct as these abuses often go unreported. Asylum seekers who are

23 turned away at the border are continuously moving and relocating, also making

24 joinder impracticable.

25

133. There are questions of law and fact that are common to the class. The

26 class alleges common harms: a violation of the class members’ statutory right to

27 access the U.S. asylum process, procedural due process rights and right not to be

28 returned to countries where they fear persecution. The class members’ entitlement

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

41

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 44 of 55 Page ID #:44

1 to these rights is based on a common core of facts. All members of the proposed

2 class have expressed a fear of return to their home countries or a desire to apply for

3 asylum. These facts entitle all of them to the opportunity to seek asylum. Yet each

4 class member has been and likely will again be unlawfully denied access to the

5 U.S. asylum process by CBP. Moreover, all class members raise the same legal

6 claims: that U.S. immigration laws and the Constitution require CBP officials at

7 POEs to give them access to the asylum process. Their shared common facts will

8 ensure that judicial findings regarding the legality of the challenged practices will

9 be the same for all class members. Should Class Plaintiffs prevail, all class

10 members will benefit; each of them will be entitled to a lawful inspection at a POE

11 along the U.S.-Mexico border and an opportunity to seek asylum.

12

134. Class Plaintiffs’ claims are typical of the claims of the class. Class

13 Plaintiffs and class members raise common legal claims and are united in their

14 interest and injury. All Class Plaintiffs, like all class members, are asylum seekers

15 to whom CBP officials unlawfully denied access to the U.S. asylum process after

16 they presented themselves at POEs along the U.S.-Mexico border. Class Plaintiffs

17 and class members are thus victims of the same, unlawful course of conduct.

18

135. Class Plaintiffs are adequate representatives. Class Plaintiffs seek

19 relief on behalf of the class as a whole and have no interest antagonistic to other

20 members of the class. Class Plaintiffs’ mutual goal is to declare Defendants’

21 challenged policies and practices unlawful and to obtain declaratory and injunctive

22 relief that would cure this illegality. Class Plaintiffs seek a remedy for the same

23 injuries as the class members, and all share an interest in having a meaningful

24 opportunity to seek asylum. Thus, the interests of the Class Plaintiffs and of the

25 class members are aligned.

26

136. Class Plaintiffs are represented by attorneys from the American

27 Immigration Council, the Center for Constitutional Rights and Latham & Watkins

28 LLP. Counsel have a demonstrated commitment to protecting the rights and

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

42

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 45 of 55 Page ID #:45

1 interests of noncitizens and, together, have considerable experience in handling

2 complex and class action litigation in the immigration field. Counsel have

3 represented numerous classes of immigrants and other victims of systematic

4 government misconduct in actions in which they successfully obtained class relief.

5

137. Defendants have acted or refused to act on grounds that are generally

6 applicable to Class Plaintiffs and the class. Defendants have failed to provide

7 Class Plaintiffs and class members with access to the U.S. asylum process.

8 Defendants’ actions violate Class Plaintiffs’ and class members’ statutory,

9 regulatory and constitutional rights to access to the asylum process. Declaratory

10 and injunctive relief are appropriate remedies.

11

138. In the absence of a class action, there is substantial risk that individual

12 actions would be brought in different venues, creating a risk of inconsistent

13 injunctions to address Defendants’ common conduct.

14

FIRST CLAIM FOR RELIEF

15

DECLARATORY RELIEF

16

AGAINST ALL DEFENDANTS

17

(VIOLATION OF THE RIGHT TO SEEK ASYLUM UNDER THE

18

IMMIGRATION AND NATIONALITY ACT)

19

139. Al Otro Lado and Class Plaintiffs reallege and incorporate by

20 reference each and every allegation contained in the preceding paragraphs as if set

21 forth fully herein.

22

140. INA § 208(a)(1) (8 U.S.C. § 1158(a)(1)) gives any noncitizen who is

23 physically present in or who arrives in the United States a statutory right to seek

24 asylum, regardless of such individual’s immigration status.

25

141. When a noncitizen presents himself or herself at a POE and indicates

26 an intention to apply for asylum or a fear of persecution, CBP officials must refer

27 the noncitizen for a credible fear interview under 8 U.S.C. § 1225(b)(1)(A)(ii) and

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

43

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 46 of 55 Page ID #:46

1 8 C.F.R. § 235.3(b)(4), or, in accordance with 8 U.S.C. § 1225(b)(2), place the

2 noncitizen directly into regular removal proceedings under 8 U.S.C. § 1229(a)(1).

3

142. Class Plaintiffs presented themselves at U.S. POEs along the U.S.-

4 Mexico border and asserted an intention to apply for asylum and/or a fear of

5 persecution in their countries of origin. Nevertheless, CBP officials did not refer

6 Class Plaintiffs to an asylum officer for credible fear interviews pursuant to 8

7 U.S.C. § 1225(b)(1)(A)(ii), or, in accordance with 8 U.S.C. § 1225(b)(2), place

8 Class Plaintiffs directly into regular removal proceedings pursuant to 8 U.S.C.

9 § 1229(a)(1).

10

143. Instead, in direct contravention of the INA, CBP officials engaged in

11 unlawful tactics that prevented Class Plaintiffs from accessing the statutorily

12 prescribed asylum process and forced them to return to Mexico.

13

144. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border

14 was inflicted at the instigation, under the control or authority, or with the

15 knowledge, consent, direction or acquiescence of Defendants.

16

145. As a result of Defendants’ violations of the INA, Class Plaintiffs have

17 been damaged – through the denial of access to the asylum process and by being

18 forced to return to Mexico or other countries where they face threats of further

19 persecution.

20

146. As a result of Defendants’ violations of the INA, Plaintiff Al Otro

21 Lado has been damaged – namely its core mission has been frustrated and it has

22 been forced to divert substantial resources away from its programs to counteract

23 CBP’s unlawful practices at POEs along the U.S.-Mexico border.

24

147. Defendants’ practices have resulted and will continue to result in

25 irreparable injury, including a continued risk of violence and serious harm to Class

26 Plaintiffs and further violations of their statutory rights. Class Plaintiffs and Al

27 Otro Lado do not have an adequate remedy at law to redress the violations alleged

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

44

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 47 of 55 Page ID #:47

1 herein, and therefore seek injunctive relief restraining Defendants from continuing

2 to engage in the unlawful practices and policies alleged herein.

3

148. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201

4 and 2202, this Court may declare the rights or legal relations of any party in any

5 case involving an actual controversy.

6

149. An actual controversy has arisen and now exists between Class

7 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class

8 Plaintiffs and Al Otro Lado contend that Defendants’ conduct and practices, as

9 alleged in this Complaint, violate the INA. On information and belief, Defendants

10 contend that the conduct and practices are lawful.

11

150. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

12 a judicial determination as to the rights and obligations of the parties with respect

13 to this controversy, and such a judicial determination of these rights and

14 obligations is necessary and appropriate at this time.

15

SECOND CLAIM FOR RELIEF

16

DECLARATORY RELIEF

17

AGAINST ALL DEFENDANTS

18

(VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT)

19

151. Al Otro Lado and Class Plaintiffs reallege and incorporate by

20 reference each and every allegation contained in the preceding paragraphs as if set

21 forth fully herein.

22

152. The Administrative Procedure Act (“APA”) (5 U.S.C. § 551, et. seq.)

23 authorizes suits by “[a] person suffering legal wrong because of agency action, or

24 adversely affected or aggrieved by agency action within the meaning of a relevant

25 statute.” 5 U.S.C. § 702. The APA also provides relief for a failure to act: “The

26 reviewing court shall . . . compel agency action unlawfully withheld or

27 unreasonably delayed.” 5 U.S.C. § 706(1).

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

45

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 48 of 55 Page ID #:48

1

153. CBP officials have failed to take actions mandated by the following

2 statutes and implementing regulations in violation of the APA:

3

• 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the

4

United States or who arrives in the United States . . . irrespective of

5

such alien’s status, may apply for asylum. . . .”) (emphasis added);

6

• 8 U.S.C. § 1225(a)(1)(3) (“All aliens . . . who are applicants for

7

admission or otherwise seeking admission or readmission to or

8

transit through the United States shall be inspected by

9

immigration officers.”) (emphasis added);

10

• 8 U.S.C. § 1225(b)(1)(A)(ii) (“If an immigration officer

11

determines that an alien . . . who is arriving in the United States . . .

12

is inadmissible . . . and the alien indicates either an intention to

13

apply for asylum under section 1158 of this title or a fear of

14

persecution, the officer shall refer the alien for an interview by an

15

asylum officer. . . .”) (emphasis added);

16

• 8 U.S.C. § 1225(b)(2) (“[I]n the case of an alien who is an

17

applicant for admission, if the examining immigration officer

18

determines that an alien seeking admission is not clearly and

19

beyond a doubt entitled to be admitted, the alien shall be detained

20

for a proceeding under section 1229a of this title.”);

21

• 8 C.F.R. § 235.3(b)(4) (“[T]he inspecting officer shall not proceed

22

further with removal of the alien until the alien has been referred

23

for an interview by an asylum officer. . . .”) (emphasis added); and

24

• 8 C.F.R. § 235.4 (“The alien’s decision to withdraw his or her

25

application for admission must be made voluntarily . . . .”).

26

154. In addition, CBP officials have acted in excess of their statutorily

27 prescribed authority and without observance of the procedures required by law in

28 violation of the APA. See 5 U.S.C. §§ 706(2)(C), (D). Congress mandated the

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

46

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 49 of 55 Page ID #:49

1 various procedures that Defendants are authorized to follow when inspecting

2 individuals who seek admission at POEs. See 8 U.S.C. § 1225. None of these

3 procedures authorizes a CBP official to turn back a noncitizen seeking asylum at a

4 POE.

5

155. In turning Class Plaintiffs and purported class members away at POEs

6 along the U.S.-Mexico border without following the procedures mandated by the

7 INA, CBP officials have acted and continue to act in excess of the authority

8 granted them by Congress and without observance of procedure required by law.

9

156. CBP’s treatment of Class Plaintiffs at the U.S.-Mexico border was

10 inflicted at the instigation, under the control or authority, or with the knowledge,

11 consent, direction or acquiescence of Defendants.

12

157. Defendants’ repeated and pervasive failure to act and the actions taken

13 in excess of their authority, which denied Class Plaintiffs access to the statutorily

14 prescribed asylum process, constitute unlawfully withheld or unreasonably delayed

15 agency action, is arbitrary and capricious, an abuse of discretion, and otherwise not

16 in accordance with the law, and therefore gives rise to federal jurisdiction and

17 mandates relief under the APA.

18

158. As a result of the acts constituting violations of the APA, Class

19 Plaintiffs have been damaged through the denial of access to the asylum process

20 and by being forced to return to Mexico or other countries where they face threats

21 of further persecution.

22

159. As a result of the acts constituting violations of the APA, Plaintiff Al

23 Otro Lado has been damaged – namely, its core mission has been frustrated and it

24 has been forced to divert substantial resources away from its programs to

25 counteract CBP’s unlawful practices at POEs along the U.S.-Mexico border.

26

160. Defendants’ practices have resulted and will continue to result in

27 irreparable injury, including a continued risk of violence and serious harm to Class

28 Plaintiffs and further violations of their statutory and regulatory rights. Class

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

47

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 50 of 55 Page ID #:50

1 Plaintiffs and Al Otro Lado do not have an adequate remedy at law to redress the

2 violations alleged herein, and therefore seek injunctive relief restraining

3 Defendants from continuing to engage in the unlawful practices alleged herein.

4

161. Al Otro Lado and Class Plaintiffs have exhausted all available

5 administrative remedies and have no adequate remedy at law.

6

162. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201

7 and 2202, this Court may declare the rights or legal relations of any party in any

8 case involving an actual controversy.

9

163. An actual controversy has arisen and now exists between Class

10 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class

11 Plaintiffs and Al Otro Lado contend that Defendants’ conduct and practices, as

12 alleged in this Complaint, violate the APA. On information and belief, Defendants

13 contend that the conduct and practices are lawful.

14

164. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

15 a judicial determination as to the rights and obligations of the parties with respect

16 to this controversy, and such a judicial determination of these rights and

17 obligations is necessary and appropriate at this time.

18

THIRD CLAIM FOR RELIEF

19

DECLARATORY RELIEF

20

AGAINST ALL DEFENDANTS

21

(VIOLATION OF PROCEDURAL DUE PROCESS)

22

165. Al Otro Lado and Class Plaintiffs reallege and incorporate by

23 reference each and every allegation contained in the preceding paragraphs as if set

24 forth fully herein.

25

166. The Due Process Clause of the Fifth Amendment to the U.S.

26 Constitution prohibits the federal government from depriving any person of “life,

27 liberty, or property, without due process of law.” U.S. Const. Amend. V.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

48

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 51 of 55 Page ID #:51

1

167. Congress has granted certain statutory rights to asylum seekers, such

2 as Class Plaintiffs and the asylum seekers they represent, and has directed DHS to

3 establish a procedure for providing such rights. The Due Process Clause thus

4 requires the government to establish a fair procedure and to abide by that

5 procedure.

6

168. As set forth above, the INA and its implementing regulations provide

7 Class Plaintiffs the right to be processed at a POE and granted access to the asylum

8 process. See 8 U.S.C. §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii), 1225(b)(1)(B),

9 1225(b)(2); see also 8 C.F.R. § 235.3(b)(4).

10

169. By using a variety of tactics to turn away asylum seekers at POEs

11 along the U.S.-Mexico border, CBP officials have denied Class Plaintiffs access to

12 the asylum process and failed to comply with procedures set forth in the INA and

13 its implementing regulations.

14

170. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border

15 was inflicted at the instigation, under the control or authority, or with the

16 knowledge, consent, direction or acquiescence of Defendants.

17

171. By denying Class Plaintiffs access to the asylum process, Defendants

18 have violated Class Plaintiffs’ procedural due process rights under the Fifth

19 Amendment to the U.S. Constitution.

20

172. As a result of the Defendants’ violations of the Fifth Amendment to

21 the U.S. Constitution, Class Plaintiffs have been damaged through the denial of

22 access to the asylum process and by being forced to return to Mexico or other

23 countries where they face threats of further persecution.

24

173. As a result of Defendants’ violations of the Fifth Amendment to the

25 U.S. Constitution, Al Otro Lado has been damaged – namely, its core mission has

26 been frustrated and it has been forced to divert substantial resources away from its

27 programs to counteract CBP’s unlawful practices at POEs along the U.S.-Mexico

28 border.

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

49

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 52 of 55 Page ID #:52

1

174. Defendants’ practices have resulted and will continue to result in

2 irreparable injury, including a continued risk of violence and serious harm to Class

3 Plaintiffs and further violations of their constitutional rights. Class Plaintiffs and

4 Al Otro Lado do not have an adequate remedy at law to redress the violations

5 alleged herein, and therefore seek injunctive relief restraining Defendants from

6 engaging in the unlawful conduct and practices alleged herein.

7

175. An actual controversy exists between Class Plaintiffs and Al Otro

8 Lado, on one hand, and Defendants, on the other. Class Plaintiffs and Al Otro

9 Lado contend that Defendants’ conduct and practices, as alleged in this Complaint,

10 violate the Fifth Amendment to the United States Constitution. On information

11 and belief, Defendants contend that the conduct and practices are lawful.

12

176. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

13 a judicial determination as to the rights and obligations of the parties with respect

14 to this controversy, and such a judicial determination of these rights and

15 obligations is necessary and appropriate at this time.

16

FOURTH CLAIM FOR RELIEF

17

DECLARATORY RELIEF

18

AGAINST ALL DEFENDANTS

19

(VIOLATION OF THE NON-REFOULEMENT DOCTRINE)

20

177. Al Otro Lado and Class Plaintiffs reallege and incorporate by

21 reference each and every allegation contained in the preceding paragraphs as if set

22 forth fully herein.

23

178. CBP officials have systematically denied Class Plaintiffs, and the

24 asylum seekers they represent, access to the asylum system, in violation of

25 customary international law reflected in treaties which the United States has

26 ratified and implemented: namely, the specific, universal and obligatory norm of

27 non-refoulement, which has also achieved the status of a jus cogens norm, and

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

50

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 53 of 55 Page ID #:53

1 which forbids a country from returning or expelling an individual to a country

2 where he or she has a well-founded fear of persecution and/or torture.

3

179. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border

4 was inflicted at the instigation, under the control or authority, or with the

5 knowledge, consent, direction or acquiescence of Defendants.

6

180. Defendants’ conduct is actionable under the Alien Tort Statute, 28

7 U.S.C. § 1350, which authorizes declaratory and injunctive relief.

8

181. As a result of the acts constituting violations of the jus cogens norm of

9 non-refoulement, Class Plaintiffs have been damaged through denial of access to

10 the asylum process and by being forced to return to Mexico or other countries

11 where they face threats of further persecution.

12

182. As a result of the acts constituting violations of the norm of non-

13 refoulement, Al Otro Lado has been damaged – namely, its core mission has been

14 frustrated and it has been forced to divert substantial resources away from its

15 programs to counteract CBP’s unlawful practices at POEs along the U.S.-Mexico

16 border.

17

183. Defendants’ practices have resulted and will continue to result in

18 irreparable injury, including a continued risk of violence and serious harm to Class

19 Plaintiffs and further denials of the protections afforded to them under international

20 law. Class Plaintiffs and Al Otro Lado do not have an adequate remedy at law to

21 redress the violations alleged herein, and therefore seek injunctive relief restraining

22 Defendants from engaging in the unlawful conduct and practices alleged herein.

23

184. An actual controversy exists between Class Plaintiffs and Al Otro

24 Lado, on one hand, and Defendants, on the other. Class Plaintiffs and Al Otro

25 Lado contend that Defendants’ conduct and practices, as alleged in this Complaint,

26 violate the norm of non-refoulement. On information and belief, Defendants

27 contend that the conduct and practices are lawful.

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

51

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 54 of 55 Page ID #:54

1

185. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

2 a judicial determination as to the rights and obligations of the parties with respect

3 to this controversy, and such a judicial determination of these rights and

4 obligations is necessary and appropriate at this time.

5

PRAYER FOR RELIEF

6

186. WHEREFORE, Plaintiff Al Otro Lado and Class Plaintiffs

7 respectfully request that the Court:

8

a. Issue an order certifying a class of individuals pursuant to

9

Federal Rule of Civil Procedure 23(a) and 23(b)(2);

10

b. Appoint the undersigned as class counsel pursuant to Federal

11

Rule of Civil Procedure 23(g);

12

c. Issue a judgment declaring that Defendants’ policies, practices,

13

acts and/or omissions described herein give rise to federal

14

jurisdiction;

15

d. Issue a judgment declaring that Defendants’ policies, practices,

16

acts and/or omissions described herein violate one or more of

17

the following:

18

(1) The Immigration and Nationality Act, based on

19

violations of 8 U.S.C. §§ 1158 and 1225;

20

(2) The Administrative Procedure Act, based on violations of

21

8 U.S.C. §§ 1158, 1225 and 8 C.F.R. §§ 235.3, 235.4;

22

(3) The Due Process Clause of the Fifth Amendment; and

23

(4) The duty of non-refoulement under international law;

24

e. Issue injunctive relief requiring Defendants to comply with the

25

laws and regulations cited above;

26

f. Issue injunctive relief prohibiting Defendants, and any of their

27

officers, agents, successors, employees, representatives, and

28

any and all persons acting in concert with them or on their

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

52

AND INJUNCTIVE RELIEF

Case 2:17-cv-05111 Document 1 Filed 07/12/17 Page 55 of 55 Page ID #:55

1

behalf, from engaging in the unlawful policies, practices, acts

2

and/or omissions described herein at POEs along the U.S.-

3

Mexico border;

4

g. Issue injunctive relief requiring Defendants to implement

5

procedures to provide effective oversight and accountability in

6

the inspection and processing of individuals who present

7

themselves at POEs along the U.S.-Mexico border and indicate

8

an intention to apply for asylum or assert a fear of persecution

9

in their home countries;

10

h. Award Plaintiffs their reasonable attorneys’ fees, costs and

11

other expenses pursuant to 28 U.S.C. § 2412, and other

12

applicable law; and

13

i. Grant any and all such other relief as the Court deems just and

14

equitable.

15 Dated: July 12, 2017 16 17 18 19 20 21 22

LATHAM & WATKINS LLP Wayne S. Flick Manual A. Abascal James H. Moon Kristin P. Housh Robin A. Kelley
By /s/ Manuel A. Abascal Manuel A. Abascal
Attorneys for Plaintiffs

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

COMPLAINT FOR DECLARATORY

53

AND INJUNCTIVE RELIEF

 
 Case 2:17-cv-05111-JFW-JPR Document 113 Filed 11/21/17 Page 1 of 4 Page ID #:2233

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 17-5111-JFW (JPRx)

Date: November 21, 2017

Title:

Al Otro Lado, Inc., et al. -v- John F. Kelly

PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

Shannon Reilly Courtroom Deputy

None Present Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: None

ATTORNEYS PRESENT FOR DEFENDANTS: None

PROCEEDINGS (IN CHAMBERS):

ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER VENUE [filed 10/25/17; Docket No. 71];

ORDER DENYING WITHOUT PREJUDICE CLASS REPRESENTATIVES’ UNOPPOSED MOTION TO PROCEED PSEUDONYMOUSLY [filed 10/16/17; Docket No. 61];

ORDER DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION TO DISMISS UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6) [filed 10/12/17; Docket No. 58];

ORDER DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION TO STAY DISCOVERY OR GRANT PROTECTIVE RELIEF, PENDING DECISION ON MOTION TO DISMISS AND MOTION TO TRANSFER VENUE [filed 10/25/17; Docket No. 72]; and

ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [filed 11/13/17; Docket No. 98]

On October 25, 2017, Defendants Elaine C. Duke, Kevin K. McAleenan, and Todd C. Owen (collectively, “Defendants”) filed a Motion to Transfer Venue (“Motion”). On November 6, 2017, Plaintiffs Al Otro Lado, Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose

Page 1 of 4

Initials of Deputy Clerk sr

Case 2:17-cv-05111-JFW-JPR Document 113 Filed 11/21/17 Page 2 of 4 Page ID #:2234

Doe (collectively, “Plaintiffs”) filed their Opposition. On November 13, 2017, Defendants filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for November 27, 2017 is hereby vacated and the matter taken off calendar. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:

I. Factual and Procedural Background
On July 12, 2017, Plaintiffs filed a Complaint in this Court, alleging claims for relief for: (1) violation of the Immigration and Nationality Act,8 U.S.C. § 1101, et seq.; violation of the Administrative Procedure Act, 5 U.S.C. § 551, et seq.; (3) violation of the Fifth Amendment to the United States Constitution (Procedural Due Process); and (4) violation of the Non-Refoulement Doctrine. In the Complaint, Plaintiffs allege that since late 2016, U.S. Customs and Border Protection (“CBP”) officials have systematically prevented asylum seekers arriving at ports of entry along the United States-Mexico border from accessing the United States asylum process through misrepresentations, threats and intimidation, verbal and physical abuse, and coercion by border patrol agents. Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the “Class Representatives”) are citizens of Mexico or Honduras who claim they arrived at a port of entry at the United States-Mexico border seeking asylum but were prevented from accessing the United States asylum process by CBP officials. Five of the six Class Representatives sought entry into the United States at either the Otay Mesa or San Ysidro Ports of Entry, both of which are located within the Southern District of California.1
II. Legal Standard
Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought.” 28 U.S.C. § 1404(a). The purpose of Section 1404(a) is to “prevent the waste ‘of time, energy and money’ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense.’” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. The Barge FBL-585, 364 U.S. 19, 26-27 (1960)). “Under § 1404(a), the district court has discretion to adjudicate motions for transfer ‘according to an individualized, case-by-case consideration of convenience and fairness.’” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).
“To support a motion for transfer the moving party must show: (1) that venue is proper in the transferor district; (2) that the transferee district is one where the action might have been brought; and (3) that the transfer will serve the convenience of the parties and witnesses and will promote the interest of justice.”2 Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp.

1 Jose Doe sought entry at the Laredo Port of Entry, which is located within the Southern District of Texas.

2 The parties do not dispute that this action might have been brought in the Southern District of California or that venue is proper in this District. However, the parties dispute whether

Page 2 of 4

Initials of Deputy Clerk sr

Case 2:17-cv-05111-JFW-JPR Document 113 Filed 11/21/17 Page 3 of 4 Page ID #:2235

503, 506 (C.D. Cal. 1992). Once the Court has determined that venue is proper in the transferor and transferee districts, the Court turns to “the central inquiry of a § 1404(a) motion” - the convenience of the parties and witnesses and the interests of justice.” Joe Boxer Corp. v. R. Siskind & Co., Inc., 1999 WL 429549, at *8 (N.D. Cal. June 8, 1999). In determining the convenience of the parties and witnesses and the interests of justice, the Court may consider multiple factors, including, inter alia: (1) the plaintiffs’ choice of forum; (2) the respective parties’ contacts with the forum; (3) the contacts relating to the plaintiffs’ claims for relief in the chosen forum; (4) the ease of access to sources of proof; (5) familiarity of each forum with applicable law; and (6) the availability of compulsory process to compel attendance of unwilling non-party witnesses. See, e.g., Jones, 211 F.3d at 498-99.
III. Discussion
After applying the statutory and non-statutory factors to be considered in a Section 1404(a) transfer analysis, the Court concludes that those factors favor transfer of this case to the Southern District of California. Generally, courts afford the plaintiff’s choice of forum substantial weight in a Section 1404(a) analysis. See, e.g., Decker, 805 F.2d at 843. However, in this case, Plaintiffs’ choice of forum is given less weight because this is a class action. See, e.g., Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (“Although great weight is generally accorded plaintiff’s choice of forum, . . . when an individual brings a derivative suit or represents a class, the named plaintiff’s choice of forum is given less weight”). In addition, Plaintiffs’ choice of forum is entitled to minimal deference because this District has no interest in the parties or this action. Specifically, the conduct of the border patrol agents as alleged in the Complaint occurred almost exclusively in the Southern District of California; six of the seven Plaintiffs are non-citizens seeking asylum in the United States and have no ties to this District and the remaining Plaintiff, Al Otro Lado (with questionable standing), is a non-profit incorporated in California; Defendants are not residents of California; and the subject matter of this litigation lacks any meaningful connection to this District. Metz v. U.S. Life Ins. Co., 674 F. Supp. 2d 1141, 1146 (C.D. Cal. 2009); see also IP LLC v. Volkswagen Group of America, Inc., 2013 WL 9935572, *3 (C.D. Cal. May 10, 2013) (“The plaintiff’s choice of forum is accorded less deference when, as here, the plaintiff pursues an action outside of its home forum”). For example, Plaintiffs have not alleged that any of the operative facts pertaining to this action occurred in this District. Instead, the systemic denial of access to the United States asylum process occurred primarily at the Otay Mesa or San Ysidro Ports of Entry, which are located in the Southern District of California. See, e.g., CBD v. Kempthorne, 2007 WL 2023515 (N.D. Cal. July 12, 2007) (holding that the plaintiffs’ choice of forum was afforded no deference where the connection between the plaintiffs, the controversy, and the chosen forum was attenuated). Moreover, although Al Otro Lado has an office in this District, it conducts a significant portion of its work in Tijuana, Mexico, which borders the Southern District of California.
In addition, the Southern District of California appears to be the more convenient forum for both the parties and the witnesses. Los Angeles Memorial Coliseum Commission v. National Football League, 89 F.R.D. 497, 501 (C.D. Cal. 1981) (holding that the convenience of the parties

the transfer will serve the convenience of the parties and witnesses and will promote the interest of justice.

Page 3 of 4

Initials of Deputy Clerk sr

Case 2:17-cv-05111-JFW-JPR Document 113 Filed 11/21/17 Page 4 of 4 Page ID #:2236
and the witnesses are often the most important factors considered by the Court when deciding a motion to transfer under Section 1404(a)). In fact, the overwhelming majority of witnesses, including the border patrol agents at the Otay Mesa and San Ysidro Ports of Entry who allegedly denied the Class Representatives the opportunity to apply for asylum in the United States and Plaintiff Dinora Doe who is being detained at the Otay Mesa Port of Entry, are located in the Southern District of California.
Finally, “[c]onsideration of the interest of justice, which includes judicial economy, ‘may be determinative to a particular transfer motion, even if the convenience of the parties and witnesses might call for a different result.’” Regents of the University of California v. Eli Lilly & Co., 119 F.3d 1559, 1565 (Fed. Cir. 1997) (quoting Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220-21 (7th Cir.1986) and citing Allen v. Scribner, 812 F.2d 426, 436-37 (9th Cir.1987)). In this case, the overwhelming majority of the documentary evidence and the places of the Class Representatives’ alleged injuries are located in the Southern District of California. Accordingly, the Southern District of California is the forum that would provide the easiest access to the documents and other physical evidence necessary to defend this action. In addition, the Southern District of California is more convenient for the parties and witnesses and the Southern District of California, which is located along the United States-Mexico border, has strong ties to the issues in this case. Therefore, after carefully weighing all of the relevant factors, the Court concludes that transferring this case to the Southern District of California would promote the interest of justice and judicial economy by preventing “the waste of time, energy, and money and [protecting the] litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964).
IV. Conclusion
For all the foregoing reasons, Defendants’ Motion is GRANTED. This action is hereby TRANSFERRED to the United States District Court for the Southern District of California.
In light of this action being transferred to the Southern District of California, the Class Representatives’ Unopposed Motion to Proceed Pseudonymously, Defendants' Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendants' Motion to Stay Discovery or Grant Protective Relief, Pending Decision on Motion to Dismiss and Motion to Transfer Venue, and Plaintiffs’ Motion for Class Certification are DENIED without prejudice.
IT IS SO ORDERED.

Page 4 of 4

Initials of Deputy Clerk sr

 
 Create an Alert for This Case on RECAP APPEAL,CLASS ACTION,ENE,NON-COMPLIANCE,PROTO,SEALDC
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17-cv-02366-BAS-KSC

Al Otro Lado, Inc. et al v. McAleenan, et al Assigned to: Judge Cynthia Bashant Referred to: Magistrate Judge Karen S. Crawford Case in other court: USCA, 19-56417
USCA, 20-56287 California Central, 2:17-cv-05111 Cause: 28:1441dj Removal- Declaratory Judgment

Date Filed: 11/22/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
Al Otro Lado, Inc. a California corporation

represented by Aaron E. Reichlin-Melnick American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 202-507-7505 Fax: 202-742-5619 Email: AReichlinMelnick@immcouncil.org TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Parr 1999 K St NW Washington, DC 20006 202-263-3074 Email: awparr@mayerbrown.com TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Bauer Southern Poverty Law Center 1000 Preston Avenue Charlottesville, VA 22903 470-606-9307

Email: mary.bauer@splcenter.org TERMINATED: 11/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn Mayer Brown LLP 1221 Avenue of the Americas New York, NY 10020-1001 212-506-2500 Fax: 212-262-1910 Email: mfenn@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo Mayer Brown LLP 350 South Grand Avenue 25th Floor Los Angeles, CA 90071 (213) 621-9483 Fax: (213) 625-0248 Email: mmarmolejo@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3279 Email: mstein@mayerbrown.com TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird Latham & Wakins, LLP 12670 High Bluff Drive San Diego, CA 92130 858-523-5400 Email: michaela.laird@lw.com

TERMINATED: 04/25/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Webster Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3714 Email: mwebster@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3040 Email: olev@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler Southern Poverty Law Center P.O. Box 1287 Decatur, GA 30031-1287 404-521-6700 Fax: 404-221-5857 Email: rebecca.cassler@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Kelley Latham & Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071-1560 213-485-1234 Fax: 213-891-1863 Email: robin.kelley@lw.com TERMINATED: 04/25/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Marion Rich Southern Poverty Law Center 150 East Ponce De Leon Avenue Suite 340 Decatur, GA 30030 404-521-6700 Email: sarah.rich@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3040 Email: smedlock@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields Mayer Brown LLP 1221 Avenue of the Americas New York, NY 10020 212-506-2686 Email: sfields@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy Mayer Brown LLP 1999 K Street NW Washington, DC 20006 202-263-3163 Email: vmurphy@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo R. Guisado Center for Constitution Rights 666 Broadway 7th Floor New York, NY 10012 212-614-6427

Fax: 212-614-6499 Email: aguisado@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy The Center for Constitution Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6427 Fax: 212-614-6499 PRO HAC VICE ATTORNEY TO BE NOTICED
Faraz R. Mohammadi Latham & Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071-1560 213-485-1234 Fax: 213-891-1863 Email: faraz.mohammadi@lw.com TERMINATED: 04/25/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz Center for Constitution Rights 666 Broadway 7th Floor New York, NY 10012 212-614-6427 Fax: 212-614-6499 Email: GSchwarz@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
James H. Moon Latham & Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071-1560 213-485-1234 Fax: 213-891-1863 Email: jamesmoon@dwt.com TERMINATED: 02/16/2018

Karolina J. Walters American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 202-507-7520 Fax: 202-742-5619 Email: kwalters@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn E Shepherd American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 202-507-7511 Fax: 202-742-5619 TERMINATED: 01/02/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Housh Sheppard, Mullin, Richter & Hampton LLP 12275 El Camino Real Suite 200 San Diego, CA 92130 (858) 720-8900 Fax: (858) 509-3691 Email: khoush@sheppardmullin.com TERMINATED: 08/17/2017 ATTORNEY TO BE NOTICED
Melissa E. Crow Southern Poverty Law Center 1666 Connecticut Avenue Suite 100 Washington, DC 20009 202-507-7520 Fax: 202-742-5619 Email: melissa.crow@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick Latham and Watkins LLP

Plaintiff
Abigail Doe individually and on behalf of all others similarly situated

355 South Grand Avenue Suite 100 Los Angeles, CA 90071-1560 (213)485-1234 Fax: (213)891-8763 Email: wayne.s.flick@lw.com TERMINATED: 04/25/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal Latham & Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071-1560 213-485-1234 Fax: 213-891-1863 Email: manny.abascal@lw.com TERMINATED: 04/25/2019 ATTORNEY TO BE NOTICED
represented by Aaron E. Reichlin-Melnick (See above for address) TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Moon (See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY
Kristin Housh (See above for address) TERMINATED: 08/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer

(See above for address) TERMINATED: 11/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robin Kelley (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Marion Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo R. Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Faraz R. Mohammadi (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz (See above for address)

Plaintiff
Beatrice Doe individually and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn E Shepherd (See above for address) TERMINATED: 01/02/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Aaron E. Reichlin-Melnick (See above for address) TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Moon (See above for address) TERMINATED: 02/16/2018

LEAD ATTORNEY
Kristin Housh (See above for address) TERMINATED: 08/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 11/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Kelley (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Marion Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo R. Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) PRO HAC VICE

Plaintiff
Carolina Doe individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Faraz R. Mohammadi (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn E Shepherd (See above for address) TERMINATED: 01/02/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Aaron E. Reichlin-Melnick (See above for address) TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Moon (See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY
Kristin Housh (See above for address) TERMINATED: 08/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 11/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Kelley (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Marion Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angelo R. Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Faraz R. Mohammadi (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn E Shepherd (See above for address) TERMINATED: 01/02/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED

Plaintiff
Dinora Doe individually and on behalf of all others similarly situated

represented by Aaron E. Reichlin-Melnick (See above for address) TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Moon (See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY
Kristin Housh (See above for address) TERMINATED: 08/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 11/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Kelley (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Marion Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo R. Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Faraz R. Mohammadi (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn E Shepherd (See above for address) TERMINATED: 01/02/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick

Plaintiff
Ingrid Doe individually and on behalf of all others similarly situated

(See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Aaron E. Reichlin-Melnick (See above for address) TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Moon (See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY
Kristin Housh (See above for address) TERMINATED: 08/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 11/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Kelley (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Marion Rich (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo R. Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Faraz R. Mohammadi (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn E Shepherd (See above for address) TERMINATED: 01/02/2019

Plaintiff
Jose Doe individually and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Aaron E. Reichlin-Melnick (See above for address) TERMINATED: 07/16/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James H. Moon (See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY
Kristin Housh (See above for address) TERMINATED: 08/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 11/05/2019

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michaela R. Laird (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Kelley (See above for address) TERMINATED: 05/28/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Marion Rich

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo R. Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Faraz R. Mohammadi (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Ghita R. Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ursula Doe

Kathryn E Shepherd (See above for address) TERMINATED: 01/02/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa E. Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wayne S Flick (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Victoria Doe

Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Ellis Fenn

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy

Plaintiff Bianca Doe

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Juan Doe

Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Roberto Doe

Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Cesar Doe

Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Maria Doe

Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein (See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Emiliana Doe

Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Allison Parr (See above for address) TERMINATED: 12/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Ellis Fenn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H. Marmolejo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah D. Stein

(See above for address) TERMINATED: 08/15/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle N. Webster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ori Lev (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Cassler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Medlock (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sydney R. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manuel A. Abascal (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
V.

Defendant
Elaine C. Duke Acting Secretary, US Department of Homeland Security TERMINATED: 12/20/2017

represented by Alexander James Halaska U.S. Department of Justice Office of Immigration Litigation Ben Franklin Station - P.O. Box 868 Washington, DC 20044 202-307-8704 Email: alexander.j.halaska@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela Ann Westwater US Department of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 202-532-4174 Fax: 202-616-8962 Email: gisela.westwater@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Ward U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-616-9121 Fax: 202-305-7000 Email: brian.c.ward@usdoj.gov ATTORNEY TO BE NOTICED
Danielle K. Schuessler Civil Division - Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-305-9698 Fax: 202-305-7000 Email: danielle.k.schuessler@usdoj.gov ATTORNEY TO BE NOTICED
Dhruman Y. Sampat

Department of Justice Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-532-4281 Email: dhruman.y.sampat@usdoj.gov ATTORNEY TO BE NOTICED
Genevieve M Kelly US Department of Justice Office of Immigration Litigation Civil Division 450 5th St NW Washington, DC 20001 202-532-4705 Fax: 202-305-7000 TERMINATED: 02/11/2019
Hayden Windrow DOJ-Civ Oil-Dsc P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-305-2023 Email: hayden.e.windrow@usdoj.gov ATTORNEY TO BE NOTICED
Katherine J Shinners U.S. Dep't of Justice, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-598-8259 Fax: 202-305-7000 Email: Katherine.J.Shinners@usdoj.gov ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044

Defendant
Kevin K. McAleenan Acting Secretary, U.S. Department of Homeland Security TERMINATED: 05/12/2020

202-353-8806 ATTORNEY TO BE NOTICED
Sairah G. Saeed USDOJ Civil Division - Office of Immigration Litigation Civil OIL, DCS P.O. Box 868, Ben Franklin Station Washington DC, DC 20044 202-532-4067 Email: sairah.g.saeed@usdoj.gov TERMINATED: 01/03/2020 ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt US Department of Justice Liberty Square Building 450 5th Street, NW Suite 6104 Washington, DC 20001 (202)616-0063 Fax: (202)616-8962 Email: sherease.pratt@usdoj.gov TERMINATED: 10/21/2017
Yamileth G. Davila United States Department of Justice P.O. Box 878 Ben Franklin Station Washington, DC 20044 (202)305-0137 Fax: (202)616-4950 Email: yamileth.g.davila@usdoj.gov ATTORNEY TO BE NOTICED
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela Ann Westwater (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Scott Grant Stewart U. S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 202-307-6482 Email: scott.stewart@ago.ms.gov TERMINATED: 01/15/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Nazarov U.S. Department of Justice P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 514-4120 Email: ari.nazarov@usdoj.gov TERMINATED: 03/29/2021 ATTORNEY TO BE NOTICED
Brian Ward (See above for address) ATTORNEY TO BE NOTICED
Danielle K. Schuessler (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Genevieve Kelly 450 5th St. NW Washington, DC 20001 202-532-4705 Email: genevieve.m.kelly@usdoj.gov ATTORNEY TO BE NOTICED
Genevieve M Kelly (See above for address) TERMINATED: 02/11/2019

Defendant
Todd C. Owen Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his official capacity

Hayden Windrow (See above for address) ATTORNEY TO BE NOTICED
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Sairah G. Saeed (See above for address) TERMINATED: 01/03/2020 ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 10/21/2017
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela Ann Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 01/15/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Ward (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirstjen Nielsen Acting Secretary, U.S. Department

Danielle K. Schuessler (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Genevieve Kelly (See above for address) ATTORNEY TO BE NOTICED
Genevieve M Kelly (See above for address) TERMINATED: 02/11/2019
Hayden Windrow (See above for address) ATTORNEY TO BE NOTICED
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Sairah G. Saeed (See above for address) TERMINATED: 01/03/2020 ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 10/21/2017
Yamileth G. Davila (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY

of Homeland Security TERMINATED: 10/25/2019

ATTORNEY TO BE NOTICED
Gisela Ann Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 01/15/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Ward (See above for address) ATTORNEY TO BE NOTICED
Danielle K. Schuessler (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED
Genevieve M Kelly (See above for address) TERMINATED: 02/11/2019
Hayden Windrow (See above for address) ATTORNEY TO BE NOTICED
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Sairah G. Saeed (See above for address) TERMINATED: 01/03/2020 ATTORNEY TO BE NOTICED

Defendant Does 1-25
Defendant Chad F. Wolf Acting Secretary, U.S. Department of Homeland Security

Yamileth G. Davila (See above for address) TERMINATED: 05/28/2019 ATTORNEY TO BE NOTICED
represented by Hayden Windrow (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Nazarov (See above for address) TERMINATED: 03/29/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gisela Ann Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 01/15/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Ward (See above for address) ATTORNEY TO BE NOTICED
Danielle K. Schuessler (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y. Sampat (See above for address) ATTORNEY TO BE NOTICED

V. Respondent DOES 1-10, inclusive TERMINATED: 11/02/2017
Amicus State of California

Genevieve Kelly (See above for address) ATTORNEY TO BE NOTICED
Hayden Windrow (See above for address) ATTORNEY TO BE NOTICED
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Ari Nazarov (See above for address) TERMINATED: 03/29/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle K. Schuessler (See above for address) ATTORNEY TO BE NOTICED
Genevieve M Kelly (See above for address) TERMINATED: 02/11/2019
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by James Fred Zahradka , II California Department of Justice 1515 Clay Street

Amicus Amnesty International
Amicus Members of Congress

Suite 2000 Oakland, CA 94612 510-879-1247 Email: james.zahradka@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Kay Leader Akin Gump Strauss Hauer & Feld 1999 Avenue of the Stars Suite 600 Los Angeles, CA 90067 310-229-1000 Fax: 310-229-1001 Email: sleader@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra Hiatt Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 212-295-6429 Email: Alexandra.Hiatt@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Stephen Dycus Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center New York, NY 10007 212-937-7236 Email: Jamie.Dycus@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Amici Curiae
Amicus Kids in Need of Defense

Matthew Donald Benedetto Wilmer Cutler Pickering Hale & Dorr 350 South Grand Avenue 21st Floor Los Angeles, CA 90071 213-443-5300 x5323 Fax: 213-443-5400 Email: matthew.benedetto@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael D Kibler Simpson Thacher and Bartlett 1999 Avenue of the Stars 29th Floor Los Angeles, CA 90067 (310)407-7515 Fax: (310)407-7502 Email: mkibler@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Baker Manning Morgan Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 202-373-6172 Fax: 202-373-6172 Email: susan.manning@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes Debevoise and Plimpton LLP 919 Third Avenue New York, NY 10022 212-909-6000 Fax: 212-909-6836 Email: mforbes@debevoise.com LEAD ATTORNEY

Amicus the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York
Amicus Legal Services for Children
Amicus Public Counsel

ATTORNEY TO BE NOTICED
Meryl Holt Debevoise and Plimpton LLP 919 Third Avenue New York, NY 10022 212-909-6000 Fax: 212-909-6836 Email: mholt@debevoise.com TERMINATED: 12/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meryl Holt (See above for address) TERMINATED: 12/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meryl Holt (See above for address) TERMINATED: 12/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meryl Holt (See above for address)

Amicus the Young Center for Immigrant Children's Rights at the University of Chicago Law School
Amicus Amici Curiae Organizations Advocating For Asylum Seekers
Amicus Haitian Bridge Alliance
Amicus Institute for Justice & Democracy in Haiti

TERMINATED: 12/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew D. Forbes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meryl Holt (See above for address) TERMINATED: 12/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV Simpson Thacher & Bartlett LLP 2475 Hanover Street Palo Alto, CA 94304 650.251.5000 Fax: 650.251.5002 Email: hfrahn@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Aufhauser Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10004 212-859-8064 Fax: 212-859-4000 Email: anne.aufhauser@friedfrank.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Aufhauser (See above for address)

Amicus Ira Kurzban Amicus Irwin Stotzky Amicus Center for Gender and Refugee Studies
Amicus Harvard Immigration and Refugee Clinical Program

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Aufhauser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Aufhauser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne P. Daher Center for Gender and Refugee Studies 200 McAllister St. San Francisco, CA 94102 415-890-5448 Fax: 415-581-8824 Email: daherannie@uchastings.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A. Albun Harvard Immigration & Refugee Clinical Program 6 Everett Street Suite 3109 Cambridge, MA 02138 847-804-2270 Fax: 617-812-2576 Email: zalbun@law.harvard.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Anne P. Daher (See above for address) LEAD ATTORNEY

Amicus
Boston University School of Law Immigrants' Rights and Human Trafficking Program

ATTORNEY TO BE NOTICED
Zachary A. Albun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Anne P. Daher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A. Albun (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/12/2017
07/12/2017 07/12/2017

# Docket Text
1 COMPLAINT Receipt No: 0973-20163884 - Fee: $400, filed by Plaintiffs Ingrid Doe, Carolina Doe, Al Otro Lado, Inc., Beatrice Doe, Jose Doe, Abigail Doe, Dinora Doe. (Attorney Manuel A Abascal added to party Al Otro Lado, Inc.(pty:pla), Attorney Manuel A Abascal added to party Abigail Doe(pty:pla), Attorney Manuel A Abascal added to party Beatrice Doe(pty:pla), Attorney Manuel A Abascal added to party Carolina Doe(pty:pla), Attorney Manuel A Abascal added to party Dinora Doe(pty:pla), Attorney Manuel A Abascal added to party Ingrid Doe(pty:pla), Attorney Manuel A Abascal added to party Jose Doe(pty:pla))(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
2 CIVIL COVER SHEET filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
3 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),, 1 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)

07/12/2017 07/12/2017 07/12/2017 07/12/2017 07/12/2017 07/12/2017
07/12/2017
07/12/2017

4 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),, 1 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
5 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),, 1 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
6 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
7 CORPORATE DISCLOSURE STATEMENT filed by Plaintiff Al Otro Lado, Inc. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
8 NOTICE of Related Case(s) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. Related Case(s): 2:13-cv-03972-JAK-PLA (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
9 APPLICATION of Non-Resident Attorney Baher Azmy to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-2016459 4) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
10 APPLICATION of Non-Resident Attorney Angelo Guisado to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-201 64717) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
11 APPLICATION of Non-Resident Attorney Ghita Schwarz to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe,

07/12/2017 07/12/2017 07/12/2017 07/13/2017 07/13/2017

Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-2016 4851) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
12 APPLICATION of Non-Resident Attorney Kathryn E. Shepherd to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 097 3-20164941) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
13 APPLICATION of Non-Resident Attorney Karolina J. Walters to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 097 3-20165032) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
14 APPLICATION of Non-Resident Attorney Melissa E. Crow to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20 165132) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/12/2017)
15 NOTICE OF ASSIGNMENT to District Judge John F. Walter and Magistrate Judge Jean P. Rosenbluth. (jtil) [Transferred from California Central on 11/22/2017.] (Entered: 07/13/2017)
16 NOTICE OF DEFICIENCIES in Request to Issue Summons Re: Summons Request 3 , 4 , 5 . The following error(s) was found: The caption of the summons must match the caption of the complaint verbatim. If the caption is too large to fit in the space provided, enter the name of the first party and then write see attached.Next, attach a face page of the complaint or a second page addendum to the Summons. The summons cannot be issued until this defect has been corrected. Please correct the defect and re-file your request. (jtil)

07/13/2017 07/13/2017
07/13/2017 07/13/2017

[Transferred from California Central on 11/22/2017.] (Entered: 07/13/2017)
17 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),, 1 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/13/2017)
18 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Kathryn E. Shepherd to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-2 12 , APPLICATION of Non-Resident Attorney Baher Azmy to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20164594) 9 , APPLICATION of Non-Resident Attorney Angelo Guisado to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-201647 10 . The following error(s) was/were found: Local Rule 5-4.3.4 Application not handsigned. (lt) [Transferred from California Central on 11/22/2017.] (Entered: 07/13/2017)
19 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening), 1 as to defendants John F. Kelly, Kevin K. McAleenan, Todd C. Owen. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 07/13/2017)
20 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Kathryn E. Shepherd to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-2 12 , APPLICATION of Non-Resident Attorney Karolina J. Walters to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-2 13 , APPLICATION of Non-Resident Attorney Melissa E. Crow to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee Fee Paid, Receipt No. 0973-20165 14 . The following error(s) was/were found: Local Rule 5-4.3.4 Application not hand-signed. (lt)

07/17/2017 07/17/2017 07/17/2017 07/18/2017
07/19/2017 07/19/2017

[Transferred from California Central on 11/22/2017.] (Entered: 07/13/2017)
21 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 16-05 (Related Case) filed. Transfer of case declined by Judge John A. Kronstadt, for the reasons set forth on this order. Related Case No. 2:13-cv-03972 JAK(PLAx) (rn) [Transferred from California Central on 11/22/2017.] (Entered: 07/17/2017)
22 STANDING ORDER by Judge John F. Walter. READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. This action has been assigned to the calendar of Judge John F. Walter. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 07/17/2017)
23 TEXT ONLY ENTRY by chambers of Judge John F. Walter. If not yet provided, courtesy copies of all case opening documents shall be delivered to chambers by 10:30 a.m. on July 19, 2017. (Refer to Court's Standing Order and Local Rule 5-4.5) Failure to comply may result in an Order to Show Cause re Dismissal and/or Sanctions for Failure to Comply with Rules. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jloz) TEXT ONLY ENTRY [Transferred from California Central on 11/22/2017.] (Entered: 07/17/2017)
24 APPLICATION of Non-Resident Attorney Kathryn E. Shepherd to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/12/2017, Receipt No. 0973-20164941) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/18/2017)
25 DECLARATION of Lead Trial Counsel Regarding Compliance with Local Rules Governing Electronic Filing filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 07/19/2017)
26 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Kathryn E. Shepherd to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/ 24 . The following error(s) was/were found: Local Rule 5-4.3.4 Application not

07/19/2017 07/20/2017 07/21/2017 07/28/2017
07/28/2017

hand-signed. (lt) [Transferred from California Central on 11/22/2017.] (Entered: 07/19/2017)
27 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Notice of Deficiency in Electronically filed Pro Hac Vice Application (G-112C) optional html form, OCR program caused original signature to appear as a cut and paste attachment on PHV application. 26 (lt) [Transferred from California Central on 11/22/2017.] (Entered: 07/19/2017)
28 MINUTE (IN CHAMBERS): ORDER DISMISSING DOES by Judge John F. Walter: Pursuant to Local Rule 19-1, no complaint or petition shall be filed that includes more than ten Doe or fictitiously named parties. Accordingly, the Court hereby dismisses the action as to Doe Defendants 11 through 25, inclusive. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 07/21/2017)
29 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge John F. Walter: granting 24 Non-Resident Attorney Kathryn E Shepherd APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, designating Manuel A Abascal as local counsel. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 07/24/2017)
30 APPLICATION of Non-Resident Attorney Melissa E. Crow to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/12/2017, Receipt No. 097320165132) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Attorney Wayne S Flick added to party Al Otro Lado, Inc.(pty:pla), Attorney Wayne S Flick added to party Abigail Doe(pty:pla), Attorney Wayne S Flick added to party Beatrice Doe(pty:pla), Attorney Wayne S Flick added to party Carolina Doe(pty:pla), Attorney Wayne S Flick added to party Dinora Doe(pty:pla), Attorney Wayne S Flick added to party Ingrid Doe(pty:pla), Attorney Wayne S Flick added to party Jose Doe(pty:pla)) (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 07/28/2017)
31 APPLICATION of Non-Resident Attorney Karolina J. Walters to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/12/2017, Receipt No. 097320165032) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe,

07/28/2017 07/28/2017 07/28/2017 08/01/2017 08/01/2017

Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 07/28/2017)
32 APPLICATION of Non-Resident Attorney Angelo Guisado to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/12/2017, Receipt No. 097320164717) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 07/28/2017)
33 APPLICATION of Non-Resident Attorney Baher Azmy to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/12/2017, Receipt No. 097320164594) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificates of Good Standing, # 2 Proposed Order) (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 07/28/2017)
34 APPLICATION of Non-Resident Attorney Ghita Schwarz to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Pro Hac Vice Fee - $325 Previously Paid on 7/12/2017, Receipt No. 097320164851) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 07/28/2017)
35 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge John F. Walter: granting 33 Non-Resident Attorney Baher Azmy APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, designating Wayne S Flick as local counsel. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 08/01/2017)
36 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge John F.

08/01/2017 08/01/2017 08/01/2017 08/03/2017

Walter: granting 32 Non-Resident Attorney Angelo Guisado APPLICATION to Appear Pro Hac Vice on behalf of behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, designating Wayne S Flick as local counsel. (jp) Modified on 8/1/2017 (jp). [Transferred from California Central on 11/22/2017.] (Entered: 08/01/2017)
37 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge John F. Walter: granting 34 Non-Resident Attorney Ghita Schwarz APPLICATION to Appear Pro Hac Vice on behalf of behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, designating Wayne S Flick as local counsel. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 08/01/2017)
38 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge John F. Walter: granting 31 Non-Resident Attorney Karolina J Walters APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, designating Wayne S Flick as local counsel. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 08/01/2017)
39 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge John F. Walter: granting 30 Non-Resident Attorney Melissa E Crow APPLICATION to Appear Pro Hac Vice on behalf of behalf of Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe, designating Wayne S Flick as local counsel. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 08/01/2017)
40 Effective August 7, 2017, Judge Jean P. Rosenbluth will be located at the Edward R. Roybal Federal Building, COURTROOM 690 on the 6th Floor, located at 255 East Temple Street, Los Angeles, California 90012. All court appearances shall be made in Courtroom 690 of the Roybal Federal Building, and all mandatory chambers copies shall be hand delivered to the judge's mailbox located outside the Clerk's Office on the 12th Floor of the Roybal Federal Building. The location for filing civil documents in paper format exempted from electronic filing and for viewing case files and other records services remains at the United States Courthouse, 312 North Spring Street, Room G-8, Los Angeles, California 90012. The location for filing criminal documents in paper format exempted from electronic filing remains at the Roybal

08/08/2017
08/17/2017 09/07/2017 09/09/2017

Federal Building, 255 East Temple Street, Room 178, Los Angeles, California 90012. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrp) TEXT ONLY ENTRY [Transferred from California Central on 11/22/2017.] (Entered: 08/03/2017)
41 PROOF OF SERVICE Executed by Plaintiff Ingrid Doe, Beatrice Doe, Jose Doe, Abigail Doe, Al Otro Lado, Inc., Carolina Doe, Dinora Doe, upon Defendant John F. Kelly served on 7/14/2017, answer due 9/12/2017; Kevin K. McAleenan served on 7/14/2017, answer due 9/12/2017; Todd C. Owen served on 7/14/2017, answer due 9/12/2017. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Pat M. Executed upon the Attorney Generals Office of the United States by delivering a copy to Emily Sase. Executed upon the officer agency or corporation by delivering a copy to Helga Taylor for John F. Kelly. Recipient names illegible for Kevin K. McAleenan and Todd C. Owen. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 08/08/2017)
42 Notice of Appearance or Withdrawal of Counsel: for attorney Kristin P Housh counsel for Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. Kristin P. Housh is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe. (Attorney Kristin P Housh added to party Al Otro Lado, Inc.(pty:pla))(Housh, Kristin) [Transferred from California Central on 11/22/2017.] (Entered: 08/17/2017)
43 NOTICE of Appearance filed by attorney Sherease Rosalyn Pratt on behalf of Defendants John F. Kelly, Kevin K. McAleenan, Todd C. Owen (Attorney Sherease Rosalyn Pratt added to party John F. Kelly(pty:dft), Attorney Sherease Rosalyn Pratt added to party Kevin K. McAleenan(pty:dft), Attorney Sherease Rosalyn Pratt added to party Todd C. Owen(pty:dft))(Pratt, Sherease) [Transferred from California Central on 11/22/2017.] (Entered: 09/07/2017)
44 Joint STIPULATION Extending Time to Answer the complaint as to Kevin K. McAleenan answer now due 10/12/2017; Todd C. Owen answer now due 10/12/2017; Elaine C. Duke answer now due 10/12/2017, re Complaint (Attorney Civil Case Opening),, 1 filed by Defendants Kevin K. McAleenan; Todd C. Owen; Elaine C. Duke.

09/13/2017 09/14/2017 09/15/2017 09/18/2017
09/22/2017

(Attachments: # 1 Declaration of Sherease Pratt, # 2 Proposed Order)(Pratt, Sherease) [Transferred from California Central on 11/22/2017.] (Entered: 09/09/2017)
45 NOTICE of Appearance filed by attorney Danielle K Schuessler on behalf of Defendants DOES, Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen (Attorney Danielle K Schuessler added to party DOES(pty:dft), Attorney Danielle K Schuessler added to party Elaine C. Duke(pty:dft), Attorney Danielle K Schuessler added to party Kevin K. McAleenan(pty:dft), Attorney Danielle K Schuessler added to party Todd C. Owen(pty:dft))(Schuessler, Danielle) [Transferred from California Central on 11/22/2017.] (Entered: 09/13/2017)
46 DECLARATION of Sherease Pratt re Notice of Appearance, 43 filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Pratt, Sherease) [Transferred from California Central on 11/22/2017.] (Entered: 09/14/2017)
47 NOTICE of Appearance filed by attorney Sairah Saeed on behalf of Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen (Attorney Sairah Saeed added to party Elaine C. Duke(pty:dft), Attorney Sairah Saeed added to party Kevin K. McAleenan(pty:dft), Attorney Sairah Saeed added to party Todd C. Owen(pty:dft))(Saeed, Sairah) [Transferred from California Central on 11/22/2017.] (Entered: 09/15/2017)
48 ORDER 44 by Judge John F. Walter. IT IS ORDERED that: 1. The Named Defendants shall have an additional 30 days to answer or otherwise respond to the complaint in this action, up to and including October 12, 2017; and 2. Plaintiffs shall have an additional 30 days to file their Motion for Class Certification, resulting in a deadline of November 13, 2017. In order to facilitate settlement discussions and not prejudice Plaintiffs for agreeing to this stipulation, the Named Defendants shall not oppose Plaintiffs' Motion for Class Certification based on any delay by Plaintiffs in filing for class certification or on the grounds that the claims of any one or more of the named Plaintiffs became moot between September 8, 2017 and the time that Plaintiffs file their Motion for Class Certification. (lom) [Transferred from California Central on 11/22/2017.] (Entered: 09/18/2017)
49 MINUTE ORDER IN CHAMBERS by Judge John F. Walter: Counsel are hereby notified that a Scheduling Conference has been set for 11/13/2017 at 08:30 AM before Judge John F. Walter in Courtroom 7A, 350 W. 1st St, Los Angeles, CA 90012. Lead Trial Counsel shall attend all proceedings before this Court, including the Scheduling Conference. Counsel are directed to comply with Rule 26 of the Federal Rules of

09/25/2017 10/05/2017 10/05/2017 10/05/2017 10/06/2017 10/11/2017

Civil Procedure and Local Rule 26-1 in a timely fashion and to file a Joint Report, on or before 10/31/2017. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 09/22/2017)
50 NOTICE of Scheduling Conference filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Exhibit Exhibit A)(Moon, James) [Transferred from California Central on 11/22/2017.] (Entered: 09/25/2017)
51 NOTICE of Association of Counsel associating attorney Gisela A Westwater on behalf of Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. Filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen (Attorney Gisela A Westwater added to party Elaine C. Duke(pty:dft), Attorney Gisela A Westwater added to party Kevin K. McAleenan(pty:dft), Attorney Gisela A Westwater added to party Todd C. Owen(pty:dft))(Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/05/2017)
52 NOTICE of Change of Lead Counsel changing lead counsel from Sherease Pratt to Gisela A Westwater. filed by Named Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen, (Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/05/2017)
53 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Association of Counsel, 51 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Notice of Appearance. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ak) [Transferred from California Central on 11/22/2017.] (Entered: 10/05/2017)
54 NOTICE of Appearance filed by attorney Yamileth G Davila on behalf of Defendants DOES, Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen (Attorney Yamileth G Davila added to party DOES(pty:dft), Attorney Yamileth G Davila added to party Elaine C. Duke(pty:dft), Attorney Yamileth G Davila added to party Kevin K. McAleenan(pty:dft), Attorney Yamileth G Davila added to party Todd C. Owen(pty:dft))(Davila, Yamileth) [Transferred from California Central on 11/22/2017.] (Entered: 10/06/2017)
55 STATEMENT Regarding the Parties' Meet and Confer Discussions filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C.

10/12/2017 10/12/2017 10/12/2017 10/12/2017 10/16/2017 10/16/2017

Owen (Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/11/2017)
56 NOTICE of Appearance filed by attorney Genevieve M Kelly on behalf of Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen (Attorney Genevieve M Kelly added to party Elaine C. Duke(pty:dft), Attorney Genevieve M Kelly added to party Kevin K. McAleenan(pty:dft), Attorney Genevieve M Kelly added to party Todd C. Owen(pty:dft))(Kelly, Genevieve) [Transferred from California Central on 11/22/2017.] (Entered: 10/12/2017)
57 STIPULATION for Order Regarding Confidential Information Identifying Named Plaintiffs filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Proposed Order)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 10/12/2017)
58 DEFENDANTS NOTICE OF MOTION AND MOTION to Dismiss filed by Defendants DOES, Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. Motion hearing set for 11/13/2017 at 1:30 PM before Judge John F. Walter. (Attachments: # 1 Exhibit Declaration)(Attorney Genevieve M Kelly added to party DOES(pty:dft))(Kelly, Genevieve) Modified on 10/24/2017 (jp). [Transferred from California Central on 11/22/2017.] (Entered: 10/12/2017)
59 NOTICE OF LODGING filed re Memorandum in Support of Motion 58 (Attachments: # 1 Proposed Order Proposed Order for MTD)(Kelly, Genevieve) [Transferred from California Central on 11/22/2017.] (Entered: 10/12/2017)
60 ORDER by Judge John F. Walter Regarding Confidential Information Identifying Named Plaintiffs 57 . (SEE ATTACHMENT OF THIS ORDER FOR FURTHER DETAILS). (jp) [Transferred from California Central on 11/22/2017.] (Entered: 10/16/2017)
61 NOTICE OF MOTION AND MOTION to Proceed Pseudonymously filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. Motion set for hearing on 11/13/2017 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Declaration of Abigail Doe, # 2 Declaration of Beatrice Doe, # 3 Declaration of Carolina Doe, # 4 Declaration of Dinora Doe, # 5 Declaration of Ingrid Doe, # 6 Declaration of Jose Doe, # 7 Proposed Order) (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 10/16/2017)

10/16/2017 10/18/2017 10/18/2017 10/20/2017 10/20/2017 10/23/2017 10/24/2017

62 *stricken* NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California filed by Named Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. Motion set for hearing on 11/27/2017 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Exhibit A - Statement of Information, # 2 Proposed Order) (Westwater, Gisela) Modified on 10/24/2017 (sr). [Transferred from California Central on 11/22/2017.] (Entered: 10/16/2017)
63 STIPULATION for Order Regarding Scheduling Conference and Briefing Schedule for Defendants' Motions filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Proposed Order)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 10/18/2017)
64 STATEMENT Parties' Meet and Confer Discussions filed by Defendant DOES (Davila, Yamileth) [Transferred from California Central on 11/22/2017.] (Entered: 10/18/2017)
65 *stricken* NOTICE OF MOTION AND MOTION for Protective Order for Stay of Discovery filed by defendants DOES. Motion set for hearing on 12/11/2017 at 08:30 AM before Judge John F. Walter. (Attachments: # 1 Exhibit Ex. A (email of 10/13/17), # 2 Exhibit Ex. B (Email of 10/17/17))(Davila, Yamileth) Modified on 10/24/2017 (sr). [Transferred from California Central on 11/22/2017.] (Entered: 10/20/2017)
66 DENIED BY ORDER OF THE COURT by Judge John F. Walter regarding Scheduling Conference and Briefing Schedule for Defendants Motions 63 . NO SHOWING OF GOOD CAUSE. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 10/20/2017)
67 PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe re: Memorandum in Support of Motion 58 (Attachments: # 1 Declaration of Manuel A. Abascal, # 2 Exhibit A, # 3 Exhibit B)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 10/23/2017)
68 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Opposition to Defendants Motion to Dismiss 67 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: objection/Opposition (Motion related) - under Category - Responses, Replies and Other Motion Related Documents. Other error(s) with document(s): Miscellaneous Document event utilized in docketing this filing. In the future, please use the SEARCH

10/24/2017 10/24/2017
10/25/2017 10/25/2017

feature on the CM/ECF Menu Bar if you are unsure of the events to use. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 10/24/2017)
69 Text Entry Only Order: Docket entries 62 and 65 . Hearing dates violate the Court's Standing Order.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sr) TEXT ONLY ENTRY [Transferred from California Central on 11/22/2017.] (Entered: 10/24/2017)
70 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Defendants Notice of Motion and Motion to Dismiss Under FRCP 12(b)(1) and 12(b)(6) 58 . The following error(s) was/were found: (1) Incorrect event selected. Correct event to be used is: Dismiss Case - under Category - Applications/Ex Parte Applications/Motions/Petitions/Requests. (2) Other error(s) with document(s): Filer used the event Memorandum in Support of Motion; which does not prompt the user to set a hearing before the judge. Clerk has converted the event so as to place the matter on calendar on 11/13/2017 at 1:30 PM., and modified your docket entry to reflect the caption of document. In the future, please use the SEARCH feature on the CM/ECF Menu Bar if you are unsure of the events to use. You need not take any action in response to this notice unless and until the Court directs you to do so. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 10/24/2017)
71 NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California filed by Named Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. Motion set for hearing on 11/27/2017 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Exhibit A - Statement of Information, # 2 Proposed Order) (Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/25/2017)
72 NOTICE OF MOTION AND MOTION for Protective Order for Stay of Discovery filed by Defendants DOES. Motion set for hearing on 11/27/2017 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Exhibit Ex. A (email of 10/13/17), # 2 Exhibit Ex. B (Email of 10/17/17), # 3 Proposed Order)(Davila, Yamileth) [Transferred from California Central on 11/22/2017.] (Entered: 10/25/2017)

10/26/2017 10/26/2017
10/27/2017 10/27/2017 10/29/2017 10/29/2017

73 NOTICE OF MOTION AND MOTION to Compel Defendants' Responses to Plaintiffs' Requests for Production filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. Motion set for hearing on 11/16/2017 at 10:00 AM before Magistrate Judge Jean P. Rosenbluth. (Attachments: # 1 Joint Stipulation Regarding Plaintiffs' Motion to Compel, # 2 Declaration of James H. Moon, # 3 Declaration of Sairah G. Saeed, # 4 Exhibits A-T, # 5 Proposed Order)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 10/26/2017)
74 EX PARTE APPLICATION to Continue Scheduling Confernce and Hearing on Defendants' Motion to Dismiss from November 13, 2017 to November 27, 2017 Re: to Dismiss Case 58 , Minutes of In Chambers Order/Directive - no proceeding held,,, Set/Reset Deadlines/Hearings,, 49 filed by Named Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Gisela A. Westwater, Lead Trial Counsel for Defendants, # 2 Exhibit A - Travel Itinerary, # 3 Exhibit B - Email Communications, # 4 Exhibit C - Email Communications, # 5 Proposed Order) (Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/26/2017)
75 DENIED BY ORDER OF THE COURT by Judge John F. Walter, re EX PARTE APPLICATION to Continue the Scheduling Conference 74 . No appearances will be required for the Scheduling Conference and Hearing on Defendants' Motion to Dismiss - The Court will rule on the papers. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 10/27/2017)
76 EX PARTE APPLICATION for Order for Continuing Hearing on Plaintiffs' Motion to Compel filed by Named Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Gisela A. Westwater, Lead Trial Counsel for Defendants, # 2 Exhibit A - Travel Itinerary, # 3 Exhibit B - Email Communications, # 4 Exhibit C - Email Communications, # 5 Proposed Order)(Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/27/2017)
77 OPPOSITION re: EX PARTE APPLICATION for Order for Continuing Hearing on Plaintiffs' Motion to Compel 76 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 10/29/2017)
78 DECLARATION of James H. Moon in Opposition to EX PARTE APPLICATION for Order for Continuing Hearing on Plaintiffs' Motion

10/30/2017 10/30/2017 10/30/2017
10/31/2017 10/31/2017 11/01/2017

to Compel 76 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Exhibit A)(Attorney James H Moon added to party Al Otro Lado, Inc.(pty:pla))(Moon, James) [Transferred from California Central on 11/22/2017.] (Entered: 10/29/2017)
79 CERTIFICATE OF SERVICE filed by Named Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen, re EX PARTE APPLICATION for Order for Continuing Hearing on Plaintiffs' Motion to Compel 76 served on 10/27/2017 & 10/29/2017. (Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 10/30/2017)
80 REPLY In support to Dismiss Case 58 filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Kelly, Genevieve) [Transferred from California Central on 11/22/2017.] (Entered: 10/30/2017)
81 ORDER by Magistrate Judge Jean P. Rosenbluth: Upon consideration of Defendants' ex parte application to continue the hearing on Plaintiffs' motion to compel due to the unavailability of Gisela A. Westwater, Defendants lead counsel, on November 16, 2017, and of plaintiffs' opposition, and for good cause shown, this Court GRANTS Defendants' ex parte application (ECF No. 75). The hearing on Plaintiffs' motion to compel, currently scheduled to be held on November 16, 2017, at 10:00 a.m., shall be continued until: Thursday, November 30, 2017 at 10:00 a.m. 76 (bem) [Transferred from California Central on 11/22/2017.] (Entered: 10/30/2017)
82 Notice of Appearance or Withdrawal of Counsel: for attorney Sherease Rosalyn Pratt counsel for Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. Sherease Pratt is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Counsel for Named Defendants Sherease Pratt. (Pratt, Sherease) [Transferred from California Central on 11/22/2017.] (Entered: 10/31/2017)
83 JOINT RULE 26(f) REPORT filed by Defendant DOES. (Davila, Yamileth) [Transferred from California Central on 11/22/2017.] (Entered: 10/31/2017)
84 NOTICE OF LODGING filed re [Proposed] Statement of Decision Denying Defendants' Motion to Dismiss re to Dismiss Case 58 (Attachments: # 1 [Proposed] Statement of Decision Denying Defendants' Motion to Dismiss)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/01/2017)

11/01/2017 11/02/2017
11/02/2017 11/02/2017 11/03/2017

85 NOTICE OF LODGING filed re to Dismiss Case 58 (Attachments: # 1 Proposed Order Statement of Proposed Decision)(Kelly, Genevieve) [Transferred from California Central on 11/22/2017.] (Entered: 11/01/2017)
86 ORDER VACATING SCHEDULING CONFERENCE AND REFERRAL TO PRIVATE MEDIATION by Judge John F. Walter.The Court has reviewed the parties' Joint Rule 26(f) Report and finds that a Scheduling Conference is not necessary. The hearing on November 13, 2017 is vacated and taken off calendar. A Scheduling and Case Management Order will issue. Any unserved DOE defendants are dismissed at this time. The Court, having considered the parties Request: ADR Procedure Selection, the Notice to Parties of CourtDirected ADR Program, or the report submitted by the parties pursuant to Fed. R. Civ. P. 26(f) and Civil L.R. 26-1, hereby: ORDERS this case referred to: ADR PROCEDURE NO. 3: (Private mediation). The ADR proceeding is to be completed no later than: 4/2/2018. The Joint Report re: Results of Settlement Conference due on: 4/5/2018. (jp) [Transferred from California Central on 11/22/2017.] (Entered: 11/02/2017)
87 *** VACATED ON 1/31/2018 PER ORDER 144 *** SCHEDULING AND CASE MANAGEMENT ORDER by Judge John F. Walter. The purpose of this Order is to notify the parties and their counsel of the deadlines and the schedule that will govern this action. Court Trial set for 7/31/2018 at 8:30 AM. Pretrial Conference set for 7/20/2018 at 10:00 AM. (SEE THE LAST PAGE OF THIS ORDER FOR THE SPECIFIED DATES.) (jp) [Transferred from California Central on 11/22/2017.]. Modified on 2/1/2018 - Ordered vacated (jah). (Entered: 11/02/2017)
88 NOTICE OF NON-OPPOSITION to NOTICE OF MOTION AND MOTION to Proceed Pseudonymously 61 filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Westwater, Gisela) [Transferred from California Central on 11/22/2017.] (Entered: 11/02/2017)
89 NOTICE OF LODGING filed re [Proposed] Statement of Decision Granting Class Representatives' Unopposed Motion to Proceed Pseudonymously re NOTICE OF MOTION AND MOTION to Proceed Pseudonymously 61 (Attachments: # 1 [Proposed] Statement of Decision Granting Class Representatives' Unopposed Motion to Proceed Pseudonymously)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/03/2017)

11/06/2017 11/06/2017 11/06/2017 11/06/2017 11/08/2017
11/09/2017 11/13/2017

90 Opposition re: NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California 71 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Declaration of Erika Pinheiro)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/06/2017)
91 DECLARATION of James H. Moon in Opposition to NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California 71 filed by Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Moon, James) [Transferred from California Central on 11/22/2017.] (Entered: 11/06/2017)
92 Opposition re: MOTION for Protective Order for Stay of Discovery 72 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/06/2017)
93 DECLARATION of James H. Moon in Opposition to MOTION for Protective Order for Stay of Discovery 72 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Moon, James) [Transferred from California Central on 11/22/2017.] (Entered: 11/06/2017)
94 MINUTE ORDER IN CHAMBERS by Judge John F. Walter: Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that the Motion to Dismiss 58 and Motion to Proceed Pseudonymously 61 are appropriate for decision without oral argument. The hearing calendared for November 13, 2017 is hereby vacated. The matters will be deemed submitted on the vacated hearing date and the clerk will notify the parties when the Court has reached a decision. (cw) [Transferred from California Central on 11/22/2017.] (Entered: 11/08/2017)
95 STATEMENT (Joint) Regarding Meet and Confer on Plaintiffs' Motion for Class Certification filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/09/2017)
96 REPLY In support NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California 71 filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Kelly, Genevieve) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

97 RESPONSE IN SUPPORT of MOTION for Protective Order for Stay of Discovery 72 filed by Defendant DOES. (Davila, Yamileth) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

98 NOTICE OF MOTION AND MOTION to Certify Class filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. Motion set for hearing on 12/11/2017 at 01:30 PM before Judge John F. Walter. (Attachments: # 1 Declaration of Joseph De Leon, # 2 Declaration of Abigail Doe, # 3 Declaration of Beatrice Doe, # 4 Declaration of Carolina Doe, # 5 Declaration of Dinora Doe, # 6 Declaration of Ingrid Doe, # 7 Declaration of Jose Doe, # 8 Declaration of Diego Iniguez-Lopez, # 9 Declaration of Brantley Shaw Drake, # 10 Declaration of Leah Jahan Chavla, # 11 Declaration of Jennifer Harbury, # 12 Declaration of Joanna Williams, # 13 Declaration of Clara Long, # 14 Proposed Order) (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

99 DECLARATION of Faraz R. Mohammadi In Support of NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Exhibits A-O, # 2 Exhibits PV)(Attorney Faraz Mohammadi added to party Al Otro Lado, Inc.(pty:pla), Attorney Faraz Mohammadi added to party Abigail Doe(pty:pla), Attorney Faraz Mohammadi added to party Beatrice Doe(pty:pla), Attorney Faraz Mohammadi added to party Carolina Doe(pty:pla), Attorney Faraz Mohammadi added to party Dinora Doe(pty:pla), Attorney Faraz Mohammadi added to party Ingrid Doe(pty:pla), Attorney Faraz Mohammadi added to party Jose Doe(pty:pla))(Mohammadi, Faraz) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

100 DECLARATION of Karhryn Shepherd in Support of NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Shepherd, Kathryn) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

101 DECLARATION of Manuel A. Abascal In Support of NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

102 DECLARATION of Melissa Crow in Support of NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Crow, Melissa) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

103 DECLARATION of Baher Azmy In Support of NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Azmy, Baher) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/13/2017

104 REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Exhibits A-H, # 2 Proposed Order)(Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 11/13/2017)

11/15/2017

105 NOTICE OF LODGING filed [Proposed] Statement of Decision Denying Defendants' Motion to Transfer Venue re NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California 71 (Attachments: # 1 [Proposed] Statement of Decision Denying Defendants' Motion to Transfer Venue)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/15/2017)

11/15/2017

106 NOTICE OF LODGING filed re [Proposed] Statement of Decision Denying Defendants' Motion to Stay Discovery re MOTION for Protective Order for Stay of Discovery 72 (Attachments: # 1 [Proposed] Statement of Decision Denying Defendants' Motion to Stay Discovery)(Abascal, Manuel) [Transferred from California Central on 11/22/2017.] (Entered: 11/15/2017)

11/15/2017

107 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION to Change Venue to Southern District of California 71 (Attachments: # 1 Proposed Order Proposed Decision)(Kelly, Genevieve) [Transferred from California Central on 11/22/2017.] (Entered: 11/15/2017)

11/15/2017

108 NOTICE OF LODGING filed re [Proposed] Statement of Decision Granting Defendants' re MOTION for Protective Order for Stay of Discovery 72 (Attachments: # 1 Proposed Order)(Davila, Yamileth) [Transferred from California Central on 11/22/2017.] (Entered: 11/15/2017)

11/17/2017

109 NOTICE of Appearance filed by attorney Alexander James Halaska on behalf of Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen (Attorney Alexander James Halaska added to party Elaine C. Duke(pty:dft), Attorney Alexander James Halaska added to party Kevin K. McAleenan(pty:dft), Attorney Alexander James Halaska added to party Todd C. Owen(pty:dft))(Halaska, Alexander) [Transferred from California Central on 11/22/2017.] (Entered: 11/17/2017)

11/20/2017

110 OPPOSITION to NOTICE OF MOTION AND MOTION to Certify Class 98 filed by Defendants Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Exhibit A - CBP OPR Directive, # 2 Exhibit B - CBP HRM Directive, # 3 Exhibit C - DHS OIG Directive, # 4 Exhibit D - DHS CRCL Annual Report, # 5 Exhibit E - Decl. of Bryan Molnar, # 6 Exhibit F - Expedited Removal Memo, # 7 Exhibit G - July 27, 2016 Muster, # 8 Exhibit H - Sept. 1, 2016 Muster, # 9 Exhibit I - CBP Language Access Plan, # 10 Exhibit J - Decl. of Dhanraj Samaroo)(Halaska, Alexander) [Transferred from California Central on 11/22/2017.] (Entered: 11/20/2017)

11/20/2017

111 MEMORANDUM in Support of MOTION to Compel Defendants' Responses to Plaintiffs' Requests for Production 73 (Supplemental) filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Flick, Wayne) [Transferred from California Central on 11/22/2017.] (Entered: 11/20/2017)

11/20/2017

112 DECLARATION of James H. Moon in Support of MOTION to Compel Defendants' Responses to Plaintiffs' Requests for Production 73 , 111 filed by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Moon, James) [Transferred from California Central on 11/22/2017.] (Entered: 11/20/2017)

11/21/2017

113 MINUTES (IN CHAMBERS) by Judge John F. Walter: ORDER GRANTING DEFENDANTS MOTION TO TRANSFER VENUE filed 10/25/17; Docket No. 71 ; ORDER DENYING WITHOUT PREJUDICE CLASS REPRESENTATIVES UNOPPOSED MOTION TO PROCEED PSEUDONYMOUSLY filed 10/16/17; Docket No. 61 ; ORDER DENYING WITHOUT PREJUDICEDEFENDANTS MOTION TO DISMISS UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1)AND 12(b)(6) filed 10/12/17; Docket No. 58 ; ORDER DENYING WITHOUT PREJUDICEDEFENDANTS MOTION TO STAY DISCOVERY OR GRANT PROTECTIVE RELIEF, PENDING DECISION ON MOTION TO DISMISS AND MOTION TO TRANSFER VENUE [filed 10/25/17; Docket No. 72 ;

and ORDER DENYING WITHOUT PREJUDICE PLAINTIFFSMOTION FOR CLASS CERTIFICATION filed 11/13/17; Docket No. 98 .This action is herebyTRANSFERRED to the United States District Court for the Southern District of California.(Made JS-6. Case Terminated.) (lc) [Transferred from California Central on 11/22/2017.] (Entered: 11/21/2017)

11/22/2017

114 Case transferred in from District of California Central; Case Number 2:17-cv-05111. Original file received electronically (Entered: 11/22/2017)

11/22/2017

115 Judge Thomas J. Whelan and Magistrate Judge Karen S. Crawford assigned to transfer case from Central District of California. (All nonregistered users served via U.S. Mail Service)(no document attached) (dlg) (Entered: 11/22/2017)

11/28/2017

116 MINUTE ORDER OF RECUSAL. Judge Thomas J. Whelan is no longer assigned. Case reassigned to Judge Cynthia Bashant for all further proceedings. The new case number is 17cv2366-BAS(KSC).(no document attached) (jao) (Entered: 11/28/2017)

11/29/2017

117 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: A telephonic Status Conference has been set for 12/15/2017 at 10:00 AM before Magistrate Judge Karen S. Crawford. Counsel for plaintiff shall initiate the conference by calling Judge Crawford's chambers at the appointed time with all counsel on the line. (no document attached) (lc2) (Entered: 11/29/2017)

12/04/2017

118 Ex Parte MOTION for Extension of Time to File (Refile) Motion to Dismiss by Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Exhibit A, # 2 Declaration of Gisela Westwater)(Westwater, Gisela)(acc). (Entered: 12/04/2017)

12/05/2017

119 ORDER on 118 Defendants' Ex Parte Motion for Extension of Time to File Responsive Pleading. The Court GRANTS Defendants' ex parte request. (ECF No. 118.) Defendants shall file the motion to dismiss the Complaint no later than 12/15/2017. For briefing purposes, the Court SETS a hearing date for the motion to dismiss of 2/12/2018. Plaintiffs may file an opposition to Defendants' motion to dismiss no later than 1/29/2018. Defendants may file a reply no later than 2/5/2018. Signed by Judge Cynthia Bashant on 12/5/2017. (All non-registered users served via U.S. Mail Service)(acc) (Entered: 12/05/2017)

12/06/2017 120 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-10701529.) (Application to be reviewed by Clerk.) (Walters, Karolina)(jrd) (Entered: 12/06/2017)

12/06/2017 121 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-10701532.) (Application to be reviewed by Clerk.) (Crow, Melissa)(jrd) (Entered: 12/06/2017)

12/06/2017 122 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-10701533.) (Application to be reviewed by Clerk.) (Reichlin-Melnick, Aaron)(jrd) (Entered: 12/06/2017)

12/06/2017

123 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-10701543.) (Application to be reviewed by Clerk.) (Azmy, Baher)(jrd) (Entered: 12/06/2017)

12/06/2017 124 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-10701544.) (Application to be reviewed by Clerk.) (Schwarz, Ghita)(jrd) (Entered: 12/06/2017)

12/06/2017

125 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-10701545.) (Application to be reviewed by Clerk.) (Guisado, Angelo)(jrd) (Entered: 12/06/2017)

12/06/2017

126 CERTIFICATE OF SERVICE by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe re 120 Request to Appear Pro Hac Vice, 123 Request to Appear Pro Hac Vice, 125 Request to Appear Pro Hac Vice, 124 Request to Appear Pro Hac Vice, 122 Request to Appear Pro Hac Vice, 121 Request to Appear Pro Hac Vice (Moon, James) (ajs). (Entered: 12/06/2017)

12/08/2017

127 Joint MOTION for Determination of Discovery Dispute by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Declaration of Manuel Abascal, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Declaration of Gisela Westwater, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit AB, # 31 Exhibit AC, # 32 Exhibit AD, # 33 Exhibit AE, # 34 Exhibit AF, # 35 Exhibit AG, # 36 Exhibit AH, # 37 Exhibit AI, # 38 Proof of Service)(Abascal, Manuel). Modified on 12/11/2017 - Edited text (jah). (Entered: 12/08/2017)

12/12/2017 129 ORDER Approving the Pro Hac Vice Application of Karolina J. Walters, re 120 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/8/2017.(kcm) (Entered: 12/14/2017)

12/12/2017 130 ORDER Approving the Pro Hac Vice Application of Melissa E. Crow, re 121 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/8/2017.(kcm) (Entered: 12/14/2017)

12/12/2017 131 ORDER Approving the Pro Hac Vice Application of Aaron ReichlinMelnick, re 122 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/8/2017.(kcm) (Entered: 12/14/2017)

12/12/2017

132 ORDER Approving the Pro Hac Vice Application of Baher Azmy, re 123 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/8/2017.(kcm) (Entered: 12/14/2017)

12/12/2017 133 ORDER Approving the Pro Hac Vice Application of Ghita Schwarz, re 124 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/8/2017.(kcm) (Entered: 12/14/2017)

12/12/2017

134 ORDER Approving the Pro Hac Vice Application of Angelo Guisado, re 125 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/8/2017.(kcm) (Entered: 12/14/2017)

12/13/2017

128 Unopposed MOTION to Proceed Pseudonymously by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Abigail Doe, # 3 Declaration of Beatrice Doe, # 4 Declaration of Carolina Doe, # 5 Declaration of Dinora Doe, # 6 Declaration of Ingrid Doe, # 7 Declaration of Jose Doe, # 8 Proof of Service)(Abascal, Manuel). (jah). (Entered: 12/13/2017)

12/14/2017

135 MOTION to Dismiss by Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A, # 3 Exhibit B)(Kelly, Genevieve). Attorney Genevieve Kelly added to party Elaine C. Duke(pty:res), Attorney Genevieve Kelly added to party Kevin K. McAleenan(pty:res), Attorney Genevieve Kelly added to party Todd C. Owen(pty:res). Modified on 12/15/2017 Removed duplicate attachment descriptions (jah). (Entered: 12/14/2017)

12/18/2017

136 MOTION to Stay Discovery by Elaine C. Duke, Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Gisela Westwater)(Westwater, Gisela). (jah). (Entered: 12/18/2017)

12/19/2017

137 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Plaintiffs may file an opposition to Defendants' Motion to Stay Discovery [Doc. No. 136] on or before 1/5/18. Defendants may file a reply to Plaintiffs' opposition on or before 1/12/18.(no document attached) (lc2) (Entered: 12/19/2017)

12/20/2017

138 ORDER granting Individual Plaintiffs' 128 Unopposed Motion to Proceed Pseudonymously. Because Court must consider the particular prejudice to the opposing party at each stage of the proceedings, this grant is without prejudice to any future challenge by the Defendants at a later stage in the proceedings, and trial. Signed by Judge Cynthia Bashant on 12/20/2017. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 12/21/2017)

01/05/2018

139 RESPONSE in Opposition re 136 MOTION to Stay Discovery filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel) (anh). (Entered: 01/05/2018)

01/05/2018

140 DECLARATION re 139 Response in Opposition to Motion by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Exhibit A)(Moon, James) (anh). (Entered: 01/05/2018)

01/09/2018

141 NOTICE of Appearance by Brian Ward on behalf of Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen (Ward, Brian)Attorney Brian Ward added to party Elaine C. Duke (pty:dft), Attorney Brian Ward added to party Kevin K. McAleenan (pty:dft), Attorney Brian Ward added to party Kirstjen Nielsen (pty:dft), Attorney Brian Ward added to party Todd C. Owen (pty:dft). (jah). (Entered: 01/09/2018)

01/12/2018

142 REPLY to Response to Motion re 136 MOTION to Stay Discovery filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). (jah). (Entered: 01/12/2018)

01/29/2018

143 RESPONSE in Opposition re 135 MOTION to Dismiss filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Attachments: # 1 Proof of Service)(Abascal, Manuel). (jah). (Entered: 01/29/2018)

01/31/2018

144 ORDER denying without prejudice 127 Joint Motion for Determination of Discovery Dispute; granting Defendants' 136 Motion to Stay Discovery. All discovery is stayed until the District Court rules on 135 Motion to Dismiss and a renewed Scheduling Order is issued. Telephonic Status Conference set for 3/16/2018 11:00 AM before Magistrate Judge Karen S. Crawford. The Scheduling Order 87 is vacated. Signed by Magistrate Judge Karen S. Crawford on 1/31/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 02/01/2018)

02/05/2018 145 REPLY to Response to Motion re 135 MOTION to Dismiss filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). (jah). (Entered: 02/05/2018)

02/16/2018

146 NOTICE of Withdrawal of James H. Moon as Counsel of Record by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Attachments: # 1 Proof of Service)(Moon, James)(mxn). (Entered: 02/16/2018)

02/20/2018

147 NOTICE of Change of Address by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Crow, Melissa). Modified on 2/21/2018 - Wrong event. QC Email sent. Edited text (jah). (Entered: 02/20/2018)

02/20/2018

148 Joint MOTION for Protective Order by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X)(Saeed, Sairah). Modified on 2/21/2018 - No Proof of Service. Double wording in text. QC Email sent to file Proof of Service (jah). (Entered: 02/20/2018)

02/21/2018 149 CERTIFICATE OF SERVICE by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen re 148 Joint MOTION for Protective Order (Saeed, Sairah). (jah). (Entered: 02/21/2018)

02/23/2018

150 MINUTE ORDER Setting Hearing: A telephonic Discovery Hearing has been set for 2/28/2018 at 02:30 PM before Magistrate Judge Karen S. Crawford regarding the parties' Joint Motion for Protective Order. [Doc. No. 148]. After further review of the parties papers, The Court will issue a subsequent order delineating specific issues it wishes to address during the hearing. Counsel for plaintiffs shall call Judge Crawfords chambers at the appointed time with all counsel on the line. If the parties prefer, the Court can provide a conference call-in line. IT IS SO ORDERED.(no document attached) (lc2) (Entered: 02/23/2018)

02/27/2018

151 NOTICE of Appearance by Michaela R. Laird on behalf of Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Laird, Michaela). Attorney Michaela R. Laird added to party Al Otro Lado, Inc.(pty:pla), Attorney Michaela R. Laird added to party Abigail Doe(pty:pla), Attorney Michaela R. Laird added to party Beatrice Doe(pty:pla), Attorney Michaela R. Laird added to party Carolina Doe(pty:pla), Attorney Michaela R. Laird added to party Dinora Doe(pty:pla), Attorney Michaela R. Laird added to party Ingrid

Doe(pty:pla), Attorney Michaela R. Laird added to party Jose Doe(pty:pla). (jah). (Entered: 02/27/2018)

02/27/2018

152 ORDER Re Hearing on 148 Joint MOTION for Protective Order. Court expects the parties to be fully prepared to argue all in the body of the Joint Motion, as well as any accompanying exhibits. Signed by Magistrate Judge Karen S. Crawford on 2/27/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 02/28/2018)

02/28/2018

153 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Discovery Hearing (telephonic in Courtroom 1E) held on 2/28/2018. The Court ORDERS defendants to postpone the March 5, 2018 transition of the San Ysidro Port of Entry surveillance system to the Centralized Video Surveillance System ("CAVSS") until the Court rules on the Joint Motion. Government counsel is to provide any additional information requested by the court during todays hearing by Thursday, March 8 2018. Matter taken under submission. (CD# 2/28/2018 KSC 230-315). (Plaintiff Attorney F. Mohammadi, M. Laird, M. Abascal, M. Crow, A. Reichlin-Melnick). (Defendant Attorney S. Saeed, G. Kelly, B. Ward, L. Bick). (no document attached) (ecs) (All non-registered users served via U.S. Mail Service) (Entered: 02/28/2018)

03/08/2018

154 ***DOCUMENT WITHDRAWN PER 159 NOTICE OF WITHDRAWAL*** MOTION to File Documents Under Seal (Saeed, Sairah) (aef). Modified to withdraw on 3/12/2018 (mxn). (Entered: 03/08/2018)

03/08/2018

155 [FILED AS SEALED DOCUMENT ON 3/12/2018] - SEALED LODGED Proposed Document re: 158 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Saeed, Sairah) (aef). Modified corrected document link on 3/12/2018 (mxn). (Main Document 155 replaced on 3/12/2018) (mxn). Modified on 3/12/2018 to add file date of lodgment (mxn). (Entered: 03/08/2018)

03/08/2018

156 REDACTED SUPPLEMENTAL BRIEFING by Defendants Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen re 148 Joint MOTION for Protective Order, 153 Discovery Hearing. (Attachments: # 1 Declaration Johnny Armijo, # 2 Declaration Adrian Guerra, # 3 Declaration Heather Robertson, # 4 Exhibit D - Article, # 5 Exhibit E Article, # 6 Exhibit F - Article)(Saeed, Sairah). Modified on 3/9/2018 Edited to reflect s redacted (jah). (Entered: 03/08/2018)

03/09/2018

157 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2/28/2018, before Magistrate Judge Karen S. Crawford. Court Reporter/Transcriber: Ellen L. Simone. Transcript may be viewed at the

court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/30/2018. Redacted Transcript Deadline set for 4/9/2018. Release of Transcript Restriction set for 6/7/2018. (All non-registered users served via U.S. Mail Service. Notice of electronic filing only.) (akr) (Entered: 03/09/2018)

03/09/2018 158 MOTION to File Documents Under Seal (Saeed, Sairah)(mxn). (Entered: 03/09/2018)

03/09/2018

159 NOTICE OF WITHDRAWAL OF DOCUMENT by Kevin K. McAleenan, Todd C. Owen, Kirstjen Nielsen re 154 MOTION to File Documents Under Seal filed by Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen, 158 MOTION to File Documents Under Seal filed by Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen . (Saeed, Sairah)(mxn). (Entered: 03/09/2018)

03/12/2018

160 ORDER Regarding Plaintiff's Motion to File Documents Under Seal (ECF No. 158 ). Signed by Magistrate Judge Karen S. Crawford on 3/9/2018. (All non-registered users served via U.S. Mail Service)(mxn) (Entered: 03/12/2018)

03/13/2018

162 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: In light of the pending Joint Motion before this Court [Doc. No. 148] and the recently held Discovery Hearing, the telephonic Status Conference set for 3/16/18 [Doc. No. 144] is VACATED. (no document attached) (egs) (Entered: 03/13/2018)

05/16/2018

163 Joint MOTION for Protective Order Regarding (1) Supplemental Brief Regarding Defendants' Motion for Protective Order, (2) Supplemental Declaration of Johnny L. Armijo, and (3) Supplemental Declaration of Heather M. Robertson by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Exhibit Proposed Protective Order)(Halaska, Alexander) (rmc). (Entered: 05/16/2018)

05/25/2018

164 ORDER granting 163 Joint Motion for Entry of Stipulated Protective Order. Signed by Magistrate Judge Karen S. Crawford on 5/25/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 05/25/2018)

07/13/2018 165 NOTICE of Withdrawal of Aaron Reichlin-Melnick as Counsel of Record by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina

Doe, Dinora Doe, Ingrid Doe, Jose Doe (Reichlin-Melnick, Aaron)(acc). (Entered: 07/13/2018)

08/20/2018

166 ORDER granting in part and denying in part Defendants' 135 Motion to Dismiss. Court grants in part Defendants' motion to dismiss and dismisses without prejudice: a.) Plaintiffs A.D, B.D,, and C.D's claims under Section under 706(1) only insofar as they sought to compel agency action under 8 C.F.R. 235.4, and b.) all Plaintiffs' claims under section 706(2) regarding Defendants' alleged policy. Court denies on all other grounds Defendants' motion. Court grants Plaintiffs leave to amend the pleadings consistent with this Order. Plaintiffs may file a First Amended Complaint by 9/15/2018. If Plaintiffs do not file a First Amended Complaint or request additional time to do so, Defendants shall file an Answer by 9/24/2018. Signed by Judge Cynthia Bashant on 8/20/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 08/20/2018)

08/31/2018

167 Joint MOTION for Extension of Time to File First Amended Complaint and for Defendants to Answer to the First Amended Complaint by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe. (Abascal, Manuel). Modified on 9/4/2018 Edited text (jah). (Entered: 08/31/2018)

08/31/2018

168 CERTIFICATE OF SERVICE by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe re 167 Joint MOTION for Extension of Time to File First Amended Complaint and for Defendants to Answer to the First Amended Complaint (Abascal, Manuel). (jah). (Entered: 08/31/2018)

09/04/2018

169 ORDER granting 167 Joint Motion for Extension of Time to File First Amended Complaint and for Answer to the First Amended Complaint. Court vacates the pleading deadlines set in Order 166 . Plaintiffs may file First Amended Complaint by 10/12/2018. If Plaintiffs file a First Amended Complaint, Defendants shall respond to the First Amended Complaint by 11/9/2018. If Plaintiffs do not file a First Amended Complaint by 10/12/2018, Defendants shall answer to the Complaint by 10/26/2018. If Plaintiffs do not file a First Amended Complaint, Defendants may move for reconsideration of Court's 8/20/2018 instead of filing an answer, by 10/26/2018. Signed by Judge Cynthia Bashant on 9/4/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 09/04/2018)

09/17/2018

170 ORDER granting in part and denying in part Defendants' 148 Motion for Protective Order. Signed by Magistrate Judge Karen S. Crawford on 9/27/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 09/17/2018)

10/04/2018 171 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974-11756598.)(Application to be reviewed by Clerk.)(Rich, Sarah)(jrd) (Entered: 10/04/2018)

10/04/2018

172 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974-11756884.)(Application to be reviewed by Clerk.) (Attachments: # 1 Attachment A)(Bauer, Mary)(jrd) (Entered: 10/04/2018)

10/11/2018

173 NOTICE of Change of Address by Melissa E. Crow (Crow, Melissa). Modified on 10/12/2018 - QC Email sent to update contact info in ECF per ECF I.f (jah). (Entered: 10/11/2018)

10/11/2018

174 CERTIFICATE OF SERVICE by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe re 173 Notice of Change of Address (Crow, Melissa). (jah). (Entered: 10/11/2018)

10/12/2018

175 MOTION to Withdraw Kathryn Shepherd as Attorney by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, Jose Doe (Walters, Karolina). Modified on 10/15/2018 - Wrong event. QC Email sent re L.R. 83.3.g.3. Corrected entry (jah). (Entered: 10/12/2018)

10/12/2018

176 FIRST AMENDED COMPLAINT against Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Does 1-25, filed by Abigail Doe, Al Otro Lado, Inc., Ingrid Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ursula Doe, Victoria Doe, Bianca Doe, Juan Doe, Roberto Doe, Cesar Doe, Maria Doe, Emiliana Doe. (Abascal, Manuel). Modified on 10/15/2018 - Added "First" to text (jah). (Entered: 10/12/2018)

10/15/2018

177 NOTICE of Errata re 176 Amended Complaint by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe, (Attachments: # 1 Exhibit A)(Abascal, Manuel). Modified on 10/16/2018 - No provision for acceptance. QC Email sent re proper procedure to correct or supplement existing entries (jah). (Entered: 10/15/2018)

10/16/2018

178 ORDER Approving the Pro Hac Vice Application of Sarah M. Rich, re 171 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 10/5/2018.(All non-registered users served via U.S. Mail Service)(dsn) (Entered: 10/17/2018)

10/16/2018 179 ORDER Approving the Pro Hac Vice Application of Mary Bauer, re 172 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant

on 10/5/2018.(All non-registered users served via U.S. Mail Service)(dsn) (Entered: 10/17/2018)

10/17/2018

180 ORDER denying without prejudice Kathryn E. Shepherd's 175 Motion to Withdraw as Attorney. Court denies the motion to withdraw without prejudice to the refiling of a new motion that satisfies the Local Rule and this Order. Signed by Judge Cynthia Bashant on 10/17/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 10/17/2018)

11/01/2018

181 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-11858535.) (Application to be reviewed by Clerk.) (Attachments: # 1 Attachment A)(Cassler, Rebecca) (mdc) (Entered: 11/01/2018)

11/02/2018

182 *** DOCUMENT WITHDRAWN PER NOTICE OF WITHDRAWAL 183 *** Joint MOTION for Extension of Time to File Answer to First Amended Complaint by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). Modified on 11/3/2018 - Corrected filer. Edited text (jah). (sjm). (Entered: 11/02/2018)

11/02/2018

183 NOTICE OF WITHDRAWAL OF DOCUMENT by Kevin K. McAleenan, Todd C. Owen, Kirstjen Nielsen, Does 1-25 re 182 Joint MOTION for Extension of Time to File Answer or Otherwise Respond to First Amended Complaint filed by Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen, Does 1-25 . (Halaska, Alexander) (sjm). (Entered: 11/02/2018)

11/02/2018

184 Joint MOTION for Extension of Time to File Answer to the First Amended Complaint Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). Modified on 11/3/2018 - Corrected filer and edited text (jah). (Entered: 11/02/2018)

11/02/2018

185 ORDER granting 182 Joint Motion for Extension of Time to Answer re 176 First Amended Complaint and granting 184 Joint Motion for Extension of Time to Answer re 176 First Amended Complaint. Defendants Kevin K. McAleenan, Todd C. Owen, and Kirstjen Nielsen must answer to the First Amended Complaint by 11/20/2018. Signed by Judge Cynthia Bashant on 11/2/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 11/03/2018)

11/07/2018

186 Joint MOTION for Leave to File Second Amended Complaint by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Abascal, Manuel) (jdt). (Entered: 11/07/2018)

11/07/2018

187 ORDER Approving the Pro Hac Vice Application of Rebecca Cassler, re 181 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 11/1/2018. (All non-registered users served via U.S. Mail Service.) (mdc) (Entered: 11/08/2018)

11/13/2018

188 ORDER: (1) Granting 186 Joint Motion for Leave to File a Second Amended Complaint and (2) Approving Modified Excess Briefing. the Court GRANTS the request and MODIFIES the permitting briefing as follows: Defendants may file a motion to dismiss not to exceed 35 pages. Plaintiffs may file an opposition not to exceed 35 pages. Defendants may file a reply not to exceed 15 pages. The parties shall file a notice regarding the briefing schedule they seek no later than Friday, November 16, 2018. Signed by Judge Cynthia Bashant on 11/13/2018. (All non-registered users served via U.S. Mail Service)(aef) (Entered: 11/13/2018)

11/13/2018

189 SECOND AMENDED COMPLAINT against Does 1-25, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, filed by Bianca Doe, Roberto Doe, Abigail Doe, Al Otro Lado, Inc., Victoria Doe, Ingrid Doe, Cesar Doe, Beatrice Doe, Carolina Doe, Maria Doe, Ursula Doe, Emiliana Doe, Dinora Doe, Juan Doe. (Attachments: # 1 Exhibit A) (Abascal, Manuel). Modified on 11/13/2018 - Removed duplicate text (jah). (Entered: 11/13/2018)

11/16/2018

190 Joint MOTION to Set Briefing Schedule for Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Proof of Service)(Abascal, Manuel). (jah). (Entered: 11/16/2018)

11/19/2018

191 ORDER granting 190 Joint Motion to Set Schedule for defendants to Respond to the Second Amended Complaint re 189 Second Amended Complaint. Defendants Kevin K. McAleenan, Kirstjen Nielsen and Todd C. Owen may answer to the Second Amended Complaint (SAC) by 11/29/2018. If Defendants respond to the Second Amended Complaint by moving to dismiss, such motion shall not exceed 35 pages. If Defendants respond to the SAC by moving to dismiss, Plaintiffs may file an opposition to such motion by 1/11/2019, opposition shall not exceed 35 pages. If Defendants respond to the SAC by moving to dismiss, they may file a reply in support by 2/1/2019, reply shall not exceed 15 pages. An untimely extension request will be summarily denied by reference to this Order. Signed by Judge Cynthia Bashant on 11/19/2018. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 11/19/2018)

11/29/2018

192 MOTION to Dismiss for Failure to State a Claim by Does 1-25, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Halaska, Alexander)Attorney Alexander James Halaska added to party Does 1-25(pty:dft) (sjm). (Entered: 11/29/2018)

12/07/2018

193 Joint MOTION to Stay Regarding Discovery Status by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Sairah G. Saeed, # 2 Exhibit A, # 3 Proof of Service)(Abascal, Manuel) (sjm). (Entered: 12/07/2018)

12/21/2018

194 MOTION to Withdraw Kathryn E. Shepherd as Attorney by Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Kathryn E. Shepherd) (jah) (Entered: 12/27/2018)

12/21/2018

195 NOTICE of Non-Compliance with Local Rule 5.4(a) Mandatory Electronic Filing, re 194 MOTION to Withdraw as Attorney filed by Emiliana Doe, Maria Doe, Bianca Doe, Dinora Doe, Abigail Doe, Cesar Doe, Jose Doe, Victoria Doe, Ingrid Doe, Al Otro Lado, Inc., Beatrice Doe, Carolina Doe, Roberto Doe, Juan Doe, Ursula Doe. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 12/27/2018)

12/28/2018

196 ORDER Granting 193 Plaintiff's Motion to Remove Stay on Discovery & Setting Case Management Conference. A Joint Discovery Plan shall be lodged with Magistrate Judge Crawford on or before 1/25/2019. Counsel shall appear telephonically on 2/1/2019 at 10:30 a.m. before Magistrate Judge Crawford for a Case Management Conference. Signed by Magistrate Judge Karen S. Crawford on 12/28/2018. (All nonregistered users served via U.S. Mail Service)(jdt) (Entered: 12/31/2018)

01/02/2019

197 ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY OF RECORD re: 194 Motion to Withdraw as Attorney. Attorney Kathryn E Shepherd terminated. Signed by Judge Cynthia Bashant on 1/2/2019. (All non-registered users served via U.S. Mail Service)(sjm) (Entered: 01/02/2019)

01/04/2019 198 MOTION to Stay Case in Light of Lapse in Appropriations by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen.

(Attachments: # 1 Text of Proposed Order)(Saeed, Sairah) QC re: proposed order (acc). (Entered: 01/04/2019)

01/04/2019

199 RESPONSE in Opposition re 198 MOTION to Stay Case in Light of Lapse in Appropriations filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Proof of Service)(Abascal, Manuel) (acc). (Entered: 01/04/2019)

01/08/2019

200 REPLY to Response to Motion re 198 MOTION to Stay Case in Light of Lapse in Appropriations filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander) (jdt). (Entered: 01/08/2019)

01/08/2019

201 ORDER Granting Defendants' Motion for Stay in Light of Lapse in Appropriations (ECF No. 198 ). The stay will be lifted automatically when appropriations are restored. Further, in the event of a protracted lapse in appropriations, the Court will consider a request by Plaintiffs to lift the stay. Signed by Judge Cynthia Bashant on 1/8/2019. (All nonregistered users served via U.S. Mail Service)(jdt) (Entered: 01/09/2019)

01/28/2019

202 ORDER LIFTING STAY. As indicated in Court's 1/8/2019 Order granting Defendants' request to stay case during the lapse in appropriations 201 , the stay will be automatically lifted when appropriations are restored. Because appropriations have been restored, the stay of this action is lifted. The remaining deadlines 191 are extended on Defendants' 192 MOTION to Dismiss for Failure to State a Claim. Plaintiff may file opposition by 2/14/2019. Defendants may file reply by 3/7/2019. Signed by Judge Cynthia Bashant on 1/28/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 01/28/2019)

01/30/2019

203 ORDER Resetting Case Management Conference and Related Dates. A Joint Discovery Plan is due on or before 3/8/2019. Counsel shall appear telephonically on 3/15/2019 at 10:00 AM before Magistrate Judge Karen S. Crawford for a Case Management Conference. Signed by Magistrate Judge Karen S. Crawford on 1/30/2019.(ag) (Entered: 01/30/2019)

02/04/2019 204 NOTICE of Appearance by Matthew H. Marmolejo on behalf of Al Otro Lado, Inc. (Marmolejo, Matthew)Attorney Matthew H. Marmolejo added to party Al Otro Lado, Inc.(pty:pla) (Entered: 02/04/2019)

02/06/2019 205 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974-12171447 - paid on 2/6/2019)(Application to be reviewed

by Clerk.)(Fenn, Matthew)(Modified on 2/6/2019 to add receipt information.)(jrd) (Entered: 02/06/2019)

02/07/2019

206 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-12173535.) (Application to be reviewed by Clerk.) (Lev, Ori) (mdc) (Entered: 02/07/2019)

02/07/2019

207 Request to Appear Pro Hac Vice (Filing fee received: $ 206 receipt number 0974-12174176 - See 17cv2355-MMA-KSC, #15.) (Application to be reviewed by Clerk.) (Medlock, Stephen) Modified text on 2/7/2019 to add filing fee info. (mdc) (Entered: 02/07/2019)

02/08/2019 208 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-12179225.) (Application to be reviewed by Clerk.) (Stein, Micah) (mdc) (Entered: 02/08/2019)

02/11/2019

209 NOTICE of Appearance Notice of Substitution of Attorney Katherine J. Shinners for Attorney Genevieve M. Kelly by Katherine J Shinners on behalf of Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen (Shinners, Katherine)Attorney Katherine J Shinners added to party Elaine C. Duke(pty:dft), Attorney Katherine J Shinners added to party Kevin K. McAleenan(pty:dft), Attorney Katherine J Shinners added to party Kirstjen Nielsen(pty:dft), Attorney Katherine J Shinners added to party Todd C. Owen(pty:dft) (Entered: 02/11/2019)

02/14/2019

210 RESPONSE in Opposition re 192 MOTION to Dismiss for Failure to State a Claim filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Abascal, Manuel). (jah). (Entered: 02/14/2019)

02/19/2019

211 ORDER Approving the Pro Hac Vice Application of Matthew E. Fenn, re 205 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 2/13/2019. (All non-registered users served via U.S. Mail Service.) (mdc) (Entered: 02/19/2019)

02/19/2019

212 ORDER Approving the Pro Hac Vice Application of Ori Lev, re 206 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 2/13/2019. (All non-registered users served via U.S. Mail Service.) (mdc) (Entered: 02/19/2019)

02/19/2019

213 ORDER Approving the Pro Hac Vice Application of Stephen M. Medlock, re 207 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 2/13/2019. (All non-registered users served via U.S. Mail Service.) (mdc) (Entered: 02/19/2019)

02/19/2019

214 ORDER Approving the Pro Hac Vice Application of Micah D. Stein, re 208 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 2/13/2019. (All non-registered users served via U.S. Mail Service.) (mdc) (Entered: 02/19/2019)

02/21/2019

215 MOTION for Leave to File Amicus Curiae Brief of the States of California, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington by State of California. (Attachments: # 1 Exhibit States' Amicus Brief)(Zahradka, James)Attorney James Fred Zahradka, II added to party State of California(pty:am) (ag). (Entered: 02/21/2019)

02/21/2019

216 MOTION for Leave to File Brief as Amicus Curiae in Opposition to Defendants' Motion to Dismiss by Amnesty International. (Attachments: # 1 Exhibit Brief of Amicus Curiae Amnesty International in Opposition to Defendants' Motion to Dismiss)(Leader, Susan)Attorney Susan K. Leader added to party Amnesty International(pty:am) (ag). (Entered: 02/21/2019)

02/21/2019 217 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-12226543.) (Application to be reviewed by Clerk.) (Dycus, Jamie) (mdc) (Entered: 02/21/2019)

02/21/2019 218 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-12226568.) (Application to be reviewed by Clerk.) (Hiatt, Alexandra) (mdc) (Entered: 02/21/2019)

02/21/2019

219 MOTION for Leave to File Amicus Brief of Members of Congress in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss the Second Amended Complaint by Members of Congress. (Attachments: # 1 Proposed Amicus Brief)(Benedetto, Matthew)Attorney Matthew Donald Benedetto added to party Members of Congress(pty:am) (ag). (Entered: 02/21/2019)

02/21/2019 220 NOTICE of Appearance by Susan Baker Manning on behalf of Amici Curiae (Manning, Susan)Attorney Susan Baker Manning added to party Amici Curiae(pty:am) (ag). (Entered: 02/21/2019)

02/21/2019

221 MOTION for Leave to File Brief as Amici Curiae by Amici Curiae. (Attachments: # 1 Memo of Points and Authorities Brief of Amici Curiae in Support of Plaintiffs' Opp. to Defendants' Motion to Partially Dismiss the Second Amended Complaint)(Manning, Susan) (ag). (Entered: 02/21/2019)

02/21/2019 222 Amicus Curiae Appearance entered by Michael D Kibler on behalf of Amici Curiae. (Attachments: # 1 Proof of Service)(Kibler, Michael) (ag). (Entered: 02/21/2019)

02/21/2019 223 MOTION for Leave to File An Amicus Curiae Brief by Amici Curiae. (Attachments: # 1 Exhibit Table of Contents of Exhibits, # 2 Exhibit A, # 3 Proof of Service)(Kibler, Michael) (ag). (Entered: 02/21/2019)

02/21/2019

224 NOTICE of Appearance of Amici Curiae Kids in Need of Defense, et al. by Meryl Holt on behalf of Kids in Need of Defense, the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York, Legal Services for Children, Public Counsel, the Young Center for Immigrant Children's Rights at the University of Chicago Law School (Holt, Meryl)Attorney Meryl Holt added to party Kids in Need of Defense(pty:am), Attorney Meryl Holt added to party the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York(pty:am), Attorney Meryl Holt added to party Legal Services for Children(pty:am), Attorney Meryl Holt added to party Public Counsel(pty:am), Attorney Meryl Holt added to party the Young Center for Immigrant Children's Rights at the University of Chicago Law School(pty:am) (ag). (Entered: 02/21/2019)

02/21/2019

225 MOTION for Leave to File / Unopposed Motion of Kids in Need of Defense, et al., to File a Brief as Amici Curiae in Support of Plaintiffs' Opposition to Motion to Dismiss by Kids in Need of Defense, Legal Services for Children, Public Counsel, the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York, the Young Center for Immigrant Children's Rights at the University of Chicago Law School. (Attachments: # 1 Exhibit 1 - Brief of Amici Curiae Kids in Need of Defense, et al. in Support of Plaintiffs' Opposition to Motion to Dismiss)(Holt, Meryl) (ag). (Entered: 02/21/2019)

02/22/2019

226 ORDER Granting 215 , 216 , 219 , 221 , 223 , and 225 Motions for Leave to File an Amicus Curiae Brief. Signed by Judge Cynthia Bashant on 2/22/2019. (All non-registered users served via U.S. Mail Service)(acc) (Entered: 02/22/2019)

02/22/2019

227 Joint MOTION for Expedited Discovery by Al Otro Lado, Inc.. (Attachments: # 1 Declaration of Ori Lev in Support of Joint Motion, # 2 Exhibit 1 - ISO Mot. Expedited Discovery - Phillips Decl. - Final With Attachments, # 3 Exhibit 2 - ISO Mot. Expedited Dicovery Ramos Decl. - Final, # 4 Exhibit 3 - ISO Mot. Expedite Discovery Pinheiro Decl. - Final, # 5 Exhibit 4 - ISO Mot. Expedited Discovery RFPs, # 6 Exhibit 5 - ISO Mot. Expedited Discovery - 30.b.6 Notice, #

7 Exhibit 6 - ISO Mot Expedited Discovery)(Marmolejo, Matthew) (ag). Modified on 3/5/2019 - Corrected motion text. Motion referred (jah). (Entered: 02/22/2019)

02/25/2019

228 RESPONSE in Opposition re 227 Joint MOTION to Expedite Joint Motion Regarding Plaintiff Al Otro Lado Inc.'s Request for Expedited Discovery filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration, # 2 Exhibit A)(Saeed, Sairah) (acc). (Entered: 02/25/2019)

02/26/2019

229 MOTION for Leave to File Excess Pages re Defendants' Forthcoming Reply in Support of their Motion to Dismiss by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander) (acc). (Entered: 02/26/2019)

02/26/2019

230 ORDER granting 229 Motion for Leave to File Excess Pages. Defendants reply brief in support of their partial motion to dismiss the Second Amended Complaint shall not exceed 21 pages. Signed by Judge Cynthia Bashant on 2/26/2019. (sjm) (Entered: 02/26/2019)

02/26/2019

231 REPLY to Response to Motion re 227 Joint MOTION to Expedite Joint Motion Regarding Plaintiff Al Otro Lado Inc.'s Request for Expedited Discovery filed by Al Otro Lado, Inc. (Attachments: # 1 Exhibit A Declaration of Erika Pinheiro)(Marmolejo, Matthew) (acc). (Entered: 02/26/2019)

02/27/2019

232 Order Setting Deadlines as to 227 Plaintiff's "Joint Motion Regarding Plaintiff Al Otro Lado Inc.'s Request for Expedited Discovery." Thus far the Court has only received a response from Defendant opposing the procedural format and timing of the filing of Plaintiff's motion 228 . If Defendant intends to file a brief responding to the substance of Plaintiff's motion, it shall do so no later than 2/28/2019. Any reply brief shall be filed by 3/4/2019. Signed by Magistrate Judge Karen S. Crawford on 2/27/19.(no document attached) (kxb) (Entered: 02/27/2019)

02/28/2019

233 RESPONSE in Opposition re 227 Joint MOTION for Expedited Discovery filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration Sairah G. Saeed, # 2 Declaration Pete R. Acosta, # 3 Exhibit A)(Saeed, Sairah). Modified on 2/28/2019 Edited text (jah). (Entered: 02/28/2019)

02/28/2019

234 ORDER Approving the Pro Hac Vice Application of Jamie Stephen Dycus (Re: Doc. No. 217 Request to Appear Pro Hac Vice). Signed by Judge Cynthia Bashant on 2/26/2019.(All non-registered users served via U.S. Mail Service)(jrd) (Entered: 02/28/2019)

02/28/2019

235 ORDER Approving the Pro Hac Vice Application of Alexandra Hiatt (Re: Doc. No. 218 Request to Appear Pro Hac Vice). Signed by Judge Cynthia Bashant on 2/26/2019.(All non-registered users served via U.S. Mail Service)(jrd) (Entered: 02/28/2019)

03/04/2019

236 REPLY to Response to Motion re 227 Joint MOTION to Expedite Joint Motion for Expedited Discovery filed by Al Otro Lado, Inc.. (Marmolejo, Matthew). Modified on 3/5/2019 - Wrong event. QC Email sent. Corrected entry (jah). (Entered: 03/04/2019)

03/06/2019

237 ORDER denying Plaintiff Al Otro Lado's 227 Ex Parte Motion to Expedite Discovery. This Order is Al Otro Lado's (AOL) request to conduct the discovery on an expedited basis. Court makes no findings regarding whether the requested discovery is appropriate under the standard timing requirements. Signed by Magistrate Judge Karen S. Crawford on 3/6/2019. (jah) (Entered: 03/06/2019)

03/07/2019 238 REPLY to Response to Motion re 192 MOTION to Dismiss for Failure to State a Claim filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). (jah). (Entered: 03/07/2019)

03/08/2019

239 JOINT DISCOVERY PLAN filed by Plaintiffs. (Marmolejo, Matthew). Modified on 3/11/2019 - Wrong event. QC Email sent. Corrected text to match pleading (jah). (Entered: 03/08/2019)

03/12/2019

240 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Due to a conflict involving the Court's calendar, the Case Management Conference ("CMC") set for 3/15/2019 at 10:00 a.m. before Magistrate Judge Karen S. Crawford is continued to 3/22/2019 at 9:30 a.m. Counsel shall appear telephonically. Plaintiffs' counsel shall make arrangements for the conference call and initiate the conference call to the Court's chambers. (no document attached) (kxb) (Entered: 03/12/2019)

03/19/2019

241 Ex Parte Unopposed MOTION for Oral Argument by Al Otro Lado, Inc.. (Attachments: # 1 Declaration of Ori Lev)(Marmolejo, Matthew). (jah). (Entered: 03/19/2019)

03/19/2019

242 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Due to a conflict involving the Court's calendar, the Case Management Conference ("CMC") on 3/22/19 is moved from 9:30 a.m. to 11:00 a.m. Counsel shall appear telephonically. Plaintiffs' counsel shall make arrangements for the conference call and initiate the conference call to the Court's chambers.(no document attached) (kxb) (Entered: 03/19/2019)

03/20/2019

243 Supplemental JOINT DISCOVERY PLAN re 239 Report of Rule 26(f) Planning Meeting by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe (Marmolejo, Matthew). Modified on 3/21/2019 Removed duplicate added text (jah). (Entered: 03/20/2019)

03/25/2019

244 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Case Management Conference held on 3/22/2019.(Plaintiff Attorneys Ori Lev, Matthew Marmelejo, Stephen Medlock, Sarah Rich, Rebecca Cassler, Karolina Walters, & Angelo Guisado). (Defendant Attorney Gisela Westwater, Sophie Kaiser, Alexander Halaska & Siarah Saeed). (no document attached) (kxb) (Entered: 03/25/2019)

03/26/2019

245 ORDER granting Plaintiffs' 241 Unopposed Ex Parte Motion for Oral Argument re 192 Motion to Dismiss for Failure to State a Claim. Oral Argument set for 5/10/2019 10:00 AM in Courtroom 4B before Judge Cynthia Bashant. Signed by Judge Cynthia Bashant on 3/26/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 03/26/2019)

03/26/2019

246 Order Following Case Management Conference. Case Management Conference was held on 3/22/2019. Defendant shall produce organizational charts for DHS and CBP by 3/29/2019. The parties shall file a joint motion for protective order and order regarding ESI by 4/12/2019. Deadline to file motion to add new parties is 4/15/2019. Telephonic Status Conference set for 6/7/2019 11:00 AM before Magistrate Judge Karen S. Crawford. Joint Status Conference Statement shall be lodged with Court's Chambers by 5/31/2019. Early Neutral Evaluation set for 8/5/2019 09:30 AM before Magistrate Judge Karen S. Crawford. Deadline for filing of plaintiff's motion for class certification is 11/11/2019. Signed by Magistrate Judge Karen S. Crawford on 3/26/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 03/26/2019)

04/08/2019

247 *** WITHDRAWN BY FILER PER NOTICE OF WITHDRAWAL OF DOCUMENT 249 *** Ex Parte MOTION for Protective Order Regarding Defendants' Time to Respond to Plaintiffs' Second RFPs by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Gisela A. Westwater, # 2 Exhibit 1 - Letter from Stephen M. Medlock to Gisela A. Westwater (Feb. 19, 2019), # 3 Exhibit 2 - Pls.' Second Set of RFPs to All Defendants, # 4 Exhibit 3 Emails Between Alexander J. Halaska, Matthew M. Marmolejo, and Stephen M. Medlock (Mar. 20-Apr. 8, 2019), # 5 Exhibit 4 - Email from Stephen M. Medlock to Alexander J. Halaska (Apr. 8,

2019))(Halaska, Alexander). (jah). Modified on 4/11/2019 - Motion and judge association termed (jah). (Entered: 04/08/2019)

04/09/2019

248 RESPONSE in Opposition re 247 Ex Parte MOTION for Protective Order Regarding Defendants' Time to Respond to Plaintiffs' Second RFPs filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Marmolejo, Matthew). (jah). (Entered: 04/09/2019)

04/10/2019

249 NOTICE OF WITHDRAWAL OF DOCUMENT by Kevin K. McAleenan, Todd C. Owen, Kirstjen Nielsen re 247 Ex Parte MOTION for Protective Order Regarding Defendants' Time to Respond to Plaintiffs' Second RFPs filed by Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. (Halaska, Alexander). (jah). (Entered: 04/10/2019)

04/11/2019

250 ORDER denying Defendants' 247 Ex Parte Motion for Protective Order Regarding Defendants' Responses to Plaintiffs' Second Request for Production. Although defendants' request for an extension of time is now moot, Court is compelled to address Defendants' flagrant violation of the Federal Rule of Civil Procedure, Civil Local Rules and the undersigned's Chambers Rules. Court cautions counsel, that any further deviance from the Chambers Rules, Civil Local Rules or Federal Rules of Civil Procedure will likely result in the offending motion or brief being rejected for filing and the possible imposition of sanctions. Signed by Magistrate Judge Karen S. Crawford on 4/11/2019. (All nonregistered users served via U.S. Mail Service) (jah) (Entered: 04/11/2019)

04/12/2019

251 Joint MOTION for Protective Order and ESI Order by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Ori Lev, # 2 Exhibit A to Declaration of Ori Lev, # 3 Exhibit B to Declaration of Ori Lev, # 4 Exhibit C to Declaration of Ori Lev, # 5 Exhibit D to Declaration of Ori Lev, # 6 Exhibit E to Declaration of Ori Lev, # 7 Exhibit F to Declaration of Ori Lev, # 8 Exhibit G to Declaration of Ori Lev, # 9 Exhibit H to Declaration of Ori Lev, # 10 Declaration of Gisela A. Westwater)(Marmolejo, Matthew). (jah). (Entered: 04/12/2019)

04/16/2019

252 MOTION to Substitute Attorney by Al Otro Lado, Inc. (Abascal, Manuel). Modified on 4/17/2019 - Wrong event, should be Motion. QC Email sent. Changed to Motion (jah). (Entered: 04/16/2019)

04/18/2019

253 ORDER denying Plaintiff Al Otro Lado, Inc.'s 252 Motion to Substitute Attorney. Court finds that the present motion is not proper as to the listed attorneys. Court denies the motion without prejudice to Plaintiff refiling a proper motion that cures the deficiency. Signed by Judge Cynthia Bashant on 4/18/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 04/19/2019)

04/24/2019 254 Amended MOTION to Substitute Attorney by Al Otro Lado, Inc.. (Abascal, Manuel). (jah). (Entered: 04/24/2019)

04/25/2019

255 ORDER granting 254 Motion to Substitute Attorney. Attorney Matthew H. Marmolejo substituted as counsel of record for Plaintiff Al Otro Lado, Inc. (AOL). Attorneys Robin Kelley, Michaela R. Laird, Faraz R. Mohammadi, Manuel A. Abascal and Wayne S Flick are terminated as counsel for Plaintiff AOL. This does not affect their appearance as counsel of record for any other Plaintiff. Signed by Judge Cynthia Bashant on 4/25/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 04/25/2019)

05/01/2019

256 ORDER Requesting Redline re 189 Second Amended Complaint, filed by Emiliana Doe, Maria Doe, Bianca Doe, Dinora Doe, Abigail Doe, Cesar Doe, Victoria Doe, Ingrid Doe, Al Otro Lado, Inc., Beatrice Doe, Carolina Doe, Roberto Doe, Juan Doe, Ursula Doe. Plaintiffs are ordered to file a redline of the Second Amended Complaint relative to the original complaint by 5/3/2019. Signed by Judge Cynthia Bashant on 5/1/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 05/01/2019)

05/03/2019

257 NOTICE of Filing of Redline of Second Amended Complaint by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 189 Amended Complaint, (Attachments: # 1 Exhibit A)(Marmolejo, Matthew). (jah). (Entered: 05/03/2019)

05/10/2019

258 NOTICE of Appearance by Matthew H. Marmolejo on behalf of Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe (Marmolejo, Matthew). (jah). (Entered: 05/10/2019)

05/10/2019

259 Minute Entry for proceedings held before Judge Cynthia Bashant: Motion Hearing held on 5/10/2019 re 251 Joint MOTION for Protective Order and ESI Order filed and 192 MOTION to Dismiss for Failure to State a Claim. Motion submitted. Court to issue order.(Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Matthew Marmolejo, Baher Azmy, Melissa Crow, Sarah Rich and Rebecca Cassler).

(Defendant Attorney Gisela Westwater and Alexader Halaksa). (no document attached) (sxm) (Entered: 05/10/2019)

05/20/2019

260 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 5/10/2019 before Judge Cynthia Bashant. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 6/10/2019. Redacted Transcript Deadline set for 6/20/2019. Release of Transcript Restriction set for 8/19/2019. (All non-registered users served via U.S. Mail Service. Notice of electronic filing only.) (akr) (Entered: 05/20/2019)

05/24/2019

261 MOTION to Withdraw as Attorney of Record for Defendants by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration Declaration of Counsel)(Davila, Yamileth) (sjm). (Entered: 05/24/2019)

05/24/2019

262 MOTION to Withdraw as Attorney by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Faraz Mohammadi)(Abascal, Manuel) (sjm). (Entered: 05/24/2019)

05/24/2019

263 Joint MOTION for Determination of Discovery Dispute by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Ori Lev, # 2 Exhibit 1 to Lev Declaration, # 3 Declaration of Gisela A. Westwater, # 4 Exhibit 1 to Westwater Declaration, # 5 Exhibit 2 to Westwater Declaration, # 6 Exhibit 3 to Westwater Declaration, # 7 Exhibit 4 to Westwater Declaration, # 8 Exhibit 5 to Westwater Declaration, # 9 Exhibit 6 to Westwater Declaration)(Marmolejo, Matthew) (sjm). (Entered: 05/24/2019)

05/28/2019

264 ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY OF RECORD re 261 Motion to Withdraw as Attorney. Attorney Yamileth G. Davila terminated. Signed by Judge Cynthia Bashant on 5/28/2019. (All non-registered users served via U.S. Mail Service)(sjm) (Entered: 05/28/2019)

05/28/2019

265 ORDER granting 262 Motion to Withdraw as Attorney. Attorney Robin Kelley; Faraz R. Mohammadi; Manuel A. Abascal and Wayne S Flick and Michaela R. Waird of Latham & Watkins LLP as counsel of record for all Individual Plaintiffs terminated. Signed by Judge Cynthia Bashant on 5/28/2019. (All non-registered users served via U.S. Mail Service)(sjm) (Entered: 05/28/2019)

05/31/2019 266 Joint STATUS REPORT by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). (jah). (Entered: 05/31/2019)

06/07/2019

267 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held on 6/7/2019.(Plaintiff Attorney Matthew Marmolejo, Stephen Medlock, Melissa Crow, Karolina Walters, Angelo Guisado & Ori Levi). (Defendant Attorney Katherine Shinners & Alexander Halaska). (no document attached) (kxb) (Entered: 06/07/2019)

06/07/2019

268 Joint MOTION to Strike Exhibits 5 and 6 of Gisela Westwater Declaration by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Ori Lev, # 2 Declaration of Gisela Westwater)(Marmolejo, Matthew). Modified on 6/10/2019 Wrong event. QC Email sent. Corrected event and text (jah). (Entered: 06/07/2019)

06/07/2019

269 ORDER Following Status Conference. Telephonic Status Conference was held on 6/7/2019. As discussed with counsel, Court is concerned with the pace of defendants' engagement in discovery, including specifically document production. Telephonic Status Conference set for 7/12/2019 11:30 AM before Magistrate Judge Karen S. Crawford. Signed by Magistrate Judge Karen S. Crawford on 6/7/2019. (All nonregistered users served via U.S. Mail Service) (jah) (Entered: 06/10/2019)

06/27/2019

270 Unopposed MOTION to Allow Remote Docket Access by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Marmolejo, Matthew). (jah). (Entered: 06/27/2019)

06/28/2019

271 ORDER granting Plaintiffs' 270 Motion to Authorize General Public Access to the Electronic Docket. The Clerk shall remove any restrictions that impede the ability of the general public to electronically access the docket in this case, including any restrictions imposed under FRCP 5.2(c) as a result of Plaintiffs' initial designation as an immigration case. Court advises the parties that filings made after this

Order will not be subject to the electronic access restriction. The Court's staff is working on ensuring that filings made before the issuance of this Order are electronically accessible to the general public. Nothing has prohibited or prohibits counsel from disseminating to the general public any filings not otherwise under seal. Signed by Judge Cynthia Bashant on 6/28/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 06/28/2019)

07/02/2019

272 ORDER granting 251 Joint Motion for Entry of ESI and Protective Order. The parties shall lodge by email with Chambers a stipulated ESI Order and stipulated Protective Order by 7/12/2019. The proposed Orders shall be in a word-processing editable format (Word or Wordperfect). Signed by Magistrate Judge Karen S. Crawford on 7/2/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 07/02/2019)

07/08/2019

273 NOTICE of Change of Address by Matthew H. Marmolejo (Marmolejo, Matthew). Modified on 7/9/2019 - Notice is for different atty, not filer. QC Email sent for Atty Crow to update address on docket per ECF 1.f (jah). (Entered: 07/08/2019)

07/12/2019 274 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held on 7/12/2019.(no document attached) (kxb) (Entered: 07/12/2019)

07/12/2019

275 ORDER Following Status Conference and Resetting Early Neutral Evaluation Conference. Telephonic Status Conference was held on 7/12/2019. Early Neutral Evaluation set for 8/5/2019 is continued to 9/6/2019 09:30 AM before Magistrate Judge Karen S. Crawford. At the conclusion of the ENE, Court will conduct a Status Conference. Prior to the ENE and Status Conference and by 8/30/2019, the parties shall file a joint motion in which they propose an amended schedule for filing plaintiff's motion for class certification and related discovery deadlines. The parties shall lodge a Joint Status Conference Statement with Chambers by 8/30/2019. The parties shall submit confidential ENE statements of 5 pages or less by 8/30/2019. Signed by Magistrate Judge Karen S. Crawford on 7/12/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 07/15/2019)

07/18/2019 276 PROTECTIVE ORDER. Signed by Magistrate Judge Karen S. Crawford on 7/18/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 07/18/2019)

07/18/2019

277 ORDER Governing Discovery of Electronically Stored Information (ESI). After conferring on the matters, the Parties proposed to the Court terms, which are adopted and entered as the Order governing production of electronic discovery. Signed by Magistrate Judge Karen

S. Crawford on 7/18/2019. (All non-registered users served via U.S. Mail Service) (jah) (Main Document 277 replaced on 7/18/2019). Modified on 7/18/2019 - Wrong pdf attached. Corrected image and regenerated NEF (jah). (Entered: 07/18/2019)

07/29/2019

278 ORDER granting in part and denying in part Defendants' 192 Motion to Dismiss for Failure to State a Claim. Court grants Defendants' motion as follows: 1.) Court dismisses without leave to amend the Section 706(1) claims of the New Individual Plaintiffs for alleged failures to take agency action required by 8 USC 1225(b)(2)(A) and 2.) Court dismisses with prejudice Organizational Plaintiff Al Otro Lado's Alien Tort Statute (ATS) claim for lack of subject matter jurisdiction. Court otherwise denies Defendants' motion to dismisss the Second Amended Complaint. Defendants shall answer to the Second Amended Complaint by 8/16/2019. Signed by Judge Cynthia Bashant on 7/29/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 07/29/2019)

08/01/2019

279 ORDER: Denying Joint Motion for Determination of Discovery Dispute [Doc. No. 263 ]; Denying Joint Motion to Strike Exhibits 5 & 6 of Westwater Declaration [Doc. No. 268 ]; & Directing Counsel to Further Meet and Confer. Signed by Magistrate Judge Karen S. Crawford on 8/1/2019. (All non-registered users served via U.S. Mail Service)(jrm) (jao). (Entered: 08/01/2019)

08/02/2019

280 AMENDED ORDER granting in part and denying in part Defendants' 192 Motion to Dismiss for Failure to State a Claim. Court grants Defendants' motion as follows: 1.) Court dismisses without leave to amend the Section 706(1) claims of the New Individual Plaintiffs for alleged failures to take agency action required by 8 USC 1225(b)(2)(A) and 2.) Court dismisses with prejudice Organizational Plaintiff Al Otro Lado's Alien Tort Statute (ATS) claim for lack of subject matter jurisdiction. Court otherwise denies Defendants' motion to dismisss the Second Amended Complaint. Defendants shall answer to the Second Amended Complaint by 8/16/2019. The Court withdraws the previously docketed 7/29/2019 order (ECF No. 278 ) and replaces it with this Amended Order. Because the Amended Order is substantively the same, the Court does not alter any deadlines. Signed by Judge Cynthia Bashant on 8/2/2019.(jrm) (jao). (Entered: 08/02/2019)

08/15/2019

281 MOTION to Withdraw as Attorney by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Micah D. Stein in Support)(Marmolejo, Matthew). (jah). (Entered: 08/15/2019)

08/15/2019

282 ORDER granting 281 Motion to Withdraw as Attorney. Court approves then withdrawal. Attorney Micah D. Stein withdrawn as counsel of record for the Plaintiffs. Signed by Judge Cynthia Bashant on 8/15/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 08/16/2019)

08/16/2019

283 ANSWER to 189 Second Amended Complaint, by Kevin K. McAleenan, Todd C. Owen, Kirstjen Nielsen. (Attachments: # 1 Exhibit 1 - Memorandum from Todd C. Owen (Apr. 27, 2018))(Halaska, Alexander). (jah). (Entered: 08/16/2019)

08/30/2019

284 Joint MOTION to Compel Defendants' Timely Production of Documents by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Declaration of Katherine J. Shinners, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Medlock, Stephen). (jah). (Entered: 08/30/2019)

08/30/2019

285 Joint MOTION for Entry of Scheduling Order by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen). (jah). (Entered: 08/30/2019)

09/05/2019

286 Joint MOTION to Compel Limited Class-Wide Discovery by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Declaration of Katherine J. Shinners)(Medlock, Stephen). (jah). (Entered: 09/05/2019)

09/09/2019

287 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Early Neutral Evaluation Conference held on 9/6/2019.(Plaintiff Attorneys Steve Medlock, Ori Lev, Matthew Fenn, Melissa Crow, Baher Azmy, Angelo Guisado, Erika Pinheiro, Nicole Ramos & Nora Phillips). (Defendant Attorneys Katherine Shinners & Alexander Halaska). (no document attached) (kxb) (Entered: 09/09/2019)

09/09/2019

288 ORDER granting 284 Joint Motion to Compel Defendant's Production of Documents; granting 285 Joint Motion for Entry of Scheduling Order. Defendant shall produce all responsive, non-privileged document from custodians Randy Howe, Todd Hoffman, Todd Owen, Carlos Rodrigues, and Sidney Aki by 10/8/2019. Defendant shall produce all responsive, non-privileged documents from all agreed-upon

non-custodial sources by 10/23/2019. Defendant shall produce all responsive, non-privileged documents from all remaining agreed-upon or Court-ordered custodians by 11/19/2019. Defendant shall produce any privilege log for documents responsive to plaintiff's First and Second Sets of Requests for Production by 12/20;2019. The deadline for the filing of plaintiff's motion for class certification is 1/14/2020. Signed by Magistrate Judge Karen S. Crawford on 9/9/2019. (All nonregistered users served via U.S. Mail Service)(jah) (Entered: 09/10/2019)

09/10/2019

289 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: A telephonic Status Conference is set for October 8, 2019, at 1:30 p.m.Plaintiffs' counsel shall make arrangements for the conference call and either initiate the conference call to the Court's chambers or provide the Court with call-in instructions. A Joint Status Conference Statement shall be lodged with the Courts chambers by October 4, 2019. The Joint Status Conference Statement can be lodged via email at efile_crawford@casd.uscourts.gov.(no document attached) (kxb) (Entered: 09/10/2019)

09/26/2019 290 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (aef). (Entered: 09/26/2019)

09/26/2019

291 NOTICE of Intent to Respond by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen re 290 MOTION to File Documents Under Seal (Attachments: # 1 Declaration of Alexander J. Halaska (Sept. 26, 2019))(Halaska, Alexander). Modified on 9/27/2019 - Edited text (jah). (Entered: 09/26/2019)

09/26/2019

292 SEALED LODGED Proposed Document re: 290 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (aef). (Entered: 09/26/2019)

09/26/2019

293 Redacted MOTION to Provisionally Certify Class by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities (Redacted), # 2 Declaration of Stephen M. Medlock, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3 (Filed Under Seal), # 6 Exhibit 4 (Filed Under Seal), # 7 Exhibit 5 (Filed Under Seal), # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29

Exhibit 27 (Filed Under Seal), # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46)(Medlock, Stephen). Modified on 9/27/2019 - Edited text (jah). (Entered: 09/26/2019)

09/26/2019

294 Redacted MOTION for Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities (Redacted), # 2 Declaration of Melissa Crow, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41 (Filed Under Seal), # 44 Exhibit 42 (Filed Under Seal), # 45 Exhibit 43 (Filed Under Seal), # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49)(Medlock, Stephen). (jah). (Entered: 09/26/2019)

09/26/2019

295 Ex Parte MOTION to Shorten Time Regarding Plaintiffs' Motions for Preliminary Injunction and Provisional Class Certification by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen). (jah). (Entered: 09/26/2019)

09/26/2019

296 NOTICE of Error by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen re 291 Notice (Other) (Attachments: # 1 Declaration of Alexander J. Halaska (Sept. 26, 2019) (Corrected))(Halaska, Alexander). (jah). (Entered: 09/26/2019)

09/27/2019

297 RESPONSE in Support re 290 MOTION to File Documents Under Seal filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Randy Howe (Sept. 26, 2019), # 2 Declaration of Rodney H. Harris (Sept. 26, 2019))(Halaska, Alexander). (jah). (Entered: 09/27/2019)

09/27/2019

298 RESPONSE in Opposition re 295 Ex Parte MOTION to Shorten Time Regarding Plaintiffs' Motions for Preliminary Injunction and Provisional Class Certification filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Halaska, Alexander). (jah). (Entered: 09/27/2019)

09/30/2019

299 ORDER granting in part Plaintiffs' 295 Ex Parte Motion to Shorten Time Regarding Plaintiffs Motion for Preliminary Injunction and Motion for Provisional Class Certification.. Reply remains due by 10/21/2019. Signed by Judge Cynthia Bashant on 9/30/2019. (All nonregistered users served via U.S. Mail Service)(jah) (Entered: 09/30/2019)

10/02/2019

300 Unopposed MOTION for Leave to Lodge Supplemental Evidence by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A)(Medlock, Stephen). (jah). (Entered: 10/02/2019)

10/03/2019

301 ORDER granting Plaintiffs' 300 Unopposed Motion for Leave to Lodge Supplemental Evidence. Plaintiffs supplemental evidence shall be consideredevidence in support of 294 Redacted Motion for Preliminary Injunction. Signed by Judge Cynthia Bashant on 10/3/2019. (All nonregistered users served via U.S. Mail Service) (jah) (Entered: 10/03/2019)

10/03/2019

302 Joint MOTION to Partially Modify September 9, 2019 Order re 288 Order on Motion to Compel, Order on Motion for Miscellaneous Relief by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit (1) Falk Declaration, # 3 Exhibit (2) Active Learning Protocol)(Shinners, Katherine). (jah). (Entered: 10/03/2019)

10/08/2019

303 Minute Order. for proceedings held before Magistrate Judge Karen S. Crawford: Telephonic Status Conference held. With good cause appearing, the parties Joint Motion to Partially Modify the September 9, 2019 Order [Doc. No. 302] is GRANTED. Defendants shall produce all responsive, non-privileged documents from custodians Randy Howe, Todd Hoffman, Todd Owen, Carlos Rodriguez, and Sidney Aki by October 25, 2019. A telephonic Status Conference is set for November 15, 2019, at 11:00 a.m. Plaintiffs' counsel shall make arrangements for the conference call and either initiate the conference call to the Court's chambers or provide the Court with call-in instructions. A Joint Status Conference Statement shall be lodged with the Courts chambers by November 8, 2019. The Joint Status

Conference Statement can be lodged via email at efile_crawford@casd.uscourts.gov. (Plaintiff Attorney Matthew Marmolejo, Stephen Medlock, Rebecca Cassler, Karolina Walters, & Angelo Guisado).(Defendant Attorney Katherine Shinners, Alexander Halaska & Sairah Saeed). (no document attached) (kxb) (Entered: 10/08/2019)

10/09/2019

304 ORDER Re: 286 Joint Motion Regarding Plaintiffs' Request to Compel Limited Class-Wide Discovery. Plaintiffs' Motion is granted. Counsel are to promptly meet and confer regarding the timeframe for defendants' production of documents from the custodians for the El Paso, Brownsville, Nogales and Calexico ports of entry (POEs) and to jointly submit a proposed schedule for Court's approval by 10/30/2019. Signed by Magistrate Judge Karen S. Crawford on 10/9/2019. (All nonregistered users served via U.S. Mail Service) (jah) (Entered: 10/10/2019)

10/10/2019 305 MOTION to File Documents Under Seal (With attachments)(Halaska, Alexander) (rmc). (Entered: 10/10/2019)

10/10/2019

306 SEALED LODGED Proposed Document re: 305 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Halaska, Alexander) (rmc). (Entered: 10/10/2019)

10/10/2019

307 Redacted RESPONSE in Opposition re 294 Redacted MOTION for Preliminary Injunction filed by Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Alexander J. Halaska (Oct. 10, 2019), # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Halaska, Alexander). Modified on 10/11/2019 Edited to reflect as redacted (jah). (Entered: 10/10/2019)

10/15/2019

308 RESPONSE in Opposition re 293 Redacted MOTION to Provisionally Certify Class filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24)(Shinners, Katherine). (jah). (Entered: 10/15/2019)

10/16/2019

309 Joint MOTION for Leave to File Reply in Excess Page Limit re 294 Redacted Motion for Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe,

Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memorandum of Points and Authorities)(Medlock, Stephen). Modified on 10/17/2019 - Edited docket entry and added document link (jah). (Entered: 10/16/2019)

10/17/2019

310 ORDER granting Plaintiffs' 309 Unopposed Motion for Leave to File Reply in Excess Page Limit. Plaintiffs may file a reply brief in support their Motion for Preliminary Injunction not to exceed 13 pages. Signed by Judge Cynthia Bashant on 10/17/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 10/17/2019)

10/17/2019 311 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (rmc). (Entered: 10/17/2019)

10/17/2019

312 SEALED LODGED Proposed Document re: 311 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (rmc). (Entered: 10/17/2019)

10/17/2019

313 Redacted REPLY to Response to Motion re 294 Redacted MOTION for Preliminary Injunction filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Medlock, Stephen). Modified on 10/21/2019 - Wrong event. QC Email sent. Corrected entry (jah). (Entered: 10/17/2019)

10/21/2019 314 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (dlg). (Entered: 10/21/2019)

10/21/2019

315 SEALED LODGED Proposed Document re: 314 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (dlg). (Entered: 10/21/2019)

10/21/2019

316 Redacted REPLY to Response to Motion re 293 Redacted MOTION to Provisionally Certify Class filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Medlock, Stephen). (jah). (Entered: 10/21/2019)

10/23/2019 317 ORDER Setting Oral Argument re 294 . Motion Hearing set for 11/5/2019 10:00 AM in Courtroom 4B before Judge Cynthia Bashant.

Any request to continue oral argument shall be made at least 7 days in advance of the hearing and preferably be made as a joint request.Signed by Judge Cynthia Bashant on 10/23/2019.(All non-registered users served via U.S. Mail Service)(mme) (Entered: 10/23/2019)

10/25/2019

318 MOTION to Withdraw as Attorney Mary Bauer by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen). (jah). (Entered: 10/25/2019)

10/30/2019

319 Joint Proposed Schedule Regarding Defendants' Additional Custodians re 304 Order on Motion to Compel by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Shinners, Katherine). Modified on 10/31/2019 - Pdf is not a Motion. QC Email sent. Motion and judge association termed (jah) (Entered: 10/30/2019)

10/31/2019

320 ORDER: The Court adopts and enters as an Order, the deadlines and conditions set forth in the Jointly Proposed Schedule regarding Defendants Additional Custodians. [Doc. No. 319.] Signed by Magistrate Judge Karen S. Crawford on 10/31/2019.(no document attached) (kxb) (Entered: 10/31/2019)

11/01/2019

321 NOTICE of Appearance by Scott Grant Stewart on behalf of Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen (Stewart, Scott)Attorney Scott Grant Stewart added to party Kevin K. McAleenan(pty:dft), Attorney Scott Grant Stewart added to party Kirstjen Nielsen(pty:dft), Attorney Scott Grant Stewart added to party Todd C. Owen(pty:dft) (Entered: 11/01/2019)

11/05/2019

322 Minute Entry for proceedings held before Judge Cynthia Bashant: Motion Hearing held on 11/5/2019 re 294 Redacted MOTION for Preliminary Injunction and 293 Redacted MOTION to Provisionally Certify Class. Motions submitted. Court to issue order. (Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Baher Azmy, Melissa Crow, Stephen Medlock and Rebecca Cassler). (Defendant Attorney Scott Stewart and Alexander Halaska). (no document attached) (sxm) (Entered: 11/05/2019)

11/05/2019

323 ORDER granting 318 Motion to Withdraw as Attorney. Attorney Mary Catherine Bauer terminated as counsel of record for Plaintiffs. Signed by Judge Cynthia Bashant on 11/5/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 11/05/2019)

11/12/2019 324 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Due to a conflict involving the Court's calendar, the Status

Conference set for 11/15/2019 at 11:30 a.m. is continued to 2:00 p.m. (no document attached) (kxb) (Entered: 11/12/2019)

11/13/2019

325 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: The telephonic Status Conference on 11/15/2019 is moved from 2:00 p.m. to 10:30 a.m. (no document attached) (kxb) (Entered: 11/13/2019)

11/14/2019

326 Joint MOTION to Partially Modify September 9, 2019 Order re 288 Order on Motion to Compel,,,, Order on Motion for Miscellaneous Relief,,, (unopposed) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit Cole Declaration)(Shinners, Katherine) (Entered: 11/14/2019)

11/15/2019

327 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held on 11/15/2019. Further Status Conference set for 12/12/2019 at 1:00 p.m. before Magistrate Judge Karen S. Crawford. Plaintiff's counsel shall make necessary arrangements for the conference call. (Plaintiff Attorney Steve Medlock, Sarah Rich, Karolina Walters, & Angelo Guisado, Erika Pinheiro, Nicole Ramos & Nora Phillips). (Defendant Attorney Katherine Shinners, Alexander Halaska, Sairah Saeed & David White). (no document attached) (kxb) (Entered: 11/15/2019)

11/15/2019

328 ORDER granting [Doc. No. 326], Joint Motion to Partially Modify Doc. No. 288, Order on Motion to Compel, entered 9/9/2019. Signed by Magistrate Judge Karen S. Crawford on 11/15/2019. (no document attached) (kxb) (Entered: 11/15/2019)

11/18/2019

329 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 11/5/2019 before Judge Cynthia Bashant. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 12/9/2019. Redacted Transcript Deadline set for 12/19/2019. Release of Transcript Restriction set for 2/18/2020. (akr) (Entered: 11/18/2019)

11/19/2019

330 ORDER granting Plaintiffs' 293 Motion for Provisional Class Certification; granting Plaintiffs' 294 Motion for Preliminary Injunction. Court provisionally certifies a class consisting of "all non-

Mexican asylum-seekers who were unable to make a direct asylum claim at a U.S. Port of Entry (POE) before 7/16/2019 because of the U.S. Governments metering policy, and who continue to seek access to the U.S. asylum process". Court grants Plaintiffs' 294 Motion for Preliminary Injunction and orders that Defendants are enjoined from applying the Asylum Ban to members of the aforementioned provisionally certified class and ordered to return to the pre-Asylum Ban practices for processing the asylum applications of members of the certified class. Signed by Judge Cynthia Bashant on 11/19/2019. ( All non-registered users served via U.S. Mail Service) (jah) (Entered: 11/19/2019)

11/19/2019

331 NOTICE of Appearance by Ari Nazarov on behalf of Kevin K. McAleenan (Attachments: # 1 Proof of Service)(Nazarov, Ari).Attorney Ari Nazarov added to party Kevin K. McAleenan (pty:dft). Modified on 11/20/2019 - Edited text (jah). (Entered: 11/19/2019)

11/21/2019

332 ORDER Denying Without Prejudice Motions to Seal ( 290 , 305 , 311 , 314 ). Signed by Judge Cynthia Bashant on 11/21/19. (All nonregistered users served via U.S. Mail Service)(dlg) (Entered: 11/21/2019)

12/03/2019

333 Joint MOTION to Extend Defendants' Deadline to Complete Document Production from Custodian Higgerson by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners)(Shinners, Katherine)(jrm). (Entered: 12/03/2019)

12/04/2019

334 Due to technical difficulties, defendants have requested a brief extension of time from 12/3/2019 to 12/20/19 to complete the production of the remaining responsive, non-privileged documents from Custodian Higgins. [Doc. 333, at pp. 2-5.] Plaintiffs have not taken any position on this request. [Doc. No. 333, at p. 5.] Defendants' request is GRANTED. [Doc. No. 333.] Signed by Magistrate Judge Karen S. Crawford on 12/4/2019. (no document attached) (plh) (Entered: 12/04/2019)

12/04/2019

335 NOTICE OF APPEAL to the 9th Circuit as to 330 Order by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. Fee Waived. (Notice of Appeal electronically transmitted to the US Court of Appeals.) (Shinners, Katherine). (Modified on 12/4/2019: Edited docket text re linked Order.) (akr). (Entered: 12/04/2019)

12/04/2019

336 Emergency MOTION to Stay re 330 Order on Motion to Certify Class Order on Motion for Preliminary Injunction, by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1

Memo of Points and Authorities)(Shinners, Katherine). (jah). **QC Mailer sent on 3/16/2020 to withdraw motion per chambers (jmo). (Entered: 12/04/2019)

12/04/2019

337 Ex Parte MOTION for Expedited Briefing Schedule Regarding Defendants' 336 Motion to Stay by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Counsel)(Shinners, Katherine). Modified on 12/5/2019 Edited text (jah). (Entered: 12/04/2019)

12/05/2019 338 USCA Case Number 19-56417 for 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. (akr) (Entered: 12/05/2019)

12/05/2019

339 RESPONSE in Opposition re 337 Ex Parte MOTION for Expedited Briefing Schedule Regarding Defendants' 336 Motion to Stay filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Matthew H. Marmolejo)(Marmolejo, Matthew). (jah). (Entered: 12/05/2019)

12/05/2019 340 Amended MOTION to File Documents Under Seal (With attachments)(Saeed, Sairah) (aef). (Entered: 12/05/2019)

12/05/2019

341 NOTICE of Compliance with the Courts Order by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 332 Order on Motion to File Documents Under Seal, (Attachments: # 1 Exhibit A)(Medlock, Stephen). (jah). (Entered: 12/05/2019)

12/06/2019 342 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (Entered: 12/06/2019)

12/06/2019

343 SEALED LODGED Proposed Document re: 342 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (Entered: 12/06/2019)

12/06/2019

344 MOTION for Temporary Restraining Order (Redacted) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities (Redacted), # 2 Declaration of Melissa Crow, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit

8, # 11 Exhibit 9, # 12 Exhibit 10)(Medlock, Stephen) (Entered: 12/06/2019)

12/06/2019

345 Ex Parte MOTION to Shorten Time for their Motion for Temporary Restraining Order Prohibiting Application of Asylum Cooperative Agreement Rule to Provisional Class Members by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (Entered: 12/06/2019)

12/06/2019

347 ORDER denying Defendants' 337 Ex Parte Motion for Expedited Briefing Schedule Regarding Defendants' 336 Motion to Stay. Court sets hearing on the Motion to Stay for 1/3/2020. The hearing date is solely for the purpose of setting the briefing schedule. The schedule for filing the Opposition and Reply must comply with Civil Local Rule 7.1(e). Signed by Judge Cynthia Bashant on 12/6/2019. (All nonregistered users served via U.S. Mail Service) (jah) (Entered: 12/09/2019)

12/09/2019

346 NOTICE of Docketing Error: Exhibits to Plaintiffs' Motion for Temporary Restraining Order by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 344 MOTION for Temporary Restraining Order (Redacted) (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21)(Medlock, Stephen). (jah). (Entered: 12/09/2019)

12/09/2019

348 ORDER of USCA as to 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. The appeal filed December 4, 2019 is a preliminary injunction appeal. Accordingly, Ninth Circuit Rule 3-3 shall apply. Time schedule issued. No streamlined extensions of time will be approved. Any request for an extension of time to file a brief must be made by written motion under Ninth Circuit Rule 31-2.2(b). Failure to file timely the opening brief shall result in the automatic dismissal of this appeal by the Clerk for failure to prosecute. (akr) (Entered: 12/09/2019)

12/10/2019

349 RESPONSE in Opposition re 345 Ex Parte MOTION to Shorten Time for Briefing Schedule filed by Kevin K. McAleenan, Todd C. Owen. (Halaska, Alexander). Modified on 12/11/2019 - Edited text to match pleading (jah). (Entered: 12/10/2019)

12/11/2019 350 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (Entered: 12/11/2019)

12/11/2019

351 SEALED LODGED Proposed Document re: 350 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (dlg). (Entered: 12/11/2019)

12/11/2019

352 MOTION to Certify Class (Redacted Plaintiffs' Notice of Motion and Motion for Provisional Class Certification) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities (Redacted), # 2 Declaration of Stephen M. Medlock, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11)(Medlock, Stephen) (Entered: 12/11/2019)

12/11/2019

353 ORDER granting Plaintiffs' 345 Ex Parte Motion to Shorten Briefing Schedule re 344 Motion for Temporary Restraining Order. Defendants' Opposition due by 12/17/2019. Plaintiffs' reply due by 12/20/2019. Signed by Judge Cynthia Bashant on 12/11/2019. (All non-registered users served via U.S. Mail Service) (jah) (Entered: 12/12/2019)

12/12/2019 354 NOTICE of Filing with the Ninth Circuit Court of Appeals by Kevin K. McAleenan, Todd C. Owen (Saeed, Sairah) (Entered: 12/12/2019)

12/12/2019

355 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: telephonic Status Conference held on 12/12/2019. A further telephonic Status Conference is set for 1/24/2020 at 10:30 a.m. before Magistrate Judge Karen S. Crawford.) Counsel for plaintiffs shall make arrangements for the conference call. (Plaintiff Attorney Steven Medlock, Ori Lev, Karolina Walters & Melissa Crow). (Defendant Attorney Katherine Shinners & Sairah Saeed). (no document attached) (kxb) (Entered: 12/12/2019)

12/17/2019

356 Ex Parte MOTION to Suspend the Briefing Schedule for Defendants' Emergency Motion to Stay re 336 Emergency MOTION to Stay re 330 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Ori Lev)(Marmolejo, Matthew). Modified on 12/18/2019 - Edited text (jah). (Entered: 12/17/2019)

12/17/2019

357 Redacted RESPONSE in Opposition re 344 MOTION for Temporary Restraining Order filed by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Alexander Halaska, # 2 Exhibit 1, # 3

Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Halaska, Alexander). (jah). (Entered: 12/17/2019)

12/19/2019

358 RESPONSE in Opposition re 356 Ex Parte MOTION re 336 Emergency MOTION to Stay re 330 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction filed by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Exhibit 1)(Saeed, Sairah) (jmo). (Entered: 12/19/2019)

12/19/2019

359 NOTICE of Withdrawal of Meryl Holt as Counsel by Kids in Need of Defense, Legal Services for Children, Public Counsel, the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York, the Young Center for Immigrant Children's Rights at the University of Chicago Law School (Holt, Meryl) (jmo). (Entered: 12/19/2019)

12/19/2019

360 NOTICE of Appearance by Matthew D. Forbes on behalf of Kids in Need of Defense, Legal Services for Children, Public Counsel, the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York, the Young Center for Immigrant Children's Rights at the University of Chicago Law School (Forbes, Matthew)Attorney Matthew D. Forbes added to party Kids in Need of Defense(pty:am), Attorney Matthew D. Forbes added to party Legal Services for Children(pty:am), Attorney Matthew D. Forbes added to party Public Counsel(pty:am), Attorney Matthew D. Forbes added to party the Unaccompanied Minors Program of Catholic Charities Community Services, Archdiocese of New York(pty:am), Attorney Matthew D. Forbes added to party the Young Center for Immigrant Children's Rights at the University of Chicago Law School(pty:am) (jmo). (Entered: 12/19/2019)

12/20/2019

361 RESPONSE in Opposition re 336 Emergency MOTION to Stay re 330 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 12/20/2019)

12/20/2019

362 MOTION to Amend/Correct 357 Response in Opposition to Motion, (Unopposed) by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Michael Ringler (Dec. 19, 2019), # 3 Declaration of Todd Hoffman (Dec. 19, 2019))(Halaska, Alexander) (jmo). (Entered: 12/20/2019)

12/20/2019

363 Joint MOTION to Partially Modify September 9, 2019 Order re 288 Order on Motion to Compel,,,, Order on Motion for Miscellaneous Relief,,, to extend time to produce privilege log (unopposed) by Elaine

C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners)(Shinners, Katherine) (jmo). (Entered: 12/20/2019)

12/20/2019 364 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (dlg). (Entered: 12/20/2019)

12/20/2019

365 ORDER granting 363 Joint MOTION to Partially Modify September 9, 2019 Order re 288 Order on Motion to Compel. Defendants' request to continue the deadline for production of their privilege log to 2/18/2020 is GRANTED. Signed by Magistrate Judge Karen S. Crawford on 12/20/2019. (no document attached) (kxb) (Entered: 12/20/2019)

12/20/2019

366 SEALED LODGED Proposed Document re: 364 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (dlg). (Entered: 12/20/2019)

12/20/2019

367 ORDER denying 356 Motion to Suspend the Briefing Schedule for Defendants' Emergency Motion to Stay. Signed by Judge Cynthia Bashant on 12/20/2019. (All non-registered users served via U.S. Mail Service)(sjt) (Entered: 12/20/2019)

12/20/2019

368 REPLY to Response to Motion re 344 MOTION for Temporary Restraining Order (Redacted) (Plaintiffs' Reply in Support of Motion for Temporary Restraining Order Prohibiting Application of Asylum Cooperative Agreement Rule to Provisional Class Members Redacted) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12)(Medlock, Stephen) (jmo). (Entered: 12/20/2019)

12/20/2019

369 ORDER of USCA as to 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. The government requests an emergency temporary stay of the USDC's order provisionally certifying a class, and preliminarily enjoining the government from enforcing the Third Country Transit Rule, 8 C.F.R. § 208.13(c)(4), against non-Mexican nationals who were allegedly in the process of arriving at a port of entry before the Third Country Transit Rule went into effect. The government also seeks a stay of the USDC's order pending appeal. A temporary stay in this context (sometimes referred to as an administrative stay) is only intended to preserve the status quo until the substantive motion for a

stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal. Because granting the stay request would preserve the status quo, we grant the government's motion for a temporary stay to preserve the status quo pending a decision on the motion for stay pending appeal. The Third Country Transit Rule has been in effect since July 16, 2019. Prohibiting the government from applying the Rule to the proposed class members could cause complications at the border in the period before the motion for stay pending appeal is decided. Our ruling is based on these considerations and not in any respect on the merits of the dispute. Instructions issued. This case will be assigned to the next available oral argument panel for a decision on the merits of the appeal. (akr) (Entered: 12/20/2019)

12/23/2019 370 RESPONSE in Support re 342 MOTION to File Documents Under Seal filed by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Exhibit 1)(Saeed, Sairah) (jmo). (Entered: 12/23/2019)

12/27/2019

371 ***WITHDRAWN BY FILER PER NOTICE OF WITHDRAWAL OF DOCUMENT 372 RESPONSE in Support re 336 Emergency MOTION to Stay re 330 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction filed by Kevin K. McAleenan, Todd C. Owen. (Saeed, Sairah) Modified on 12/30/2019 to withdraw document. (jmo) (Entered: 12/27/2019)

12/27/2019

372 NOTICE of Withdrawal of Document by Kevin K. McAleenan, Todd C. Owen re 371 Response in Support of Motion (Saeed, Sairah)(jmo). (Entered: 12/27/2019)

12/27/2019

373 REPLY to Response to Motion re 336 Emergency MOTION to Stay re 330 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction filed by Kevin K. McAleenan, Todd C. Owen. (Saeed, Sairah) (jmo). (Entered: 12/27/2019)

12/27/2019

374 ORDER of USCA as to 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. Defendants-Appellants' Unopposed Motion for an extension of time to file opening brief and excerpts of record and to adjust the briefing schedule is granted. Briefing schedule issued. (akr) (Entered: 12/30/2019)

12/30/2019 375 MOTION to Withdraw as Attorney Sairah G. Saeed by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration)(Saeed, Sairah) (jmo). (Entered: 12/30/2019)

12/30/2019 376 RESPONSE in Opposition re 352 MOTION to Certify Class (Redacted Plaintiffs' Notice of Motion and Motion for Provisional Class

Certification) filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24)(Shinners, Katherine) (jmo). (Entered: 12/30/2019)

01/03/2020

377 ORDER Granting Motion to Withdraw as Defendants' Counsel of Record (ECF No. 375 ). Attorney Sairah G. Saeed terminated. Signed by Judge Cynthia Bashant on 1/3/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 01/03/2020)

01/06/2020 378 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (dlg). (Entered: 01/06/2020)

01/06/2020

379 SEALED LODGED Proposed Document re: 378 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (dlg). (Entered: 01/06/2020)

01/06/2020

380 REPLY to Response to Motion re 352 MOTION to Certify Class (Redacted Plaintiffs' Notice of Motion and Motion for Provisional Class Certification) (Redacted) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12)(Medlock, Stephen) (jmo). (Entered: 01/06/2020)

01/06/2020

381 RESPONSE in Support re 350 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Exhibit 1 - Table of Confidentiality Designations for Deposition Transcript)(Shinners, Katherine) (jmo). (Entered: 01/06/2020)

01/06/2020

382 ORDER (1) Granting Defendants' Motion to Amend/Correct (ECF No. 362 ); and (2) Denying Plaintiffs' Motion for Temporary Restraining Order without Prejudice (ECF No. 344 ). Signed by Judge Cynthia Bashant on 1/6/2020. (All non-registered users served via U.S. Mail Service)(jmo) (dsn) (Entered: 01/07/2020)

01/10/2020

383 MOTION for Extension of Time to File Response/Reply as to 364 MOTION to File Documents Under Seal by DOES. (Nazarov, Ari)Attorney Ari Nazarov added to party DOES(pty:res) (jmo). (Entered: 01/10/2020)

01/10/2020

384 Joint MOTION for Leave to File Excess Pages in Class Certification Briefing and to set Briefing Schedule (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 01/10/2020)

01/13/2020 385 Joint MOTION for Extension of Time to File Response in Support of Sealing Limited Portion of Pls' TRO Reply Papers by Kevin K. McAleenan. (Nazarov, Ari) (dlg). (Entered: 01/13/2020)

01/13/2020

386 ORDER Granting Joint Motion to Continue Defendant's Deadline to File Response in Support of Plaintiffs' Motion to Seal (ECF No. 385 ). Defendants' response is due 1/27/2020. Signed by Judge Cynthia Bashant on 1/13/2020. (All non-registered users served via U.S. Mail Service)(jmo) (dsn) (Entered: 01/13/2020)

01/14/2020

387 ORDER Granting Joint Motion for Leave to File Additional Pages in Class Certification Briefing and to Set Briefing Schedule (ECF No. 384 ). Plaintiff's Motion for Class Certification and accompanying Memorandum of Points and Authorities due 1/14/2020. Defendant's opposition due 2/12/2020. Plaintiff's reply due 2/26/2020. Signed by Judge Cynthia Bashant on 1/14/2020. (All non-registered users served via U.S. Mail Service)(jmo) (dsn) (Entered: 01/14/2020)

01/14/2020 388 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (aef). (Entered: 01/14/2020)

01/14/2020

389 SEALED LODGED Proposed Document re: 388 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen)(aef). (Entered: 01/14/2020)

01/14/2020

390 MOTION for Class Certification (Redacted) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Stephen M. Medlock, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21

Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52, # 55 Exhibit 53, # 56 Exhibit 54, # 57 Exhibit 55, # 58 Exhibit 56, # 59 Exhibit 57, # 60 Exhibit 58, # 61 Exhibit 59, # 62 Exhibit 60, # 63 Exhibit 61, # 64 Exhibit 62, # 65 Exhibit 63, # 66 Exhibit 64, # 67 Exhibit 65, # 68 Exhibit 66, # 69 Exhibit 67, # 70 Exhibit 68, # 71 Exhibit 69, # 72 Exhibit 70, # 73 Exhibit 71, # 74 Exhibit 72, # 75 Exhibit 73, # 76 Exhibit 74, # 77 Exhibit 75, # 78 Exhibit 76, # 79 Exhibit 77, # 80 Exhibit 78, # 81 Exhibit 79, # 82 Exhibit 80, # 83 Exhibit 81, # 84 Exhibit 82, # 85 Exhibit 83, # 86 Exhibit 84, # 87 Exhibit 85, # 88 Exhibit 86, # 89 Exhibit 87, # 90 Exhibit 88, # 91 Exhibit 89, # 92 Exhibit 90, # 93 Exhibit 91, # 94 Exhibit 92, # 95 Exhibit 93, # 96 Exhibit 94, # 97 Exhibit 95, # 98 Exhibit 96, # 99 Exhibit 97, # 100 Exhibit 98, # 101 Exhibit 99, # 102 Exhibit 100, # 103 Exhibit 101, # 104 Exhibit 102, # 105 Exhibit 103)(Medlock, Stephen) Modified on 1/24/2020 (jmo). (Attachment 85 replaced on 1/24/2020 per order) (Entered: 01/14/2020)

01/16/2020

391 Joint MOTION for Extension of Time to File Response/Reply as to 378 MOTION to File Documents Under Seal by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Shinners, Katherine) (jmo). (Entered: 01/16/2020)

01/21/2020

392 ORDER Granting Joint Motion to Continue Defendants' Deadline to File Response in Support of Plaintiffs' Motion to Seal (ECF No. 391 ). Defendants' Response is due by 2/3/2020. Signed by Judge Cynthia Bashant on 1/21/20. (All non-registered users served via U.S. Mail Service)(jmo) (dsn) (Entered: 01/21/2020)

01/22/2020

393 NOTICE of Appearance by Dhruman Y. Sampat on behalf of Does 125, Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen (Attachments: # 1 Proof of Service)(Sampat, Dhruman)Attorney Dhruman Y. Sampat added to party Elaine C. Duke(pty:dft), Attorney Dhruman Y. Sampat added to party Kevin K. McAleenan(pty:dft), Attorney Dhruman Y. Sampat added to party Kirstjen Nielsen(pty:dft), Attorney Dhruman Y. Sampat added to party Todd C. Owen(pty:dft) (jmo). (Entered: 01/22/2020)

01/22/2020 394 Joint MOTION for Extension of Time to File Response/Reply as to 364 MOTION to File Documents Under Seal Related to TRO Reply by Kevin K. McAleenan. (Nazarov, Ari) (jmo). (Entered: 01/22/2020)

01/23/2020

395 ORDER Granting Second Joint Motion to Continue Defendants' Deadline to File Response in Support of Plaintiffs' Motion to Seal (ECF No. 394 ). Responses due by 2/3/2020. Signed by Judge Cynthia Bashant on 1/23/20. (All non-registered users served via U.S. Mail Service)(jmo) (dsn) (Entered: 01/23/2020)

01/23/2020

396 NOTICE Regarding Exhibit Attachment by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 390 MOTION for Class Certification (Redacted) (Attachments: # 1 Exhibit 1)(Medlock, Stephen) QC mailer sent 1/24/2020 re wrong event. Filer directed to file a motion for the specific relief (jmo). (Entered: 01/23/2020)

01/24/2020

397 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: telephonic Status Conference held on 1/24/2020. A further telephonic Status Conference is set for 3/27/2020 at 10:00 a.m. before Magistrate Judge Karen S. Crawford. Counsel for plaintiffs shall make arrangements for the conference call. The parties shall file a Joint Status Conference Statement no later than 3/24/2020.(Plaintiff Attorney Ori Lev, Karolina Walters, & Angelo Guisado). (Defendant Attorney Katherine Shinners & Alexander Halaska). (no document attached) (kxb) (Entered: 01/24/2020)

01/24/2020 398 ORDER re: Plaintiffs' Notice Regarding Exhibit Attachment (ECF No. 396 ). Signed by Judge Cynthia Bashant on 1/24/20.(All non-registered users served via U.S. Mail Service)(jmo)(dsn) (Entered: 01/24/2020)

01/31/2020

399 Joint MOTION for Extension of Time to File Response in support of Motion to Seal (No. 378) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Shinners, Katherine) (jmo). (Entered: 01/31/2020)

01/31/2020

400 Joint MOTION for Extension of Time to File Response/Reply as to 388 MOTION to File Documents Under Seal by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Shinners, Katherine) (jmo). (Entered: 01/31/2020)

01/31/2020

401 ORDER Granting Second Joint Motion to Continue Defendants' Deadline to File Response in Support of Plaintiffs' Motion to Seal Provisional Class Certification Reply Papers (ECF No. 399 ). Defendants' Response due by 2/14/2020. Signed by Judge Cynthia

Bashant on 1/31/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 02/03/2020)

01/31/2020

402 ORDER Granting Joint Motion to Continue Defendants' Deadline to File Response in Support of Plaintiffs' Motion to Seal Class Certification Papers (ECF No. 400 ). Defendants' Response due by 2/28/2020. Signed by Judge Cynthia Bashant on 1/31/20. (All nonregistered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 02/03/2020)

02/03/2020

403 RESPONSE in Support re 364 MOTION to File Documents Under Seal Limited Portions of Plaintiffs' TRO Reply Papers filed by Kevin K. McAleenan. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Nazarov, Ari) (jmo). (Entered: 02/03/2020)

02/12/2020 404 MOTION to File Documents Under Seal (With attachments)(Nazarov, Ari) (aef). (Entered: 02/12/2020)

02/12/2020

405 SEALED LODGED Proposed Document re: 404 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Nazarov, Ari) (aef). (Entered: 02/12/2020)

02/12/2020

406 RESPONSE in Opposition re 390 MOTION for Class Certification (Redacted) filed by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30)(Halaska, Alexander) (jmo). (Entered: 02/12/2020)

02/13/2020

407 Joint MOTION to Extend Defendants' Deadline to Produce Privilege Log (Unopposed) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit 1 - Falk Declaration)(Shinners, Katherine) (dlg). (Entered: 02/13/2020)

02/13/2020

408 ORDER granting 407 Joint Motion to Extend Defendants' Deadline to Produce Privilege Log. Defendants shall produce any privilege log for documentsresponsive to plaintiffs First and Second Sets of Requests for Production byMarch 17, 2020. (no document attached) (kxb) (Entered: 02/13/2020)

02/14/2020

409 RESPONSE in Support re 378 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit 1 - Owen Dep. Confidentiality Designations, # 3 Exhibit 2 Howe Decl., # 4 Exhibit 3 - Owen Decl., # 5 Exhibit 4 - Armijo Decl., # 6 Exhibit 5 - Confidentiality Designations, # 7 Exhibit 6 - Buckley Decl.)(Shinners, Katherine) (dlg). (Entered: 02/14/2020)

02/26/2020

410 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) Modified on 2/26/2020 QC mailer sent re filing sealed lodged proposed documents (aef). (Entered: 02/26/2020)

02/26/2020

411 MOTION to Strike Declarations of Unidentified Declarants by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Memo of Points and Authorities in Support of Motion to Strike, # 2 Declaration of Alexander J. Halaska)(Halaska, Alexander) (jmo). (Entered: 02/26/2020)

02/26/2020

412 SEALED LODGED Proposed Document re: 410 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). (Entered: 02/26/2020)

02/26/2020

413 REPLY to Response to Motion re 390 MOTION for Class Certification (Redacted) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit 51, # 53 Exhibit 52)(Medlock, Stephen) (jmo). (Entered: 02/26/2020)

02/27/2020

414 Joint MOTION for Order (Unopposed Joint Motion for Entry of Scheduling Order) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe,

Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 02/27/2020)

02/27/2020

415 Joint MOTION Joint Motion to Consolidate Responses in Support of Plaintiffs' Motions To Seal re 388 MOTION to File Documents Under Seal and Ecf No. 410 by Kevin K. McAleenan. (Nazarov, Ari) (jmo). (Entered: 02/27/2020)

02/28/2020

416 ORDER Granting Joint Motion to Consolidate Defendants' Responses in Support of Plaintiffs' Motions to Seal and to Extend Deadline to Respond (ECF No. 415 ) Defendants shall file their consolidated response in supportof both Motions to Seal by 3/16/20. Signed by Judge Cynthia Bashant on 2/28/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 02/28/2020)

03/05/2020 417 NOTICE Regarding Unsealed Documents by Kevin K. McAleenan, Todd C. Owen (Attachments: # 1 Exhibit)(Halaska, Alexander) (jmo). (Entered: 03/05/2020)

03/05/2020

418 ORDER of USCA as to 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. We emphasize that the question whether the injunction should be overturned - the merits of the ultimate appeal - is not before this motions panel. We are ruling only on the motion to stay the injunction pending appeal... The government has not carried its burden of showing that a stay is warranted. Accordingly, we deny the motion. (This Order is for publication. See Order for full text.) (akr) (Entered: 03/05/2020)

03/06/2020

419 Ex Parte MOTION for Oral Argument Concerning Plaintiffs' Motion for Class Certification re 390 MOTION for Class Certification (Redacted) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 03/06/2020)

03/10/2020

420 ORDER Granting Joint Motion (ECF No. 414 ) and Entering Scheduling Order. All motions, other than motions to amend or join parties, or motions in limine, shall be filed on or before 9/4/20. Memorandum of Contentions of Fact and Law due by 11/9/2020. Proposed Pretrial Order due by 11/30/2020. Final Pretrial Conference set for 12/14/2020 at 11:00 AM before Judge Cynthia Bashant. The trial date and related deadlines (e.g. deadlines to file motions in limine and submit trial documents) will be set at the final Pretrial Conference. Signed by Magistrate Judge Karen S. Crawford on 3/10/20. (All non-

registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 03/10/2020)

03/12/2020

421 ORDER Denying Defendant's Amended Motion to Seal (ECF No. 340 ). The Court permits redactions of the email addresses of CBP employees from the exhibits that contain them. Defendants must submit the relevant exhibits with redactions by 3/19/2020. Signed by Judge Cynthia Bashant on 3/12/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 03/12/2020)

03/13/2020

422 Joint MOTION to Set Briefing Schedule (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock in Support)(Medlock, Stephen) (jmo). (Entered: 03/13/2020)

03/13/2020

423 ORDER Granting Unopposed Joint Motion to Set Briefing Schedule 422 . Plaintiffs' consolidated Opposition to Defendants' Motion to Strike (ECF No. 411 ) and forthcoming Motion to Strike shall be filed two weeks from the date Defendants' forthcoming Motion to Strike is filed. Defendants' consolidated Reply in Support of Motion to Strike (ECF No. 411 ) and in support of forthcoming Motion to Strike shall be filed four weeks from the date Defendants' forthcoming Motion to Strike is filed. Signed by Judge Cynthia Bashant on 3/13/20. (All nonregistered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 03/13/2020)

03/16/2020

424 RESPONSE in Support re 410 MOTION to File Documents Under Seal, 388 MOTION to File Documents Under Seal filed by Kevin K. McAleenan. (Attachments: # 1 Declaration, # 2 Appendix, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Nazarov, Ari) (jmo). (Entered: 03/16/2020)

03/17/2020

425 MOTION to Strike Anonymous Reply Declarations by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Memo of Points and Authorities in Support of Motion to Strike Reply Declarations, # 2 Declaration)(Halaska, Alexander) (jmo). (Entered: 03/17/2020)

03/17/2020

426 Joint MOTION to Extend Defendants' Deadline to Produce Privilege Log (Unopposed) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - OMB Guidance, # 3 Declaration of Scott Falk)(Shinners, Katherine) (jmo). (Entered: 03/17/2020)

03/18/2020

427 ORDER: The unopposed Joint Motion to Extend Defendants' Deadline to Produce Privilege Log [Doc. No. 426] is GRANTED. Signed by Magistrate Judge Karen S. Crawford on 3/18/2020. (no document attached) (kxb) (Entered: 03/18/2020)

03/19/2020

428 NOTICE Regarding Exhibit Attachment by Kevin K. McAleenan, Todd C. Owen (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Halaska, Alexander) (jmo). (Entered: 03/19/2020)

03/24/2020

429 STATUS REPORT (Joint) Status Conference Statement by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 03/24/2020)

03/25/2020

430 ORDER UPDATING CONFERENCE CALL INSTRUCTIONS FOR STATUS CONFERENCE on 3/27/2020 at 10:00 a.m. Counsel shall call the Court's teleconference line at 1-877-873-8017, enter the access code 2924630 and press * when prompted for a security code. Signed by Magistrate Judge Karen S. Crawford on 3/25/2020.(no document attached) (kxb) (Entered: 03/25/2020)

03/27/2020

431 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held on 3/27/2020. A Status Conference is set for 5/8/2020 at 10:30 AM before Magistrate Judge Karen S. Crawford. Plaintiff's counsel shall initiate the conference call and call the Court with all counsel on the line or, alternatively, provide the Court with conference call instructions. (no document attached) (kxb) (Entered: 03/27/2020)

03/31/2020 432 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (jmo). (Entered: 03/31/2020)

03/31/2020

433 SEALED LODGED Proposed Document re: 432 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (jmo). (Entered: 03/31/2020)

03/31/2020

434 RESPONSE in Opposition re 425 MOTION to Strike Anonymous Reply Declarations, 411 MOTION to Strike Declarations of Unidentified Declarants (Redacted) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, #

6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7)(Medlock, Stephen) (jmo). (Entered: 03/31/2020)

04/02/2020 435 MOTION to File Documents Under Seal (With attachments)(Shinners, Katherine) (jmo).(anh). (Entered: 04/02/2020)

04/02/2020

436 **Partially Docketed under seal at doc. no. 447 per doc no. 446 ** SEALED LODGED Proposed Document re: 435 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Shinners, Katherine) (jmo). (anh). Modified on 5/1/2020 (anh). (Entered: 04/02/2020)

04/02/2020

437 Joint MOTION for Discovery Determination of Discovery Dispute Concerning Clawback Notice by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Declaration of Todd Owen, # 3 Declaration of Stephen M. Medlock, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C [Filed Provisionally Under Seal])(Shinners, Katherine) (Entered: 04/02/2020)

04/13/2020

438 Joint MOTION for Entry of Stipulated Deposition Protocol for the Deposition of Rule 30(b)(6) Representative Michael Humphries (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 04/13/2020)

04/13/2020

439 ORDER Granting Joint Motion for Entry of Stipulated Deposition Protocol for the Deposition of Rule 30(B)(6) Representative Michael Humphries (ECF No. 438 ). Signed by Magistrate Judge Karen S. Crawford on 4/13/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 04/13/2020)

04/14/2020

440 REPLY to Response to Motion re 425 MOTION to Strike Anonymous Reply Declarations, 411 MOTION to Strike Declarations of Unidentified Declarants filed by Kevin K. McAleenan, Todd C. Owen. (Halaska, Alexander) (jmo). (Entered: 04/14/2020)

04/15/2020

441 Joint MOTION for Extension of Time to File Response/Reply in Support of Plaintiffs' Motion to Seal by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Alexander J. Halaska)(Halaska, Alexander) (jmo). (Entered: 04/15/2020)

04/16/2020 442 ORDER Granting Joint Motion to Extend Defendants' Deadline to Respond in Support of Plaintiffs' Motion to Seal (ECF No. 441 ). Defendants' Response due by 5/4/2020. Signed by Judge Cynthia

Bashant on 4/16/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 04/16/2020)

04/16/2020

443 ORDER re: updated call instructions for Status Conference on 5/8/2020 at 10:30 a.m. Counsel must call the Court's teleconference line at 1877-873-8017, enter access code 2924630 and press * when prompted for a security code. Signed by Magistrate Judge Karen S. Crawford on 4/16/2020.(no document attached) (kxb) (Entered: 04/16/2020)

04/29/2020

444 Joint MOTION for Extension of Time to File or Raise Privilege Dispute to the Court by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Alexander J. Halaska)(Halaska, Alexander) (jmo). (Entered: 04/29/2020)

04/30/2020

445 ORDER granting 444 Joint Motion for Extension of Time to Contact Court re: Discovery Dispute. Defendants' deadline is extended to 5/7/2020.Signed by Magistrate Judge Karen S. Crawford on 4/30/2020. (no document attached) (kxb) (Entered: 04/30/2020)

05/01/2020

446 ORDER Denying Defendants' Motion to Claw-Back Documents [Doc. No. 437 and Granting In Part and Denying In Part Defendants' Motion to Seal [Doc. No. 435 ]. Signed by Magistrate Judge Karen S. Crawford on 4/30/2020. (anh) (Entered: 05/01/2020)

05/04/2020

448 STATUS REPORT (Joint) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 05/04/2020)

05/04/2020

449 RESPONSE in Support re 432 MOTION to File Documents Under Seal filed by Kevin K. McAleenan, Todd C. Owen. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Halaska, Alexander) 5/5/2020 (jmo). (Entered: 05/04/2020)

05/07/2020

450 Joint MOTION For Entry of Stipulated Remote Deposition Protocol (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) qc email re proposed order attached (dlg). (Entered: 05/07/2020)

05/08/2020

451 Joint MOTION for Extension of Time to File or Raise Discovery Disputes to the Court (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto

Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (Entered: 05/08/2020)

05/08/2020

452 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held on 5/8/2020. Further Status Conference set for 6/26/2020 at 11:00 a.m. Plaintiff's counsel shall make the necessary arrangements for the conference call. (no document attached) (kxb) (Entered: 05/08/2020)

05/12/2020

453 ORDER Granting Joint Motion for Extension of Time to Raise Discovery Disputes to Court (Doc. No. 451 ). Acting Secretary Wolf is automatically substituted for former Acting Secretary McAleenan pursuant to Fed. R. Civ. P. 25(d). Signed by Magistrate Judge Karen S. Crawford on 5/12/20. (All non-registered users served via U.S. Mail Service)(jmo) (Main Document 453 replaced on 5/13/2020) (jmo). (Entered: 05/12/2020)

05/13/2020

454 ORDER Granting Unopposed Joint Motion for Entry of Stipulated Remote Deposition Protocol (Doc. No. 450 . Signed by Magistrate Judge Karen S. Crawford on 5/13/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 05/14/2020)

05/15/2020

455 Joint MOTION for Leave to File Excess Pages in Connection with Forthcoming Joint Motion for Determination of Privilege Dispute by Todd C. Owen, Chad F. Wolf. (Halaska, Alexander) (jmo). (Entered: 05/15/2020)

05/15/2020

456 OBJECTION Pursuant to Federal Rule of Civil Procedure 72(a) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf, re 446 Order on Motion to File Documents Under Seal, Order on Motion for Discovery . (Attachments: # 1 Memo of Points and Authorities in Support of Defendants' Rule 72(a) Objections, # 2 Declaration of Dhruman Y. Sampat)(Sampat, Dhruman) (jmo). Modified on 9/10/2020 (anh). (Entered: 05/15/2020)

05/15/2020

457 ORDER: the parties' Joint MOTION for Leave to File Excess Pages in Connection with Forthcoming Joint Motion for Determination of Privilege Dispute is GRANTED.Signed by Magistrate Judge Karen S. Crawford on 5/15/2020. (no document attached) (kxb) (Entered: 05/15/2020)

06/01/2020 458 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 06/01/2020)

06/01/2020 459 **Docketed under seal at doc. no. 544 on 9/20/2020 per Order no. 543 ** SEALED LODGED Proposed Document re: 458 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to

Seal is granted. (With attachments)(Medlock, Stephen) (anh). Modified on 9/10/2020 (anh). (Entered: 06/01/2020)

06/01/2020

460 REDACTION to 459 Sealed Lodged Proposed Document Public version of the opposition to Dkt. No. 456 by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2)(Medlock, Stephen) (jmo) (Entered: 06/01/2020)

06/04/2020 461 Joint MOTION to File Documents Under Seal (With attachments)(Halaska, Alexander) (jmo). (Entered: 06/04/2020)

06/04/2020

462 **Docketed Under Seal as Doc. no. 475 ** SEALED LODGED Proposed Document re: 461 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Halaska, Alexander) (jmo). (anh). (Entered: 06/04/2020)

06/04/2020

463 Joint MOTION for Discovery - Determination of Privilege Dispute [Portions Filed Under Seal] by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 20, # 3 Exhibit 21)(Halaska, Alexander) (jmo). (Entered: 06/04/2020)

06/08/2020

464 REPLY to Response to Motion re 456 OBJECTION Pursuant to Federal Rule of Civil Procedure 72(a) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf, re 446 Order on Motion to File Documents Under Seal, Order on Motion for Discovery filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Sampat, Dhruman) (jmo). (Entered: 06/08/2020)

06/18/2020 465 MOTION to File Documents Under Seal (With attachments)(Shinners, Katherine) (anh). (Entered: 06/18/2020)

06/18/2020

466 **Docketed under seal as doc. no. 502 on 7/27/2020** SEALED LODGED Proposed Document re: 465 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Shinners, Katherine) (anh). Modified on 7/28/2020 (anh). (Entered: 06/18/2020)

06/18/2020

467 Joint MOTION for Determination of Discovery Dispute Concerning Scope of 30(b)(6) deposition by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A to Shinners Decl., # 3 Exhibit B to Shinners Decl., # 4 Exhibit C to Shinners Decl, # 5

Declaration of Stephen M. Medlock, # 6 Exhibit 1 to Medlock Decl. (Plffs' Ex. 1))(Shinners, Katherine) (mme). (Entered: 06/18/2020)

06/18/2020 468 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 06/18/2020)

06/18/2020

469 **Docketed under seal on 7/31/2020 at doc. no. 507 ** SEALED LODGED Proposed Document re: 468 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). Modified on 7/31/2020 (anh). (Entered: 06/18/2020)

06/18/2020

470 REDACTION to 469 Sealed Lodged Proposed Document Public Version Of Motion Dkt. 468 by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock In Support Of Joint Motion For Determination of Discovery Dispute Regarding Requests For Production 220 And 222, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Declaration of Katherine J. Shinners With Respect To Joint Motion for Determination Of Discovery Dispute Regarding Plaintiffs' Requests For Production 220 And 222, # 7 Exhibit A, # 8 Exhibit B, # 9 Exhibit C)(Medlock, Stephen) (jmo). (Entered: 06/18/2020)

06/19/2020

471 Joint MOTION to Allow Deposition of DHS After Close of Fact Discovery (Unopposed) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners)(Shinners, Katherine) (jmo). (Entered: 06/19/2020)

06/22/2020 472 RESPONSE in Support re 458 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen. (Sampat, Dhruman) (jmo). (Entered: 06/22/2020)

06/22/2020

473 STATUS REPORT Joint Status Conference Statement by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen)(jmo). (Entered: 06/22/2020)

06/26/2020 474 ORDER Regarding Privilege Dispute; Order Granting Motion to Seal [Dkt. Nos. 461 462 463 ]. Signed by Magistrate Judge Karen S. Crawford on 6/26/2020. (anh) (Entered: 06/26/2020)

06/26/2020 476 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held on 6/26/2020. Further status

conference set for 7/31/20 at 11:00 a.m. The Court will advise as to procedures for the conference call. Parties shall file joint status report no later than 7/27/20. (Plaintiff Attorney Karolina Walters, Ori Lev, Stephen Medlock). (Defendant Attorney Katherine Shinners, Alexander Halaska). (no document attached) (src) (Entered: 06/26/2020)

06/26/2020

477 Discovery Hearing set for 7/2/2020 09:30 AM before Magistrate Judge Karen S. Crawford. The Court will hear oral argument regarding pending discovery disputes(Doc. Nos. 467, 469) on 7/2/20 at 9:30 AM. The hearing shall be conducted telephonically. Signed by Magistrate Judge Karen S. Crawford on 6/26/20.(no document attached) (src) (Entered: 06/26/2020)

06/26/2020

478 ORDER Granting Unopposed Joint Motion to Allow Deposition of DHS After Close of Fact Discovery (Doc. No. 471 ). Signed by Magistrate Judge Karen S. Crawford on 6/26/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 06/26/2020)

06/29/2020

479 Joint MOTION for Extension of Time to Raise Privilege Dispute by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners)(Shinners, Katherine) (jmo). (Entered: 06/29/2020)

06/30/2020

480 ORDER granting 479 Motion. Good cause appearing, the Court GRANTS the parties Joint Motion for Extension of Time to Raise Privilege Disputes to the Court (Joint Motion, Dkt. No. 479). The parties shall raise the June 1 and June 15 privilege disputes referenced in their Joint Motion by August 3, 2020, or 7 days after the District Court rules on Defendants pending Rule 72(a) objection (Dkt. No. 456), whichever is sooner. IT IS SO ORDERED. Signed by Magistrate Judge Karen S. Crawford on 6/30/20. (no document attached) (src) (Entered: 06/30/2020)

07/06/2020

481 ORDER of USCA as to 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. At oral argument, the parties shall be prepared to discuss the effect, if any, that East Bay Sanctuary Covenant v. Barr, Nos. 1916487, 19-16773 (9th Cir. July 6, 2020), and Capital Area Immigrants' Rights Coalition v. Trump, No. CV 19-2117, 2020 WL 3542481 (D.D.C. June 30, 2020), have on this case. (akr) (Entered: 07/06/2020)

07/08/2020

482 MOTION for Extension of Time to File Plaintiffs' Spoliation Motion, MOTION for Leave to File Excess Pages (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe.

(Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 07/08/2020)

07/10/2020

483 Joint MOTION to Extend Time to Raise Potential Discovery Dispute Regarding Al Otro Lado's Responses to Defendants' Second Set of RFPs by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska)(Halaska, Alexander) (jmo). (Entered: 07/10/2020)

07/10/2020

484 ORDER Granting Unopposed Joint Motion for Extension of Time to Raise Discovery Dispute Concerning Plaintiff's Responses to Defendants' Second Set of Requests for Production to the Court (Doc. No. 483 ). Signed by Magistrate Judge Karen S. Crawford on 7/10/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 07/10/2020)

07/10/2020

485 ORDER Granting in Part and Denying in Part Unopposed Joint Motion to Expand Page Limits and to Extend Time for Presentation of Plaintiffs' Spoliation Motion (Doc. No. 482 ). Signed by Magistrate Judge Karen S. Crawford on 7/10/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 07/10/2020)

07/10/2020

486 **Docketed under seal at doc. no. 489 on 7/10/2020** SEALED LODGED Proposed Document re: 461 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Halaska, Alexander) (anh). Modified on 7/13/2020 (anh). (Entered: 07/10/2020)

07/10/2020

487 NOTICE of Filing by Todd C. Owen, Chad F. Wolf (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Halaska, Alexander) (jmo). (Entered: 07/10/2020)

07/10/2020 488 NOTICE of Determination of Privilege Dispute by Todd C. Owen, Chad F. Wolf (Halaska, Alexander) (jmo). (Entered: 07/10/2020)

07/13/2020

490 TRANSCRIPT ORDER - For hearing(s) on 7/2/2020 by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Lev, Ori) (jmo). (Entered: 07/13/2020)

07/15/2020 491 NOTICE of Appearance by Hayden Windrow on behalf of Does 1-25, Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf (Windrow, Hayden)Attorney Hayden Windrow

added to party Does 1-25(pty:dft), Attorney Hayden Windrow added to party Elaine C. Duke(pty:dft), Attorney Hayden Windrow added to party Kevin K. McAleenan(pty:dft), Attorney Hayden Windrow added to party Kirstjen Nielsen(pty:dft), Attorney Hayden Windrow added to party Todd C. Owen(pty:dft), Attorney Hayden Windrow added to party Chad F. Wolf(pty:dft) (jmo). (Entered: 07/15/2020)

07/16/2020

492 ORDER Granting Plaintiffs' Ex Parte Application for Oral Argument on Plaintiffs' Motion for Class Certification (ECF No. 419 ). Oral argument set for 7/30/2020 at 02:00 PM before Judge Cynthia Bashant in Court 4B. Signed by Judge Cynthia Bashant on 7/16/20. (All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 07/16/2020)

07/17/2020

493 ORDER Re: Hearing. Signed by Judge Cynthia Bashant on 7/17/20.(All non-registered users served via U.S. Mail Service)(jmo) (Entered: 07/17/2020)

07/17/2020

494 MOTION to Clarify Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Ori Lev in Support of Motion for Clarification of the Preliminary Injunction, # 3 Exhibit 1 to Ori Lev Declaration, # 4 Exhibit 2 to Ori Lev Declaration, # 5 Exhibit 3 to Ori Lev Declaration, # 6 Exhibit 4 to Ori Lev Declaration, # 7 Exhibit 5 to Ori Lev Declaration, # 8 Proposed Order)(Lev, Ori) (jmo). (Entered: 07/17/2020)

07/17/2020 495 MOTION to File Documents Under Seal (With attachments)(Lev, Ori) (sxa). (Entered: 07/17/2020)

07/17/2020

496 SEALED LODGED Proposed Document re: 495 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Lev, Ori) (sxa). (Entered: 07/17/2020)

07/21/2020

497 NOTICE by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf re 465 MOTION to File Documents Under Seal (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - Redacted Version of Plaintiffs' Ex. 1, # 3 Exhibit B Hoffman Declaration)(Shinners, Katherine) (jmo). (Entered: 07/21/2020)

07/23/2020 498 Joint MOTION to Take Deposition from Stephanie Leutert After July 24, 2020 by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen,

Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Dhruman Y. Sampat)(Sampat, Dhruman) (jmo). (Entered: 07/23/2020)

07/23/2020

499 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Motion Hearing) held on 7/2/2020 before Magistrate Judge Karen S. Crawford. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/13/2020. Redacted Transcript Deadline set for 8/24/2020. Release of Transcript Restriction set for 10/21/2020. (akr) (Entered: 07/23/2020)

07/24/2020

500 ORDER Granting Joint Motion for Leave to Depose Plaintiffs' Expert After the July 24, 2020, Deadline (Doc. No. 498 ). Signed by Magistrate Judge Karen S. Crawford on 7/24/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 07/24/2020)

07/27/2020

501 STATUS REPORT JOINT STATUS CONFERENCE STATEMENT by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 07/27/2020)

07/27/2020 502 ORDER Regarding Scope of 30(b)(6) Deposition; Order Granting Motion to Seal [Doc. Nos. 465 , 467 , 497 ]. Signed by Magistrate Judge Karen S. Crawford on 7/27/2020. (anh) (Entered: 07/28/2020)

07/30/2020

504 Minute Entry for proceedings held before Judge Cynthia Bashant: Motion Hearing held on 7/30/2020 re 390 MOTION for Class Certification. Court to issue order. (Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Stephen Medlock, Angelo Guisado, Melissa Crow, Rebecca Cassler, Sarah Rich, and Ori Lev). (Defendant Attorney Alexander Halaska and Katherine Shinners). (no document attached) (sxm) (Entered: 07/30/2020)

07/31/2020

505 Minute entry for proceedings held before Magistrate Judge Karen S. Crawford. Status conference held 7/31/20. Further telephonic status conference set for 9/11/20 at 11:00 a.m. The Court will advise as to procedures for the conference call. The parties shall file a joint status report no later than 9/8/20.(Plaintiff Attorney Stephen Medlock, Ori Lev, Karolina Walters, Angelo Guisado.) (Defendant Attorney

Katherine Shinners, Alexander Halaska). (no document attached) (src) (Entered: 07/31/2020)

07/31/2020

506 ORDER Regarding Motion for Determination of Discovery Dispute Regarding Requests for Production 220 and 222; Order Granting Motion to Seal [Doc. Nos. 468 , 469 , 470 ]. Signed by Magistrate Judge Karen S. Crawford on 7/31/2020. (anh) (Entered: 07/31/2020)

08/03/2020

508 RESPONSE in Opposition re 494 MOTION to Clarify Preliminary Injunction filed by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23)(Halaska, Alexander) (jmo). (Entered: 08/03/2020)

08/04/2020

509 Ex Parte MOTION for Oral Argument re 494 MOTION to Clarify Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 08/04/2020)

08/06/2020

510 ORDER: (1) Granting In Part and Denying In Part Motions to Seal Class Certification Motion and Opposition Brief [ECF Nos. 388 , 404 ]; and (2) Denying Without Prejudice Motion to Seal Reply Brief [ECF. No. 410 ]. Signed by Judge Cynthia Bashant on 8/6/2020. (anh) (Entered: 08/06/2020)

08/06/2020

513 ORDER: (1) Granting Plaintiffs' Motion for Class Certification (ECF No. 390 ); (2) Denying as Moot Defendants' Motions to Strike (ECF Nos. 411 , 425 ); and (3) Terminating as Moot the Parties' Motion to Seal (ECF No. 432 ). Signed by Judge Cynthia Bashant on 8/6/20. (All non-registered users served via U.S. Mail Service)(jmo) (dlg). (Entered: 08/06/2020)

08/07/2020

514 Joint MOTION to Extend Deadlines to Brief Discovery Disputes (Unopposed) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners)(Shinners, Katherine) (jmo). (Entered: 08/07/2020)

08/07/2020

515 ORDER Granting Unopposed Joint Motion to Extend Deadlines to Brief Discovery Disputes (Doc. No. 514 ). Deadline for the parties to submit a joint motion concerning the June 1 and June 15 privilege

disputes is hereby extended to 8/18/20. Deadline for the parties to submit a joint motion regarding plaintiffs' spoliation allegations is hereby extended to 8/31/20. Signed by Magistrate Judge Karen S. Crawford on 8/7/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 08/08/2020)

08/10/2020

516 REPLY to Response to Motion re 494 MOTION to Clarify Preliminary Injunction (Plaintiffs' Reply in Support of Their Motion for Clarification of the Preliminary Injunction) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 of Stephen M. Medlock)(Medlock, Stephen) (jpp). (Entered: 08/10/2020)

08/10/2020

517 Joint MOTION for Leave to File Excess Pages (Unopposed Joint Motion and Incorporated Memorandum of Points and Authorities to Expand Page Limits and to Set Briefing Schedule for Forthcoming Summary Judgment Briefing) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jpp). (Entered: 08/10/2020)

08/11/2020 518 ORDER granting in part 517 Joint Motion to expand page limits and set briefing schedule for Summary Judgment Motions. Signed by Judge Cynthia Bashant on 8/11/2020. (jpp) (Entered: 08/11/2020)

08/18/2020 519 MOTION to File Documents Under Seal (With attachments)(Halaska, Alexander) (anh). (Entered: 08/18/2020)

08/18/2020 520 SEALED LODGED Proposed Document re: 519 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Halaska, Alexander) (anh). (Entered: 08/18/2020)

08/18/2020

521 ***DOCUMENT WITHDRAWN PER ORDER 616 ***Joint MOTION for Determination of May 2020 Clawback Dispute by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1 (Gov't Ex. 1), # 3 Declaration of Stephen M. Medlock, # 4 Exhibit 1 (Pls' Ex. 1))(Halaska, Alexander) (anh). Modified on 11/5/2020 (jmo). (Entered: 08/18/2020)

08/18/2020 522 MOTION to File Documents Under Seal (With attachments)(Halaska, Alexander) (anh). (Entered: 08/18/2020)

08/18/2020 523 **Docketed under seal at doc. no. 614 per Order 613 ** SEALED LODGED Proposed Document re: 522 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted.

(Halaska, Alexander) (anh). Modified on 11/3/2020 (anh). (Entered: 08/18/2020)

08/18/2020

524 Joint MOTION for Determination of June 2020 Clawback Dispute by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1 (Gov't Ex. 1), # 3 Declaration of Stephen M. Medlock, # 4 Exhibit 1 (Pls' Ex. 1), # 5 Exhibit 2 (Pls' Ex. 2), # 6 Exhibit 3 (Pls' Ex. 3), # 7 Exhibit 4 (Pls' Ex. 4), # 8 Exhibit 5 (Pls' Ex. 5))(Halaska, Alexander) (jmo). (Entered: 08/18/2020)

08/20/2020 525 Joint MOTION for Extension of Time to File Response/Reply as to 510 Order on Motion to File Documents Under Seal,,,,, by Chad F. Wolf. (Nazarov, Ari) (jmo). (Entered: 08/20/2020)

08/20/2020

526 ORDER Granting Joint Motion to Continue Defendants' Deadline to Respond to Order Re: Sealing Motion (ECF No. 525 ). Defendants shall file their response by 8/27/20. Signed by Judge Cynthia Bashant on 8/20/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 08/20/2020)

08/24/2020

527 Further Order Regarding Motion for Determination of Discovery Dispute Regarding Request for Production 220. Defendants shall produce documents to plaintiff within 7 days of the date of this order. Deadline for plaintiffs to file their anticipated motion regarding potential spoliation of evidence in hereby extended to 9/8/20. Signed by Magistrate Judge Karen S. Crawford on 8/24/20.(All non-registered users served via U.S. Mail Service)(jmo) (Entered: 08/24/2020)

08/27/2020

528 RESPONSE re 510 Order on Motion to File Documents Under Seal,,,,, filed by Chad F. Wolf. (Nazarov, Ari) **QC Mailer re documents filed untimely - due 8/21/20** (jmo). (Entered: 08/27/2020)

08/28/2020

529 RESPONSE re 510 Order on Motion to File Documents Under Seal,,,,, Part I of exhibits filed by Chad F. Wolf. (Attachments: # 1 Exhibit Exh. 4 to Motion, # 2 Exhibit Exh 5 to Motion, # 3 Exhibit Exh 16 to Motion, # 4 Exhibit Exh 17 to Motion, # 5 Exhibit Exh 19 to Motion, # 6 Exhibit Exh 20 to Motion, # 7 Exhibit Exh 21 to Motion, # 8 Exhibit Exh 22 to Motion, # 9 Exhibit Exh 23 to Motion, # 10 Exhibit Exh 26 to Motion, # 11 Exhibit Exh 30 to Motion, # 12 Exhibit Exh 31 to Motion, # 13 Exhibit Exh 32 to Motion, # 14 Exhibit Exh 33 to Motion, # 15 Exhibit Exh 36 to Motion, # 16 Exhibit Exh 37 to Motion, # 17 Exhibit Exh 40 to Motion, # 18 Exhibit Exh 41 to Motion, # 19 Exhibit Exh 42 to Motion, # 20 Exhibit Exh 43 to Motion, # 21 Exhibit Exh 45 to Motion, # 22 Exhibit Exh 49 to Motion, # 23 Exhibit Exh 50 to Motion, # 24 Exhibit Exh 51 to Motion, # 25 Exhibit Exh 52 to Motion, # 26 Exhibit Exh 54 to Motion, # 27 Exhibit Exh 55 to Motion, # 28 Exhibit Exh 56 to Motion, # 29 Exhibit Exh 59 to Motion, # 30 Exhibit

Exh 60 to Motion, # 31 Exhibit Exh 61 to Motion, # 32 Exhibit Exh 62 to Motion, # 33 Exhibit Exh 96 to Motion, # 34 Exhibit Exh 6 to Gov Opp, # 35 Exhibit Exh 7 to Gov Opp, # 36 Exhibit Ex 8 to Gov Opp, # 37 Exhibit Ex 9 to Gov Opp, # 38 Exhibit Ex 30 to Gov Opp)(Nazarov, Ari) **QC Mailer re documents filed untimely - due 8/21/20** (jmo). (Entered: 08/28/2020)

08/28/2020

530 RESPONSE re 510 Order on Motion to File Documents Under Seal,,,,, Part 2 of Exhibits filed by Chad F. Wolf. (Attachments: # 1 Exhibit Exh. 1 to Motion, # 2 Exhibit Exh 2 to Motion, # 3 Exhibit Exh 3 to Motion, # 4 Exhibit Exh 2 to Reply Part 1, # 5 Exhibit Exh 2 to Reply Part 2, # 6 Exhibit Exh 3 to Reply, # 7 Exhibit Exh 4 to Reply, # 8 Exhibit Exh 5 to Reply, # 9 Exhibit Exh 6 to Reply)(Nazarov, Ari) **QC Mailer re documents filed untimely - due 8/21/20** (jmo). (Entered: 08/28/2020)

08/31/2020

531 RESPONSE in Support re 495 MOTION to File Documents Under Seal filed by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2)(Halaska, Alexander) (jmo). (Entered: 08/31/2020)

09/04/2020 532 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (jmo). (Entered: 09/04/2020)

09/04/2020

533 SEALED LODGED Proposed Document re: 532 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (Entered: 09/04/2020)

09/04/2020

534 SEALED LODGED Proposed Document re: 532 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (Entered: 09/04/2020)

09/04/2020

535 MOTION for Summary Judgment (Redacted) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities (Redacted), # 2 Declaration of Stephen M. Medlock, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36

Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52, # 55 Exhibit 53, # 56 Exhibit 54, # 57 Exhibit 55, # 58 Exhibit 56, # 59 Exhibit 57, # 60 Exhibit 58, # 61 Exhibit 59, # 62 Exhibit 60, # 63 Exhibit 61, # 64 Exhibit 62, # 65 Exhibit 63, # 66 Exhibit 64, # 67 Exhibit 65, # 68 Exhibit 66, # 69 Exhibit 67, # 70 Exhibit 68, # 71 Exhibit 69, # 72 Exhibit 70, # 73 Exhibit 71, # 74 Exhibit 72, # 75 Exhibit 73, # 76 Exhibit 74, # 77 Exhibit 75, # 78 Exhibit 76, # 79 Exhibit 77, # 80 Exhibit 78, # 81 Exhibit 79, # 82 Exhibit 80, # 83 Exhibit 81, # 84 Exhibit 82, # 85 Exhibit 83, # 86 Exhibit 84, # 87 Exhibit 85, # 88 Exhibit 86, # 89 Exhibit 87, # 90 Exhibit 88, # 91 Exhibit 89, # 92 Exhibit 90, # 93 Exhibit 91, # 94 Exhibit 92, # 95 Exhibit 93, # 96 Exhibit 94, # 97 Exhibit 95, # 98 Exhibit 96, # 99 Exhibit 97, # 100 Exhibit 98, # 101 Exhibit 99, # 102 Exhibit 100, # 103 Exhibit 101, # 104 Exhibit 102, # 105 Exhibit 103, # 106 Exhibit 104, # 107 Exhibit 105, # 108 Exhibit 106, # 109 Exhibit 107, # 110 Exhibit 108, # 111 Exhibit 109, # 112 Exhibit 110, # 113 Exhibit 111, # 114 Exhibit 112, # 115 Exhibit 113, # 116 Exhibit 114, # 117 Exhibit 115, # 118 Exhibit 116, # 119 Exhibit 117, # 120 Exhibit 118, # 121 Exhibit 119, # 122 Exhibit 120)(Medlock, Stephen) (jmo). (Entered: 09/04/2020)

09/04/2020

536 MOTION to Exclude Defendants' Purported Expert Testimony (Redacted) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities (Redacted), # 2 Declaration of Stephen M. Medlock, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29)(Medlock, Stephen) (jmo). (Entered: 09/04/2020)

09/04/2020 537 MOTION to File Documents Under Seal (With attachments)(Sampat, Dhruman) (anh). (Entered: 09/04/2020)

09/04/2020

538 SEALED LODGED Proposed Document re: 537 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Sampat, Dhruman) (anh). (Entered: 09/04/2020)

09/04/2020

539 MOTION to Exclude Plaintiffs' Purported Expert Testimony by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Dhruman Y. Sampat, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4)(Sampat, Dhruman) (jmo). (Entered: 09/04/2020)

09/08/2020

540 Joint MOTION for Extension of Time to File Joint Motion Regarding Spoliation Dispute by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Dhruman Y. Sampat)(Sampat, Dhruman) (jmo). (Entered: 09/08/2020)

09/08/2020

541 STATUS REPORT JOINT by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 09/08/2020)

09/09/2020

542 ORDER granting 540 Motion for Extension of Time to File Joint Motion Regarding Spoliation Dispute. Good cause appearing, and in consideration of the parties' representation that the requested extension will not interfere with any scheduling order deadline, the parties' request for an extension of time is GRANTED. The parties shall file the Joint Motion Regarding Spoliation Dispute no later than September 11, 2020. SO ORDERED. Signed by Magistrate Judge Karen S. Crawford on 9/9/2020. (no document attached) (src) (Entered: 09/09/2020)

09/10/2020

543 ORDER: (1) Overruling Defendants' Objections to the Magistrate Judge's Order [ECF No. 456 ]; and (2) Granting In Part and Denying In Part Plaintiffs' Unopposed Motion to Seal [ECF No. 458 ]. Signed by Judge Cynthia Bashant on 9/10/2020. (anh) (Main Document 543 replaced on 9/10/2020 and NEF regenerated) (jmo). (Entered: 09/10/2020)

09/11/2020

545 Minute Entry for proceedings held before Magistrate Judge Karen S. Crawford: Status Conference held 9/11/20. Appearances for Plaintiffs: Stephen Medlock, Ori Lev, Angelo Guisado, Karolina Walters, Rebecca Cassler. Appearances for Defendants: Katherine Shinners, Alexander Halaska. The Court will hold a telephonic status conference on 12/4/20 at 10:00 a.m. Counsel will be advised of the procedures for participating in the conference. (Status Conference set for 12/4/2020 10:00 AM before Magistrate Judge Karen S. Crawford.) (Plaintiff Attorney Stephen Medlock). (Defendant Attorney Katherine Shinners). (no document attached) (src) (Entered: 09/11/2020)

09/11/2020

546 MOTION for Leave to File Exhibit in Support of Plaintiffs' Motion for Summary Judgment Non-Electronically by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 09/11/2020)

09/11/2020 547 MOTION to File Documents Under Seal (Medlock, Stephen) (anh). (Entered: 09/11/2020)

09/11/2020

548 SEALED LODGED Proposed Document re: 547 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). Exhibit D filed under seal at 688 per Order 687 (anh). (Entered: 09/11/2020)

09/11/2020

549 Joint MOTION for Discovery (Redacted) concerning spoliation sanctions by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock In Support Of Joint Motion, # 2 Exhibit 1 (Redacted) to Declaration of Stephen Madlock, # 3 Exhibit 2 to Declaration of Stephen Madlock, # 4 Exhibit 3 to Declaration of Stephen Madlock, # 5 Exhibit 4 to Declaration of Stephen Madlock, # 6 Exhibit 5 to Declaration of Stephen Madlock, # 7 Exhibit 6 to Declaration of Stephen Madlock, # 8 Declaration of Katherine J. Shinners In Support of Joint Motion, # 9 Exhibit A to Declaration of Katherine J. Shnners, # 10 Exhibit B to Declaration of Katherine J. Shnners, # 11 Exhibit C to Declaration of Katherine J. Shnners, # 12 Exhibit D to Declaration of Katherine J. Shnners, # 13 Exhibit E to Declaration of Katherine J. Shnners)(Medlock, Stephen) (jmo). (Entered: 09/11/2020)

09/15/2020 550 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-14504864.) (Application to be reviewed by Clerk.) (Webster, Michelle) (dsn) (Entered: 09/15/2020)

09/15/2020

551 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-14504877.) (Application to be reviewed by Clerk.) (Parr, Allison) (dsn) (Entered: 09/15/2020)

09/15/2020 552 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-14504898.) (Application to be reviewed by Clerk.) (Murphy, Victoria)(dsn) (Entered: 09/15/2020)

09/15/2020 553 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-14504908.) (Application to be reviewed by Clerk.) (Fields, Sydney) (dsn) (Entered: 09/15/2020)

09/15/2020

554 ORDER Granting Plaintiffs' Motion Seeking Leave to Allow nonElectronic Filing in Support of Summary Judgment Motion (ECF No. 546 ). Plaintiffs may fileExhibit 18 to their summary judgment motion via CD-ROM and shall expeditiouslyprovide Defendants with a copy of the recording contained therein. Signed by Judge Cynthia Bashant on 9/14/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 09/15/2020)

09/17/2020

555 NOTICE of Filing Redacted Documents Pursuant to Dkt. 543 by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 543 Order on Motion to File Documents Under Seal, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Medlock, Stephen) (jmo). (Entered: 09/17/2020)

09/21/2020

556 ORDER Approving the Pro Hac Vice Application of Michelle Webster, re 550 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 9/21/2020.(rmc) (Entered: 09/21/2020)

09/21/2020 557 ORDER Approving the Pro Hac Vice Application of Allison Parr, re 551 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 9/21/2020.(rmc) (Entered: 09/21/2020)

09/21/2020

558 ORDER Approving the Pro Hac Vice Application of Victoria Murphy, re 552 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 9/21/2020.(rmc) (Entered: 09/21/2020)

09/21/2020 559 ORDER Approving the Pro Hac Vice Application of Sydney Fields, re 553 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 9/21/2020.(rmc) (Entered: 09/21/2020)

09/21/2020

560 Ex Parte MOTION for Oral Argument re 533 Sealed Lodged Proposed Document, 535 MOTION for Summary Judgment (Redacted) (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 09/21/2020)

09/25/2020 561 MOTION to File Documents Under Seal (With attachments)(Shinners, Katherine) (anh). (Entered: 09/25/2020)

09/25/2020

562 SEALED LODGED Proposed Document re: 561 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Shinners, Katherine) (anh). (Entered: 09/25/2020)

09/25/2020

563 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Alexander J. Halaska, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52, # 55 Exhibit 53, # 56 Exhibit 54, # 57 Exhibit 55, # 58 Exhibit 56, # 59 Exhibit 57, # 60 Exhibit 58, # 61 Exhibit 59, # 62 Exhibit 60, # 63 Exhibit 61, # 64 Exhibit 62, # 65 Exhibit 63, # 66 Exhibit 64, # 67 Exhibit 65, # 68 Exhibit 66, # 69 Exhibit 67)(Halaska, Alexander) (jmo). (Attachment 66 replaced on 11/20/2020 per order #629) (mme). (Entered: 09/25/2020)

09/27/2020 564 SEALED LODGED Proposed Document re: 561 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Shinners, Katherine) (jmo). (Entered: 09/27/2020)

09/29/2020

565 ORDER regarding the parties' Joint Motion for Determination of June 2020 Clawback [Doc. No. 524] and documents lodged with Judge Crawford's Chambers. On August 18, 2020, the parties filed a Joint Motion requesting that the Court determine whether defendants should be allowed to claw back purportedly privileged and inadvertently produced documents. The same day, defendants lodged 17 documents, identified as documents A-Q, with Judge Crawford's Chambers for in camera review in connection with the Joint Motion. Defendants assert all 17 documents are protected by the attorney client and/or deliberative process privileges. Doc. No. 524 at 3-6, 7 n.3. Plaintiffs state in the Joint Motion that the dispute "relates only to Document K" and that for "strategic reasons" they do not challenge defendants' assertion of privilege over any of the other documents. Id. at 12 and n.5. Yet, plaintiffs also advocate for disclosure of "the documents" (plural), id. at

14, and the Court notes that among the 17 documents lodged with Chambers there are 4 identical copies of the document labeled "Document K." By the close of business on Wednesday, September 30, 2020, the parties are to file a one-page document via ECF identifying which of the 17 documents lodged with Chambers are the subject of the parties' June 2020 clawback dispute. SO ORDERED. Signed by Magistrate Judge Karen S. Crawford on 9/29/20.(no document attached) (src) (Entered: 09/29/2020)

09/30/2020

566 RESPONSE re 565 Order,,,,, (Joint Response to Docket Entry 565) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 09/30/2020)

10/05/2020

567 RESPONSE in Opposition re 539 MOTION to Exclude Plaintiffs' Purported Expert Testimony filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 10/05/2020)

10/05/2020 568 MOTION to File Documents Under Seal (With attachments)(Sampat, Dhruman) (anh). (Entered: 10/05/2020)

10/05/2020

569 SEALED LODGED Proposed Document re: 568 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Sampat, Dhruman) (anh). (Entered: 10/05/2020)

10/05/2020

570 RESPONSE in Opposition re 536 MOTION to Exclude Defendants' Purported Expert Testimony (Redacted) filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Dhruman Y. Sampat, # 2 Exhibit 1 Defendants' Rule 26(a)(2)(C) Disclosures, # 3 Exhibit 2 - Declaration of Samuel B. Cleaves, # 4 Exhibit 3 - Declaration of Rodney H. Harris, # 5 Exhibit 4 - Declaration of Mariza Marin)(Sampat, Dhruman) (jmo). (Entered: 10/05/2020)

10/07/2020

571 Joint MOTION for Extension of Time to File Response/Reply in support of parties' motion to exclude expert testimony by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Dhruman Y. Sampat)(Sampat, Dhruman) (jmo). (Entered: 10/07/2020)

10/12/2020 572 MOTION to File Documents Under Seal (With attachments)(Lev, Ori) (anh). (Entered: 10/12/2020)

10/12/2020

573 **Document filed under seal at doc. no. 577 per Order 576 ** SEALED LODGED Proposed Document re: 572 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Lev, Ori) (anh). Modified on 10/13/2020 (anh). (Entered: 10/12/2020)

10/12/2020

574 Emergency MOTION to Enforce Preliminary Injunction and Temporarily Enjoin Removal of Preliminary Injunction Class Member (Ex Parte) - Redacted by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Rebecca M. Cassler, # 3 Declaration of Nicole Ramos, # 4 Declaration of Melissa Crow)(Lev, Ori) (jmo). (Entered: 10/12/2020)

10/13/2020

575 NOTICE of the Parties' Continued Conferral Efforts Regarding Plaintiffs' Ex Parte Emergency Motion to Enforce Preliminary Injunction and Temporarily Enjoin Removal of Preliminary Injunction Class Member by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 574 Emergency MOTION to Enforce Preliminary Injunction and Temporarily Enjoin Removal of Preliminary Injunction Class Member (Ex Parte) - Redacted (Attachments: # 1 Supplemental Declaration of Melissa Crow)(Lev, Ori) (jmo). (Entered: 10/13/2020)

10/13/2020

576 ORDER granting 572 Motion to File Documents Under Seal; granting 574 Emergency Motion. IT IS HEREBY ORDERED that the Government is temporarily restrained and enjoined from relocating Applicant outside the United States pending the Courts consideration of the issues in this action. This Order extends to Defendants and any other federal officials and personnel involved in the removal process. IT IS FURTHER ORDERED that the Government shall file an Opposition to the Ex Parte Motion by October 16, 2020. A hearing on the issues raised in the Motion is set for Monday, October 19, 2020 at 11:30 a.m. in Courtroom 4B. This Order shall remain in effect until this date. Signed by Judge Cynthia Bashant on 10/13/2020. (BAS Chambers) (Entered: 10/13/2020)

10/14/2020

578 ORDER Granting Joint Motion to Extend Deadlines for Parties to File Replies In Support of Their Motions to Exclude Expert Testimony (ECF No. 571 ). Both parties shall file their respective reply briefs regarding the motions to exclude by 10/19/2020. Signed by Judge Cynthia Bashant on 10/13/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 10/14/2020)

10/14/2020

579 **DOCUMENT WITHDRAWN BY FILER PER NOTICE TO WITHDRAW 580 **Joint MOTION To Permit Remote Attendance At October 19, 2020 Hearing by Al Otro Lado, Inc.. (Attachments: # 1 Declaration Of Ori Lev In Support Of Unopposed Joint Motion To Permit Remote Attendance At July 30, 2020 Hearing)(Lev, Ori)***QC mailer re: joint motion not signed by all parties.** (jmo). Modified on 10/15/2020 to withdraw document and term motion per chambers. (jmo) (Entered: 10/14/2020)

10/15/2020

580 NOTICE OF WITHDRAWAL OF DOCUMENT by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 579 Joint MOTION To Permit Remote Attendance At October 19, 2020 Hearing filed by Al Otro Lado, Inc. . (Lev, Ori) (jmo). (Entered: 10/15/2020)

10/15/2020

581 Joint MOTION to Permit Remote Attendance at October 19, 2020 Hearing by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Ori Lev)(Lev, Ori) (jmo). (Entered: 10/15/2020)

10/15/2020

582 ORDER Granting Joint Motion to Permit Remote Attendance at October 19, 2020 Hearing (ECF No. 581 ). Signed by Judge Cynthia Bashant on 10/15/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 10/15/2020)

10/16/2020 583 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 10/16/2020)

10/16/2020

584 SEALED LODGED Proposed Document re: 583 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). (Entered: 10/16/2020)

10/16/2020

585 RESPONSE in Opposition re 563 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment [Redacted] filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7)(Medlock, Stephen) (jmo). (Entered: 10/16/2020)

10/16/2020 586 MOTION to File Documents Under Seal (With attachments)(Halaska, Alexander) (anh). (Entered: 10/16/2020)

10/16/2020

587 SEALED LODGED Proposed Document re: 586 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Halaska, Alexander) (anh). (Entered: 10/16/2020)

10/16/2020

588 RESPONSE in Opposition re 574 Emergency MOTION to Enforce Preliminary Injunction and Temporarily Enjoin Removal of Preliminary Injunction Class Member (Ex Parte) - Redacted filed by Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2)(Halaska, Alexander) (jmo). (Entered: 10/16/2020)

10/19/2020 589 MOTION to File Documents Under Seal (With attachments)(Lev, Ori) (anh). (Entered: 10/19/2020)

10/19/2020

590 SEALED LODGED Proposed Document re: 589 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Lev, Ori) (anh). (Entered: 10/19/2020)

10/19/2020

591 NOTICE of Additional Exhibits [Redacted] by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 574 Emergency MOTION to Enforce Preliminary Injunction and Temporarily Enjoin Removal of Preliminary Injunction Class Member (Ex Parte) Redacted (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Lev, Ori) (jmo). (Entered: 10/19/2020)

10/19/2020

592 REPLY to Response to Motion re 536 MOTION to Exclude Defendants' Purported Expert Testimony (Redacted) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 10/19/2020)

10/19/2020

593 REPLY to Response to Motion re 539 MOTION to Exclude Plaintiffs' Purported Expert Testimony filed by Todd C. Owen, Chad F. Wolf. (Sampat, Dhruman) (jmo). (Entered: 10/19/2020)

10/19/2020

594 RESPONSE in Support re 532 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - Foret Decl., # 3 Exhibit B - Howe Decl., # 4

Exhibit C - Harris Decl., # 5 Exhibit D - Buckley Decl., # 6 Exhibit E Wagner Decl.)(Shinners, Katherine) (jmo). (Entered: 10/19/2020)

10/19/2020

595 Minute Entry for proceedings held before Judge Cynthia Bashant: Motion Hearing held on 10/19/2020 re 574 Emergency MOTION to Enforce Preliminary Injunction and Temporarily Enjoin Removal of Preliminary Injunction Class Member. Court to issue order. Courts Order Granting Motion (ECF No. 576) extended pursuant to the Courts order during the hearing. See Fed. R. Civ. P. 65(b)(2). (Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Rebecca Cassler, Karolina Walters, Ori Lev, Melissa Crow, and Angelo Guisado). (Defendant Attorney Alexander Halaska and Katherine Shinners). (no document attached) (sxm) (Entered: 10/20/2020)

10/26/2020

596 ORDER Extending Temporary Restraining Order re: (ECF No. 576 ). The Court is preparing a written order on Plaintiffs' Motion. For this reason, theCourt hereby extends the TRO until 11/3/20. Signed by Judge Cynthia Bashant on 10/26/20.(All non-registered users served via U.S. Mail Service)(jmo) (Entered: 10/26/2020)

10/27/2020

597 Joint MOTION for Extension of Time to File Joint Statement of Undisputed Material Facts by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Dhruman Y. Sampat)(Sampat, Dhruman)(jmo). (Entered: 10/27/2020)

10/27/2020

598 Amicus Curiae Appearance entered by Harrison J. Frahn, IV on behalf of Amici Curiae Organizations Advocating For Asylum Seekers. (Frahn, Harrison) (jmo). (Entered: 10/27/2020)

10/27/2020

599 Amicus Curiae Appearance entered by Anne Aufhauser on behalf of Haitian Bridge Alliance, Institute for Justice & Democracy in Haiti, Ira Kurzban, Irwin Stotzky. (Aufhauser, Anne)(jmo). (Entered: 10/27/2020)

10/27/2020

600 MOTION for Leave to File Brief Amici Curiae by Haitian Bridge Alliance, Institute for Justice & Democracy in Haiti, Ira Kurzban, Irwin Stotzky. (Attachments: # 1 Memo of Points and Authorities, # 2 Brief of Haitian Bridge Alliance, Institute for Justice & Democracy in Haiti, Ira Kurzban, and Irwin Stotzky as Amici Curiae in Support of Plaintiffs' Motion for Summary Judgment, # 3 Proof of Service)(Aufhauser, Anne) (jmo). (Entered: 10/27/2020)

10/27/2020 601 MOTION for Leave to File Amicus Brief of Fourteen Organizations Advocating for Asylum Seekers by Amici Curiae Organizations Advocating For Asylum Seekers. (Attachments: # 1 Table of Contents

of Exhibits, # 2 Exhibit A)(Frahn, Harrison)(jmo). (Entered: 10/27/2020)

10/28/2020

602 MOTION for Leave to File Brief of Amici Curiae by Center for Gender and Refugee Studies, Harvard Immigration and Refugee Clinical Program, Boston University School of Law Immigrants' Rights and Human Trafficking Program. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Daher, Anne)Attorney Anne P. Daher added to party Center for Gender and Refugee Studies(pty:am), Attorney Anne P. Daher added to party Harvard Immigration and Refugee Clinical Program(pty:am), Attorney Anne P. Daher added to party Boston University School of Law Immigrants' Rights and Human Trafficking Program(pty:am) (jmo). (Entered: 10/28/2020)

10/29/2020

603 ORDER Granting Motions for Leave to File Briefs Amici Curiae (ECF Nos. 600 , 601 ). Signed by Judge Cynthia Bashant on 10/28/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 10/29/2020)

10/29/2020

604 ORDER Granting Joint Motion to Extend Deadline to File Joint Statement of Undisputed Material Facts (ECF No. 597 ). The parties shall file the joint statement by 11/6/20. Signed by Judge Cynthia Bashant on 10/28/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 10/29/2020)

10/30/2020

605 ORDER : (1) Granting Plaintiffs' Motion for Clarification of the Preliminary Injunction [ECF No. 494 ]; (2) Granting In Part and Denying In Part Plaintiffs' Motion to Seal [ECF No. 495 ]; (3) Denying as Moot Plaintiffs' Ex Parte Motion for Oral Argument [ECF No. 409 ]. Signed by Judge Cynthia Bashant on 10/30/2020. (anh) (Entered: 10/30/2020)

10/30/2020

607 ORDER (1) Granting Plaintiffs' Emergency Motion (ECF No. 574 ); and (2) Denying Without Prejudice the Parties' Respective Motions to Seal (ECF Nos. 586 , 589 . The parties shall submit their proposed redactions by 11/13/20. The documents shall remain sealed in the interim. Signed by Judge Cynthia Bashant on 10/30/20. (All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 10/30/2020)

10/30/2020 608 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 10/30/2020)

10/30/2020

609 SEALED LODGED Proposed Document re: 608 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). (Entered: 10/30/2020)

10/30/2020

610 REPLY to Response to Motion re 535 MOTION for Summary Judgment (Redacted) filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38)(Medlock, Stephen) (jmo). (Entered: 10/30/2020)

10/30/2020

611 REPLY to Response to Motion re 563 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed by Todd C. Owen, Chad F. Wolf. (Halaska, Alexander) (jmo). (Entered: 10/30/2020)

11/02/2020

612 ORDER Granting Motion for Leave to File Brief as Amici Curiae (ECF No. 602 ). Signed by Judge Cynthia Bashant on 11/2/20. (All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 11/02/2020)

11/02/2020

613 ORDER Regarding Joint Motion for Determination of June 2020 Clawback Dispute; Order Granting Motion to Seal [Doc. Nos. 522 ; 524 ]. Signed by Magistrate Judge Karen S. Crawford on 11/2/2020. (anh) (Entered: 11/03/2020)

11/04/2020

615 NOTICE of Withdrawal of Joint Motion for Determination of Discovery Dispute (ECF No. 521) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf re 521 Joint MOTION for Determination of May 2020 Clawback Dispute (Shinners, Katherine) Modified on 11/5/2020 to correct event to motion to withdraw (jmo). (Entered: 11/04/2020)

11/05/2020

616 ORDER Granting Motion to Withdraw Document; Order Denying as Moot Motion to Seal (Doc. Nos. 519 , 615 ). The Clerk of the Court is instructed not to file the document(s) lodged at Docket No. 520. Signed by Magistrate Judge Karen S. Crawford on 11/5/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 11/05/2020)

11/06/2020 617 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 11/06/2020)

11/06/2020 618 SEALED LODGED Proposed Document re: 617 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Medlock, Stephen) (anh). (Entered: 11/06/2020)

11/06/2020

619 Joint Statement of Undisputed Material Facts by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe (Redacted). (Medlock, Stephen) (jmo). (Entered: 11/06/2020)

11/09/2020 620 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 11/09/2020)

11/09/2020 621 SEALED LODGED Proposed Document re: 620 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Medlock, Stephen) (anh). (Entered: 11/09/2020)

11/09/2020

622 MEMORANDUM OF FACTS AND CONTENTIONS OF LAW by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Medlock, Stephen) (jmo). (Entered: 11/09/2020)

11/09/2020 623 MOTION to File Documents Under Seal (With attachments)(Shinners, Katherine) (anh). (Entered: 11/09/2020)

11/09/2020 624 SEALED LODGED Proposed Document re: 623 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Shinners, Katherine) (anh). (Entered: 11/09/2020)

11/09/2020

625 MEMORANDUM OF FACTS AND CONTENTIONS OF LAW by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Shinners, Katherine) (jmo). (Entered: 11/09/2020)

11/13/2020

626 NOTICE of Filing Redacted Materials Pursuant to Dkt. Nos. 605 & 607 (Joint) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe re 605 Order on Motion to Clarify,, Order on Motion to File Documents Under Seal,, Order on Motion for Miscellaneous Relief, 607 Order on Motion to File Documents Under Seal,,, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Medlock, Stephen) (jmo). (Entered: 11/13/2020)

11/17/2020 627 ORDER Vacating Final Pretrial Conference. Signed by Judge Cynthia Bashant on 11/17/20.(All non-registered users served via U.S. Mail Service)(jmo) (Entered: 11/17/2020)

11/18/2020

628 NOTICE Regarding Exhibit Attachment by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf re 563 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment (Attachments: # 1 Exhibit Replacement Exhibit Defs.' SJ Ex. 64)(Shinners, Katherine) (mme). (Entered: 11/18/2020)

11/19/2020

629 ORDER Granting 628 Defendants' Application to Replace Exhibit 64 to Summary Judgment Briefing. For good cause shown, the Court ORDERS thatExhibit 64 (ECF No. 563-66) be removed from the docket and replaced with the redacted version attached to Defendants Application. (ECF No. 628-1.) Signed by Judge Cynthia Bashant on 11/19/2020.(All non-registered users served via U.S. Mail Service)(mme) (Entered: 11/20/2020)

11/20/2020

630 Joint MOTION to Continue Pretrial Deadlines by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners)(Shinners, Katherine) (mme). (Entered: 11/20/2020)

11/23/2020

631 RESPONSE in Support re 583 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - Foret Decl, # 3 Exhibit B - Howe Decl, # 4 Exhibit C - Harris Decl, # 5 Exhibit D - Buckley Decl)(Shinners, Katherine) (jmo). (Entered: 11/23/2020)

11/24/2020

632 ORDER Granting Joint Motion to Vacate Pretrial Deadlines (ECF No. 630 ). Signed by Judge Cynthia Bashant on 11/23/20. (All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 11/24/2020)

11/30/2020

633 RESPONSE in Support re 608 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - Foret Decl., # 3 Exhibit B - Draganac Decl, # 4 Exhibit C - Heitke Decl, # 5 Exhibit D - Moncayo Decl, # 6 Exhibit E - Buckley Decl)(Shinners, Katherine) (jmo). (Entered: 11/30/2020)

12/02/2020

634 NOTICE OF APPEAL to the 9th Circuit as to 605 Order Granting Plaintiffs' Motion for Clarification of the Preliminary Injunction by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. Fee Waived. (Notice of Appeal electronically

transmitted to the US Court of Appeals.) (Halaska, Alexander). (Modified on 12/2/2020: Edited docket text re linked Order.) (akr). (Entered: 12/02/2020)

12/02/2020

635 STATUS REPORT (Joint) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 12/02/2020)

12/02/2020

636 ORDER of USCA as to 335 Notice of Appeal to the 9th Circuit filed by Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. Submission is vacated and appellate proceedings are held in abeyance pending issuance of the mandates in East Bay Sanctuary Covenant v. Trump, 964 F.3d 832 (9th Cir. 2020) ("East Bay"), in which a petition for rehearing en banc is pending, and Capital Area Immigrants' Rights Coalition v. Trump, No. 20-5273 (D.C. Cir. filed Oct. 1, 2020) ("CAIR"). Within 30 days of the issuance the latter of the mandates in East Bay and CAIR, the parties shall each file a supplemental brief of up to 10 pages discussing the implications of the dispositions in those cases, if any, on this case. The parties are, of course, encouraged to notify the USCA pursuant to FRAP 28(j) of any other developments affecting this case in the meantime. (akr). (Main Document 636 replaced on 12/15/2020 with replacement Order issued by the USCA. Case citation for East Bay Sanctuary Covenant v. Trump corrected in the text of the Order and in the docket text.) (akr). (Entered: 12/02/2020)

12/02/2020

637 **WITHDRAWN PER ECF NO. 673 **MOTION to Stay re 605 Order on Motion to Clarify,, Order on Motion to File Documents Under Seal,, Order on Motion for Miscellaneous Relief, (Expedited Motion) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Alexander J. Halaska, # 3 Exhibit 1 Decl. of Ashley B. Caudill-Mirillo (Aug. 3, 2020), # 4 Exhibit 2 - Decl. of Jill W. Anderson (Aug. 3, 2020), # 5 Exhibit 3 - Decl. of Jay Visconti (Nov. 25, 2020), # 6 Exhibit 4 - Decl. of Jay Visconti (Aug. 3, 2020), # 7 Exhibit 5 - Decl. of Jill W. Anderson (Nov. 24, 2020), # 8 Exhibit 6 - Decl. of Jose C. Pitti (Nov. 27, 2020))(Halaska, Alexander) (jmo). Modified on 1/25/2021 to withdraw motion (jmo). (Entered: 12/02/2020)

12/02/2020

638 Ex Parte MOTION for Expedited Briefing re 637 MOTION to Stay re 605 Order on Motion to Clarify,, Order on Motion to File Documents Under Seal,, Order on Motion for Miscellaneous Relief, (Expedited Motion) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen,

Todd C. Owen, Chad F. Wolf. (Halaska, Alexander) (jmo). (Entered: 12/02/2020)

12/04/2020

639 USCA Case Number 20-56287 for 634 Notice of Appeal to the 9th Circuit filed by Chad F. Wolf, Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. (akr) (Entered: 12/04/2020)

12/07/2020

640 Minute Order for proceedings held before Magistrate Judge Karen S. Crawford:Status Conference held on 12/7/2020. Appearances for plaintiffs: Stephen Medlock, Ori Lev, Rebecca Cassler, Karolina Walters. Appearances for defendants: Katherine Shinners, Alexander Halaska. (no document attached) (src) (Entered: 12/07/2020)

12/07/2020

641 ORDER Denying Defendants' Ex Parte Application for an Expedited Briefing Schedule and Decision on the Motion to Stay (ECF No. 638 ). Court sets Stay Motion for hearing on 2/8/20. This hearing date is solely for purposes of setting the briefing schedule for the Stay Motion. See Judge Bashant's Standing Order for Civil Cases, § 4B. Signed by Judge Cynthia Bashant on 12/7/20. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 12/07/2020)

12/14/2020

642 ORDER of USCA as to 634 Notice of Appeal to the 9th Circuit filed by Chad F. Wolf, Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. The motion to assign this appeal to the panel assigned to decide Al Otro Lado v. Wolf, No. 19-56417, is granted. The alternative motion to consolidate is denied as unnecessary. The USCA has received the emergency motion to stay the USDC's October 30, 2020 order. Orders regarding filing deadlines and briefing schedules issued. (akr) (Entered: 12/14/2020)

12/15/2020 643 MOTION to File Documents Under Seal (With attachments)(Lev, Ori) (anh). (Entered: 12/15/2020)

12/15/2020

644 MOTION to Enforce Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Rebecca M. Cassler, # 2 Declaration of Ori Lev, # 3 Exhibit 1 to Lev Declaration, # 4 Exhibit 2 to Lev Declaration, # 5 Exhibit 3 to Lev Declaration (REDACTED), # 6 Exhibit 4 to Lev Declaration (REDACTED))(Lev, Ori) (jmo). (Entered: 12/15/2020)

12/15/2020

645 SEALED LODGED Proposed Document re: 643 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Lev, Ori) (anh). (Entered: 12/15/2020)

12/15/2020

646 AFFIDAVIT in Support re 644 MOTION to Enforce Preliminary Injunction Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Enforce Preliminary Injunction filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Lev, Ori) (jmo). (Entered: 12/15/2020)

12/15/2020

647 MOTION for Protective Order Concerning Asylum Information of Potential Preliminary-Injunction Class Members by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Katherine J. Shinners, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Shinners, Katherine) (jmo). (Entered: 12/15/2020)

12/16/2020

648 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/19/2020 before Judge Cynthia Bashant. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/6/2021. Redacted Transcript Deadline set for 1/19/2021. Release of Transcript Restriction set for 3/16/2021. (akr) (Entered: 12/16/2020)

12/17/2020

649 ORDER of USCA as to 634 Notice of Appeal to the 9th Circuit filed by Chad F. Wolf, Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. The unopposed motion to modify the briefing schedule is granted. Briefing schedule issued. (akr) (Entered: 12/17/2020)

12/17/2020 650 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number ACASDC-15068813.) (Application to be reviewed by Clerk.) (Albun, Zachary)(rmc). (Entered: 12/17/2020)

12/17/2020

651 ORDER Approving the Pro Hac Vice Application of Zachary Albun, re 650 Request to Appear Pro Hac Vice. Signed by Judge Cynthia Bashant on 12/17/2020.(rmc) (Entered: 12/17/2020)

12/18/2020

652 ORDER of USCA as to 634 Notice of Appeal to the 9th Circuit filed by Chad F. Wolf, Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. Appellants (collectively, "the Government") request an emergency administrative stay of the USDC's October 30, 2020, order granting Al Otro Lado's motion for clarification of the preliminary

injunction ("clarification order"). The Government also seeks a stay of the USDC's clarification order pending appeal. "A temporary stay in this context (sometimes referred to as an administrative stay) is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal." The status quo will be preserved by granting in part and denying in part the administrative stay request. Therefore, the administrative stay is granted insofar as the clarification order requires the Government to take affirmative steps to find and reopen or reconsider cases in which the Asylum Transit Rule was applied to provisional class members but that became final before November 19, 2019, when the preliminary injunction was entered, or during the period of the administrative stay in Al Otro Lado v. Wolf, No. 19-56417, December 20, 2019, to March 5, 2020. The administrative stay is denied in all other respects, including as to the Government's obligation to adjudicate consistent with the clarified preliminary injunction any motion to reopen or reconsider that is filed by a member of the provisional class. Scheduling orders issued. (akr) (Entered: 12/18/2020)

12/18/2020

653 Ex Parte MOTION for Oral Argument re 644 MOTION to Enforce Preliminary Injunction (Unopposed) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 12/18/2020)

12/29/2020

654 MOTION to Withdraw as Attorney by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Allison W. Parr)(Lev, Ori) (jmo). (Entered: 12/29/2020)

12/30/2020

655 ORDER Granting Motion to Withdraw Counsel for Plaintiff (ECF No. 654 ). Allison W. Parr is no longer counsel of record fo Plaintiffs in this matter. Signed by Judge Cynthia Bashant on 12/30/20. (All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 12/30/2020)

01/05/2021

656 RESPONSE in Opposition re 647 MOTION for Protective Order Concerning Asylum Information of Potential Preliminary-Injunction Class Members filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Rebecca M.

Cassler, # 2 Declaration of Erika Pinheiro)(Lev, Ori) (jmo). (Entered: 01/05/2021)

01/05/2021

657 RESPONSE in Opposition re 644 MOTION to Enforce Preliminary Injunction filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - Draganac Decl., # 3 Exhibit B - Anderson Decl., # 4 Exhibit C - IJ Decision, # 5 Exhibit D - Mura Decl., # 6 Exhibit E - Proposed Notice, # 7 Exhibit F - Visconti Decl., # 8 Exhibit G - May 2019 Metering Update, # 9 Exhibit H - Nov 2019 Metering Update, # 10 Exhibit I - BIA Decision)(Shinners, Katherine) (jmo). (Entered: 01/05/2021)

01/06/2021

658 MOTION for Temporary Restraining Order by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration Stephen Medlock, # 3 Exhibit 1, # 4 Exhibit 2)(Medlock, Stephen) (jmo). (Entered: 01/06/2021)

01/06/2021

659 Ex Parte MOTION to Shorten Time of the Briefing Schedule for their Motion for Temporary Restraining Order by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 01/06/2021)

01/08/2021

660 RESPONSE in Opposition re 659 Ex Parte MOTION to Shorten Time of the Briefing Schedule for their Motion for Temporary Restraining Order filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2)(Shinners, Katherine) (jmo). (Entered: 01/08/2021)

01/08/2021

661 ORDER Granting in Part Plaintiff's Ex Parte Application to Shorten the Briefing Schedule for the Motion for Temporary Restraining Order (ECF No. 659 ). Defendants' opposition shall be due on or before 1/13/2021. Plaintiffs' reply shall be due on or before 1/15/2021. Signed by Judge Cynthia Bashant on 1/8/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 01/08/2021)

01/12/2021

662 REPLY to Response to Motion re 647 MOTION for Protective Order Concerning Asylum Information of Potential Preliminary-Injunction Class Members filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J.

Shinners, # 2 Exhibit D - Lyon v ICE protective order)(Shinners, Katherine) (jmo). (Entered: 01/12/2021)

01/12/2021 663 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 01/12/2021)

01/12/2021

664 SEALED LODGED Proposed Document re: 663 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). (Entered: 01/12/2021)

01/12/2021

665 REPLY to Response to Motion re 644 MOTION to Enforce Preliminary Injunction filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Karolina Walters, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Medlock, Stephen) (jmo). (Entered: 01/12/2021)

01/13/2021

666 MOTION to Withdraw as Attorney by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Counsel)(Halaska, Alexander) (jmo). (Entered: 01/13/2021)

01/13/2021

667 RESPONSE in Opposition re 658 MOTION for Temporary Restraining Order filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - JSUF, # 3 Exhibit B - Good Decl., # 4 Exhibit C - Caudill-Mirillo Decl., # 5 Exhibit D - USCIS Guidance, # 6 Exhibit E - IJ Decision, # 7 Exhibit F - IJ Decision)(Shinners, Katherine) (jmo). (Entered: 01/13/2021)

01/14/2021

668 ORDER of USCA as to 634 Notice of Appeal to the 9th Circuit filed by Chad F. Wolf, Elaine C. Duke, Kirstjen Nielsen, Kevin K. McAleenan, Todd C. Owen. Appellants (collectively, "the Government") move for an emergency stay pending appeal of the USDC's October 30, 2020 order granting Plaintiffs' motion for clarification of the preliminary injunction ("clarification order"). The preliminary injunction is the subject of an earlier appeal that is pending before this panel but is currently held in abeyance... We therefore deny the Government's emergency motion for a stay of the clarification order pending appeal. We also lift the partial administrative stay we issued on December 18, 2020. The briefing schedule established previously remains in effect. (See Order for full text.) (akr) (Entered: 01/15/2021)

01/15/2021 669 ORDER Granting Motion to Withdraw as Counsel for Defendants (ECF No. 666 ) Attorney Scott Grant Stewart is no longer counsel of

record for Defendants in this matter. Signed by Judge Cynthia Bashant on 1/14/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 01/15/2021)

01/15/2021

670 REPLY - Other re 658 MOTION for Temporary Restraining Order REPLY IN SUPPORT OF PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Medlock, Stephen) (jmo). (Entered: 01/15/2021)

01/18/2021

671 ORDER granting 658 Plaintiffs' Motion for Temporary Restraining Order. The Court TEMPORARILY ENJOINS Defendants from applying 85 Fed. Reg. 82,260 (Dec. 17, 2020) to all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. Port of Entry (POE) before July 16, 2019 because of the U.S. government's metering policy, and who continue to seek access to the U.S. asylum process. Further, the Court sets oral argument on the issues raised in the motion for February 3, 2021, at 1:30 p.m. Signed by Judge Cynthia Bashant on 1/18/2021. (BAS) (Entered: 01/18/2021)

01/22/2021

672 Joint MOTION to Withdraw 637 MOTION to Stay re 605 Order on Motion to Clarify,, Order on Motion to File Documents Under Seal,, Order on Motion for Miscellaneous Relief, (Expedited Motion) by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Shinners, Katherine) (jmo). (Entered: 01/22/2021)

01/25/2021

673 ORDER Granting Joint Motion to Withdraw Defendants' Motion to Stay (ECF No. 672 ). (ECF No. 637 ) is withdrawn. Signed by Judge Cynthia Bashant on 1/25/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 01/25/2021)

01/29/2021

674 Joint MOTION to Convert TRO to Preliminary Injunction and Vacate Hearing re 671 Order on Motion for TRO,, by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Shinners, Katherine) (jmo). (Entered: 01/29/2021)

02/01/2021

675 RESPONSE in Support re 663 MOTION to File Documents Under Seal filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners, # 2 Exhibit A - Moncayo Decl., # 3 Exhibit B - Heitke Decl., # 4 Exhibit C - Draganac Decl., # 5 Exhibit D - Foret Decl., # 6 Exhibit E - Buckley Decl.)(Shinners, Katherine) (jmo). (Entered: 02/01/2021)

02/01/2021

676 ORDER Granting Joint Motion to Convert Temporary Restraining Order to Preliminary Injunction (ECF No. 674 ). The court vacates the telephonic hearing scheduled for 2/3/21. Signed by Judge Cynthia Bashant on 2/1/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 02/01/2021)

02/16/2021

677 Joint MOTION to Correct Prior Motion to Seal re 547 MOTION to File Documents Under Seal by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Shinners, Katherine) (jmo). (Entered: 02/16/2021)

02/16/2021 678 MOTION to File Documents Under Seal (With attachments)(Lev, Ori) (anh). (Entered: 02/16/2021)

02/16/2021

679 SEALED LODGED Proposed Document re: 678 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). (Entered: 02/16/2021)

02/16/2021

680 REDACTION to 679 Sealed Lodged Proposed Document by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Stephen M. Medlock, # 3 Exhibit 1 to Medlock Declaration, # 4 Exhibit 2 to Medlock Declaration, # 5 Exhibit 3 to Medlock Declaration)(Medlock, Stephen) (jmo). Modified on 3/9/2021 to correct event to a motion per chambers (jmo). (Entered: 02/16/2021)

02/16/2021

681 Ex Parte MOTION to Shorten Time Ex Parte Application to Shorten the Briefing Schedule for their Expedited Motion for Discovery Concerning Compliance with Preliminary Injunction by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock)(Medlock, Stephen) (jmo). (Entered: 02/16/2021)

02/18/2021

682 SEALED LODGED Proposed Document re: 547 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (Entered: 02/18/2021)

02/18/2021

683 NOTICE of Errata Concerning Joint Motion Regarding Spoliation Sanctions (Redacted) by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria

Doe, Ursula Doe re 548 Sealed Lodged Proposed Document (Attachments: # 1 Exhibit 1)(Medlock, Stephen) (jmo). (Entered: 02/18/2021)

02/18/2021

684 Ex Parte MOTION for Leave to File a Sur-Reply in Further Opposition to Defendants' Motion for Protective Order Concerning Asylum Information of Potential Preliminary-Injunction Class Members by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Ori Lev, # 2 Proposed SurReply)(Lev, Ori) (jmo). (Entered: 02/18/2021)

02/18/2021

685 REPORT AND RECOMMENDATION for Order Granting in Part and Denying in Party Plaintiffs' Motion for Sanctions, re (ECF No. 549 ). Any objections must be filed with the Court and served on all parties no later than 3/19/2021. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Signed by Magistrate Judge Karen S. Crawford on 2/18/21.(All non-registered users served via U.S. Mail Service)(jmo) (Entered: 02/18/2021)

02/18/2021

686 RESPONSE in Opposition re 681 Ex Parte MOTION to Shorten Time Ex Parte Application to Shorten the Briefing Schedule for their Expedited Motion for Discovery Concerning Compliance with Preliminary Injunction filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J. Shinners (Feb. 18, 2021))(Halaska, Alexander) (jmo). (Entered: 02/18/2021)

02/19/2021 687 ORDER Granting Motion to Seal [Doc. Nos. 547 , 677 ]. Signed by Magistrate Judge Karen S. Crawford on 2/19/2021. (anh) (Entered: 02/19/2021)

02/22/2021

689 RESPONSE to Motion re 684 Ex Parte MOTION for Leave to File a Sur-Reply in Further Opposition to Defendants' Motion for Protective Order Concerning Asylum Information of Potential PreliminaryInjunction Class Members filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Halaska, Alexander) (jmo). (Entered: 02/22/2021)

02/23/2021

690 ORDER Denying Plaintiffs' Ex Parte Application for an Expedited Briefing Schedule on Motion for Discovery (ECF No. 681 ). The noticed hearing date shall remain in place and the parties shall file their respective briefings inaccordance with Civil Local Rule 7.1(e). Signed by Judge Cynthia Bashant on 2/23/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 02/23/2021)

03/04/2021

691 ORDER Directing Parties to Mediation Re: Protective Order. The Court hereby directs the parties to contact the chambers of Magistrate Judge Crawford to schedule a mediation on the narrow issue of whether a protective order should issue and, if so, what should be included in the order. Signed by Judge Cynthia Bashant on 3/4/21.(All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 03/04/2021)

03/08/2021

692 ORDER Setting Mediation Regarding Plaintiff's Motion for Protective Order. Counsel for the parties shall appear at a telephonic mediation on 3/24/2021 at 2:00 PM before the Honorable Karen S. Crawford. Signed by Magistrate Judge Karen S. Crawford on 3/8/21.(All non-registered users served via U.S. Mail Service)(jmo) (Entered: 03/08/2021)

03/08/2021 693 MOTION to File Documents Under Seal (With attachments)(Shinners, Katherine) (anh). (Entered: 03/08/2021)

03/08/2021

694 SEALED LODGED Proposed Document re: 693 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Shinners, Katherine) (anh). (Entered: 03/08/2021)

03/08/2021

695 RESPONSE in Opposition re 681 Ex Parte MOTION to Shorten Time Ex Parte Application to Shorten the Briefing Schedule for their Expedited Motion for Discovery Concerning Compliance with Preliminary Injunction Opposition to 680 (motion for discovery) filed by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Declaration of Katherine J Shinners, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Shinners, Katherine) (jmo). (Entered: 03/08/2021)

03/15/2021 696 MOTION to File Documents Under Seal (With attachments)(Medlock, Stephen) (anh). (Entered: 03/15/2021)

03/15/2021

697 SEALED LODGED Proposed Document re: 696 MOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Medlock, Stephen) (anh). (Entered: 03/15/2021)

03/15/2021

698 REPLY to Response to Motion re 680 Ex Parte MOTION to Shorten Time Ex Parte Application to Shorten the Briefing Schedule for their Expedited Motion for Discovery Concerning Compliance with Preliminary Injunction Public version filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (Attachments: # 1 Declaration of Stephen M. Medlock, # 2 Exhibit 1 to Declaration of

Stephen M Medlock)(Medlock, Stephen) (jmo). Modified on 3/16/2021 to link to correct filing as requested by filer (mme). (Entered: 03/15/2021)

03/25/2021 699 TRANSCRIPT ORDER - For hearing(s) on March 24, 2021. (nxm) (Entered: 03/25/2021)

03/25/2021 700 MOTION to Withdraw as Attorney by Ari Nazarov by Chad F. Wolf. (Attachments: # 1 Declaration)(Nazarov, Ari) (jmo). (Entered: 03/25/2021)

03/25/2021

Minute Order for proceedings held before Magistrate Judge Karen S. Crawford:A Discovery Hearing regarding defendants' Motion for a Protective Order [Doc. No. 647] was held on 3/24/2021. The Court has taken the matter under submission. (Plaintiff Attorney Ori Lev, Rebecca Cassler).(Defendant Attorney Katherine Shinners, Dhruman Sampat). (no document attached) (src) (Entered: 03/25/2021)

03/26/2021

701 MOTION to Seal a Previously Filed Document [300-2] and [535-21] re 300 Unopposed MOTION for Leave to Lodge Supplemental Evidence by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A - Replacement Document)(Shinners, Katherine) (anh). (Entered: 03/26/2021)

03/29/2021

702 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Hearing) held on 3/24/2021 before Magistrate Judge Karen S. Crawford. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/19/2021. Redacted Transcript Deadline set for 4/29/2021. Release of Transcript Restriction set for 6/28/2021. (akr) (Entered: 03/29/2021)

03/29/2021

703 ORDER Granting Motion to Withdraw as Counsel for Defendants (ECF No. 700 ) Attorney Ari Nazarov is no longer counsel of record for Defendants. Signed by Judge Cynthia Bashant on 3/29/21. (All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 03/29/2021)

03/29/2021 704 ORDER Adopting Report and Recommendation Granting in Part and Denying in Part Motion for Sanctions (ECF No. 685 ). Signed by Judge

Cynthia Bashant on 3/29/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 03/29/2021)

04/01/2021

705 Joint MOTION to Amend/Correct 698 Reply to Response to Motion,, by Elaine C. Duke, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, Chad F. Wolf. (Shinners, Katherine) (jmo). (Entered: 04/01/2021)

04/01/2021

706 ORDER Granting Joint Motion to Correct the Record (ECF No. 705 ). Signed by Judge Cynthia Bashant on 4/1/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 04/02/2021)

04/08/2021

707 ORDER: (1) Granting in Part and Denying in Part Motion for Protective Order; and (2) granting Ex Parte Application to File a SurReply (Doc. Nos. 647 , 684 ). Signed by Magistrate Judge Karen S. Crawford on 4/7/21. (All non-registered users served via U.S. Mail Service)(jmo) (Entered: 04/08/2021)

04/08/2021

708 Plaintiffs' SUR-REPLY - re 647 MOTION for Protective Order Concerning Asylum Information of Potential Preliminary-Injunction Class Members filed by Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Bianca Doe, Carolina Doe, Cesar Doe, Dinora Doe, Emiliana Doe, Ingrid Doe, Jose Doe, Juan Doe, Maria Doe, Roberto Doe, Victoria Doe, Ursula Doe. (jmo) (Entered: 04/08/2021)

04/08/2021

709 PROTECTIVE ORDER Regarding Asylum-Related Information. Signed by Magistrate Judge Karen S. Crawford on 4/7/21.(All nonregistered users served via U.S. Mail Service)(jmo) (Entered: 04/08/2021)

PACER Service Center
Transaction Receipt

PACER Login:
Description:
Billable Pages:

04/15/2021 21:30:42

CRClearinghouse Client Code:

Docket Report

Search Criteria:

30

Cost:

Feng
3:17-cv-02366-BASKSC
3.00

 
 Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3719 Page 1 of 55

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11

AL OTRO LADO, INC., a California Corporation; ABIGAIL DOE,

12

BEATRICE DOE, CAROLINA DOE, DINORA DOE, INGRID DOE, and

13

JOSE DOE, individually and on behalf of all others similarly situated,

Case No. 17-cv-02366-BAS-KSC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

14

Plaintiffs, [ECF No. 135]

15

v.

16 KIRSTJEN NIELSEN, Secretary, U.S.

17

Department of Homeland Security, in her official capacity; KEVIN K.

18

MCALEENAN, Acting Commissioner, U.S. Customs and Border Protection, in

19

his official capacity; TODD C. OWEN, Executive Assistant Commissioner,

20

Officer of Field Operations, U.S. Customs and Border Protection, in his

21 official capacity,

22

Defendants.

23

This case concerns an alleged practice in which U.S Customs and Border

24 Protection (“CBP”) officials at ports of entry (“POE”) along the U.S.-Mexico border

25 deny asylum seekers access to the U.S. asylum process. The Defendants in this case

26 are Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security;

27 Kevin K. McAleenan, Acting Commissioner of CBP; and Defendant Todd C. Owen,

28 the Executive Assistant Commissioner of the Office of Field Operations for CBP.

– 1 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3720 Page 2 of 55

1 Each Defendant has a role in the direction and oversight of CBP and each is sued in

2 his or her official capacity. Defendants move to dismiss the Complaint in its entirety

3 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 135.)

4 Plaintiffs oppose (ECF No. 143) and Defendants have replied in support (ECF No.

5 145). For the reasons herein, the Court grants in part and denies in part Defendants’

6 motion to dismiss.

7 I. BACKGROUND

8

A. Relevant Statutory and Regulatory Background1

9

At the heart of this case are several provisions of the Immigration and

10 Nationality Act (“INA”) and its implementing regulations which elaborate a

11 procedure by which asylum seekers who arrive at POEs may seek asylum in the

12 United States—a procedure Plaintiffs refer to as “access to the U.S. asylum process.”2

13 (See generally ECF No. 1, Compl.) The INA generally provides that “[a]ny alien who

14 is physically present in the United States or who arrives in the United States [],

15 irrespective of such alien’s status, may apply for asylum in accordance with . . . where

16 applicable, section 1225(b)[.]” 8 U.S.C. § 1158(a)(1).

17

An alien who arrives in the United States, including at a designated POE, is

18

19 1 The Court relies on portions of the statutory and regulatory background
20 identified in the Complaint and the parties’ briefing to outline the relevant background

21 for the purposes of this opinion. (See Compl. ¶¶ 104–118; ECF No. 135-1; ECF No. 143.) The Court does not include all aspects of the statutory and regulatory scheme
22 concerning asylum.

23 2 Defendants take issue with Plaintiffs’ use of the phrase “access to the asylum
24 process,” asserting that “Plaintiffs misstate the law” because the INA does not use

25 that phrase. (ECF No. 135-1 at 5 n.2.) However, Defendants themselves use the phrase “asylum process” to refer to the statutory provisions identified in the
26 Complaint. (ECF No. 67-3 Ex. B.) The Court does not understand the phrase “access

27 to the asylum process” as a statement of the law itself, but rather as a shorthand to

28

collectively describe certain provisions of the INA and its implementing regulations at issue in this case. The Court similarly uses this shorthand in this opinion.

– 2 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3721 Page 3 of 55

1 deemed an “applicant for admission,” who “shall be inspected by immigration

2 officers,” and may be removed “without further hearing” “if an immigration officer

3 determines” that the alien “is inadmissible.” See 8 U.S.C. § 1225(a)(1); 8 U.S.C. §

4 1225(a)(3); 8 U.S.C. § 1182(a). The INA, however, treats asylum seekers differently.

5

An “alien [who] indicates either an intention to apply for asylum under section

6 1158 . . . or a fear of persecution” is excepted from this summary removal. 8 U.S.C.

7 § 1225(b)(1)(A)(i). Instead, “[i]f an immigration officer determines that an alien . . .

8 who is arriving in the United States . . . is inadmissible . . . and the alien indicates

9 either an intention to apply for asylum under section 1158 of this title or a fear of

10 persecution, the officer shall refer the alien for an interview by an asylum officer[.]”

11 8 U.S.C. § 1225(b)(1)(A)(ii). An implementing regulation similarly requires that if a

12 noncitizen in expedited removal proceedings asserts an intention to apply for asylum

13 or a fear of persecution, “the inspecting officer shall not proceed further with removal

14 of the alien until the alien has been referred for an interview by an asylum officer[.]”

15 8 C.F.R. § 235.3(b)(4). The regulation further mandates that “the examining

16 immigration officer shall record sufficient information in the sworn statement to

17 establish and record that the alien has indicated such intention, fear, or concern, and

18 to establish the alien’s inadmissibility.” Id.

19

An alien seeking asylum is subsequently referred to an “asylum officer,” who

20 is statutorily required to be “an immigration officer who has had professional training

21 in country conditions, asylum law, and interview techniques comparable to that

22 provided to full-time adjudicators of applications under section 1158 of this title,” and

23 “is supervised by an officer who,” inter alia, “has had substantial experience

24 adjudicating asylum applications.” 8 U.S.C. § 1225(b)(1)(E). The INA further

25 elaborates the conduct of asylum officers in the interview and a process for removal

26 if the officer determines that an alien does not have a credible fear of persecution. 8

27 U.S.C. § 1225(b)(1)(B).

28

At any point during this process, “[a]n alien applying for admission may, in the

– 3 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3722 Page 4 of 55

1 discretion of the Attorney General and at any time, be permitted to withdraw the

2 application for admission and depart immediately from the United States.” 8 U.S.C.

3 § 1225(a)(4). An implementing regulation further provides that “the alien’s decision

4 to withdraw his or her application for admission must be made voluntarily[.]” 8

5 C.F.R. § 235.4.

6

B. Factual Synopsis

7

The Plaintiffs are six individuals, Plaintiffs Abigail Doe, Beatrice Doe,

8 Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the “Individual

9 Plaintiffs”), and organizational Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”).3 They

10 allege that CBP officials have “systematically violated U.S. law and binding

11 international human rights law by refusing to allow individuals . . . who present

12 themselves at POEs along the U.S.-Mexico border and assert their intention to apply

13 for asylum or a fear of returning to their home countries—to seek protection in the

14 United States.” (Compl. ¶¶ 1–6, 37.) Plaintiffs allege that “[b]y refusing to follow

15 the law, Defendants are engaged in an officially sanctioned policy or practice[.]” (Id.

16 ¶ 5.)

17

Plaintiffs point to several reports from non-governmental organizations

18 working in the U.S.-Mexico border region and Al Otro Lado’s firsthand account,

19 which describe instances in which CBP officials denied asylum seekers who

20 presented themselves at POEs along the border access to the U.S. asylum process

21 between December 2015 and June 2017. (Id. ¶¶ 37–39, 96–103.) Plaintiffs allege

22 that CBP officials have carried out this practice through misrepresentations, threats

23 and intimidation, verbal and physical abuse, and coercion. (Id. ¶¶ 84–103.) For

24 example, CBP officials are alleged to turn away asylum seekers by falsely informing

25

26

3 The Court granted each of the Individual Plaintiffs permission to proceed

27 pseudonymously in this litigation due to their asserted fears for their physical safety.

28

(ECF No. 138.) Accordingly, each of these names is a fictitious name used by an Individual Plaintiff solely for the purposes of this litigation.

– 4 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3723 Page 5 of 55

1 them that the U.S. is no longer providing asylum, that President Trump signed a new

2 law ending asylum, that a law providing asylum to Central Americans ended, that

3 Mexican citizens are not eligible for asylum, and that the U.S. is no longer accepting

4 mothers with children for asylum. (Id. ¶ 85.) CBP officials are alleged to intimidate

5 asylum seekers by threatening to take away their children if they do not renounce a

6 claim for asylum and to deport the asylum seekers. (Id. ¶ 87.) CBP officials are also

7 alleged to force asylum seekers to sign forms in English, without translation, in which

8 the asylum seekers recant their fears of persecution. (Id. ¶ 92.) CBP officials are

9 further alleged to instruct the asylum seekers to recant their fears of persecution while

10 being recorded on video. (Id. ¶ 92.) The Court briefly sets forth the Individual

11 Plaintiffs’ and Al Otro Lado’s experiences of these alleged practices.

12

The Individual Plaintiffs

13

Plaintiffs Abigail Doe (“A.D.”), Beatrice Doe (“B.D.”), and Carolina Doe

14 (“C.D.”) are natives and citizens of Mexico, each of whom fled with their families to

15 Tijuana, Mexico, where they attempted to access the U.S. asylum process. (Compl.

16 ¶¶ 19–21.) Plaintiff A.D. sought to flee Mexico in May 2017 after her husband

17 disappeared at the hands of a Mexican drug cartel. A cartel member threatened her

18 with death. (Id. ¶¶ 19, 39–40.) She alleges that CBP officials at the San Ysidro POE

19 coerced her into signing a form which falsely stated that she did not have a fear of

20 returning to Mexico and withdrew her application for admission to the U.S., and

21 forced her and her children to return to Mexico. (Id. ¶¶ 41–45.) Plaintiff B.D. sought

22 to flee Mexico in May 2017 with her nephew and three children after the Zetas, a

23 Mexican drug cartel in southern Mexico, targeted her nephew, and after she suffered

24 severe domestic violence from her husband. (Id. ¶¶ 20, 46–47.) She presented herself

25 at the Otay Mesa POE and twice at the San Ysidro POE, where CBP officials coerced

26 her into signing a form in which she stated that she and her children have no fear of

27 returning to Mexico and withdrew her application for admission. (Id. ¶¶ 48–54.)

28 Plaintiff C.D. sought to flee Mexico in May 2017 with her three children after a drug

– 5 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3724 Page 6 of 55

1 cartel kidnapped and dismembered her brother-in-law and subsequently targeted her

2 family with death and severe harm. (Id. ¶¶ 21, 55–56.) She alleges that CBP officials

3 coerced her into recanting her fear on video and into signing a form withdrawing her

4 application for admission to the U.S. (Id. ¶¶ 57–60.)

5

Plaintiffs Dinora Doe (“D.D.”), Ingrid Doe (“I.D.”), and Jose Doe (“J.D.”) are

6 natives and citizens of Honduras. (Id. ¶¶ 22–24.) Plaintiff D.D. alleges that MS-13

7 gang members threatened to kill her and her 17-year old daughter if they did not leave

8 their home, and subsequently repeatedly raped her and her daughter over a three-day

9 period. (Id ¶¶ 22, 61–62.) D.D and her daughter fled to Mexico where MS-13 gang

10 members threatened them again. (Id. ¶ 63.) On three occasions in August 2016, D.D.

11 and her daughter sought asylum in the United States at the Otay Mesa POE, but CBP

12 officials told her that “there was no asylum in the United States,” including

13 specifically “for Central Americans,” and that she “would be handed over to Mexican

14 authorities and deported to Honduras.” (Id. ¶¶ 64–69.) Plaintiff I.D. alleges that 18th

15 Street gang members in Honduras murdered her mother and three siblings and that

16 the gang threatened her with death. (Id. ¶¶ 23, 71.) She also alleges that her partner

17 in Honduras severely abused her and her three children for several years, and

18 regularly raped her, including in front of her children. (Id. ¶¶ 23, 72.) In June 2017,

19 I.D. and her children fled to Tijuana and sought asylum at the Otay Mesa and the San

20 Ysidro POEs, where CBP officers told them that they could not seek asylum in the

21 U.S. (Id. ¶¶ 73–77.) Plaintiff J.D. alleges that 18th Street gang members murdered

22 several of his family members in Honduras. He further alleges that gang members

23 attacked him and threatened to kidnap and harm his two daughters. (Id. ¶¶ 24, 78–

24 79.) J.D. fled Honduras in June 2017 and sought asylum at the Laredo, Texas POE,

25 but CBP officers told him he could not get asylum in the United States. (Id. ¶¶ 80–

26 82.)

27

At the time the Complaint was filed, the Individual Plaintiffs alleged that they

28 “would like to present themselves again to seek asylum, but based on their experience

– 6 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3725 Page 7 of 55

1 and the experience of others with CBP’s practice at POEs, [they] understand that they

2 would likely be turned away again[.]” (Id. ¶¶ 44, 53, 59, 68, 76, 81.) They also allege

3 that they are not alone. Rather, CBP officials are alleged to have a “prevalent and

4 persistent” illegal practice since summer 2016 of denying other asylum seekers who

5 present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum

6 system. Accordingly, the Individual Plaintiffs seek to represent a class of individuals

7 with similar claims. (Id. ¶¶ 131–138 (class allegations).)

8

Al Otro Lado

9

Al Otro Lado is a non-profit California legal services organization established

10 in 2014, which provides services to indigent deportees, migrants, refugees, and their

11 families. (Compl. ¶ 12; Decl. of Erika Pinheiro, ECF No. 90–1 (“Pinheiro Decl.”) ¶

12 2.) Al Otro Lado’s mission is to coordinate and to provide screening and legal

13 representation for individuals in asylum and other immigration proceedings, seek

14 redress for civil rights violations, and provide assistance with other legal and social

15 services. (Compl. ¶ 12; Pinheiro Decl. ¶ 2.) Since December 2015, its representatives

16 have accompanied asylum seekers to the San Ysidro POE and witnessed the alleged

17 conduct of CBP officials. (Compl. ¶ 101.) In response to the alleged practices of

18 CBP officials, Al Otro Lado has diverted significant time and resources from its L.A.

19 operations and several of its non-refugee programs to send representatives to Tijuana.

20 (Id. ¶¶ 14, 16–17; Pinheiro Decl. ¶¶ 4, 6–7.) Al Otro Lado has altered its previous

21 “large-scale, mass-advisal legal clinics” in Tijuana that provided a general overview

22 on asylum laws and procedures to provide individualized assistance and direct

23 representation of asylum seekers, which has required Al Otro Lado to recruit and train

24 more attorneys. (Compl. ¶¶ 13–14; Pinheiro Decl. ¶¶ 3–4.) Al Otro Lado expends

25 significant time and resources to provide individual screenings and in-depth trainings

26 to educate asylum seekers about CBP’s conduct and challenge the alleged practices.

27 (Id. ¶ 14; Pinheiro Decl. ¶ 4.)

28

– 7 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3726 Page 8 of 55

1

C. Relevant Procedural Background

2

Plaintiffs filed the putative class action Complaint in the Central District of

3 California on July 12, 2017. (ECF No. 1.) The Complaint presses three claims against

4 the Defendants related to the INA provisions. Plaintiffs allege that (1) Defendants

5 have violated various provisions of the INA that together constitute a “right to seek

6 asylum under the [INA],” (Compl. ¶¶ 139–150); (2) the INA statutory violations also

7 violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Compl. ¶¶

8 151–164) (asserting claims under Sections 706(1) and 706(2) of the APA); and (3)

9 Defendants have violated Plaintiffs’ Fifth Amendment procedural due process rights

10 based on the alleged failure to comply with the INA’s statutory protections (id. ¶¶

11 165–176). Plaintiffs also assert claims pursuant to the Alien Tort Statute (“ATS”),

12 28 U.S.C. § 1350, for Defendants’ alleged “violation of the non-refoulement

13 doctrine,” a doctrine which Plaintiffs contend is a “specific, universal, and obligatory

14 norm,” “which has also achieved the status of a jus cogens norm.” (Compl. ¶¶ 177–

15 185). Plaintiffs seek declaratory and injunctive relief for their claims. (Id. at 52–53.)

16 II. LEGAL STANDARDS

17

A. Rule 12(b)(1) and Federal Court Jurisdiction

18

Pursuant to Rule 12(b)(1), a party may move to dismiss based on the court’s

19 lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A defendant may

20 challenge the court’s subject-matter jurisdiction in several ways, two of which are

21 raised by Defendants’ motion to dismiss: mootness and sovereign immunity. When

22 a defendant challenges the Article III standing of a plaintiff or the related issue of

23 mootness, Rule 12(b)(1) is the appropriate standard of review because it is the court’s

24 subject-matter jurisdiction which is challenged. White v. Lee, 227 F.3d 1214, 1242

25 (9th Cir. 2000) (“Mootness . . . pertain[s] to a federal court’s subject-matter

26 jurisdiction under Article III, [so it is] properly raised in a motion to dismiss under

27 [Rule] 12(b)(1).”). A Rule 12(b)(1) motion is also “a proper vehicle for invoking

28 sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir.

– 8 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3727 Page 9 of 55

1 2015). When the United States is sued or a suit implicates its sovereign immunity, a

2 waiver of sovereign immunity is deemed a prerequisite for jurisdiction. FDIC v.

3 Meyer, 510 U.S 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the

4 Federal Government and its agencies from suit.”); Jachetta v. United States, 653 F.3d

5 898, 903 (9th Cir. 2011) (“It is axiomatic that the United States may not be sued

6 without its consent and that the existence of consent is a prerequisite for jurisdiction.”)

7 (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). When sovereign

8 immunity is invoked as the basis for the absence of subject-matter jurisdiction, “[a]s

9 the party asserting a claim against the United States, [the plaintiff] has the burden of

10 ‘demonstrating an unequivocal waiver of immunity.’” United States v. Park Place

11 Associates, Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham v. United

12 States, 786 F.2d 1445, 1446 (9th Cir. 1986)).

13

B. Rule 12(b)(6) and the Sufficiency of the Complaint

14

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth “a

15 short and plain statement of the claim showing that the pleader is entitled to relief,”

16 in order to “give the defendant fair notice of what the . . . claim is and the grounds

17 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

18 Conley v. Gibson, 355 U.S. 41, 47 (1957)). A defendant may move to dismiss a

19 complaint on the ground that its allegations fail to state a claim upon which relief may

20 be granted. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests the sufficiency of

21 a complaint’s allegations. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581

22 (9th Cir. 1983). To survive such a motion, a plaintiff is required to set forth “enough

23 facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at

24 570. “A claim has facial plausibility when the plaintiff pleads factual content that

25 allows the court to draw reasonable inferences that the defendant is liable for the

26 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

27 Factual allegations must be enough to raise a right to relief above the speculative

28 level. Twombly, 550 U.S. at 556. In assessing the sufficiency of a complaint, a court

– 9 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3728 Page 10 of 55

1 accepts as true the complaint’s factual allegations and construes them in the light most

2 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Yet,

3 the court need not accept as true legal conclusions pled in the guise of factual

4 allegations. Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

5 A pleading is insufficient if it offers only “labels and conclusions” or “a formulaic

6 recitation of the elements of a cause of action,” without adequate factual allegations.

7 Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 676. Generally, a court assesses a

8 complaint’s sufficiency based on its allegations, but a court may consider materials

9 properly submitted as part of the complaint to resolve a Rule 12(b)(6) motion to

10 dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

11 III. DISCUSSION

12

A. Mootness

13

In the days following the filing of the Complaint, Defendants agreed to process

14 the Individual Plaintiffs for inspection and to permit them to access the asylum

15 process. The agreement provides that: “[t]he government agrees to allow the class

16 representatives and their children to present themselves at the San Ysidro and Laredo

17 ports of entry and access the credible fear, withholding-only, or asylum process as

18 appropriate under the [INA].” (ECF No. 67-3 Ex. B.) Three Individual Plaintiffs

19 were processed at the San Ysidro POE on July 15, 2017 and another was processed

20 on July 18, 2017. (ECF No. 135-2 Ex. A ¶ 4.) A fifth Individual Plaintiff was

21 processed at the Laredo, Texas POE on July 18, 2017. (ECF No. 135-3 Ex. B. ¶ 4.)

22 According to the Defendants, these five Individual Plaintiffs have been either referred

23 to the asylum process or placed in removal proceedings. (ECF No. 135-1 at 1, 3.)

24

The parties have different views about what this means for the Court’s

25 jurisdiction. Defendants contend that the Individual Plaintiffs’ Section 706(1) claims

26 are now moot and so the Court should dismiss the entire case. (Id. at 1, 4–9.)

27 Defendants assert that the Individual Plaintiffs have received “all the relief the Court

28 could have granted” on their Section 706(1) claims: “the verifiable opportunity to be

– 10 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3729 Page 11 of 55

1 processed as applicants for admission” at a POE along the U.S.-Mexico border

2 consistent with the INA’s provisions. (Id. at 3, 6.) Plaintiffs argue that the Section

3 706(1) claims are not moot because (1) Plaintiff Beatrice Doe has not been processed

4 for admission and therefore has not “actually received” the relief and (2) the

5 Individual Plaintiffs who have been processed for admission only received “partial

6 relief.” (ECF No. 143 at 11.) Plaintiffs further argue that all Individual Plaintiffs

7 who “crossed the U.S.-Mexico border” have a “continuing interest in pursuing a Rule

8 23 class action” for the conduct challenged in this case. (Id. at 11, 14.)

9

Article III limits the jurisdiction of the federal courts to “cases” or

10 “controversies.” U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750

11 (1984). Because of this Article III limitation, a plaintiff must show the “irreducible

12 constitutional minimum” of standing to invoke the federal judicial power: (1) an

13 “injury in fact,” (2) fairly traceable to the challenged action of the defendant, (3)

14 which is “likely” to be redressed by a favorable judicial decision. Lujan, 504 U.S. at

15 560–61. “This requirement ensures that the Federal Judiciary confines itself to its

16 constitutionally limited role of adjudicating actual and concrete disputes, the

17 resolution of which have direct consequences on the parties involved.” Genesis

18 Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). Standing frames mootness.

19 Mootness is “the doctrine of standing set in a time frame: the requisite personal

20 interest that must exist at the commencement of litigation (standing) must continue

21 throughout its existence (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S.

22 388, 397 (1980). To avoid mootness, “an actual controversy must be extant at all

23 stages of review, not merely at the time the complaint is filed.” Arizonans for Official

24 English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks and citation

25 omitted). When a case becomes moot, a federal court must dismiss it for lack of

26 jurisdiction. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086–87 (9th Cir. 2011).

27

To resolve Defendants’ mootness challenge, the Court first considers whether

28 the Individual Plaintiffs’ receipt of Section 706(1) relief could alone moot this case—

– 11 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3730 Page 12 of 55

1 it does not—and, second, whether the Individual Plaintiffs’ Section 706(1) claims

2 asserted on behalf of a putative class warrant a mootness exception—they do. In

3 considering these issues, the Court keeps in mind that “[t]he party asserting mootness

4 has a heavy burden to establish that there is no effective relief remaining for a court

5 to provide.” In re Palmdale Hills Property, 654 F.3d 868, 874 (9th Cir. 2011); San

6 Luis & Delta-Mendota Water Auth. v. United States DOI, 870 F. Supp. 2d 943, 953

7 (E.D. Cal. 2012).

8

1. This Case is Not Moot

9

Defendants’ argument that this case is moot ignores organizational Plaintiff Al

10 Otro Lado’s presence in this case and the Individual Plaintiffs’ other requests for

11 relief. “A case becomes moot only when it is impossible for a court to grant any

12 effectual relief whatever to the prevailing party.” Knox v. SIEU, Local 1000, 567 U.S.

13 298, 307 (2012); Johnson v. Rancho Santiago Cmty. College Dist., 623 F.3d 1011,

14 1018 (9th Cir. 2010) (internal quotations and citation omitted) (a case is moot when

15 there is no “present controversy as to which effective relief can be granted”). “[A]s

16 long as the parties have a concrete interest, however small, in the outcome of the

17 litigation, the case is not moot.” Knox, 567 U.S. at 307–08 (quoting Ellis v. Railway

18 Clerks, 466 U.S. 435, 442 (1984)). Setting aside whether the Individual Plaintiffs’

19 Section 706(1) claims are moot, this case is not moot given that it remains possible

20 for the Court to grant effectual relief to Al Otro Lado and the Individual Plaintiffs.

21

a. Al Otro Lado

22

Faced with Al Otro Lado’s argument that it possesses Article III standing,

23 Defendants assert that they do not “yet dispute[] Al Otro Lado’s Article III standing.”

24 (ECF No. 145 at 8.) Despite Defendants’ assertion, the Court has an independent

25 duty to assess whether Al Otro Lado satisfies Article III’s “irreducible constitutional

26 minimum” of standing. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)

27 (“The federal courts are under an independent obligation to examine their own

28 jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional]

– 12 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3731 Page 13 of 55

1 doctrines.’” (quoting Allen, 468 U.S. at 750)). The Court readily concludes that Al

2 Otro Lado has Article III standing.

3

An organizational plaintiff like Al Otro Lado may have Article III standing to

4 sue in its own right. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

5 “An organization has ‘direct standing to sue [when] it show[s] a drain on its resources

6 from both a diversion of its resources and frustration of its mission.’” Valle Del Sol,

7 Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (quoting Fair Hous. Council of

8 San Fernando Valley v. Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)).

9 Of course, “[a]n organization cannot manufacture the injury by incurring litigation

10 costs or simply choosing to spend money fixing a problem that would not otherwise

11 affect the organization[.]” La Asociacion de Trabajadores de Lake Forest v. Lake

12 Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). Al Otro Lado satisfies this test.

13

Al Otro Lado is a non-profit that provides services to indigent deportees,

14 migrants, refugees, and their families in Los Angeles, California and Tijuana, Mexico.

15 Its core mission is, inter alia, to coordinate and provide screening, advocacy, and

16 legal representation for individuals in asylum and other immigration proceedings.

17 (Compl. ¶ 12.) As a result of CBP officers’ conduct at POEs along the U.S.-Mexico

18 border since 2016, Al Otro Lado alleges that it has diverted significant time and

19 resources from its L.A. operations and its non-refugee programs to send

20 representatives to Tijuana to provide individualized assistance and coordination of

21 legal and social services, including individual screenings and in-depth trainings to

22 educate asylum seekers about CBP’s alleged conduct of denying the most basic form

23 of access to the asylum process. (Id. ¶¶ 14, 16–18.) These alleged harms are

24 sufficient for Article III standing. See Valle Del Sol Inc., 732 F.3d at 1018

25 (organization had standing because its diverted resources from its core mission to

26 address constituents’ concerns); Smith v. Pac. Props & Dev. Corp., 358 F.3d 1097,

27 1105 (9th Cir. 2004) (finding standing where an organization alleged that “[it] has

28 had . . . to divert its scarce resources from other efforts . . . to benefit the disabled

– 13 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3732 Page 14 of 55

1 community in other ways”). Accordingly, Al Otro Lado has an interest in this case

2 that is not mooted by Defendants’ post-Complaint conduct. 4

3

b. The Individual Plaintiffs’ Other Claims for Relief

4

For the Individual Plaintiffs, Defendants’ mootness challenge is narrow. It

5 concerns only one form of relief in the Complaint on only one of the Plaintiffs’ four

6 claims. (See Compl. ¶¶ 152–153.) But the Individual Plaintiffs request other forms

7 of relief, including: (1) “relief prohibiting Defendants” and their agents “from

8 engaging in the unlawful policies, practices, acts and/or omissions . . . at POEs along

9 the U.S.-Mexico border” and (2) “relief requiring Defendants to implement

10 procedures to provide effective oversight and accountability in the inspection and

11 processing of individuals who present themselves at POEs along the U.S.-Mexico

12 border and indicate an intention to apply for asylum or assert a fear of persecution in

13 their home countries.” (Id. at 52–53.) The Complaint also requests a declaratory

14 judgment that “Defendants’ policies, practices, acts and/or omissions . . . violate” the

15 INA, the APA, the Due Process Clause of the Fifth Amendment, and/or the “duty of

16 non-refoulement under international law.” (Id. at 52.) Defendants make no

17 meaningful attempt to argue that their agreement to process the Individual Plaintiffs

18 moots these requests for injunctive and declaratory relief.

19

Rather, Defendants’ mootness argument treats these requests as irrelevant on

20 the ground that Plaintiffs’ other claims fail because the Plaintiffs do not plausibly

21 allege that Defendants have a policy or practice. But a “party’s prospects of success

22 on a claim are not pertinent to the mootness inquiry.” Looks Filmproduktionen GmbH

23 v. CIA, 199 F. Supp. 3d 153, 179 (D.D.C. 2016) (internal quotations and alterations

24

25

4 “The general rule applicable to federal court suits with multiple plaintiffs is

that once the court determines that one of the plaintiffs has standing, it need not decide 26 the standing of the others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993).

27 However, because the parties dispute the ability of the Individual Plaintiffs to seek

28

Section 706(1) relief for the putative class in this case, the Court does not limit its mootness analysis to organizational Plaintiff Al Otro Lado.

– 14 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3733 Page 15 of 55

1 omitted) (quoting Schnitzler v. United States, 761 F.3d 33, 39 (D.C. Cir. 2014)); see

2 also Aracely, R. v. Nielsen, No. 17-cv-1976-RC, —F. Supp. 3d—, 2018 WL 3243977,

3 at *15 (D.D.C. July 3, 2018); Ramirez v. ICE, 310 F. Supp. 3d 7, 18 (D.D.C. 2018).

4 Defendants’ argument that Plaintiffs’ other claims are moot because there is no policy

5 or practice “confuses mootness with the merits.” Chafin v. Chafin, 568 U.S. 165, 166

6 (2013). “[J]urisdiction . . . is not defeated . . . by the possibility that the averments

7 might fail to state a cause of action[.]” Bell v. Hood, 327 U.S. 678, 682 (1946); see

8 also Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642–43 (2002)

9 (“It is firmly established in our cases that the absence of a valid (as opposed to

10 arguable) cause of action does not implicate subject-matter jurisdiction.” (quoting

11 Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998))); Eubanks v. McCotter,

12 802 F.2d 790, 793 (5th Cir. 1986) (“If federal jurisdiction turned on the success of a

13 plaintiff’s federal cause of action, no such case could ever be dismissed on the

14 merits.”).

15

Even on the merits, Defendants’ argument cannot show that this entire case is

16 moot because it conflates whether the Complaint plausibly shows the existence of a

17 policy with whether the Complaint plausibly shows the existence of a practice. As

18 the Court later explains, although the Complaint fails to show the existence of a

19 policy, it plausibly shows the existence of a pattern or practice of denials faced by

20 some asylum seekers. Accordingly, the Court cannot find that this entire case is moot

21 by virtue of Defendants’ agreement to process the Individual Plaintiffs.

22

2. The Section 706(1) Claims Are Not Moot

23

Although this case is not moot, Defendants’ narrow mootness argument

24 squarely raises the issue whether the Section 706(1) claims for relief asserted in the

25 Complaint are. “A lawsuit—or an individual claim—becomes moot when a plaintiff

26 actually receives all of the relief he or she could receive on the claim through further

27 litigation.” Chen v. Allstate Ins. Co., 819 F.3d 1136, 1144 (9th Cir. 2016) (emphasis

28 added). The Court must consider whether the agreement moots all the Section 706(1)

– 15 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3734 Page 16 of 55

1 claims asserted in this case and concludes that it does not. Al Otro Lado asserts APA

2 claims, including a Section 706(1) claim, yet the agreement does not purport to

3 provide any relief to Al Otro Lado. The Individual Plaintiffs also assert Section

4 706(1) claims on behalf of a putative class—a point Defendants’ motion to dismiss

5 elides. See Pitts, 653 F.3d at 1087 (“The distinction between issues that have become

6 moot and parties whose interest in the issue may have become moot is especially

7 visible in the context of class actions.”).

8

a. Al Otro Lado’s APA Claims

9

Defendants’ Section 706(1) mootness challenge contains a key omission:

10 Plaintiff Al Otro Lado’s Section 706(1) claim. (Compl. ¶¶ 151, 159–164.)

11 Defendants omit discussion of any of Al Otro Lado’s APA claims by assuming the

12 merits of their separate argument that Al Otro Lado fails the zone of interests test

13 applicable to claims asserted pursuant to the APA. (ECF No. 135 at 10–11.) The

14 Court does not find that argument to be meritorious.5

15

“In addition to [Article III’s standing] requirements, a plaintiff bringing suit

16 under the [APA] for a violation of [a statute] must show that his alleged injury falls

17 within the ‘zone of interests’ that [the statute] was designed to protect.” Cantrell v.

18 City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001). “[T]he breadth of the zone of

19 interests varies according to the provisions of law at issue[.]” Bennett v. Spear, 520

20 U.S. 154, 163 (1997). Courts “presume that a statutory cause of action extends only

21 to plaintiffs whose interests ‘fall within the zone of interests protected by the law

22 invoked.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129

23

24

5 The Court recognizes that the zone of interests test does not itself implicate

25 the Court’s subject matter jurisdiction, but rather whether a particular plaintiff has a

statutory cause of action. Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 26 1155 (9th Cir. 2015) (citing Lexmark Int’l, Inc. v. Static Control Components, 572

27 U.S. 118, 127–28 (2014)). Because Defendants’ mootness argument concerns the

28

Plaintiffs’ Section 706(1) claims, however, the Court addresses whether Al Otro Lado may assert any APA causes of action in this case as part of its mootness analysis.

– 16 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3735 Page 17 of 55

1 (2014) (quoting Allen, 468 U.S. at 751). The APA’s “‘zone of interests’ test is ‘not

2 meant to be especially demanding,’ and a court should deny standing only ‘if the

3 plaintiff’s interests are so marginally related to or inconsistent with the purposes

4 implicit in the statute that it cannot reasonably be assumed that Congress intended to

5 permit the suit.’” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1177 (9th Cir. 2004)

6 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)) (emphasis added).

7 The test does not require a specific congressional purpose to benefit the would-be

8 plaintiff. Clarke, 479 U.S. at 399–400. And the “benefit of any doubt goes to the

9 plaintiff.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak,

10 567 U.S. 209, 225 (2012).

11

Defendants first argue that Al Otro Lado fails the zone of interests test because

12 it does not cite any INA provision permitting it to sue. (ECF No. 135 at 10–11.) This

13 argument is unavailing. “The APA confers a general cause of action upon persons

14 ‘adversely affected or aggrieved by action within the meaning of the relevant statute,’

15 but withdraws that cause of action to the extent the relevant statute ‘preclude[s]

16 judicial review.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984); see also

17 Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (same); Defenders of Wildlife

18 v. Tuggle, 607 F. Supp. 2d 1095, 1098 (D. Ariz. 2009) (same). Defendants do not

19 purport to argue that the INA itself precludes judicial review in this case.

20

Defendants’ second argument is that Al Otro Lado “ha[s] failed to plead

21 sufficient facts to demonstrate that [it] has statutory standing as a legal advocacy

22 group to pursue a claim under 8 U.S.C. §§1158 or 1225.” (ECF No. 145 at 8.)

23 Defendants ground this argument in an opinion decided by a single Supreme Court

24 justice, which granted the government’s application to stay a district court’s

25 injunction order entered in favor of several legal organizations pending appeal. See

26 INS v. Legalization Assistance Project of L.A. Cty. Fed’n of Labor, 510 U.S. 1301

27 (1993) (O’Connor, J.) [hereinafter “L.A.P.”]. L.A.P. concerned the Immigration

28 Reform and Control Act of 1986 (“IRCA”), a statute which created a limited amnesty

– 17 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3736 Page 18 of 55

1 period for certain undocumented aliens to seek legalization. Considering whether to

2 grant a stay, Justice O’Connor “predict[ed]” that “this Court would grant certiorari

3 and conclude that the respondents”—organizations “that provide legal help to

4 immigrants”—“are outside the zone of interests IRCA seeks to protect, and that

5 therefore they had no standing to seek the order entered by the District Court.” Id. at

6 1302, 1305. She reasoned that although IRCA provided a role for legal help

7 organizations during the amnesty period in the role of “so-called ‘qualified designated

8 entities,’” there was “no indication” that IRCA was addressed to the interests of the

9 organizations, but rather it was “clearly meant to protect” the interests of

10 undocumented aliens. Id. at 1305 (citing 8 U.S.C. § 1255(a)(2)). Defendants argue

11 that, like the respondent organizations who Justice O’Connor predicted the Supreme

12 Court would find as outside IRCA’s zone of interests, Al Otro Lado falls outside the

13 INA’s zone of interests. The Court rejects this argument.

14

As an initial matter, the precedential value of Justice O’Connor stay opinion is

15 questionable. Justice O’Connor recognized that her task in deciding whether to grant

16 a stay was a “difficult and speculative inquiry” that required her “to predict whether

17 four Justices would vote to grant certiorari and whether the Court would then set the

18 order aside.” L.A.P., 510 U.S. at 1304. In relevant part, her zone of interests answer

19 to that concededly speculative inquiry did not prove true. The Court granted certiorari

20 and, instead of adopting Justice O’Connor’s merits reasoning, it vacated the judgment

21 below and remanded to the Ninth Circuit for further consideration in light of, inter

22 alia, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993). See INS v. L.A.P.,

23 510 U.S. 1007 (1993). Given the posture of Justice O’Connor’s opinion and the

24 Supreme Court’s ultimate disposition, this Court does not view L.A.P. as binding. See

25 Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 502 & n.2 (M.D. Pa. 2007)

26 (“Because of the nature of [L.A.P.]—a speculative opinion by one Supreme Court

27 Justice sitting as a Circuit Court Justice—and the fact the decision served only to

28 delay implementation of an order pending appeal, we do not consider that opinion as

– 18 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3737 Page 19 of 55

1 binding, but rather as persuasive authority.”), aff’d in part and rev’d in part on other

2 grounds by, 620 F.3d 170 (3d Cir. 2010), vacated and remanded on other grounds

3 by, 563 U.S. 1030 (2011).

4

Setting aside its questionable precedential value, the Court does not find

5 L.A.P.’s reasoning helpful because L.A.P. concerned IRCA’s zone of interests—not

6 the INA. This distinction is important. Justice O’Connor’s analysis cannot be

7 isolated from the cases her opinion discussed, which narrowly interpreted standing to

8 sue under IRCA even as applied to undocumented aliens. For example, Justice

9 O’Connor began her opinion with a discussion of Reno, decided some five months

10 earlier and which the INS argued required vacating the district court’s order. L.A.P.,

11 510 U.S. at 1303. In Reno, the Supreme Court held that “the only people who could

12 ask for injunctive or declaratory relief under IRCA” from an alleged administrative

13 INS “front-desking policy” of discouraging legalization applications were those to

14 whom that policy was directly applied. L.A.P., 510 U.S. at 1303 (quoting Reno, 509

15 U.S. at 61–67). Reno’s view of standing was adopted in Ayuda, Inc. v. Reno, 7 F.3d

16 246 (D.C. Cir. 1993), a decision with which Justice O’Connor viewed the decisions

17 of the district court and Ninth Circuit in L.A.P. as in “conflict.” L.A.P., 510 U.S. at

18 1305. In Ayuda, Inc., the D.C. Circuit held that “in light of the [Reno] analysis, it is

19 now quite clear that the organizational plaintiffs did not have standing to raise their

20 claims challenging INS policies or regulations that interpreted aliens’ rights to

21 legalization under IRCA.” Ayuda, Inc., 7 F.3d at 251 (citing Reno, 509 U.S. at 61)

22 (vacating district court orders for lack of jurisdiction).6 Placed in context, Justice

23

24

6 The INS’s petition for a writ of certiorari in L.A.P. is also illuminative. The

25 INS argued that the Ninth Circuit’s treatment of the organizational standing question

was “in substantial tension” with the D.C. Circuit’s earlier opinion in Ayuda, Inc. 26 L.A.P., Petition for Writ of Certiorari, 510 U.S. 1007 (1993) (No. 93-73), 1993 WL

27 13076006, at *8 (citing Ayuda, Inc. v. Thornburgh, 880 F.3d 1325, 1339 (D.C. Cir.

28

1989), vacated on other grounds by, 498 U.S. 1117 (1991)). The earlier Ayuda opinion determined that “qualified designated entities” (“QDEs”) established by

– 19 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3738 Page 20 of 55

1 O’Connor’s view of IRCA’s zone of interests says much about the restrictive judicial

2 treatment of challenges concerning IRCA and little about the INA’s zone of interests.

3

Courts have not interpreted the INA’s zone of interests as narrowly as IRCA’s

4 and non-alien plaintiffs, including organizational plaintiffs, have been permitted to

5 assert claims based on the INA.7 See Hawaii v. Trump, 859 F.3d 741, 766 (9th Cir.

6 2017) (finding that plaintiff states’ “efforts to enroll students and hire faculty

7 members who are nationals from six countries” affected by president order fell within

8 zone of interests), vacated on other grounds by Trump v. Hawaii, 138 S. Ct. 377

9 (2017); Doe v. Trump, 288 F. Supp. 3d 1045, 1067–68 (W.D. Wash. 2017) (relying

10 on Hawaii to conclude that two organizational plaintiffs fell within the zone of

11 interests of the INA and the Refugee Act of 1980 because of their “core mission”

12 involved “[m]aking provisions for the resettlement and absorption of refugees”); V.

13 Real Estate Group, Inc. v. United States Citizenship & Immigration Servs., 85 F.

14

15 IRCA fell outside IRCA’s zone of interests because “Congress, at most, intended the
16 QDEs to act as intermediaries, not litigating ombudsmen. And even if the QDEs are

17 thought of as agents for the aliens, we doubt Congress intended the agents to have broader rights to seek judicial review than do the principals.” Ayuda, Inc., 880 F.3d
18 at 1339.

19 7 Other district courts have found that organizational plaintiffs like Al Otro
20 Lado can fall within the INA’s zone of interests when it has members or clients

21 targeted by the government action. See Vidal v. Nielsen, 291 F. Supp. 3d 260, 269 n.3 (E.D.N.Y. 2018) (determining that organizational plaintiff met zone of interests
22 test to challenge DACA rescission because it had members, clients, and employees

23 who received DACA); see also NAACP v. Trump, 298 F. Supp. 3d 209, 235 (D.D.C. 2018) (determining that organizational plaintiffs fells within INA’s zone of interests
24 because “each has members who are DACA beneficiaries and whose interests

25 consequently fall within the zone of interests regulated by the INA”). Although Al Otro Lado has not expressly invoked representative standing as the basis for its Article
26 III standing in this case, the asylum seekers Al Otro Lado serves and represents are

27 ostensibly its clients. Vidal and NAACP provide a persuasive basis for the conclusion

28

that Al Otro Lado would likely also fall within the INA’s zone of interests on this basis as well.

– 20 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3739 Page 21 of 55

1 Supp. 3d 1200, 1209 (D. Nev. 2015) (company could sue for USCIS’s revocation of

2 an EB-5 foreign investor visa because its “interest . . is more than just marginally

3 related to the statutes’ purpose since the company was actually founded with the intent

4 that its model would satisfy the requirements of the EB-5 program and bring Chinese

5 investors to the country.”).

6

The specific INA provisions in this case evince a congressional intent that

7 aliens—including those arriving at POEs and those facing expedited removal—have

8 “an opportunity . . . to have the merits of his or her claim promptly assessed by

9 officers.” Castro v. United States Dep’t of Homeland Sec., 163 F. Supp. 3d 157, 161

10 (E.D. Pa. 2016) (quoting H.R. Rep. No. 104-828, at 209–10 (1996) (Conf. Rep.)); see

11 also 8 U.S.C. § 1158; 8 U.S.C. § 1225. Al Otro Lado alleges that part of its mission

12 is to serve and represent asylum and refugee seekers. (Compl. ¶ 12.) In furtherance

13 of this mission, Al Otro Lado established and operates its Refugee Program in

14 Tijuana, Mexico, which services individuals who wish to seek asylum in the United

15 States. (Id. ¶ 13.) The alleged conduct of CBP officers has caused Al Otro Lado to

16 expend significant time and resources to assist asylum seekers in responding to CBP

17 officials’ alleged conduct of foreclosing even the most basic aspect of the INA’s

18 asylum procedures—the opportunity to be processed in the first place. (Id. ¶¶ 12–

19 15.) This Court finds Al Otro Lado’s interests in this case “are related to the basic

20 purposes of the INA[’s]” goal of permitting aliens to apply for asylum in the United

21 States at POEs and not so marginally related that its interests fall outside the INA’s

22 zone of interests. Hawaii, 859 F.3d at 766; Doe v. Trump, 288 F. Supp. 3d at 1067–

23 68. Accordingly, the Court rejects Defendants’ challenge to Al Otro Lado’s INA-

24 based claims.

25

b. The Individual Plaintiffs’ Section 706(1) Claims

26

Five of the six Individual Plaintiffs have received the requested relief from

27 Defendants’ agreement to process these “class representatives and their children” at

28 POEs. Thus, their Section 706(1) claims are moot unless an exception applies.

– 21 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3740 Page 22 of 55

1 Plaintiffs contend, however, that the Section 706(1) claim of Beatrice Doe is not moot

2 because she has not “actually received” the relief provided in the agreement. (ECF

3 No. 143 at 11.) The Court does not share Plaintiffs’ view.

4

Plaintiffs’ argument relies solely on case law holding that a rejected or

5 unaccepted Rule 68 offer of judgment does not moot a plaintiff’s individual claims

6 even when that offer would provide full relief. See Chen, 819 F.3d at 1136; Diaz v.

7 First. Am. Home Buyers Prot. Corp., 732 F.3d 948, 954–55 (9th Cir. 2013) (“[A]n

8 unaccepted offer that would . . . fully satisf[y] a plaintiff’s claim does not render that

9 claim moot.”). This is true of an unaccepted settlement offer as well. See Campbell-

10 Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).

11

Defendants’ agreement, however, is not a Rule 68 offer of judgment or a

12 settlement offer and thus Chen and Diaz are not directly applicable. Even if the

13 reasoning of these cases extends to less formal offers, what is before the Court is not

14 an offer which Beatrice Doe has yet to accept or reject, but rather an agreement. The

15 agreement permits her to be processed by CBP officials at a POE in accordance with

16 the INA and has no expiration. The evidence shows that five of the six Individual

17 Plaintiffs were processed pursuant to the agreement and there is no basis for the Court

18 to find that Beatrice Doe will be treated any differently. Defendants readily concede

19 that Beatrice Doe “can return to a port of entry to be processed as an arriving alien at

20 any time, should she choose to do so” pursuant to the agreement. (ECF No. 135-1 at

21 3.) And they “fully expect that ‘she would be processed as an applicant for

22 admission[.]’” (ECF No. 145 at 2 (quoting ECF No. 135-2 Ex. A ¶ 4).). Beatrice

23 Doe is in no different a position than she would be with a court order compelling

24 agency action. Accordingly, her individual Section 706(1) claim, like those of the

25 other Individual Plaintiffs, is moot unless an exception applies.

26

Even when a claim becomes moot due to subsequent events after the

27 commencement of a lawsuit, “the flexible character of the Art[icle] III mootness

28 doctrine” may warrant the exercise of jurisdiction over the claim. United States

– 22 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3741 Page 23 of 55

1 Parole Comm’n v. Geraghty, 445 U.S. 388, 401 (1980); see also San Luis & Delta-

2 Mendota Water Auth., 870 F. Supp. 2d at 958 (“Even if a case is technically moot, it

3 may nevertheless be judiciable if one of three exceptions to the mootness doctrine

4 applies,” including “‘for wrongs capable of repetition yet evading review.’”) (quoting

5 Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964–66 (9th Cir. 2007)). Under

6 the “capable of repetition, yet evading review” exception, a claim is justiciable

7 notwithstanding mootness if: (1) there is “a ‘reasonable expectation’ that the same

8 party will confront the same controversy again” and (2) if the underlying dispute is

9 “inherently limited in duration such that it is likely always to become moot before

10 federal court litigation is completed.” W. Coast Seafood Processors Ass’n v. NRDC,

11 643 F.3d 701, 704 (9th Cir. 2011) (quoting Feldman v. Bomar, 518 F.3d 637, 644

12 (9th Cir. 2008)), id. at 705 (quoting Ctr. for Biological Diversity, 511 F.3d at 965

13 (internal quotations omitted)). The parties dispute whether this exception applies.

14

Defendants argue that it does not. (ECF No. 135-1 at 8.) In Defendants’ view,

15 “[t]here is no reason to anticipate that the Doe Plaintiffs . . . will return to a [POE] as

16 applicants for admission in the future, or that, upon doing so, they will not be properly

17 processed, especially considering the low percentage rate of improper processing[.]”

18 (Id.) It is unclear what basis there is for Defendants’ assertion. Unless the Individual

19 Plaintiffs are granted asylum, there is nothing in the Complaint that suggests that they

20 will not attempt to seek asylum again and, if so, that CBP officers will not turn them

21 away from a POE. Each Individual Plaintiff has alleged that he or she does not wish

22 to return to his or her home country because of a fear of violence. Each Individual

23 Plaintiff has also alleged being turned away by CBP officials on multiple occasions

24 and a practice of such conduct. Even if Defendants are correct that the Complaint

25 fails to show a blanket policy of turning away asylum seekers at POEs, “the ‘capable

26 of repetition yet evading review’ exception is not so narrowly circumscribed.” San

27 Luis & Delta-Mendota Water Auth., 870 F. Supp. 2d at 960. Based on the limited

28 nature of the Court’s review of the pleadings at this stage, the Court cannot say that

– 23 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3742 Page 24 of 55

1 the Individual Plaintiffs’ allegations do not show a reasonable expectation that they

2 would again be subjected to the conduct they have alleged experiencing.

3

Furthermore, contrary to Defendants’ argument (ECF No. 135-1 at 9), the

4 putative class action nature of this case does change the Court’s analysis regarding

5 the effect of their agreement.8 Courts are sensitive to assertions of mootness in the

6 class action context. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991);

7 Sosna v. Iowa, 419 U.S. 393, 401 (1975); Gerstein v. Pugh, 420 U.S. 103, 110 (1975).

8 The “capable of repetition, yet evading review” mootness exception has a particular

9 application in the class action context when the defendant’s actions after the filing of

10 the complaint moot the proposed class representative’s individual claims. Courts are

11 sensitive to a defendant’s tactics of “picking off lead plaintiffs” so as “to avoid a class

12 action,” even when a proposed class representative’s “claims are not ‘inherently

13 transitory as a result of being time sensitive.” Pitts, 653 F.3d at 1091 (quoting Weiss

14 v. Regal Collections, 385 F.3d 337, 347 (3d Cir. 2004)). “The end result is the same:

15 a class transitory by its very nature and one transitory by virtue of the defendant’s

16 litigation strategy share the reality that both claims would evade review.” Id. Even

17 if the named plaintiff in a putative class action receives “complete relief on [his or

18 her] individual claims . . . before class certification, fully satisfying those individual

19 claims, [the plaintiff] still would be entitled to seek certification.” Chen, 819 F.3d at

20 1142.

21

Defendants acknowledge Pitts and Chen, yet they contend that unlike the

22 defendants in those cases, they have not sought to “buy-off” the Plaintiffs in this case

23 to avoid a class action. (ECF No. 135-1 at 9; ECF No. 145 at 4.) However, Plaintiffs

24

25

8 Central to Defendants’ argument is the notion that “[t]he styling of the

Complaint as a putative class action does not change this analysis.” (ECF No. 135-1 26 at 9) Contrary to this characterization of the Complaint, the Complaint contains class

27 action allegations and the conduct at issue is alleged to affect the putative class.

28

(Compl. ¶¶ 131–138 (the “class action allegations”).) Defendants have not moved to strike these allegations; they remain an integral feature of the Complaint in this case.

– 24 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3743 Page 25 of 55

1 seek only declaratory and injunctive relief. The fact that Defendants have provided

2 one form of the injunctive relief solely to the “class representatives” (ECF No. 67-3

3 Ex. B) after the filing of this case is no less a potential “buy-off” strategy that

4 effectively renders transitory the claims they seek to assert on behalf of a putative

5 class. The government could simply render moot any class action Section 706(1)

6 claims concerning the conduct at issue in this case by affording relief to any individual

7 plaintiffs who seek to challenge such conduct as soon as the case is filed and long

8 before a court could reasonably be expected to rule on a motion for class certification.

9 See Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (determining that the

10 expiration of the plaintiff’s claim one month after filing the lawsuit did not moot the

11 class’s claim for injunctive relief because “the district court could not have been

12 expected to rule on a motion for class certification in that period”).

13

Defendants possess the authority to direct CBP officials to process aliens who

14 present themselves at POEs along the U.S.-Mexico border in accordance with the

15 requirements of the INA and implementing regulations. Defendants’ agreement to

16 exercise that authority occurred a mere two days after the filing of the Complaint and

17 only when confronted with the possibility that Plaintiffs would file an ex parte request

18 for a temporary restraining order that all Individual Plaintiffs be processed at a POE.

19 (ECF No. 67-1 ¶¶ 2–7.) Under these circumstances, the Court is convinced that the

20 Section 706(1) claims the Individual Plaintiffs assert on behalf of themselves and the

21 putative class fall within an exception from mootness.

22

B. Sovereign Immunity

23

Defendants’ motion to dismiss also raises the issue of sovereign immunity.

24 (ECF No. 135-1 at 21; ECF No. 145 at 1.) “Sovereign immunity is a threshold

25 question that is sometimes described as ‘jurisdictional.’” Forester v. Chertoff, 500

26 F.3d 920, 925 n.5 (9th Cir. 2007) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S.

27 89, 94 (1990)); see also Reed v. Dep’t of Homeland Sec., No. CV 16-7170 CJC (JC),

28 2017 WL 2701940, at *3 (C.D. Cal. May 25, 2017) (“Sovereign immunity is a

– 25 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3744 Page 26 of 55

1 threshold issue [that] goes to the court’s subject matter jurisdiction.”) (quoting

2 Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1026 (9th Cir. 2010) (en banc), cert.

3 denied, 564 U.S. 1037 (2011)).

4

Plaintiffs sue the named Defendants in their official capacity as United States

5 officers, each of whom is alleged to oversee the enforcement and administration of

6 U.S. immigration laws, including oversight of CBP. (Compl. 1–2 (caption); id. ¶¶

7 25–27.). “An action against an officer, operating in his or her official capacity as a

8 United States agent, operates as a claim against the United States.” Ministerio Roca

9 Solida v. McKelvey, 820 F.3d 1090, 1095 (9th Cir. 2016) (citing Farmer v. Perrill,

10 275 F.3d 958, 963 (10th Cir. 2001)); see also Kentucky v. Graham, 473 U.S. 159,

11 165–66 (1985). Plaintiffs must therefore contend with the sovereign immunity of the

12 United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (“It has

13 long been held that the bar of sovereign immunity cannot be avoided by naming

14 officers and employees of the United States as defendants.”); Allen v. United States,

15 871 F. Supp. 2d 982, 988 (N.D. Cal. 2012) (the issue of sovereign immunity “includes

16 suits against federal officers in their official capacities to compel them to act”) (citing

17 Dugan v. Rank, 372 U.S. 609, 620 (1963)).

18

“The United States, as a sovereign, is immune from suit unless it has waived

19 its immunity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States,

20 482 F.3d 1157, 1173 (9th Cir. 2007) (emphasis added) (citing Dep’t of Army v. Blue

21 Fox, Inc., 525 U.S. 255, 260 (1999)); United States v. Mitchell, 445 U.S. 535, 538

22 (1980)). “When the United States consents to be sued, the terms of its waiver of

23 sovereign immunity define the extent of the court’s jurisdiction.” United States v.

24 Mottaz, 476 U.S 834, 841 (1986) (citing United States v. Sherwood, 312 U.S. 584,

25 586 (1941)); see also Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat’l Forest, 304 F.

26 Supp. 3d 916, 932–33 (E.D. Cal. 2018) (same) (quoting Balser v. Dep’t of Justice,

27 Office of U.S. Tr., 327 F.3d 903, 907 (9th Cir. 2003)). Thus, consistent with sovereign

28 immunity and any waiver of it, a court may only exercise jurisdiction over claims

– 26 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3745 Page 27 of 55

1 against the United States within the parameters set by Congress.

2

1. The APA Supplies the Relevant Waiver

3

The APA “contains a specific waiver of the United States’ sovereign

4 immunity.” Matsuo v. United States, 416 F. Supp. 2d 982, 988 (D. Haw. 2006) (citing

5 Bowen v. Massachusetts, 487 U.S. 879, 891–92 (1988)). As a general matter, the

6 APA permits suits against the United States by “[a] person suffering legal wrong

7 because of the agency action, or adversely affected or aggrieved by agency action

8 within the meaning of relevant statute.” 5 U.S.C. § 702. This portion of Section 702

9 constitutes the APA’s judicial review provision and dates to the APA’s original

10 enactment in 1946. See Administrative Procedure Act, Pub. L. No. 79-404 § 10(a),

11 60 Stat. 237, 243 (1946) (codified as amended at 5 U.S.C. § 702); see also Navajo

12 Nation v. Dep’t of the Interior, 876 F.3d 1144, 1168 (9th Cir. 2017). Claims asserted

13 pursuant to the APA must satisfy Section 702’s “agency action” requirement and the

14 further requirement under Section 704 of the APA that a plaintiff must identify a

15 “final agency action” to obtain judicial review. 5 U.S.C. § 704.

16

Apart from Section 702’s judicial review provision for APA claims is the

17 APA’s waiver of sovereign immunity, also located in Section 702. The waiver

18 provides that: “[a]n action in a court of the United States seeking relief other than

19 money damages and stating a claim that an agency or an officer or employee thereof

20 acted or failed to act in an official capacity . . . shall not be dismissed nor relief therein

21 be denied on the ground that it is against the United States.” 5 U.S.C. § 702. This

22 waiver of sovereign immunity was enacted as a 1976 amendment to the APA, which

23 aimed “to clear up a morass of federal sovereign immunity jurisprudence” and “aimed

24 to ‘broaden the avenues for judicial review of agency action by eliminating the

25 defense of sovereign immunity in cases covered by the amendment.’” Navajo Nation,

26 876 F.3d at 1168 (quoting Bowen v. Massachusetts, 487 U.S. 879, 891–92 (1988)).

27 Unlike Section 702’s judicial review provision, which is textually limited to “agency

28 action,” Section 702’s waiver of sovereign immunity contains no such textual

– 27 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3746 Page 28 of 55

1 limitation. 5 U.S.C. § 702; see also Navajo Nation, 876 F.3d at 1171. Accordingly,

2 as amended, the APA “waives sovereign immunity broadly for all causes of action

3 that meet its terms” irrespective of whether the claims satisfy the APA’s requirements

4 for judicial review of an agency action. Navajo Nation, 876 F.3d at 1172; see also

5 The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989)

6 (Section 702 is “an unqualified waiver of sovereign immunity in actions seeking

7 nonmonetary relief”).9 Thus, a plaintiff need only seek nonmonetary relief against

8 the government in order to avail himself of the APA’s waiver of sovereign immunity.

9 In this case, Plaintiffs invoke the APA’s waiver and seek only non-monetary relief

10 against Defendants, based on claims regarding the purported actions and failures to

11 act of CBP officials and the named Defendants. (Compl. ¶ 10; id. at 52–53.)

12 Accordingly, Plaintiffs’ claims for relief fall squarely within the broad waiver of

13 sovereign immunity reflected in Section 702.

14

Because the APA supplies the relevant waiver of the sovereign immunity in

15

16

9 There is Ninth Circuit precedent which suggests that the APA’s sovereign

17 immunity waiver is tethered to the APA’s requirements for judicial review of APA causes of action. See Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198
18 (9th Cir. 1998) (determining that the APA’s waiver of sovereign immunity contains

19 several limitations,” including Section 704’s limitations to review of only “final

agency action” and “agency action otherwise reviewable by statute”); Tucson Airport 20 Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998) (referring to

21 Sections 702 and 704 to conclude that “the APA waives sovereign immunity for [a

plaintiff’s] claims only if three conditions are met: (1) its claims are not for money 22 damages, (2) an adequate remedy for its claims is not available elsewhere and (3) its

23 claims do not seek relief expressly or impliedly forbidden by another statute.”). In

the face of Ninth Circuit precedent that grafts the APA’s review requirements onto 24 Section 702’s waiver, the Navajo Nation panel attempted to clarify that the APA’s

25 waiver exists independently of the APA’s requirements for APA causes of action. See

Navajo Nation, 876 F.3d at 1171; id. at 1172 (summing up conclusion as “the second 26 sentence of § 702 waives sovereign immunity broadly for all causes of action that

27 meet its terms, while § 704’s ‘final agency action’ limitation applies only to APA

28

claims”). This Court finds Navajo Nation’s reading of Section 702 persuasive and appropriate, and applies it in this case.

– 28 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3747 Page 29 of 55

1 this case, the Court can easily reject Defendants’ argument that “Congress has not

2 waived sovereign immunity to create a private right of action for a per se ‘pattern or

3 practice’ claim against federal law enforcement.” (ECF No. 135-1 at 21; ECF No.

4 145 at 1.) Setting aside that the Complaint does not separately plead such a claim and

5 that the Plaintiffs disavow bringing one (see generally Compl.; see also ECF No. 143

6 at 19 n.6), Defendants’ argument fails under Navajo Nation. Because Plaintiffs’

7 claims fall within the scope of Section 702’s waiver, they do not need to identify a

8 separate waiver of sovereign immunity for “pattern or practice” claims against the

9 government. See Navajo Nation, 876 F.3d at 1172 (“§ 702 waives sovereign

10 immunity broadly for all causes of action that meet its terms[.]”). To the extent

11 Defendants are arguing that pattern or practice claims are not cognizable under the

12 APA, that is an issue that concerns the sufficiency of such claims, not whether the

13 United States or its officers are immune from such claims. See id.; see also Trudeau

14 v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006) (concluding that Section 702’s waiver of

15 sovereign immunity applies regardless of whether the challenged conduct itself

16 satisfies the APA’s review provisions).

17

2. The APA’s Waiver Extends to Plaintiffs’ ATS Claims

18

The APA’s waiver of sovereign immunity also resolves one of Defendants’

19 challenges to Plaintiffs’ ATS claims. The Complaint alleges ATS claims against the

20 Defendants for “violation of the non-refoulement doctrine” under international law.

21 (Compl. ¶ 180.) Defendants argue that the ATS “does not constitute a waiver of

22 sovereign immunity and therefore does not create a cause of action against the

23 government.” (ECF No. 135-1 at 11–12 n.5.)10 Defendants thus appear to suggest

24

25

10 Defendants also argue that although Plaintiffs refer to the “duty of non-

refoulement” as the basis for their ATS claims, Plaintiffs “fail to explain how it 26 imposes relevant legal obligations on the government beyond the obligations captured

27 in 8 U.S.C. § 1225(b)(1)(A)(ii).” (ECF No. 135-1 at 12 n.5.) To the extent that

28

Defendants contend that the ATS claims must be dismissed because a remedy is available under domestic law, the Court rejects that argument. “Contrary to

– 29 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3748 Page 30 of 55

1 that this Court lacks jurisdiction over the ATS claims asserted against the Defendants

2 as a matter of sovereign immunity.

3

Defendants are correct that the ATS does not waive the sovereign immunity of

4 the United States. The ATS provides only that “the district courts shall have original

5 jurisdiction of any civil action by an alien for a tort only, committed in violation of

6 the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The text of the

7 ATS says nothing about sovereign immunity and, thus, it cannot be construed as a

8 waiver. See Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted)

9 (stating that “[a] waiver of the Federal Government’s sovereign immunity must be

10 unequivocally expressed in statutory text and will not be implied”). Specifically, the

11 ATS does not waive the government’s sovereign immunity. Tobar v. United States,

12 639 F.3d 1191, 1196 (9th Cir. 2011) (“[T]he Alien Tort Statute has been interpreted

13 as a jurisdiction statute only—it has not been held to imply any waiver of sovereign

14 immunity.”).

15

However, at least one appellate court has suggested that the APA is “arguably

16 available” as a waiver of sovereign immunity for claims asserted against federal

17 officers sued in their official capacity for nonmonetary relief. See Sanchez-Espinoza

18 v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) (recognizing the possibility that ATS

19 suits seeking non-monetary relief may proceed against the Secretary of Defense and

20 the Director of the CIA under the APA’s waiver of sovereign immunity). The D.C.

21 Circuit ultimately declined to apply the APA’s waiver to the ATS claims in Sanchez-

22 Espinoza because it did not believe that the alien plaintiffs in that case who challenged

23

24 defendants’ argument, there is no absolute preclusion of international law claims by

25 the availability of domestic remedies for the same alleged harm.” See Hawa Abdi

Jama v. United States INS, 22 F. Supp. 2d 353, 364 (D.N.J. 1998). Defendants raise 26 no other arguments showing that dismissal of Plaintiffs’ ATS claims is warranted and

27 neither side has briefed the sufficiency of the claims. Accordingly, the Court

28

expresses no further view on them in this opinion aside from the sovereign immunity issue.

– 30 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3749 Page 31 of 55

1 “support for military operations” were entitled to the discretionary declaratory and

2 injunctive relief available under the APA in an area “so sensitive a[s] foreign affairs.”

3 Id. at 208. The notion that the APA’s waiver of sovereign immunity should not apply

4 to permit equitable relief in military matters or sensitive foreign affairs cases has been

5 echoed by other courts. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 41–43

6 (D.D.C. 2010) (questioning “whether the APA should be interpreted as a waiver of

7 sovereign immunity for an ATS claim like plaintiff’s” against the U.S. Secretary of

8 Defense and Director of the CIA which requested “discretionary relief that would

9 prohibit military and intelligence activities against an alleged enemy abroad”).

10

This case, however, does not involve military matters, nor do Defendants argue

11 that it involves sensitive foreign affairs. At least one district court has applied the

12 APA’s waiver of sovereign immunity for international law claims asserted against the

13 U.S. government for non-monetary relief in such circumstances. See Rosner v. United

14 States, 231 F. Supp. 2d 1202, 1211–12 (S.D. Fla. 2002). In line with the APA’s broad

15 waiver of sovereign immunity for claims against the United States for nonmonetary

16 relief, the Court finds that the APA’s unqualified waiver of sovereign immunity

17 supplies a waiver for the ATS claims asserted in this case. See 5 U.S.C. § 702; Navajo

18 Nation, 876 F.3d at 1171.

19

C. The Sufficiency of the APA Claims

20

The Complaint asserts two APA claims against the Defendants. First, the

21 Complaint raises Section 706(1) claims “to compel agency action unlawfully

22 withheld or unreasonably delayed.” (Compl. ¶ 152 (citing 5 U.S.C. § 706(1).) The

23 basis of these claims is CBP officials’ alleged “failure to take actions mandated” by

24 various provisions of the INA and implementing regulations. (Id. ¶ 153; see also id.

25 ¶ 157 (referring to “Defendants’ repeated and pervasive failure to act”).) The

26 Complaint also alleges a Section 706(2) claim to “hold unlawful and set aside agency

27 action.” 5 U.S.C. § 706(2). The basis of this claim is that “CBP officials have acted

28 in excess of their statutorily proscribed authority and without observance of the

– 31 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3750 Page 32 of 55

1 procedures required by law in violation of the APA.” (Id. ¶ 154 (citing 5 U.S.C.

2 §§706(2)(C), (D)), id. ¶ 155 (alleging that “in turning Class Plaintiffs . . . away at

3 POEs along the U.S.-Mexico border without following the procedures mandated by

4 the INA, CBP officials have acted in excess of the authority granted them by

5 Congress”); id. ¶ 157 (referring to Defendants’ “action taken in excess of their

6 authority”).)

7

In moving to dismiss, Defendants argue that (1) Plaintiffs’ “only well-pleaded”

8 claims are the Section 706(1) claims and (2) Plaintiffs have failed to identify a “final

9 agency action” necessary to seek review of Defendants’ alleged policy pursuant to

10 Section 706(2). (ECF No. 135-1 at 4–9 (mootness for Section 706(1) claims), 11–20

11 (failure to state a Section 706(2) claim).) In opposition, Plaintiffs argue that they have

12 pleaded Section 706(1) claims and not brought a Section 706(2) claim. (ECF No. 143

13 at 19–21.) Independently of their Section 706(1) claims, however, the Plaintiffs

14 contend that they have plausibly pleaded that Defendants have “an illegal policy or

15 practice.” (Id. at 21–23.) To resolve the parties’ dispute, the Court first outlines the

16 APA’s framework for judicial review of agency action. The Court then considers the

17 sufficiency of Plaintiffs’ Section 706(1) claims. Finally, the Court determines that

18 Defendants’ alleged policy must be reviewed pursuant to Section 706(2) and

19 concludes that Plaintiffs have failed to identify a final agency action subject to judicial

20 review.

21

1. Judicial Review of Agency Action Pursuant to the APA

22

As a general matter, the APA provides that “[a] person suffering legal wrong

23 because of agency action, or adversely affected or aggrieved by agency action within

24 the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. §

25 702. This judicial review provision “is not so all-encompassing as to authorize . . .

26 judicial review over everything done by an administrative agency.” Wild Fish

27 Conservancy v. Jewell, 703 F.3d 791, 800–01 (9th Cir. 2013). The APA confines

28 what is subject to judicial review by limiting review to an “agency action,” which is

– 32 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3751 Page 33 of 55

1 in turn defined to only “include[] the whole or a part of an agency rule, order, license,

2 sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. §

3 551(13); 5 U.S.C. § 701(b)(2) (incorporating Section 551’s definition of “agency

4 action”).

5

The APA also places limits on when agency action is subject to judicial review.

6 “Agency action made reviewable by statute and final agency action for which there

7 is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704;

8 see also Navajo Nation, 876 F.3d at 1171 (“[Section] 704’s requirement that to

9 proceed under the APA, agency action must be final or otherwise reviewable by

10 statute is an independent element without which courts may not determine APA

11 claims.”). “Where no other statute provides a private right of action, the ‘agency

12 action’ complained of must be ‘final agency action.’” Norton v. S. Utah Wilderness

13 Alliance, 542 U.S. 55, 61–62 (2004) [hereinafter “SUWA”] (quoting 5 U.S.C. § 704);

14 see also Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591

15 (9th Cir. 2008) (referring to “final agency action” as a “jurisdictional requirement

16 imposed by statute”); Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 266 (9th Cir.

17 1990) (same).

18

Section 706 of the APA further defines the “scope of review” for an agency

19 action that is subject to judicial review. As a general matter, a court “shall decide all

20 relevant questions of law” and “interpret constitutional and statutory provisions” as

21 part of its review of agency action “[t]o the extent necessary to decision and when

22 presented.” 5 U.S.C. § 706. In addition, a court may provide relief from agency

23 action in one of two ways. Under Section 706(1), a court “shall . . . compel agency

24 action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Under

25 Section 706(2), a court “shall hold unlawful and set aside agency action . . . found to

26 be,” inter alia, “in excess of statutory jurisdiction, authority, or limitations, or short

27 of statutory rights” or “without observance of procedure required by law.” 5 U.S.C.

28 § 706(2). A challenge to an agency’s alleged failure to act is more appropriately

– 33 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3752 Page 34 of 55

1 channeled through Section 706(1). See Rosario v. United States Citizenship, No.

2 C15-0813JLR, 2017 WL 3034447, at *7 n.6 (W.D. Wash. July 18, 2017); Leigh v.

3 Salazar, No. 3:13-cv-00006-MMD-VPC, 2014 WL 4700016, at *4 (D. Nev. Sept. 22,

4 2014) (construing a Section 706(2) claim regarding an agency’s alleged failure to act

5 as in fact a Section 706(1) claim). Section 706(2) is typically reserved for completed

6 agency actions whose validity can be assessed according to the bases for setting aside

7 agency action set forth in that provision. See Nw. Envtl. Defense Ctr. v. Bonneville

8 Power Admin., 477 F.3d 668, 680–81 & n.10 (9th Cir. 2007). With these general

9 principles in mind, the Court turns to the APA claims in this case.

10

2. The Complaint States Section 706(1) Claims for “Unlawfully

11

Withheld” Access to the U.S. Asylum Process

12

The Court turns first to the Individual Plaintiffs’ Section 706(1) claims that

13 CBP officials have failed permit asylum seekers to access the U.S. asylum process.

14 Defendants concede that the Individual Plaintiffs’ Section 706(1) claims are “well-

15 pleaded.” (ECF No. 135-1 at 4–5; ECF No. 145 at 1.) Defendants, however, suggest

16 that such claims are not cognizable insofar as they concern a putative class of other

17 asylum seekers who have experienced the alleged pattern of denials. Plaintiffs in turn

18 argue that they have stated Section 706(1) claims for Defendants’ alleged “failure to

19 act” and that they can challenge a pattern of violations. (ECF No. 143 at 19–20, id.

20 at 19 n.6.) Because Section 706(1) claims may be dismissed if the plaintiff fails to

21 show an entitlement to agency action that a court can properly compel, the Court

22 addresses the sufficiency of the Complaint’s Section 706(1) claims as they pertain to

23 the Individual Plaintiffs and the putative class.11 See Alvarado v. Table Mountain

24 Rancheria, 509 F.3d 1008, 1019–20 (9th Cir. 2007) (“a Section 706(1) claim may be

25 dismissed for lack of jurisdiction” when plaintiff fails to show he is entitled to relief

26

27 11 Defendants do not raise an issue as to whether Al Otro Lado has plausibly
28 stated a claim for Section 706(1) relief.

– 34 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3753 Page 35 of 55

1 under the provision); Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir.

2 2006).

3

a. The Individual Plaintiffs

4

Section 706(1) grants a court authority to “compel agency action unlawfully

5 withheld.” 5 U.S.C. §706(1). Under this provision, a court’s “ability to ‘compel

6 agency action’ is carefully circumscribed to situations where an agency has ignored

7 a specific legislative command.” Hells Canyon Pres. Council v. United States Forest

8 Serv., 593 F.3d 923, 932 (9th Cir. 2010). When a plaintiff challenges an agency’s

9 alleged failure to act, that challenge must satisfy certain limitations. The APA’s use

10 of the phrase “failure to act” means “a failure to take an agency action—that is, a

11 failure to take one of the agency actions (including their equivalents) earlier defined

12 in § 551(13),” i.e., an “agency rule, order, license, sanction, or relief.” SUWA, 542

13 U.S. at 62–63; see also 5 U.S.C. §551(13). Thus, a Section 706(1) claim “can only

14 proceed where a plaintiff asserts that an agency failed to take a discrete agency action

15 that it is required to take.” SUWA, 542 U.S. at 64 (emphasis in original).

16

These requirements to obtain Section 706(1) relief from a court are mutually

17 reinforcing. The discrete agency action “limitation” precludes a “broad programmatic

18 attack” against an agency. Id. As such, it “protect[s] agencies from undue judicial

19 interference with their lawful discretion” and “avoid[s] entanglement in abstract

20 policy disagreements which courts lack both expertise and information to resolve.”

21 Id. at 66–67. Thus, a plaintiff “cannot seek wholesale improvements of [a] program

22 by court decree” under the guise of a Section 706(1) claim. Lujan v. Nat’l Wildlife

23 Fed’n, 497 U.S. 871, 891 (1990); Public Lands for the People, Inc. v. U.S. Dep’t of

24 Agric., 733 F. Supp. 2d 1172, 1183 (E.D. Cal. 2010) (“This interpretation effectively

25 precludes enforcement of broad statutory mandates under section 706(1), insofar as a

26 broad mandate typically is not one that requires discrete agency action.”). The

27 “limitation to required agency action rules out judicial direction of even discrete

28 agency action that is not demanded by law.” SUWA, 542 U.S. at 65. Because of that

– 35 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3754 Page 36 of 55

1 limitation, courts “have no authority to compel agency action merely because the

2 agency is not doing something we may think it should do.” Zixiang Li v Kerry, 710

3 F.3d 995, 1004 (9th Cir. 2013) (Smith, M.D., J.). Thus, a plaintiff seeking relief under

4 Section 706(1) must identify an actual legal obligation for the agency to take some

5 action. Id.

6

The gravamen of Plaintiffs’ Section 706(1) claims is that CBP officials failed

7 to take actions that the INA requires when a noncitizen asserts an intent to seek

8 asylum. The Complaint grounds these claims in various statutory and regulatory

9 provisions, including 8 U.S.C. § 1225(a)(1)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), 8 U.S.C.

10 § 1225(b)(2)(A), and 8 C.F.R. § 235.3(b)(4). (Compl. ¶¶ 104–121, 153.)12 There is

11 no dispute between the parties regarding the sufficiency of the Individual Plaintiffs’

12 Section 706(1) claims under these provisions. Defendants agree that “APA relief

13 under section 706(1)” is “an appropriate remedy” for the failures to act the Individual

14 Plaintiffs allege. (ECF No. 145 at 1.) 13 These concessions buttress the Court’s

15

16

12 The Complaint’s Section 706(1) claim invokes 8 U.S.C. § 1158(a)(1).

17 (Compl. ¶ 153.) The Court observes that it likely could not compel relief for this statutory provision. 8 U.S.C. § 1158(a)(1) does not identify any specific obligations
18 placed on an immigration officer and, therefore, may not serve as the basis for Section

19 706(1) relief. See Public Lands for the People, Inc., 733 F. Supp. 2d at 1183

(“[W]here a statutory directive does not require action, that statute may be so ‘broad’ 20 that it cannot be enforced under section 706(1)[.]”). Plaintiffs do not invoke 8 U.S.C.

21 § 1158 in discussing the sufficiency of their Section 706(1) claims and so the Court

deems any claims premised on it as waived. The Complaint also invokes 8 C.F.R. § 22 235.4, a regulation which provides that “[t]he alien’s decision to withdraw his or her

23 application admission must be made voluntarily[.]” (Compl. ¶ 153.) As the Court

discusses separately, Plaintiffs cannot seek Section 706(1) relief with respect to this 24 regulation and any Section 706(1) claims seeking to compel agency action based on

25 it are subject to dismissal.

26

13 However, Defendants argue that because the parties agree on what the law

27 requires, “Plaintiffs have failed to identify any legal dispute between the parties,” and

28

thus there is no “live case or controversy.” (ECF No. 135-1 at 19 & n.9.) Defendants’ argument is an inartful attempt to attack Plaintiffs’ Article III standing. To have

– 36 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3755 Page 37 of 55

1 conclusion that Plaintiffs have stated Section 706(1) claims for discrete and legally

2 required agency actions.

3

b. The Putative Class and Practice Allegations

4

A salient aspect of the Complaint are the allegations that there is a “practice”

5 of CBP officials refusing to permit asylum seekers who present themselves at POEs

6 along the U.S.-Mexico border to access the asylum process in the United States. (See

7 generally Compl.) Plaintiffs’ Section 706(1) claims incorporate these allegations.

8 (Id. ¶ 157 (“Defendants’ repeated and pervasive failure to act . . ., which denied Class

9 Plaintiffs access to the statutorily prescribed asylum process . . . mandates relief under

10 the APA.”); id. ¶ 163 (alleging that “Defendants’ conduct and practices, as alleged in

11 this Complaint, violate the APA.”).) Defendants primarily take issue with these

12 pattern allegations as a matter of sovereign immunity. As the Court has already

13 concluded, that argument lacks merit. Even so, Defendants’ argument that there is

14 “no cause of action” for pattern or practice claims raises a different issue: whether

15 and how pattern and practice claims are cognizable under the APA.

16

Two courts have considered this issue in the context of Section 706(1) claims

17 based on an agency’s alleged failure to act. These courts concluded that pattern and

18 practice challenges to an agency’s alleged failure to act are not legally cognizable

19 under the APA. See Californians v. United States EPA, No. C 15-3292 SBA, 2018

20 WL 1586211, at *19 (N.D. Cal. Mar. 30, 2018) (dismissing separately pleaded claim

21

22 standing, a plaintiff must allege: (1) an injury in fact (2) “fairly traceable to the

23 challenged action of the defendant” (3) that may be “redressed by a favorable

decision” from a court. Lujan, 504 U.S. at 560−61 (internal citations and quotations 24 omitted). The Complaint plainly shows that the Plaintiffs have standing based on the

25 injuries caused by CBP officials at POEs along the U.S.-Mexico border in violation

of the INA and its implementing regulations. This Court has the authority to redress 26 those injuries. See 5 U.S.C. § 706(1). The parties’ apparent agreement in their legal

27 memoranda submitted to this Court on what the INA and its implementing regulations

28

require cannot vitiate Plaintiffs’ standing based on the harms resulting from CBP officials’ alleged violations of those provisions.

– 37 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3756 Page 38 of 55

1 against EPA for an alleged pattern or practice of failing to timely act on administrative

2 complaints); Del Monte Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d

3 116 (D.D.C. 2010) (dismissing claim against FDA for an alleged unlawful pattern and

4 practice of delay in sampling and inspecting food imported by plaintiff). The

5 reasoning underlying these conclusions turns on Section 706(1)’s discrete agency

6 action limitation. See Californians, 2018 WL 1586211, at *19 (citing Lujan, 497 U.S.

7 at 891; SUWA, 542 U.S. at 66–67); Del Monte, 706 F. Supp. 2d at 119 (citing SUWA,

8 542 U.S. at 64, 66–67). As the Court has previously discussed, that limitation

9 precludes a plaintiff from using Section 706(1) to launch a “programmatic attack” or

10 seek “wholesale improvement” of an agency’s procedures. SUWA, 542 U.S. at 64.

11 Both the Del Monte and Californians courts determined that the “pattern or practice”

12 claims in those cases were impermissible attacks on the relevant agency.

13

For example, in Del Monte, the court concluded that the plaintiffs could not

14 pursue a claim against the FDA for its alleged pattern and practice of not inspecting

15 Del Monte products within a reasonable time period. The Del Monte court reasoned

16 that such a claim would require the court to “consider the procedures by which the

17 FDA inspects samples and makes decisions as to their suitability for import” as a

18 general matter. Del Monte, 706 F. Supp. 2d at 119. As such, the court would have

19 engaged in “broad review of agency operations” of “just the sort of ‘entanglement’ in

20 daily management of the agency’s business that the Supreme Court has instructed is

21 in appropriate.” Id. The Del Monte plaintiff never challenged, nor sought relief for

22 specific instances of the FDA’s alleged failure to act or unreasonable delay in taking

23 action despite referring to several such instances. Id. at 120 n.6. In Californians, the

24 court similarly determined that the plaintiffs’ separately pleaded pattern and practice

25 claim against “the EPA’s general practice in handling [administrative] complaints, as

26 opposed to seeking relief on a specific complaint” was “in effect” “a programmatic

27 attack” on the EPA’s procedures and therefore “impermissible.” Californians, 2018

28 WL 1586211, at *19. The court, however, reached this conclusion even as it

– 38 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3757 Page 39 of 55

1 determined that the plaintiffs’ other five claims “seek[ing] relief based on the EPA’s

2 failure to act on each of the Plaintiffs’ respective [administrative] complaints”

3 “clearly satisf[ied] the discrete agency action requirement.” Id. Del Monte and

4 Californians, as well as their reliance on SUWA and Lujan, caution this Court to take

5 a closer look at the practice allegations in this case to ensure that they do not constitute

6 an impermissible broad-based programmatic attack against CBP.

7

Plaintiffs assert that they have not “attempt[ed] to bring a so-called ‘pattern or

8 practice’ claim as an independent cause of action.” (ECF No. 143 at 19 n.6.) This

9 assertion is supported by the Complaint, which does not facially plead independent

10 Section 706(1) claims for Defendants’ alleged practice of denying asylum seekers

11 who present themselves at POEs along the U.S.-Mexico border access to the asylum

12 process. Instead of raising an independent pattern or practice claim, the Section

13 706(1) claims incorporate the practice allegations as part of Plaintiffs’ request for

14 relief from “Defendants’ repeated and pervasive failure to act.” (Compl. ¶ 157.)

15 Plaintiffs challenge not only alleged agency failures to act in their particular cases,

16 they challenge CBP officials’ failures to act experienced by other individuals.

17 (Compare id. ¶¶ 39–82 (allegations of each Individual Plaintiff’s experiences) with

18 id. ¶¶ 83, 85–91, 96(a)–(d), 97, 98(b), (d), 99, 100, 101(a)–(e), 102 (allegations that

19 “CBP officials have systematically denied numerous other asylum seekers access to

20 the asylum process”) and id. ¶¶ 131–138 (setting forth “class action allegations”).)

21 Neither Del Monte, which involved an attempt to bring a freestanding pattern or

22 practice claim, nor Californians, which involved an attempt to plead a pattern or

23 practice claim independently of claims targeting discrete agency actions, is thus on

24 point.

25

The Court does not view the incorporation of these pattern allegations as an

26 impermissible “programmatic” attack. Unlike this case, SUWA, Lujan, Del Monte,

27 and Californians, did not involve Section 706(1) claims asserted on behalf of a

28 putative class of individuals. The Section 706(1) relief is no less discrete and lawfully

– 39 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3758 Page 40 of 55

1 required simply because it is requested on behalf of a putative class. See Ramirez,

2 310 F. Supp. 3d at 21 (“Defendants confuse aggregation of similar, discrete purported

3 injuries—claims that many people were injured in similar ways by the same type of

4 agency action—for a broad programmatic attack.”) (rejecting challenge to Section

5 706(1) relief sought on behalf of class). This conclusion is reinforced by the fact that

6 Section 706(1) claims to compel agency action may be asserted on behalf of a class.

7 See, e.g., Vietnam Veterans of Am. v. CIA, 811 F.3d 1068, 1971 (9th Cir. 2016)

8 (affirming district court preliminary injunction in a case involving Section 706(1)

9 claims asserted on behalf of a class of all current or former members of the armed

10 forces who were test subjects in certain government programs during their service);

11 Ramirez, 310 F. Supp. 3d at 21; Venantius Nkafor Ngwanyia v. Gonzales, 376 F.

12 Supp. 2d 923, 925 (D. Minn. 2005) (approving settlement in a class action suit

13 involving allegations that federal immigration agencies improperly administered the

14 system by which asylees become lawful permanent residents).

15

Defendants suggest that Section 706(1) relief is not available on a class-wide

16 basis, arguing that “Plaintiffs’ ‘pattern or practice’ allegations are too speculative to

17 otherwise establish a live case or controversy” and, thus, “the Court should dismiss

18 any ‘pattern or practice’ claims under Rule 12(b)(1).” (ECF No. 135-1 at 22, 24.)

19 Central to this argument is Defendants’ contention that “Plaintiffs have not alleged

20 that all CBP officers at [POEs] always deny asylum seekers access to the asylum

21 process.” (Id. at 24.) Like Defendants’ misguided attack on the Individual Plaintiffs’

22 Article III standing based on the parties’ agreement about what the INA requires,

23 Defendants’ targeting of the pattern allegations as “too speculative” to establish a

24 “live case or controversy” misses the mark.

25

Defendants readily concede that the Complaint identifies incidents in which

26 asylum seekers who presented themselves at POEs along the U.S.-Mexico border

27 have been denied access to the asylum process. (ECF No. 135-1 at 24.) Even in the

28 absence of Defendants’ concession, the Complaint incorporates numerous reports

– 40 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3759 Page 41 of 55

1 from non-governmental organizations operating in the U.S.-Mexico border region,

2 which document hundreds of examples of asylum seekers who CBP officials denied

3 access to the U.S. asylum process. (Compl. ¶¶ 37–38, 96–102.) While Defendants

4 may seek to minimize those allegations by selectively casting doubt on the reliability

5 of those portions of the reports that reflect negatively on CBP and by characterizing

6 the reports as showing only “an alleged 1.6% denial rate,” (ECF No. 135-1 at 14), the

7 volume of denials is irrelevant to whether the Complaint concretely alleges that other

8 individuals have been subjected to the same alleged failures to act by CBP officials.

9 The Complaint plainly alleges such failures, which the Court is required to take as

10 true at this stage. Because the Individual Plaintiffs have standing in their own right

11 to seek Section 706(1) relief to compel the Defendants to inspect and process them

12 for admission, they may request that relief for a putative class of others asylum

13 seekers who have allegedly experienced the same failures to act. See O’Shea v.

14 Littleton, 414 U.S. 488, 494 (1974). Accordingly, the Court rejects Defendants’

15 challenge to the Complaint’s practice allegations, which are merely a feature of the

16 class action nature of this case.

17

3. The Complaint Fails to State a Section 706(1) Claim for Relief

18

Pursuant to 8 C.F.R. § 235.4

19

Although the Complaint states Section 706(1) claims regarding the alleged

20 failures of CBP officials to permit the Individual Plaintiffs to access the U.S. asylum

21 process, certain Individual Plaintiffs also seek relief regarding alleged coercion by

22 CBP officials. As the Court has discussed, all Plaintiffs argue that they only press

23 Section 706(1) claims to compel agency action unlawfully withheld. (ECF No. 143

24 at 19.) The Court will therefore consider these Plaintiffs’ coercion allegations within

25 the Section 706(1) framework.

26

Plaintiffs A.D., B.D., and C.D. each allege that on of one of the occasions they

27 sought asylum, CBP officials coerced them to into signing documents which stated

28 that they lacked a fear of persecution. (Compl. ¶¶ 42–43, 50–51, 56–58.) A.D. and

– 41 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3760 Page 42 of 55

1 C.D. further allege that CBP officials forced them to recant their fears in video

2 recorded statements. (Id. ¶¶ 42–43, 56–58.) They further refer to their allegations

3 regarding CBP’s alleged coercion of certain Individual Plaintiffs in discussing their

4 Section 706(1) claims. (ECF No. 143 at 20.) Both sides further agree that “the law

5 requires an alien’s decision to withdraw his or her application for admission be

6 voluntary” under 8 C.F.R. § 235.4. (ECF No. 135-1 at 20; ECF No. 143 at 20.) That

7 the parties agree on the text of the INA’s provisions and certain implementing

8 regulations, however, does not mean that the Court in fact has authority to provide

9 Section 706(1) relief based on 8 C.F.R. § 235.4. The Court concludes that it does not.

10

The Court has the authority to compel an agency action pursuant to Section

11 706(1) only when there is “a specific, unequivocal command” placed on the agency

12 to take a “discrete agency action,” and the agency has failed to take that action.

13 SUWA, 542 U.S. at 63–64. The obligation placed on the agency action must be “so

14 clearly set forth that it could traditionally have been enforced through a writ of

15 mandamus.” Hells Canyon Pres. Council, 593 F.3d at 932. The action must be a

16 “precise, definite act.” Id. The only provision Plaintiffs cite in the Complaint and

17 their opposing papers regarding the alleged coercion of withdrawal statements is 8

18 C.F.R. § 235.4, a regulation which states that “[t]he alien’s decision to withdraw his

19 or her application [for admission] must be made voluntarily[.]” 8 C.F.R. § 235.4.

20 This language is an insufficient basis for the Court to grant any Section 706(1) relief

21 pursuant to the regulation.

22

Although the clear objective of 8 C.F.R. § 235.4 is to ensure that an alien’s

23 withdrawal of an application for admission is made voluntarily, the regulation’s plain

24 text “does not instruct [the Defendants] to do anything.” San Luis Unit Food

25 Producers v. United States, 709 F.3d 798, 807 (9th Cir. 2013). The regulation does

26 not require CBP officers to determine whether a withdrawal was made voluntarily,

27 and it does not specify what CBP officers must do if a withdrawal was not. The

28 regulation thus “leaves [the agency] a great deal of discretion in deciding how to

– 42 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3761 Page 43 of 55

1 achieve” its objective and, in turn, lacks “the clarity necessary to support judicial

2 action under § 706(1).” SUWA, 542 U.S. at 66; see also San Luis Unit Food

3 Producers, 709 F.3d at 803 (“Statutory goals that are ‘mandatory as to the object to

4 be achieved; but that leave the agency ‘with discretion in deciding how to achieve’

5 those goals are insufficient to support a ‘failure to act claim because such

6 discretionary actions are not ‘demanded by the law.’”).

7

Although Plaintiffs’ allegations may show that there are “[g]eneral deficiencies

8 in compliance,” SUWA, 542 U.S. at 66, there is nothing this Court can permissibly

9 compel from Defendants pursuant to with 8 C.F.R. § 235.4 to correct those

10 deficiencies. Accordingly, the Court dismisses Plaintiff A.D., B.D., and C.D.’s

11 Section 706(1) claims without prejudice only insofar as these Plaintiffs seek relief

12 pursuant to this regulation. This determination does not affect the Court’s conclusion

13 that these Plaintiffs have otherwise stated Section 706(1) claims regarding their

14 alleged denial of access to the asylum process in the United States.

15

4. The Complaint Fails to State a Section 706(2) Claim

16

Regarding Defendants’ Alleged Policy

17

The Complaint alleges that CBP officials have systematically prevented

18 asylum seekers arriving at POEs along the U.S.-Mexico border from accessing the

19 U.S. asylum process since summer 2016. (Compl. ¶¶ 1, 5, 37.) Plaintiffs allege that

20 this conduct has been documented “in hundreds of cases” at POEs along the border.

21 (Id. ¶¶ 37–38.) The bulk of Defendants’ motion to dismiss concerns whether

22 Plaintiffs have stated a Section 706(2) claim regarding an alleged “policy” of the

23 Defendants to deny asylum seekers who present themselves at POEs along the U.S.-

24 Mexico border access to the asylum process. (ECF No. 135-1 at 11–20.) Defendants

25 argue that “[w]hile the Complaint does not expressly seek judicial review of a final

26 agency action, it alleges that CBP has adopted an ‘officially sanctioned policy’[.]”

27 (Id. at 11 (citing Compl. ¶¶ 5, 154).) Defendants contend that “to the extent the Court

28 construes those references as a request for judicial review of an alleged unlawful

– 43 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3762 Page 44 of 55

1 policy under the APA” pursuant to Section 706(2), the Court should dismiss that

2 request because: (1) Plaintiffs fail to identify an agency action and, even if Plaintiffs

3 have done so, (2) the Complaints fails to show a final agency action. (Id. at 12.)

4

Plaintiffs assert that “Defendants’ critique is misplaced” because “the review

5 of ‘final agency action’ . . . under [] § 706(2) is distinct from the analysis for APA

6 claims to compel agency action under § 706(1), and Plaintiffs brought the latter APA

7 claim.” (ECF No. 143 at 19.) Normally, the Court would construe Plaintiffs’

8 response as a concession that they do not press a Section 706(2) claim and would not

9 address the issue further. However, two points convince the Court that further

10 analysis warranted. For one, the Complaint expressly invokes Section 706(2) as a

11 basis for judicial review of Defendants’ alleged conduct. (Compl. ¶¶ 151–164.)

12 Plaintiffs’ requested injunctive relief in turn includes “prohibiting Defendants . . .

13 from engaging in the unlawful policies . . . described herein at POEs along the U.S.-

14 Mexico border.” (Id. at 52–53.) Therefore, contrary to Plaintiffs’ assertion, the

15 Complaint appears to include a Section 706(2) claim. Second, in opposing

16 Defendants’ motion, Plaintiffs assert that they “have alleged an illegal policy or

17 practice” because they “have pled sufficient facts . . . to support a reasonable inference

18 of liability” of the named Defendants. (ECF No. 143 at 21.) Plaintiffs’ assertion is

19 made independently of the APA’s basis for judicial review of agency action.

20 (Contrast id. at 19–20 (arguing that Section 706(1) APA claim is plausible) with id.

21 at 21–23 (arguing that Defendants’ policy is plausible).)

22

The Complaint and Plaintiffs’ assertions raise two issues. First, the Court must

23 consider whether Plaintiffs may seek review of Defendants’ alleged policy

24 independently of the APA. The Court concludes that they may not. Second, because

25 Plaintiffs must seek review of any alleged policy pursuant to Section 706(2), the Court

26 must consider whether the Plaintiffs have satisfied the APA’s requirements for

27 judicial review and, specifically, the final agency action requirement. The Court

28 concludes they have not.

– 44 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3763 Page 45 of 55

1

a. Judicial Review of Defendants’ Alleged Policy Must

2

Proceed Under the APA

3

Plaintiffs assert that Defendants may be held liable for an alleged policy of

4 denying asylum seekers who present themselves at POEs along the U.S.-Mexico

5 border access to the U.S. asylum process. And they make that assertion by relying

6 solely on cases in which courts considered Section 1983 and Bivens challenges.

7 Neither Section 1983, nor Bivens, however, provides a basis for holding the

8 Defendants liable. Nor does either supply the appropriate legal framework for review

9 of Defendants’ alleged policy. Based on the pleadings, the APA supplies the

10 appropriate framework for judicial review of the alleged policy.

11

As a general matter, “[t]he APA governs the conduct of federal administrative

12 agencies,” Aracely, R., —F. Supp. 3d—, 2018 WL 3243977, at *5, and it provides a

13 “default judicial review standard” for agency action, Ninilchik Traditional Council

14 v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000). “While a right to judicial

15 review of agency action may be created by a separate statutory or constitutional

16 provision, once created it becomes subject to the judicial review provisions of the

17 APA unless specifically excluded.” Webster v. Doe, 486 U.S. 592, 607 n* (1988)

18 (Scalia, J., dissenting); Ninilchik Traditional Council, 227 F.3d at 1194 (citing

19 Scalia’s Webster dissent approvingly). In this case, the Complaint challenges agency

20 action pursuant to the APA. (Compl. ¶¶ 151–164.) Although the Complaint purports

21 to bring a separate claim for violation of the Plaintiffs’ “procedural due process rights

22 under the Fifth Amendment,” that claim expressly incorporates the alleged APA

23 violations. (Id. ¶¶ 166, 171.) Plaintiffs allege that “the INA and its implementing

24 regulations provide Class Plaintiffs the right to be processed at a POE and granted

25 access to the asylum process” and that “CBP officials have denied Class Plaintiffs

26 access to the asylum process and failed to comply with procedures set forth in the

27 INA and its implementing regulations.” (Id. ¶¶ 168, 169.) “Insofar as [Plaintiffs]

28 have such an entitlement” under the INA and its implementing regulations, Plaintiffs

– 45 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3764 Page 46 of 55

1 “may obtain all the relief they request under the provisions of the APA.” Graham v.

2 Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1001 n.2 (9th Cir. 1998). Obtaining

3 such relief from Defendants’ alleged policy of course requires Plaintiffs to satisfy the

4 APA’s judicial review requirements. See Navajo Nation, 876 F.3d at 1171 (“§ 704’s

5 requirement that to proceed under the APA, agency action must be final or otherwise

6 reviewable by statute is an independent element without which court may not

7 determine APA claims.”). Plaintiffs’ reliance on Section 1983 and Bivens case law

8 does not convince the Court otherwise.

9

Liability under Section 1983 is inapt in this case. The Complaint does not

10 invoke Section 1983 as a basis for holding the named Defendants liable. Even if it

11 did, liability would not lie against the Defendants. Defendants Nielsen, McAleenan,

12 and Owen are Federal Executive officers or officials sued in their official capacity for

13 their duties pursuant to federal law. (Compl. ¶¶ 25–27.) As Defendants recognize

14 (ECF No. 145 at 9–10), Section 1983’s plain terms do not provide a cause of action

15 against federal officers acting in their official capacity. See 42 U.S.C. § 1983; see

16 also Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017) (“[Section 1983] entitles an

17 injured person to money damages if a state official violates his or her constitutional

18 rights. Congress did not create an analogous statute for federal officials.”); Pangacos

19 v. Towery, 782 F. Supp. 2d 1983, 1189 (W.D. Wash. 2011) (“Federal officers are

20 exempt from the proscription of § 1983) (citing District of Columbia v. Carter, 409

21 U.S 418, 424–25 (1973); McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006));

22 Comm. for Immigrant Rights v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1203 (N.D.

23 Cal. 2009) (“Federal officers acting under federal authority are immune from suit

24 under § 1983 unless the state or its agents significantly participated in the challenged

25 activity). Plaintiffs’ reliance on Section 1983 to assert that the Defendants may be

26 held liable is thus inappropriate. See Morse v. North Coast Opportunities, Inc., 118

27 F.3d 1338, 1343 (9th Cir. 1997) (“Lest there be any continuing confusion, we take

28 this opportunity to remind the Bar that by its very terms, § 1983 precludes liability in

– 46 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3765 Page 47 of 55

1 federal government actors.”).

2

Taking for granted that Section 1983 does not apply to federal officers,

3 Plaintiffs further assert that their “allegations of a policy or practice are analogous to

4 claims brought under Monell[.]” (ECF No. 143 at 21 n.7.) Monell permits a Section

5 1983 plaintiff to establish municipal liability for an alleged constitutional violation in

6 certain circumstances, including by showing that a municipal employee committed

7 an alleged constitutional violation pursuant to a formal government policy or a

8 longstanding practice or custom which constitutes the standard operating procedure

9 of the local governmental entity. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

10 737(1989); Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). To the extent

11 Plaintiffs are arguing that an alleged policy is subject to judicial review because their

12 allegations could establish Monell liability, the Court rejects this argument. Monell

13 arose in the context of a statute that is fundamentally different from the APA. Most

14 relevant here are two limitations: (1) whereas the APA is limited to “agency action,”

15 Section 1983 reaches the conduct of “[e]very person” alleged to have violated federal

16 law, and (2) whereas the APA permits judicial review of only a “final agency action”

17 unless another statute makes the action reviewable, Section 1983 contains no identical

18 or analogous limitation on review. Contrast 5 U.S.C. §§ 702, 704 with 42 U.S.C. §

19 1983. Given these key differences, analogizing to Section 1983 liability is not

20 helpful.

21

The remaining cases cited by both parties involve Bivens actions against federal

22 officers sued in their individual capacity for alleged constitutional violations. (ECF

23 No. 135-1 at 11, 17; ECF No. 143 at 23.) In Bivens, the Supreme Court fashioned a

24 judicial cause of action for damages to redress constitutional violations committed by

25 a federal officer by treating such an action as one against the officer in his or her

26 individual capacity and thus not barred by sovereign immunity. Bivens, 403 U.S. 388,

27 409–10 (1971) (Harlan, J, concurring). By its nature, a Bivens suit is limited to

28 damages claims against a federal officer in his or her individual capacity. See

– 47 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3766 Page 48 of 55

1 Ministerio Roca Solida, 820 F.3d at 1093–94; see also Consejo de Desarrollo

2 Economico de Mexicali, A.C., 482 F.3d at 1173; Vaccaro v. Dobre, 81 F.3d 854, 857

3 (9th Cir. 1996) (a Bivens action “can be maintained against a defendant in his or her

4 individual action only, and not in his or her official capacity.”). A Bivens action “does

5 not encompass injunctive and declaratory relief where . . . the equitable relief requires

6 official government action.” Ministerio Roca Solida, 820 F.3d at 1093–94; Consejo

7 de Desarrollo Economico de Mexicali, A.C., 482 F.3d at 1173. In such cases, “Bivens

8 is both inappropriate and unnecessary” in large part “because the Administrative

9 Procedure Act waives sovereign immunity for such claims” and thus provides a

10 mechanism for judicial review. Ministerio Roca Solida, 820 F.3d at 1095, 1096.

11

Much of the dispute between the parties regarding Plaintiffs’ policy allegations

12 concerns whether Defendants may be held liable for the alleged conduct of some CBP

13 officials along the U.S.-Mexico border, liability which requires some connection

14 between the conduct of those officials and the named Defendants in this case.

15 (Compare ECF No. 135-1 at 11, 17 with ECF No. 143 at 23.) 14 This dispute

16 overlooks a key point: the Bivens framework for holding federal government officials

17 liable for alleged constitutional violations has no application in this case This case is

18 far from a Bivens action in form and substance. The Complaint names the Defendants

19 in their official capacity and seeks declaratory and injunctive relief that undoubtedly

20 requires official government action. Thus, Bivens liability is not appropriate.

21

22

14 For example, Defendants rely on Perez v. United States, 103 F. Supp. 3d

23 1180, 1200 (S.D. Cal. 2015), to argue that Plaintiffs have failed to allege “any factual

connection between the alleged misconduct of a handful of officers and a policy” of 24 the named Defendants and thus cannot show a “broadly sanctioned policy.” (ECF

25 No. 135-1 at 11, 17.) In contrast, Plaintiffs argue that the Complaint demonstrates an

alleged “high-level knowledge and acquiescence in the unlawful conduct,” of CBP 26 officials by the named Defendants for which the latter may be held liable. (ECF No.

27 143 at 23.) The assumption underlying each of these arguments is that Bivens

28

supervisory liability for the allegedly unconstitutional conduct of low-level officers is applicable in this case. It is not.

– 48 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3767 Page 49 of 55

1

With neither Section 1983, nor Bivens providing a framework applicable to

2 Defendants’ alleged policy, the Court affirms that the APA supplies the relevant

3 framework for considering Defendants’ alleged policy. See Am. Fin. Benefits Ctr. v.

4 Fed. Trade Comm’n, No. 17-04817, 2018 WL 3203391, at *5 (N.D. Cal. May 29,

5 2018) (analyzing plaintiffs’ claims under the APA because “although Plaintiffs assert

6 that the APA is inapplicable, they fail to identify any other basis for judicial review

7 or the exercise of this Court’s jurisdiction”).

8

b. The Complaint Does Not Identify a Final Agency Policy

9

The APA limits judicial review to agency action in the form of “the whole or

10 part of an agency rule, order, license, sanction, relief, or the equivalent or denial

11 thereof, or failure to act.” 5 U.S.C. § 551(13). An agency action must be “reviewable

12 by statute or a “final agency action for which there is no other adequate remedy[.]” 5

13 U.S.C. § 704. Two conditions must be satisfied for an agency action to be final: (1)

14 “the action must mark the consummation of the agency’s decisionmaking process—

15 it must not be of a merely tentative or interlocutory nature” and (2) “the action must

16 be one by which rights or obligations have been determined, or from which legal

17 consequences will flow.” United States Army Corps of Engineers v. Hawkes Co., 136

18 S. Ct. 1807, 1813 (2016) (quoting Bennett, 520 U.S. at 177–78). Although the finality

19 requirement is “flexible” and must be applied in a “pragmatic way,” it is nevertheless

20 a requirement that a plaintiff seeking review of agency action must satisfy.15 See

21

22

15 The Ninth Circuit has previously referred to the final agency action

23 requirement as a jurisdictional requirement. See City of San Diego v. Whitman, 242

F.3d 1097, 1102 (9th Cir. 2001). However, this view of the final agency requirement, 24 as applicable to courts in the Ninth Circuit, has been questioned. See Pebble Ltd.

25 P’ship v. United States EPA, 604 Fed. App’x 623, 625–26 (9th Cir. 2015) (Watford,

J., concurring) (“[I]n my view the D.C. Circuit has persuasively explained why our 26 court’s precedent on this point is wrong. As that court held in Trudeau v. FTC, 456

27 F.3d 178 (D.C. Cir. 2006), § 704 is not a jurisdiction-conferring statute.”). The

28

Navajo Nation panel at least suggested that Section 704’s finality requirement should not be viewed as jurisdictional. See Navajo Nation, 876 F.3d at 1171 (“[Section]

– 49 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3768 Page 50 of 55

1 Oregon Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006).

2

The Complaint contains a single allegation that Defendants have an “officially

3 sanctioned policy” of denying asylum seekers who present themselves at POEs along

4 the U.S.-Mexico border access to the U.S. asylum process. (Comp. ¶ 5.) The only

5 formulation of the alleged policy suggested by Plaintiffs is that CBP officials have a

6 categorical policy of denying asylum seekers who present themselves at POEs along

7 the U.S.-Mexico border access to the U.S. asylum system. (Id. ¶¶ 1–6.) A further

8 variant of this policy is one in which CBP officials deny access through tactics of

9 misrepresentations, harassment, coercion, threats, and physical violence. (Id. ¶¶ 95–

10 101, ECF No. 143 at 23.) But the Court cannot locate a single agency action reflecting

11 Defendants’ alleged policy, let alone one that is final.

12

Neither the Complaint, nor Plaintiffs’ opposition to the motion to dismiss

13 “refer[s] to a single . . . order or regulation” of the Defendants’ which constitutes or

14 reflects an agency policy applicable to all CBP officials at POEs along the U.S.-

15 Mexico border for the challenged conduct. Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

16 871, 890 (1990) (rejecting plaintiffs’ challenge to the Bureau of Land Management’s

17 alleged “land withdrawal program” because there was no agency action on which to

18 base their challenge under the APA); ONRC Action v. BLM, 150 F.3d 1132, 1136 (9th

19 Cir. 1998) (rejecting APA claims because “this case presents a situation where there

20 is no identifiable agency order, regulation, policy or plan that may be subject to

21 challenge as a final agency action’).

22

Plaintiffs observe in opposition that a policy need not be in written form to

23 exist, thus suggesting that the Court should infer the existence of a policy even if the

24 Court cannot locate one reduced to writing. (ECF No. 143 at 21.) The Court readily

25 acknowledges that “agency action . . . need not be in writing to be final and judicially

26

27 704’s requirement that to proceed under the APA, agency action must be final or

28

otherwise reviewable by statute is an independent element without which courts may not determine APA claims.”).

– 50 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3769 Page 51 of 55

1 reviewable” pursuant to the APA. R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 184

2 (D.D.C. 2015). An unwritten policy can still satisfy the APA’s pragmatic final agency

3 action requirement. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929

4 (D.C. Cir. 2008) (reviewing challenge to an agency’s “decision . . . to adopt [an

5 unwritten] policy of disclosing confidential information without notice” because such

6 a policy was “surely a consummation of the agency’s decisionmaking process” that

7 impacted the plaintiff’s rights); R.I.L.-R, 80 F. Supp. 3d at 174–176 (determining that

8 plaintiffs had shown a reviewable unwritten “DHS policy direct[ing] ICE officers to

9 consider deterrence of mass migration as a factor in their custody determinations” as

10 underlying the plaintiffs’ detention). “[A] contrary rule ‘would allow an agency to

11 shield its decisions from judicial review simply by refusing to put those decisions in

12 writing.’” R.I.L.-R, 80 F. Supp. at 184 (quoting Grand Canyon Tr. v. Pub. Serv. Co.

13 of N.M., 283 F. Supp. 2d 1249, 1252 (D.N.M. 2003)); see also Aracely R., —F. Supp.

14 3d—, 2018 WL 3243977, at *16 (“Despite Defendants’ assertions to the contrary,

15 agency action need not be in writing to be judicially reviewable as a final action.”).

16

Recent cases provide examples of challengeable unwritten agency policies in

17 the immigration context. For example, in R.I.L.-R, the plaintiffs challenged two

18 variants of an alleged DHS detention policy affecting Central American mothers

19 accompanied by minor children. In sustaining the “narrower formulation of the

20 relevant policy,” the court rejected the government’s APA finality argument that the

21 plaintiffs had failed to identify a regulation, policy memoranda, or any other

22 document memorializing the challenged policy. R.I.L.-R, 80 F. Supp. 3d at 174. The

23 court determined that the plaintiffs had shown the existence of a “DHS policy

24 direct[ing] ICE officers to consider deterrence of mass migration as a factor in their

25 custody determinations” through firsthand knowledge and data showing that “ICE has

26 been largely denying release to Central American mothers accompanied by minor

27 children since June 2014.” Id. These denials were “contrary to past practice” of DHS

28 and, while claiming there was no policy document, Defendants had “essentially

– 51 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3770 Page 52 of 55

1 conceded that the recent surge in detention during a period of mass migration . . .

2 reflects a design to deter such migration.” Id. at 175. The plaintiffs in Aracely, R. v.

3 Nielsen challenged prolonged detention of asylum seekers who present themselves at

4 POEs. They alleged a “de facto immigration policy promulgated by high-level

5 officials in Washington D.C.,” which began in 2014 and was “re-emphasized . . . after

6 the 2016 Presidential election.” Aracely, R., —F. Supp. 3d—, 2018 WL 3243977, at

7 *4. The alleged policy was “designed to serve as a deterrent to asylum seekers” by

8 “ordering local officials to heavily weight immigration deterrence in deciding parole

9 and similar forms of release.” Id. The plaintiffs pointed to data showing that the

10 parole release rate of the asylum seekers who crossed a U.S. POE was 80% in 2012,

11 but dropped to 47% in 2015. Id. The Aracely court found this sufficient to show a

12 final agency policy subject to APA review. Id. at *16.

13

To assess whether the Complaint shows an unwritten policy, the Court turns to

14 the Complaint’s pattern allegations. Plaintiffs rely on those allegations to defend the

15 existence of an alleged policy and argue that they “have pled sufficient facts to show

16 a widespread pattern or practice of denial of access to the asylum process[.]” (ECF

17 No. 143 at 21.) The Court, however, is not convinced that the Complaint’s disparate

18 “examples”—in Plaintiffs’ words—of conduct by CBP officials supports the

19 inference that there is an overarching policy. See Pearl River Union Free Sch. Dist.

20 v. King, 214 F. Supp. 3d 241 (S.D.N.Y. 2016) (“[T]his is not a case where a policy of

21 some kind was plainly adopted and illuminated, albeit imperfectly . . . rather, at best,

22 Plaintiff has alleged that Defendants took certain action with respect to it and asks the

23 Court to surmise therefrom the existence of a broader policy.”); Bark v. U.S. Forest

24 Serv., 37 F. Supp. 3d 41, 50 (D.D.C. 2014) (“Plaintiffs appear to have attached a

25 ‘policy’ label to their own amorphous description of the [defendant government

26 agency’s] practices. But a final agency action requires more.”).

27

Unlike the unwritten policies challenged in R.I.L.-R and Aracely, the Complaint

28 does not plausibly show the existence of the unwritten policy the Plaintiffs ask this

– 52 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3771 Page 53 of 55

1 Court to infer. As an initial matter, while the Complaint contains allegations about

2 the tactics employed by various CBP officials (Compl. ¶¶ 83–103), there are no

3 allegations connecting any of that conduct with an unwritten policy created by the

4 Defendants. In fact, Plaintiffs do not even allege that the Defendants were involved

5 in the development of any policy in this case. Aracely, R., —F. Supp. 3d—, 2018

6 WL 3243977, at *4. The Complaint’s pattern allegations also fail to show a

7 categorical unwritten policy of the type Plaintiffs suggest. Even accepting the

8 Complaint’s references to documented instances of asylum seekers at POEs along the

9 U.S.-Mexico border who were denied access to the asylum process, the Complaint

10 expressly incorporates reports which show that many more asylum seekers were not

11 denied access.16 For example, the Complaint cites a 2017 report from Human Rights

12 First, which reports at least 125 occasions between December 2016 and March 2017

13 in which applicants for admission were denied access. (Compl. ¶ 38 n.27.)17 Yet, the

14 report also states that “CBP agents referred some 8,000 asylum seekers at [POEs]”

15 along the U.S-Mexico border to credible fear interviews during the same period. See

16 Crossing the Line, at 1. This information defeats the inference that a categorical

17 policy of the nature Plaintiffs intimate exists. See R.I.L.-R, 80 F. Supp. 3d at 174

18 (declining to find that “DHS adopted a categorical policy in June 2014 of denying

19

20

16 Plaintiffs contend that “evidentiary arguments” regarding the existence of the

21 unwritten policy they allege are not appropriate at the pleading stage. (ECF No. 143

at 23 n.8.) Because the Complaint expressly incorporates various reports and articles 22 and provides the web links to them, the Court may consider these materials in full to

23 assess the sufficiency of the allegations in the Complaint. See Knievel v. ESPN, 393

F.3d 1068, 1076 (9th Cir. 2005) (courts may also consider “documents ‘whose 24 contents are alleged in a complaint and whose authenticity no party questions, but

25 which are not physically attached to the [plaintiff’s] pleading.’”).

26

17 The Complaint provides the following source: B. Shaw Drake, et al.,

27 Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers, Human Rights

28

First, 16 (2017), https://www.humanrightsfirst.org/sites/default/files/hrf-crossingthe-line-report.pdf [“Crossing the Line”].

– 53 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3772 Page 54 of 55

1 release to all asylum-seeking Central American families in order to deter further

2 immigration” given that “in some small number of cases” ICE granted bonds).

3

Both sides also dispute whether the Complaint shows the existence of an

4 unwritten policy based on the following allegation: “[o]n June 13, 2017, in

5 questioning before the House Appropriations Committee, the Executive Assistant

6 Commissioner for CBP’s OFO admitted that CBP officials were turning away asylum

7 applicants at POEs along the U.S.-Mexico border.” (Compl. ¶ 103.) However, the

8 Complaint does not incorporate any particular portion of the testimony of John

9 Wagner, Deputy Executive Assistant Commissioner for the Office of Field

10 Operations of CBP, and thus it is not clear that this information is properly reviewable

11 at the motion to dismiss stage. Even if it were, the Court does not find the testimony

12 sufficient to show the existence of the unwritten policy Plaintiffs allege. Insofar as

13 CBP is “working with Mexico to develop methods to control the flow of migrants

14 entering U.S. [POEs] at any given time” (ECF No. 135-1 at 16), that information does

15 not show the consummation of an agency decision-making process, let alone one that

16 applies to asylum seekers in the manner Plaintiffs allege. As for the “contingency

17 plans” for a future “surge of migrants,” (id.), it is unclear how a such a plan has any

18 application in this case because the Complaint does not allege that any Plaintiff was

19 turned away by CBP officials as part of a policy concerning migrant “surges.”

20

In the absence of allegations showing a final agency order, rule, regulation,

21 policy, or plan to deny asylum seekers who present themselves at POEs along the

22 U.S-Mexico border—or allegations from which the Court could infer that one

23 exists—the Complaint fails to plead that Defendants have a policy this Court can

24 “hold unlawful and set aside.” 5 U.S.C. § 706(2). Because Plaintiffs may be able to

25 allege the existence of a policy, the Court dismisses without prejudice Plaintiffs’

26 Section 706(2) claim concerning an alleged policy. This conclusion does not affect

27 the sufficiency of Plaintiffs’ Section 706(1) claims. See Bark v. U.S. Forest Serv., 37

28 F. Supp. 3d 41, 50–51 (D.D.C. 2014) (rejecting challenge to “a generalized, unwritten

– 54 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 166 Filed 08/20/18 PageID.3773 Page 55 of 55

1 administrative ‘policy,’” but permitting challenge to five challenged permits).

2 IV. CONCLUSION & ORDER

3

For the foregoing reasons, the Court HEREBY ORDERS that:

4

1. The Court GRANTS IN PART Defendants’ motion to dismiss and

5 DISMISSES WITHOUT PREJUDICE: (a) Plaintiffs A.D, B.D., and C.D.’s claims

6 under Section 706(1) only insofar as they have sought to compel agency action under

7 8 C.F.R § 235.4, and (b) all Plaintiffs’ claims under Section 706(2) regarding

8 Defendants’ alleged policy.

9

2. The Court DENIES ON ALL OTHER GROUNDS Defendants’

10 motion.

11

3. The Court Plaintiffs GRANTS LEAVE TO AMEND the pleadings

12 consistent with this Order. Plaintiffs may file a First Amended Complaint no later

13 than September 15, 2018.

14

4. If Plaintiffs do not file an amended complaint or request additional time

15 to do so by the foregoing date, Defendants shall file an Answer no later than

16 September 24, 2018.

17

IT IS SO ORDERED.

18 DATED: August 20, 2018

19

20

21

22

23

24

25

26

27

28

– 55 –

17cv2366

 
 Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3782 Page 1 of 31

1

2

FI LE 0-------i

3
SEP 1 7 2018

4

I u CLERK. S. DISTRICT COURT

5

SOU HERN DISTR1C'f N C.AL.IFORNiA I

BY

nf Pu~·y I

---·--....~~
6

7

8

9

SOUTHERN DISTRICT OF CALIF

10

11 AL OTRO LADO, INC., et al.

12

Plaintiffs,

13 v.

14 KIRSTJEN NIELSEN, Secretary, U.S.

15

Department of Homeland Security, in her official capacity, et al.

16

Case No.: 3: 7-cv-02366-BAS-KSC
ORDERG TING IN PART AND DENYING PART DEFENDANTS' MOTIONF R PROTECTIVE ORDER

17

Defendants.

18

19

20

Presently before the Court is a Motion for a Prot ctive Order sought by the

21 defendants regarding their preservation obligations of vide and audio data collected at

22 multiple Ports of Entry ("POE") along the Southwest bor r by the U.S. Customs and

23 Border Patrol ("CBP"). For the reasons explained in grea er detail below, defendants'

24 Motion is GRANTED in part and DENIED in part.

25 Ill

26 Ill

27 Ill

28 Ill

3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3783 Page 2 of 31

1

I. BACKGROUND

2

A. Factual Background

3

The individual plaintiffs in this case are non-U.S. citizens who allege they were

4 denied access to the asylum process in the United States because of defendants' policies,

5 practices, and procedures for handling individuals that present themselves at POEs along

6 the U.S.-Mexico border. [Doc. No. 1 at pp. 1-2]. The individual plaintiffs seek asylum in

7 the United States due to fears of death or physical injury in their home countries, Mexico

8 and Honduras, which they attribute to gang violence, drug cartels, and, in some cases,

9 severe domestic violence. Plaintiff, Al Otro Lado, Inc., is an organization alleging that

10 defendants' unlawful policies, practices, and procedures have forced it to divert substantial

11 resources from other efforts to counteract defendants' alleged wrongful actions. [Id. at p.

12 4].

13

This case was filed as a class action. No class has yet been certified nor has a motion

14 for class certification been filed since the case was transferred from the Central District of

15 California to the Southern District of California. [Doc. No. 1]. The named plaintiffs,

16 proceeding pseudonymously [Doc. No. 138], allegedly presented themselves to CBP

17 officials at the San Ysidro and Otay Mesa, California, and Laredo, Texas ports of entry.

18 [Doc. No. 1]. They seek to represent a class of asylum seekers who they allege were also

19 denied appropriate access to the asylum process along the entire U.S.-Mexico border.

20

Before defendants' Motion to Transfer Venue was granted by the U.S. District Court

21 for the Central District of California [Doc. No. 113] on November 21, 2017, the parties

22 filed a Joint Rule 26(f) Report [Doc. No. 83]. Initial disclosures were exchanged in late

23 October, 2017 [Id. at p. 5], and an initial round of requests for production of documents

24 and responses thereto were exchanged. [Id. at pp. 5-6]. This Court stayed discovery on

25 January 31, 2018. [Doc. No. 144]. The instant dispute was filed as a Joint Motion on

26 February 20, 2018. [Doc. No. 148]. Therein, defendants informed the Court that the

27 dispute required speedy resolution due to an imminently scheduled technological

28 infrastructure event that would result in the permanent deletion ofall currently stored video

2 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3784 Page 3 of 31

1 and audio data on the San Ysidro POE surveillance system. 1 That Electronically Stored

2 Information ("ESI") deletion forms the basis of the instant dispute. The Court held a

3 hearing on the Joint Motion on February 28, 2018. [Doc. No. 150]. At the conclusion of

4 the hearing, the Court issued an Order staying the scheduled technological infrastructure

5 event described by defendants as the "transition" of the San Ysidro POE to the Centralized

6 Video Surveillance System ("CAVSS"), pending a ruling by this Court on the instant

7 Motion. [Doc. No. 153]. On March 9, 2018, defendants filed Supplemental Briefing as

8 ordered to address the questions posed by the Court during the hearing. [Doc. Nos. 156,
9 161].

10

B. Technological Infrastructure of CBP Surveillance Systems

11

For a better understanding of the respective arguments of the parties, a brief

12 summary of the surveillance system infrastructure at CBP POEs is appropriate.

13

Any video or audio data recorded by CBP under its current system begins with

14 multiple cameras and microphones positioned throughout POE facilities. [See, e.g., Doc.

15 No. 148-22, Deel. of Adrian C. Guerra]. Some cameras are associated with microphones,

16 while some microphones are free standing, recording audio not directly tied to a specific

17 camera. [Doc. No. 148]. All such data is recorded to either Digital Video Recorders

18 ("DVRs") or Network Video Recorders ("NVRs"). No hardware-specific differences

19 between these devices have been communicated to the Court other than the representation

20 that, "[i]n general, DVRs have smaller hard drives than NVRs, and so are generally capable

21 of storing a smaller quantity of data." [Doc. No. 148-18 at p. 4, Deel. of Heather M.

22 Robinson]. For this reason - and because NVRs have the added benefit of remote access

23 and updating as discussed below - NVRs are preferred, and CBP is working across POEs

24 to replace DVRs with NVRs where possible. [Id.].

25

26

27 1 Other than limited surveillance data that has already been archived. 28

3 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3785 Page 4 of 31

1

CBP is in the process of implementing its preferred means of surveillance data

2 management nationally through the Centralized Video Surveillance System ("CAVSS") at

3 the San Ysidro POE, an "enterprise-wide program that is intended to be the fixed facility 4 surveillance solution for the agency."2 [Id. at p. 2]. A fully operational CAVSS system at

5 a POE includes DVRs, NVRs, viewing monitors, computer workstations, storage devices

6 (e.g., DVDs, CDs, hard drives, and other storage devices), and specialized software (such

7 as the Video Management Software ("VMS") used to review and then archive data for

8 longer-term preservation). [Id.]. Importantly, CAVSS permits CBP officials "to centrally

9 and remotely maintain" NVRs on the system, allowing CBP to swiftly address

10 cybersecurity vulnerabilities. [Id. at p. 8]. Some POEs have already been partially

11 integrated into CAVSS, while others have not. [Id.].

12

For those surveillance systems already on CAVSS, the aim is to preserve video and

13 audio data for 90 days before it is overwritten. [Id. at p. 4]. The overall tenor of CBP's

14 briefing suggests that it is more common for cameras to begin overwriting video sooner

15 than the 90 day standard. Some cameras begin overwriting in less than thirty days, while

16 others might not begin overwriting for nearly 700 days. 3 [Doc. No. 148-22, Deel. ofAdrian

17 C. Guerra]. The more movement in a camera field of view, the more data it records, the

18 more quickly the allocated storage is filled, and thus the more quickly overwriting occurs.

19 [Doc. No. 148-16 at p. 4]. As a result, cameras that pan, zoom, or focus on areas of high

20 traffic will capture more data per second of video than fixed cameras, or cameras in less

21

22

2 CAVSS began as a surveillance system deployed along the U.S. northern border, but was later deemed
23 important to implement at southern border POEs post September 11, 2001. [Doc. No. 156-3, p. 3]. The

24

system did not receive congressional funding to cover management or implementation costs until 2016. Up until 2015, the Border Security Development Office implemented CAVSS when and where it could

25 across the southern border depending on where the need was greatest. Ms. Robertson explains that the
implementation was piecemeal because the Border Security Development Office was limited to using

26 operational funds in the absence of clearly segregated funding. [Id at pp. 3-4].

27 3 The number of days surveillance data is retained before being overwritten is distinct from non-retention

28

due to power outages, equipment malfunctions, and the normal challenges facing any large scale surveillance system.

4 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3786 Page 5 of 31

1 trafficked areas. [Id.]. In sum, regardless of whether a surveillance system in its entirety,

2 some portion, or no portion has been integrated into CAVSS, the quantity ofdata preserved

3 at a POE may vary substantially. [See Doc. Nos. 148-16, 148-22, 148-23, 148-24, 148-

4 25]. This is true of the San Ysidro POE in its current, non-CAVSS integrated state.

5

Because all data is eventually overwritten, CBP personnel can choose to retrieve

6 relevant video or audio data to "archive" specific, identifiable incidents. [Doc. No. 148-16

7 at p. 6]. The most common storage method appears to be DVDs, however personnel also

8 use external hard drives. [Doc. Nos. 148-16, 148-22, 148-23, 148-25]. Archives are for a

9 "specific" and "abbreviated" time period, commonly referred to as an "incident."

10 "Incidents" are "identified, archived, and preserved as soon as possible after their

11 occurrence." [Doc. No. 148 at p. 12]. This process is "labor and resource-intensive" so

12 CBP personnel at the Laredo Field Office, for example, find it neither "practical [n]or

13 necessary to preserve all footage..."[Doc. No. 148-22 at p. 4]. CBP "does not generally

14 have the resources to indefinitely archive all video data." [Doc. No. 148-16 at p. 6].

15

Counsel for the government took great pains at the hearing to impress upon the Court

16 that "the system is designed for incident-specific archiving" and that CBP does not ever
17 contemplate holding on to, for example, "a whole day of video." [Doc. No. 157 at p. 1OJ.

18 This point is reiterated in its Supplemental Brief when CBP writes"[d]efendants' technical

19 infrastructure is only able to support archiving of specific incidents such as alleged defined

20 crimes or a specific altercation." [Doc. No. 156 at p. 4]. Implicit in defendants' statements

21 is that retention of surveillance data beyond a narrow, time-bounded "incident" is possible,

22 but exceeds CBP's current practices and available data storage infrastructure.4

23

24

25

26 4 Elsewhere in defendants' papers, CBP states that it has retained seven months of surveillance data of

individuals that withdrew their applications for asylum. [Doc. No. 148 at p. 1]. While the exact nature of
27 that surveillance data or why the government chose to retain this data has not been explained to the Court,

28

it is nonetheless important when parsing the assertions regarding the full scope of CBP's preservation capabilities. See Discussion, Section II, irifra.

5 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3787 Page 6 of 31

1

To reiterate, CBP's practice is to save only a small amount of data (i.e., specific

2 incidents as needed) to a DVD, CD, or external hard drive. [Doc. Nos. 148-16, 148-22,

3 148-23, 148-25]. CBP did not provide the typical costs incurred by the agency for

4 preserving limited "incidents" in its normal course of operations. CBP also did not provide

5 the costs associated with retaining the surveillance data that it has already agreed to

6 preserve and produce for purposes of this lawsuit. CBP continues to maintain that the only

7 feasible way to satisfy plaintiffs preservation requests is to preserve all surveillance ESI

8 currently stored to date at the San Ysidro POE. [Doc. No. 161 at pp. 11-12].5

9

In support of its description of the burden imposed when identifying and preserving

10 electronic data for specific incidents, CBP provided contradictory explanations and

11 declarations. The Declaration of Mr. Adrian C. Guerra, Program Manager for Border

12 Security at the Laredo Field Office states the following, rough, rule of thumb:

13

[I]n my experience, when an incident has been identified as requiring

14

preservation, the process can take as many man hours to complete as the time

period provided to identify the incident .... For example, if a window of 3

15

hours is provided with a general description of the individual involved, and a

16

specific POE in which the even occurred, it could take up to 3 hours to identify

the relevant data .... Having as much information about an event as possible

17

- [like] date, time and location of event, a relevant date of birth, alien number,

18

and description- makes identifying the relevant data much more efficient and potentially near instantaneous.

19

20

21

22

23 5 This all or nothing rationale is best captured in the following excerpt:

24
The cameras at PedWest and AEU capture processing of all individuals, which would include

25

"those seeking asylum or expressing a fear of return to their countries of origin," (ECF No. 148-

15, Hood Deel. ,-i 10), and the AEU video cameras "capture the processing of all ... aliens, not

26

just a particular subset, such as those seeking asylum or expressing a fear of return to their countries

27

of origin [.]" Hood Deel. ,-i 8. All individuals, "regardless of their citizenship and immigration status," are subject to inspection by CBP officers. See Hood Deel. ,-i 5."

28

6 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3788 Page 7 of 31

1 [Doc. No. 148-22 at p. 5-6]. The more detailed the identifying information given to CBP

2 personnel, the faster an incident can be identified in the stored surveillance data. According

3 to Mr. Guerra, specific incidents can almost always be archived if brought to CBP's

4 attention within 30 days of the incident. [Doc. No. 148-22 at p. 5-6]. By contrast, in his

5 Supplemental Declaration, Johnny Armijo contends it took 4.5 weeks for one CBP officer

6 to find the video and audio data of the named plaintiffs, even with their identifying 7 information.6 [Doc. No. 156-1].

8

To date, two facilities at the San Ysidro POE-Pedestrian West Facility ("PedWest")

9 and the Admissibility Enforcement Unit ("AEU") -have not been integrated into CAVSS.

10 [Id. at p. 6]. The CBP official overseeing POE integration, Heather Robinson, was notified

11 in July, 2017 that the San Ysidro POE was ready to be transitioned to CAVSS. [Doc. No.

12 156-3 at p. 5]. Ms. Robinson' office was also notified around the same time that the

13 transition would need to be delayed due to this litigation. [Id.]. The transition was

14 subsequently set for January 31, 2018 [Id], but was further delayed to March 5, 2018 when

15 plaintiffs objected. This Court stayed the transition to CAVSS at the San Ysidro POE

16 scheduled for March 5, 2018, which the government emphasizes "increases the risk that

17

18

19 20 6 As explained by Mr. Armijo, archiving the video took so long because:

21

"CBP cannot simply 'automatically retrieve pertinent video footage and/or audio files; the whole

process is manual.' Armijo Supp. Deel. ,-i 3. The officer pulling and archiving the video and audio

22

files of named [p]laintiffs had to 'determine each and every part of the ports that each [p]laintiff

23

had passed through. Then he had to determine which cameras or microphones would capture each [p]laintiff in each of those locations, and then determine which NVR ... those cameras and/or

24

microphones were associated with. [Next] he had to review the pertinent video footage and/or

audio files on each of those NVRs, and copy that video footage and/or audio files to an external

25

storage device."

26 [Doc. No. 156 at p. 16]. Presumably a map or list of the cameras and microphones that correlate with 27 specific regions ofa POE, once made, would expedite the process ofmatching an individual's path through
a POE with the audiovisual recordings on which he or she might appear.
28

7 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3789 Page 8 of 31

1 the system will be corrupted by a cyber-event or hacked by an outside entity." [Id. at p. 6].7

2 Notably, following service of the instant lawsuit, CBP did not alter its automatic deletion

3 of electronic surveillance data. Furthermore, the Order by this Court staying the transition

4 to CAVSS did not halt the standard overwriting policy consistently in place on CBP DVRs

5 and NVRs at the San Ysidro POE.8

6

c. Relief Requested

7

The defendants seek permission from this Court to transition to CAVSS at the San

8 Ysidro POE, which as stated will result in the destruction of all electronic data from their

9 current system that has not otherwise been retained. Before this transition, they have 10 agreed to preserve and produce the following materials:

11

(I) video of currently-named plaintiffs to the extent it is identifiable and in

12

existence;

13

(2) recordings preserved by CBP of arriving aliens at the San Ysidro POE,

14

which were made during the process ofthese aliens seeking to withdraw their

applications for admission, between October 28, 2016, and June 8, 201 7;

15

16

(3) video retained in the official case files for investigations conducted by

investigative entities into allegations of misconduct by CBP officers at

17

southern land POEs since January 1, 2016, which are similar to allegations in

18

the Complaint; and,

19

(4) video of discrete incidents involving any named plaintiffs, if identified by

20

name, A-number or date of birth, date and time of incident, and port location,

and provided to defendants within 30 days of the incident.

21

22 [Doc. No. 148 at p. 2].

23

24

25

26 7 The Court was not informed of impending transition events to CAVSS at other relevant, southern
border POEs. Consequently, this Order pertains only to the CAVSS transition at the San Ysidro POE.
27 28 8 It is not evident to this Court that the plaintiffs asked CBP to cease entirely its normal ESI over-writing
procedures.
8
3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3790 Page 9 of 31

1

Plaintiffs do not object to the production ofthe above referenced electronic data, but

2 also seek the following:

3

(a) recordings preserved by CBP of arriving aliens at all southern border

4

POEs, which were made during the process of these aliens seeking to

withdraw their applications for admission, from January 1, 2016 to the

5

present. Plaintiffs also note that defendants are obligated to preserve related

6

audio recordings where available.

7

(b) video of identifiable incidents involving any individual where port

8

location, date, time, and identity are provided within 45 days; [and,]

9

(c) video of the lines of individuals waiting in Mexico to access the southern

10

border POEs.9

11 [Id. at p. 49, n. 1]. The defendants object to plaintiffs' first and third requests. With respect

12 to the second request, it is comparable to defendants' category No.4 for preservation and

13 production, except the number of days required for notification to defendants of any request

14 to preserve information related to specific incidents. Defendants seeks a Protective Order

15 affirming their arguments that each request by plaintiffs exceeds the scope of preservation

16 required under the Federal Rules of Civil Procedure and that such information need not be

17 preserved or produced.

18 Ill

19

20 21 9 Plaintiffs clarified, and narrowed, the scope of this request during the discovery hearing. Counsel stated:

22

[O]ur complaint covers the improper interactions between CBP and Mexican authorities;

for example, the ticketing system and pulling people from lines to get into the ports of entry. So

23

these incidents are relevant to the complaint.

24

And as we've explained to the defendants, we are willing to narrow the request. We're not

25

seeking wholesale preservation of these lines outside the ports of entry, rather, we have identified

a specific time.frame within that week [December 17-27, 2017] that was recorded in the new report.

26

And also (inaudible) specific cameras that are already in existence. And again, moving forward,

we'd like a 45-day window from learning ofa relevant incident to request that footage from the

27

defendants.

28 [Doc. No. 157 at p. 21 (emphasis added)].

9 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3791 Page 10 of 31

1

II. LEGAL STANDARD

2

A. Factors To Consider for Granting a Protective Order

3

A Court may, for good cause shown, enter a protective order pursuant to Federal

4 Rule of Civil Procedure 26(c). Rule 26(c) permits the Court to alter the method of

5 discovery requested by a party, allocate costs, and/or forbid inquiry into some matters

6 entirely. Rule 26(c)(1 )(A)-(H). The party seeking a protective order under Rule 26 bears

7 the burden of demonstrating good cause and the "particular need" for protection.

8 Nonetheless, Rule 26(c) "confers broad discretion on the trial court to decide when a

9 protective order is appropriate and what degree of protection is required." Robinson v.

10 Chef's Warehouse, 3:15-cv-054210-RS (KAW), 2017 WL 836944, at *l (N.D. Cal. Mar.

11 3, 2017) (citing Seattle Times v. Rhineheart, 467 U.S. 20, at 36 (1984)).

12

Complicating the Rule 26(c) analysis here is that CBP requests the Court to protect

13 it from over-burdensome preservation and production. Typically, Courts are presented

14 with requests seeking the preservation of relevant data, not requests like the one at issue

15 where the party requesting the protective order seeks judicial permission to destroy

16 potentially relevant documents and information. Accordingly, there is minimal case law

17 support for defendants' request. Nonetheless, this Court will consider the following

18 general factors when evaluating whether a protective order is appropriate:

19

1) the level of concern the court has for the continuing existence and

20

maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; 2) any irreparable harm likely to

21

result to the party seeking the preservation of evidence absent an order

22

directing preservation; and 3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence's

23

original form, condition or contents, but also the physical, spatial and financial

24

burdens created by ordering evidence preservation.

25 Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429,

26 433034 (W.D. Pa. 2004). Other courts rely on a two-factor test laid out in Pueblo of

27 Laguna v. US., 60 Fed. Cl. 133, 138 (1991) ("To meet the first prong of this test, the

28 proponent must show that absent a court order, there is significant risk that relevant

IO 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3792 Page 11 of 31

1 evidence will be lost or destroyed. [ .... ] [Second], the proponent must show that the

2 particular steps to be adopted will be effective, but not overbroad ..."). "The difference

3 between these two tests lies in what the moving party must show with respect to the content

4 of the evidence that is in danger of being destroyed. However, the distinction is more

5 apparent than real." Treppel v. Biovail Corp., 233 F.R.D. 363, 370 (S.D.N.Y. 2006).

6

This Court favors the three-factor Capricorn test because, at bottom, it more

7 squarely addresses the key considerations of a party's preservation obligations: whether

8 the information at issue is relevant to the parties' claims and defenses, and whether the

9 ability and effort necessary to preserve the information is proportional to the needs of the

10 case. It is those issues the Court prioritizes in evaluating this dispute.

11

B. Scope of Duty to Preserve

12

The seminal cases discussing a litigant's duty to preserve address when the duty is

13 triggered and the scope of the duty. See, e.g., Jn re Napster, Inc. Copyright Litig., 462 F.

14 Supp. 2d 1060 (N.D. Cal. 2006); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216

15 (S.D.N.Y. 2003). The duty to preserve documents is triggered "when a party should have

16 known that the evidence may be relevant to future litigation." Zubulake, 220 F.R.D. at 216.

17 Once triggered, "a litigant must preserve evidence which it knows, or would reasonably

18 know, is relevant to the parties' claims or defenses." See Jn re Napster, 462 F. Supp. 2d at

19 1067;seealsoApplev. Samsung Electronics Co., Ltd., 881 F. Supp. 2d 1132, 1136 ("The

20 duty to preserve evidence also includes an obligation to identify, locate and maintain,

21 [relevant] information") (internal quotation and citation omitted). While an opposing party

22 might explicitly request preservation of some information, parties must also independently

23 evaluate their obligation to preserve. Starline Windows Inc. v. Quanex Bldg. Prod. Corp.,

24 No. 15-cv-1282-L-WBG, 2016 WL 4485568, at *12 (S.D. Cal. Aug. 19, 2016); see also

25 Scalera v. Electrograph Systems, Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009) (the

26 "obligation to preserve relevant evidence exists whether or not the evidence has been

27 specifically requested in a demand for discovery."). "Attorneys must take responsibility

28 for ensuring their clients conduct a comprehensive and appropriate ... search . . . . The

11 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3793 Page 12 of 31

1 Committee's concerns are heightened in this age of electronic discovery when attorneys

2 may not physically touch and read every document within the client's custody and control."

3 Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-RMB-BLM, 2008 WL 66932, at *1

4 (S.D. Cal. Jan. 7, 2008), vacated in part, No. 05-CV-1958-RMB-BLM, 2008 WL 638108

5 (S.D. Cal. Mar. 5, 2008).

6

The scope of a party's duty to preserve is the same as the scope of discovery

7 articulated in Rule 26(b)( 1); namely that a party "may obtain discovery regarding any

8 nonprivileged matter that is relevant to any party's claim or defense and proportional to the

9 needs of the case." Fed. R. Civ. P. 26. Preservation is evaluated on a standard of

10 reasonableness, which is in tum informed by proportionality. See, e.g., Victor Stanley, Inc.

11 v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010) ("Whether preservation or

12 discovery conduct is acceptable in a case depends on what is reasonable, and that in tum

13 depends on whether what was done-or not done-was proportional to that case and

14 consistent with clearly established applicable standards."). Thus, the standard reflects the

15 reality that "perfection in preserving all relevant electronically stored information is often

16 impossible." Fed. R. Civ. P. 37(e) Adv. Comm. Notes (2015).

1 7

When considering the preservation or production of ESI, a frequent issue is its

18 accessibility. See generally Zubulake v. UBS Warburg, 216 F.R.D. at 284. The linchpin of

19 accessibility analysis is the effort or expenditure of resources required to access and/or

20 produce relevant ESL See Quinby v. West LB AG, 245 F.R.D. 94 (S.D.N.Y. 2006); see also

21 Best Buy Stores, L.P. v. Developers Diversified Realty Corp., No. 5-2310 (DCD/JJG), 2007

22 WL 3333987, at *1 (D. Minn. Feb. 1, 2007). Courts emphasize that "the primary source

23 of ESI to be produced during discovery's progression should be active ESI, typically

24 defined as ESI currently or habitually in use by the requested entity." US. ex rel. Carter v.

25 Bridgeport Educ., Inc., 305 F.R.D. 225, 238 (S.D. Cal. 2015) (quoting The Sedona

26 Principles: Best Practices Recommendations & Principles for Addressing Electronic

27

28

12 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3794 Page 13 of 31

1 Document Production 139 (2d ed. 2007)). 11 Yet with the declining practice of storing ESI

2 as "inactive data," courts have shifted their focus to consideration of the cost and effort

3 needed to retain allegedly inaccessible data. The Sedona Principles, Third Edition, l 9

4 Sedona Conf. J. 139 (2018). Considerations include whether active data is frequently

5 overwritten to make space for new data, or whether data is difficult to search, thus

6 compounding time and labor costs.

7

In short, sensitivity to "on-the-ground" realities of a party's ESI management and

8 maintenance is necessary, and the parties bear the burden of sufficiently educating a court

9 about those nuanced realities. It is all the more important, therefore, that parties state clearly

10 the relief they seek and the technical details undergirding a dispute. Parties are best served

11 by carefully tracking the process by which they identify and preserve relevant ESI in the

12 event of a dispute. The Sedona Conference recently affirmed the value of this approach in

13 its most recent Statement of Principles:

14

Responding parties and their counsel should consider what documentation of

15

their discovery process (i.e., preservation, collection, review, and production) is appropriate to the needs of the particular case. Such documentation may

16

include a description of what is being preserved; the processes and validation

17

procedures employed to preserve, collect, and prepare the materials for production; and the steps taken to ensure the integrity of the information

18

throughout the process . . . . Having documentation can help respond to

19

legitimate challenges ... -even those made years later-to the processes employed, avoid overlooking ES! that should be collected, and avoid

20

collecting ES! that is neither relevant nor responsive to the matter at issue.

21

22 Sedona Principles, Third Edition, 19 Sedona Conf. J. 126-27 (2018) (emphasis added).

23 I I I

24

25

26 11 The Third Edition of the Sedona Principles describes active data as follows: "Active Data . . .is

information residing on the direct access storage media (disk drives or servers) that is readily visible to
27 the operating system and/or application software with which it was created, and is immediately accessible

28

to users or administrators without restoration or reconstruction." The Sedona Principles, Third Edition, 19 Sedona Conf. J. 138 (2018).

13 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3795 Page 14 of 31

1

III. DISCUSSION

2

Below, the Court analyzes the discovery issues raised in the defendants' Motion for

3 Protective Order [Doc. No. 148]. Section A addresses defendants' posture regarding the

4 instant dispute and whether it has complied fully with its preservation obligations.

5 Section B addresses the preservation request for CBP surveillance data of individuals

6 withdrawing their applications for admission. Section C addresses whether plaintiffs'

7 request for 45 days, rather than 30 days, in which to bring an incident to the attention of

8 CBP for preservation is appropriate. Section D addresses whether CBP must preserve

9 surveillance data of lines stretching south from the San Yisdro POE into Mexico for a

10 limited period of time in December, 2017.

11

A. Defendants Have Failed To Adequately Fulfill Their Affirmative

12

Preservation Obligations

Before addressing the issues for which defendant seeks a Protective Order, the Court

13 finds it necessary to address some of defendants' underlying arguments and factual

14 assertions. After careful review ofthe briefing and discovery hearing transcript, this Court

15 concludes that defendants have consistently failed to consider their affirmative duty to

16 preserve documents and information. In so doing, the defendants have misconstrued

17 plaintiffs' preservation requests as over-burdensome. While plaintiffs are required to

18 articulate defined requests for preservation and/or production, so too must defendants take

19 seriously their independent obligation to preserve information, and to arrive at workable

20 preservation solutions, which balance the proportionality of preservation against the need

21 for eventual production of information.

22 The recent amendments to Rule 34 ofthe Federal Rules ofCivil Procedure, although

23 addressing requests for production, are instructive. 12 Rule 34(b)(2)(C) obligates a

24 responding party, when faced with a request for production, to "state whether any

25

26

27 12 This Court notes that while preservation issues in this dispute are presented in the context of a Motion

28

for a Protective Order, they could have easily arisen in response to an objection by the defendants to a request for production of ESL

14

3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3796 Page 15 of 31

1 responsive materials are being withheld on the basis" of its objection. Fed R. Civ. P. Rule

2 34 (2015). The Advisory Committee Notes explain that when a party objects to a request

3 for production because it is overbroad, it must also acknowledge if "some part of the

4 request is appropriate [and] state the scope that is not overbroad." Advisory Committee

5 Notes, Fed. R. Civ. P. 34 (2015). Parties are not excused from this obligation because their

6 data systems are complex, making it difficult to map exactly where data resides. Nor is a

7 party excused from this obligation because a workable solution is not immediately

8 apparent. "A party responding to a document request cannot furnish only that information

9 within his immediate knowledge or possession; he is under an affirmative duty to seek that

10 information reasonably available to him from his employees, agents, or others subject to

11 his control." Bryant v. Armstrong, 285 F.R.D. 596, 607 (S.D. Cal. 2012) (internal

12 quotations and citation omitted).

13

In the same way that the relevance standard of Rule 26 is the touchstone for the

14 scope of preservation, so too is Rule 34 for a party's obligation in the face of allegedly

15 objectionable preservation requests. Each party has an obligation to think critically, not to

16 object reflexively. See, e.g., Hee Nam You v. Japan, No. C 15-03257 WHA, 2015 U.S.

17 Dist. LEXIS 123877, at *2-5 (N.D. Cal. Sept. 16, 2015) (approving defendant's request for

18 a protective order upon review of defendant's proposed alternative preservation solution in

19 the face of a regular data erasure policy); Brown v. Tellermate Holdings, Ltd., No. 2:11-

20 cv-1122, 2014 U.S. Dist. LEXIS 90123, at * 19 (S.D. Ohio July 1, 2014) (admonishing

21 defense counsel that misrepresentations in its briefing regarding their client's data systems

22 could have been prevented "had the right questions been asked of the right people.").

23

Throughout defendant's briefing and at the discovery hearing, they emphasized that

24 their surveillance infrastructure permits only "incident specific" archiving. [See Doc. No.

25 148 at p. 39]. The manner in which CBP selectively chooses to archive incidents recorded

26 by its surveillance system, however, does not mean that CBP is unable to preserve larger

27 quantities of data. CBP has simply determined that preserving specific incidents is the best

28 method to meet its operational needs. [Doc. No. 148 at p. 33]. As acknowledged, hundreds

15 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3797 Page 16 of 31

1 of thousands of hours worth of readily accessible, surveillance data exists on CBP NVRs

2 and DVRs at any given moment. [See Doc. Nos. 148-16, 148-22, 148-23, 148-24, 148-25].

3 If it so chose, CBP could preserve a 15 day portion of video recorded at an entire POE, or,

4 presumably, video from a limited number of cameras at a POE. 13 Defendants' briefing 5 admits as much. 14 That litigation may require a party to deviate from its normal data ESI

6 management protocols is not unusual, or on its face, a viable basis for objection. Nor does

7 a data management system that regularly overwrites information in the normal course of

8 operation excuse a party from fulfilling their duty to preserve documents and information.

9

Emphasizing the "incident specific" nature of CBP surveillance systems dovetails

10 with defendants' most frequently used argument against preservation: to construe every

11 request by plaintiffs to require "wholesale preservation" of all existing ESI on CBP NVRs

12 and DVRs across a single POE, or every POE. [Doc. No. 148 at p. 21]. For example,

13 defendants assert that plaintiffs' requests for 45 days' notice to bring an incident to their

14 attention, and to preserve surveillance data of individuals withdrawing their applications

15 for admission would require the "wholesale preservation" of all surveillance ESI at the

16 entire San Ysidro POE. [Id. at 21]. This Court acknowledges that holding onto every

17 second of video at a POE may, indeed, be over-burdensome. Recognizing that, the Court

18 sought at the discovery hearing to strike a balance, and asked defendants how the quantity

19 ofpreserved ESI could be tailored to reduce the amount of ESI subject to preservation, and

20 perhaps later, production:

21

22
13 To the extent that this the Court misstates the archival capabilities of defendants' surveillance system,
23 the fault for that misunderstanding lies with defendants for their failure to provide such detailed
24 information, even following inquiry from this Court.

25 14 Larger scale preservation is undertaken by CBP only when "required for some evidentiary or operational
reason." [Doc. No. 161 at p. 1]. In fact, seven months of surveillance data at the San Ysidro POE was

26 preserved by CBP for just such an unknown, unexplained, and undefined "operational reason'', and is

exactly the type of data plaintiffs' request be preserved. (see Section II, infra). Given CBP has preserved
27 such quantities of data before, the Court is forced to conclude - whatever CBP has asserted to the

28

contrary - that its reluctance to preserve identical information in this case is the product of preference and unwillingness to incur the associated costs, not capability.

16 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3798 Page 17 of 31

1

Court: And has the ... government identified which specific cameras and

2

microphones within the two locations at San Ysidro, mainly Ped West and

AEU, might have relevant recorded interactions between plaintiffs -potential

3

plaintiffs and CBP?

4 I mean, the Robertson declaration points out the tremendous costs

5

associated with archiving and how much data is at issue at the port in general.

6

I'd like to know whether there are any specific cameras and microphones that

are at issue that really would contain the information which is relevant to this

7

case. Do you know the answer to that?

8 Ms. Saeed: We - we have retained video of all named plaintiffs at this time. I

9

think we would have to - we would have to ... check into that.

10 Court: Alright. So that's another thing I need to know, the specific cameras

11

and microphones that are most likely to have relevant recorded interactions

12

between the named plaintiffs and any potential plaintiffs, which obviously

would be coming through the same entry spots, and where those cameras and

13

microphones are located. And I'm asking specifically now for San Ysidro.

14 15 [Doc. No. 157 at pp. 33-35]. The Court recognizes, as it did at the hearing, that it is unlikely 16 a single camera or microphone would record all relevant data. Hence the request for more 17 narrowly drawn preservation options. Despite the Court's request for this specific 18 information, the defendants doubled down in their Supplemental Briefing and 19 accompanying declarations, continuing to assert an all or nothing approach, thereby
20 ignoring this Court's specific request for this information that might allow for the issuance
21 of a tailored, more cost-effective solution. 15 [See Doc. No. 161 at p. 11 citing Doc. No. 22 148-15].

23

24
15 This is not the only example of explicit requests by the Court for which defendants provided either
25 insufficiently detailed answers or no meaningful response at all. Some of the questions listed below, the

Court understands, do not align perfectly with the on-the-ground realities. Nonetheless, and as the Court
26 explained, supra, the government is obligated to provide sufficient detail so a reasonable determination

27

can be articulated by the Court. Below are some of the questions for which either no, or unsatisfactory, answers were provided by the government:

28

17 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3799 Page 18 of 31

1

There are 207 cameras and 55 microphones recording to 20 NVRs at the San Ysidro

2 Ped West and AEU facilities. [Id. at p. 10]. As previously addressed, some cameras are

3 affiliated with microphones while others are not. [See, e.g., Doc No. 148-22]. Given the

4

5

6

Court: [W]hat I'm thinking about is any location where there would be direct - where there's an

opportunity for an asylum applicant to have any direct contact with an officer.
7

8

Ms. Saeed: We'll have to - we'll have to look into that.

9

Court: Okay. And I do see paragraph 15 of the Robertson declaration talks about 162 cameras

and 31 microphones at Ped West, and 45 cameras and 24 microphones at AEU. I don't know

10

how many of those pertain to the actual interview area where there would be direct interaction,

but if you could clarify that, that would be helpful.
11

12

[Doc. No. 157 at pp. 36-37].

13

Court: Okay. And you see - I mean, if we are talking about a more concise group of cameras,

14

then that - that cost may be less if it - if it can be segregated. And I don't know if it can.

15

Ms. Saeed: I think part of the issue is that there are a lot of different people coming through these

16

areas, including legal permanent residents, U.S. citizens, so it's kind of hard to segregate, and that this would be an extremely burdensome cost for the government. Even if the cost was

17

reduced ....

18

Court: I'm just trying to get a better understanding of what the circumstances are, and there's a

lot of generalities in the declaration, which is why I'm asking for specifics.
19

20

But it may be that that cost relates to a much broader scope of information than is actually necessary. In other words, if there are just specific cameras that are used when there's interaction

21

with asylum seekers that may be, you know, cameras 10 through 20 out of 200 cameras, which

may be a much more succinct and limited amount of data.

22

[Id at pp. 37-39].
23

24

Court: You're still not answering my question, and the declarations don't address it. What I want

you to find out is, are there certain locations where the asylum - where interaction with the

25

asylum applicants take place, and ifthere are, I want to know what cameras are controlled or are

geared and relevant to those particular locations.

26

[Id at p. 40].
27

28

18 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3800 Page 19 of 31

1 allegations in the Complaint, cameras paired with microphones would likely be the most

2 valuable as they would record conversations between asylum seekers and CBP personnel.

3 Perhaps the preservation of recorded video from a limited number cameras would provide

4 a bird's eye view of the interior region where interactions at issue occur. Those recordings

5 conceivably could be coupled with audio recordings to preserve the relevant incident(s).

6 Further, while the surveillance system functions 24/7, one might inquire whether a greater

7 number ofpersons flow through the facilities during the daytime hours than at night. These

8 are the kinds of line-drawing efforts the Court expected defendants to address in order to

9 find a reasonable preservation solution. Defendants failed, without any satisfactory

10 explanation, to provide this information, or otherwise engage in meaningful meet and

11 confer efforts on this issue as required by this Court. See Judge Crawford Chambers' Rules,

12 V(B).

13

Defendants also miss the mark when characterizing all CBP surveillance data they

14 would prefer not to produce as "inaccessible." For example, defendants' state that "video

15 of any identifiable individuals within 45 days of all southern land border POEs, as well as

16 video capturing lines in Mexico at the San Ysidro POE is an inaccessible source ofES!

17 that defendants should not have to preserve or produce." [Doc. No. 148 at pp. 39-42

18 (emphasis added)]. They assert the data is inaccessible because: (1) to meet plaintiffs'

19 requests would exceed the capacity of its existing storage infrastructure and so compliance

20 would require that more storage be created; and (2) the large scale video preservation that

21 plaintiffs propose is not "accessible" because the data 'need[s] to be restored or otherwise

22 manipulated to be usable.' [Id. at 40 quoting Zubulake v. UBS Warburg, LLC, 217 F.R.D.

23 309, 320 (S.D.N.Y. 2003)].

24

Defendants have not persuaded this Court that targeted and narrowly drawn

25 archiving is unachievable. That the production of such data might be costly or inconvenient

26 does not, by definition, render it "inaccessible." The defense has acknowledged that data

27 on CBP servers is easily accessed and frequently archived. See Background, Section II,

28 supra. Consistent with the time and labor necessary to procure the information, the Court

19 3: I 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3801 Page 20 of 31

1 expects the parties to meet and confer to arrive at reasonable solutions balancing CBP's

2 limitations with plaintiffs right to relevant ESL

3

The Court also fundamentally disagrees with defendants' analogy to Zubulake for

4 the proposition that all CBP surveillance ESI is inaccessible. Zubulake, 217 F.R.D. at 320.

5 Zubulake addressed the accessibility of information on backup tapes, which is the

6 paradigmatic example of an inaccessible ESI storage medium. Id. To access ESI on a

7 backup tape requires substantial effort and cost because, in many cases, it is necessary to

8 restore an entire server's worth of information to access the limited information sought. Id.

9 at 314. By contrast, CBP personnel regularly access surveillance ESI because it is active

10 data, while backup tapes are inactive. Id. Moving active and easily accessible ESI from

11 one storage medium to another does not, by itself, render it inaccessible.

12

In sum, defendants have failed to recognize their preservation obligations, and in

13 tum, take seriously these obligations, nor have they answered explicit questions put to them

14 by the Court. These failures unnecessarily complicates and hamstrings the ability of this

15 Court to analyze and craft reasonable and appropriate solutions.

16

B. Defendant CBP's Obligation to Preserve Surveillance Data of

17

Individuals Withdrawing Their Applications for Admission

18

Plaintiffs request that CBP preserve recordings "of arriving aliens at all southern

19 border POEs [that] were made during the process of these aliens seeking to withdraw their

20 applications for admission, from January 1, 2016 to the present." [Doc. No. 148 at p. 49 n.

21 l]. CBP has already preserved recordings of "arriving aliens [that withdrew their

22 applications] at the San Ysidro [POE] ... between October 28, 2016 and June 8, 2017."

23 [Id. at p. 1]. Defendant's agreed to preserve those seven months of such incidents at the 24 San Ysidro POE because it had already done so for "operational reasons." 16 [Doc. No. 157

25

26

27

16 Defendants fails to define "operational reasons'', nor do they explain why they were able to retain such a large amount of data for their own purposes while arguing that the preservation of similar ESI requested

28

20 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3802 Page 21 of 31

1 at p. 27]. Preserving data for "operational reasons" implies CBP did so independent of and

2 before its duty to preserve arose from this litigation, and before plaintiffs requested this

3 information. 17 [Id.]. Defendants otherwise assert CBP cannot preserve incidents that

4 occurred seven months before the date on which it searches its surveillance storage systems

5 because data will almost always be overwritten after the passage of so much time. CBP

6 further clarifies that the seven months of surveillance data from the San Ysidro POE is the

7 only available data of withdrawals it has retained. [Doc. No. 161 at p. 3]. CBP does not

8 normally archive surveillance data of individuals who withdraw their applications for

9 admission and is "aware of no other recordings having been made" at other POEs at which

10 named plaintiffs' claims occurred. [Id.].

11

CBP opposes preserving recordings of incidents at all southern border POEs from

12 January 1, 2016 to the present in which arriving aliens have withdrawn their applications

13 for admission [Doc. No. 148 at p. 1], but does not explain with any precision why it opposes

14 the request. The clearest argument articulated by the defense for why CBP should be

15 relieved of its obligation to preserve the ESI under discussion is contained in CBP's

16 supplemental briefing:

17

Defendants independently informed Plaintiffs of the existence and

preservation of the San Yisdro withdrawal videos for the dates specified, just

18

as Defendants became aware of the recordings at San Ysidro. Finally,

19

Defendants do not have any operational need or the technical infrastructure

necessary to record and preserve anything other than specific, discrete

20

incidents (unless required for some evidentiary or operational reason); thus

21

there is no reason to archive 100% of all NVR and DVR recordings. Ex. C,

Supplemental Declaration of Heather M. Robinson. 22

23

24

25

26 by plaintiffs is "inaccessible." If the data is "inaccessible" because it is too costly to preserve, defendants
again fail to explain why the cost was justified then for their own "operational reasons", but not now when
27 plaintiffs request the same information for a different time period.
28 17 The Complaint was filed in July, 201 7. [Doc. No. 1].
21
3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3803 Page 22 of 31

1 [Doc. No. 161 at p. l]. In sum, their justification for not retaining the ESI is that it has no

2 operational need for it the wholesale preservation of this information. Plaintiffs' only

3 written position regarding this evidence is set forth in a footnote in which they reiterate

4 their request, not why they request the information, or why it is relevant. [Doc. No. 148 at

5 p. 49, n. 1]. Plaintiffs did clarify during the discovery hearing that they have not asked

6 defendant CBP to preserve evidence of application withdrawals of individuals other than

7 named plaintiffs at this time, which by definition dramatically reduces the universe of ESI

8 to preserve. [Doc. No. 157 at p. 26].

9

Balancing the needs of both parties, and mindful of the proportionality requirement

10 under Rule 26, the Court concludes that defendants are not required to preserve

11 surveillance data across all southern border POEs ofaliens who withdrew their applications

12 for entry from January 1, 2016 to the present, beyond what they have already preserved.

13 Plaintiffs have not clearly articulated why surveillance data is relevant, nor is the Court

14 convinced that defendants could reasonably meet plaintiffs' request without incurring

15 substantial burden. 18 The Court concludes that preservation of application withdrawals at

16 all southern border POEs from January 1, 2016 to the present is not proportional to the

17 needs of the case.

18

Accordingly, defendants' Motion for a protective order on this issue is GRANTED.

19 Defendants will not be required to preserve all surveillance ESI "of arriving aliens at all

20 southern border POEs [that] were made during the process of these aliens seeking to

21 withdraw their applications for admission, from January 1, 2016 to the present." [Doc. No.

22 148 at p. 49 n. 1]. Any ESI already preserved and responsive to plaintiffs' requests,

23

24

25 18 The Court disputes, however, defendants' assertions that this request would require it to preserve "100%

of all NVR and DVR recordings." [Doc. No. 148 at p. 43]. Further, defendants do not explain why such
26 a course of action was reasonable for the October 28, 2016 to June 8, 2017 time period, for which CBP

27

voluntarily retained near-identitcal ESI for "operational reasons," but is over-burdensome for a more limited time period requested by plaintiffs.

28

22 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3804 Page 23 of 31

1 however, must be retained, including recordings already preserved of the plaintiffs seeking

2 to withdraw their applications. Going forward, defendants must retain specific incidents

3 in which an individual has withdrawn their asylum application if identified by plaintiffs

4 within 45 days, and defendants are provided with the individual's name, A-number or date 5 of birth, relevant POE, and the date and time of the incident. 19

6

C. Defendants Must Preserve Specific Incidents Identified by Plaintiffs

7

Within 45 Days of Occurrence

8

Next before the Court is whether CBP must preserve ESI of individual incidents

9 between alleged asylum seekers and the government if reported by plaintiffs within 30 or

10 45 days. Defendants offer to preserve such incidents if reported within thirty days and if

11 provided with the individual's name, A-number or date of birth, date and time of the

12 incident, and the relevant POE. [Doc. No. 148 at p. 34]. To expand the time frame beyond

13 30 days, CBP contends, would require CBP "to create infrastructure to preserve the video."

14 [Id.]. CBP claims plaintiffs' request would require "wholesale" preservation that exceeds

15 current CBP infrastructure, and so the 45-day timeframe is over burdensome. Plaintiffs

16 clarified during the discovery hearing that they are simply requesting a 45 day window in

17 which to report an incident to CBP, thereby triggering ESI preservation. [Doc No. 157 at

18 p. 20]. They acknowledge that the surveillance data they seek may well be overwritten

19 within 30 days in the normal course of CBP's surveillance operations, and are willing to

20 accept that risk. [Id.]. They also argue CBP' s stated policy goal of preserving surveillance

21 data for at least 90 days supports their request for a 45-day window.

22

CBP relies in part on Maxwell v. Tyson Foods, Inc., 2011WL13146733 at *3 (S.D.

23 Iowa Sept. 27, 2011) to support its contention that plaintiffs' request imposes an "undue

24 burden ... upon [CBP's] business operations by requiring its surveillance system to be

25 modified to continually preserve all footage recorded, with specific portions retrieved for

26

27

28 19 The Court reserves the right to revisit this decision if presented with new information.
23 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3805 Page 24 of 31

1 production as designated by plaintiffs." [Doc. No. 148 at p. 38 quoting Maxwell]. In

2 Maxwell, Tyson Foods' surveillance system had 91 cameras that would overwrite once

3 available server space filled. Id. at *2. That surveillance system, like the one in use here,

4 existed for security purposes, but unlike CBP, Tyson Foods did not appear to regularly

5 archive surveillance data. Moreover, substantial video evidence had already been provided

6 to the Maxwell plaintiffs; plaintiffs brought in their own videographers to film the goings-

7 on at the Tyson facility production floor "for 30 hours over the course of two days"; the

8 surveillance video quality was poor and might not adequately depict what individuals were

9 wearing, a central issue in the case; and additional surveillance data was duplicative and

10 overly burdensome in light of already-collected evidence, written statements, and witness

11 testimony given by employees. Id. at *3-4.

12

While the quantity of data at issue is greater in the instant dispute as compared to

13 Maxwell, the video evidence here is highly relevant and central to allegations made in

14 plaintiffs' Complaint. And unlike the poor video quality in Maxwell, the visual and/or audio

15 quality of the ESI at issue here is not contested. Taken together, these facts distinguish this

16 case from the facts presented to the Maxwell Court.

1 7

The Court agrees with plaintiffs. First, granting plaintiffs 15 additional days - for a

18 45-day window - in which to bring an incident to the attention of CBP is not overly

19 burdensome so long as the specific identifying information described above is provided.

20 CBP acknowledges that when it is provided with specific, identifying information, the time

21 and effort involved in locating and retaining relevant ESI is substantially reduced. Plaintiffs

22 are to provide the "port location, date, time, and identity" for each individual for whom

23 information is requested. [Doc. No. 148 at p. 49 n. 1].

24

Second, 15 days' worth of additional time (i.e., from 30 to 45 days) will not unduly

25 burden CBP's technological infrastructure, as explained to this Court. CBP will not need

26 to increase the number of existing NVRs and DVRs, and if the purchase of additional

27 DVDs or external hard drives is necessary, the cost is marginal relative to the needs of the

28 case and magnitude of the claims at issue. Plaintiffs also rightly point out that 45 days is

24 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3806 Page 25 of 31

1 well within CBP' s operational policy of preserving surveillance data for 90 days before it

2 is overwritten. [Doc. No. 148 at p. 4]. In a similar vein, plaintiffs acknowledge and accept

3 the possibility that an incident might already be overwritten when requested after 30, but 4 before 45, days elapse.20 This should encourage plaintiffs to expedite their preservation

5 requests.

6

Third, presumably some percentage of incidents that plaintiffs identify will have

7 already been preserved and/or identified by CBP's own preservation compliance efforts.

8 Plaintiffs' requests are not made in a vacuum and do not alleviate defendants' obligation

9 to engage in an active process to identify and preserve relevant incidents. Thus the burden

10 of plaintiffs' requests must be considered against the backdrop of defendants' own

11 preservation obligations. Reframing the issue in this way reveals that the additional burden

12 is minimal and proportional to the needs of the case.

13

Defendants raise the more challenging question of whether they are obligated to

14 preserve incidents involving individuals who "plaintiffs believe may be a putative class

15 member." [Doc. No. 148 at p. 39]. They also argue that because plaintiffs did not assert

16 any need for discovery to defend the pending Motion to Dismiss [Doc. No. 135], they

17 should not have to preserve any of the surveillance data identified by plaintiffs. [Doc. No.

18 148 at p. 37]. The Court disagrees. First, that plaintiffs did not require discovery to oppose

19 defendants Motion to Dismiss does not alleviate defendants' obligation to preserve relevant

20 information. Even where a motion to dismiss is granted, a class certification ruling - and

21 accompanying precertification discovery- might be necessary to determine the appropriate

22 scope ofthe dismissal. See In re Wal-Mart Stores, Inc. Wage and Hour Litig., 505 F. Supp.

23 2d 609, 615-16 (N.D. Cal. 2007).

24

25

26

27

20 The need for prompt presentment of a preservation request will also avoid the risk of data loss in high density locations where data is more likely to be over-written in 30 days or less.

28

25 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3807 Page 26 of 31

1

Second, discovery is currently stayed pending the plaintiffs' filing of an Amended

2 Complaint in light of the District Court's ruling on defendant's Motion to Dismiss. The

3 Court will reconsider the appropriate scope of discovery at that time.21 "District courts

4 have broad discretion to control the class certification process, and whether or not

5 discovery will be permitted lies within the sound discretion of the trial court." Vinole v.

6 Countrywide Home Loans Inc., 571 F.3d 935, 942 (9th Cir. 2009). Rule 26 permits

7 discovery of matters relevant to pre-class certification, but is typically limited to the factors

8 that inform class certification: e.g., number of class members, existence of common

9 questions, typicality of claims, and the representatives' ability to represent the class. Fed.

10 R. Civ. P. 23. In some types of cases, precertification discovery can include "[t]he

11 disclosure of names, addresses, social security numbers, and telephone numbers" when

12 relevant to meet the Rule 23 factors. Currie-White v. Blockbuster, Inc., No. C 09-2593

13 MMC (MEJ), 2010 WL 1526314, at *2 (N.D. Cal. 2010). The Ninth Circuit is clear that

14 " [t]he propriety of a class action cannot be determined in some cases without discovery, as

15 for example, where discovery is necessary to determine the existence of a class or set of

16 subclasses." Doningerv. Pacific Northwest Bell, Inc., 564F.2d 1304, 1313 (9thCir.1977).

17 The incidents not only are relevant to plaintiffs' broad substantive claims, but also appear

18 relevant to the factors that will be evaluated at the class certification stage. See Fed. R. Civ.

19 P. Rule 23. Indeed, a party must preserve evidence relevant to claims and defenses, not

20 only the subset that would inform a motion to dismiss. For that reason, defendants cannot

21 escape their duty to preserve relevant information where the preservation is not over-

22 burdensome.

23

Accordingly, defendants Motion for a Protective Order on this issue is DENIED.

24 Defendants going forward must preserve surveillance ESI not already over-written of

25 individual incidents between alleged asylum seekers and the government if reported by

26

27 28 21 Plaintiffs filed a Motion for Class Certification on November 13, 2017. [Doc. No. 98]. The Motion was
denied as moot when the Motion to Transfer Venue was granted on November 21, 2017. [Doc. No. 113].
26 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3808 Page 27 of 31

1 plaintiffs within 45 days and defendants are provided with the individual's name, A-

2 number or date of birth, date and time of the incident, and the relevant POE. Defendants

3 are to also preserve such information for incidents that occurred before the entry of this

4 Order, to the extent it has not been over-written.

5

D. CBP Must Preserve Surveillance ESI of Lines Stretching From the San

6

Ysidro POE into Mexico Between December 18, 2017 and December 26, 2017

7

8

Finally, defendants seek a protective order that would preclude them from preserving

9 surveillance ESI of individuals waiting in lines on the Mexican side of the border waiting

10 to enter the United States at the San Ysidro POE for an eight day period - from December

11 18, 2017 through December 27, 2017. Defendants also request that they be protected from

12 the need to preserve any future similar ESI that plaintiffs request.

13

In the initial Joint Motion, plaintiffs appear to request that defendants preserve all

14 surveillance data of individuals waiting in line in Mexico attempting to enter U.S. border

15 POEs. [Doc. No. 148 at p. 49, n. 1].22 The dispute over preserving surveillance ESI of

16 individuals waiting in these lines stems from news reports that plaintiffs' identified in the

17 Joint Motion, and that are provided in their entirety in defendants' Supplemental Briefing.

18 [Id. at p. 51; Doc. No. 156, Exhibits 4-6]. During the Discovery Hearing, the Court pressed

19 plaintiffs to clarify the scope of their request, to which they explained that they were

20 "tailored ... to exercise time periods."23 [Doc. No. 157 at p. 24]. More specifically, the

21 time period of December 18, 2017 through December 27, 2017 at the San Ysidro POE was

22 identified, which encompasses the events described in the aforementioned relevant news

23

24

25 22 A careful reading of plaintiffs' portion of the Joint Motion suggests that the summary in footnote 1 was
an overstatement of plaintiffs' request. Plaintiffs acknowledge that "CBP's technical infrastructure is
26 intended to permit video archiving of specific events" and so it should be well within CBP's abilities to

preserve "specifically identifiable and highly relevant incidents." [Doc. No. 148 at p. 51].
27

28

23 In context, counsel's statement emphasizes the specific nature of the requests. [See Doc. No. 157 at pp. 21-25].

27 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3809 Page 28 of 31

1 reports. Thus, the Court understands plaintiffs' request as limited to apply to the December

2 18, 2017 through December 27, 2017 timeframe at the San Ysidro POE, and to future,

3 narrowly drawn, time-bound, incidents at all southern POEs.

4

Plaintiffs assert that video of individuals waiting in line to enter the San Ysidro POE

5 between December 18, 2017 and December 27, 2017 is relevant and should be preserved

6 because plaintiffs allege defendants have "an unlawful policy of denying access to the

7 asylum process to any individual lacking a 'ticket' given by Mexican immigration

8 authorities." [Doc. No. 148 at p. 51 citing Complaint at ifif 85, 96(d), 98(b), lOl(b)]. The

9 cooperation between Mexican officials and CBP personnel, plaintiffs argue, "is at the core

10 of [their] complaint." [Doc. No. 148 at p. 51]. Plaintiffs expect that video of these lines

11 might show individuals, as alleged, being told "to go get a ticketing system" and then

12 "seek[ing] out a ticket or being pulled out ofline by the Mexican officials." [Doc. No. 157

13 at p. 23]. Because plaintiffs allege Mexican and CBP officials cooperate with one another

14 to deny asylum seekers their rights and because plaintiffs seek a relatively narrow period

15 of video surveillance, they contend the burden is proportional to the needs of the case.

16

Defendants counter that the requested surveillance ESI is "at best ... tangentially

17 relevant to [p]laintiffs' Complaint." [Doc. No. 148 at p. 36]. Similarly, they assert that "any

18 lines in Mexico or actions by Mexican officials are not under the control of Defendants and

19 such video, if it existed, is outside the scope of the Complaint filed by [p]laintiffs." [Id. at

20 p. 31 (emphasis added)]. Finally, defendants argue the requested surveillance ESI does

21 "not involve specific incidents which CBP's infrastructure is set up to preserve" and

22 "actually demonstrates that the agency is following the law but is constrained by limited

23 resources." [Doc. No. 156 at p. 20].

24

Plaintiffs allege in their Complaint that the use of a ticketing system is one method,

25 among many, CBP employs to deny asylum seekers access to the asylum system.

26

27

28

28 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3810 Page 29 of 31

1 [Complaint at iii! 85, 96(d), 98(b), lOl(b)].25 If in fact defendants have such ESI, to require

2 defendants to preserve all video surveillance on an ongoing basis of lines stretching into

3 Mexico that might capture the ticketing practice alleged would, in the judgment of this

4 court, be over-burdensome. Yet the more narrowly drawn time period identified by

5 plaintiffs by way of news reporting constitutes a reasonable quantity of relevant data.

6 Defendants note that the Court is not obligated "to indulge ... every request [or] allow

7 discovery on every conceivable issue that arises in [a] case, and fill every gap a party

8 raises." Lopez v. United States, 15-cv-180-JAH(WVG), 2017 WL 1062581, at *5 (S.D.

9 Cal. Mar. 21, 2017). The limited time period requested by plaintiffs, however, is reasonable

10 and proportional.

11

Defendants are not obligated to wait indefinitely to transition to CAVSS given the

12 longstanding plan to transition all POEs to this system. The Court recognizes the

13 cybersecurity concerns raised by CBP, but notes that these vulnerabilities appear to have

14 existed for years and that CBP delayed CAVSS implementation and has operated the

15 current surveillance system at San Ysidro, long before this litigation commenced. [See Doc.

16 No. 162-2, Deel. of Heather Robertson, at pp. 5-7]. CBP cannot obviate its preservation

17 obligation, which is clearly set out in the Federal Rules of Civil Procedure, because of an

18 impending deadline of its own creation and the inconvenience that the preservation

19 obligation imposes.

20

21

22 25 Plaintiff Al Otro Lado alleges it has documentation for the following incidents in its Complaint:

• "CBP officials tell[ing] asylum seekers they have to apply for asylum at the U.S. Consulate in

23

Mexico";

24

• "CBP officials tell[ing] asylum seekers that they are not processing asylum seekers at that POE and they must go another POE to be processed";

25

• "CBP officials tell[ing] asylum seekers that they cannot seek asylum at that time and must be

put on a waiting list";

26

• "CBP officials tell[ing] asylum seekers that they do not qualify for asylum";

• "CBP officials coerc[ing] asylum seekers into withdrawing their asylum claims, including by

27

threatening that they will be deported if they do not do so."

28 [Doc. No. 1 at p. 34].

29 3: 17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3811 Page 30 of 31

1

Accordingly, defendants' Motion for a Protective Order on this issue is DENIED.

2 Defendants must preserve surveillance ESI of lines of individuals attempting to enter the

3 San Ysidro POE between December 18, 2017 and December 26, 2017, to the extent such

4 information has not already been overwritten. The Court recognizes ten days of video

5 recordings can constitute a substantial amount of data. Defendants are within their rights

6 to identify what camera(s) provides the best view of the lines, and preserve this ESL

7 Once preserved, or it is determined the December, 2017 data no longer exists on CBP

8 servers, defendants may move forward and transition the San Ysidro POE to CAVSS. On

9 a going forward basis, defendants must preserve specific, similarly limited surveillance

10 ESI of lines stretching into Mexico at all southern border POEs when incidents are

11 reported by plaintiffs within 45 days.26

12

IV. CONCLUSION

13

As this case progresses, the Court expects both parties to take seriously their

14 affirmative meet and confer obligations to identify mutually acceptable solutions.

15

The undersigned confirms the prior findings and partially GRANTS in part and

16 DENIES in part, Defendants' Motion for a Protective Order.

17

l. IT IS HEREBY ORDERED Defendants will not be required to preserve all

18 surveillance ESI "of arriving aliens at all southern border POEs [that] were made during

19 the process of these aliens seeking to withdraw their applications for admission, from

20 January 1, 2016 to the present." [Doc. No. 148 at p. 49 n. l]. Any ESI already preserved

21 and responsive to plaintiffs' requests, however, must be retained, including recordings

22 already preserved of the plaintiffs seeking to withdraw their applications. Going forward,

23 defendants must retain specific incidents in which an individual has withdrawn their

24 asylum application if identified by plaintiffs within 45 days, and defendants are provided

25

26

27

28

26 The obligation to produce ESI upon request applies only where such information has not been overwritten in the ordinary course.

30 3: l 7-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 170 Filed 09/17/18 PageID.3812 Page 31 of 31

1 with the individual's name, A-number or date of birth, relevant POE, and the date and time

2 of the incident.

3

2. IT IS FURTHER ORDERED that defendants going forward must preserve

4 surveillance ESI of individual incidents between alleged asylum seekers and the

5 government if reported by plaintiffs within 45 days and defendants are provided with the

6 individual's name, A-number or date of birth, date and time of the incident, and the

7 relevant POE. To the extent that this information has not been overwritten, defendants

8 are to also preserve such information for incidents that occurred before the entry of this

9 Order.

10

3. IT IS FURTHER ORDERED that defendants must preserve surveillance ESI

11 of lines of individuals attempting to enter the San Ysidro POE between December 18, 2017

12 and December 26, 201 7, to the extent such information has not already been overwritten.

13 The Court recognizes ten days of video recordings can constitute a substantial amount of

14 data. Defendants are within their rights to identify what camera(s) provides the best view

15 of the lines, and preserve this ESL Once preserved, or it is determined the December, 2017

16 data no longer exists on CBP servers, defendants may move forward and transition the San

17 Ysidro POE to CAVSS. On a going forward basis, defendants must preserve specific,

18 similarly limited surveillance ESI of lines stretching into Mexico at all southern border

19 POEs when incidents are reported by plaintiffs within 45 days.

20

IT IS SO ORDERED.

fJ, 21 Dated: September 2018

22

23

24

1//£;})),
H~;=-~
United States Magistrate Judge

25

26

27

28

31 3: l 7-cv-02366-BAS-KSC

 
 Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 1 of 34 Page ID #:1345

1 LATHAM & WATKINS LLP

2

Manuel A. Abascal (Bar No. 171301) manny.abascal@lw.com

3 Wayne S. Flick (Bar No. 149525) wayne.s.flick@lw.com

4 James H. Moon (Bar No. 268215)

james.moon@lw.com 5 Robin A. Kelley (Bar No. 287696)

6

robin.kelley@lw.com Faraz R. Mohammadi (Bar No. 294497)

7 faraz.mohammadi@lw.com 355 South Grand Avenue, Suite 100

8 Los Angeles, California 90071-1560

9

Telephone: +1.213.485.1234 Facsimile: +1.213.891.8763

10 AMERICAN IMMIGRATION COUNCIL CENTER FOR CONSTITUTIONAL

11 Melissa Crow (pro hac vice)

RIGHTS

mcrow@immcouncil.org 12 Karolina Walters (pro hac vice)

Baher Azmy (pro hac vice) bazmy@ccrjustice.org

13

kwalters@immcouncil.org Kathryn Shepherd (pro hac vice)

Ghita Schwarz (pro hac vice) gschwarz@ccrjustice.org

14 kshepherd@immcouncil.org 1331 G Street, NW, Suite 200

Angelo Guisado (pro hac vice) aguisado@ccrjustice.org

15 Washington, DC 20005

666 Broadway, 7th Floor

16

Telephone: +1.202.507.7523 Facsimile: +1.202.742.5619

New York, NY 10012 Telephone: +1.212.614.6464

17 Attorneys for Plaintiffs

Facsimile: +1.212.614.6499

18

UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA

20 Al Otro Lado, Inc., et al.,

21

Plaintiffs,

22

v.

23 Elaine C. Duke, et al.,
24

25

Defendants.

26

27

28

Case No.: 2:17-cv-5111 JFW (JPRx) Hon. John F. Walter (Courtroom 7A)

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

[Declarations in Support and Request for Judicial Notice Filed Concurrently]

Hearing Date: December 11, 2017 Hearing Time: 1:30 p.m.

Pre-Trial Conf.: July 20, 2018

Trial:

July 31, 2018

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 2 of 34 Page ID #:1346

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on December 11, 2017, at 1:30 p.m., or as

3 soon thereafter as this matter may be heard in Courtroom 7A of the above-

4 referenced Court, located at 350 West 1st Street, Los Angeles, California 90012,

5 Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe and

6 Jose Doe (collectively, “Class Representatives”) will and hereby do move for an

7 order certifying a class defined as:

8

All noncitizens who (i) have since June 2016 presented themselves, or

9

will in the future present themselves, at a port of entry along the U.S.-

10

Mexico border, (ii) have asserted or will assert an intention to seek

11

asylum or have expressed or will express a fear of persecution in their

12

home countries, and (iii) have been or will in the future be denied

13

access to the U.S. asylum process by U.S. Customs and Border

14

Protection officers.

15

This Motion is brought pursuant to Federal Rules of Civil Procedure 23(a),

16 23(b)(2), and 23(g). As explained in the accompanying Memorandum of Points

17 and Authorities, class certification is appropriate under Federal Rule of Civil

18 Procedure 23(b)(2) because (1) joinder of all class members is impracticable, (2)

19 the class presents common questions of law and fact, (3) the claims of Class

20 Representatives are typical of the claims of the members of the putative class, (4)

21 Class Representatives and their attorneys are adequate representatives for the

22 putative class, and (5) Defendants have acted or refused to act on grounds that

23 apply generally to the class.

24

Class Representatives’ Motion is based upon this Notice of Motion and

25 Motion; the attached Memorandum of Points and Authorities; the concurrently

26 filed declarations of (i) Class Representatives, (ii) 22 other asylum seekers turned

27 away from ports of entry along the U.S.-Mexico border, (iii) representatives of

28 immigration-focused non-profit organizations, and (iv) Class Representatives’

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
1

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 3 of 34 Page ID #:1347

1 attorneys; all pleadings and papers on file with the Court in this action; and all

2 other matters as may be presented to the Court at or before the hearing on this

3 Motion.

4

This Motion is made following the conference of counsel pursuant to L.R.

5 7-3, which took place on November 6, 2017.

6 Dated: November 13, 2017 7 8 9

LATHAM & WATKINS LLP
Manuel A. Abascal Wayne S. Flick James H. Moon Robin A. Kelley Faraz R. Mohammadi

10

AMERICAN IMMIGRATION

11

COUNCIL

Melissa Crow

12

Karolina Walters

Kathryn Shepherd 13

14

CENTER FOR CONSTITUTIONAL

RIGHTS

15

Baher Azmy

Ghita Schwarz

16

Angelo Guisado

17 By /s/ Wayne S. Flick

18

Wayne S. Flick

19

Attorneys for Plaintiffs

20

21

22

23

24

25

26

27

28
ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION 2

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 4 of 34 Page ID #:1348

1 2 3 I. 4 II. 5 6 7 8 9 III. 10 IV. 11 12 13 14 15 16 17 18 19 20 21 22 V. 23 24 25 26 27 28

TABLE OF CONTENTS

Page

INTRODUCTION.......................................................................................... 1

BACKGROUND............................................................................................ 3

A. CBP Practices Along the U.S.-Mexico Border.................................... 3

B. Class Representatives’ Legal Claims................................................... 8

C. Class Representatives’ Factual Backgrounds .................................... 11

LEGAL STANDARD .................................................................................. 13

ARGUMENT ............................................................................................... 14

A. This Action Satisfies the Requirements of Rule 23(a) ...................... 17

1. The Putative Class Members Are So Numerous That Joinder Is Impracticable .................................................. 17

2. The Class Presents Common Questions of Law and Fact....................................................................................18

3. The Claims of Class Representatives Are Typical of the Claims of the Members of the Putative Class ............... 22

4. Class Representatives and Counsel Are Adequate Representatives for the Putative Class .................................... 23

B. Defendants’ Conduct Satisfies the Requirements of Rule 23(b)(2) .............................................................................................. 24

CONCLUSION ............................................................................................ 25

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
i

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 5 of 34 Page ID #:1349

1

TABLE OF AUTHORITIES

2

Page(s)

3 CASES
4

5

Adams v. Califano, 474 F. Supp. 974 (D. Md. 1979) ........................................................................ 24

6 Ali v. Ashcroft,
7 213 F.R.D. 390 (W.D. Wash. 2003), aff’d 346 F.3d 873 (9th Cir.

8 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) ....................... 15

9 Armstrong v. Davis,

10

275 F.3d 849 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005) ................................................ 19, 22

11 Arnott v. U.S. Citizenship and Immigr. Servs.,
12 290 F.R.D. 579 (C.D. Cal. 2012) ................................................................. 15, 16

13 Blair v. CBE Grp., Inc., 14 309 F.R.D. 621 (S.D. Cal. 2015) ........................................................................ 13

15 Califano v. Yamasaki, 16 442 U.S. 682 (1979) ..................................................................................... 10, 16

17 Campos v. Nail, 18 43 F.3d 1285 (9th Cir. 1994) ................................................................................ 9
19 Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016) ............................................................................ 23
20
21 Cholakyan v. Mercedes–Benz, USA, LLC, 281 F.R.D. 534 (C.D. Cal. 2012) ....................................................................... 13
22 Costelo v. Chertoff,
23 258 F.R.D. 600 (C.D. Cal. 2009) ....................................................................... 15
24 Ellis v. Costco Wholesale Corp.,
25 657 F.3d 970 (9th Cir. 2011) .................................................................. 13, 18, 20

26 Flores v. Reno, 27 No. 85-04544 (C.D. Cal. Apr. 27, 2015), ECF No. 142-1 ................................. 15

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
i

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 6 of 34 Page ID #:1350

1 Franco-Gonzalez v. Holder, 2 No. 10-02211, 2013 WL 3674492 (C.D. Cal. Apr. 23, 2013) ........................... 15

3 Gen. Tel. Co. of the Sw. v. Falcon, 4 457 U.S. 147 (1982) ........................................................................................... 22

5 Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001) ............................................................................ 20
6

7

Gorbach v. Reno, 181 F.R.D. 642 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th Cir.

8 2000) ................................................................................................................... 17

9 Hanlon v. Chrysler Corp., 10 150 F.3d 1011 (9th Cir. 1998) ............................................................................ 18

11 INS v. Cardoza-Fonseca, 12 480 U.S. 421 (1987) ............................................................................................. 9

13 LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) ...................................................................... 20, 22
14

15

Landon v. Plasencia, 459 U.S. 21 (1982) ............................................................................................. 10

16 Lopez-Venegas v. Johnson,
17 No. 13-03972 (C.D. Cal. Mar. 11, 2015), ECF No. 106 .................................... 15

18 Lynch v. Rank, 19 604 F. Supp. 30 (N.D. Cal. 1984)....................................................................... 23

20 Marcus v. Heckler, 21 620 F. Supp. 1218 (N.D. Ill. 1985)..................................................................... 24

22 Mathews v. Diaz, 23 426 U.S. 67 (1976) ............................................................................................. 10

24 McCluskey v. Trs. Of Red Dot Corp. Emp. Stock Ownership Plan & Trust,
25 268 F.R.D. 670 (W.D. Wash. 2010)................................................................... 17
26 Meachum v. Fano,
27 427 U.S. 215 (1976) ........................................................................................... 10

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
ii

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 7 of 34 Page ID #:1351

1 Montes v. Thornburgh, 2 919 F.2d 531 (9th Cir. 1990) ................................................................................ 9

3 Munyua v. United States, 4 No. 03-04538, 2005 WL 43960 (N.D. Cal. Jan. 10, 2005) .................................. 3

5 Navarro v. Block, 72 F.3d 712 (9th Cir. 1995) ................................................................................ 20
6

7

Negrete v. Allianz Life Ins. Co. of N. Am., 287 F.R.D. 590 (C.D. Cal. 2012) ....................................................................... 21

8 Orantes-Hernandez v. Smith,
9 541 F. Supp 351 (C.D. Cal. 1982)................................................................ 14, 21

10 Orantes-Hernandez v. Thornburgh, 11 919 F.2d 549 (9th Cir. 1990) .............................................................. 9, 10, 17, 20

12 Parsons v. Ryan, 13 754 F.3d 657 (9th Cir. 2014) .............................................................................. 25

14 Perez-Funez v. INS, 15 611 F. Supp. 990 (C.D. Cal. 1984)..................................................................... 17

16 Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008) ................................................................. 15, 16
17

18

Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) ............................................................................ 23

19

Ramon-Sepulveda v. INS, 20 743 F.2d 1307 (9th Cir. 1984) ............................................................................ 10

21 Rodriguez v. Hayes,
22 591 F.3d 1105 (9th Cir. 2010) .......................................................... 14, 19, 24, 25

23 Rojas v. Johnson, 24 No. 16-1024, 2017 WL 1397749 (W.D. Wash. Jan. 10, 2017).......................... 15

25 Sale v. Haitian Centers Council, Inc., 26 509 U.S. 155 (1993) ........................................................................................... 11

27 Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) .............................................................................. 11
28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
iii

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 8 of 34 Page ID #:1352

1 Smith v. Univ. of Wash. Law Sch., 2 2 F. Supp. 2d 1324 (W.D. Wash. 1998) ............................................................. 22

3 Sosa v. Alvarez-Machain, 4 542 U.S. 692 (2004) ........................................................................................... 11

5 Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642 (W.D. Wash. 2011)................................................................... 21
6

7

Unthaksinkun v. Porter, No. 11-0588, 2011 WL 4502050 (W.D. Wash. Sept. 28, 2011)........................ 22

8 Velazquez v. Costco Wholesale Corp.,
9 No. 11-00508, 2011 WL 4891027 (C.D. Cal. Oct. 11, 2011)............................ 14

10 Wal-Mart Stores, Inc. v. Dukes, 11 564 U.S. 338 (2011) ........................................................................................... 19

12 Walters v. Reno,

13 No. 94-1204, 1996 WL 897662 (W.D. Wash. 1996), aff’d 145 F.3d 1032 (9th Cir. 1998) ............................................................................... 20, 21, 23
14

15

In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009) .............................................................................. 21

16 STATUTES
17

18 5 U.S.C. § 551(13) ................................................................................................... 10

19 5 U.S.C. § 702.......................................................................................................... 10

20 5 U.S.C. § 706(1) ..................................................................................................... 10

21 8 U.S.C. § 1158.......................................................................................................... 2
22 8 U.S.C. § 1158(a) ................................................................................................. 1, 9
23 8 U.S.C. § 1158(a)(1) .......................................................................................... 9, 10
24
25 8 U.S.C. § 1225(a)(3) .............................................................................................. 10

26 8 U.S.C. § 1225(b) ................................................................................................. 2, 3

27 8 U.S.C. § 1225(b)(1) ................................................................................................ 3

28 8 U.S.C. § 1225(b)(1)(A)(ii).................................................................................... 10

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
iv

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 9 of 34 Page ID #:1353

1 8 U.S.C. § 1225(b)(1)(B)......................................................................................... 10
2 8 U.S.C. § 1225(b)(2) .......................................................................................... 3, 10 3
8 U.S.C. § 1229.......................................................................................................... 3 4 5 8 U.S.C. § 1229a........................................................................................................ 3
6 28 U.S.C § 13450..................................................................................................... 11

7

RULES

8 Fed. R. Civ. P. 23(a) ................................................................................................ 13
9 Fed. R. Civ. P. 23(a)(1)-(4) ..................................................................................... 13 10
Fed. R. Civ. P. 23(a)(2) ..................................................................................... 18, 20 11 12 Fed. R. Civ. P. 23(a)(3) ........................................................................................... 22
13 Fed. R. Civ. P. 23(a)(4) ........................................................................................... 23

14 Fed. R. Civ. P. 23(b)(2) ........................................................................ 13, 15, 24, 25

15

TREATISES

16 7AA WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1775 17 (3d ed. 2005)....................................................................................................... 15

18 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 19 1763 (3d ed. 2005).............................................................................................. 20

20

REGULATIONS

21 8 C.F.R. § 235.3(b)(4) ......................................................................................... 3, 10
22 OTHER AUTHORITIES
23 U.N. High Comm’r for Refugees (UNHCR), Exec. Comm. of the
24 High Comm’rs Programme 47th Session, General Conclusion on 25 International Protection No. 79 (XLVII) (Oct. 11, 1996) (U.N.
Gen’l Assembly doc nos. A/AC.96/878, 12A(A/51/12/Add.1), 26 http://www.unhcr.org/en-us/excom/exconc/3ae68c430/general-
27 conclusion-international-protection.html ........................................................... 11

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
v

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 10 of 34 Page ID #:1354

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

The law of the United States is clear: Barring an exception, noncitizens who

4 present themselves at ports of entry (“POEs”) along the U.S. border have the right

5 to apply for asylum in the United States. See 8 U.S.C. § 1158(a). Class

6 Representatives and putative class members are all asylum seekers who seek or

7 sought protection at POEs along the U.S. southern border, according to the process

8 established by Congress. Yet Defendants Elaine Duke, Kevin McAleenan and

9 Todd Owen (“Defendants”) have unlawfully deprived and continue to deprive class

10 members of their right to apply for asylum by systematically turning them away

11 from these POEs, and forcing them to return to Mexico or other countries of origin.

12 This action seeks to remedy these violations of statutory, regulatory, constitutional

13 and international law on behalf of all similarly affected individuals.

14

Many asylum seekers, including Class Representatives, arrive at POEs

15 having suffered horrific traumas, including murder of family members, domestic

16 violence and sexual violence, threats of dismemberment and the disappearances of

17 loved ones. Upon hearing their fears, rather than follow established and legally-

18 mandated procedures, U.S. Customs and Border Protection (“CBP”) officers have

19 turned them away using various unlawful tactics – including misrepresentations,

20 threats and intimidation, verbal abuse, physical force and coercion. In addition to

21 compounding asylum seekers’ already significant trauma, CBP’s unlawful practices

22 have forced asylum seekers to return to Mexico, where they remain vulnerable to

23 the very life-threatening harms they were attempting to escape – including

24 kidnapping, rape or death. These practices also force asylum seekers to endure

25 prolonged exposure to what Amnesty International calls a “burgeoning human

26 rights catastrophe” along the U.S.-Mexico border, as violent criminals prey upon

27 vulnerable refugees stranded within miles of a POE. Pls.’ Req. for Judicial Notice

28 (“RJN”), Ex. A.

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
1

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 11 of 34 Page ID #:1355

1

Hundreds of instances of Defendants’ unlawful practices have been

2 documented in Congressional testimony, news accounts, reports of leading human

3 rights organizations and in the detailed declarations filed in this case by each Class

4 Representative and 22 additional witnesses and putative class members. These

5 sworn accounts reveal consistent experiences: Each sought asylum at a POE along

6 the U.S.-Mexico border on one or more occasions, only to be unlawfully turned

7 away by CBP and denied access to the U.S. asylum system.

8

The question presented in this case – whether CBP’s policy, pattern or

9 practice of turning away individuals seeking asylum at the U.S. southern border

10 violates U.S. and/or international law – can and should be resolved on a classwide

11 basis. The putative class satisfies the requirements of Federal Rules of Civil

12 Procedure 23(a) and 23(b)(2). As demonstrated by the numerous declarations filed

13 in support of this Motion, the harrowing experiences of Class Representatives are

14 indistinguishable from the hundreds of documented instances of asylum seekers

15 being turned away at the U.S. southern border. Thus, Class Representatives seek

16 certification of the following class:

17

All noncitizens who (i) have since June 2016 presented themselves or

18

will in the future present themselves, at a port of entry along the U.S.-

19

Mexico border, (ii) have asserted or will assert an intention to seek

20

asylum or express a fear of persecution in their home countries, and (iii)

21

have been or may in the future be denied access to the U.S. asylum

22

process by U.S. Customers and Border Protection officers.

23

Class Representatives seek declaratory and injunctive relief on behalf of the

24 class to compel Defendants to abide by the asylum process delineated by Congress

25 in 8 U.S.C. §§ 1158 and 1225(b), and the accompanying regulations, to declare that

26 Defendants have no authority under the Immigration and Nationality Act (“INA”)

27 to turn asylum seekers away at POEs, to enjoin Defendants from denying class

28 members access to the U.S. asylum process in violation of their procedural due

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
2

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 12 of 34 Page ID #:1356

1 process rights under the Fifth Amendment and to compel Defendants to abide by

2 the international law doctrine of non-refoulement, which requires implementation

3 and adherence to a procedure to access asylum.

4 II. BACKGROUND

5

A. CBP Practices Along the U.S.-Mexico Border

6

CBP officers are responsible for the day-to-day operation of POEs along the

7 U.S.-Mexico border. One of their critical obligations is processing asylum seekers

8 who present themselves and seek protection in the United States. The INA and its

9 implementing regulations outline the procedures that CBP officers are required to

10 follow when processing an asylum seeker at a POE. See ECF No. 1 at 33-37.

11

A CBP officer’s duty to allow a noncitizen access to the asylum process is

12 “not discretionary.” Munyua v. United States, No. 03-04538, 2005 WL 43960, at

13 *6 (N.D. Cal. Jan. 10, 2005) (citing 8 U.S.C. § 1225(b); 8 C.F.R. § 235.3(b)(4)).

14 When an applicant for admission arrives at a POE and asserts a fear of return to his

15 or her home country or an intention to apply for asylum, a CBP officer must either

16 refer the asylum seeker for an interview with an Asylum Officer (see 8 U.S.C.

17 § 1225(b)(1)), or place the asylum seeker directly into regular removal proceedings,

18 which will then allow the asylum seeker to pursue his or her asylum claim before an

19 immigration judge (see 8 U.S.C. §§ 1225(b)(2), 1229, 1229a).

20

Despite these prescribed procedures, since at least June 2016, CBP officers at

21 POEs along the U.S.-Mexico border have been consistently turning away – through

22 an identifiable set of tactics including, misrepresentations about U.S. asylum law

23 and the U.S. asylum process, threats and intimidation, verbal and physical abuse,

24 and coercion – significant numbers of individuals who express an intent to apply for

25 asylum or a fear of returning to their home countries.1 In fact, some have been

26

27

1 RJN, Ex. C at 1 (Human Rights First report, noting that CBP’s practice of turning away asylum seekers “proliferated after the November 2016 election and persists

28 even as the number of arrivals has fallen sharply”); Decl. of Kathryn Shepherd

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
3

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 13 of 34 Page ID #:1357

1 turned away multiple times, each time expressing their extreme fear of returning to

2 their home countries and each time being told to leave the POEs. See, e.g., Decl. of

3 Beatrice Doe (“B. Doe Decl.”) ¶¶ 10-13, 22-25 (turned away from a California POE

4 on three occasions); Decl. of Dinora Doe (“D. Doe Decl.”) ¶¶ 8-13, 15-17 (same);

5 Decl. of Diego Iniguez-Lopez (“Iniguez-Lopez Decl.”) ¶¶ 10, 23 (identifying two

6 separate instances of mothers with children who were each turned away from a POE

7 on four occasions); Decl. of Brantley Shaw Drake (“Drake Decl.”), Ex. 4 at 6-7

8 (identifying individual turned away from the Ped-West entrance at the San Ysidro

9 POE on six occasions); Decl. of Leah Jahan Chavla (“Chavla Decl.”) ¶ 26

10 (identifying family turned away from a Texas POE on four occasions); Harbury

11 Decl. ¶ 16 (identifying family turned away from a Texas POE six times); Williams

12 Decl. ¶¶ 13-19 (identifying family that was turned away from an Arizona POE

13 twice); Decl. of Faraz R. Mohammadi (“Mohammadi Decl.”), Ex. B (turned away

14 from El Nuevo Bride and Lukeville POE); see also Decl. of Joseph De Leon (“De

15 Leon Decl.”), Ex. A, Rows 2, 4-5, 8, 12-15, 17, 20-23, 28 (summarizing supporting

16 pseudonymously-filed declarations).

17

In one of the tactics used to effectuate CBP’s broader practice of denying

18 individuals access to the asylum process, CBP officers provide misinformation

19 about the U.S. asylum process and law, including that U.S. asylum law is not

20 available to them, or that the U.S. is no longer granting asylum at all. See, e.g., D.

21 Doe Decl. ¶ 9 (told at San Ysidro POE that there was no more asylum in the U.S.);

22

23

(“Shepherd Decl.”), Ex. A (Office of Inspector General complaint); see also Decl. of Joanna Williams (“Williams Decl.) ¶ 29 (noting that, after October 2016, “the

24 number of individuals prevented from seeking asylum when presenting themselves at the [Nogales, Arizona] POE increased dramatically”); Decl. of
25 Jennifer K. Harbury (“Harbury Decl.”) ¶ 11 (noting an increase in reports of

26

individuals denied access to asylum at Texas POEs beginning in “late 2016”); Decl. of Diego Iniguez-Lopez (“Iniguez-Lopez Decl.”) ¶ 10 (“Beginning in

27

December 2016 … mothers began to report that they had been turned away from ports of entry along the U.S.-Mexico border during prior attempts to request

28 asylum. . . .”).

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
4

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 14 of 34 Page ID #:1358

1 Decl. of Ingrid Doe (“I. Doe Decl.”) ¶ 17 (told new law was in place in the U.S.

2 providing that there is no more asylum); Mohammadi Decl. ¶ 5, Ex. R (told at Eagle

3 Eagle Pass, TX POE that “there was no asylum”); Id. at ¶ 11, Ex. Q (told at San

4 Ysidro, CA POE that no one was being given asylum); Iniguez-Lopez Decl. ¶ 16

5 (“CBP officers or their agents told many of the mothers that the asylum law was no

6 longer in effect”); RJN, Ex. C at 6, 15 (individuals told by CBP officers at Ped-

7 West entrance to San Ysidro POE that “the United States ‘was not giving asylum

8 anymore’”); RJN, Ex. H at 2 (individual told at El Paso, TX POE that Mexicans

9 cannot apply for asylum); Chavla Decl. ¶ 22 (“I heard [a CBP officer in Hidalgo,

10 TX] tell attorneys and the asylum seeker that ‘the policies have changed’”);

11 Williams Decl. ¶¶ 27-31 (“[O]fficers on duty at the DeConcini POE [in Nogales,

12 AZ] repeatedly told asylum seekers and [Kino Border Initiative (“KBI”)] staff that .

13 . . . CBP was no longer accepting asylum seekers.”); De Leon Decl., Ex. A, Rows

14 1-8; 10-24; 24; 26-28.

15

A similar, border-wide tactic that CBP officers employ as part of their

16 broader practice of preventing individuals from accessing the asylum process is to

17 misrepresent that asylum is unavailable at certain POEs or that they cannot apply

18 because of space reasons. See, e.g., Williams Decl. ¶ 27 (“[L]ocal CBP officers

19 told KBI that asylum seekers were no longer being accepted for processing at the

20 Mariposa POE [in Nogales, AZ]”); Mohammadi Decl. ¶ 19, Ex. O (“The Otay Mesa

21 [POE, in San Diego, CA] official told me that I had to apply [for asylum] at San

22 Ysidro and the San Ysidro official told me I had to apply at Otay Mesa.”); Harbury

23 Decl. ¶ 16 (family told at Hidalgo, TX POE that “they could not apply for asylum

24 there”); RJN, Ex. C at 7 (asylum seekers turned away from the Brownsville, TX

25 POE “sometimes attempt again at the Hidalgo” POE); De Leon Decl., Ex. A (Row

26 8) (woman told at El Paso, TX POE that “they did not accept people like us”); see

27 also Mohammadi Decl. ¶ 12, Ex. K (turned away at Tecate, CA POE because CBP

28 “did not have space”); Iniguez-Lopez Decl. ¶ 20 (“CBP officers or their agents told

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
5

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 15 of 34 Page ID #:1359

1 mothers that they could not seek asylum because there was no more space for

2 them”); Williams Decl. ¶ 31 (“officers on duty at the DeConcini POE [in Nogales,

3 AZ] repeatedly told asylum seekers and KBI staff that . . . there was no space to

4 process individuals”); Harbury Decl. ¶ 16 (family denied access to asylum multiple

5 times at Hidalgo, TX POE because CBP “did not have room”); Chavla Decl. ¶¶ 15-

6 20; De Leon Decl., Ex. A, Row 17.2

7

Another border-wide tactic that CBP has adopted is an unlawful practice of

8 cooperation with Mexican authorities to deprive asylum seekers of the opportunity

9 to apply for asylum upon application for admission. See, e.g., RJN, Ex. C at 9-10

10 (describing ticketing system at the San Ysidro POE run by the humanitarian arm of

11 the Mexican immigration agency, known as “Grupos Beta”); Chavla Decl. ¶¶ 11-13

12 (same); De Leon Decl., Ex. A, Rows 1; 13-15; 17-19; RJN, Ex. G (Statement of

13 CBP spokesman admitting that “CBP has collaborated with the Mexican

14 authorities” to establish a sub-regulatory “process” by which asylum seekers are not

15 immediately processed as applicants for admission); Mohammadi Decl. ¶¶ 4-19,

16 Ex. F (describing how CBP refused him entry multiple times and how a U.S.

17 consular official told him the only way to apply for asylum was through a “Grupos

18 Beta” (e.g., “ticketing”) process because “the U.S. could only handle 75 asylum

19 seekers per day”). In order further to deter asylum seekers from pursuing their

20 claims across the U.S.-Mexico border, CBP officers also resort to threats and

21 intimidation. See, e.g., D. Doe Decl. ¶ 12 (told if she returned to POE she would be

22 turned over to Mexican authorities who would return her to Honduras);

23 Mohammadi Decl. ¶ 7, Ex. H (CBP officials summoned Mexican official who

24 threatened to deport him if he did not leave the POE); Iniguez-Lopez Decl. ¶¶ 24-25

25

26 2 CBP officers also have a practice of falsely telling asylum seekers that they need

27

visas to seek asylum in the U.S. (see, e.g., Decl. of Jose Doe (“J. Doe Decl.”) at ¶ 18 (told needed a visa to apply for asylum and without one would have to

28 remain in Mexico); Iniguez-Lopez Decl. ¶ 19; RJN, Ex. C at 13).

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
6

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 16 of 34 Page ID #:1360

1 (threats to turn individuals over to Mexican authorities); RJN, Ex. C at 7 (same); B.

2 Doe Decl. ¶ 21 (told that if she insisted on her right to be at POE, she would be

3 taken to jail). CBP also deploys a common tactic of threatening to separate parents

4 from their children to dissuade families who attempt to apply for asylum. See, e.g.,

5 Decl. of Abigail Doe (“A. Doe Decl.”) ¶ 15 (threatened with taking of two young

6 children if she insisted on entering); Decl. of Carolina Doe (“C. Doe Decl.”) ¶¶ 19-

7 22, 26 (told that unless she signed application withdrawal form, she would lose her

8 daughter to foster care); Mohammadi Decl. ¶ 9, Ex. R (told at Eagle Pass, TX POE

9 that if she tried to apply for asylum, “they would separate me from my daughters

10 and deport me”).

11

Even when CBP officers permit asylum seekers to enter the POE for

12 inspection, in order to deny them access to the asylum process, they have forced

13 asylum seekers to recant their fears or otherwise to withdraw their applications for

14 admission to the U.S. See, e.g., Mohammadi Decl. ¶¶ 19-26, Ex. S (coerced into

15 recording a video recanting her asylum claim and repeatedly threatened for refusing

16 to sign an untranslated form); id. at Ex. 1 (Withdrawal of Application for

17 Admission that asylum seeker refused to sign, containing material falsehoods

18 written by CBP); A. Doe Decl. ¶¶ 16-18 (non-English speaker forced to sign

19 untranslated form stating that she had no fear of returning to Mexico); B. Doe Decl.

20 ¶ 21 (non-English speaker yelled at, and told that she had to sign an untranslated

21 form); C. Doe Decl. ¶¶ 21-28 (told that if she did not sign form stating she did not

22 fear returning to Mexico, then her daughter would be taken from her); Williams

23 Decl. ¶ 15-16 (individual at Nogales, AZ POE coerced into signing form in English

24 saying she had withdrawn her application); RJN, Ex. C at 11-12.

25

When misinformation, threats and/or intimidation prove insufficient, CBP

26 officers across the U.S.-Mexico border use verbal and physical abuse to turn asylum

27 seekers away from POEs. See, e.g., Iniguez-Lopez Decl. ¶¶ 33-37 (CBP officers

28 mocking and insulting asylum seekers); Mohammadi Decl. ¶¶ 9-12, Ex. S (shoved

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
7

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 17 of 34 Page ID #:1361

1 by CBP officer who told her “he don’t want Mexicans here” and threatened to

2 throw her to the ground in front of her children); Drake Decl. ¶¶ 19, 24 (transgender

3 woman assaulted and physically dragged out of a POE after requesting asylum); D.

4 Doe Decl. ¶¶ 16-17 (dragged by arm out of POE in front of young daughter);

5 Mohammadi Decl. ¶ 20-25, Ex. O (assaulted by guards after refusing to leave POE

6 when denied opportunity to apply for asylum); Chavla Decl. ¶ 25 (“[CBP] officers

7 themselves would forcefully grab an asylum seeker’s arm or forcefully nudge them

8 along a passageway” leading back to Mexico”); Williams Decl. ¶ 28 (asylum

9 seekers at the Mariposa POE in Nogales, AZ placed into handcuffs and walked

10 back into Mexico); Iniguez-Lopez Decl. ¶¶ 27-29, 32; RJN, Ex. C at 6; De Leon

11 Decl., Ex. A, Row 18 (asylum seeker’s mother at San Ysidro, CA POE pushed

12 outside the building).

13

CBP’s systematic practice of employing these tactics to deny Class

14 Representatives and similarly situated individuals access to the asylum process

15 continues despite complaints filed with Defendants, alerting them to the ways in

16 which this practice violates U.S. and international law. See Decl. of Kathryn

17 Shepherd (“Shepherd Decl.”), Ex. A (CRCL/OIG Compl.) at 2; Iniguez-Lopez

18 Decl. ¶ 12 (multiple denials of asylum seekers after 01/13/17); De Leon Decl., Ex.

19 A, Rows 1-3; 5-11; 13-15; 17-19; 21-23; 25; 28 (multiple declarations from asylum

20 seekers denied entry after 01/13/17); Drake Decl. ¶ 21 (multiple denials of asylum

21 seekers from January to March 2017); see also Decl. of Clara Long, Ex. A-E

22 (presenting multiple complaints obtained through FOIA against CBP officers for

23 failure to follow asylum process).

24

B. Class Representatives’ Legal Claims

25

Defendants’ refusal to allow Class Representatives and others similarly

26 situated access to the asylum process violates the INA, governing regulations,

27 procedural due process rights under the Fifth Amendment, and U.S. obligations

28 under international law to uphold the principle of non-refoulement.

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
8

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 18 of 34 Page ID #:1362

1

Immigration and Nationality Act: Under the INA, nearly all noncitizens –

2 including Class Representatives and putative class members – have a statutory right

3 to apply for asylum. See 8 U.S.C. § 1158(a)(1) (“Any alien who is physically

4 present in the United States or who arrives in the United States . . . irrespective of

5 such alien’s status, may apply for asylum. . . .”); INS v. Cardoza-Fonseca, 480 U.S.

6 421, 433 (1987); Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 553 (9th Cir.

7 1990) (“It is undisputed that all aliens possess such a right under the Act.” (citing

8 8 U.S.C. § 1158(a) (1988))).

9

The “statutory right to apply for asylum . . . may be violated by a pattern or

10 practice that forecloses the opportunity to apply.” Campos v. Nail, 43 F.3d 1285,

11 1288 (9th Cir. 1994) (internal citations omitted). In Orantes-Hernandez v.

12 Thornburgh, Salvadoran asylum seekers, like Class Representatives and the

13 putative class here, challenged the government’s interference with their right to

14 apply for asylum. 919 F.2d 549. In affirming an injunction, the Ninth Circuit made

15 clear that it would be unlawful “if [noncitizens] who indicated they feared

16 persecution if returned home were not advised of the right to seek asylum.” Id. at

17 556-57. “[I]f [immigration] officials were refusing to inform [noncitizens] of their

18 right to seek asylum even if they did indicate that they feared persecution if

19 returned to their home countries . . . this would constitute a clear violation of the

20 Refugee Act, and remedial action would be justified[.]” Id. at 557.

21

Injunctive relief is the proper remedy when a government policy, pattern or

22 practice imposes unlawful obstacles to the asylum process. See, e.g., Orantes-

23 Hernandez, 919 F.2d 549 (affirming classwide injunction on behalf of Salvadoran

24 asylum seekers unlawfully prevented from applying for asylum); Montes v.

25 Thornburgh, 919 F.2d 531 (9th Cir. 1990) (affirming classwide injunction for

26 asylum seekers forced to meet heightened extra-statutory requirements in their

27 asylum applications); Campos, 43 F.3d at 1290 (affirming classwide injunction for

28 asylum seekers denied opportunity to change venue in immigration court).

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
9

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 19 of 34 Page ID #:1363

1

Administrative Procedure Act (“APA”): The APA authorizes suit by “[a]

2 person suffering legal wrong because of agency action, or adversely affected or

3 aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C.

4 § 702. The APA also mandates affirmative relief for a failure to act: “The

5 reviewing court shall . . . compel agency action unlawfully withheld or

6 unreasonably delayed.” 5 U.S.C. § 706(1) (emphasis added); see also 5 U.S.C.

7 § 551(13). Congress’s intent in passing the Refugee Act of 1980 – from which the

8 statutory right to apply for asylum stems – was “to create a ‘uniform procedure’ for

9 consideration of asylum claims which would include an opportunity for

10 [noncitizens] to have asylum applications ‘considered outside a deportation and/or

11 exclusion hearing setting.’” Orantes-Hernandez, 919 F.2d at 552 (citation omitted).

12 Congress mandated various non-discretionary procedures that Defendants are

13 required to follow when inspecting individuals seeking admission at U.S. POEs,

14 outlined in the INA, to which Class Representatives and putative class members are

15 entitled in fulfillment of their right to access the asylum process. See 8 U.S.C.

16 §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii), 1225(b)(1)(B), 1225(b)(2); see also 8

17 C.F.R. § 235.3(b)(4). None of these procedures authorizes a CBP official to turn

18 back a noncitizen who is seeking asylum at a POE.

19

Due Process Clause: The Due Process Clause of the Fifth Amendment

20 protects citizens and noncitizens physically present in the United States. See

21 Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Mathews v. Diaz, 426 U.S. 67, 77

22 (1976). This right to due process arises from Congress’s decision to grant a

23 statutory right to pursue an asylum claim and to direct an agency to establish a

24 procedure to ensure that this right is respected. See Meachum v. Fano, 427 U.S.

25 215, 226 (1976); Ramon-Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir. 1984).

26 Where such statutory rights have been granted and a procedure established, the

27 Constitution requires that the procedure be fair and that the government comply

28 with it. See Califano v. Yamasaki, 442 U.S. 682, 692-93 (1979).

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
10

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 20 of 34 Page ID #:1364

1

Non-Refoulement: The United States is obligated by a number of treaties

2 and protocols to adhere to the duty of non-refoulement – a duty that prohibits a

3 country from returning or expelling an individual to a country where he or she has a

4 well-founded fear of persecution or torture. See Sale v. Haitian Centers Council,

5 Inc., 509 U.S. 155, 178-88 (1993). Non-refoulement is so fundamental a principle

6 of international law that is has achieved the status of jus cogens – a norm not

7 subject to derogation. U.N. High Comm’r for Refugees (UNHCR), Exec. Comm.

8 of the High Comm’rs Programme 47th Session, General Conclusion on

9 International Protection No. 79 (XLVII) (Oct. 11, 1996) (U.N. Gen’l Assembly doc

10 nos. A/AC.96/878, 12A(A/51/12/Add.1), http://www.unhcr.org/en-

11 us/excom/exconc/3ae68c430/general-conclusion-international-protection.html; see

12 also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-719 (9th Cir.

13 1992) (analyzing whether the prohibition against torture is a jus cogens norm).

14 Thus, in order to effectuate an asylum seeker’s right to non-refoulement, the United

15 States is required to implement and to follow procedures to ensure that his or her

16 request for asylum be duly considered. Because the norm is “universal, specific,

17 and obligatory,” the Alien Tort Statute, 28 U.S.C § 13450 (“ATS”), provides a

18 cause of action in U.S. courts to remediate violations of norms. See Sosa v.

19 Alvarez-Machain, 542 U.S. 692, 732 (2004). Defendants’ actions to deny Class

20 Representatives, and the asylum seekers they seek to represent, access to the U.S.

21 asylum process violates the United States’ binding obligations under international

22 law and authorizes injunctive relief under the ATS.

23

C. Class Representatives’ Factual Backgrounds

24

As detailed in the Complaint and the declarations that accompany this

25 Motion, each Class Representative fled Mexico or Honduras out of a well-founded

26 fear for their life and safety, and that of their family, and were turned away by CBP

27 officials through tactics that are representative of those endured by all putative class

28 members.

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
11

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 21 of 34 Page ID #:1365

1

Class Representative Abigail Doe and her two minor children are asylum

2 seekers from Central Mexico. A. Doe Decl. ¶ 2. On May 24, 2017, Abigail Doe

3 presented herself and her children at the San Ysidro POE, expressed her fear of

4 returning to Mexico and stated her desire to seek asylum in the United States. Id.

5 ¶¶ 9-10. A CBP official ignored her plea for asylum, told her to seek help in

6 Mexico, and threatened that her children would be taken away from her if she

7 sought asylum in the United States. Id. ¶¶ 10-15. Denied access to the asylum

8 system, Abigail and her family were forced to return to Tijuana. Id. ¶¶ 19-20.

9

Class Representative Beatrice Doe and her three minor children are asylum

10 seekers from Mexico. B. Doe Decl. ¶ 2. In May 2017, Beatrice Doe and her family

11 presented themselves three times at POEs along the U.S.-Mexico border. She

12 explained that their lives were in danger in Mexico and that they wanted to seek

13 asylum in the United States. Id. ¶¶ 9-12, 24. CBP rejected her request on each

14 occasion, and forced her and her family to return to Tijuana. Id. ¶¶ 10, 21, 25.

15

Class Representative Carolina Doe and her two children are asylum seekers

16 from Mexico. C. Doe Decl. ¶ 2. Carolina Doe presented herself at a POE on May

17 17, 2017, to request asylum for herself and her children. Id. ¶ 13. CBP refused her

18 request, and forced her and her family to return to Tijuana. Id. ¶¶ 18-29.

19

Class Representative Dinora Doe and her daughter are asylum seekers from

20 Honduras. D. Doe Decl. ¶ 2. They presented themselves to request asylum at a

21 POE three times beginning in August 2016. Id. ¶¶ 8-17. CBP refused each of their

22 requests, telling them, e.g., that no asylum is available for Central Americans, and

23 forcing Dinora and her daughter to return to Tijuana. Id. ¶¶ 8-18, 20.

24

Class Representative Ingrid Doe fled her home country of Honduras with her

25 two children after her mother and three siblings were killed by members of the 18th

26 Street gang. I. Doe Decl. ¶¶ 2-4. After traveling for months to reach the U.S.

27 border, she and her children were turned away by CBP officials from two POEs.

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
12

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 22 of 34 Page ID #:1366

1 Id. ¶¶ 10-18. CBP refused each of their requests and forced Ingrid and her family to

2 return to Tijuana. Id. ¶¶ 10-18, 20.

3

Class Representative Jose Doe is a citizen of Honduras. J. Doe Decl. ¶ 2. He

4 fled his home country after being targeted for extortion by the 18th Street gang. Id.

5 ¶ 4. CBP officers at the Laredo POE prevented Jose from applying for asylum, and

6 instead sent him back to Nuevo Laredo, Mexico, where he was accosted by persons

7 who he believed were members of a drug cartel. Id. ¶¶ 2, 17, 19.

8 III. LEGAL STANDARD

9

A class may be certified if “(1) the class is so numerous that joinder of all

10 members is impracticable; (2) there are questions of law or fact common to the

11 class; (3) the claims or defenses of the representative parties are typical of the

12 claims or defenses of the class; and (4) the representative parties will fairly and

13 adequately protect the interests of the class,” and (5) “the party opposing the class

14 has acted or refused to act on grounds that apply generally to the class, so that final

15 injunctive relief or corresponding declaratory relief is appropriate respecting the

16 class as a whole.” Fed. R. Civ. P. 23(a), (b)(2).

17

The Court need not engage in “an in-depth examination of the underlying

18 merits” of this case at this stage in the litigation, and need merely analyze the merits

19 to the extent necessary to determine the propriety of class certification. Ellis v.

20 Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011). “In determining

21 whether class certification is appropriate under Rule 23, courts ‘may consider all

22 material evidence submitted by the parties . . . and need not address the ultimate

23 admissibility of evidence proffered by the parties.’” Blair v. CBE Grp., Inc.,

24 309 F.R.D. 621, 627 (S.D. Cal. 2015) (citation omitted); accord Cholakyan v.

25 Mercedes–Benz, USA, LLC, 281 F.R.D. 534, 550 (C.D. Cal. 2012) (“[E]videntiary

26 rules . . . are not applied with rigor in deciding motions for class certification”).

27 “This is because at the class certification stage, the Court makes no findings of fact,

28 nor any ultimate conclusions on Plaintiffs’ claims, and the Court may consider

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
13

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 23 of 34 Page ID #:1367

1 inadmissible evidence.” See Velazquez v. Costco Wholesale Corp., No. 11-00508,

2 2011 WL 4891027, at *2 (C.D. Cal. Oct. 11, 2011).

3 IV. ARGUMENT

4

Defendants’ persistent statutory, regulatory and constitutional violations have

5 life-threatening consequences for the putative class members. Asylum seekers

6 denied access to the asylum process by CBP officers are forced to return to Mexico

7 and other countries of origin. The situation along the U.S.-Mexico border has been

8 described by Amnesty International as a “burgeoning human rights catastrophe.”

9 RJN, Ex. A. Through Defendants’ unlawful actions, Class Representatives and

10 other asylum seekers were stranded in Tijuana or forced to pass through Nuevo

11 Laredo, cities known for drug violence, extortion, human trafficking and murder.

12 See, e.g., Mohammadi Decl., Ex. T ¶ 11-17 (kidnapped within minutes of being

13 turned away by CBP at the Hidalgo POE); B. Doe. Decl. ¶ 26 (forced to stay in

14 Tijuana shelter with two young children while she attempted to hide from her

15 persecutors); Harbury Decl. ¶ 13 (woman raped the night CBP turned her away at a

16 Texas POE); Williams Decl. ¶ 44 (family kidnapped after being turned away by

17 CBP at a Nogales, AZ POE); Chavla Decl. ¶ 30-37 (detailing asylum seekers’ fear

18 of cartel violence); Drake Decl. ¶ 18 (shelter workers in Reynosa, Mexico report

19 kidnapping of asylum seekers in March 2017 after CBP turned them away);

20 De Leon Decl., Ex. A, Row 15; see RJN, Ex. B; id., Ex. E; id., Ex. F at 2. Class

21 Representatives seek class certification to enjoin Defendants’ unlawful practices,

22 which continue to put putative class members’ lives at risk.

23

Courts in the Ninth Circuit routinely certify classes – often nationwide

24 classes – challenging government policies and practices under immigration laws.

25 See, e.g., Orantes-Hernandez v. Smith, 541 F. Supp 351, 370-72 (C.D. Cal. 1982)

26 (certifying provisional nationwide class of Salvadoran asylum seekers challenging

27 certain legacy INS policies and procedures including agency’s failure to advise

28 them of their right to apply for asylum); Rodriguez v. Hayes, 591 F.3d 1105 (9th

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
14

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 24 of 34 Page ID #:1368

1 Cir. 2010) (reversing order denying class certification for class of immigration

2 detainees subject to prolonged detention); Ali v. Ashcroft, 213 F.R.D. 390, 408-11

3 (W.D. Wash. 2003), aff’d 346 F.3d 873, 886-89 (9th Cir. 2003), vacated on other

4 grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of Somalis

5 challenging legality of removal to Somalia in the absence of a functioning

6 government); Franco-Gonzalez v. Holder, No. 10-02211, 2013 WL 3674492 (C.D.

7 Cal. Apr. 23, 2013) (certifying class of unrepresented immigration detainees with

8 serious mental disorders or defects challenging lack of meaningful procedures to

9 safeguard rights in detention or removal proceedings); Rojas v. Johnson, No. 16-

10 1024, 2017 WL 1397749 (W.D. Wash. Jan. 10, 2017) (certifying nationwide class

11 of asylum seekers challenging interference with the right to apply for asylum).3

12

Certification of such classes under Federal Rule of Civil Procedure 23(b)(2)

13 is appropriate because the rule was intended to “facilitate the bringing of class

14 actions in the civil-rights area,” 7AA WRIGHT & MILLER, FEDERAL PRACTICE &

15 PROCEDURE § 1775, at 71 (3d ed. 2005), particularly actions, like the present case,

16 seeking declaratory or injunctive relief. Furthermore, class actions in the

17 immigration arena often involve claims on behalf of class members who would be

18

3 See also Lopez-Venegas v. Johnson, No. 13-03972 (C.D. Cal. Mar. 11, 2015), 19 ECF No. 106 (final judgment in nationwide class action challenging the

20

government’s use of coercive tactics to compel immigrants to sign documents accepting “voluntary” return to Mexico, in lieu of formal removal proceedings);

21 Arnott v. U.S. Citizenship and Immigr. Servs., 290 F.R.D. 579, 585-588 (C.D. Cal.

2012) (certifying nationwide class of immigrants challenging U.S. Citizenship and

22 Immigration Services’ material change in policy); Costelo v. Chertoff, 258 F.R.D.

23

600, 605-610 (C.D. Cal. 2009) (certifying nationwide class challenging the Board of Immigration Appeals’ application and interpretation of a provision of the Child

24 Status Protection Act); Perez-Olano v. Gonzalez, 248 F.R.D. 248, 259 (C.D. Cal. 2008) (certifying nationwide class challenging government’s policy of requiring

25 in-custody minors to obtain specific consent of Immigration and Customs

26

Enforcement to state court jurisdiction before seeking Special Immigration Juvenile Status); Flores v. Reno, No. 85-04544 (C.D. Cal. Apr. 27, 2015), ECF

27

No. 142-1 (order certifying nationwide class of minor immigrant detainees challenging the conditions of their detention and their treatment while in

28 detention).

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
15

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 25 of 34 Page ID #:1369

1 unable to present their claims absent class treatment. The putative class members

2 here are asylum seekers who are fleeing grave danger, many of whom do not

3 understand English and have little or no understanding of U.S. immigration or

4 constitutional law. Most often, asylum seekers arriving at POEs are indigent and

5 unrepresented, and thus lack the legal counsel necessary even to contemplate, much

6 less raise, the types of claims asserted here. Those asylum seekers who are unable –

7 at times despite multiple attempts – to access the U.S. asylum process at the border

8 are much less likely to be able to access the U.S. court system, particularly as they

9 fight for their safety and their lives, while stranded in the U.S.-Mexico border

10 region. Finally, the core issues here, like the many class actions cited above,

11 involve common questions regarding general policies and practices of the

12 government, which are particularly well-suited for resolution on a classwide basis.

13 See, e.g., Perez-Olano, 248 F.R.D. at 259 (because all class members raised

14 common questions of law related to a policy that applied to all class members,

15 factual variations should be put aside).

16

In reviewing whether to certify a class that spans multiple jurisdictions, such

17 as the putative border-wide class here, courts have found that the “interests of

18 judicial efficiency, economy, and equity weigh in favor of class certifications that

19 offer relief ‘dictated by the extent of the violation established, not by the

20 geographical extent of the plaintiff class.’” See, e.g., Arnott, 290 F.R.D. at 589

21 (citing Califano, 442 U.S. at 702). As noted above, given that immigration policy is

22 based on uniform federal law, nationwide classes challenging immigration policies

23 and practices are regularly certified. As consistent evidence demonstrates that CBP

24 is using virtually identical tactics at POEs along the U.S.-Mexico border, see supra

25 Section II(A) (documenting asylum denials in California at the San Ysidro, Otay

26 Mesa, and Tecate POEs, in Arizona at the DeConcini and Mariposa POEs, and in

27 Texas at the El Paso, Hidalgo, Laredo, Brownsville and Eagle Pass POEs over a

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
16

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 26 of 34 Page ID #:1370

1 period of more than a year), certification of a class spanning all the relevant

2 jurisdictions is appropriate in this case.

3

Moreover, a border-wide class is required in order to effectuate

4 Congressional intent to “create a ‘uniform procedure’ for consideration of asylum

5 claims.” Orantes-Hernandez, 919 F.2d at 552 (citation omitted). This statutorily-

6 mandated procedure is exactly what Class Representatives allege Defendants are

7 violating through their practice of denying asylum seekers access to the asylum

8 process. Certification that is not border-wide in scope would result in inconsistent

9 and unjust results from one POE to another. Cf. Gorbach v. Reno, 181 F.R.D. 642,

10 644 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000) (“anything less tha[n]

11 a nationwide class would result in an anomalous situation allowing the INS to

12 pursue denaturalization proceedings against some citizens, but not others,

13 depending on which district they reside in”).

14

A. This Action Satisfies the Requirements of Rule 23(a)

15

1. The Putative Class Members Are So Numerous That Joinder

16

Is Impracticable

17

Rule 23(a)(1) requires that the class be “so numerous that joinder of all

18 members is impracticable.” No fixed number of class members is required. See

19 Perez-Funez v. INS, 611 F. Supp. 990, 995 (C.D. Cal. 1984). Courts generally find

20 this requirement is satisfied even when there are relatively few class members. See

21 id. (25 class members sufficient); McCluskey v. Trs. Of Red Dot Corp. Emp. Stock

22 Ownership Plan & Trust, 268 F.R.D. 670, 673-76 (W.D. Wash. 2010) (27 class

23 members sufficient).

24

The putative class here is sufficiently numerous. CBP’s misconduct toward

25 asylum seekers has been the focus of monitoring, reporting and advocacy by

26 numerous well-respected nongovernmental organizations. These organizations have

27 investigated and documented hundreds of examples of asylum seekers being turned

28 away by CBP officers at POEs across the U.S.-Mexico border. See RJN, Ex. A

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
17

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 27 of 34 Page ID #:1371

1 (identifying many cases of turnaways); RJN, Ex. C at 1 (identifying more than 125

2 cases of asylum seekers denied access to the asylum process at various POEs in just

3 a two-month period); Shepherd Decl., Ex. A (CRCL/OIG Compl.) at 1-8 (complaint

4 on behalf of eight organizations working on this issue, providing five representative

5 examples of asylum seekers denied access to the asylum process at POEs in San

6 Ysidro, CA, El Paso, TX, Laredo, TX and McAllen, TX); De Leon Decl., Ex. A

7 (summarizing testimony of 28 individuals who expressed fear of return to home

8 countries but were denied access to the asylum process). This evidence likely

9 understates the severity of the problem. “Many more [asylum seekers] have likely

10 suffered a similar fate as these abuses often go unreported due to the security threats

11 faced by those who are turned away, the dearth of legal counsel, and the lack of

12 effective compliance mechanisms and monitoring of CBP practices.” RJN, Ex. A.

13

The supporting declarations filed together with this Motion, including the 28

14 plaintiff and witness declarations, also show that membership in the putative class is

15 too numerous to make joinder of all those who are affected practicable. See, e.g.,

16 Iniguez-Lopez Decl. ¶¶ 12-13 (identifying more than 50 mothers with children

17 denied access to asylum process at POEs in McAllen, TX, Laredo, TX, Eagle Pass,

18 TX and San Ysidro, CA over just three months); Williams Decl. ¶ 29 (“at least

19 seventeen” turnarounds documented in nine weeks at Arizona POEs); Drake Decl.

20 ¶ 25 (“45 cases of asylum seekers allegedly turned away by CBP agents” since

21 April 7, 2017). The declarants’ first-hand accounts demonstrate the pervasiveness

22 of Defendants’ unlawful conduct and its effects on scores of individuals.

23

2. The Class Presents Common Questions of Law and Fact

24

Rule 23(a)(2) requires that there exist questions of law or fact that are

25 common to the class. “All questions of fact and law need not be common” to

26 satisfy the commonality requirement. Ellis, 657 F.3d at 981 (quoting Hanlon v.

27 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). Even one shared legal issue

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
18

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 28 of 34 Page ID #:1372

1 can suffice. See Rodriguez, 591 F.3d at 1122 (“[T]he commonality requirements

2 ask[ ] us to look only for some shared legal issue or a common core of facts.”).

3

“Commonality requires the plaintiff to demonstrate that the class members

4 ‘have suffered the same injury.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

5 349-50 (2011) (citation omitted). To establish the existence of a common question

6 of law, the putative class members’ claims “must depend upon a common

7 contention” that is “of such a nature that it is capable of classwide resolution—

8 which means that determination of its truth or falsity will resolve an issue that is

9 central to the validity of each one of the claims in one stroke.” Id. at 350. Thus,

10 “[w]hat matters to class certification . . . is not the raising of common

11 ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate

12 common answers apt to drive the resolution of the litigation.” Id. (citation omitted).

13

Here, the putative class alleges common harms: a violation of their statutory

14 right to apply for asylum and their due process rights, and that Defendants are

15 violating U.S. obligations under international law, by turning away asylum seekers

16 at POEs along the U.S.-Mexico border. Moreover, all putative class members raise

17 the same legal claims – i.e., that the immigration laws, the U.S. Constitution and

18 international law require CBP officers at POEs to give them access to the U.S.

19 asylum process, either by referring them for Credible Fear Interviews by an Asylum

20 Officer or by initiating regular removal proceedings against them. And all putative

21 class members seek the same declaratory and injunctive relief. If Class

22 Representatives prevail, then all putative class members will benefit; each will be

23 entitled to an inspection at a POE along the U.S.-Mexico border free of coercion or

24 other conduct that results in the denial of access to the asylum process.

25

Class certification is particularly appropriate where plaintiffs challenge a

26 policy, pattern or practice. Plaintiffs’ burden in demonstrating commonality in civil

27 rights suits is satisfied where they “challenge[ ] a system-wide practice or policy

28 that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849,

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
19

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 29 of 34 Page ID #:1373

1 868 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S.

2 499, 504-05 (2005) (citing LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985).

3 “[C]lass suits for injunctive or declaratory relief,” like this case, “by their very

4 nature often present common questions satisfying Rule 23(a)(2).” 7A WRIGHT,

5 MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 1763 at 226 (3d ed. 2005).

6

The common harms suffered by the putative class members here also

7 implicate a common factual question: whether Defendants have a policy or practice

8 of denying access to the asylum process to noncitizens who present themselves at

9 POEs along the U.S.-Mexico border and express a fear of return to their home

10 countries or a desire to apply for asylum, by using misinformation, threats and

11 intimidation, verbal abuse, physical force and coercion.4

12

The putative class members’ common harms are also based on a core set of

13 common facts. All putative class members have expressed a fear of return to their

14 home countries or a desire to apply for asylum. See RJN, Ex. C at 1; Shepherd

15 Decl., Ex. A (CRCL/OIG Compl.) at 1-8; De Leon Decl., Ex. A. These facts entitle

16 all of them to apply for asylum. See Orantes-Hernandez, 919 F.2d at 553 (“It is

17 undisputed that all [noncitizens] possess . . . a right [to apply for asylum] under the

18 [Refugee] Act.”). Their shared common facts will ensure that the answers

19 regarding the legality of Defendants’ challenged policies or practices will be the

20 same for all class members, and will thus “drive the resolution of the litigation.”

21 Ellis, 657 F.3d at 981.

22

23

4 Of course, a policy, pattern or practice need not be formalized or written to be actionable. Navarro v. Block, 72 F.3d 712, 714-15 (9th Cir. 1995); Gomez v.

24 Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). Nor can the government’s selfserving assertion that it is following the law defeat otherwise well-pled allegations

25 suggesting a practice of denying class members access to the asylum process.

26

See, e.g., Walters v. Reno, No. 94-1204, 1996 WL 897662, at *6 (W.D. Wash. 1996), aff’d 145 F.3d 1032, 1045-47 (9th Cir. 1998) (“The existence

27

of a policy of providing information not reasonably calculated to apprise nonEnglish speakers of their rights would, if such a policy exists, affect all members

28 of the proposed class” and thus demonstrate commonality) (emphasis added).

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
20

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 30 of 34 Page ID #:1374

1

All plaintiffs were denied the opportunity to apply for asylum when they

2 presented themselves at a POE. Factual variations as to the specific tactics CBP

3 officers use to deny putative class members access to the asylum process, or as to

4 the merits of individual asylum claims, are insufficient to defeat commonality

5 where there is a pattern of depriving class members of their right to apply for

6 asylum. See Orantes-Hernandez, 541 F. Supp. at 370 (finding commonality for

7 class certification purposes where Salvadoran immigrants challenged a legacy INS

8 practice, among others, of failing to advise eligible asylum seekers of their rights);

9 Walters, 1996 WL 897662, at *6 (“[E]ven though the individual factual

10 circumstances may vary among class members, the commonality requirement is

11 satisfied in a suit such as this where it is alleged that the defendants have acted in a

12 uniform manner with respect to the class.”).

13

To be clear, Class Representatives are not asking this Court to determine

14 whether they or any putative class member should be granted asylum; rather, they

15 are asking that the Court determine whether Defendants have an unlawful policy

16 and/or practice of denying access to the U.S. asylum process. The question

17 presented applies equally to all putative class members regardless of other factual

18 differences. See Orantes-Hernandez, 541 F. Supp. at 370 (although “each

19 plaintiff's claim to asylum . . . must be determined individually, such individual

20 claims are not presented in this case . . . [and] [p]laintiffs’ challenge to the legality

21 of admitted INS procedures and their claim that certain practices are applied to the

22 class as a whole clearly do present common questions.”).

23

In sum, the legal questions presented are particularly well-suited to resolution

24 on a classwide basis because the Court must decide only once – through “common

25 proof” – whether Defendants’ alleged policies and practices violate the law. See In

26 re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958 (9th Cir.

27 2009); accord Negrete v. Allianz Life Ins. Co. of N. Am., 287 F.R.D. 590, 598 (C.D.

28 Cal. 2012); Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642, 654 (W.D. Wash.

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
21

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 31 of 34 Page ID #:1375

1 2011); see also LaDuke, 762 F.2d at 1332 (legality of an INS procedure “plainly”

2 created common questions of law and fact).

3

3. The Claims of Class Representatives Are Typical of the

4

Claims of the Members of the Putative Class

5

Rule 23(a)(3) requires that the claims of class representatives be “typical of

6 the claims . . . of the class.” To establish typicality, “a class representative must be

7 part of the class and ‘possess the same interest and suffer the same injury’ as the

8 class members.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 (1982).

9 Factual differences among class members do not defeat typicality in a case dealing

10 with a uniform policy or practice, provided that “the unnamed class members have

11 injuries similar to those of the named plaintiffs and that the injuries result from the

12 same, injurious course of conduct.” Armstrong, 275 F.3d at 869; accord

13 Unthaksinkun v. Porter, No. 11-0588, 2011 WL 4502050, at *13 (W.D. Wash.

14 Sept. 28, 2011); LaDuke, 762 F.2d at 1332; Smith v. Univ. of Wash. Law Sch.,

15 2 F. Supp. 2d 1324, 1342 (W.D. Wash. 1998) (“When it is alleged that the same

16 unlawful conduct was directed at or affected both the named plaintiff and the class

17 sought to be represented, the typicality requirement is usually satisfied, irrespective

18 of varying fact patterns which underlie individual claims.”).

19

Here, each Class Representative, like each putative class member, is an

20 asylum seeker who was denied access to the U.S. asylum process by CBP officers

21 at one or more POEs along the U.S.-Mexico border. Both Class Representatives

22 and putative class members are thus victims of the “same, injurious course of

23 conduct.” Armstrong, 275 F.3d at 869. The various tactics used by CBP in each

24 case – misinformation, intimidation, verbal abuse, physical force or coercion – do

25 not undermine typicality, but rather have the same end result of depriving asylum

26 seekers of the opportunity to pursue their claims.5

27 5 Defendants have suggested that Plaintiffs may not be adequate representatives
28 because their individual claims were purportedly mooted as argued in Defendants’

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
22

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 32 of 34 Page ID #:1376

1

4. Class Representatives and Counsel Are Adequate

2

Representatives for the Putative Class

3

Rule 23(a)(4) requires that “the representative parties will fairly and

4 adequately protect the interests of the class.” “Whether the class representatives

5 satisfy the adequacy requirement depends on ‘the qualifications of counsel for the

6 representatives, an absence of antagonism, a sharing of interests between

7 representatives and absentees, and the unlikelihood that the suit is collusive.’”

8 Walters, 145 F.3d at 1046, cert. denied, 526 U.S. 1003 (1999) (citation omitted).

9 This requirement is satisfied here.

10

First, Class Representatives each seek relief on behalf of the class as a whole

11 and have no interest antagonistic to other class members; they will thus fairly and

12 adequately protect the interests of the class they seek to represent. Their mutual

13 goal is to declare Defendants’ challenged policies and practices unlawful, and to

14 obtain declaratory and injunctive relief that would cure the illegality. They seek a

15 remedy for the same injuries, and all share an interest in having a meaningful

16 opportunity to apply for asylum. See A. Doe Decl. ¶ 21; B. Doe Decl. ¶ 27; C. Doe

17 Decl. ¶ 31; D. Doe Decl. ¶ 19; I. Doe Decl. ¶ 19; J. Doe Decl. ¶ 20. Thus, the

18 interests of Class Representatives and of the putative class members are aligned.

19

Second, Class Representatives’ counsel are well qualified. Counsel are

20 considered qualified when they can establish their experience in previous class

21 actions and cases involving the same field of law. See Lynch v. Rank, 604 F. Supp.

22

23 Motion to Dismiss. (See ECF Nos. 58, 95.) As explained in Plaintiffs’ Opposition to the Motion to Dismiss, none of Class Representatives’ individual
24 claims has been mooted, and Ninth Circuit law expressly precludes Defendants from evading class claims by providing relief to named plaintiffs. (See ECF No.
25 67 at 11-18 (citing Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011) (“[M]ooting the putative class representative’s claim will not moot the class
26 action.”); Chen v. Allstate Ins. Co., 819 F.3d 1136, 1142 (9th Cir. 2016) (holding that even if the named plaintiff in a putative class action were to receive
27 “complete relief on [his] individual claims for damages and injunctive relief before class certification,” the plaintiff “still would be entitled to seek
28 certification.”)).)

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
23

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 33 of 34 Page ID #:1377

1 30, 37 (N.D. Cal. 1984); Marcus v. Heckler, 620 F. Supp. 1218, 1223-24 (N.D. Ill.

2 1985); Adams v. Califano, 474 F. Supp. 974, 979 (D. Md. 1979). Plaintiffs are

3 represented by attorneys from the American Immigration Council, the Center for

4 Constitutional Rights, and the law firm of Latham & Watkins LLP. Counsel have a

5 demonstrated commitment to protecting the rights and interests of noncitizens and,

6 among them, have considerable experience in handling complex and class action

7 litigation, including in areas related to immigration. See Decl. of Manuel A.

8 Abascal (“Abascal Decl.”); Decl. of Melissa Crow (“Crow Decl.”); Decl. of Baher

9 Azmy (“Azmy Decl.”). These attorneys have collectively handled numerous large-

10 scale class actions and have represented numerous classes of noncitizens in actions

11 that successfully obtained class relief. See Abascal Decl.; Crow Decl.; Azmy Decl.

12 Plaintiffs’ counsel will zealously represent both named and absent class members.

13 Defendants do not dispute that counsel are adequate representatives of the proposed

14 class. See ECF No. 95.

15

B. Defendants’ Conduct Satisfies the Requirements of Rule 23(b)(2)

16

Rule 23(b)(2), under which Class Representatives seek certification, requires

17 that “the party opposing the class has acted or refused to act on grounds that apply

18 generally to the class.” It also “requires that ‘the primary relief sought is

19 declaratory or injunctive.’” Rodriguez, 591 F.3d at 1125 (citation omitted). “The

20 rule does not require [the court] to examine the viability or bases of class members’

21 claims for declaratory and injunctive relief, but only to look at whether class

22 members seek uniform relief from a practice applicable to all of them.” Id.

23 (Emphasis added.) This suit satisfies the requirements of Rule 23(b)(2), as

24 Defendants are alleged to have a border-wide practice of denying access to the

25 asylum process that is injurious to Class Representatives’ and putative class

26 members’ rights.

27

Defendants have denied Class Representatives and putative class members

28 access to the U.S. asylum process through a variety of tactics designed

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
24

Case 2:17-cv-05111-JFW-JPR Document 98 Filed 11/13/17 Page 34 of 34 Page ID #:1378

1 systematically to deter asylum seekers from accessing the asylum process and to

2 force them back into Mexico and other countries of origin. Defendants’ actions

3 violate Class Representatives’ and putative class members’ statutory, regulatory and

4 constitutional rights to apply for asylum, violate U.S. obligations under

5 international law, and demonstrate that Defendants have acted “on grounds that

6 apply generally to the class, so that final injunctive relief or corresponding

7 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

8 23(b)(2); see also Rodriguez, 591 F.3d at 1126 (class of noncitizens detained during

9 immigration proceedings met Rule 23(b)(2) criteria because “all class members’

10 [sic] seek the exact same relief as a matter of statutory or, in the alternative,

11 constitutional right”); see also Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2014)

12 (Rule 23(b)(2) “requirements are unquestionably satisfied when members of a

13 putative class seek uniform injunctive or declaratory relief from policies or

14 practices that are generally applicable to the class as a whole”). Hence, the

15 requirements of Rule 23(b)(2) are met.

16 V. CONCLUSION

17

For each and all of the foregoing reasons, Class Representatives respectfully

18 request that the Court grant the Motion and certify the proposed class.

19 Dated: November 13, 2017

LATHAM & WATKINS LLP

20

By /s/ Wayne S. Flick

21

Wayne S. Flick

22

Attorneys for Plaintiffs

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR CLASS CERTIFICATION
25

 
 Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3825 Page 1 of 105

1 LATHAM & WATKINS LLP

2

Manuel A. Abascal (Bar No. 171301) manny.abascal@lw.com

3 Michaela R. Laird (CA Bar No. 309194)

michaela.laird@lw.com

4 355 South Grand Avenue, Suite 100

5

Los Angeles, California 90071-1560 Telephone: +1.213.485.1234

6 Facsimile: +1.213.891.8763

7 SOUTHERN POVERTY LAW CENTER

Melissa Crow (DC Bar No. 453487)

8 melissa.crow@splcenter.org

9

(admitted pro hac vice) 1666 Connecticut Avenue NW

10

Suite 100 Washington, DC 20009

11 Telephone: +1.202.355.4471

12 Facsimile: +1.404.221.5857

13 Additional counsel listed on next page

14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17 AL OTRO LADO, INC., a California No. 3:17-cv-02366-BAS-KSC

18

corporation; ABIGAIL DOE, BEATRICE DOE, CAROLINA DOE,

Honorable Cynthia A. Bashant

19 DINORA DOE, INGRID DOE,

20

ROBERTO DOE, MARIA DOE, JUAN DOE, ÚRSULA DOE, VICTORIA

FIRST AMENDED COMPLAINT FOR DECLARATORY AND

21

DOE, BIANCA DOE, EMILIANA DOE, AND CÉSAR DOE individually

22 and on behalf of all others similarly

situated,

23

INJUNCTIVE RELIEF FOR: (1) VIOLATION OF THE
IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.

24

Plaintiffs,

§ 1101, ET SEQ.

25

v.

(2) VIOLATION OF THE ADMINISTRATIVE

26

KIRSTJEN M. NIELSEN, Secretary, United States Department of Homeland

PROCEDURE ACT, 5 U.S.C. § 551, ET SEQ.

27 Security, in her official capacity;

KEVIN K. MCALEENAN,

28 Commissioner, United States Customs

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3826 Page 2 of 105

1 and Border Protection, in his official (3)

2

capacity; TODD C. OWEN, Executive Assistant Commissioner, Office of Field

3

Operations, United States Customs and Border Protection, in his official

4 capacity; and DOES 1-25, inclusive,

5

Defendants. (4)

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION (PROCEDURAL DUE PROCESS) VIOLATION OF THE NONREFOULEMENT DOCTRINE CLASS ACTION

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3827 Page 3 of 105

1 CENTER FOR CONSTITUTIONAL

2

RIGHTS Baher Azmy (NY Bar No. 2860740)

3

bazmy@ccrjustice.org (admitted pro hac vice)

4 Ghita Schwarz (NY Bar No. 3030087)

5

gschwarz@ccrjustice.org (admitted pro hac vice)

6

Angelo Guisado (NY Bar No. 5182688) aguisado@ccrjustice.org

7 (admitted pro hac vice)

666 Broadway, 7th Floor

8 New York, NY 10012

9

Telephone: +1.212.614.6464 Facsimile: +1.212.614.6499

10 SOUTHERN POVERTY LAW CENTER 11 Mary Bauer (VA Bar No. 31388)

12

mary.bauer@splcenter.org (pro hac vice pending)

13

1000 Preston Avenue Charlottesville, VA 22903

14 Sarah Rich (GA Bar No. 281985)

sarah.rich@splcenter.org

15 (pro hac vice pending)

16

Rebecca Cassler (Minn. Bar No. 0398309) rebecca.cassler@splcenter.org

17

(pro hac vice forthcoming) 150 East Ponce de Leon Avenue

18 Suite 340

19 Decatur, GA 30030

20

AMERICAN IMMIGRATION COUNCIL Karolina Walters (DC Bar No. 1049113)

21

kwalters@immcouncil.org (admitted pro hac vice)

22 1331 G Street, NW, Suite 200

23

Washington, DC 20005 Telephone: +1.202.507.7523

24 Facsimile: +1.202.742.5619

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3828 Page 4 of 105

1

I. INTRODUCTION

2

Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”), a non-profit legal services

3 organization, and Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe,

4 Ingrid Doe, Roberto Doe, Maria Doe, Juan Doe, Úrsula Doe, Victoria Doe, Bianca

5 Doe, Emiliana Doe, and César Doe (“Class Plaintiffs”), acting on their own behalf

6 and on behalf of all similarly situated individuals, allege as follows:

7

1. Class Plaintiffs are noncitizens who have fled grave harm in their

8 countries to seek protection in the United States. All of them sought to access the

9 U.S. asylum process by presenting themselves at official ports of entry (“POEs,” or

10 individually, “POE”) along the U.S.-Mexico border, but were denied such access

11 by or at the instruction of U.S. Customs and Border Protection (“CBP”) officials

12 pursuant to a policy initiated by Defendants or practices effectively ratified by

13 Defendants in contravention of U.S. and international law.

14

2. Since 2016 and continuing to this day, CBP has engaged in an

15 unlawful, widespread pattern and practice of denying asylum seekers access to the

16 asylum process at POEs on the U.S.-Mexico border through a variety of illegal

17 tactics. These tactics include lying; using threats, intimidation and coercion;

18 employing verbal abuse and applying physical force; physically obstructing access

19 to the POE building; imposing unreasonable delays before granting access to the

20 asylum process; denying outright access to the asylum process; and denying access

21 to the asylum process in a racially discriminatory manner. Since the presidential

22 election, CBP officials have, for example, misinformed asylum seekers that they

23 could not apply for asylum because “Donald Trump just signed new laws saying

24 there is no asylum for anyone,” coerced asylum seekers into signing forms

25 abandoning their asylum claims by threatening to take their children away,

26 threatened to deport asylum seekers back to their home countries (where they face

27 persecution) if they persisted in their attempts to seek asylum, and even forcefully

28 removed asylum seekers from POEs. In March 2018, four Guatemalan asylum

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

1

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3829 Page 5 of 105

1 seekers at an El Paso POE, were denied access to the asylum process after CBP

2 officials told them that “Guatemalans make us sick.” As recently as September

3 2018, CBP denied access to an asylum seeker who was four months’ pregnant and

4 a victim of sexual violence. These practices all violate U.S. law, which requires

5 that asylum seekers “shall” have access to the asylum process.

6

3. In addition, beginning around 2016, high-level CBP officials, under

7 the direction or with the knowledge or authorization of the named Defendants (the

8 “Defendants”), adopted a formal policy to restrict access to the asylum process at

9 POEs by mandating that lower level officials directly or constructively turn back

10 asylum seekers at the border (the “Turnback Policy”) contrary to U.S. law. In

11 accordance with the Turnback Policy, CBP officials have used and are continuing

12 to use various methods to unlawfully deny asylum seekers access to the asylum

13 process based on purported⎯but ultimately untrue⎯assertions that there is a lack

14 of “capacity” to process them. These methods include coordinating with Mexican

15 immigration authorities and other third parties to implement a “metering,” or

16 waitlist, system that creates unreasonable and life-threatening delays in processing

17 asylum seekers; instructing asylum seekers to wait on the bridge, in the pre-

18 inspection area, or at a shelter until there is adequate space at the POE; or simply

19 asserting to asylum seekers that they cannot be processed because the POE is “full”

20 or “at capacity.” On information and belief, the claims of a lack of capacity are

21 false.

22

4. Both Defendants’ widespread practice of denying access to the

23 asylum process and their formal Turnback Policy are designed to serve the Trump

24 administration’s broader, publicly proclaimed goal of deterring individuals from

25 seeking access to the asylum process. Rather than changing existing law, the

26 Administration is simply not following it. The Turnback Policy also reflects the

27 Trump administration’s significant antipathy to the fundamental humanitarian

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

2

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3830 Page 6 of 105

1 principles embodied in asylum laws, as well as to the Central and South American

2 populations seeking access to the asylum process in the United States.

3

5. In the spring of 2018, and in response to the anticipated arrival of a

4 sizeable number of asylum seekers who had traveled together on the dangerous

5 journey North in a so-called “caravan,” high-level Trump administration officials

6 publicly and unambiguously proclaimed the existence of their policy to

7 intentionally restrict access to the asylum process at POEs in violation of U.S. law.

8 Attorney General Jefferson B. Sessions pledged that asylum seekers would not

9 “stampede” our borders and announced a related “Zero Tolerance” policy to

10 prosecute all who enter the country unlawfully, and thereby to separate them from

11 their children (the very threat a number of Plaintiffs received when attempting to

12 seek asylum). Around the same time, DHS Secretary Kirstjen Nielsen

13 characterized the asylum process—mandated by U.S. statute and international

14 law—as a legal “loophole” and publicly announced a “metering” process designed

15 restrict—and to constructively deny—access to the asylum process through

16 unreasonable and dangerous delay.

17

6. Indeed, President Trump offered a public, full-throated and racially-

18 discriminatory defense of his administration’s aggressive implementation of the

19 Turnback Policy and the related, widespread CBP practice of denying access to the

20 asylum process, by referring to asylum seekers as “criminals” and “animals”

21 seeking to “infest” and “invade” the United States, and by specifically stating, via

22 tweet, that the United States “must bring them back from where they came” and

23 must “escort them back without going through years of legal maneuvering.”

24

7. Soon afterward, CBP officials implemented the Turnback Policy

25 through a tactic of asserting a “lack of capacity” to process asylum-seekers and by

26 coordinating with Mexican officials to prevent or delay asylum seekers from

27 reaching inspection points at POEs, even as CBP officials knew or should have

28 known of the dangerous conditions of rampant crime and violence by gangs and

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

3

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3831 Page 7 of 105

1 cartels on the Mexican side of the border. The unreasonable delays imposed on

2 asylum seekers—which are done pursuant to the Trump administration’s broader

3 goal of deterring future asylum seekers from presenting at the border at all—also

4 amount to a constructive denial of access to the asylum process.

5

8. As detailed more fully below, the Turnback Policy comes from high-

6 level U.S. government officials and is having the intended effect of severely

7 restricting—and constructively denying—access to the asylum process at POEs.

8 Indeed, an October 2018 report by the Department of Homeland Security’s Office

9 of Inspector General concluded that CBP has been “regulating the flow of asylum-

10 seekers at ports of entry,” and that by limiting the volume of asylum seekers

11 entering at POEs, the government has prompted some individuals “who would

12 otherwise seek legal entry into the United States to cross the border illegally.”1

13 9. Many desperate asylum seekers, faced with the consequences of the

14 Turnback Policy and unlawful CBP practices, have felt compelled to enter the

15 United States outside of POEs, often by swimming across the Rio Grande or

16 paying smugglers exorbitant sums to transport them, to reach safety as quickly as

17 possible.

18

10. On information and belief, CBP’s conduct pursuant to the Turnback

19 Policy and other unlawful practices were and continue to be performed at the

20 instigation, under the control or authority of, or with the direction, knowledge,

21 consent or acquiescence of Defendants. By refusing to follow the law, Defendants

22 have caused, and will continue to cause, Class Plaintiffs and Al Otro Lado concrete

23 and demonstrable injuries and irreparable harm.

24

25 1 Dep’t of Homeland Sec., Office of the Inspector General, Special Review –

26 Intital Observations Regarding Family Separation Issues Under the Zero

27

Tolerance Policy (“OIG Report”), No. OIG-18-84 at 5-6 (Sept. 27, 2018), available at www.oig.dhs.gov.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

4

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3832 Page 8 of 105

1

11. Each of the Class Plaintiffs has been subject to Defendants’ pattern

2 and practice of denying access to the asylum process and/or to the Turnback

3 Policy.

4

12. Defendants have deprived Class Plaintiffs and similarly situated

5 individuals of their statutory and international-law rights to apply for asylum,

6 violated their due process rights under the Fifth Amendment to the United States

7 Constitution, and violated the United States’ obligations under international law to

8 uphold the principle of non-refoulement. Defendants’ Turnback Policy and other

9 unlawful practices also constitute unlawful agency action that should be set aside

10 and enjoined pursuant to the Administrative Procedure Act, 5 U.S.C. § 706. Each

11 Class Plaintiff has attempted to access the asylum process and would seek to do so

12 again, but for Defendants’ systematic, illegal Turnback Policy and other unlawful

13 practices at issue in this action, which have impeded their access.

14

13. Defendants have caused injury to Plaintiff Al Otro Lado by frustrating

15 its ability to advance and maintain its central institutional mission and forcing the

16 organization to divert substantial portions of its limited time and resources away

17 from its various programs in Los Angeles, California and Tijuana, Mexico to

18 counteract the effects of the Turnback Policy and Defendants’ other unlawful

19 practices.

20

14. Despite persistent advocacy by Al Otro Lado and other advocates, and

21 despite Class Plaintiffs’ desperate need and right to seek asylum without delay in

22 the United States, CBP shows no signs of abating its illegal policy and practices.

23 Accordingly, Al Otro Lado and Class Plaintiffs require the intervention of this

24 Court to declare that Defendants’ conduct violates U.S. and international law, to

25 enjoin Defendants from continuing to violate the law, and to order Defendants to

26 implement procedures to ensure effective compliance with the law, including

27 without limitation oversight and accountability in the inspection and processing of

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

5

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3833 Page 9 of 105

1 asylum seekers. Absent the Court’s intervention, CBP’s unlawful conduct will

2 continue to imperil the lives and safety of countless vulnerable asylum seekers.

3

II. JURISDICTION AND VENUE

4

15. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

5 §§ 1331, 1346, and 1350. Defendants have waived sovereign immunity for

6 purposes of this suit pursuant to 5 U.S.C. § 702. The Court has authority to grant

7 declaratory relief under 28 U.S.C. §§ 2201 and 2202.

8

16. Venue is proper in this district under 28 U.S.C. § 1391(e) because a

9 substantial part of the events or omissions giving rise to the claim occurred at or in

10 the vicinity of the San Ysidro POE. All Defendants are sued in their official

11 capacity.

12

III. PARTIES

13

Plaintiffs

14

17. Plaintiff Al Otro Lado is a non-profit, non-partisan organization

15 incorporated in California and established in 2014. Al Otro Lado is a legal

16 services organization serving indigent deportees, migrants, refugees and their

17 families, principally in Los Angeles, California and Tijuana, Mexico. Al Otro

18 Lado’s mission is to coordinate and to provide screening, advocacy and legal

19 representation for individuals in asylum and other immigration proceedings, to

20 seek redress for civil rights violations and to provide assistance with other legal

21 and social service needs. Defendants have frustrated Al Otro Lado’s mission and

22 have forced Al Otro Lado to divert significant resources away from its other

23 programs to counteract CBP’s illegal practice of turning back asylum seekers at

24 POEs.

25

18. Through its Border Rights Project in Tijuana, Mexico, Al Otro Lado

26 assists individuals seeking protection from persecution in the United States. In

27 response to CBP’s unlawful policy and practices, Al Otro Lado has had to expend

28 significant organizational time and resources and alter entirely its previously used

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

6

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3834 Page 10 of 105

1 large-scale clinic model. For example, Al Otro Lado previously held large-scale,

2 mass-advisal legal clinics in Tijuana that provided a general overview on asylum

3 laws and procedures. This type of assistance (similar to the Legal Orientation

4 Program of the Executive Office for Immigration Review) only was workable

5 when CBP allowed asylum seekers into the United States in accordance with the

6 law.

7

19. Since 2016, however, CBP’s illegal conduct has compelled Al Otro

8 Lado to expend significant time and resources to send representatives to Tijuana

9 from Los Angeles multiple times per month for extended periods to provide more

10 individualized assistance and coordination of legal and social services, including

11 individual screenings and in-depth trainings to educate volunteer attorneys and

12 asylum seekers regarding CBP’s unlawful policy and practices and potential

13 strategies to pursue asylum in the face of CBP’s tactics. Whereas Al Otro Lado

14 previously was able to accommodate several dozen attorneys and over 100 clients

15 at a time in its large-scale clinics, Al Otro Lado has been forced to transition to an

16 individualized representation model where attorneys are required to work with

17 asylum seekers one-on-one and provide direct representation. Al Otro Lado has

18 expended (and continues to expend) significantly more resources recruiting,

19 training and mentoring pro bono attorneys to help counteract CBP’s unlawful

20 policy and practices. Nevertheless, even asylum seekers provided with such

21 individualized pro bono representation are being turned back by CBP in violation

22 of the law.

23

20. Al Otro Lado also has spent time and resources advocating that CBP

24 provide asylum seekers with access to the asylum process and cease using

25 unlawful tactics to circumvent its legal obligations. For example, Al Otro Lado

26 representatives have filed numerous complaints with the U.S. government detailing

27 examples of CBP’s unlawful policy and practices depriving asylum seekers of

28 access to the asylum process.

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

7

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3835 Page 11 of 105

1

21. Such diversion of Al Otro Lado’s time and resources negatively

2 impacts its other programs. For example, Al Otro Lado has not been able to pursue

3 funding for or otherwise advance the following programs: (1) its Deportee

4 Reintegration Program through which Al Otro Lado assists deportees who struggle

5 to survive in Tijuana, many of whom have no Mexican identity documents or

6 health coverage, and may not even speak Spanish; and (2) its Cross-Border Family

7 Support Program through which Al Otro Lado assists families with cross-border

8 custody issues, and helps connect family members residing in the United States to

9 social, legal, medical and mental health services. Al Otro Lado has all but ceased

10 its programmatic work with deportees and families separated by deportation due to

11 the diversion of resources caused by CBP's unlawful actions.

12

22. In addition, the constraints on Al Otro Lado’s limited time and

13 resources has negatively impacted its operations in Los Angeles, including

14 delaying the opening and expansion of its Los Angeles office through which it

15 coordinates “Wraparound” services for low-income immigrants in Los Angeles.

16 The increased need for on the ground support in Tijuana has impacted Al Otro

17 Lado’s ability to satisfy its clinical obligations for low-income immigrants at the

18 Wellness Center, located on the grounds of the Los Angeles County+USC Medical

19 Center, and to conduct outreach to provide free legal assistance to homeless

20 individuals in Los Angeles to allow them to better access permanent supportive

21 housing, employment and educational opportunities.

22

23. Al Otro Lado continues to be harmed by Defendants because CBP’s

23 illegal conduct at or in the vicinity of the border frustrates its organizational

24 mission and forces Al Otro Lado to divert resources from its other objectives. If

25 Al Otro Lado had not been compelled to divert resources to address CBP’s

26 unlawful conduct at the U.S.-Mexico border, it would have directed these

27 resources toward its other programs to further the advancement of its core mission.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

8

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3836 Page 12 of 105

1

24. Plaintiff Abigail Doe is a female native and citizen of Mexico. She is

2 the mother of two children under the age of ten. Abigail and her family have been

3 targeted and threatened with death or severe harm in Mexico by a large drug cartel

4 that had previously targeted her husband, leaving her certain she would not be

5 protected by local officials. Abigail fled with her two children to Tijuana, where

6 they presented themselves at the San Ysidro POE. On behalf of herself and her

7 children, Abigail expressed her fear of returning to Mexico and her desire to seek

8 asylum in the United States. CBP officials coerced Abigail into recanting her fear

9 and signing a form withdrawing her application for admission to the United States.

10 As a result of this coercion, the form falsely states that Abigail does not have a

11 credible fear of returning to Mexico. As a result of Defendants’ conduct, Abigail

12 and her children were unable to access the asylum process and were forced to

13 return to Tijuana, where at the time the initial Complaint was filed, they remained

14 in fear for their lives. Following the filing of the initial Complaint in this case,

15 Defendants made arrangements to facilitate the entry of Abigail and her children

16 into the United States.

17

25. Plaintiff Beatrice Doe is a female native and citizen of Mexico. She is

18 the mother of three children under the age of sixteen. Beatrice and her family have

19 been targeted and threatened with death or severe harm in Mexico by a dangerous

20 drug cartel; she was also subject to severe domestic violence. Beatrice fled with

21 her children and her nephew to Tijuana, where they presented themselves once at

22 the Otay Mesa POE and twice at the San Ysidro POE. On behalf of herself and her

23 children, Beatrice expressed her fear of returning to Mexico and her desire to seek

24 asylum in the United States. CBP officials coerced Beatrice into recanting her fear

25 and signing a form withdrawing her application for admission to the United States.

26 As a result of this coercion, the form falsely states that Beatrice and her children

27 have no fear of returning to Mexico. As a result of Defendants’ conduct, Beatrice

28 and her children were unable to access the asylum process and were forced to

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

9

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3837 Page 13 of 105

1 return to Tijuana, where at the time the initial Complaint was filed, they remained

2 in fear for their lives. While she was sheltered in Tijuana, her abusive spouse

3 located her and coerced her and her children to return home with him.

4

26. Plaintiff Carolina Doe is a female native and citizen of Mexico. She

5 is the mother of three children. Carolina’s brother-in-law was kidnapped and

6 dismembered by a dangerous drug cartel in Mexico, and after the murder, her

7 family also was targeted and threatened with death or severe harm. Carolina fled

8 with her children to Tijuana, where they presented themselves at the San Ysidro,

9 POE. On behalf of herself and her children, Carolina expressed her fear of

10 returning to Mexico and her desire to seek asylum in the United States. CBP

11 officials coerced Carolina into recanting her fear on video and signing a form

12 withdrawing her application for admission to the United States. As a result of this

13 coercion, the form falsely states that Carolina and her children have no fear of

14 returning to Mexico. As a result of Defendants’ conduct, Carolina and her children

15 were unable to access the asylum process and were forced to return to Tijuana,

16 where at the time the initial Complaint was filed, they remained in fear for their

17 lives. Following the filing of the initial Complaint in this case, Defendants made

18 arrangements to facilitate the entry of Carolina and her children into the United

19 States.

20

27. Plaintiff Dinora Doe is a female native and citizen of Honduras.

21 Dinora and her eighteen-year-old daughter have been targeted, threatened with

22 death or severe harm, and repeatedly raped by MS-13 gang members. Dinora fled

23 with her daughter to Tijuana, where they presented themselves at the Otay Mesa,

24 POE on three occasions. Dinora expressed her fear of returning to Honduras and

25 her desire to seek asylum in the United States. CBP officials misinformed Dinora

26 about her rights under U.S. law and denied her the opportunity to access the

27 asylum process. As a result of Defendants’ conduct, Dinora and her daughter were

28 forced to return to Tijuana, where at the time the initial Complaint was filed, they

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

10

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3838 Page 14 of 105

1 remained in fear for their lives. Following the filing of the initial Complaint in this

2 case, Defendants made arrangements to facilitate the entry of Denora and her

3 daughter into the United States.

4

28. Plaintiff Ingrid Doe is a female native and citizen of Honduras. She is

5 the mother of two children and is currently pregnant with her third child. Ingrid’s

6 mother and three siblings were murdered by 18th Street gang members in

7 Honduras. After the murders, 18th Street gang members threatened to kill Ingrid

8 Ingrid and her children were also subject to severe domestic violence. Ingrid fled

9 with her children to Tijuana, where they presented themselves at the Otay Mesa

10 POE and at the San Ysidro POE. On behalf of herself and her children, Ingrid

11 expressed her fear of returning to Honduras and her desire to seek asylum in the

12 United States. CBP officials misinformed Ingrid about her rights under U.S. law

13 and denied her the opportunity to access the asylum process. As a result of

14 Defendants’ conduct, Ingrid and her children were forced to return to Tijuana,

15 where at the time the initial Complaint was filed, they remained in fear for their

16 lives. Following the filing of the initial Complaint in this case, Defendants made

17 arrangements to facilitate the entry of Ingrid and her children into the United

18 States.

19

29. Plaintiff Roberto Doe is a male native and citizen of Nicaragua.

20 Fearing for his life and the lives of his family members, Roberto fled Nicaragua

21 due to threats of violence from the Nicaraguan government and paramilitaries

22 allied with the government. Roberto sought access to the asylum process by

23 presenting himself at the Hidalgo, Texas POE. When he encountered CBP

24 officials in the middle of the bridge, he told them that he wanted to seek asylum in

25 the United States. CBP officials denied Roberto access to the asylum process by

26 telling him the POE was full and that he could not enter. Mexican officials then

27 escorted Roberto back to Mexico. Roberto would like to return immediately to the

28 Hidalgo POE to seek asylum, but based on his experiences and the experiences of

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

11

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3839 Page 15 of 105

1 others with CBP’s practices at the U.S.-Mexico border, he understands that he

2 would likely be turned away again. Roberto is currently residing in Reynosa,

3 Mexico, where he fears for his life. He can no longer remain in Mexico and has no

4 place else to turn for safety but the United States.

5

30. Plaintiff Maria Doe is a female native and citizen of Guatemala and a

6 permanent resident of Mexico. She was married to a Mexican citizen, with whom

7 she has two children who were both born in Mexico. Since Maria left her husband,

8 who was abusive and is involved with cartels, two different cartels have been

9 tracking and threatening her. Maria and her children fled Guatemala and sought

10 access to the asylum process by presenting themselves at the Laredo, Texas POE.

11 When Maria encountered CBP officials in the middle of the bridge, she told them

12 that she and her children wanted to seek asylum in the United States. , CBP

13 officials told them to wait on the Mexican side of the bridge. There, two Mexican

14 officials told Maria that U.S. officials would not let her and her children cross the

15 bridge, but that they could help her if she paid a bribe. Having no money to pay

16 the bribe, Maria traveled with her children to Reynosa, Mexico. There,

17 accompanied by an American lawyer, they sought access to the asylum process by

18 presenting themselves at the Hidalgo, Texas POE. On the Mexican side of the

19 bridge leading to the Hidalgo POE, a Mexican official threatened to destroy

20 Maria’s identity documents if she and her children did not leave the bridge. Two

21 weeks later, Maria and her children, accompanied by the same American lawyer,

22 again sought access to the asylum process by presenting themselves at the Hidalgo

23 POE. When Maria encountered CBP agents at the middle of the bridge, she told

24 them that she and her children wanted to seek asylum in the United States.

25 Mexican officials then forced Maria and her children off the bridge. Although

26 Maria and her lawyer repeatedly told CBP officials that she and her children

27 wanted to seek asylum in the United States, the CBP officials denied Maria and her

28 children access to the asylum process. Maria and her children would like to return

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

12

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3840 Page 16 of 105

1 immediately to a POE to seek asylum, but based on their experience and the

2 experiences of others with CBP’s practices at the U.S.-Mexico border, she

3 understands that they would likely be turned away again. Maria and her children

4 remain in Mexico, where their lives are in danger. They can no longer remain in

5 Mexico and have no place else to turn for safety but the United States.

6

31. Plaintiff Juan Doe is a male native and citizen of Honduras. Plaintiff

7 Úrsula is a female native and citizen of Honduras. Juan and Úrsula are husband

8 and wife and together have two children, twin thirteen-year-old boys. They fled

9 Honduras with their sons after receiving death threats from gangs. Juan, Úrsula

10 and their children sought access to the asylum process by presenting themselves at

11 the Laredo, Texas POE. When Juan, Úrsula, and their children reached the middle

12 of the bridge to the POE, CBP officials denied them access to the asylum process

13 by telling them the POE was closed and that they could not enter. Juan, Úrsula,

14 and their children subsequently tried to seek access to the asylum process by

15 presenting themselves at the Hidalgo, Texas POE, but Mexican officials stopped

16 them just as they were entering the pedestrian walkway on the Reynosa bridge and

17 threatened to deport them to Honduras if they did not leave. Juan, Úrsula and their

18 children would like to return immediately to the Hidalgo POE to seek asylum, but

19 based on their experience and the experiences of others with CBP’s practices at the

20 U.S.-Mexico border, they understand that they would likely be turned away again.

21 Juan, Úrsula and their children currently reside in Reynosa, Mexico, where they

22 remain in fear for their lives. They can no longer remain in Mexico and have no

23 place else to turn for safety but the United States.

24

32. Plaintiff Victoria Doe is a sixteen-year old female native and citizen

25 of Honduras. Victoria has been threatened with severe harm and death by

26 members of the 18th Street gang for refusing to become the girlfriend of one of the

27 gang’s leaders. Fearing for her life, Victoria fled to Mexico where she gave birth

28 to her son. Victoria and her son sought access to the asylum process by presenting

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

13

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3841 Page 17 of 105

1 themselves at the San Ysidro POE. When Victoria expressed her desire to seek

2 asylum in the United States, CBP officers denied her access to the asylum process

3 by stating that she could not apply for asylum at that time and telling her to speak

4 to a Mexican official without providing any additional information. Victoria would

5 like to return immediately to the San Ysidro POE to seek asylum on behalf of

6 herself and her son, but based on her experience and the experience of others with

7 CBP’s practices at the U.S.-Mexico border, she understands that she would likely

8 be turned away again. Victoria and her son are currently staying in a shelter in

9 Tijuana, but can no longer remain in Mexico because of threats from gangs who

10 have continued to target them in Mexico. They can no longer remain in Mexico

11 and have no place else to turn for safety but the United States.

12

33. Plaintiff Bianca Doe is a transgender woman who is a native and

13 citizen of Honduras. Bianca has been subjected to extreme and persistent physical

14 and sexual assault, as well as discrimination and ongoing threats of violence in

15 Honduras and Mexico City, where she subsequently moved, because she is a

16 transgender woman. Fearing for her safety based on numerous threats and

17 harassment, including at the hands of Mexican police, Bianca fled to Tijuana and

18 sought access to the asylum process by presenting herself at the San Ysidro POE.

19 CBP officers denied Bianca access to the asylum process by stating that she could

20 not apply at that time because they were at capacity. Bianca returned to the POE

21 the next day. She was given a piece of paper with the number “919,” placed on a

22 waiting list, and told that she would have to wait several weeks to proceed to the

23 POE. Feeling desperate and unsafe, Bianca attempted to enter the United States

24 without inspection by climbing a fence on a beach in Tijuana. Once over the fence,

25 a CBP officer stopped Bianca, who expressed her desire to seek asylum in the

26 United States. The CBP officer told Bianca that there was no capacity in U.S.

27 detention centers and threatened to call Mexican police if Bianca did not climb the

28 fence back into Mexico. Terrified, Bianca returned to Mexico. Bianca subsequently

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

14

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3842 Page 18 of 105

1 sought access to the asylum process by again presenting herself at the San Ysidro

2 POE. She was told, once again, that CBP had no capacity for asylum seekers.

3 Bianca would like to return immediately to the San Ysidro POE to seek asylum,

4 but based on her experience and the experience of others with CBP’s practice at

5 the U.S.-Mexico border, she understands that she would likely be turned away

6 again. Bianca is currently staying in a shelter in Tijuana where she fears further

7 violence as a transgender woman. She can no longer remain in Mexico and has no

8 place else to turn for safety but the United States.

9

34. Plaintiff Emiliana Doe is a transgender woman and a native and

10 citizen of Honduras. Emiliana was subjected to multiple sexual and physical

11 assaults, kidnapping, discrimination, as well as threats of severe harm and violence

12 in Honduras because she is a transgender woman. Fearing for her life, she made an

13 arduous and dangerous journey to Mexico, where she was raped repeatedly and

14 threatened with death. After arriving in Tijuana, Emiliana sought access to the

15 asylum process by presenting herself at the San Ysidro POE and stating her

16 intention to apply for asylum in the United States. She was given a piece of paper

17 with the number “1014” on it, placed on a waiting list and told to return in six

18 weeks. Feeling desperate and unsafe, Emiliana returned to the POE just a few

19 weeks later. CBP officers denied Emiliana the access the asylum process by telling

20 her that there was no capacity for asylum seekers and instructing her to wait for

21 Mexican officials. Emiliana would like to return immediately to the San Ysidro

22 POE to seek asylum, but based on her past experience with CBP’s practice at the

23 U.S.-Mexico border, she understands that she would likely be turned away again.

24 Emiliana is currently staying in a hotel in Tijuana where she fears further violence

25 as a transgender woman. She suffers from serious health issues caused by a stroke

26 two years ago, can no longer remain in Mexico, and has no place else to turn for

27 safety but the United States.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

15

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3843 Page 19 of 105

1

35. Plaintiff César Doe is an eighteen-year old male native and citizen of

2 Honduras. César has been threatened numerous times with severe harm and death

3 and kidnapped by members of the 18th Street gang. Fearing for his life, César fled

4 Honduras and traveled to Tijuana. C.D. sought access to the asylum process by

5 presenting himself at the San Ysidro POE, but was intercepted by individuals

6 belonging to “Grupo Beta.” César was told he would be placed on a waitlist, but

7 instead was detained for twelve days by Mexican immigration under threat of

8 deportation to Honduras. After an individual at a local shelter secured César’s

9 release from detention, he returned to the San Ysidro POE and was placed on a

10 waitlist. After a few weeks, César again sought access to the asylum process by

11 presenting himself at the San Ysidro POE, but CBP officers refused to accept him.

12 A few weeks later, he returned to the San Ysidro POE, but members of Grupo Beta

13 intercepted him and threatened to call Mexican immigration officials and child

14 protective services. A staff member from Plaintiff Al Otro Lado intervened and

15 escorted César back to the shelter. César would like to return immediately to the

16 San Ysidro POE to seek asylum, but based on his experience and the experiences

17 of others with CBP’s practices at the U.S.-Mexico border, he understands that he

18 would likely be turned away again. César is currently staying in a shelter in

19 Tijuana, can no longer remain in Mexico because of crime, violence and threats

20 from gangs, and has no place else to turn for safety but the United States.

21

Defendants

22

36. Defendant Kirstjen Nielsen is the Secretary of the United States

23 Department of Homeland Security (“DHS”). In this capacity, she is charged with

24 enforcing and administering U.S. immigration laws. She oversees each of the

25 component agencies within DHS, including CBP, and has ultimate authority over

26 all CBP policies, procedures and practices. She is responsible for ensuring that all

27 CBP officials perform their duties in accordance with the Constitution and all

28 relevant laws.

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

16

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3844 Page 20 of 105

1

37. Defendant Kevin K. McAleenan is the Commissioner of CBP. In this

2 capacity, he has direct authority over all CBP policies, procedures and practices,

3 and is responsible for ensuring that all CBP interactions with asylum seekers are

4 performed in accordance with the Constitution and all relevant laws. Defendant

5 McAleenan oversees a staff of more than 60,000 employees, manages a budget of

6 more than $13 billion, and exercises authority over all CBP operations.

7

38. Defendant Todd C. Owen is the Executive Assistant Commissioner of

8 CBP’s Office of Field Operations (“OFO”). OFO is the largest component of CBP

9 and is responsible for border security, including immigration and travel through

10 U.S. POEs. Defendant Owen exercises authority over 20 major field offices and

11 328 POEs. Defendant Owen oversees a staff of more than 29,000 employees,

12 including more than 24,000 CBP officials and specialists, and manages a budget of

13 more than $5.2 billion. Defendant Owen is responsible for ensuring that all OFO

14 officials perform their duties in accordance with the Constitution and all relevant

15 laws.

16

39. Does 1 through 25, inclusive, are sued herein under fictitious names

17 inasmuch as their true names and capacities are presently unknown to Al Otro

18 Lado and Class Plaintiffs. Al Otro Lado and Class Plaintiffs will amend this

19 complaint to designate the true names and capacities of these parties when the

20 same have been ascertained. Al Otro Lado and Class Plaintiffs are informed and

21 believe, and on that basis allege, that Does 1 through 25, inclusive, were agents or

22 alter egos of Defendants, or are otherwise responsible for all of the acts hereinafter

23 alleged. Al Otro Lado and Class Plaintiffs are informed and believe, and on that

24 basis allege, that the actions of Does 1 through 25, inclusive, as alleged herein,

25 were duly ratified by Defendants, with each Doe acting as the agent or alter ego of

26 Defendants, within the scope, course, and authority of the agency. Defendants and

27 Does 1 through 25, inclusive, are collectively referred to herein as “Defendants.”

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

17

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3845 Page 21 of 105

1

IV. FACTUAL BACKGROUND

2 A. Humanitarian Crisis South of the U.S.-Mexico Border

3

40. In recent years, children and adults have fled horrendous persecution

4 in their home countries and arrived at POEs along the U.S.-Mexico border to seek

5 protection in the United States through the asylum process. While asylum seekers

6 travel to the U.S.-Mexico border from all across the world, including from Haiti,

7 Cuba, Venezuela and Iraq, the vast majority of these individuals come from

8 Guatemala, Honduras and El Salvador, an area often termed Central America’s

9 “Northern Triangle.”

10

41. The Northern Triangle governments are known for corruption,2

11 including having corrupt police forces filled with gang-related members.3

12 Furthermore, the “penetration of the state by criminal groups” is responsible, at

13

14

15

16 2 See Christina Eguizábal, et al., Crime and Violence in Central America’s

17

Northern Triangle – How U.S. Policy Reponses are Helping, Hurting, and Can be Improved, The Wilson Ctr. (“Eguizábal, et al.”) at 2 (2015),

18 https://www.wilsoncenter.org/sites/default/files/FINAL%20PDF_CARSI%20R

19

EPORT_0.pdf+; see also U.S. Dep’t of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2017,

20

https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper (noting “widespread government corruption” is a significant human rights issue

21 in El Salvador, Guatemala, and Honduras).

22 3 “Over the past five years, at least 435 members of the [Salvadoran] armed

forces were fired for being gang members or having ties to gangs . . . Another

23 39 aspiring police officers were expelled from the National Public Security

24

Academy over the same period, of which 25 ‘belonged to’ the Mara Salvatrucha, or MS13, while 13 were from the Barrio 18 gang. Nine more

25

active police officers were also dismissed for alleged gang ties over the five years.” Mimi Yagoub, 480 Gang Members Infiltrated El Salvador Security

26 Forces: Report, InSight Crime (Feb. 22, 2016),

27

https://www.insightcrime.org/news/brief/did-480-gang-members-infiltrate-elsalvador-security-forces/ (citation omitted).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

18

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3846 Page 22 of 105

1 least in part, for the fact that as many as 95% of crimes go unpunished in those

2 countries.4

3

42. The “pervasive and systematic levels of violence” associated with the

4 increasing reach and power of gangs in the Northern Triangle have been well

5 documented.5 Those fleeing the Northern Triangle cite “violence [from] criminal

6 armed groups, including assaults, extortion, and disappearances or murder of family

7 members,”6 as reasons for their flight. These armed groups operate with impunity

8 due to their influence and control over the governments of Northern Triangle

9 countries, which have repeatedly proven to be unable or unwilling to protect their

10

11

12

13

14

15

16

17 4 Eguizábal, et al., supra note 2, at 2.

18

19

5

UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico, 15 (Oct. 2015),

20

http://www.unhcr.org/en-us/publications/operations/5630f24c6/womenrun.html [hereinafter Women on the Run]; see also International Crisis Group,

21

El Salvador’s Politics of Perpetual Violence, 8-11 (Dec. 19, 2017), https://d2071andvip0wj.cloudfront.net/064-el-salvador-s-politics-of-perpetual-

22 violence.pdf.

23 6 Women on the Run at 15; see Refugees International, Closing Off Asylum at the

24

U.S.-Mexico Border 7 (Aug. 2018), https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/5b86d0a18

25

8251bbfd495ca3b/1535561890743/U.S.-Mexico+Border+Report++August+2018+-+FINAL.pdf [hereinafter Closing Off Asylum]; International

26 Crisis Group, Mafia of the Poor: Gang Violence and Extortion in Central

27

America, 2 (Apr. 6, 2017), https://d2071andvip0wj.cloudfront.net/062-mafia-ofthe-poor_0.pdf.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

19

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3847 Page 23 of 105

1 citizens.7 The degree of violence suffered by people in the Northern Triangle has

2 been compared to that experienced in war zones.8

3

43. In addition, Central American women and children often flee severe

4 domestic violence and sexual abuse.9 Women report prolonged instances of

5 physical, sexual and psychological domestic violence, and most of their accounts

6 demonstrate that the authorities in their home countries were either unable or

7 unwilling to provide meaningful assistance.10 Abusive partners are often members

8 or associates of criminal armed groups.11 Abusers frequently threaten women with

9

10

11 7 Women on the Run at 16 (finding that citizens of Northern Triangle countries

12

are “murdered with impunity”); id. at 23 (finding that 69% of women interviewed tried relocating within their own countries at least once before

13 fleeing and indicating that 10% “stated that the police or other authorities were

14

the direct source of their harm”); Closing off Asylum at 7 (“[T]here is considerable evidence that officials in each of the Northern Triangle countries

15

have extremely limited capacity – and in many cases limited will – to protect those at grave risk.”).

16 8 Médecins Sans Frontières (Doctors Without Borders), Forced to Flee Central 17 America’s Northern Triangle: A Neglected Humanitarian Crisis, 6 (May 2017),
https://www.msf.org/sites/msf.org/files/msf_forced-to-flee-central-americas18 northern-triangle_e.pdf [hereinafter Forced to Flee].

19 9 Kids in Need of Defense & Human Rights Center Fray Matías de Córdova,

20

Childhood Cut Short: Sexual and Gender-based Violence Against Central American Migrant and Refugee Children 12-20 (June 2017),

21 https://supportkind.org/wp-content/uploads/2017/06/Childhood-Cut-Short-

22

KIND-SGBV-Report_June2017.pdf [hereinafter Childhood Cut Short] (describing sexual and gender-based violence against children and young

23

women in the Northern Triangle).

24

10 Women on the Run, supra note 5, at 25. The women interviewed described repeated rapes and sexual assaults as well as violent physical abuse that

25 included: “beatings with hands, a baseball bat and other weapons; kicking;

threats to do bodily harm with knives; and repeatedly being thrown against

26 walls and the ground.” Id.

27 11 Id.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

20

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3848 Page 24 of 105

1 harm to their parents, siblings or children if they try to leave.12 Some women who

2 fled their countries have heard from family members back home that their abusers

3 continue to look for them.13 In addition, “[s]exual harassment and the threat of

4 sexual violence by gangs shapes the everyday lives of women and girls,” in the

5 Northern Triangle, and experts estimate that rape and torture of girls is “extremely

6 widespread.”14

7

44. After fleeing their home countries, children and adults face an arduous

8 and dangerous journey to the United States.15 The situation along the popular

9 migration routes to the United States has been termed a “humanitarian crisis”

10 because of the extraordinary violence faced by those making the journey.16 In

11 2015 and 2016, 68% of migrants from the Northern Triangle region experienced

12 violence, including sexual assault, on their journeys through Central America and

13 Mexico.17 Mexico has faced a drastic rise in criminal activity since the early 2000s

14 15 12 Id. at 27.
16 13 Id.

17 14 Childhood Cut Short at 17.

18 15 See Women on the Run at 43-45 (describing extortion, sexual violence, and

19

physical violence); see also Rodrigo Dominguez Villegas, Central American Migrants and “La Bestia”: The Route, Dangers, and Government Responses,

20

Migration Info. Source (Sept. 10, 2014), https://www.migrationpolicy.org/article/central-american-migrants-and-

21 %E2%80%9Cla-bestia%E2%80%9D-route-dangers-and-government-responses

(listing “injury or death from unsafe travelling conditions, gang violence, sexual

22 assault, extortion, kidnapping, and recruitment by organized crime” as dangers

23

faced on the journey to the United States).

24 16 See Eguizábal, et al., supra note 2, at 3.

25

17 See Forced to Flee, supra note 8, at 11. Close to half (44%) of the migrants reported being hit, 40% said they had been pushed, grabbed or asphyxiated, and

26 7% said they had been shot. Id. Nearly one-third (31.4%) of women and

27

17.2% of men surveyed during that same time period had been sexually abused during their journeys. Id. at 12.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

21

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3849 Page 25 of 105

1 that is attributed to cartels and has been accompanied by increases in violence and

2 corruption.18 The rate of violence continues to rise; 2017 was the deadliest year on

3 record in Mexico.19 Although the northern half of Mexico was often considered

4 the most dangerous, recent reports reveal an increase in violence in the central and

5 southern states of Mexico, particularly in Guerrero, Michoacán, and the State of

6 Mexico.20 The U.S. State Department currently advises “no travel”—its highest

7 level of travel warning, which also applies in active war zones like Syria,

8 Afghanistan, and Yemen—to five Mexican states due to high crime rates.21

9 Human rights groups report that since mid-2017, “the dangers facing refugees and

10

11 18 Dominic Joseph Pera, Drugs Violence and Public [In]Security: Mexico’s

12

Federal Police and Human Rights Abuse, 2-4, 7 (Justice in Mex. Working Paper Series Paper No. 1 (May 19, 2015),

13

https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1008&context=honors_ theses.pdf; see U.S. Dep’t of State, Bureau of Democracy, Human Rights and

14 Labor, Country Reports on Human Rights Practices for 2017 (Mexico),

15

http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2017&dl id=277345.

16 19 Human Rights First, Mexico: Still Not Safe for Migrants and Refugees 1

17

(Mar. 2018), https://www.humanrightsfirst.org/sites/default/files/Mexico_Not_Safe.pdf

18 [hereinafter Mexico: Still Not Safe].

19 20 See, e.g., U.S. Dep’t of State, Bureau of Diplomatic Sec., Mexico 2015 Crime

20

and Safety Report: Mexico City, https://www.osac.gov/pages/ContentReportDetails.aspx?cid=17114 (reporting

21

that a “common practice is for gangs to charge ‘protection fees’ or add their own tax to products and services with the threat of violence for those who fail

22 to pay”); see also Human Rights First, Dangerous Territory: Mexico Still Not

23

Safe for Refugees 4 (July 2017), http://www.humanrightsfirst.org/sites/default/files/HRF-Mexico-Asylum-

24

System-rep.pdf (“Human rights monitors stressed that there is a large presence of transnational gangs in southern Mexico, which have easy access to those

25 fleeing gang persecution in the Northern Triangle.”) (citations omitted).

26 21 U.S. Dep’t of State, Mexico Travel Advisory (Aug. 22, 2018),

27

https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexic o-travel-advisory.html.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

22

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3850 Page 26 of 105

1 migrants in Mexico have escalated.”22 Perpetrators of violence against migrants

2 “include[] members of gangs and other criminal organizations, as well as members

3 of the Mexican security forces.”23 Along with the increase in violence and

4 organized criminal activity, it is well documented that the police and armed forces

5 operate with impunity in Mexico, leaving victims unable to resort to their own

6 government for protection.24 Indeed, “[i]n some regions of Mexico the state has

7 become so closely identified with criminal gangs and drug cartels that these

8 criminal organizations do not need to corrupt the state – they essentially ‘are’ part

9 of the state.”25 Thus, the initial mistrust and inability to rely upon government

10 authorities for protection that leads many to flee their home countries accompanies

11 them along their journeys through Mexico.26

12

13 22 Mexico: Still Not Safe at 1; see also Dangerous Territory at 3 (“Human rights monitors report an increase in kidnappings, disappearances, and executions of
14 migrants and refugees in recent years.”).

15 23 Forced to Flee at 5; Closing Off Asylum at 9 (explaining that when crossing

16

Mexico, migrants suffer “abuses at the hands of organized crime, exploitative smugglers, and predatory state security and police”).

17 24 See Pera, supra note 18, at 4 (“Drug trafficking organizations have infiltrated 18 government positions in many areas, and their influence over state personnel

19

has dramatic implications.”); Ximena Suárez et al., Washington Office on Latin America, Access to Justice for Migrants in Mexico: A Right That Exists Only on

20

the Books, 24-27, 30-31 (July 2017), https://www.wola.org/wpcontent/uploads/2017/07/Access-to-Justice-for-Migrants_July-2017.pdf

21 [hereinafter Access to Justice] (documenting Mexican authorities’ unwillingness to investigate crimes against migrants).
22

23

25 Access to Justice at 30-31; Alberto Díaz-Cayeros, et al., Caught in the Crossfire: The Geography of Extortion and Police Corruption in Mexico, 3-4

24

Stanford Ctr. for Int’l Dev., Paper No. 545 (Feb. 2015), https://globalpoverty.stanford.edu/sites/default/files/publications/545wp_0.pdf.

25 26 See, e.g., Villegas, supra note 15 (referencing documentation of “the abuse of 26 power by various Mexican authorities, including agents from the National

27

Migration Institute, municipal governments, and state police” against individuals traveling to the U.S. border).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

23

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3851 Page 27 of 105

1

45. Furthermore, migrants seeking international protection have a small

2 chance of receiving it in Mexico. Amnesty International reports that “the Mexican

3 government is routinely failing in its obligations under international law to protect

4 those who are in need of international protection, as well as repeatedly violating the

5 non-refoulement principle.”27

6

46. In addition, Mexico’s northern border region is particularly plagued

7 with crime and violence, presenting renewed dangers for asylum seekers just as

8 they approach their destination.28 The state of Tamaulipas, which borders South

9 Texas cities including Laredo, McAllen, and Brownsville, is on the U.S. State

10

11

12 27 Amnesty International, Overlooked, Under-Protected, Mexico’s Deadly

13

Refoulement of Central Americans Seeking Asylum, 2 (2018), https://www.amnesty.org/download/Documents/AMR4176022018ENGLISH.P

14

DF; see id. at 8-20 (describing the multiple layers of institutional failure leaving refugees and asylum seekers vulnerable to refoulement in Mexico); accord

15 Francisca Vigaud-Walsh, Eric Schwartz, & Gabriela Dehesa-Azuara, Refugees

16

International, Putting Lives at Risk: Protection Failures Affecting Hondurans and Salvadorans Deported from the United States and Mexico, 11-12

17

(Feb. 2018), https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/5a849f81c

18 830250842098d87/1518641035445/Northern+Triangle+-

19

+Refugees+International.pdf; Dangerous Territory at 4-9.

20

28 See U.S. Dep’t of State, Mexico Travel Advisory (Aug. 22, 2018), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico

21

-travel-advisory.html (reporting violent crime and an increase in homicide in the state of Baja California (encompassing border towns Tijuana and Mexicali)

22 compared to 2016; widespread violent crime and gang activity in the state of

Chihuahua (encompassing border town Ciudad Juarez); widespread violent

23 crime and limited law enforcement capacity to prevent and respond to crime in

24

the state of Coahuila (particularly in the northern part of the state); that the state of Sonora (encompassing border town Nogales) is a key region in the

25

international and human trafficking trades; and common violent crime, including homicide, armed robbery, carjacking, kidnapping, extortion, and

26 sexual assault in the state of Tamaulipas (encompassing border towns

27

Matamoros, Nuevo Laredo, and Reynosa), where law enforcement capacity to respond to violence is limited throughout the state).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

24

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3852 Page 28 of 105

1 Department’s “no travel” list.29 Most of Mexico’s other border states, including

2 Sonora, Chihuahua, Coahuila, and Nuevo León, are classified at Level 3,

3 “Reconsider Travel,” due to the prevalence of violent crime and gang activity.30

4 The most pervasive problems migrants face in Mexico’s northern border states

5 include disappearances, kidnappings, rape, trafficking, extortion, execution and

6 sexual and labor exploitation by state and non-state actors.31 Recently, the situation

7 at the border has worsened: smugglers have increased their prices, cartel members

8 have increased their surveillance and control of areas around border crossings, and

9 the number of migrants kidnapped and held for ransom has increased.32 Even

10 migrants in the immediate vicinity of a POE are at risk of violence and

11 exploitation.33 Those who seek refuge in shelters may be in particular danger.

12

13

14

15 16 29 Id.

17 30 Id.

18 31 B. Shaw Drake et al., Crossing the Line: U.S. Border Agents Illegally Reject

19

Seekers, Human Rights First, 16 (May 2017), https://www.humanrightsfirst.org/sites/default/files/hrf-crossing-the-line-

20 report.pdf [hereinafter Crossing the Line].

21 32 Id.

22 33 Josiah Heyman & Jeremy Slack, “Blockading Asylum Seekers at Ports of Entry

at the US-Mexico Border Puts Them at Increased Risk of Exploitation,

23 Violence, and Death,” Center for Migration Studies (June 25, 2018),

24

http://cmsny.org/publications/heyman-slack-asylum-poe/#_ednref11.pdf (“When asylum-seekers are turned away by US authorities, they return to areas

25

around the Mexican-side POEs. These are characteristically busy zones of businesses, restaurants, bars, discos, drug sellers, hustlers, and commercial sex

26 work, although each border port has its own characteristics. They are areas that

27

increase the vulnerability and exploitability of non-Mexican migrants with little knowledge and few resources.”).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

25

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3853 Page 29 of 105

1 Some shelters are infiltrated by organized crime, while others have been the sites of

2 recent vandalism, burglary, threats, and kidnapping.34

3

47. By turning back individuals who seek to access the asylum process by

4 presenting themselves at POEs on the U.S.-Mexico border, Defendants are forcing

5 them to return to the dangerous conditions that drove them to flee their countries in

6 the first place.35

7 B. Defendants’ Policy and Widespread Practices of Denying Asylum

8

Seekers Access to the Asylum Process

9

48. Starting in 2016 and continuing to the present, CBP officials, at or

10 under the direction or with the knowledge and acquiescence or authorization of

11 Defendants, have systematically restricted the number of asylum seekers who can

12 access the U.S. asylum process through POEs along the U.S.-Mexico border.36

13

14

34 Id.; Washington Organization on Latin America, Latin America Working Group Education Fund, and Kino Border Initiative, “Situation of Impunity and

15

Violence In Mexico’s Norther Border Region” 2-4 (Mar. 2017), https://www.wola.org/wp-content/uploads/2017/04/Situation-of-Impunity-and-

16 Violence-in-Mexicos-northern-border-LAWG-WOLA-KBI.pdf.

17 35 Crossing the Line at 16; see also B. Shaw Drake, Violations at the Border: The

18

El Paso Sector, Human Rights First, 2-3 (Feb. 28, 2017), https://www.humanrightsfirst.org/resource/violations-border-el-paso-sector

19

(explaining the risks facing asylum seekers who are turned back at U.S. POEs, including being deported back to their home countries where they face

20 persecution).

21 36 There is anecdotal evidence that CBP officials began unlawfully dissuading

22

asylum seekers from pursuing their claims or flatly refusing them entry to the United States even prior to 2016. See American Immigration Council, Mexican

23

and Central American Asylum and Credible Fear Claims: Background and Context, 10 (May 21, 2014),

24 https://www.americanimmigrationcouncil.org/research/mexican-and-central-

american-asylum-and-credible-fear-claims-background-and-context (reporting

25 that Mexican asylum seekers arriving in El Paso “expressed a fear of

26

persecution [but] were told by CBP that the U.S. doesn’t give Mexicans asylum, and they [we]re turned back”); see also U.S. Comm’n on Int’l Religious

27

Freedom, Report on Asylum Seekers in Expedited Removal: Volume I: Findings & Recommendations, 54 (Feb. 2005) [hereinafter 2005 USCIRF Report],

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

26

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3854 Page 30 of 105

1 That has been accomplished both through the Turnback Policy that seeks to restrict

2 access to the asylum process and also through widespread practices across the

3 U.S.-Mexico also designed to deny access to the asylum process.

4

49. Al Otro Lado and Class Plaintiffs, as well as numerous non-

5 governmental organizations37 and news outlets,38 have documented thousands of

6 cases in which CBP officials have arbitrarily denied and/or unreasonably delayed

7

https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/ 8 Volume_I.pdf (reporting that two groups of asylum seekers who arrived at the

9

San Ysidro POE were “improperly refused entry to the United States for . . . lacking proper documentation and [were] ‘pushed back’ . . . without [being]

10

refer[red] . . . to secondary inspection” and without a “record of the primary inspection” being created); see also Human Rights Watch, “You Don’t Have

11 Rights Here”: US Border Screening and Returns of Central Americans to Risk

12

of Serious Harm, 2, 8 (Oct. 16, 2014), https://www.hrw.org/report/2014/10/16/you-dont-have-rights-here/us-border-

13

screening-and-returns-central-americans-risk [hereinafter You Don’t Have Rights Here] (concluding that the “cursory screening [conducted by CBP

14 officials] is failing to effectively identify [asylum seekers]” and reporting that

some “border officials acknowledged hearing [non-citizens’] expressions of 15 fear but pressured them to abandon their claims”).

16 37 See, e.g., Crossing the Line, supra note 31; Amnesty Int’l, Facing Walls: USA

17

and Mexico’s Violation of the Rights of Asylum Seekers, 19-22 (June 15, 2017), https://www.amnestyusa.org/wp-content/uploads/2017/06/USA-Mexico-

18 Facing-Walls-REPORT-ENG.pdf [hereinafter Facing Walls]; “You Don’t Have

19

Rights Here” at 2, 4.

20

38 Joshua Partlow, U.S. Border Officials Are Illegally Turning Away Asylum Seekers, Critics Say, Wash. Post (Jan. 16, 2017), available at

21

https://www.washingtonpost.com/world/the_americas/us-border-officials-areillegally-turning-away-asylum-seekers-critics-say/2017/01/16/f7f5c54a-c6d0-

22 11e6-acda-

59924caa2450_story.html?noredirect=on&utm_term=.ed5c3100d451 (last

23 visited Oct. 9, 2018); Caitlin Dickerson & Miriam Jordan, ‘No Asylum Here’:

24

Some Say U.S. Border Agents Rejected Them, N.Y. Times (May 3, 2017), available at https://www.nytimes.com/2017/05/03/us/asylum-border-

25

customs.html (last visited Oct. 9, 2018); Rafael Carranza, Are Asylum Seekers Being Turned Away at the Border?, USA Today (May 4, 2017, 10:55 P.M.

26 (MT)), available at

27

https://www.azcentral.com/story/news/politics/immigration/2017/05/05/asylum -seekers-being-turned-away-border/309398001/ (last visited Oct. 9, 2018).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

27

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3855 Page 31 of 105

1 access to the asylum process to individuals seeking asylum by presenting

2 themselves at POEs along the U.S.-Mexico border.39 The Turnback Policy and

3 CBP’s other widespread, unlawful practices have been documented at POEs

4 spanning the length of the U.S.-Mexico border, including POEs in San Ysidro,

5 California; Otay Mesa, California; Tecate, California; Calexico, California; San

6 Luis, Arizona; Nogales, Arizona; El Paso, Texas; Del Rio, Texas; Eagle Pass,

7 Texas; Laredo, Texas; Roma, Texas; Hidalgo, Texas; Los Indios, Texas; and

8 Brownsville, Texas.

9

1. Initiation of the Turnback Policy

10

50. Internal CBP documents reveal that CBP officials at the highest levels

11 mandated turnbacks at POEs along the U.S.-Mexico border.40

12

51. Evidence of a Turnback Policy, at least regarding the San Ysidro port

13 of entry, exists starting in May 2016. In an email dated May 29, 2016, the Watch

14 Commander at the San Ysidro POE notes that “[t]he Asylee line in the pedestrian

15 building is not being used at this time, there is a line staged on the Mexican side.”

16 In an email sent roughly a month later, the same individual reiterated that “[i]t’s

17 even more important that when the traffic is free-flowing that the limit line officers

18 ask for and check documents to ensure that groups that may be seeking asylum are

19 directed to remain in the waiting area on the Mexican side.”

20

21

39 You Don’t Have Any Rights Here at 17: “While there are no official statistics on how many people CBP has illegally turned away without processing their

22 asylum requests, Amnesty International has received numerous secondary

23

reports from NGOs indicating that CBP has forced thousands of asylum-seekers to wait in Mexico – including families with children, mostly from Central

24 America.”

25

40 These documents, produced during the limited discovery that took place while this case was pending in the U.S. District Court for the Central District of

26 California, relate exclusively to ports of entry under the responsibility of the

27

Laredo Field Office and the San Ysidro port of entry. Additional discovery could reveal further details regarding the contours of the Turnback Policy.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

28

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3856 Page 32 of 105

1

52. CBP’s collaboration with the Mexican government to turn back

2 asylum seekers at the San Ysidro port of entry was formalized in a document

3 issued on an unspecified date after July 15, 2016, which provides:

4

In coordination with the GoM [Government of Mexico] we have

5

identified two (2) periods throughout the day to intake asylum claims

6

into our custody (8am and 4 pm). At each period, we intake approximately [redacted] applicants, with a daily intake total of

7

approximately [redacted] applicants. If an applicant does not meet

8

these intake time periods, they are requested to remain in-line in Mexico until the next intake period. . . . In order to control the flow of

9

asylees in their area, the GoM has instituted a numerical process by

10

giving asylum applicants numbers with intake dates in the order of their arrival. The applicants are also given the locations of

11

humanitarian shelters in Tijuana where they receive food and shelter

12

until their intake date. The implementation of this process was developed by the GoM.

13

14

53. On December 6, 2016, the Director of Field Operations at CBP’s San

15 Diego Field Office confirmed that the Turnback Policy remained in effect:

16

Metering continues at both San Ysidro and Calexico POEs the

17

numbers are adjusted based on space availability and ERO [ICE’s

18

Office of Enforcement and Removal Operations] movement of

detainees from the ports. Mexican immigration is handling the

19

metering process before the OTMs [Other Than Mexicans] arrive at

20

the port of entry; no issues on our end with aliens being turned away.

21

54. On information and belief, other CBP Field Offices also implemented

22 the Turnback Policy. Although certain port directors periodically suspended the

23 Turnback Policy, they never abandoned it. Moreover, direct turnbacks of asylum

24 seekers – via misrepresentations about the availability of asylum, intimidation, and

25 coercion, among other tactics – continued in practice even during periods of formal

26 suspension of the policy.

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

29

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3857 Page 33 of 105

1

55. Evidence that a border-wide Turnback Policy was authorized at the

2 highest levels of CBP, including by Defendant and now-Commissioner Kevin

3 McAleenan, exists as of November 2016. In an email communication dated

4 November 12, 2016, the Assistant Director Field Operations for the Laredo Field

5 Office instructed all Port Directors under his command to follow the mandate of

6 the then-CBP Commissioner and Deputy Commissioner:

7

At the request of C-1 [then CBP Commissioner R. Gil Kerlikowski]

8

and C-2 [then CBP Deputy Commissioner Kevin McAleenan], you

9

are to meet with your INM [Instituto Nacional de Migración, Mexico’s immigration agency] counterpart and request they control

10

the flow of aliens to the port of entry. For example, if you determine

11

that you can only process 50 aliens at a time, you will request that INM release only 50.

12

13

If INM cannot or will not control the flow, your staff is to provide the alien with a piece of paper identifying a date and time for an

14

appointment and return then [sic] to Mexico. This is similar to what

15

San Diego is doing. We understand the alien may express a fear of returning to Mexico and we will address as the situation dictates.41

16

56. This email directive was promptly implemented by the Laredo Field

17 Office, which encompasses the Brownsville, Del Rio, Eagle Pass, Hidalgo, Laredo,

18 Progreso, Rio Grande, and Roma, Texas POEs and covers nearly 400 miles of the

19 Texas-Mexico border. According to an internal email dated November 22, 2016,

20 “Our instructions from Service Headquarters and LFO [Laredo Field Office] is that

21 we will only accept ‘what we can handle/process’. All others will be turned back

22 to Mexico with an appointment date/time if possible.” Other email correspondence

23 from CBP officials at the Laredo, Hidalgo and Roma POEs indicates that

24 individuals turned back did not receive appointment notices.

25

26 41 An email sent the following day clarified that this directive was to apply only to

27

Central Americans. In practice, however, individuals of many other nationalities have also been affected.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

30

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3858 Page 34 of 105

1

57. The directive was memorialized in a memorandum from the Laredo

2 Field Office dated January 13, 2017. The memorandum directs that “metering”

3 procedures – i.e. procedures to regulate and restrict the access of asylum seekers to

4 POEs – be implemented once case processing numbers exceed a certain (redacted)

5 number, that such procedures are to be conducted “at the middle of the bridge,”

6 and that “all foreign nationals seeking a benefit are given an appointment window

7 to return for processing.” The Laredo Command Center is required to provide

8 hourly updates to “local upper management,” among others, who must also be

9 notified once normal operations resume.

10

58. In the months that followed, asylum seekers from Central America

11 and elsewhere continued to seek access to the U.S. asylum process by presenting

12 themselves at POEs along the U.S.-Mexico border, but many were turned back by,

13 at the instruction of, or with the knowledge of CBP officials.

14

59. On June 13, 2017, in questioning before the House Appropriations

15 Committee, John P. Wagner, the Deputy Executive Assistant Commissioner for

16 CBP’s Office of Field Operations, admitted that CBP officials were turning back

17 asylum applicants at ports of entry along the U.S. Mexico border.42 When asked to

18 comment on the numerous press reports that CBP officers at POEs had been

19 “turning away individuals attempting to claim credible fear,” Mr. Wagner

20 acknowledged that CBP had indeed engaged in turnbacks, and argued the practice

21 was justified by a lack of capacity.43 Mr. Wagner also stated on the record that

22

23 42 Department of Homeland Security Appropriations for 2018 Hearings Before a

24

Subcomm. of the H. Comm. on Appropriations, 115th Cong. 289-90 (2017) (testimony of John P. Wagner, Deputy Executive Assistant Commissioner,

25 Office of Field Operations, Customs and Border Protection),

https://www.gpo.gov/fdsys/pkg/CHRG-115hhrg27050/pdf/CHRG-

26 115hhrg27050.pdf.

27 43 Congresswoman Roybal-Allard asked: 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

31

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3859 Page 35 of 105

1 because POEs “do not have the kind of space to hold large volumes of people,”

2 CBP “worked a process out with the Mexican authorities to be able to limit how

3 many people a day could come across the border into [CBP’s] facility to be

4 processed.”44

5

60. Following dozens of turnbacks of asylum seekers in San Ysidro in

6 December 2017, the CBP Field Operations Director in charge of the San Ysidro

7 POE acknowledged and defended the turnbacks, stating: “So they weren’t being

8 allowed into the port-of-entry. We said, ‘we’re at capacity, so wait here.’ It’s

9 because of our detention space limitation, we were at capacity.”45

10

11

It is my understanding that CBP is legally required to process credible

12

fear claims when they are presented, and it is not authorized to turn

13

back individuals claiming fear even temporarily. In addition to commenting on those allegations, what steps can be taken or have

14

been taken to ensure this is not occurring or continuing to occur at the ports of entry, such as, is there training or other guidance, reminding

15

CBP personnel how they are required to treat individuals who express

fear?

16

17

Mr. Wagner responded:

18

Sure. It was a question really of the space available to process people. And our facilities were at capacity to be able to take more people in,

19

go through the processing, and turn them over to ICE after that. And the building was full, and we could not humanely and safely and

20

securely hold any more people in our space.

21 The Congresswoman later clarified:

22

“So it wasn’t an issue of officers not knowing what the law was. It

23

was more of an issue of capacity?” And Mr. Wagner responded: “It was an issue of capacity and being able to put people into the facility

24

without being overrun or having unsafe and unsanitary conditions.”

25 Id. at 289-90.

26 44 Id. 27 45 You Don’t Have Any Rights Here at 16. 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

32

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3860 Page 36 of 105

1

2. High Level Officials’ Public Confirmation and Escalation of

2

the Turnback Policy and CBP’s Aggressive Implementation

3

61. In late April 2018, following an arduous, widely-publicized journey, a

4 group of several hundred asylum seekers—referred to in the press as a “caravan”—

5 arrived at the San Ysidro port of entry. As they approached the United States,

6 President Trump posted a series of messages on Twitter warning of the dangers

7 posed by the group, including one indicating that he had instructed the Department

8 of Homeland Security “not to let these large Caravans of people into our

9 Country.”46

10

62. Thereafter, the highest-ranking officials in the Department of Justice

11 and DHS publicly and unambiguously proclaimed the existence of a Turnback

12 Policy. CBP continued to buttress the Turnback Policy through the practices

13 described above, including misrepresentations, threats and intimidation, verbal

14 abuse and physical force, coercion, outright denials of access, and physically

15 obstructing access to POEs.

16

63. Attorney General Sessions, refusing to acknowledge that some of the

17 caravan members might have legitimate claims to asylum under U.S. law,

18 characterized the caravan’s arrival as “a deliberate attempt to undermine our laws

19 and overwhelm our system.”47 Upon the caravan’s arrival, CBP officials

20

21

22

23 46

24

https://twitter.com/realDonaldTrump/status/980762392303980544?ref_src=t wsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E9807623923039805

25 44&ref_url=https%3A%2F%2Fwww.nbcnews.com%2Fpolitics%2Fpolitics-

news%2Ftrump-says-caravans-immigrants-are-headed-u-s-what-s-n862136.

26

27

47 https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-statement-centralamerican-caravan

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

33

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3861 Page 37 of 105

1 indicated—in accordance with the Turnback Policy—that they had exhausted their

2 capacity to process individuals traveling without proper documentation.48

3

64. As the caravan was approaching the United States, Attorney General

4 Sessions announced that all individuals who crossed the U.S.-Mexico border

5 illegally would be criminally prosecuted.49 Following the arrival of the caravan, he

6 pronounced that “[p]eople are not going to caravan or otherwise stampede our

7 border,” and reiterated his commitment to prosecuting illegal border crossers.50

8

65. On May 15, 2018, DHS Secretary Kirstjen Nielsen likewise publicly

9 and unambiguously confirmed the existence of the Turnback Policy, dismissing the

10 United States’ legal obligation to receive and process asylum seekers at U.S.

11 borders as a legal “loophole”:

12

We are “metering,” which means that if we don’t have the resources

13

to let them [asylum-seekers] in on a particular day, they are going to

14

have to come back. They will have to wait their turn and we will process them as we can, but that’s the way that the law works. Once

15

they come into the United States, we process them. We have asked

16

Congress to fix this loophole. It’s a huge gaping hole that we need to fix because it is so abused.51

17

18

19 48 https://www.nytimes.com/2018/04/29/world/americas/mexico-caravan20 trump.html

21 49 DOJ Press Release, “Attorney General Announces Zero-Tolerance Policy for

Criminal Illegal Entry,” (April 6, 2018),

22 https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-

23

policy-criminal-illegal-entry.

24

50 “Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration” (San Diego, CA, May 7,

25 2018).

26 51 DHS Secretary interview on Fox News (May 15, 2018),

27

http://www.foxnews.com/transcript/2018/05/15/giuliani-mueller-cant-indict-orsubpoena-preseident.html.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

34

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3862 Page 38 of 105

1

66. Trump himself continued to publicly pronounce the importance of the

2 Turnback Policy, through tweets, including direct statements that promote the

3 direct violation of the law:

4

• June 24, 2018: “When somebody comes in, we must

5

immediately, with no Judges or Court Cases, bring them back

6

from where they came.”52

7

• June 30: “When people come into our Country illegally, we

8

must IMMEDIATELY escort them back out without going

through years of legal maneuvering.”53

9

10

• July 5: “When people, with or without children, enter our

11

Country, they must be told to leave without our Country being forced to endure a long and costly trial. Tell the people, ‘OUT,’

12

and they must leave, just as they would if they were standing in

13

your front lawn.”54

14

67. Meanwhile, CBP officials continue to turn back asylum seekers who

15 seek access the U.S. asylum process by presenting themselves at POEs.

16 Predictably, the Turnback Policy has caused and continues to cause many asylum

17 seekers, desperate to avoid danger on the Mexican side of the border, to seek to

18 enter the United States outside POEs and thereafter be arrested and prosecuted for

19 unlawful entry and in many cases forcibly separated from their children.

20

68. In recent months, Commissioner McAleenan and other high-level

21 CBP officials have openly acknowledged that the Turnback Policy remains in

22

23

24 52 https://twitter.com/realdonaldtrump/status/1010900865602019329?lang=en

25

53 https://twitter.com/realdonaldtrump/status/1013146187510243328?lang=en

26

27

54 https://twitter.com/realDonaldTrump/status/1014875575557804034; https://twitter.com/realDonaldTrump/status/1014873774003556354

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

35

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3863 Page 39 of 105

1 effect, and that the United States is actively collaborating with Mexico to reduce

2 the flow of asylum seekers.55

3

69. A high-level CBP officer reiterated the contours of the Turnback

4 Policy in a meeting with immigrant rights groups in El Paso on June 27, 2018 and

5 confirmed that it was being applied border-wide.56

6

70. Notably, a September 27, 2018 report from DHS’s Office of the

7 Inspector General (“OIG Report”), attached as Exhibit A, references the policy

8 under which CBP systematically restricts access to the asylum process at POEs and

9 confirms the policy was directed by DHS. The OIG Report states the existence of

10 a “CBP guidance” which indicates that “[w]hen the ports of entry are full . . .

11 [CBP] officers should inform individuals that the port is currently at capacity and

12 that they will be permitted to enter once there is sufficient space and resources to

13 process them.”57 Although this “guidance” states that CBP officers “may not

14 discourage individuals from waiting to be processed,” some officers in El Paso

15 informed OIG investigators that they advise asylum seekers to “return later.”58

16 Also, according to the report, while “[u]nder the Zero Tolerance Policy, the

17

18

55 See, e.g., Statement from Commissioner Kevin McAleenan on Operations at San Ysidro Port of Entry (April 29, 2018), available at

19

https://www.cbp.gov/newsroom/speeches-and-statements/statementcommissioner-kevin-mcaleenan-operations-san-ysidro-port (explaining that

20

“individuals [without appropriate entry documentation] may need to wait in Mexico as CBP officers work to process those already within our facilities”);

21 “Border protection commissioner talks ‘zero tolerance,’ family separations and

22

how to discourage immigration,” LOS ANGELES TIMES (June 11, 2018) (“We’re not denying people approaching the U.S. border without documents. We’re

23 asking them to come back when we have the capacity to manage them.”).

24

56 Amnesty Int’l, USA: ‘You Don’t Have Any Rights Here’ (2018), https://www.amnesty.org/download/Documents/AMR5191012018ENGLISH.P

25 DF.

26 57 OIG Report at 6.

27 58 Id. at 7. 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

36

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3864 Page 40 of 105

1 Government encouraged asylum-seekers to come to U.S. ports of entry[,] . . .[a]t

2 the same time, CBP reported that overcrowding at the ports of entry caused them to

3 limit the flow of people that could enter.”59 The report elaborates that “CBP was

4 regulating the flow of asylum-seekers at ports of entry through ’metering,’ a

5 practice CBP has utilized at least as far back as 2016 to regulate the flow of

6 individuals at ports of entry.”60

7

71. DHS’s response to the OIG Report confirms that CBP has engaged in

8 “queue management practices . . . directed by [Defendant Nielsen].61 The response

9 also confirms that “CBP’s processes and policies at ports of entry may require

10 some individuals who do not have travel documents to wait at the International

11 Boundary prior to entering the United States.”62

12

72. In addition, officials from the Mexican immigration agency, Instituto

13 Nacional de Migración (“INM”), have confirmed the existence of an agreement

14 with CBP under which INM assists with the Turnback Policy by hindering asylum

15 seekers’ access to POEs. For example, as reported in the Amnesty International

16 report released on October 11, 2018, the INM head delegate in the Mexican state

17 of Baja California reportedly expressed doubt about CBP’s claims of capacity

18 constraints and “voiced his frustration that [CBP was] making INM do [its] dirty

19 work.”63 The INM delegate stated:

20

21 59 Id. at 5.

22

60 Id. at 5-6; see id. at 6-7 (describing CBP’s “metering” practice at POEs, explaining that “CBP officers stand at the international line out in the middle of

23

the footbridges,” checking pedestrians’ travel documents, and preventing asylum-seekers from crossing the international line until space is “available . . .

24 to hold the individual while being processed”).

25 61 Id. at 19-20.

26 62 Id. at 20. 27 63 You Don’t Have Any Rights Here at 23. 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

37

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3865 Page 41 of 105

1

[T]hat CBP requested INM to remove . . . 20 asylum-seekers from

2

the turnstiles [at the San Ysidro POE], as well as the rest of the [April 2018] caravan members from the plaza at El Chaparral,

3

where they were camping on the Mexican side of the port-of-entry. Implicit in the CBP request, the INM delegate said, was that such

4

detentions could result in INM deporting those asylum-seekers

who were not legally present in Mexico.64

5

73. Later, on June 14, 2018, a senior Mexican immigration official in

6 Sonora reportedly stated that US officials had requested INM to detain and check

7 the papers of the asylum-seekers whom CBP was pushing back to the Mexican side

8 of the Nogales border crossing. The INM official relayed also that he understood

9 the request by US authorities implicitly to be for INM to deport asylum-seekers

10 without legal status in Mexico to their home countries from which they had fled.65

11 Also in June 2018, Mexican immigration officials told human rights researchers

12 that “CBP officers were calling Mexican immigration to collect any individuals at

13 the border line, including asylum seekers, who attempted to approach the port of

14 entry to request protection and did not have visas or other documentation.” As a

15 result, asylum seekers were physically prevented from reaching the port of entry to

16

17

18

19 64 Id. at 23.

20

65 Id. at 21; see also id. at 22 (“On the Mexico side of the bridges in July 2018, three Mexican immigration officials informed [a] US immigration lawyer . . .

21

that they were screening asylum-seekers and preventing their access to US ports-of-entry upon the request of CBP. One of the Mexican officials told her:

22 “Yes, it’s a collaborative program that we’re doing with the Americans.” The

immigration officials were detaining non-Mexicans who lacked valid Mexican

23 transit visas, and threatened them with deportation if they returned to the

24

bridge. At the mid-point of the bridge, CBP again screened those who were able to pass through the Mexican immigration filter, and forced them to wait on the

25

half of the bridge closer to Mexico. According to [the U.S. immigration lawyer], the Mexican immigration officers informed her that when asylum

26 seekers crossed onto the bridge without valid Mexican travel documents, CBP

27

officers called on Mexican immigration officials to remove them from the bridge.”).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

38

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3866 Page 42 of 105

1 request protection.66 Statements from on-the-ground CBP officials further confirm

2 the continued existence of a high-level Turnback Policy. In El Paso, a CBP

3 official blocking asylum seekers’ path to the POE on the bridge explained that he

4 was “following directions. And this is not even local directions.”67 On a separate

5 occasion, CBP officials in El Paso, including supervisors, told a non-profit worker

6 that they were turning back asylum seekers because they “ha[d] orders not to let

7 anybody in,” that “this is a policy across the border,” and that “[i]t’s an order from

8 [U.S. Attorney General Jeff] Sessions.”68 Recent official government statements

9 acknowledging the policy assert a “lack of capacity” to process the flow of asylum

10 seekers at the southern border. In fact, and in accordance with a central goal of the

11 Turnback Policy to deter future asylum seekers from presenting themselves at the

12 U.S. border, CBP’s own statistics indicate that there has not been a particular surge

13 in numbers of asylum seekers coming to POEs. From January through September

14 2018, the number of people without legal status attempting to enter the United

15 States from Mexico, including asylum seekers, has stayed at roughly the same

16 level as over the previous five years. During those five years, U.S. authorities

17 regularly processed asylum seekers without the delays that CBP has imposed in

18

19

20 66 Human Rights First, Zero-Tolerance Criminal Prosecutions: Punishing Asylum

21 Seekers and Separating Families, 8 (July 18, 2018),

22

https://www.humanrightsfirst.org/resource/zero-tolerance-criminalprosecutions-punishing-asylum-seekers-and-separating-families.

23 67 Robert Moore, Border Agents Are Using a New Weapon Against Asylum

24

Seekers, Tex. Monthly (June 2, 2018), https://www.texasmonthly.com/politics/immigrant-advocates-question-legality-

25 of-latest-federal-tactics/.

26 68 Taylor Levy declaration at 8, here: https://agportal-

27

s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/moti on%20declarations%201-33.pdf.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

39

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3867 Page 43 of 105

1 2018.69 Based on available statistics, Amnesty International has characterized the

2 “supposedly unmanageable number of asylum claims” as “a fiction.” 70

3

74. In fact, there is substantial evidence that calls into question the claims

4 of a lack of capacity. There is evidence to suggest such claims are false and

5 instead are designed to effectuate the broader policy goal of restricting access to

6 the asylum process, according to governmental and non-governmental sources. In

7 early 2018, senior CBP and ICE officials in San Ysidro, California, stated in

8 interviews that “CBP has only actually reached its detention capacity a couple

9 times per year and during ‘a very short period’ in 2017.”71 The OIG Report notes

10 that while CBP justifies the official “metering” policy by citing a lack of capacity

11 to process asylum seekers, “the OIG team did not observe severe overcrowding at

12 the ports of entry it visited.”72 Human rights researchers visiting seven POEs in

13 Texas in June 2018 reported that “[t]he processing rooms visible in the ports of

14 entry . . . appeared to be largely empty.”73 CBP’s “capacity” excuse appears to be

15 a cover for a “deliberate slowdown” of the rate at which the agency receives

16 asylum seekers at POEs.74

17

18 69 https://www.cbp.gov/newsroom/stats/sw-border-migration.

19 70 You Don’t Have Any Rights Here at 14.

20 71 Id. at 15 (citing an interview with ICE’s Assistant Field Office Director at Otay

21

Mesa Detention Center on May 1, 2018, and an interview with the CBP Field Officer Director in San Diego on January 5, 2018).

22 72 OIG Report at 8.

23 73 Human Rights First, Zero-Tolerance Criminal Prosecutions: Punishing Asylum

24 Seekers and Separating Families 9 (July 18, 2018),

25

https://www.humanrightsfirst.org/resource/zero-tolerance-criminalprosecutions-punishing-asylum-seekers-and-separating-families.

26 74 Adam Isacson, Maureen Meyer & Adeline Hite, Washington Office on Latin

27

America, “‘Come Back Later’: Challenges for Asylum Seekers Waiting at Ports of Entry,” 3 (Aug. 2018), https://www.wola.org/wp-

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

40

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3868 Page 44 of 105

1

75. On October 10, 2018, CBP rejected thirty-two asylum seekers

2 including small children and pregnant women at the Córdoba International Bridge

3 between Ciudad Juarez and El Paso, Texas. CBP stopped the individuals and told

4 them that there was no capacity to take them in, including the pregnant women

5 who were some of the most vulnerable people in the group. However, only two or

6 so hours later, CBP officers in the middle of the bridge received orders to let all

7 thirty-two individuals in belying the initial assertion of a lack of capacity.

8 Similarly, in Nogales, AZ, recently CBP abruptly switched from processing six

9 asylum seekers per day—citing a lack of capacity to take any more—to twenty

10 asylum seekers per day. “The sudden change in processing capability points more

11 to an administrative decision than to an increase in capacity which would more

12 likely happen gradually.”75

13

76. By restricting the number of individuals who can seek access to the

14 asylum process – particularly given manifestly grave dangers asylum seekers face

15 while waiting on the Mexican side of the border – the Turnback policy operates as

16 a constructive denial of access to the asylum process. The denial threatens grave

17 harm to vulnerable individuals waiting in very dangerous conditions on the

18 Mexican side of the border.

19

77. In addition, an assertion of a lack of capacity is not a lawful basis to

20 deny the non-discretionary duty to provide access to the asylum process.

21

22

23 content/uploads/2018/08/Ports-of-Entry-Report_PDFvers-3.pdf; Debbie

24

Nathan, Desperate Asylum-Seekers Are Being Turned Away by U.S. Border Agents Claiming There’s “No Room”, The Intercept (June 16, 2018),

25 https://theintercept.com/2018/06/16/immigration-border-asylum-central-

america/ (reporting that a shelter manager in the El Paso area familiar with 26 CBP’s and ICE’s local processing facilities “can’t imagine they are overtaxed”).

27 75 “Come Back Later” at 5. 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

41

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3869 Page 45 of 105

1

78. Other U.S. government entities have raised concerns about CBP’s

2 treatment of asylum seekers. In 2016, for example, the bipartisan U.S.

3 Commission on International Religious Freedom noted some CBP officers’

4 “outright skepticism, if not hostility, toward asylum claims.”76

5

79. Congress has also signaled concern over CBP’s treatment of asylum

6 seekers at the border. “While proposing over $58 billion in federal funding for

7 DHS agencies, the House Appropriations Committee in July 2018 called on DHS

8 to ‘ensure that the United States is meeting its legal obligations, to include

9 reminding field officers and agents about CBP’s legal responsibilities to ensure

10 that asylum-seekers can enter at POEs [ports-of-entry].’”77

11

80. As detailed below, Plaintiffs Bianca, Emiliana, César, Roberto, Maria,

12 Úrsula, and Juan were each subject to the Turnback Policy when CBP officials told

13 them there was no capacity to process them and/or that they had to wait an

14 unreasonable or indeterminate amount of time in very dangerous conditions on the

15 Mexican side of the border before they could access the asylum process. Plaintiffs

16 Victoria, César, Maria, Úrsula, and Juan were each subject to the Turnback Policy

17 when CBP officials told them to speak to a Mexican official (Victoria) or when

18

19

20

76 See U.S. Comm’n on Int’l Religious Freedom, Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, 2 (2016) (reporting that

21

despite findings and recommendations in a 2005 study relating to primary inspection, USCIRF observers in 2016 continued to find “several examples of

22 non-compliance with required procedures” in CBP primary inspection

23

interviews); see also 2005 USCIRF Report, supra note 36, at 54 (finding that, in approximately half of the inspections observed, inspectors failed to read the

24

proper advisals regarding asylum to the non-citizen and that “in 15 percent of [the] cases [ ] where an arriving [non-citizen] expressed a fear of return to the

25 inspector, that [non-citizen] was not referred” for a credible fear interview).

26 77 You Don’t Have Any Rights Here at 11, quoting

27

https://docs.house.gov/meetings/AP/AP00/20180725/108623/HMKP-115AP00-20180725-SD004.pdf, pages 4, 26.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

42

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3870 Page 46 of 105

1 Mexican officials intercepted them (César, Maria, Úrsula, Juan) and interfered with

2 their ability to access the U.S. asylum process.

3

C. CBP Officials’ Unlawful Practices Have Denied Hundreds of

4

Asylum Seekers Access to the Asylum Process

5

81. Starting in or around mid-2016 and continuing to the present, CBP

6 officials also have been engaging in other unlawful, widespread practices to deny

7 asylum seekers’ access to the asylum process – independently or as a part of or

8 incident to the Turnback policy. These practices include the use of

9 misrepresentations, threats and intimidation, coercion, and verbal and physical

10 abuse; denying outright access to the asylum process; physically obstructing access

11 to the POE; forcing asylum seekers to wait unreasonable or indeterminate amounts

12 of time before being processed; and racially discriminatory denials of access.

13 Asylum seekers and advocates have experienced and/or witnessed firsthand CBP’s

14 illegal conduct.

15

1. Misrepresentations

16

82. CBP officials misinform asylum seekers with the following

17 misrepresentations, among others: that the United States is no longer providing

18 asylum; that President Trump signed a new law that ended asylum in the United

19 States; that the law providing asylum to Central Americans ended; that Mexicans

20 are no longer eligible for asylum; that the United States is no longer accepting

21 mothers with children; that the United States got rid of the law that allowed for

22 asylum for children; that asylum seekers cannot seek asylum at the POE, but must

23 go to the U.S. Consulate in Mexico instead; that visas are required to cross at a

24 POE; that asylum seekers must first speak with Mexican immigration officials

25 before they will be allowed to enter the United States to seek asylum; that there is

26 not “space” for additional asylum seekers to enter; that there are “too many

27 people”; that the port is “full”; that the shelters or detention centers where asylum

28 seekers will be held are “full”; that there are too few officials in the port to process

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

43

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3871 Page 47 of 105

1 asylum seekers; that asylum seekers must wait for people to leave before they can

2 enter; and that by coming to the POE, asylum seekers are in a “federal zone” and

3 therefore they must leave.

4

83. Class Plaintiffs Abigail, Beatrice, Dinora, Ingrid, Victoria, Bianca,

5 Emiliana, Roberto, Úrsula, and Juan each experienced this practice. Dinora and

6 Ingrid both were told asylum was no longer available in the United States. Abigail

7 was told that only the Mexican government could help her. Beatrice was told that

8 the U.S. government had no obligation to help her and that she had no right to

9 enter the United States. Victoria and Bianca were told they needed to speak with

10 Mexican officials. When Bianca, Emiliana, and Roberto approached CBP officials

11 to apply for asylum, they were told they could not apply because the ports were

12 “full.” Úrsula and Juan were told that the POE was “closed” even though it was

13 mid-afternoon.

14

2. Threats and Intimidation

15

84. CBP officials threaten and intimidate asylum seekers in the following

16 ways: threatening to take asylum seekers’ children away from them if they did not

17 leave the POE; threatening to separate children from parents if they did not accept

18 voluntary departure; threatening to detain and to deport asylum seekers to their

19 home countries if they persisted in their claims; threatening to ban asylum seekers

20 from the United States for life if they continued to pursue asylum; threatening to

21 bring criminal charges against asylum seekers if they refused to leave the POE;

22 threatening to use a taser or let dogs loose if asylum seekers refused to go back to

23 Mexico; and threatening to call Mexican immigration officers if asylum seekers

24 did not leave the POE.

25

85. Class Plaintiffs Abigail, Beatrice, and Carolina each experienced this

26 practice and were threatened that if they tried to cross and pursue their asylum

27 claims, U.S. government officials would take their children away or separate their

28 families. Additionally, Dinora was threatened that if she and her daughter returned

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

44

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3872 Page 48 of 105

1 to the POE, they would be deported to Honduras. Beatrice was told that if she

2 returned to the POE, she would be put in jail for three years.

3

3. Verbal and Physical Abuse

4

86. As part of their systematic practice of denying asylum seekers arriving

5 at POEs access to the U.S. asylum process, CBP officials also regularly resort to

6 verbal and even physical abuse, including, for example, by: grabbing an asylum

7 seeker’s six-year-old daughter’s arm and throwing her down onto the ground;

8 holding a gun to an asylum seeker’s back and forcing her out of the POE; knocking

9 a transgender asylum seeker to the ground and stepping on her neck; telling an

10 asylum seeker she was scaring her five-year-old son by persisting in her request for

11 asylum and accusing her of being a bad mother; laughing at an asylum-seeking

12 mother and her three children and mocking the asylum seeker’s thirteen-year-old

13 son who has cerebral palsy; yelling profanities at an asylum-seeking mother and

14 her five-year-old son, throwing her to the ground, and forcefully pressing her

15 cheek into the pavement; making very derogatory comments about an asylum

16 seeker’s country of origin (“Fuck Honduras”); denying four asylum seekers on five

17 consecutive days because “Guatemalans make us sick”; repeatedly and angrily

18 yelling at asylum seekers to make them leave the POE; inquiring whether an

19 asylum seeker was pregnant, and when the answer was negative, saying “that was

20 good because they did not want more children in the United States”; grabbing the

21 arms of an asylum seeker hard enough to leave bruises, bending them behind her

22 back in order to drag her back to Mexico, and also physically dragging her child

23 back to Mexico; grabbing another asylum seeker by the shoulders hard enough to

24 leave bruises and dragging her out of the POE with her seven-year-old watching

25 and yelling “leave my mommy alone!”; pushing an asylum seeker while she was

26 holding her infant daughter; and pushing another asylum seeker while she was

27 holding her three-year-old son. One asylum seeker reported that she sought mental

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

45

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3873 Page 49 of 105

1 health treatment to process how she was treated after being forcibly dragged out of

2 the POE and back to Mexico with her two children.

3

87. Class Plaintiffs Dinora and Beatrice both experienced this practice.

4 One CBP official pulled Dinora inside a gate at the POE to try to separate her from

5 her daughter. Later, as CBP officials escorted Dinora and her daughter out of the

6 POE, one of the CBP officials tried to drag Dinora by her arm. Beatrice also

7 experienced rough treatment and cried out in pain when a CBP official forcefully

8 searched her for drugs.

9

4. Coercion

10

88. CBP officials resort to coercion to deny asylum seekers arriving at

11 POEs access to the U.S. asylum process, including: coercing asylum seekers into

12 recanting their fear on video; and coercing asylum seekers into withdrawing their

13 applications for admission to the United States.

14

89. Class Plaintiffs Abigail, Beatrice and Carolina each experienced this

15 practice of coercion. Each was coerced to sign a form, written in English and not

16 translated, which they did not understand, that stated they were voluntarily

17 withdrawing their claims for asylum on the ground that they did not fear returning

18 to Mexico. The forms CBP officials coerced them to sign were and still are false.

19 At the time the initial Complaint in this case was filed, Abigail, Beatrice and

20 Carolina still had a grave fear of persecution in Mexico.

21

5. Outright Denial of Access

22

90. In some cases, CBP officials simply turn asylum seekers away from

23 POEs without any substantive explanation. For example, CBP officials have

24 indicated that a particular POE is not receiving any asylum seekers; that asylum

25 seekers should “vete” (go away); that asylum seekers must leave; that asylum

26 seekers will not be allowed to enter the United States; that there is no help for

27 asylum seekers at the POE; and that asylum seekers simply must “move aside” to

28 allow other pedestrian traffic to pass. In other cases, CBP officials simply ignore

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

46

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3874 Page 50 of 105

1 people who indicate a desire to seek asylum, or flatly refuse to look at their identity

2 documents.

3

91. Victoria and César both experienced this practice. When Victoria told

4 a CBP official she wanted to seek asylum, the official responded that she could not

5 do so at that time. When César tried to present himself at a POE and stated his

6 intent to apply for asylum, CBP officials refused to let him proceed to the POE.

7

6. Physically Blocking Access to the POE

8

92. In recent months, CBP officials at numerous POEs have begun

9 preliminarily checking pedestrian travelers’ documents at makeshift or permanent

10 “pre-checkpoints” housed under tarps or in tents at or near the U.S.-Mexico

11 border.78 The CBP officials do not permit asylum seekers to walk past the pre-

12 checkpoint to enter the POE building, forcing them to remain on the Mexican side

13 of the border just inches away from the United States.

14

93. On information and belief, CBP sometimes enlists Mexican officials

15 to act as their agents in blocking asylum seekers’ access to POEs. In the Rio

16 Grande Valley, for example, Mexican officials have intercepted asylum seekers as

17

18

78 See, e.g., Hannah Wiley, Critics Say New Barriers on Border Bridge Are Meant to Deter Asylum-Seekers, Texas Tribune (Oct. 1, 2018),

19 https://www.texastribune.org/2018/10/01/border-asylum-port-of-entry-texas-

20

mexico/; Meredith Hoffman, The Horrible Conditions Endured by Migrants Hoping to Enter the US Legally, VICE (July 3, 2018),

21

https://www.vice.com/en_us/article/59qny3/migrants-hoping-to-get-us-asylumforced-to-wait-on-bridge; John Burnett, After Traveling 2,000 Miles for Asylum,

22 This Family's Journey Halts at a Bridge, NPR (June 15, 2018),

https://www.npr.org/2018/06/15/620310589/after-a-2-000-mile-asylum-

23 journey-family-is-turned-away-before-reaching-u-s-soil; Molly Hennessy-

24

Fiske, Caught in Limbo, Central American Asylum-Seekers Are Left Waiting on a Bridge Over the Rio Grande, L.A. Times (June 7, 2018),

25

http://www.latimes.com/nation/la-na-asylum-seeking-families-border-bridges20180605-story.html; Robert Moore, Border Agents Are Using a New Weapon

26 Against Asylum Seekers, Texas Monthly (June 2, 2018),

27

https://www.texasmonthly.com/politics/immigrant-advocates-question-legalityof-latest-federal-tactics/.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

47

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3875 Page 51 of 105

1 they were approaching turnstiles at bridge entrances on the Mexican side. Without

2 passing through the turnstile, an asylum seeker cannot walk across the bridge to the

3 POE to seek protection in the United States. Mexican officials also reportedly

4 meet CBP officials in the middle of bridges to escort asylum seekers away from

5 the border and back into Mexico, where they are often detained or deported to

6 dangerous conditions in their home countries.

7

94. CBP physically blocked Roberto, Maria, Úrsula, and Juan from

8 accessing the asylum process by stopping them at pre-checkpoints at the border

9 and refusing to let them pass. In addition, César was intercepted by Mexican

10 officials outside the POE and pushed into a corner to prevent him from

11 approaching the POE. Mexican officials physically escorted Roberto and Maria

12 away from CBP officials stationed at the border and detained them to block their

13 access to the POE. Mexican officials also blocked Maria, Juan, and Úrsula from

14 reaching the POE by preventing them from walking onto the sidewalk leading to

15 the POE. CBP officials witnessed Mexican officials block Maria’s access and,

16 when Maria’s lawyer questioned them about it, CBP officials refused to intervene.

17

7. Waitlists and Unreasonable Delays

18

95. By its own admission, CBP officials force asylum seekers to wait for

19 days, weeks or indefinitely in Mexico before allowing them to access the asylum

20 process.

21

96. CBP officials process a limited number of asylum seekers per day,

22 even when dozens are waiting. At some POEs, CBP appears to process a fixed

23 number of asylum seekers—often two, three, or four. On some days, CBP officials

24 do not process any asylum seekers.

25

97. CBP officials also routinely tell asylum seekers approaching POEs

26 that in order to apply for asylum, they must get on a list or get a number. The lists

27 are typically managed by Mexican immigration officials or other third parties

28 based in Mexico. CBP officials will not permit asylum seekers to enter the United

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

48

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3876 Page 52 of 105

1 States until their number is called, which can take days, weeks or longer. Often,

2 the people managing the lists only give out new numbers during particular hours of

3 the day, and so are inaccessible to asylum seekers who are unable to locate them.

4 Despite diligent efforts, some individuals have reportedly been unable to get their

5 names on the lists due to the list managers’ biases against the individuals’

6 ethnicity, sexual orientation or gender identity.

7

98. As a result of these practices, asylum-seeking men, women and

8 children wait endlessly on or near bridges leading to POEs in rain, cold, and

9 blistering heat, without sufficient food or water and with limited bathroom access.

10 They sleep outside for many nights in a row, sometimes for a week or more. The

11 entire time they are waiting to be processed, the asylum seekers are at risk of harm

12 from either persecutors that have followed them from their home countries, or from

13 gang violence and other criminal threats prevalent along the Mexico side of the

14 U.S.-Mexico border.

15

99. Bianca, Emiliana, and César experienced this practice because they

16 were required to get on a list in order to access the asylum process. Bianca,

17 Emiliana, and Roberto were told they would have to wait an indeterminate and

18 unreasonable amount of time before they could seek asylum—Bianca was told she

19 would have to wait “multiple weeks”; Emiliana was told to come back in six

20 weeks; Roberto was told he would have to wait for “hours, days, or weeks”. In

21 addition, Bianca, Emiliana, and Maria were merely told to stand aside and wait for

22 an indeterminate period of time. Úrsula and Juan were told they had to “wait their

23 turn,” without any indication of what that meant.

24

8. Racially Discriminatory Denials of Access

25

100. In March 2018, CBP officials at the midpoint of the Paso Del Norte

26 Bridge separating Cuidad Juarez, Mexico and El Paso, Texas, rejected four

27 Guatemalan asylum seekers’ requests to access the asylum process on five

28 consecutive days because according to CBP, “Guatemalans make us sick.”

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

49

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3877 Page 53 of 105

1

101. On information and belief CBP agents racially profile individuals

2 crossing on bridges, stopping and asking for identification documents from

3 darker-skinned Central American-appearing individuals while allowing lighter-

4 skinned individuals to pass.

5

102. César was subject to this practice. When he approached the POE to

6 apply for asylum, he was placed in a group with only other Central Americans,

7 away from the Africans and Mexicans, after which he was arrested, detained, and

8 threatened with deportation.

9

103. All of the above-referenced tactics served to deny asylum seekers

10 access to the U.S. asylum process.

11

D. Documentation from Experts and NGOs Confirms the Prevalence

12

and Persistence of the Turnback Policy and CBP’s Other

13

Unlawful Practices

14

104. Non-governmental organizations and other experts working in the

15 U.S.-Mexico border region have extensively documented the devastating

16 consequences of CBP’s unlawful Turnback Policy and other unlawful practices

17 designed to restrict or deny access to the asylum process.

18

105. In June 2017, Amnesty International, a non-profit human rights

19 organization, published a report on CBP’s ongoing practice of turning back asylum

20 seekers at the U.S.-Mexico border entitled “Facing Walls: USA and Mexico’s

21 Violations of the Rights of Asylum-Seekers.”79 In compiling the report, Amnesty

22 International interviewed more than 120 asylum seekers as well as approximately

23 25 government officials and 40 civil society organizations. The report documents

24 numerous instances in which CBP officials denied asylum seekers access to the

25 asylum system at five different POEs along the U.S.-Mexico border. The report

26 details the following conduct:

27 79 See Facing Walls, supra note 37. 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

50

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3878 Page 54 of 105

1

a. CBP officials coerce asylum seekers into recanting their fear of

2

persecution on videotape and threaten to deport them back to

3

their home countries if they do not comply;

4

b. CBP officials tell asylum seekers that they will first have to get

5

a “ticket” from Mexican authorities before seeking asylum;

6

c. CBP officials coerce asylum seekers into signing a voluntary

7

return paper under the threat that, if they do not, then they will

8

be deported and will never be allowed into the United States;

9

and

10

d. CBP officials tell Mexican asylum seekers that there is no more

11

asylum for Mexicans.

12

106. In October 2018, Amnesty International issued a subsequent report

13 entitled “USA: ‘You Don’t Have Any Rights Here’: Illegal Pushbacks, Arbitrary

14 Detention & Ill-Treatment of Asylum-Seekers in the United States,” documenting

15 CBP’s continuing practice of turnbacks at POEs in California, Arizona and Texas,

16 and concluding that, in 2017 and 2018, the U.S. government had “intensified a

17 systematic and dangerous de facto policy of illegal pushbacks against asylum

18 seekers, in order to prevent them from requesting protection at official U.S. ports-

19 of-entry.” In addition to the conduct outlined above, the report details the

20 following:

21

a. CBP used “slowdown” tactics to force asylum seekers to wait for

22

days or weeks in Mexico before allowing them to seek protection

23

at POEs;

24

b. At several POEs, CBP officials temporarily stopped receiving any

25

asylum seekers;

26

107. CBP erected temporary checkpoints in the centers of international

27 bridges to Mexico at various POEs, where CBP officers instructed pedestrians

28 without valid Mexican travel documents to return to Mexico or called Mexican

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

51

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3879 Page 55 of 105

1 officials to remove such individuals from the bridge. In August 2018, the

2 Washington Office on Latin America (“WOLA”), a non-profit human rights

3 research and advocacy organization, published a thorough report entitled “‘Come

4 Back Later’: Challenges for Asylum Seekers Waiting at Ports of Entry.”80

5 WOLA’s report, based on years of documentary research and a visit to the U.S.-

6 Mexico border in June 2018, details the following developments:

7

There has recently been “a marked slow-down” in CBP’s

8

processing of asylum seekers at POEs, leading to long lines of

9

individuals and families waiting to present themselves to seek

10

asylum;

11

In June 2018, CBP officials at the Nogales POE had allowed a

12

backlog of 113 people, including 48 families, who were waiting

13

in Nogales, Mexico to present themselves to seek asylum;

14

CBP officials “have positioned themselves on the [physical]

15

border, pre-screening people before they are allowed to enter

16

U.S. territory and repeatedly denying asylum-seekers entry into

17

the country, forcing them to wait days or even weeks in hot and

18

in some areas dangerous Mexican border towns”;

19

CBP officials at smaller POEs tell asylum seekers that they no

20

longer process asylum claims at those POEs, and that the

21

migrants must travel to larger POEs many miles away; and

22

Mexican government officials block access to the McAllen

23

POE on the Reynosa side, and detain asylum seekers who lack

24

the proper travel documents to be in Mexico.

25 80 Adam Isacson, Maureen Meyer & Adeline Hite, Washington Office on Latin

26 America, “‘Come Back Later’: Challenges for Asylum Seekers Waiting at Ports

27

of Entry” (Aug. 2018), https://www.wola.org/wpcontent/uploads/2018/08/Ports-of-Entry-Report_PDFvers-3.pdf.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

52

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3880 Page 56 of 105

1

108. In May 2017, Human Rights First, a respected non-governmental

2 organization, published an exhaustive report entitled, “Crossing the Line: U.S.

3 Border Agents Illegally Reject Asylum Seekers.”81 In that report, Human Rights

4 First details firsthand accounts of CBP officials turning back asylum seekers

5 without referring them for further screening or immigration court proceedings at

6 POEs across the U.S.-Mexico border. The report details the following conduct:

7

a. CBP officials simply ignore requests by individuals to seek

8

asylum;

9

b. CBP officials give false information about U.S. laws and

10

procedures, such as saying that “the United States is not giving

11

asylum anymore” and “[President] Trump says we don’t have

12

to let you in”;

13

c. CBP officials mock and intimidate asylum seekers;

14

d. CBP officials impose a “gauntlet” and “charade” of procedures,

15

including a “ticketing” system, to discourage asylum seekers;

16

and

17

e. CBP officials coerce asylum seekers into denouncing any fear

18

of persecution.

19

109. Despite the complete lack of statistics or recordkeeping on CBP’s

20 failure to comply with the law, Human Rights First’s Report references more than

21 125 cases of CBP turning back individuals and families seeking asylum at POEs

22 along the U.S.-Mexico border between November 2016 and April 2017. This is

23 likely a small fraction of the number of asylum seekers who were illegally denied

24 access to the asylum process during that period.

25

26

27 81 See Crossing the Line, supra note 31. 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

53

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3881 Page 57 of 105

1

110. In July 2018, Human Rights First supplemented its 2017 report with

2 an issue brief documenting researchers’ visits to seven international bridges in June

3 2018, at Hidalgo, TX; Brownsville, TX; Roma, TX; Progreso, TX; Laredo, TX;

4 and El Paso, TX. The researchers found:

5

• At all seven bridges visited, “CBP installed new checkpoints at

6

the international border line” where “agents conduct document

7

screening ahead of the processing center” and regularly turn

8

back asylum seekers;

9

• CBP agents tell asylum seekers at the bridges that the POE is

10

“full” or “at capacity,” which leaves asylum seekers “stranded

11

for days or weeks in dangerous or difficult conditions”;

12

13

• Asylum seekers whom CBP fails to process “face extreme heat,

14

lack of food, water, and bathroom facilities, [and] in some

15

areas, they also face grave dangers and risks,” particularly

16

kidnapping;

17

• A shelter in Tijuana, Mexico, was broken into and set on fire

18

“likely because a group of transgender women were seeking

19

refuge there after being turned away several times by [CBP];

20

and

21

• CBP officers tell asylum seekers that they cannot cross at the

22

Stanton Street Bridge POE in El Paso, TX.82

23

24

25 82 Human Rights First, Zero-Tolerance Criminal Prosecutions: Punishing Asylum

26 Seekers and Separating Families, 8-9 (July 18, 2018),

27

https://www.humanrightsfirst.org/resource/zero-tolerance-criminalprosecutions-punishing-asylum-seekers-and-separating-families.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

54

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3882 Page 58 of 105

1

111. From December 2016 to the present, the Women’s Refugee

2 Commission, a non-profit organization that advocates for women and children

3 fleeing violence and persecution, has investigated and documented numerous

4 instances in which CBP officials have turned asylum seekers away and refused to

5 process them at various POEs along the U.S.-Mexico border, including POEs in

6 San Ysidro and Calexico, California; Nogales and San Luis, Arizona; Santa

7 Teresa, New Mexico; and El Paso, Laredo, and McAllen, Texas. The Women’s

8 Refugee Commission has documented the following conduct:

9

a. CBP officials tell asylum seekers there is no space for them;

10

b. CBP officials tell asylum seekers that the policies have changed

11

and that they no longer qualify for asylum;

12

c. CBP officials threaten to call Mexican immigration authorities

13

to remove asylum seekers from the POEs;

14

d. CBP officials threaten asylum seekers with prolonged detention

15

in the U.S. if they pursue their asylum claims;

16

e. CBP officials threaten physical force to remove asylum seekers

17

from the POEs;

18

f. CBP officials forcibly remove asylum seekers from the POEs;

19

g. CBP officials tell asylum seekers to go away;

20

h. CBP officials tell asylum seekers that they must coordinate with

21

Mexican immigration authorities in order to be processed;

22

i. CBP officials, in coordination with Mexican officials and

23

agents, filter out asylum seekers who lack valid travel

24

documents;

25

j. CBP officials deny asylum seekers the right to apply for asylum

26

at certain POEs; and

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

55

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3883 Page 59 of 105

1

k. CBP places officials, and sometimes semi-permanent

2

structures, at the middle of international bridges to pre-screen

3

migrants.

4

112. From October 2016 through the present, the Project in Dilley, which

5 provides pro bono legal services to mothers and children detained at the South

6 Texas Family Residential Center in Dilley, Texas, has identified more than 100

7 asylum-seeking mothers who were turned back by CBP officials at POEs along the

8 U.S.-Mexico border, including POEs in San Ysidro, California; Calexico,

9 California; San Luis, Arizona; Nogales, Arizona; El Paso, Texas; Del Rio, Texas;

10 Eagle Pass, Texas; Laredo, Texas; Roma, Texas; McAllen, Texas; Los Indios,

11 Texas; and Brownsville, Texas. The Project in Dilley has documented the

12 following conduct:

13

a. CBP officials tell asylum seekers that asylum law is no longer

14

in effect;

15

b. CBP officials tell asylum seekers that they have orders to send

16

away everyone who is seeking asylum;

17

c. CBP officials tell asylum seekers that the port of entry is full

18

and that they must wait to be processed, causing some asylum

19

seekers to wait days or weeks without access to shelter, food,

20

water, or bathrooms;

21

d. CBP officials threaten to deport asylum seekers to their home

22

countries; and

23

e. CBP officials use physical force to remove asylum seekers from

24

POEs, including by handcuffing them, throwing them to the

25

ground, shoving them and dragging them out of the POEs.

26

113. Since December 2015, representatives of Plaintiff Al Otro Lado have

27 accompanied more than 160 asylum seekers to the San Ysidro POE. Several

28 representatives have witnessed firsthand and/or otherwise documented the tactics

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

56

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3884 Page 60 of 105

1 employed by CBP to prevent asylum seekers from accessing the U.S. asylum

2 process. Al Otro Lado representatives have documented the following conduct:

3

a. CBP officials tell asylum seekers they have to apply for asylum

4

at the U.S. Consulate in Mexico or the U.S. Embassy in their

5

home countries;

6

b. CBP officials tell asylum seekers that they must first obtain a

7

“ticket” from Mexican immigration in order to seek asylum;

8

c. CBP officials tell asylum seekers that they are not processing

9

asylum seekers at that POE and they must go to another POE to

10

be processed;

11

d. CBP officials tell asylum seekers that they cannot seek asylum

12

at that time and must be put on a waiting list;

13

e. CBP officials require asylum seekers to register with migrant

14

shelters in Mexico which control the flow of asylum seekers to

15

the POEs;

16

f. CBP officials tell asylum seekers that they do not qualify for

17

asylum;

18

g. CBP officials coerce asylum seekers into withdrawing their

19

asylum claims, including by threatening that they will be

20

deported if they do not do so;

21

h. CBP officials threaten asylum seekers with forced separation

22

from their children, prolonged detention, and eventual

23

deportation;

24

i. CBP officials subject asylum seekers to verbal abuse and

25

degradation during the inspection process;

26

j. CBP officials ask asylum seekers to present paperwork they are

27

not required to present; and

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

57

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3885 Page 61 of 105

1

k. CBP officials threaten U.S. attorneys attempting to assist

2

asylum seekers with ultra vires removal to Mexico.

3

114. On January 13, 2017, various non-governmental organizations

4 submitted an administrative complaint to DHS’ Office for Civil Rights and Civil

5 Liberties (“CRCL”) and Office of Inspector General (“OIG”).83 The

6 administrative complaint provided specific examples of CBP turning back asylum

7 seekers at POEs along the U.S.-Mexico border and urged CRCL and OIG to

8 conduct a prompt and thorough investigation into this illegal practice and take

9 swift corrective action.

10

115. Meanwhile, Defendants’ illegal turnbacks continue. In fact, as

11 previously noted, CBP has acknowledged its Turnback Policy in sworn testimony

12 before Congress.84

13 E. Defendants’ Policy and Practices Have Denied Each of the Class

14

Plaintiffs Access to the Asylum Process

15 Plaintiff Abigail Doe

16

116. Abigail is a native and citizen of Mexico. She is the mother of two

17 children under the age of ten, with whom she previously lived in Central Mexico.

18

19

20 83 See American Immigration Council, Complaint Re: U.S. Customs and Border

21

Protection’s Systemic Denial of Entry to Asylum Seekers at Ports of Entry on U.S.-Mexico Border, 1-2 (Jan. 13, 2017),

22 https://www.americanimmigrationcouncil.org/sites/default/files/general_litigati

23

on/cbp_systemic_denial_of_entry_to_asylum_seekers_advocacy_document.pdf .

24 84 Hearing on the Immigration and Customs Enforcement and Customs and

25

Border Protection F.Y. 2018 Budgets, Before the Subcomm. on Homeland Sec. of the H. Appropriations Comm., 115th Cong. (June 13, 2017),

26 https://www.dhs.gov/news/2017/06/13/written-testimony-cbp-house-

27

appropriations-subcommittee-homeland-security-hearing (statement of John Wagner, Executive Assistant Comm’r for CBP’s Office of Field Operations).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

58

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3886 Page 62 of 105

1 In May 2017, Abigail’s husband disappeared after he refused to allow drug cartel

2 members to use his tractor-trailer to transport drugs.

3

117. When Abigail reported her husband’s disappearance to governmental

4 authorities, members of the drug cartel abducted her, held her at gunpoint, and

5 threatened to kill her and her children if she continued to investigate her husband’s

6 disappearance. One cartel member told Abigail that she had to leave if she wanted

7 to live. Fearing for her life, Abigail fled to Tijuana with her children to seek

8 asylum in the United States.

9

118. After arriving in Tijuana, Abigail and her children immediately sought

10 access to the asylum process by presenting themselves at the San Ysidro POE. At

11 the POE, Abigail informed CBP officials of her intent to apply for asylum and her

12 fear of returning to Mexico. CBP officials repeatedly misinformed Abigail that she

13 did not qualify for asylum. One CBP official threatened that her children would be

14 taken away from her if they allowed her to cross the border and again misinformed

15 her that only the Mexican government could help her.

16

119. CBP officials coerced Abigail into signing a document in English

17 which she could not read and did not understand. The document stated that she did

18 not have a fear of returning to Mexico and was withdrawing her application for

19 admission. CBP officials then instructed Abigail to say that she had agreed to

20 accept the assistance of the Mexican government and used a video camera to

21 record her statement. A CBP official then took Abigail and her children back to

22 Mexico and left them to fend for themselves.

23

120. The statements CBP coercively obtained from Abigail were and are

24 still false; Abigail does fear returning to and staying in Mexico and believes

25 seeking assistance from the Mexican government would be futile.

26

121. Following the filing of the initial Complaint in this case, Defendants

27 made arrangements to facilitate the entry of Abigail and her children into the

28 United States.

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

59

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3887 Page 63 of 105

1 Plaintiff Beatrice Doe

2

122. Beatrice is a native and citizen of Mexico. In May 2017, Beatrice fled

3 her hometown in Mexico with her three children, ages seven, eleven and fifteen,

4 and her nephew. Beatrice’s nephew was targeted by the Zetas, a Mexican drug

5 cartel that controls most of Southern Mexico, for failing to pay a fee that the Zetas

6 demanded from all individuals who worked in the market. The Zetas threatened to

7 kill Beatrice’s nephew and to harm his family if he did not pay the fees. The cartel

8 also pressured Beatrice’s nephew to join their forces and threatened to increase the

9 fee if he refused. On two occasions when Beatrice’s nephew failed to pay the fees,

10 the Zetas beat him up.

11

123. Beatrice herself suffered severe domestic violence at the hands of her

12 husband. In May 2017, she reported his abuse to two government agencies. When

13 Mexican government officials subsequently requested that Beatrice’s husband

14 meet with them, he responded that he would continue to do what he wanted with

15 Beatrice and his children. Terrified, Beatrice left their house the same day.

16

124. Beatrice fled with her children and nephew and traveled to Tijuana in

17 order to seek access to the asylum process in the United States. Initially, Beatrice

18 and her family sought access to the asylum process by presenting themselves at the

19 Otay Mesa POE. When Beatrice expressed their intent to seek asylum, a CBP

20 official told her that asylum-related services were not provided at that port, and

21 directed her to go to the San Ysidro POE. Beatrice and her family then attempted

22 twice to seek access to the asylum process at the San Ysidro POE, but CBP

23 officials turned them away both times.

24

125. The first time Beatrice and her family presented themselves at the San

25 Ysidro POE, she explained that their lives were at risk in Mexico and that she was

26 afraid of her husband. CBP officials misinformed her that the U.S. government

27 had no obligation to help her or her family, that they did not have a right to enter

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

60

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3888 Page 64 of 105

1 the United States because they were not born there, and that she should seek help

2 from the Mexican government.

3

126. Another CBP official then threatened to take Beatrice’s nephew away

4 from her and to put her in jail if she refused to sign an English document which she

5 did not understand. Believing that she had no other option, she signed the

6 document. CBP officials then escorted Beatrice and her family out of the POE.

7

127. The statements CBP coercively obtained from Beatrice were and are

8 still false; Beatrice and her children fear returning to and staying in Mexico.

9

128. The next day, Beatrice and her family returned to seek access to the

10 asylum process by presenting themselves at the San Ysidro POE. A CBP official

11 who recognized Beatrice from the day before misinformed her that she had no right

12 to enter the United States or seek asylum, and that she would be put in jail for three

13 years if she returned to the POE. After another CBP official separately threatened

14 to transfer Beatrice’s nephew to Mexican authorities and return him to Southern

15 Mexico, CBP officials again escorted Beatrice and her family out of the San

16 Ysidro POE.

17

129. Following the filing of the initial Complaint in this case, Defendants

18 made arrangements to facilitate the entry of Beatrice and her children into the

19 United States.

20 Plaintiff Carolina Doe

21

130. Carolina is a native and citizen of Mexico. In May 2017, Carolina

22 fled her hometown in Mexico with her three children, ages nine, fifteen and

23 eighteen, after her brother-in-law, a high-ranking police official, was kidnapped,

24 tortured and killed by members of a drug trafficking cartel. His dismembered body

25 was found in garbage bags in a cemetery. Carolina’s husband witnessed the

26 kidnapping and showed Carolina a picture of one of the men who was involved.

27 Drug cartel members threatened Carolina’s husband after the murder, and Carolina

28 and her husband saw the van used in the kidnapping drive by their house twice.

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

61

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3889 Page 65 of 105

1 Two men followed Carolina and her daughters on her way home from work, and

2 several men came to their home at night. Carolina was terrified and hid with her

3 daughters in the bathroom because she feared for her life and the lives of her

4 daughters.

5

131. In May 2017, Carolina fled in the middle of the night with her

6 daughters and traveled to Tijuana in order to seek access to the asylum process in

7 the United States. Carolina and her daughters presented themselves at the San

8 Ysidro POE, and Carolina explained that they were afraid of returning to Mexico

9 and wanted to seek asylum. CBP officials locked them in a room overnight at the

10 San Ysidro POE. In the morning, a CBP official told Carolina that she would not

11 be granted asylum and misinformed her that the protection she was seeking in the

12 United States could be provided by the Mexican authorities. The CBP official

13 threatened to take away Carolina’s fifteen-year-old U.S. citizen daughter and put

14 her in foster care, and told Carolina that if she did not want her daughter taken

15 away from her, then she had to make a statement on video that she was not afraid

16 of returning to Mexico

17

132. The CBP officials coerced Carolina into recanting her fear on video.

18 Carolina initially did not respond as the CBP officials instructed her to do because

19 the responses they told her to say were not true. Carolina was afraid and wanted to

20 respond that she was very scared to return to Mexico. One of the CBP officials

21 repeated that the only way Carolina and her daughters would be able to leave

22 voluntarily without her U.S. citizen daughter being taken away from her was if

23 Carolina stated on video that she was not scared. Having been locked in a room

24 overnight, Carolina was tired and scared and felt like she was in jail. The CBP

25 officials continued to coerce her until she finally did what they told her to do,

26 believing she had no choice.

27

133. The CBP officials also coerced Carolina into signing a document in

28 English which she could not read and did not understand. The document stated

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

62

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3890 Page 66 of 105

1 that she did not have a fear of returning to Mexico and was withdrawing her

2 application for admission. The statements CBP coercively obtained from Carolina

3 were and are still false; Carolina does fear returning to and staying in Mexico.

4

134. Several days after CBP turned back Carolina and her daughters at the

5 POE, Carolina made arrangements for her U.S. citizen daughter to cross into the

6 United States. Following the filing of the initial Complaint in this case,

7 Defendants made arrangements to facilitate the entry of Carolina and her other

8 children into the United States.

9 Plaintiff Dinora Doe

10

135. Dinora is a native and citizen of Honduras. MS-13 gang members

11 repeatedly threatened to kill Dinora and her then-seventeen-year-old daughter if

12 they did not leave their house. After receiving the third threat, they fled to another

13 city where they remained in hiding.

14

136. When Dinora and her daughter subsequently returned home, three

15 MS-13 members held them captive for three days and repeatedly raped each of

16 them in front of the other.

17

137. When Dinora and her daughter finally escaped, they fled to a shelter

18 in Mexico. However, after being threatened by MS-13 gang members again in

19 Mexico, they knew they had to leave.

20

138. On three separate occasions in August 2016, Dinora and her daughter

21 sought access to the asylum process by presenting themselves at the Otay Mesa

22 POE and expressing their intent to seek asylum in the United States. Each time,

23 CBP officials turned them away

24

139. During Dinora’s first attempt, CBP officials misinformed her that

25 there was no asylum in the United States and escorted Dinora and her daughter

26 outside the POE.

27

140. During her second attempt later the same day, one CBP official

28 misinformed Dinora that there was no asylum available in the United States for

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

63

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3891 Page 67 of 105

1 Central Americans and that if they returned to the POE, they would be handed over

2 to Mexican authorities and deported to Honduras.

3

141. During her third attempt the next morning, a CBP official

4 misinformed Dinora that she could pass through the POE, but would have to leave

5 her daughter behind. When Dinora insisted that she and her daughter had a right to

6 apply for asylum, CBP officials escorted them out of the POE.

7

142. Following the filing of the initial Complaint in this case, Defendants

8 made arrangements to facilitate the entry of Dinora and her daughter into the

9 United States.

10 Plaintiff Ingrid Doe

11

143. Ingrid is a native and citizen of Honduras. Ingrid has two children

12 and is pregnant and expecting her third child in September.

13

144. 18th Street gang members murdered Ingrid’s mother and three

14 siblings. They also threatened to kill Ingrid.

15

145. For several years, Ingrid and her children were subject to severe abuse

16 by her partner and the father of her son and the child that she is expecting. Ingrid’s

17 partner regularly raped Ingrid, sometimes in front of her children. He would also

18 burn and beat Ingrid. One day, Ingrid’s partner put a gun to Ingrid’s head and

19 threatened to kill her.

20

146. In June 2017, Ingrid fled with her children to Tijuana, where they

21 sought access to the asylum process by presenting themselves at the Otay Mesa

22 POE.

23

147. When they arrived at the Otay Mesa POE, Ingrid approached CBP

24 officials and expressed her intent to seek asylum. The CBP officials misinformed

25 Ingrid that they could not help her at the Otay Mesa POE and that she must go to

26 the San Ysidro POE.

27

148. Ingrid immediately went to the San Ysidro POE with her children to

28 present herself and seek access to the asylum process. She approached several

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

64

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3892 Page 68 of 105

1 CBP officials, and expressed her intent to seek asylum. One of the officials

2 misinformed Ingrid that there was no asylum and that she could not pass through

3 the POE because she did not have any documents. Ingrid again stated that she

4 wanted to seek asylum and that she could not go back to Honduras because she and

5 her children would be killed. The CBP official responded that there was a new law

6 in the United States that meant that there was no more asylum. Another CBP

7 official then escorted Ingrid and her children out of the port.

8

149. Following the filing of the initial Complaint in this case, Defendants

9 made arrangements to facilitate the entry of Ingrid and her children into the United

10 States.

11 Plaintiff Roberto Doe

12

150. Roberto is a native and citizen of Nicaragua. Roberto fled Nicaragua

13 in early September 2018 after receiving targeted threats of violence from the

14 Nicaraguan government and paramilitaries allied with the government.

15

151. Roberto traveled through Mexico and arrived in Reynosa, Tamaulipas

16 on September 29, 2018. On October 2, 2018, he sought access to the asylum

17 process by presenting himself at the Hidalgo POE. Roberto was part of a group of

18 six Nicaraguan nationals and one Honduran who were waiting in line. The group

19 approached the U.S. immigration officials who were standing at the middle point

20 of the bridge that divides the United States from Mexico, and told the U.S. officials

21 that they wanted to seek asylum in the United States.

22

152. One of the U.S. officials responded that he had to talk to his office and

23 made a call on his radio in English. He then directed Roberto and the rest of the

24 group to stand to one side. After that, the U.S. official informed the group that

25 they could not enter the POE, which was “all full.” The U.S. official indicated that

26 the group might have to wait for “hours, days, or weeks” before he could seek

27 asylum.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

65

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3893 Page 69 of 105

1

153. A short while later, a female U.S. official made another call, and

2 Roberto heard her say in Spanish that someone would come and pick up some

3 people. A few minutes later, a Mexican immigration official arrived and asked to

4 see the group members’ papers. After Roberto and the rest of the group handed

5 over their papers, the Mexican official instructed them to come with him. One of

6 the Nicaraguans asked the U.S. official to help them, saying that the Mexican

7 immigration officials would deport them. The U.S. official responded that he did

8 not care and did nothing.

9

154. The Mexican immigration official took Roberto and the rest of the

10 group to the Mexican side of the bridge, where he left them in an office with

11 Mexican immigration officials. While the group waited, various officials spoke on

12 the phone. Roberto heard one of the officials say that they needed seven or eight

13 spaces for the next deportation transport.

14

155. Eventually, the Mexican officials confiscated the asylum seekers’

15 phones and escorted them to a small bathroom, where they were forced to wait,

16 crowded together, for about an hour. While they were waiting, a Mexican official

17 entered the bathroom and told them that they did not have the right to apply for

18 asylum in the United States, and that it was a crime to try to do so. The Mexican

19 official indicated that he was in communication with the U.S. authorities and that if

20 they came back to the bridge and attempted to seek asylum, the U.S. officials

21 would turn them over to the Mexican authorities and they would be deported to

22 Nicaragua. The Mexican officials subsequently returned their papers and directed

23 them to leave.

24

156. Roberto would like to return immediately to the Hidalgo POE to seek

25 access to the asylum process, but based on his past experience with CBP’s

26 practices at the U.S.-Mexico border, he fears that he would be turned away again

27 and deported to Nicaragua. Roberto fears for his life in Reynosa.

28 Plaintiff Maria Doe

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

66

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3894 Page 70 of 105

1

157. Maria is a citizen of Guatemala and a permanent resident of Mexico.

2 She was married to a Mexican man and has two children who were born in

3 Mexico.

4

158. Maria lived in Chiapas, Mexico for seven years with her husband and

5 children. Maria left her husband, who was very abusive toward her and her

6 children, after learning that he was involved with cartels. After she left, the cartels

7 began searching for Maria and her children. For about two years, Maria and her

8 children searched for a safe place to live, first in Guatemala and then in Mexico,

9 but the cartels invariably found them and went after them. Maria’s ex-husband

10 remains involved with cartels and continues to threaten Maria and her children.

11

159. In September 2018, Maria traveled with her children to Nuevo

12 Laredo, Mexico. On September 10, 2018, Maria and her children sought access to

13 the asylum process by presenting themselves at the Laredo POE around 8:00 p.m.

14 As they approached the midpoint of the bridge to the United States, CBP officials

15 stopped Maria and her children and asked to see their identification. Maria told the

16 U.S. officials that she wanted to seek asylum in the United States. The U.S.

17 officials told her to wait on the Mexican side of the bridge until they called her.

18

160. After a few minutes, two Mexican officials walked toward her from

19 the Mexican side of the bridge. The Mexican officials told Maria that the United

20 States officials would not let her cross the bridge, but that they could help if she

21 paid them $1,500 for herself and her children. Maria did not have money to pay

22 the bribe, and instead traveled with her children to Reynosa, Mexico, to try to cross

23 a different bridge to the United States.

24

161. After Maria arrived in Reynosa, she did not feel safe going to the

25 bridge immediately. While staying at a shelter in Reynosa, Maria met an

26 American lawyer who agreed to accompany her to the Hidalgo POE.

27

162. On September 19, 2018, Maria and her children, accompanied by the

28 American lawyer, sought access to the asylum process by presenting themselves at

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

67

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3895 Page 71 of 105

1 the Hidalgo POE. They walked up to the bridge in Reynosa. They were at the

2 turnstile at the entrance to the bridge and had only taken a few steps when a

3 Mexican immigration official demanded to see their identification documents.

4 After Maria gave him their documents, the Mexican official started screaming that

5 Maria was abusing her Mexican residence by trying to cross the bridge to seek

6 asylum. He warned her that he would rip up her identity documents if she did not

7 leave the bridge. Although Maria and her lawyer maintained that she had the right

8 to seek asylum, she and her children left the bridge for fear that the Mexican

9 official would hurt them or destroy their documents and deport them to Guatemala.

10

163. Maria and her children returned to the shelter for two weeks before

11 attempting to seek access to the asylum process again. On October 9, 2018, Maria

12 and her children, again accompanied by the American lawyer, sought access to the

13 asylum process by presenting themselves at the Hidalgo POE for the second time.

14 When they arrived at the middle of the bridge, Maria started to tell the U.S.

15 officials that she sought asylum. At that moment, however, a Mexican

16 immigration officer grabbed Maria’s arm and demanded to see her papers. Maria

17 told the Mexican officer that she was a legal resident of Mexico with two Mexican

18 children and showed him her papers. The officer told her that the Mexican

19 residency permit did not allow her to go to the United States, and he ordered her to

20 go to a station on the Mexican side of the border. Although Maria and the lawyer

21 insisted that Maria had a right to seek asylum in the United States, the Mexican

22 official called for backup.

23

164. Meanwhile, the American lawyer explained to the U.S. officials

24 standing at the bridge that Maria wanted to seek asylum and that she and her

25 children were in danger. The U.S. officials said that what was happening had

26 nothing to do with them.

27

165. The Mexican officials took Maria to an office at the foot of the bridge

28 and separated her from her children and the lawyer. They took Maria into a small

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

68

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3896 Page 72 of 105

1 room and told her that if she came back to the Hidalgo POE, they would revoke her

2 Mexican residency.

3

166. Maria fears for her life in Mexico and wants to return to a POE to

4 seek access to the asylum process, but based on her past experiences with CBP’s

5 practices at the U.S-Mexico border, she fears that she and her children would be

6 turned away again or deported to Guatemala. Maria and her children fear for their

7 lives in Mexico. After they arrived in Reynosa, they received multiple phone calls

8 from blocked numbers, which Maria believes are from cartel members trying to

9 track her location. On or around October 8, 2018, Maria’s ex-husband called her

10 directly and threatened her.

11 Plaintiffs Úrsula Doe and Juan Doe

12

167. Úrsula and Juan are natives and citizens of Honduras. They are a

13 married couple with two children. They left Honduras with their children in

14 August 2018 out of fear for their lives and the lives of their children.

15

168. Úrsula saw members of a Honduran gang kill her brother in 2014.

16 The gang knows she witnessed the murder and have repeatedly warned Úrsula and

17 Juan of harm to their family. Gang members have called the family, gone to their

18 house, and threatened to hurt their children.

19

169. Úrsula and Juan fled Honduras with their children to seek access to

20 the asylum process in the United States. They traveled to Mexico, where they

21 were robbed at gunpoint by three men who took all their money. Eventually they

22 made it to Nuevo Laredo, Mexico, in late September 2018.

23

170. The day after they arrived in Nuevo Laredo, Úrsula, Juan, and their

24 children went to the international bridge around 2:00 pm and sought access to the

25 asylum process by presenting themselves at the Laredo POE. When they arrived at

26 the middle of the bridge, U.S. officials told them they could not pass because the

27 port was closed. Although Juan insisted that they wanted to request asylum, one of

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

69

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3897 Page 73 of 105

1 the officials said that they had to wait their turn, the port was closed, and they

2 could not pass.

3

171. Úrsula, Juan, and their children subsequently traveled to Reynosa to

4 seek access to the asylum process by presenting themselves at the Hidalgo POE.

5 They went to the bridge in Reynosa with their children around 5:00 a.m. Shortly

6 after they passed through the turnstile, a Mexican official grabbed their documents

7 and ordered them to walk with him back to Mexico.

8

172. The Mexican official took Úrsula and Juan to a waiting room. A

9 different Mexican official took Juan aside and warned him that he and his family

10 could be deported. Úrsula, Juan, and their children were forced to wait all day

11 without much food or water. Around 6:00 or 7:00 pm, they were allowed to leave.

12

173. Úrsula and Juan want to seek access to the asylum process in the

13 United States, but based on their past experience with CBP’s practice at the U.S.-

14 Mexico border, they fear that they would be turned away again or deported to

15 Honduras. They fear for their lives in Reynosa, but do not have money to go to

16 another port.

17 Plaintiff Victoria Doe

18

174. Victoria is a sixteen-year old female native and citizen of Honduras.

19 She is an unaccompanied minor and the mother of a one-year old child. In 2017,

20 members of the infamous 18th Street gang held her at gunpoint and threatened her

21 with death if she did not submit herself sexually to the leader of the gang. Fearful

22 for her life, she was able to flee to a separate part of Honduras. Shortly thereafter,

23 the very same gang members followed her and repeated the same threats,

24 demanding that she submit and become the property of the gang.

25

175. Victoria came to Tijuana with a refugee caravan in April 2018,

26 intending to seek asylum in the United States. She lived in a migrant shelter for

27 four months but was in constant fear of murder and other crime and was threatened

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

70

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3898 Page 74 of 105

1 by male strangers on a number of occasions. She was also fearful that she would

2 be forced into sex trafficking as the 18th Street Gang had attempted.

3

176. On October 8, 2018, Victoria sought to access the asylum process by

4 presenting herself at the San Ysidro POE, despite her fears that she and her son

5 would be subject to the U.S. child separation policy. When she arrived, she

6 informed the CBP officials of her intent to apply for asylum and her fear of

7 returning to Honduras. In response, the CBP official told her that she could not

8 apply for asylum at that time, and that she had to speak with a Mexican officer

9 instead. The CBP official did not give further instruction as to which Mexican

10 officer or where to locate the officer.

11

177. Victoria would like to return immediately to seek access to the asylum

12 process by presenting herself at the San Ysidro POE, but based on her past

13 experience with CBP’s practice at the U.S.-Mexico border, she understands that

14 she would likely be turned away again. Victoria is fearful of remaining in Tijuana,

15 for her life and the life of her son. She cannot remain and believes seeking

16 assistance from the Mexican government would be futile.

17 Plaintiff Bianca Doe

18

178. Bianca is a native and citizen of Honduras. She is a transgender

19 woman. Bianca suffered physical violence and extreme discrimination while in

20 Honduras because she is transgender. She was targeted by the infamous MS-13

21 gang who tried to recruit her. Rather than join, and fearing for her life, she fled

22 Honduras on April 2, 2018.

23

179. Bianca arrived in Tapachula, Mexico and then later Mexico City,

24 where she faced much of the same harassment and discrimination, including by

25 police and federal officials. Eventually she reached Tijuana on September 19,

26 2018. She proceeded to seek access to the asylum process by presenting herself at

27 the San Ysidro POE. CBP officials informed her that she could not apply for

28 asylum because they were “full.” Instead, they told her to seek assistance from

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

71

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3899 Page 75 of 105

1 Mexican workers in white shirts. She did not see any and returned to a local

2 shelter where she was staying.

3

180. Bianca returned the following day to seek access to the asylum

4 process at the San Ysidro POE. She identified the Mexican workers in white shirts

5 who informed her that they handled the asylum “waitlist” process. She was given

6 a number, “919” which reflected her place on the waitlist. The Mexican workers

7 told her that when her number was called she would be able proceed to the POE.

8 She was informed that she would have to wait multiple weeks.

9

181. Desperate for her life, her safety, and with little resources, on or about

10 September 28th, 2018, at 1:00 a.m. Bianca approached the U.S.-Mexico border

11 fence abutting the beach and climbed over the fence into U.S. territory. Eventually

12 a U.S. Border Patrol guard spotted her on U.S. soil and demanded that she climb

13 back over the fence and into Mexico or else he would call the Mexican authorities.

14

182. On October 8, 2018, Bianca attempted once again to seek access to

15 the asylum process by presenting herself at the San Ysidro POE. At the POE CBP

16 official “Soto” denied Bianca’s request to seek asylum, again informing her that

17 they were “full.” He instructed Bianca to stand aside and wait for a Mexican

18 official. No Mexican official came and she left.

19

183. Bianca would like to return immediately to seek access to the asylum

20 process by presenting herself at the San Ysidro POE, but based on her past

21 experience with CBP’s practice at the U.S.-Mexico border, she understands that

22 she would likely be turned away again. Bianca is fearful of remaining in Tijuana.

23 She cannot remain and believes seeking assistance from the Mexican government

24 would be futile.

25 Plaintiff Emiliana Doe

26

184. Emiliana is a native and citizen of Honduras. She is a transgender

27 woman. She was threatened with violence and death by transnational drug dealers

28 and gang members in Honduras. She was raped on multiple occasions by police

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

72

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3900 Page 76 of 105

1 officers. In May 2017, she was kidnapped and held for three days, and eventually

2 thrown out of a moving car. In April 2018, she was abducted by four drug dealers,

3 beaten for over six hours, pistol whipped, thrown out of a moving truck, and

4 ordered to sell drugs. She was refused medical attention because she is

5 transgender.

6

185. Emiliana fled Honduras on June 5, 2018 and embarked on the arduous

7 journey through Mexico, where she was again repeatedly raped and threatened

8 with death. She eventually reached Tijuana in September 2018. Emiliana intended

9 to seek access to the asylum process in the United States, but was unsure how. She

10 spoke with a stranger who was also attempting to apply for asylum who informed

11 her that she needed to get on the “waiting list.” She proceeded to the seek access

12 to the asylum process by going to the San Ysidro POE and speaking with two

13 women who gave her a number, “1014,” which reflected her place on a waitlist.

14 They told Emiliana to come back in six weeks.

15

186. Given the dangers in Tijuana, particularly to transgender women,

16 Emiliana could not wait six weeks and instead on October 8, 2018, she sought

17 access to the asylum process by presenting herself at the San Ysidro POE to ask for

18 asylum. When she informed a CBP official that she wished to seek asylum in the

19 United States, he responded that she could not because they were “full,” and

20 instead ordered her to wait off to the side until a Mexican immigration official

21 could come over. No official ever came.

22

187. Emiliana would like to return immediately to seek access to the

23 asylum process by presenting herself at the San Ysidro POE, but based on her past

24 experience with CBP’s practice at the U.S.-Mexico border, she understands that

25 she would likely be turned away again. Emiliana is fearful of remaining in

26 Tijuana. She cannot remain and believes seeking assistance from the Mexican

27 government would be futile.

28 Plaintiff César Doe

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

73

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3901 Page 77 of 105

1

188. César is a native and citizen of Honduras. Earlier in 2018, the 18th

2 Street gang demanded that he join the gang at threat of death. He refused. The

3 gang later kidnapped him and kept him in an abandoned house in the mountains.

4 He was able to escape, and fled Honduras the next day.

5

189. César reached Tijuana on August 1, 2018 with the intention of seeking

6 access to the asylum process in the United States. César approached the plaza

7 immediately before the San Ysidro POE where he was approached by members of

8 “Grupo Beta.” Grupo Beta informed him that he would need to go through them to

9 apply for asylum. They explained that they would put him on a list and give him a

10 number, and only when his number was called could he apply for asylum.

11

190. Soon thereafter, Grupo Beta began racially segregating individuals

12 into three groups: Africans, Central Americans, and Mexicans. They placed César

13 in the Central America group and then Mexican officials arrested him and placed

14 him into detention. César was detained for twelve days and Mexican officials

15 threatened to deport him on multiple occasions. A local shelter eventually secured

16 César’s release from detention.

17

191. Continuing to fear for his life in Tijuana, César returned to the San

18 Ysidro POE to seek access to the asylum process, and he spoke with Grupo

19 Beta. He was eventually placed on the waitlist and given number “740.” After

20 waiting a few weeks, César sought access to the asylum process by presenting

21 himself at the San Ysidro POE with two staff members from Al Otro Lado. César

22 informed CBP officials that he intended to seek asylum in the United States and

23 that he feared return to his home country. The CBP officials refused to let him

24 pass or seek asylum.

25

192. After waiting another few weeks, in September 2018 César sought

26 access to the asylum process once again by presenting himself at the San Ysidro

27 POE. Members of Grupo Beta intercepted him and threatened to call Mexican

28 immigration officials and child protective services on him. The individuals pushed

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

74

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3902 Page 78 of 105

1 César toward the corner the plaza near the POE and called Mexican immigration.

2 A staff member from Al Otro Lado escorted César back to the shelter.

3

193. César would like to return immediately to seek access to the asylum

4 process by presenting himself at the San Ysidro POE, but based on his past

5 experience with CBP’s practice at the U.S.-Mexico border, he understands that he

6 would likely be turned away again. César is fearful of remaining in Tijuana. He

7 cannot remain and believes seeking assistance from the Mexican government

8 would be futile.

9

V. LEGAL BACKGROUND

10

A. U.S. Law Requires that Asylum Seekers Who Present Themselves

11

at POEs Have Meaningful Access to the Asylum Process

12

194. U.S. law requires CBP to give individuals who present themselves at

13 POEs and express a desire to apply for asylum or a fear of persecution in their

14 home countries the opportunity to seek protection in the United States without

15 unreasonable delay.

16

195. Specifically, the Immigration and Nationality Act (“INA”) and its

17 implementing regulations set forth a variety of ways in which such individuals may

18 seek protection in the United States. See, e.g., 8 U.S.C. § 1157 (admission of

19 refugees processed overseas); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1231(b)(3)

20 (restriction of removal to a country where individual’s life or freedom would be

21 threatened); 8 C.F.R. §§ 208.16-18 (protection under the Convention Against

22 Torture).

23

196. The INA provides that any noncitizen “who is physically present in

24 the United States or who arrives in the United States” has a statutory right to apply

25 for asylum, irrespective of such individual’s status. 8 U.S.C. § 1158(a)(1). The

26 INA also specifies processes that must be followed when an individual states a

27 desire to seek asylum or expresses a fear of returning to his or her home country.

28 See 8 U.S.C. § 1158(d)(1) (“The Attorney General shall establish a procedure for

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

75

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3903 Page 79 of 105

1 the consideration of asylum applications filed [by individuals physically present in

2 the United States or who arrive in the United States].”). Under the INA, CBP must

3 either:

4

a. Refer the asylum seeker for a credible fear interview (see 8

5

U.S.C. § 1225(b)(1));

6

b. Place the asylum seeker directly into regular removal

7

proceedings by issuing a Notice to Appear (“NTA”), which will

8

then allow the asylum seeker to pursue his or her asylum claim

9

before an immigration judge (see 8 U.S.C. §§ 1225(b)(2), 1229,

10

1229a); or

11

c. Parole the asylum seeker temporarily into the United States for

12

urgent humanitarian reasons or significant public benefit (see 8

13

U.S.C. § 1182(d)(5)(A).

14

197. The U.S. government recognized that the duty to allow a noncitizen

15 access to the asylum process is “not discretionary.” See, e.g., Federal Defendant’s

16 Reply Brief in Support of Motion for Summary Judgment and Dismissal for Lack

17 of Jurisdiction, cited in Munyua v. United States, No. 03-4538, 2005 U.S. Dist.

18 LEXIS 11499, at *16-19 (N.D. Cal. Jan. 10, 2005) (“[D]efendant acknowledges

19 that [the immigration officers] did not have the discretion to ignore a clear

20 expression of fear of return or to coerce an alien into withdrawing an application

21 for admission”).

22

198. CBP is responsible for the day-to-day operation of POEs along the

23 U.S.-Mexico border. CBP’s obligations include inspecting and processing

24 individuals who present themselves at POEs to enable them to pursue their claims

25 for asylum in the United States. CBP officials themselves are not authorized to

26 evaluate, grant or reject an individual’s asylum claim.

27

199. All noncitizens arriving at POEs along the U.S.-Mexico border must

28 be inspected by CBP officials. See 8 U.S.C. § 1225(a)(3) (“All [noncitizens] . . .

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

76

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3904 Page 80 of 105

1 who are applicants for admission or otherwise seeking admission . . . shall be

2 inspected by immigration officers.”) (emphasis added). During inspection, CBP

3 officials must determine whether a noncitizen may be admitted to the United

4 States. See 8 U.S.C. § 1182(a) (specifying grounds of inadmissibility). In order to

5 make this determination, CBP scrutinizes an individual’s entry documents. See 8

6 U.S.C. § 1181(a) (outlining documentation requirements for the admission of

7 noncitizens into the United States). Asylum seekers often flee their countries on

8 very short notice and thus frequently lack valid entry documents. Once a CBP

9 official makes a determination of inadmissibility, the individual becomes subject to

10 removal from the United States.

11

200. CBP officials must then place the noncitizen into either expedited

12 removal proceedings under 8 U.S.C. § 1225(b) or regular removal proceedings

13 under 8 U.S.C. § 1229.

14

201. Expedited removal proceedings involve a more streamlined process

15 than regular removal proceedings and are reserved for people apprehended at or

16 near the border. See 8 U.S.C. § 1225(b)(1)(A)(i) (permitting certain persons who

17 are seeking admission at the border to the United States to be expeditiously

18 removed without a full immigration judge hearing). However, Congress included

19 important safeguards in the expedited removal statute in an effort specifically to

20 protect asylum seekers.

21

202. The INA unequivocally states that if a noncitizen placed in expedited

22 removal proceedings “indicates either an intention to apply for asylum . . . or a fear

23 of persecution, the [CBP] officer shall refer the [noncitizen] for an interview by an

24 asylum officer.” 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added). The requirement

25 to refer an asylum seeker placed in expedited removal proceedings to an asylum

26 officer is mandatory.

27

203. Likewise, the applicable regulations promulgated under the INA

28 reinforce that if an individual in expedited removal proceedings asserts an intention

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

77

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3905 Page 81 of 105

1 to apply for asylum or a fear of persecution, then “the inspecting officer shall not

2 proceed further with removal of the [noncitizen] until the [noncitizen] has been

3 referred for an interview by an asylum officer.” 8 C.F.R. § 235.3(b)(4) (emphasis

4 added).

5

204. Importantly, CBP officials must read a form to noncitizens subject to

6 expedited removal advising them of their right to speak to an asylum officer if they

7 express a desire to apply for asylum or a fear of returning to their home countries.

8 See 8 C.F.R. § 235.3(b)(2)(i); DHS Form I-867A.

9

205. Affirming that the CBP officials themselves are not authorized to

10 adjudicate asylum claims, the regulations specifically charge asylum officers from

11 U.S. Citizenship and Immigration Services with making initial determinations as to

12 whether there is a “significant possibility” that an individual can establish

13 eligibility for asylum. See 8 C.F.R. § 235.3(b)(4); see also 8 U.S.C.

14 § 1225(b)(1)(B)(ii). This is because asylum officers are trained in the often

15 complicated and evolving law surrounding asylum, and thus are uniquely

16 positioned to conduct such interviews, which themselves require particular

17 interviewing and assessment skills as well as comprehension of the social and

18 political contexts from which asylum seekers flee. In fact, the INA specifically

19 defines “asylum officer” as an immigration officer who “has had professional

20 training in country conditions, asylum law, and interview techniques comparable to

21 that provided to full-time adjudicators of applications under section 1158.” 8

22 U.S.C. § 1225(b)(1)(E).

23

206. Applicants who establish that they have a “significant possibility” of

24 proving their eligibility for asylum receive positive credible fear determinations.

25 They are taken out of the expedited removal system altogether and placed into

26 regular removal proceedings, where they have the opportunity to submit an asylum

27 application, develop a full record before an Immigration Judge, appeal to the Board

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

78

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3906 Page 82 of 105

1 of Immigration Appeals, and seek judicial review of an adverse decision. 8 U.S.C.

2 § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 235.6(a)(1)(ii), (iii).

3

207. Alternatively, CBP officials may place noncitizens directly into

4 regular removal proceedings by issuing an NTA. 8 U.S.C. §§ 1225(b)(2),

5 1229(a)(1), 1229a. Once in regular removal proceedings, the asylum seeker can

6 submit an asylum application and must receive a full hearing before an

7 Immigration Judge, file an administrative appeal with the Board of Immigration

8 Appeals, and seek judicial review. 8 U.S.C. § 1229a(a)(1) (“An immigration judge

9 shall conduct proceedings for deciding the inadmissibility or deportability of an

10 alien.”).

11

208. At the discretion of the DHS Secretary, an individual may also be

12 temporarily paroled into the United States for urgent humanitarian reasons or

13 significant public benefit. When the purposes of such parole have been served, the

14 individual must be returned to the custody from which he was paroled, after which

15 his case will continue to be handled in the same manner as that of any other

16 applicant for admission to the United States. 8 U.S.C. § 1182(d)(5)(A).

17

209. Despite these prescribed procedures, CBP has implemented a policy

18 and regularly employs a variety of egregious practices (including those described

19 above) that have one unlawful result: directly or constructively depriving Class

20 Plaintiffs, and the asylum seekers they represent, of meaningful access to the

21 asylum process, and thereby violating their right to seek asylum under U.S. law.

22

210. Acknowledging the illegality of the Trump administration’s ongoing

23 pushbacks of asylum seekers at the border, the House Appropriations Committee

24 called on DHS in July 2018 to “ensure that the United States is meeting its legal

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

79

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3907 Page 83 of 105

1 obligations, to include reminding field officers and agents about CBP’s legal

2 responsibilities to ensure that asylum-seekers can enter at POES.”85

3

B. Defendants Have No Authority Under the INA to Turn Back a

4

Noncitizen Seeking Admission at a POE

5

211. CBP’s authority is limited to that granted by Congress in the INA.

6 Nothing in the INA authorizes Defendants, through their officers and employees,

7 to turn back a noncitizen who seeks admission at a POE.

8

212. When inspecting a noncitizen who arrives at a POE, CBP officials

9 must follow the procedures mandated by Congress in 8 U.S.C. § 1225. Pursuant to

10 this section, CBP officials are limited to the following possible actions with respect

11 to any arriving noncitizen who is not clearly and beyond a doubt entitled to be

12 admitted:

13

a. Place arriving noncitizens who are inadmissible under one of

14

two grounds specified by statute in expedited removal

15

proceedings pursuant to 8 U.S.C. § 1225(b)(1)(A)(i);

16

b. Refer any noncitizen placed in expedited removal proceedings

17

who expresses either an intent to apply for asylum or a fear of

18

persecution if returned to his or her home country to an asylum

19

officer for a credible fear interview pursuant to 8 U.S.C.

20

§§ 1225(b)(1)(A)(ii), 1225(b)(1)(B);

21

c. Place “other” arriving noncitizens (i.e., those who are not

22

placed in expedited removal proceedings under 8 U.S.C.

23

§ 1225(b)(1)(A) and who are neither crewmen nor stowaways)

24

25 85 House of Representatives Committee on Appropriations, Draft Report on DHS

26 Bill 2019 at 4,

27

https://docs.house.gov/meetings/AP/AP00/20180725/108623/HMKP-115AP00-20180725-SD004.pdf.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

80

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3908 Page 84 of 105

1

in removal proceedings under 8 U.S.C. § 1229a pursuant to 8

2

U.S.C. § 1225(b)(2);

3

d. Follow other removal procedures with respect to noncitizens

4

suspected of being inadmissible on terrorism or related security

5

grounds pursuant to 8 U.S.C. § 1225(c); or

6

e. Accept from the noncitizen a voluntary (i.e., non-coerced)

7

withdrawal of her application for admission pursuant to 8

8

U.S.C. § 1225(a)(4) and 8 C.F.R. § 235.4.

9

213. Defendants, through their officers, employees, and agents, act without

10 authority and in violation of the law when they directly deny an individual access

11 to the U.S. asylum process at a POE.

12

214. Defendants, through their officers, employees, and agents, act without

13 authority and in violation of the law when they constructively deny an individual’s

14 access to the asylum process by unreasonably delaying their ability to present

15 themselves at a POE.

16

215. Moreover, Defendants’ Turnback Policy is ultra vires.

17

C. Class Plaintiffs Are Entitled to Procedural Due Process Rights

18

Under the Fifth Amendment to the U.S. Constitution

19

216. The Due Process Clause of the Fifth Amendment to the U.S.

20 Constitution prohibits the federal government from depriving any person of “life,

21 liberty, or property, without due process of law.” U.S. Const. Amend. V. In

22 addition, where Congress has granted statutory rights and has directed an agency to

23 establish a procedure for providing such rights, the Constitution requires the

24 government to establish a fair procedure and to abide by that procedure. In the

25 asylum context, U.S. law mandates that asylum seekers be provided with such

26 process. Multiple courts have recognized that such procedural rights are critical in

27 the asylum context and can result in life or death decisions, because applicants

28 wrongly denied asylum can be subject to death or other serious harm in their home

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

81

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3909 Page 85 of 105

1 countries. See, e.g., Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (“The

2 basic procedural rights Congress intended to provide asylum applicants . . . are

3 particularly important because an applicant erroneously denied asylum could be

4 subject to death or persecution if forced to return to his or her home country.”).

5

217. The INA and its implementing regulations provide Class Plaintiffs

6 with the right to be processed at a POE and granted meaningful access to the

7 asylum process. See, e.g., 8 U.S.C. §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii),

8 1225(b)(1)(B), 1225(b)(2). By systematically turning away asylum seekers

9 presenting themselves at POEs along the U.S.-Mexico border or unreasonably

10 delaying their inspections—and thus directly or constructively denying them

11 access to the asylum process, Defendants have failed to comply with the due

12 process procedures for processing asylum seekers under the INA and its

13 implementing regulations.

14

D. The Non-Refoulement Doctrine Under International Law

15

Requires Implementation and Adherence to a Procedure to

16

Ensure Prompt Access to Asylum

17

218. The United States is obligated by a number of treaties and protocols to

18 adhere to the duty of non-refoulement – a duty that prohibits a country from

19 returning or expelling an individual to a country where he or she has a well-

20 founded fear of persecution and/or torture and that requires processes that ensure

21 fair and efficient administration of the asylum process.

22

219. The Office of the United Nations High Commissioner for Refugees

23 (“UNHCR”) has described non-refoulement as “the cornerstone of international

24 refugee protection,” and notes that it is “of particular relevance to

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

82

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3910 Page 86 of 105

1 asylum-seekers.”86 The primary treaty source for the duty of non-refoulement is

2 the 1951 Convention on the Rights of Refugees. Article 33 of the Convention

3 prohibits a state from returning “a refugee in any manner whatsoever to the

4 frontiers of territories where his life or freedom would be threatened on account of

5 his race, religion, nationality, membership of a particular social group or political

6 opinion.”87 As UNHCR has explained, the Treaty’s emphasis on “any manner” of

7 refoulement reflects a state duty to avoid using direct or indirect ways of subjecting

8 a person to a risk of return to persecution.88

9

220. In addition, the duty of nonrefoulement extends not only to a person’s

10 country of origin, “but also to any other place where a person has reason to fear

11 threats to his or her life or freedom related to one or more of the grounds set out in

12 the 1951 Convention, or from where he or she risks being sent to such a risk.”89

13 Accordingly, a state must not only prevent return to danger, it must take

14 affirmative measures to prevent a risk of harm by “adopt[ing] a course that does

15 not result in [asylum seekers] removal, directly or indirectly, to a place where their

16 lives or freedom would be in danger.”90 This includes “access to the territory and

17 to fair and efficient asylum procedures.”91

18

19

20 86 Advisory Opinion on the Extraterritorial Application of Non-Refoulement

21

Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, UNHCR (Jan. 26, 2007),

22 http://www.unhcr.org/4d9486929.pdf.

23 87 1951 Refugee Convention, Art. 33 (emphasis added).

24 88 Id. at 7.

25 89 Id. at 3 (citing UNHCR, Note on Non-Refoulement (EC/SCP/2), 1977 ¶4).

26 90 Id. at ¶ 8. 27 91 Id. (emphasis added). 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

83

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3911 Page 87 of 105

1

221. The United States adopted the protections of Article 33 by signing

2 onto the 1967 Protocol Relating to the Status of Refugees, which incorporated

3 Articles 2-34 of the 1951 Convention.

4

222. The prohibition against refoulement is likewise central to other

5 treaties ratified by the United States, including the International Covenant on Civil

6 and Political Rights (“ICCPR”) and the Convention Against Torture (“CAT”), both

7 of which prohibit returning an individual to harm and obligate the United States to

8 implement and follow legal procedures to protect refugees’ right to non-

9 refoulement.92

10

223. In order to effectuate an asylum seeker’s right to non-refoulement, the

11 United States is obligated to implement and follow procedures to ensure that his or

12 her request for asylum be duly and efficiently considered. The United States

13 implemented this legal obligation with the passage of the 1980 Refugee Act, which

14 established a procedure for a noncitizen physically present in the United States or

15 at a land border or POE to apply for asylum.93

16

224. In practice, the duty of non-refoulement covers not only those

17 refugees and asylum seekers already present inside the country, but also those who

18 present themselves at POEs along the U.S. border. The duty requires U.S. officials

19 such as Defendants to process those seeking to cross the U.S. border and not to

20 deny or unreasonably delay their access to an efficient, lawful process to present a

21 claim for asylum.

22

225. The norm of non-refoulement is specific, universal and obligatory. It

23 is so widely accepted that it has reached the status of jus cogens – a norm not

24 subject to derogation. Indeed, in 1996, the United Nations Executive Committee

25

26 92 See ICCPR, Art. 13; CAT, Art. 3. 27 93 See Refugee Act of 1980, Pub. L. No. 96-212, § 201(b), 94 Stat. 102 (1980). 28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

84

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3912 Page 88 of 105

1 on the International Protection of Refugees explicitly concluded that the non-

2 refoulement principle had achieved the status of a norm “not subject to

3 derogation.”94 The principle was recognized as such in the 1984 Cartagena

4 Declaration on Refugees; was included in a portion of the Refugee Convention

5 from which derogation is not permitted; and has been recognized by bodies,

6 including the Inter-American Commission on Human Rights and the Organization

7 of American States General Assembly.

8

226. Defendants’ policy and actions to actively or constructively deny

9 Class Plaintiffs, and the asylum seekers they represent, access to the U.S. asylum

10 process violate their binding and enforceable obligations under international law.

11

VI. CLASS ACTION ALLEGATIONS

12

227. Class Plaintiffs bring this action pursuant to Federal Rules of Civil

13 Procedure 23(a) and 23(b)(2) on behalf of themselves and all other persons

14 similarly situated. The proposed class is defined as follows:

15

All noncitizens who seek or will seek to access the U.S.

16

asylum process by presenting themselves at a POE along the

17

U.S.-Mexico border and are denied access to the U.S. asylum

18

process by or at the instruction of CBP officials.

19

228. The class is so numerous that joinder of all members is impracticable.

20 CBP’s misconduct toward asylum seekers at POEs along the U.S.-Mexico border

21 has been the focus of monitoring, reporting and advocacy by numerous well-

22 respected non-governmental organizations. These organizations have investigated

23 and documented thousands of examples of asylum seekers being turned back by

24 CBP officials. Many more asylum seekers likely have been the victims of this

25 unlawful conduct as these abuses often go unreported. Asylum seekers who are

26

27

94 Executive Committee Conclusion No. 79, General Conclusion on International Protection (1996).

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

85

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3913 Page 89 of 105

1 turned back at the border are continuously moving and relocating, also making

2 joinder impracticable.

3

229. There are questions of law and fact that are common to the class. The

4 class alleges common harms: denial of access to the asylum process at POEs along

5 the U.S.-Mexico border and a violation of the right not to be returned to countries

6 where they fear persecution. The class members’ entitlement to these rights is

7 based on a common core of facts. All members of the proposed class have

8 attempted to seek asylum by presenting themselves at a POE along the U.S.-

9 Mexico border. All of them have expressed a fear of persecution or a desire to

10 apply for asylum, or would have done so but for the conduct of Defendants. These

11 facts entitle all of them to the opportunity to seek asylum. Yet each class member

12 has been and likely will again be unlawfully denied access to the U.S. asylum

13 process by CBP. Moreover, all class members raise the same legal claims: that

14 U.S. law requires CBP officials at POEs to give them meaningful access to the

15 asylum process. Their shared common facts will ensure that judicial findings

16 regarding the legality of the challenged practices will be the same for all class

17 members. Should Class Plaintiffs prevail, all class members will benefit; each of

18 them will be entitled to a prompt, lawful inspection at a POE along the U.S.-

19 Mexico border and an opportunity to seek asylum.

20

230. Class Plaintiffs’ claims are typical of the claims of the class. Class

21 Plaintiffs and class members raise common legal claims and are united in their

22 interest and injury. All Class Plaintiffs, like all class members, are asylum seekers

23 to whom CBP officials unlawfully denied, whether actively or constructively,

24 access to the U.S. asylum process after they presented themselves at POEs along

25 the U.S.-Mexico border. Class Plaintiffs and class members are thus victims of the

26 same, unlawful course of conduct.

27

231. Class Plaintiffs are adequate representatives. Class Plaintiffs seek

28 relief on behalf of the class as a whole and have no interest antagonistic to other

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

86

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3914 Page 90 of 105

1 members of the class. Class Plaintiffs’ mutual goal is to declare Defendants’

2 challenged policies and practices unlawful and to obtain declaratory and injunctive

3 relief that would cure this illegality. Class Plaintiffs seek a remedy for the same

4 injuries as the class members, and all share an interest in having a meaningful

5 opportunity to seek asylum. Thus, the interests of the Class Plaintiffs and of the

6 class members are aligned.

7

232. Class Plaintiffs are represented by attorneys from the Southern

8 Poverty Law Center, the Center for Constitutional Rights, the American

9 Immigration Council, and Latham & Watkins LLP. Counsel have a demonstrated

10 commitment to protecting the rights and interests of noncitizens and, together, have

11 considerable experience in handling complex and class action litigation in the

12 immigration field. Counsel have represented numerous classes of immigrants and

13 other victims of systematic government misconduct in actions in which they

14 successfully obtained class relief.

15

233. Defendants have acted or refused to act on grounds that are generally

16 applicable to Class Plaintiffs and the class. Defendants have failed to provide

17 Class Plaintiffs and class members with meaningful access to the U.S. asylum

18 process. Defendants’ actions violate Class Plaintiffs’ and class members’

19 statutory, regulatory and constitutional rights to access to the asylum process.

20 Declaratory and injunctive relief are appropriate remedies.

21

234. In the absence of a class action, there is substantial risk that individual

22 actions would be brought in different venues, creating a risk of inconsistent

23 injunctions to address Defendants’ common conduct.

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

87

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3915 Page 91 of 105

1

FIRST CLAIM FOR RELIEF

2

DECLARATORY AND INJUNCTIVE RELIEF

3

AGAINST ALL DEFENDANTS

4

(VIOLATION OF THE RIGHT TO SEEK ASYLUM UNDER THE

5

IMMIGRATION AND NATIONALITY ACT)

6

235. Al Otro Lado and Class Plaintiffs reallege and incorporate by

7 reference each and every allegation contained in the preceding paragraphs as if set

8 forth fully herein.

9

236. INA § 208(a)(1) (8 U.S.C. § 1158(a)(1)) gives any noncitizen who is

10 physically present in or who arrives in the United States a statutory right to seek

11 asylum, regardless of such individual’s immigration status.

12

237. When a noncitizen presents himself or herself at a POE and indicates

13 an intention to apply for asylum or a fear of persecution, CBP officials must refer

14 the noncitizen for a credible fear interview under 8 U.S.C. § 1225(b)(1)(A)(ii) and

15 8 C.F.R. § 235.3(b)(4), or, in accordance with 8 U.S.C. § 1225(b)(2), place the

16 noncitizen directly into regular removal proceedings under 8 U.S.C. § 1229(a)(1).

17

238. Class Plaintiffs presented themselves at POEs and either asserted an

18 intention to apply for asylum or a fear of persecution in their countries of origin or

19 would have done so but for the Defendants’ conduct. Nevertheless, CBP officials

20 did not refer Class Plaintiffs to an asylum officer for credible fear interviews

21 pursuant to 8 U.S.C. § 1225(b)(1)(A)(ii), or, in accordance with 8 U.S.C.

22 § 1225(b)(2), place Class Plaintiffs directly into regular removal proceedings

23 pursuant to 8 U.S.C. § 1229(a)(1).

24

239. Instead, in direct contravention of the INA, CBP officials engaged in

25 unlawful tactics, including the implementation of the Turnback Policy, that

26 actively or constructively denied Class Plaintiffs’ access to the statutorily

27 prescribed asylum process and forced them to return to Mexico.

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

88

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3916 Page 92 of 105

1

240. CBP officials’ treatment of Class Plaintiffs at the POEs and the U.S.-

2 Mexico border was inflicted at the instigation, under the control or authority, or

3 with the knowledge, consent, direction and/or acquiescence of Defendants.

4

241. As a result of Defendants’ violations of the INA, Class Plaintiffs have

5 been damaged – through the active or constructive denial of access to the asylum

6 process and by being forced to return to Mexico or other countries where they face

7 threats of further persecution.

8

242. As a result of Defendants’ violations of the INA, Plaintiff Al Otro

9 Lado has been damaged – namely its core mission has been frustrated and it has

10 been forced to divert substantial resources away from its programs to counteract

11 CBP’s unlawful practices at or near POEs along the U.S.-Mexico border.

12

243. Defendants’ practices have resulted and will continue to result in

13 irreparable injury, including a continued risk of violence and serious harm to Class

14 Plaintiffs and further violations of their statutory rights. Class Plaintiffs and Al

15 Otro Lado do not have an adequate remedy at law to redress the violations alleged

16 herein, and therefore seek injunctive relief restraining Defendants from continuing

17 to engage in the unlawful policy and practices alleged herein.

18

244. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201

19 and 2202, this Court may declare the rights or legal relations of any party in any

20 case involving an actual controversy.

21

245. An actual controversy has arisen and now exists between Class

22 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class

23 Plaintiffs and Al Otro Lado contend that Defendants’ Turnback Policy, as well as

24 the conduct and practices carried out in reliance on it, as alleged in this First

25 Amended Complaint, violate the INA. On information and belief, Defendants

26 contend that their Turnback Policy, conduct and practices are lawful.

27

246. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

28 a judicial determination as to the rights and obligations of the parties with respect

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

89

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3917 Page 93 of 105

1 to this controversy, and such a judicial determination of these rights and

2 obligations is necessary and appropriate at this time.

3

SECOND CLAIM FOR RELIEF

4

DECLARATORY RELIEF AND INJUNCTIVE RELIEF

5

AGAINST ALL DEFENDANTS

6

Violation of Section 706(1) of the Administrative Procedure Act

7

247. Al Otro Lado and Class Plaintiffs reallege and incorporate by

8 reference each and every allegation contained in the preceding paragraphs as if set

9 forth fully herein.

10

248. The Administrative Procedure Act (“APA”) (5 U.S.C. § 551, et. seq.)

11 authorizes suits by “[a] person suffering legal wrong because of agency action, or

12 adversely affected or aggrieved by agency action within the meaning of a relevant

13 statute.” 5 U.S.C. § 702. The APA also provides relief for a failure to act: “The

14 reviewing court shall . . . compel agency action unlawfully withheld or

15 unreasonably delayed.” 5 U.S.C. § 706(1).

16

249. CBP officials, at the instigation, under the control or authority of, or

17 with the direction, knowledge, consent, or acquiescence of Defendants, have

18 engaged in an unlawful widespread pattern or practice of denying and

19 unreasonably delaying asylum seekers’ access to the asylum process by, among

20 other tactics: lying; using threats, intimidation and coercion; employing verbal

21 abuse and applying physical force; physically blocking access to POE buildings;

22 imposing unreasonable delays before granting access to the asylum process;

23 denying outright access to the asylum process; and denying access to the asylum

24 process in a racially discriminatory manner.

25

250. CBP officials, at the instigation, under the control or authority of, or

26 with the direction, knowledge, consent, or acquiescence of Defendants, have also

27 adopted and implemented the Turnback Policy, restricting access to the asylum

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

90

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3918 Page 94 of 105

1 process at POEs by mandating that CBP officers directly or constructively turn

2 back asylum seekers at the border based on purported “capacity” constraints.

3

251. Through this conduct, CBP officials have failed, in violation of the

4 APA, to take actions mandated by the following statutes and implementing

5 regulations:

6

• 8 U.S.C. § 1225(a)(1)(3) (“All aliens . . . who are applicants for

7

admission or otherwise seeking admission or readmission to or

8

transit through the United States shall be inspected by

9

immigration officers.”) (emphasis added);

10

• 8 U.S.C. § 1225(b)(1)(A)(ii) (“If an immigration officer

11

determines that an alien . . . who is arriving in the United States . . .

12

is inadmissible . . . and the alien indicates either an intention to

13

apply for asylum under section 1158 of this title or a fear of

14

persecution, the officer shall refer the alien for an interview by an

15

asylum officer . . . .”) (emphasis added);

16

• 8 U.S.C. § 1225(b)(2) (“[I]n the case of an alien who is an

17

applicant for admission, if the examining immigration officer

18

determines that an alien seeking admission is not clearly and

19

beyond a doubt entitled to be admitted, the alien shall be detained

20

for a proceeding under section 1229a of this title.”); and

21

• 8 C.F.R. § 235.3(b)(4) (“If an alien subject to the expedited

22

removal provisions indicates an intention to apply for asylum, or

23

expresses a fear of persecution or torture, or a fear of return to his

24

or her country, the inspecting officer shall not proceed further

25

with removal of the alien until the alien has been referred for an

26

interview by an asylum officer . . . .”) (emphasis added).

27

252. Through this conduct, CBP officials have also failed, in violation of

28 the APA, to take the above-listed mandated actions without unreasonable delay.

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

91

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3919 Page 95 of 105

1

253. Defendants’ repeated and pervasive failures to act, and/or to act

2 within a reasonable time, which denied and/or unreasonably delayed Class

3 Plaintiffs’ access to the statutorily prescribed asylum process, constitute unlawfully

4 withheld and unreasonably delayed agency action and therefore give rise to federal

5 jurisdiction and mandate relief under the APA.

6

254. As a result of the acts constituting violations of the APA, Class

7 Plaintiffs have been damaged through the denial and/or unreasonably delay of

8 access to the asylum process and by being forced to return to and/or wait in

9 Mexico, where they face threats of further persecution.

10

255. As a result of the acts constituting violations of the APA, Plaintiff Al

11 Otro Lado has been damaged – namely, its core mission has been frustrated and it

12 has been forced to divert substantial resources away from its programs to

13 counteract CBP’s unlawful practices at POEs along the U.S.-Mexico border.

14

256. Defendants’ Turnback Policy and widespread pattern or practice have

15 resulted and will continue to result in irreparable injury, including a continued risk

16 of violence and serious harm to Class Plaintiffs and further violations of their

17 statutory and regulatory rights. Class Plaintiffs and Al Otro Lado do not have an

18 adequate remedy at law to redress the violations alleged herein, and therefore seek

19 injunctive relief restraining Defendants from continuing to engage in the unlawful

20 practices alleged herein.

21

257. Al Otro Lado and Class Plaintiffs have exhausted all available

22 administrative remedies and have no adequate remedy at law.

23

258. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201

24 and 2202, this Court may declare the rights or legal relations of any party in any

25 case involving an actual controversy.

26

259. An actual controversy has arisen and now exists between Class

27 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class

28 Plaintiffs and Al Otro Lado contend that Defendants’ Turnback Policy and

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

92

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3920 Page 96 of 105

1 sanctioning of CBP’s unlawful widespread pattern or practice at POEs along the

2 U.S.-Mexico border, as alleged in this Complaint, violate the APA. On

3 information and belief, Defendants contend that the Turnback Policy and

4 widespread pattern or practice are lawful.

5

260. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

6 a judicial determination as to the rights and obligations of the parties with respect

7 to this controversy, and such a judicial determination of these rights and

8 obligations is necessary and appropriate at this time.

9

THIRD CLAIM FOR RELIEF

10

DECLARATORY RELIEF AND INJUNCTIVE RELIEF

11

AGAINST ALL DEFENDANTS

12

Violation of Section 706(2) of the Administrative Procedure Act –

13

Agency Action in Excess of Statutory Authority and Without

14

Observance of Procedures Required by Law

15

261. Al Otro Lado and Class Plaintiffs reallege and incorporate by

16 reference each and every allegation contained in the preceding paragraphs as if set

17 forth fully herein.

18

262. Under the APA, “the reviewing court shall . . . hold unlawful and set

19 aside agency action, finding, and conclusions found to be . . . in excess of statutory

20 jurisdiction, authority, or limitations, or short of statutory right [and/or] without

21 observance of procedure required by law.” 5 U.S.C. § 706(2)(C), (D).

22

263. Defendants, through implementation of the Turnback Policy and

23 sanctioning of CBP’s unlawful widespread pattern or practice of denying and

24 unreasonably delaying asylum seekers’ access to the asylum process, have acted in

25 excess of their statutorily prescribed authority and without observance of the

26 procedures required by law in violation of section 706(2) of the APA. See 5

27 U.S.C. §§ 706(2)(C), (D). Congress mandated the various procedures that

28 Defendants and their officers, employees, and agents are authorized and required to

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

93

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3921 Page 97 of 105

1 follow when inspecting individuals who seek admission at POEs. See 8 U.S.C.

2 § 1225. Regulations implementing section 1225 also establish the required

3 procedures for inspection of individuals who seek admission at POEs. See 8

4 C.F.R. § 235.3(b)(4). None of these procedures authorizes a CBP official to turn

5 back a noncitizen seeking asylum at a POE, at the physical U.S.-Mexico border, or

6 any place in between.

7

264. In turning back Class Plaintiffs and purported class members at POEs

8 or along the U.S.-Mexico border without following the procedures mandated by

9 the INA and its implementing regulations, CBP officials have acted and continue

10 to act in excess of the authority granted them by Congress and without observance

11 of procedure required by law.

12

265. The Turnback Policy is a policy authorized by Defendants with the

13 purpose of restricting and unreasonably delaying asylum seekers’ access to the

14 U.S. asylum process on the basis of purported capacity constraints at U.S. POEs.

15 Defendants’ own statements and communications, as well as a report of the DHS

16 Office of Inspector General, confirm Defendants ordered the Turnback Policy and

17 its implementation by CBP. The Turnback Policy thus constitutes a final agency

18 action under 5 U.S.C. § 704 and a violation of 5 U.S.C. § 706(2).

19

266. Furthermore, each instance where Defendants, through their officers,

20 employees, and agents, directly or constructively deny Class Plaintiffs or purported

21 class members access to the asylum process constitutes a final agency action under

22 5 U.S.C. § 704 and a violation of 5 U.S.C. § 706(2).

23

267. As a result of the acts constituting violations of the APA, Class

24 Plaintiffs have been damaged through the denial, restriction, and/or unreasonable

25 delay of access to the asylum process and by being forced to return to and/or wait

26 in Mexico where they face threats of further persecution and/or other serious harm.

27

268. As a result of the acts constituting violations of the APA, Plaintiff Al

28 Otro Lado has been damaged – namely, its core mission has been frustrated and it

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

94

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3922 Page 98 of 105

1 has been forced to divert substantial resources away from its programs to

2 counteract CBP’s unlawful practices at POEs along the U.S.-Mexico border.

3

269. Defendants’ Turnback Policy and widespread pattern or practice have

4 resulted and will continue to result in irreparable injury, including a continued risk

5 of violence and serious harm to Class Plaintiffs and further violations of their

6 statutory and regulatory rights. Class Plaintiffs and Al Otro Lado do not have an

7 adequate remedy at law to redress the violations alleged herein, and therefore seek

8 injunctive relief restraining Defendants from continuing to engage in the unlawful

9 policy alleged herein.

10

270. Al Otro Lado and Class Plaintiffs have exhausted all available

11 administrative remedies and have no adequate remedy at law.

12

271. Pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201

13 and 2202, this Court may declare the rights or legal relations of any party in any

14 case involving an actual controversy.

15

272. An actual controversy has arisen and now exists between Class

16 Plaintiffs and Al Otro Lado, on one hand, and Defendants, on the other. Class

17 Plaintiffs and Al Otro Lado contend that Defendants’ Turnback Policy and

18 sanctioning of CBP’s unlawful widespread pattern or practice at POEs along the

19 U.S.-Mexico border, as alleged in this Complaint, violate the APA. On

20 information and belief, Defendants contend that the Turnback Policy and

21 widespread pattern or practice are lawful.

22

273. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

23 a judicial determination as to the rights and obligations of the parties with respect

24 to this controversy, and such a judicial determination of these rights and

25 obligations is necessary and appropriate at this time.

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

95

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3923 Page 99 of 105

1

FOURTH CLAIM FOR RELIEF

2

DECLARATORY RELIEF AND INJUNCTIVE RELIEF

3

AGAINST ALL DEFENDANTS

4

(VIOLATION OF PROCEDURAL DUE PROCESS)

5

274. Al Otro Lado and Class Plaintiffs reallege and incorporate by

6 reference each and every allegation contained in the preceding paragraphs as if set

7 forth fully herein.

8

275. The Due Process Clause of the Fifth Amendment to the U.S.

9 Constitution prohibits the federal government from depriving any person of “life,

10 liberty, or property, without due process of law.” U.S. Const. Amend. V.

11

276. Congress has granted certain statutory rights to asylum seekers, such

12 as Class Plaintiffs and the asylum seekers they represent, and has directed DHS to

13 establish a procedure for providing such rights. The Due Process Clause thus

14 requires the government to establish a fair procedure and to abide by that

15 procedure.

16

277. As set forth above, the INA and its implementing regulations provide

17 Class Plaintiffs the right to be processed at a POE and granted meaningful access

18 to the asylum process. See 8 U.S.C. §§ 1158(a)(1), 1225(a)(3), 1225(b)(1)(A)(ii),

19 1225(b)(1)(B), 1225(b)(2); see also 8 C.F.R. § 235.3(b)(4).

20

278. By adopting the Turnback Ppolicy and using a variety of tactics to

21 turn back asylum seekers at POEs along the U.S.-Mexico border, CBP officials

22 have denied Class Plaintiffs access to the asylum process and failed to comply with

23 procedures set forth in the INA and its implementing regulations.

24

279. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border

25 was inflicted at the instigation, under the control or authority, or with the

26 knowledge, consent, or acquiescence of Defendants.

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

96

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3924 Page 100 of 105

1

280. By denying Class Plaintiffs’ access to the asylum process, Defendants

2 have violated Class Plaintiffs’ procedural due process rights under the Fifth

3 Amendment to the U.S. Constitution.

4

281. As a result of the Defendants’ violations of the Fifth Amendment to

5 the U.S. Constitution, Class Plaintiffs have been damaged through the denial of

6 access to the asylum process and by being forced to return to Mexico where they

7 face threats of further persecution.

8

282. Defendants’ practices have resulted and will continue to result in

9 irreparable injury, including a continued risk of violence and serious harm to Class

10 Plaintiffs and further violations of their constitutional rights. Class Plaintiffs do

11 not have an adequate remedy at law to redress the violations alleged herein, and

12 therefore seek injunctive relief restraining Defendants from engaging in the

13 unlawful policy, conduct and practices alleged herein.

14

283. An actual controversy exists between Class Plaintiffs, on one hand,

15 and Defendants, on the other. Class Plaintiffs contend that Defendants’ Turnback

16 Policy and sanctioning of CBP’s unlawful widespread pattern or practice at POEs

17 along the U.S.-Mexico border, as alleged in the Complaint, violate the Fifth

18 Amendment to the United States Constitution. On information and belief,

19 Defendants contend that the Turnback Policy and widespread pattern or practice

20 are lawful.

21

284. Class Plaintiffs therefore request and are entitled to a judicial

22 determination as to the rights and obligations of the parties with respect to this

23 controversy, and such a judicial determination of these rights and obligations is

24 necessary and appropriate at this time.

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

97

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3925 Page 101 of 105

1

FIFTH CLAIM FOR RELIEF

2

DECLARATORY RELIEF AND INJUNCTIVE RELIEF

3

AGAINST ALL DEFENDANTS

4

(VIOLATION OF THE NON-REFOULEMENT DOCTRINE)

5

285. Class Plaintiffs reallege and incorporate by reference each and every

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

7

286. CBP officials have systematically denied, or unreasonably delayed,

8 access to the asylum process by Class Plaintiffs, and the asylum seekers they

9 represent, in violation of customary international law reflected in treaties which the

10 United States has ratified and implemented: namely, the specific, universal and

11 obligatory norm of non-refoulement, which has also achieved the status of a jus

12 cogens norm, and which forbids a country from returning or expelling an

13 individual to a country where he or she has a well-founded fear of persecution

14 and/or torture, whether it is her home country or another country.

15

287. The duty of non-refoulement also requires the adoption of procedures

16 to ensure prompt, efficient, and unbiased access to the asylum process.

17

288. CBP officials’ treatment of Class Plaintiffs at the U.S.-Mexico border

18 was inflicted at the instigation, under the control or authority, or with the

19 knowledge, consent, direction or acquiescence of Defendants.

20

289. Defendants’ conduct is actionable under the Alien Tort Statute, 28

21 U.S.C. § 1350, which authorizes declaratory and injunctive relief.

22

290. As a result of the acts constituting violations of the jus cogens norm of

23 non-refoulement, Class Plaintiffs have been damaged through denial or

24 unreasonable delay of access to the asylum process and by being forced to return to

25 Mexico or other countries where they face threats of further persecution.

26

291. As a result of the acts constituting violations of the norm of non-

27 refoulement, Al Otro Lado has been damaged – namely, its core mission has been

28 frustrated and it has been forced to divert substantial resources away from its

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

98

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3926 Page 102 of 105

1 programs to counteract CBP’s unlawful practices at POEs along the U.S.-Mexico

2 border.

3

292. Defendants’ practices have resulted and will continue to result in

4 irreparable injury, including a continued risk of violence and serious harm to Class

5 Plaintiffs and further infringement of the protections afforded to them under

6 international law. Class Plaintiffs and Al Otro Lado do not have an adequate

7 remedy at law to redress the violations alleged herein, and therefore seek injunctive

8 relief restraining Defendants from engaging in the unlawful conduct and practices

9 alleged herein.

10

293. An actual controversy exists between Class Plaintiffs and Al Otro

11 Lado, on one hand, and Defendants, on the other. Class Plaintiffs and Al Otro

12 Lado contend that Defendants’ Turnback Policy, as well as the widespread pattern

13 or practice carried out in reliance on it, as alleged in this Complaint, violate the

14 norm of non-refoulement. On information and belief, Defendants contend that

15 their policy, conduct and practices are lawful.

16

294. Class Plaintiffs and Al Otro Lado therefore request and are entitled to

17 a judicial determination as to the rights and obligations of the parties with respect

18 to this controversy, and such a judicial determination of these rights and

19 obligations is necessary and appropriate at this time.

20

PRAYER FOR RELIEF

21

295. WHEREFORE, Plaintiff Al Otro Lado and Class Plaintiffs

22 respectfully request that the Court:

23

a. Issue an order certifying a class of individuals pursuant to

24

Federal Rule of Civil Procedure 23(a) and 23(b)(2);

25

b. Appoint the undersigned as class counsel pursuant to Federal

26

Rule of Civil Procedure 23(g);

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

99

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3927 Page 103 of 105

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW LOS ANGELES

c. Issue a judgment declaring that Defendants’ Turnback Policy, as well as the practices, acts and/or omissions described herein, give rise to federal jurisdiction;
d. Issue a judgment declaring that Defendants’ Turnback Policy, as well as the practices, acts and/or omissions described herein, violate one or more of the following: (1) The Immigration and Nationality Act, based on violations of 8 U.S.C. §§ 1158 and 1225; (2) Section 706(1) of the Administrative Procedure Act, based on the unlawful withholding and unreasonable delay of agency action mandated by 8 U.S.C. § 1225 and 8 C.F.R. § 235.3; (3) Section 706(2) of the Administrative Procedure Act; (4) The Due Process Clause of the Fifth Amendment; and (5) The duty of non-refoulement under international law;
e. Issue injunctive relief requiring Defendants to comply with the laws and regulations cited above;
f. Issue injunctive relief prohibiting Defendants, and any of their officers, agents, successors, employees, representatives, and any and all persons acting in concert with them or on their behalf, from continuing to implement the Turnback Policy and from engaging in the unlawful practices, acts and/or omissions described herein at POEs along the U.S.-Mexico border;
g. Issue injunctive relief requiring Defendants to implement procedures to provide effective oversight and accountability in the inspection and processing of individuals who present themselves at POEs along the U.S.-Mexico border for the purpose of seeking asylum;

100

No. 3:17-cv-02366-BAS-KSC FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3928 Page 104 of 105

1

h. Award Plaintiffs their reasonable attorneys’ fees, costs and

2

other expenses pursuant to 28 U.S.C. § 2412, and other

3

applicable law; and

4

i. Grant any and all such other relief as the Court deems just and

5

equitable.

6 Dated: October 12, 2018 7 8

LATHAM & WATKINS LLP
Manuel A. Abascal Michaela R. Laird

9

By: /s/ Manuel A. Abascal

10

Manuel A. Abascal

11

Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

101

No. 3:17-cv-02366-BAS-KSC FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-02366-BAS-KSC Document 176 Filed 10/12/18 PageID.3929 Page 105 of 105

1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing with the Clerk

3 of the Court for the Southern District of California by using the CM/ECF system

4 on October 12, 2018. I certify that all participants in the case are registered

5 CM/ECF users and that service will be accomplished by the CM/ECF system.

6

7

8

s/ Manuel A. Abascal

9

Manuel A. Abascal

LATHAM & WATKINS LLP

10

355 South Grand Avenue, Suite 100

11

Los Angeles, California 90071-1560 (213) 485-1234

12

manny.abascal@lw.com

13

Attorneys for Plaintiffs

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

No. 3:17-cv-02366-BAS-KSC

1

FIRST AMENDED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4630 Page 1 of 28

1 XAVIER BECERRA

2

Attorney General of California MICHAEL L. NEWMAN

3 Senior Assistant Attorney General CHRISTINE CHUANG

4 Supervising Deputy Attorney General

JAMES F. ZAHRADKA II (SBN 196822) 5 VILMA PALMA-SOLANA

6

Deputy Attorneys General 1515 Clay Street, 20th Floor

7 Oakland, CA 94612-0550 Telephone: (510) 879-1247
8 E-mail: James.Zahradka@doj.ca.gov

9 Attorneys for the State of California

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

12

13

AL OTRO LADO, Inc., a California corporation; ABIGAIL DOE, BEATRICE Case No. 3:17-cv-02366-BAS-KSC

14 15 16 17

DOE, CAROLINA DOE, DINORA DOE, INGRID DOE, ROBERTO DOE, MARIA DOE, JUAN DOE, ÚRSULA DOE, VICTORIA DOE, BIANCA DOE, and CÉSAR DOE, individually and on behalf of all others similarly situated,

AMICUS CURIAE BRIEF OF THE STATES OF CALIFORNIA, CONNECTICUT, THE DISTRICT OF COLUMBIA, DELAWARE, HAWAII, ILLINOIS, MARYLAND, MASSACHUSETTS, MICHIGAN,

18

Plaintiffs, MINNESOTA, NEVADA, NEW JERSEY, NEW MEXICO, NEW

19

v.

YORK, OREGON, PENNSYLVANIA, RHODE

20 KIRSTJEN M. NIELSEN, Secretary,

ISLAND, VERMONT, VIRGINIA,

21

United States Department of Homeland Security, in her official capacity; KEVIN

AND WASHINGTON IN SUPPORT OF PLAINTIFFS

22

K. MCALEENAN, Commissioner, United States Customs and Border Protection, in Judge:

Hon. Cynthia A. Bashant

23 his official capacity; TODD C. OWEN, Action Filed: July 12, 2017

Executive Assistant Commissioner, Office 24 of Field Operations, United States

25

Customs and Border Protection, in his official capacity; and DOES 1-25,

26 inclusive,

27

Defendants.

28

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4631 Page 2 of 28

1

TABLE OF CONTENTS

2 Page
3 Introduction and statement of interest ....................................................................... 1

4 Argument ................................................................................................................... 4
5

6

A. The Turnback Policy is exacerbating inhumane border

conditions and causing additional trauma to already

7

vulnerable migrants. ................................................................... 4

8

B. The States will be harmed by the effects of the Turnback

Policy. ......................................................................................... 9

9 Conclusion ............................................................................................................... 16

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
i
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4632 Page 3 of 28

1

TABLE OF AUTHORITIES

2
3 4 CASES

Page

5 E. Bay Sanctuary Covenant v. Trump

No. 18-cv-06810-JST, 2018 WL 6053140 (N.D. Cal. Nov. 19,

6

2018) ...................................................................................................................... 7

7 Washington v. United States

8

Case No. 18-cv-1979 (S.D. Cal. June 26, 2018) ............................................. 4, 11

9 LEGISLATIVE MATERIALS

10 FY 2019 Budget Detail, 2018 N.J. Sess. Law Serv. Ch. 53, p. B-199,

11

https://tinyurl.com/y4j2386n. ................................................................................ 3

12 FY 2019 Final Budget, 2018 Mass. Acts 154,

13

https://tinyurl.com/Mass-FY19 ............................................................................. 2

14 Wash. Laws of 2018, ch. 299, § 127(65) (amending Laws of 2017, 3d

15

Spec. Sess., ch. 1, § 128) (Mar. 27, 2018), https://tinyurl.com/yy3rduov ............................................................................... 14

16 REGULATORY MATERIALS
17

18

Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45486......................................... 10

19 OTHER AUTHORITIES
20

21

Adolfo Flores, The Trump Administration Has Sent the First AsylumSeeking Families Back to Mexico (Feb. 14, 2019),

22

https://tinyurl.com/y2sptvew ................................................................................. 4

23 Allen Keller et al., Pre-Migration Trauma Exposure and Mental

24

Health Functioning among Central American Migrants Arriving at

the US Border, 12 PloS one e0168692 (Jan. 10, 2017),

25

https://tinyurl.com/Keller-Trauma .................................................................... 8, 9

26 Angela Kocherga, Border Patrol Officials Probe Death of 7-Year Old,

27

Albuquerque J. (Dec. 14, 2018) ............................................................................ 6

28
ii
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4633 Page 4 of 28

1

TABLE OF AUTHORITIES

2

(continued)

3 Anna Gorman, Medical Clinics that Treat Refugees Help Determine

Page

4

the Case for Asylum, NPR (July 10, 2018),

https://tinyurl.com/Gorman-NPR .................................................................. 15, 16

5

6

Beth Fertig, Unaccompanied Minors Have Tougher Time Winning Asylum, WNYC (June 6, 2018), https://tinyurl.com/Fertig-WNYC ................... 10

7 CAMBA, Refugee Assistance Program, https://tinyurl.com/y2d2nlt7 .................... 15
8

9

Catherine E. Shoichet & Leyla Santiago, The Tear Gas is Gone. But in This Shelter at the Border, the Situation Is Getting Worse, CNN

10

(Nov. 29, 2018), https://tinyurl.com/Shoichet....................................................... 5

11 CDPH, Office of Refugee Health, https://tinyurl.com/CDPH-refugee ..................... 15

12 CDSS, Immigration Branch Immigration Services Funding Tentative

13

Award Announcement (Oct. 31, 2017), https://tinyurl.com/Cal-

14

DSS-ISawards.................................................................................................... 1, 3

15 CDSS, Immigration Services Contractors, https://tinyurl.com/CalDSS-ISC .......................................................................................................... 1, 13
16

17

CDSS, Services for Refugees, Asylees, and Trafficking Victims, https://www.cdss.ca.gov/Refugee-Services ........................................................ 11

18

CDSS, Unaccompanied Undocumented Minors Legal Services

19

Funding Contractor Referral List (FY2017-18),

20

https://tinyurl.com/ILS-contractors (including Al Otro Lado).............................. 3

21 Christine Murray, Ailing Central American Migrants in Dire

22

Conditions Dig in at U.S. Border, Reuters (Nov. 28, 2018) ................................. 5

23 Cristina Rendon, Salvadorian Woman Nervously Awaits Contact from

Son Seeking Asylum at US-Mexico Border, Fox KTVU (Nov. 26,

24

2018), https://tinyurl.com/Rendon-KTVU ............................................................ 9

25 Cty. of L.A., Dep’t of Soc. Servs., Refugee Employment Program,

26

https://tinyurl.com/LA-refugee............................................................................ 11

27

28
iii
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4634 Page 5 of 28

1

TABLE OF AUTHORITIES

2

(continued)

3 D. Parvaz, The Pentagon Just Doesn’t See Trump’s Border Wall as an

Page

4

Emergency, ThinkProgress (Jan. 30, 2019)

https://tinyurl.com/Parvaz-Wall ............................................................................ 6

5

6

DHS, Migrant Protection Protocols (Jan. 24, 2019), https://tinyurl.com/DHS-remain ............................................................................ 4

7

Elizabeth Espinosa & Marissa Wenzke, In Tijuana, an L.A. City

8

Councilman Tries to Help While Migrants Face a Complicated and

9

Harsh Process for Asylum, KTLA (Jan. 22, 2019),

https://tinyurl.com/KTLA-Tijuana. ....................................................................... 6

10

11

Elliot Spagat, More Caravan Migrants Arrive in Tijuana, Brace for Long Stay, Fox News (Nov. 15, 2018) .................................................................. 9

12

Ill. Dep’t of Hum. Servs., Bureau of Refugee and Immigrant Servs.,

13

https://tinyurl.com/y3ed43xs ................................................................................. 2

14 Ill. Dep’t of Hum. Servs., Ill. Welcoming Centers, Brochure,

15

https://tinyurl.com/y6o453sr ................................................................................. 2

16 Ill. Refugee Resettlement Prog., FY 2017 Annual Report,

17

https://tinyurl.com/y44vzxx8................................................................................. 2

18 Int’l Rescue Comm., The IRC in Los Angeles, CA,

19

https://tinyurl.com/IRC-refugee .......................................................................... 15

20 Jano Tantongco, State Budget Maintains Liberty Defense Project, Free

Legal Help for Immigrants, Long Island Wins (Apr. 5, 2018),

21

https://tinyurl.com/y2cxqz43................................................................................. 3

22 Josiah Heyman & Jeremy Slack, Blockading Asylum Seekers at Ports

23

of Entry at the US-Mexico Border Puts Them at Increased Risk of

24

Exploitation, Violence, and Death, Ctr. for Migration Studies (June 25, 2018), https://tinyurl.com/Heyman-Slack ................................................. 7, 13

25

Kate Linthicum, Rain Turns Migrant Camp in Tijuana into a

26

Miserable, Muddy Pit, L.A. Times (Nov. 29, 2018),

27

https://tinyurl.com/Linthicum-LAT ...................................................................... 5

28
iv
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4635 Page 6 of 28

1

TABLE OF AUTHORITIES

2

(continued)

3 Leah McDonald, Mayor of Tijuana Said the $30,000-a-Day Funding

Page

4

to Assist with Caravan of 6,000 Central American migrants Is

About to Run Out, Daily Mail (Nov. 28, 2018)..................................................... 6

5

6

Maria Atencio, Border Facilities Still Need Fixing After Second Migrant Child’s Death, Say Democrats, NBC News (Jan. 7, 2019),

7

https://tinyurl.com/y29foqc9. ................................................................................ 6

8 Mary Beth Sheridan, While Washington Focuses on the Wall, Mexico

9

Fears Its Own Border Crisis, Wash. Post (Dec. 28, 2018) ................................... 7

10 Mayor’s Off. of Community Affairs, FY 2019 Immigrant Justice Legal

11

Services Grant, https://tinyurl.com/DC-IJLSG ..................................................... 2

12 Medecins Sans Frontieres, Forced to Flee Central American’s

Northern Triangle: A Neglected Humanitarian Crisis (May 2017),

13

https://tinyurl.com/MSF-N-Triangle ..................................................................... 8

14 Mich. Dep’t of Heath & Hum. Servs., Refugee Assistance & Services,

15

https://tinyurl.com/y2ey3u3c................................................................................. 3

16 Mich. Dep’t of Heath & Hum. Servs., Refugee Assistance,

17

https://tinyurl.com/y9q662ms.............................................................................. 12

18 Molly Hennessy-Fiske, Why and How Are Asylum Seekers Entering

19

the U.S.?, L.A. Times (Nov. 22, 2018), https://tinyurl.com/Hennessy-Fiske....................................................................... 9

20

Monica Campbell, This Teen Migrated to the US Border to Escape

21

Gangs. He Hopes to Join His Mom in the US, PRI (Feb. 7, 2019),

22

https://tinyurl.com/y4dxlole .................................................................................. 9

23 N.M. Ctr. on L. and Poverty, Emergency Services for Immigrants,

24

https://tinyurl.com/y63a98o5................................................................................. 3

25 N.M. Dep’t of Pub. Health, Off. of Border Health, https://nmhealth.org/about/asd/ohe/obh/ ............................................................... 3
26
27 N.Y. St. Off. for New Americans, Our Mission, https://tinyurl.com/y5wb8dws ............................................................................. 12
28
v
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4636 Page 7 of 28

1

TABLE OF AUTHORITIES

2

(continued)

Page

3 N.Y. St. Off. for New Americans, Request for Applications, RFA #18-

4

ONA-32, available at https://tinyurl.com/y3oqjul6; ........................................... 12

5 N.Y. St. Off. of Temp. and Disability Assist., Refugee Servs.,

6

Overview, https://otda.ny.gov/programs/bria/ ..................................................... 12

7 N.Y. St., Div. of Budget, Governor Cuomo Announces Highlights of the FY 2019 State Budget, https://tinyurl.com/y6qv2jev .................................... 14

8

9

N.Y. St., Off. of Temporary and Disability Assistance, Refugee Services Provider Directory, https://tinyurl.com/y59wxyku .............................. 16

10

N.Y. St., Pressroom, Governor Cuomo Announces Expansion of

11

Services for Immigrant Community Through Office for New

12

Americans, https://tinyurl.com/y3yd54sb............................................................ 12

13 N.Y. State, Off. of Temporary and Disability Assistance, Refugee

14

Servs., Overview, https://otda.ny.gov/programs/bria/ ........................................... 3

15 Nadwa Mossad & Ryan Baugh, Refugees and Asylees: 2016, DHS Off. of Immig. Statistics (Jan. 2018), https://tinyurl.com/Mossad-Baugh ................. 10
16

17

Off. of Refugee and Immig. Assistance, Econ. Servs. Admin., Wash. Dep’t of Soc. & Health Servs., Briefing Book for State Fiscal Year

18

2018, https://tinyurl.com/y528prka ........................................................... 2, 12, 15

19 Off. of Refugee Resettlement, Unaccompanied Alien Children

20

Released to Sponsors by State (last updated Nov. 29, 2018),

https://tinyurl.com/UAC-state ............................................................................. 10

21

22 Opening Doors, Refugee Programs, https://tinyurl.com/OD-refugee...................... 15

23 Policy Brief: “Remain in Mexico” Plan Sows Chaos, Puts Asylum Seekers at Risk (Dec. 21, 2018), https://tinyurl.com/AILA-Remain .................4-5
24

25 Rick Jervis & Rafael Carranza, Trump’s Immigration Policies Are Benefiting Smugglers and Violent Crime Groups in Mexico, USA

26

Today (Feb. 4, 2019) ........................................................................................... 13

27

28
vi
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4637 Page 8 of 28

1

TABLE OF AUTHORITIES

2

(continued)

3 Robert Moore, “If the Police Aren’t Safe Here, What About Us?”

Page

4

Asylum Seekers Fear “Remain in Mexico” Policy, Texas Monthly

(Feb. 7, 2019)......................................................................................................... 4

5

6

Sarah Kinosian & Joshua Partlow, LGBT Asylum Seekers Are First to Reach the U.S. Border from the Caravan. Now They Wait., Wash.

7

Post (Nov. 13, 2018), https://tinyurl.com/Kinosian-Partlow. ............................... 7

8 Sarah Kinosian et al., Mexico Begins Moving Caravan Migrants to

9

New Shelter but Faces Mistrust, Wash. Post (Nov. 30, 2018).............................. 5

10 Sarah Kinosian, Migrants at Mexico Border Face an Uncertain Future

11

on Their Own, The Guardian (Dec. 1, 2018), https://tinyurl.com/Kinosian .................................................................................. 5

12

SF-CAIRS (the SF Refugee Forum), Refugee & Asylee Benefits,

13

http://sf-cairs.org/refugee-asylee-benefits ........................................................... 11

14 SF-CAIRS, Social Services and Mental Health, http://sf-

15

cairs.org/mental-health/ ....................................................................................... 14

16 Trump Administration Begins “Remain In Mexico” Policy, Sending

17

Asylum-Seekers Back, NPR (Jan. 29, 2019),

https://tinyurl.com/NPR-remain ............................................................................ 4

18

19

U. of Cal. Hastings Coll. of the L., Center for Gender and Refugee Studies, https://cgrs.uchastings.edu ..................................................................... 13

20

U. of Cal., Irvine Sch. of L., Immigrants’ Rights Clinic,

21

https://tinyurl.com/Irvine-immig ......................................................................... 13

22 U. of Cal.-Davis Sch. of L., Immigration Law Clinic,

23

https://tinyurl.com/Davis-immig ......................................................................... 13

24 U.S. Dep’t of State, Mexico Map, https://tinyurl.com/St-Dept-Mex-

25

Map ........................................................................................................................ 7

26 U.S. Dep’t of State, Mexico Travel Advisory (Nov. 15, 2018),

27

https://tinyurl.com/St-Dept-Mex ........................................................................... 7

28
vii
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4638 Page 9 of 28

1

TABLE OF AUTHORITIES

2

(continued)

Page

3 UNICEF, Statement on Situation of Migrant Children at Mexico-U.S.

4

Border (Nov. 28, 2018), https://tinyurl.com/UNICEF-border .............................. 5

5 UNLV William S. Boyd School of Law, UNLV Immigration Clinic,

6

https://tinyurl.com/y4ckoxhk............................................................................... 14

7 Va. Dep’t of Soc. Servs., More Refugee Services, https://dss.virginia.gov/family/ons/more.cgi ......................................................... 3
8

9

Va. Dep’t of Soc. Servs., Va. Refugee Resettlement Prog. Manual (Nov. 1, 2018), https://tinyurl.com/y4rxke6q ....................................................... 2

10

Wash. Dep’t of Health, Refugee Health Program, Provider Resources,

11

https://tinyurl.com/y2z7q38y............................................................................... 16

12 Wash. Dep’t of Soc. & Health Servs., Plan for Refugee Assistance

13

Program, 2015 8, https://tinyurl.com/yxmd2st3 ................................................. 16

14 Wash. Gov. Jay Insleee, Inslee Announces $1.2 Million for Civil Legal

15

Aid Funding to Northwest Immigrant Rights Project (June 20,

2018), https://tinyurl.com/y5xdkwfc ................................................................... 14

16

17

White House, Remarks by President Trump After Meeting with Congressional Leadership on Border Security (Jan. 4, 2019),

18

https://tinyurl.com/Trump-Cong-Border-Sec...................................................... 13

19 White House, Remarks by President Trump on the Humanitarian

20

Crisis on our Southern Border and the Shutdown

(Jan. 19, 2019), https://tinyurl.com/Trump-S-B-crisis ........................................ 12 21

22

23

24

25

26

27

28
viii
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4639 Page 10 of 28

1

INTRODUCTION AND STATEMENT OF INTEREST

2

The States of California, Connecticut, the District of Columbia, Delaware,

3 Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New 4 Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont,

5 Virginia, and Washington (Amici States) respectfully submit this brief as amici

6 curiae in support of plaintiffs’ opposition to defendants’ motion to partially dismiss 7 the second amended complaint in this matter. The Amici States have strong

8 interests in the issues raised here. They invest significant resources to provide

9 education, health care, and other services to immigrants residing within their 10 borders, including asylum-seekers and asylees, in order to appropriately transition

11 them into life in our States. The Amici States also have a strong interest in ensuring

12 that federal agencies refrain from actions that violate the law and Constitution. 13 Defendants’ Turnback Policy harms these interests by causing undue trauma to

14 migrants which will make their needs more difficult for the Amici States to address,

15 and illegally denying members of the plaintiff class their right to petition the United 16 States for asylum.

17

A number of the Amici States fund not-for-profit agencies to provide

18 services to asylum-seekers, among other immigrants.1 California, for example,

19 provided over $41 million in funding for this purpose in the past fiscal year.2 The

20 District of Columbia provides $900,000 in Immigrant Justice Legal Services grants

21 to community-based non-profits to provide targeted services—including direct legal

22

1 See, e.g., Cal. Dep’t of Soc. Servs. (CDSS), Immigration Services

23 Contractors, https://tinyurl.com/Cal-DSS-ISC. These grantees include plaintiff

24

organization Al Otro Lado. Last year, Al Otro Lado was a subcontractor of grantee International Institute of LA, and received approximately $250,000; in the

25 upcoming fiscal year, Al Otro Lado is proposed to receive a similar amount as a

26 direct grantee.

27

2 CDSS, Immigration Branch Immigration Services Funding Tentative Award Announcement (Oct. 31, 2017), https://tinyurl.com/Cal-DSS-ISawards.

28
1

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4640 Page 11 of 28

1 services to asylum seekers—in the District.3 Massachusetts provides funds

2 specifically to assist immigrants with respect to domestic violence, mental health

3 services relating to torture and trauma, academic and coaching support,

4 employment and business services, and legal assistance.4 Washington’s Office of

5 Refugee and Immigrant Assistance provides comprehensive economic stability and

6 immigration services to more than 10,000 refugees and immigrants each year,

7 including asylees and unaccompanied children, using an annual budget of nearly

8 $28 million.5 Illinois provides funds to assist immigrants with refugee resettlement,

9 including short-term cash assistance, health screening, language services,

10 vocational training and employment services, assistance with public benefits and

11 human services, and multilingual mental health services for immigrants who have

12 experienced severe trauma.6 Virginia provides asylees services and support through

13 the Virginia Refugee Resettlement Program. These services include financial

14 assistance (such as rent, utilities, transportation, and other basic needs),

15 employment assistance, academic integration support (including adjustment

16 services to students and parents and college preparation assistance), individual

17 mentoring for youth, adjustment services to elders, and citizenship and benefit

18 application assistance.7 New Mexico funds several significant border transition

19

3 See Mayor’s Off. of Community Affairs, FY 2019 Immigrant Justice Legal

20 Services Grant, https://tinyurl.com/DC-IJLSG.

21

4 See FY 2019 Final Budget, 2018 Mass. Acts 154, https://tinyurl.com/Mass-

FY19.

22

5 See Off. of Refugee and Immig. Assistance, Econ. Servs. Admin., Wash.

23 Dep’t of Soc. & Health Servs., Briefing Book for State Fiscal Year 2018,

24 https://tinyurl.com/y528prka.

25

6 See Ill. Refugee Resettlement Prog., FY 2017 Annual Report, https://tinyurl.com/y44vzxx8; Ill. Dep’t of Hum. Servs., Bureau of Refugee and

26 Immigrant Servs., https://tinyurl.com/y3ed43xs; Ill. Dep’t of Hum. Servs., Ill.

27 Welcoming Centers, Brochure, https://tinyurl.com/y6o453sr. 7 Va. Dep’t of Soc. Servs., Va. Refugee Resettlement Prog. Manual (Nov. 1,
28
2

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4641 Page 12 of 28

1 programs designed to help newcomers stay healthy, get educated and go to work.

2 New Mexico supports new immigrants to become productive community members

3 through its Emergency Medicaid Services for Aliens (EMSA)8 and Border Health

4 Services programs,9 among others, which provide services without regard to

5 citizenship status. New York allocates millions of dollars to support immigrants’

6 access to education, employment, health care, and legal services.10 New Jersey will

7 provide up to $2.1 million in 2019 for legal assistance to individuals facing

8 detention or deportation based on their immigration status.11

9

Amici States also provide funding for organizations to assist undocumented

10 unaccompanied minors, many of whom have asylum claims.12 As discussed further

11 below, the harms to organizations like plaintiff Al Otro Lado that the Turnback

12 Policy causes in the form of frustration of mission and diversion of resources also

13 2018), https://tinyurl.com/y4rxke6q; Va. Dep’t of Soc. Servs., More Refugee 14 Services, https://dss.virginia.gov/family/ons/more.cgi.

15

8 See N.M. Ctr. on L. and Poverty, Emergency Services for Immigrants,

https://tinyurl.com/y63a98o5. 16
9 N.M. Dep’t of Pub. Health, Off. of Border Health,

17 https://nmhealth.org/about/asd/ohe/obh/.

18

10 See, e.g., N.Y. State, Off. of Temporary and Disability Assistance, Refugee

19 Servs., Overview, https://otda.ny.gov/programs/bria/; Jano Tantongco, State Budget Maintains Liberty Defense Project, Free Legal Help for Immigrants, Long Island

20 Wins (Apr. 5, 2018), https://tinyurl.com/y2cxqz43.

21

11 See FY 2019 Budget Detail, 2018 N.J. Sess. Law Serv. Ch. 53, p. B-199,

22 https://tinyurl.com/y4j2386n. 12 See, e.g., CDSS, Unaccompanied Undocumented Minors Legal Services
23 Funding Contractor Referral List (FY2017-18), https://tinyurl.com/ILS-contractors

24 (including Al Otro Lado); CDSS, Immigration Services, supra note 1 (noting that

25

CDSS provided almost $3 million for these services in FY 2018-19). Michigan has two programs for children, including the largest state program for Unaccompanied

26 Refugee Minors (URM), providing foster care services for eligible minors granted

27

asylee/refugee status before coming to the U.S. See Mich. Dep’t of Heath & Hum. Servs., Refugee Assistance & Services, https://tinyurl.com/y2ey3u3c.

28
3

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4642 Page 13 of 28

1 impact Amici States, as delivery of these critical state-funded services is impeded.

2

Thus, the States urge the Court to deny the motion to dismiss and allow this

3 action to move forward.13

4

ARGUMENT

5

A. The Turnback Policy is Exacerbating Inhumane Border

Conditions and Causing Additional Trauma to Already

6

Vulnerable Migrants.

7

Defendants’ Turnback Policy, which forces migrants to remain at the border

8 while they attempt to enter the United States, inflicts significant trauma on migrants

9 who have already been traumatized as discussed below.14 Media reports have

10 13 A number of the Amici States have challenged the Turnback Policy in the
11 context of its connection to defendants’ family separation policy in a lawsuit

12 transferred to this Court in August 2018. Compl., Washington v. United States, Case No. 18-cv-1979 (S.D. Cal. June 26, 2018), ¶¶ 2 (“Border officials are
13 unlawfully turning away . . . families [fleeing violence and persecution in their

14 home countries] on the pretext that the United States is ‘full’ or no longer accepting asylum seekers. This unlawful practice exacerbates the trauma already suffered by
15 [asylum seeking] families . . . .”); 58–60 (describing Turnback Policy). Defendants

16 have yet to respond to the complaint in that case.

17

14 Defendants have also recently begun to implement a program—originally

known as “Remain in Mexico,” and since renamed the “Migrant Protection

18 Protocols” (MPP)—under which asylum seekers are returned to Mexico for the

19 duration of their asylum proceedings. See DHS, Migrant Protection Protocols (Jan. 24, 2019), https://tinyurl.com/DHS-remain. While initially only applying the policy
20 to single adults at the San Diego-Tijuana border crossing, Richard Gonzales, Trump

21 Administration Begins “Remain In Mexico” Policy, Sending Asylum-Seekers Back, NPR (Jan. 29, 2019), https://tinyurl.com/NPR-remain, DHS has reportedly begun
22 returning families as well. Adolfo Flores, The Trump Administration Has Sent the

23 First Asylum-Seeking Families Back to Mexico (Feb. 14, 2019), https://tinyurl.com/y2sptvew. And DHS reportedly plans to expand MPP to other
24 sectors of the border. Robert Moore, “If the Police Aren’t Safe Here, What About

25 Us?” Asylum Seekers Fear “Remain in Mexico” Policy, Texas Monthly (Feb. 7, 2019), https://tinyurl.com/Tex-Mo-Juarez (describing plan to “begin implementing
26 [MPP] at other border sites, beginning with the El Paso-Juárez border”). This new

27 policy will result in still more individuals languishing for still longer in dangerous and inhumane conditions at the border. See, e.g., Am. Immig. Lawyers Assoc.,
28
4

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4643 Page 14 of 28

1 extensively documented the inhumane conditions outside these ports of entry. The

2 images and stories are grim, as thousands of immigrants, many with young

3 children, have been forced to stay in a makeshift camp at a sports complex, a shelter

4 at an abandoned concert venue in one of the most dangerous parts of Tijuana, and

5 on plastic tarps in the streets waiting to be processed by CBP.15 After multiple

6 instances of rain, the camp at the sports complex became a muddy pit where people

7 lost their limited belongings.16 The unsanitary conditions “have raised concerns

8 among aid workers and humanitarian organizations that the migrants, packed into a

9 space intended for half their number, are susceptible to outbreaks of disease.”17

10 Many developed respiratory infections due to the wet and cold weather, and health

11 officials also reported multiple cases of lice and chicken pox.18 Children

12 languishing at the border are becoming ill and not attending school, and families are

13 not receiving basic health and social services that the States would otherwise

14 provide, including mental health treatment.19 Local authorities lack sufficient

15 Policy Brief: “Remain in Mexico” Plan Sows Chaos, Puts Asylum Seekers at Risk
16 (Dec. 21, 2018), https://tinyurl.com/AILA-Remain.

17

15 Catherine E. Shoichet & Leyla Santiago, The Tear Gas is Gone. But in

18 This Shelter at the Border, the Situation Is Getting Worse, CNN (Nov. 29, 2018), https://tinyurl.com/Shoichet; Sarah Kinosian, Migrants at Mexico Border Face an
19 Uncertain Future on Their Own, The Guardian (Dec. 1, 2018),

20 https://tinyurl.com/Kinosian.

21

16 Kate Linthicum, Rain Turns Migrant Camp in Tijuana into a Miserable,

Muddy Pit, L.A. Times (Nov. 29, 2018), https://tinyurl.com/Linthicum-LAT.

22

17 Sarah Kinosian et al., Mexico Begins Moving Caravan Migrants to New

23 Shelter but Faces Mistrust, Wash. Post (Nov. 30, 2018),

24 https://tinyurl.com/Kinosian-shelter.

25

18 Christine Murray, Ailing Central American Migrants in Dire Conditions Dig in at U.S. Border, Reuters (Nov. 28, 2018), https://tinyurl.com/Murray-Reuters.

26

19 UNICEF, Statement on Situation of Migrant Children at Mexico-U.S.

27 Border (Nov. 28, 2018), https://tinyurl.com/UNICEF-border (noting “limited access to many of the essential services [children] need for their wellbeing,
28
5

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4644 Page 15 of 28

1 resources to help immigrants for prolonged periods and have called on

2 humanitarian organizations for assistance.20 Recent media reports indicate that

3 conditions have not improved; in fact, “it’s clear the government shutdown has only

4 made conditions worse—making the legal process even more dragged out for

5 [asylum seekers] still applying and waiting.”21 Indeed, Amnesty International

6 reported that one of the few shelters available to migrants near Tijuana (the

7 abandoned concert hall) closed with virtually no notice, leaving former residents to

8 wander around outside.22

9

In New Mexico, two young children died in CBP custody in the month of

10 December 2018 alone. Jakelin Caal Maquin, a seven-year-old Guatemalan girl, died

11 of septic shock, fever and dehydration on December 8 after seeking asylum at the

12 Antelope Wells designated point of entry and waiting some six hours before being

13 transported the 90 miles to Lordsburg, New Mexico.23 Felipe Gómez Alonzo, an

14 eight-year-old who attempted to enter the country near El Paso, was held for a week

15 in CBP custody before his Christmas Eve death near Alamogordo.24 The bottleneck

16 created by the Trump Administration’s Turnback policy is a direct threat to the

17 including nutrition, education, psychosocial support and healthcare”).

18

20 Leah McDonald, Mayor of Tijuana Said the $30,000-a-Day Funding to

19 Assist with Caravan of 6,000 Central American migrants Is About to Run Out,

Daily Mail (Nov. 28, 2018), https://tinyurl.com/McDonald-DailyMail. 20
21 Elizabeth Espinosa & Marissa Wenzke, In Tijuana, an L.A. City 21 Councilman Tries to Help While Migrants Face a Complicated and Harsh Process

22 for Asylum, KTLA (Jan. 22, 2019), https://tinyurl.com/KTLA-Tijuana.

23

22 D. Parvaz, The Pentagon Just Doesn’t See Trump’s Border Wall as an

Emergency, ThinkProgress (Jan. 30, 2019) https://tinyurl.com/Parvaz-Wall.

24

23 Angela Kocherga, Border Patrol Officials Probe Death of 7-Year Old,

25 Albuquerque J. (Dec. 14, 2018), https://tinyurl.com/y6hh7lys.

26

24 Maria Atencio, Border Facilities Still Need Fixing After Second Migrant

27

Child’s Death, Say Democrats, NBC News (Jan. 7, 2019), https://tinyurl.com/y29foqc9.

28
6

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4645 Page 16 of 28

1 health of children and families.

2

In addition to adverse physical conditions, vulnerable adults and children are

3 exposed to greatly increased risks of crime and exploitation as they wait at the

4 border.25 See E. Bay Sanctuary Covenant v. Trump, No. 18-cv-06810-JST, 2018

5 WL 6053140, at *19 (N.D. Cal. Nov. 19, 2018), appeal docketed, No. 18-17274

6 (9th Cir. Nov. 27, 2018) (discussing “the extensive record evidence of the danger

7 experienced by asylum seekers waiting to cross”). Indeed, the State Department’s

8 own travel advisories warn Americans considering travel to Mexico to “exercise

9 increased caution” because “[v]iolent crime, such as homicide, kidnapping,

10 carjacking, and robbery, is widespread.”26 A number of Mexican states on the

11 border where would-be asylum seekers are languishing are even more dangerous in

12 the State Department’s estimation, designated “Reconsider Travel” or “Do Not

13 Travel.”27 Indeed, U.S. government employees are forbidden from driving “from

14 the U.S.-Mexico border to or from the interior parts of Mexico.”28 Tragically, in

15 late 2018, two young Honduran migrants were murdered in Tijuana, which is

16 experiencing a record number of homicides.29 And some LGBTQ immigrants face

17 threats of harassment and violence.30 The weeks or months of delay in processing

18

25 Josiah Heyman & Jeremy Slack, Blockading Asylum Seekers at Ports of

19 Entry at the US-Mexico Border Puts Them at Increased Risk of Exploitation,

Violence, and Death, Ctr. for Migration Studies (June 25, 2018), 20 https://tinyurl.com/Heyman-Slack; see Compl. ¶ 46.

21

26 U.S. Dep’t of State, Mexico Travel Advisory (Nov. 15, 2018),

22 https://tinyurl.com/St-Dept-Mex.

23

27 U.S. Dep’t of State, Mexico Map, https://tinyurl.com/St-Dept-Mex-Map.

24

28 Mexico Travel Advisory, supra note 26.

25

29 Mary Beth Sheridan, While Washington Focuses on the Wall, Mexico Fears Its Own Border Crisis, Wash. Post (Dec. 28, 2018),

26 https://tinyurl.com/Sheridan-Border.

27

30 Sarah Kinosian & Joshua Partlow, LGBT Asylum Seekers Are First to

Reach the U.S. Border from the Caravan. Now They Wait., Wash. Post (Nov. 13, 28
7

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4646 Page 17 of 28

1 asylum applications caused by defendants’ Turnback Policy will only aggravate the

2 harms these individuals face and increase the amount and intensity of social

3 services the States will be required to provide to them, as discussed below.

4

The trauma inflicted by the Turnback Policy will exacerbate the trauma that

5 asylum seekers have suffered in their home countries and en route to the border.

6 The vast majority of the individuals affected by the Turnback Policy are from

7 Central America’s “Northern Triangle” countries—Guatemala, Honduras, and El

8 Salvador. Compl. ¶ 40. As set forth in detail in the Second Amended Complaint and

9 in third-party reports, the Northern Triangle is one of the most violent regions in the

10 world, with conditions “akin to the conditions found in the deadliest armed

11 conflicts in the world today.”31 Asylum seekers from this region flee from

12 extremely dangerous circumstances, most commonly murders of family members,

13 threats to life or limb, extortion, and domestic violence.32 Immigrants who flee this

14 violence face additional threats during their journey north. Along the route through

15 Mexico and to the United States, immigrants are injured and traumatized from

16 physical violence, abduction, theft, extortion, torture, and rape, often perpetrated by

17 gangs and other criminal organizations.33 Unsurprisingly, these experiences have

18

19

20 2018), https://tinyurl.com/Kinosian-Partlow.

21

31 Medecins Sans Frontieres, Forced to Flee Central American’s Northern

Triangle: A Neglected Humanitarian Crisis (May 2017), https://tinyurl.com/MSF-

22 N-Triangle (stating that the level of violence suffered by Northern Triangle

23 residents is comparable to that in war zones, and noting that homicidal violence in this region has led to higher numbers of civilian casualties than anywhere else in
24 the world, including countries with armed conflicts or war); see Compl. ¶¶ 41–43.

25

32 Allen Keller et al., Pre-Migration Trauma Exposure and Mental Health

26 Functioning among Central American Migrants Arriving at the US Border, 12 PloS one e0168692 (Jan. 10, 2017), https://tinyurl.com/Keller-Trauma.

27

33 Forced to Flee, supra note 31; see Compl. ¶ 44.

28
8

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4647 Page 18 of 28

1 caused high rates of serious mental health issues, including anxiety, post-traumatic

2 stress disorder and major depressive disorder.34

3

Finally, the harm from the Turnback Policy extends to residents of the States

4 who suffer the anguish of uncertainty as their asylum-seeking relatives are in limbo

5 at the border. Many Central American asylum-seekers have relatives across the

6 country, including in Los Angeles, Miami, New York, and Washington.35 These

7 include the Los Angeles family members of a Honduran family with young

8 children,36 and a San Francisco mother, who has been anxiously awaiting the fate of

9 her 15-year-old son for months, after he was detained by Mexican authorities with

10 other minors as they attempted to apply for asylum.37 These residents of the States

11 are being harmed by the federal government’s actions, and the States have a

12 significant interest in ensuring that plaintiffs’ lawsuit to stop those actions is heard

13 on the merits.

14

B. The States will be harmed by the effects of the Turnback Policy.

15

Every year, the States welcome thousands of potential asylees into their

16 communities who have suffered the trauma discussed above, providing or funding a

17 number of social services to help them realize their potential in their new country.

18 The additional mental and physical health harms caused by defendants’ Turnback

19

20

34 Keller, supra note 32.

21

35 See, e.g., Molly Hennessy-Fiske, Why and How Are Asylum Seekers

Entering the U.S.?, L.A. Times (Nov. 22, 2018), https://tinyurl.com/Hennessy-

22 Fiske.

23

36 Elliot Spagat, More Caravan Migrants Arrive in Tijuana, Brace for Long

24 Stay, Fox News (Nov. 15, 2018), https://tinyurl.com/Spagat-Fox.

25

37 Cristina Rendon, Salvadorian Woman Nervously Awaits Contact from Son Seeking Asylum at US-Mexico Border, Fox KTVU (Nov. 26, 2018),

26 https://tinyurl.com/Rendon-KTVU; Monica Campbell, This Teen Migrated to the

27

US Border to Escape Gangs. He Hopes to Join His Mom in the US, PRI (Feb. 7, 2019), https://tinyurl.com/y4dxlole.

28
9

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4648 Page 19 of 28

1 Policy will make asylees’ needs for these services even more intense and

2 challenging to meet, requiring the States to divert resources from other services.

3

The States signatory to this brief have welcomed over 73 percent of the total

4 asylees entering the United States.38 In the 2017 fiscal year, almost 15,000

5 accompanied immigrant children (those arriving with their families) received

6 positive credible fear determinations and were released from federal custody, many

7 in Amici States.39 And in FY 2018, 16,746 unaccompanied immigrant children

8 were released from federal custody to adult sponsors in Amici States, 48 percent of

9 the total.40 Historically, a high percentage of these children have been found to have

10 viable claims for asylum, although that percentage has dropped in the past two

11 years due the Trump Administration’s policies.41

12

The States, their local jurisdictions, and non-governmental organizations

13 based in the States will assist the victims of the unnecessary trauma that defendants’

14 Turnback Policy causes, utilizing resources diverted from other purposes. Among

15 other services, the States’ public schools will face more challenges in educating

16 students who have been traumatized and needlessly missed months or years of

17

18 38 Nadwa Mossad & Ryan Baugh, Refugees and Asylees: 2016, DHS Off. of
19 Immig. Statistics (Jan. 2018), https://tinyurl.com/Mossad-Baugh. California
20 receives almost 44 percent of the total, by far the most of any state. Collectively, Amici States New York, New Jersey, Virginia, Maryland, Washington,
21 Massachusetts, and Illinois receive almost 29 percent; the District of Columbia has
22 the second highest number of asylees per capita of any state.

23

39 See Apprehension, Processing, Care, and Custody of Alien Minors and

Unaccompanied Alien Children, 83 Fed. Reg. 45486, 45519 (proposed Sept. 7,

24 2018).

25

40 Off. of Refugee Resettlement, Unaccompanied Alien Children Released to

26 Sponsors by State (last updated Nov. 29, 2018), https://tinyurl.com/UAC-state.

27

41 Beth Fertig, Unaccompanied Minors Have Tougher Time Winning Asylum, WNYC (June 6, 2018), https://tinyurl.com/Fertig-WNYC.

28
10

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4649 Page 20 of 28

1 schooling while they wait at the border.42 And the States’ public health care

2 systems will have to address the increased health needs of immigrants who have not

3 had access to preventative care, vaccinations, and necessary medical care as they

4 were trapped near ports of entry by the Turnback Policy.

5

Further, the States have invested in specialized services to meet asylees’

6 needs, which will be taxed due to increased need caused by defendants’ policy. For

7 example, in California, the Immigration Branch of CDSS has various forms of

8 assistance for certain eligible asylees, including programs that provide cash

9 assistance and employment services, as well as services for unaccompanied minors

10 and victims of human trafficking.43 Program benefits and services are typically

11 administered at the local level by county social services departments, or through

12 county contracts with local service providers to deliver direct services, including

13 services for elders, integration and language assistance for students, and assistance

14 to unaccompanied minors.44 One of Washington’s state social service programs

15 partners with local governments, community and technical colleges, ethnic

16 community-based organizations, and other service provider agencies to deliver

17 educational services, job training skills, assistance establishing housing and

18

19 42 See Washington Compl. ¶¶ 229 (citing Plyler v. Doe, 457 U.S. 202 (1982),

20 which requires states to provide free public education to children regardless of

21 immigration status, as well as “various statutory obligations to provide particularized services to high needs students, such as through the Individuals with
22 Disabilities Education Act (IDEA)”), 230 (citing research showing that “experience

23 of trauma may severely undercut a child’s ability to learn and function in the

classroom”).

24

43 See CDSS, Services for Refugees, Asylees, and Trafficking Victims,

25 https://www.cdss.ca.gov/Refugee-Services.

26

44 Id.; see also SF-CAIRS (the SF Refugee Forum), Refugee & Asylee

27

Benefits, http://sf-cairs.org/refugee-asylee-benefits; Cty. of L.A., Dep’t of Soc. Servs., Refugee Employment Program, https://tinyurl.com/LA-refugee.

28
11

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4650 Page 21 of 28

1 transportation, language classes, and other comprehensive support services.45

2 Michigan provides cash and medical assistance programs through the Michigan

3 Department of Health and Human Services, as well as employment services,

4 integration services, education services, language services, health-related services,

5 and elderly services through private agencies.46 Similarly, in New York, Refugee

6 Services—part of New York’s Office of Temporary and Disability Assistance—

7 provides targeted assistance for unaccompanied minors and victims of human

8 trafficking. These services include temporary cash assistance, health care

9 screenings and medical services, and employment programs.47 Additionally, New

10 York’s Office for New Americans has established neighborhood-based Opportunity

11 Centers throughout the State to provide, inter alia, English language courses and

12 business development for immigrants.48

13

After weeks or months spent languishing at the border, the beneficiaries of

14 these services will, in many cases, predictably require more (or more intensive)

15 services. For example, despite the Administration’s claims that its actions will

16 reduce human trafficking,49 international experts have found that policies such as

17

45 See Off. of Refugee and Immig. Assistance, Econ. Servs. Admin., Wash.

18 Dep’t of Soc. & Health Servs., Briefing Book for State Fiscal Year 2018, https://tinyurl.com/y528prka.
19 46 See Mich. Dep’t of Heath & Hum. Servs., Refugee Assistance,

20 https://tinyurl.com/y9q662ms.

21

47 See N.Y. St. Off. of Temp. and Disability Assist., Refugee Servs.,

22 Overview, https://otda.ny.gov/programs/bria/. 48 See N.Y. St. Off. for New Americans, Our Mission,
23 https://tinyurl.com/y5wb8dws; see also N.Y. St. Off. for New Americans, Request

24 for Applications, RFA #18-ONA-32, available at https://tinyurl.com/y3oqjul6; N.Y.

25

St., Pressroom, Governor Cuomo Announces Expansion of Services for Immigrant Community Through Office for New Americans, https://tinyurl.com/y3yd54sb .

26

49 See, e.g., White House, Remarks by President Trump on the Humanitarian

27 Crisis on our Southern Border and the Shutdown (Jan. 19, 2019), https://tinyurl.com/Trump-S-B-crisis (“Our plan includes critical measures to
28
12

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4651 Page 22 of 28

1 the Turnback Policy make migrants significantly more vulnerable to these kinds of

2 abuses,50 which will increase the need for the States to address the impacts through

3 programs like those discussed above. Indeed, media reports indicate that the policy

4 has been a bonanza for human traffickers, who now charge “increasingly desperate”

5 migrants up to $7,500 per person to cross.51

6

Recognizing the importance of proper legal guidance during immigration

7 proceedings, Amici States fund a number of non-profit legal service organizations

8 to provide free or low-cost legal services for asylum seekers. For example,

9 California funds dozens of such organizations, including plaintiff Al Otro Lado, to

10 provide services including assisting applicants for asylum and seeking other

11 immigration remedies and assisting individuals with removal defense.52 And

12 California’s public universities also fund programs that provide legal assistance to

13 migrants seeking asylum.53 Washington State allocated a million dollars from its

14 general fund for FY 2019 to legal services organizations serving asylum seekers

15

16 protect migrant children from exploitation and abuse”); White House, Remarks by 17 President Trump After Meeting with Congressional Leadership on Border Security
(Jan. 4, 2019), https://tinyurl.com/Trump-Cong-Border-Sec (claiming that current 18 border conditions allow human trafficking of women and children, including 19 “traffickers having three and four women with tape on their mouths and tied up”).

20

50 See Heyman, supra note 25 (“Blockaded asylum seekers in northern

Mexican border cities, bottled up in those sites with few or no resources or

21 connections, are particularly vulnerable to labor, sexual, and other trafficking”).

22

51 Rick Jervis & Rafael Carranza, Trump’s Immigration Policies Are

23 Benefiting Smugglers and Violent Crime Groups in Mexico, USA Today (Feb. 4,

2019), https://tinyurl.com/Jervis-USA.

24

52 See Immigration Services Contractors, supra note 1.

25

53 See, e.g., U. of Cal.-Davis Sch. of L., Immigration Law Clinic,

26 https://tinyurl.com/Davis-immig; U. of Cal. Hastings Coll. of the L., Center for

27

Gender and Refugee Studies, https://cgrs.uchastings.edu; U. of Cal., Irvine Sch. of L., Immigrants’ Rights Clinic, https://tinyurl.com/Irvine-immig

28
13

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4652 Page 23 of 28

1 and other migrant populations in the state.54 Partially in response to the federal

2 administration’s 2018 family separation policy, Washington State directed $1.2

3 million to legal services for immigrants.55 Among other programs, New York funds

4 the Liberty Defense Project, a State-led, public-private legal defense fund designed

5 to ensure that immigrants have access to legal counsel.56 The University of Nevada,

6 in Reno and Las Vegas, provides aid to refugee families, including the UNLV

7 School of Law’s Immigration Clinic, which provides deportation defense services

8 to families and unaccompanied children seeking asylum.57

9

Harms to these organizations from the Turnback Policy in the form of

10 frustration of mission and diversion of resources, as stated in the complaint, Compl.

11 ¶¶ 17–23, redound to their funders, including the Amici States, whose priorities and

12 funding decisions are impacted as well.

13

Amici States also fund qualified nonprofit organizations to provide other

14 immigration-related assistance to individuals who have been granted asylum. These

15 organizations provide asylees access to crucial services such as mental health care,

16 education, and resettlement assistance.58 For example, the International Rescue

17 Committee for the City of Los Angeles provides programs that assist asylum

18 grantees with health care, resettlement, economic opportunities, and community

19 54 See Wash. Laws of 2018, ch. 299, § 127(65) (amending Laws of 2017, 3d
20 Spec. Sess., ch. 1, § 128) (Mar. 27, 2018), https://tinyurl.com/yy3rduov.

21

55 See, e.g., Wash. Gov. Jay Insleee, Inslee Announces $1.2 Million for Civil

22 Legal Aid Funding to Northwest Immigrant Rights Project (June 20, 2018),
https://tinyurl.com/y5xdkwfc . 23
56 See N.Y. St., Div. of Budget, Governor Cuomo Announces Highlights of 24 the FY 2019 State Budget, https://tinyurl.com/y6qv2jev.

25

57 UNLV William S. Boyd School of Law, UNLV Immigration Clinic,

26 https://tinyurl.com/y4ckoxhk.

27

58 See, e.g., SF-CAIRS, Social Services and Mental Health, http://sfcairs.org/mental-health/.

28
14

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4653 Page 24 of 28

1 integration and development.59 Opening Doors in Sacramento offers a literacy

2 program, as well as resettlement assistance and family trauma counseling.60 The

3 City of Seattle’s New Americans Program is one of 16 different community-based

4 programs in Washington providing employment services, vocational English

5 language programs, food assistance, and application and preparation assistance for

6 the naturalization exam.61 In New York City, CAMBA provides asylees with

7 counseling, social services, and employment-related training.62 After enduring

8 additional trauma at the border, many asylees will require significantly more of

9 these types of services, putting pressure on these organizations and their funders,

10 including the Amici States.

11

The Amici States’ agencies work with impacted local health agencies,

12 providers, and resettlement agencies to provide assessments and other health

13 services to asylees, victims of severe forms of human trafficking, and other eligible

14 entrants.63 For example, the Highland Human Rights Clinic in Oakland (operated

15 by the Alameda County Health System) conducts approximately 80 to 120 health

16 assessments of asylees in California annually.64 According to the Clinic’s medical

17 director, the vast majority of the patients he evaluates need mental health referrals,

18

19

59 Int’l Rescue Comm., The IRC in Los Angeles, CA, https://tinyurl.com/IRC-

20 refugee.

21

60 Opening Doors, Refugee Programs, https://tinyurl.com/OD-refugee.

61 See Off. of Refugee and Immig. Assistance, Econ. Servs. Admin., Wash. 22 Dep’t of Soc. & Health Servs., Briefing Book for State Fiscal Year 2018,

23 https://tinyurl.com/y528prka.

24

62 See CAMBA, Refugee Assistance Program, https://tinyurl.com/y2d2nlt7.

25

63 See, e.g., CDPH, Office of Refugee Health, https://tinyurl.com/CDPH-

26 refugee.

27

64 Anna Gorman, Medical Clinics that Treat Refugees Help Determine the Case for Asylum, NPR (July 10, 2018), https://tinyurl.com/Gorman-NPR.

28
15

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4654 Page 25 of 28

1 due to years of abuse and trauma.65 These needs will only be increased by the

2 additional trauma that migrants will endure while languishing in dangerous,

3 unhealthy conditions at the border due to the Turnback Policy.

4

Washington funds a State Refugee Coordinator to ensure that state agencies

5 collaborate with local partners including clinicians, community based

6 organizations, health coalitions, and voluntary agencies to address refugee health

7 issues.66 In addition, the Washington State Refugee Health Promotion Project is a

8 collaboration between state agencies, health providers, and resettlement agencies

9 such as Seattle Children’s Hospital and Lutheran Community Services Northwest to

10 improve health outcomes and enable successful resettlement for refugee

11 populations.67 In New York, the Office of Temporary and Disability Assistance

12 supports numerous organizations that provide health care services to refugees and

13 asylees, including care for post-traumatic stress syndrome and depression.68

14

All of these state-provided resources will be further impacted due to the

15 increased harms that the Turnback Policy causes to individuals who are eventually

16 able to present their asylum claims and enter the country.

17

CONCLUSION

18

Defendants’ motion to partially dismiss the second amended complaint

19 should be denied.

20

21

22

23

65 Id.

24

66 See Wash. Dep’t of Soc. & Health Servs., Plan for Refugee Assistance

25 Program, 2015 8, https://tinyurl.com/yxmd2st3. 67 Id. at 6; see also Wash. Dep’t of Health, Refugee Health Program,
26 Provider Resources, https://tinyurl.com/y2z7q38y.

27

68 See N.Y. St., Off. of Temporary and Disability Assistance, Refugee

28 Services Provider Directory, https://tinyurl.com/y59wxyku.
16

States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4655 Page 26 of 28

1 Dated: February 21, 2019
2
3
4
5
6
7
8
9
10 WILLIAM TONG 11 Attorney General
State of Connecticut 12 55 Elm Street 13 Hartford, CT 06106
14 KATHLEEN JENNINGS 15 Attorney General
State of Delaware 16 820 North French Street 17 Wilmington, DE 19801
18 KWAME RAOUL 19 Attorney General
State of Illinois 20 100 W. Randolph Street, 12th Fl. 21 Chicago, IL 60601
22 MAURA HEALEY 23 Attorney General
Commonwealth of Massachusetts 24 One Ashburton Place 25 Boston, MA 02108
26
27
28

Respectfully submitted,
XAVIER BECERRA Attorney General of California MICHAEL L. NEWMAN Senior Assistant Attorney General CHRISTINE CHUANG Supervising Deputy Attorney General s/ James F. Zahradka II JAMES F. ZAHRADKA II VILMA PALMA-SOLANA Deputy Attorneys General Attorneys for the State of California
KARL A. RACINE Attorney General District of Columbia 441 4th Street, N.W. Washington, D.C. 20001
CLARE E. CONNORS Attorney General State of Hawaii 425 Queen Street Honolulu, HI 96813
BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place Baltimore, MD 21202
DANA NESSEL Attorney General State of Michigan P.O. Box 30212 Lansing, MI 48909
17 States’ Amicus Curiae Brief
Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4656 Page 27 of 28

1 KEITH ELLISON 2 Attorney General
State of Minnesota 3 75 Rev. Dr. Martin Luther King Jr. Blvd. 4 St. Paul, MN 55155

AARON D. FORD Attorney General State of Nevada 100 North Carson Street Carson City, NV 89701

5 GURBIR S. GREWAL 6 Attorney General
State of New Jersey 7 25 Market Street, Box 080 8 Trenton, NJ 08625

HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo Street Santa Fe, NM 87501

9 LETITIA JAMES
10 Attorney General State of New York
11 28 Liberty Street
12 New York, NY 10005

ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street N.E. Salem, OR 97301

13 JOSH SHAPIRO
14 Attorney General Commonwealth of Pennsylvania
15 Strawberry Square
16 Harrisburg, PA 17120

PETER F. NERONHA Attorney General State of Rhode Island 150 S. Main Street Providence, RI 02903

17 THOMAS J. DONOVAN, JR.
18 Attorney General State of Vermont
19 109 State Street 20 Montpelier, VT 05609

MARK R. HERRING Attorney General Commonwealth of Virginia 202 N. Ninth Street Richmond, VA 23219

21 ROBERT W. FERGUSON 22 Attorney General
State of Washington 23 P.O. Box 40100 24 Olympia, WA 98504

25

26

OK2018602965 91076245.docx

27

28
18
States’ Amicus Curiae Brief Case No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 215-1 Filed 02/21/19 PageID.4657 Page 28 of 28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 States’ Amicus Curiae Brief
Case No. 3:17-cv-02366-BAS-KSC

 
 Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4660 Page 1 of 23
EXHIBIT Amicus Curiae Brief of Amnesty International
in Opposition to Defendant’s Motion to Dismiss

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4661 Page 2 of 23

1 AKIN GUMP STRAUSS HAUER & FELD LLP

SUSAN K. LEADER [SBN 216743] 2 sleader@akingump.com

3

1999 Avenue of the Stars Suite 600

4 Los Angeles, CA 90067 Telephone: (310) 229-1000

5 Facsimile: (310) 229-1001

6 Attorneys for Amicus Curiae 7 Amnesty International

8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11 AL OTRO LADO, INC., a California

12 corporation; ABIGAIL DOE, BEATRICE DOE, CAROLINA DOE, DINORA DOE,
13 INGRID DOE, ROBERTO DOE, MARIA

14 DOE, JUAN DOE, ÚRSULA DOE, VICTORIA DOE, BIANCA DOE,
15 EMILIANA DOE, AND CÉSAR DOE,

16 individually and on behalf of all others

similarly situated,

17

Plaintiffs,

18 v.

19 KIRSTJEN M. NIELSEN, Secretary,
20 United States Department of Homeland

21 Security, in her official capacity; KEVIN K. MCALEENAN,
22 Commissioner, United States Customs and

23 Border Protection, in his official capacity; TODD C. OWEN, Executive Assistant
24 Commissioner, Office of Field Operations,

25 United States Customs and Border Protection, in his official capacity; and
26 DOES 1-25, inclusive,

27

Defendants.

Case No.: No. 3:17-cv-02366-BAS-KSC
BRIEF OF AMICUS CURIAE AMNESTY INTERNATIONAL IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

28

AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4662 Page 3 of 23

1

TABLE OF CONTENTS

2

Page

3 Interest of Amicus Curiae ...................................................................................................1 4 Summary of Argument........................................................................................................1

5 Argument.............................................................................................................................2

6

A. The Refugee Act of 1980 incorporates the protections of international law

afforded to refugees and asylum-seekers. ......................................................2

7

B. CBP’s policies with regard to asylum-seekers are in direct violation of both

8

US and international law. ...............................................................................7

1. State of the US-Mexico border ...........................................................7

9

2. Refusal to accept asylum-seekers ........................................................9

10

3. Delay in processing............................................................................13

11 Conclusion ........................................................................................................................16

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4663 Page 4 of 23

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases 4
Grace v. Whitaker, 5 No. 18-cv-01853, 2018 U.S. Dist. LEXIS 213105 (D.D.C. Dec. 17, 2018) .................. 6

6 In re S-P-, 21 I&N Dec. 486 (B.I.A. 1998) ......................................................................... 6

7 Statutes
8

9

Refugee Act of 1980, Pub. L. No. 96-212 § 101(a), 94 Stat. 102 (1980) .......................................................................................... 6

10 Other Authorities
11

12

Americas: US government endangers asylum seekers with unlawful policies, AMNESTY INT’L (Nov. 26, 2018, 4:07 PM) .................................................................. 15

13 Asylum Processes (Fair and Efficient Asylum Procedures), UNHCR (May
14 31, 2001) ......................................................................................................................... 5

15 Asylum-seekers overwhelming US processing in San Diego ports, SAN 16 DIEGO UNION TRIB. (Dec. 26, 2017, 7:40 PM)....................................................... 12, 13

17 Budget Overview FY 2019, DEP’T HOMELAND SECURITY (last visited Jan. 4, 18 2019) ............................................................................................................................... 7

19 Cindy Carmaco, For many waiting in Tijuana, a mysterious notebook is the

20

key to seeking asylum, Los Angeles Times (July 5, 2018, 4:10 AM) .......................... 14

21 Facing Walls: USA and Mexico’s Violation of the Rights of Asylum-Seekers, AMNESTY INT’L (June 2017) ......................................................................................... 13
22 23 H.R. Rep. No. 115-948 ...................................................................................................... 10

24 ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, DEP’T HOMELAND
25 SECURITY (June 26, 2018)................................................................................................ 7

26 The Life Saving Missions of CBP, DEP’T HOMELAND SECURITY (Aug. 20, 27 2018) ............................................................................................................................... 7

28 Mexico Travel Advisory, U.S. DEP’T STATE (Aug. 22, 2018) ........................................... 10

ii AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4664 Page 5 of 23

1 Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central

2

Americans Seeking Asylum, AMNESTY INT’L (Jan. 2018) ........................................ 1, 16

3 Southwest Border Inadmissibles by Field Office FY2018, U.S. CUSTOMS & BORDER PROTECTION (last updated Dec. 21, 2018)...................................................... 14
4

5

U.S. Border Patrol Southwest Border Apprehensions FY 2019, U.S. Customs & Border Protection (last modified Feb. 8, 2019)........................................... 8

6 UN Committee Against Torture, General Comment No. 4 (2017) on the
7 implementation of Article 3 of the Convention in the context of Article

8 22 (Feb. 9, 2018)............................................................................................................. 6

9 UN General Assembly, Note on International Protection (Sep. 13, 2001) ........................ 4

10 UN High Commissioner for Refugees (UNHCR), The Principle of Non11 Refoulement as a Norm of Customary International Law. Response to the
Questions Posed to UNHCR by the Federal Constitutional Court of the 12 Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 13 BvR 1954/93, 31 January 1994 ....................................................................................... 3

14 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-

15

Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol ¶ 7 (January 26, 2007) .................................. 4

16 UNHCR Executive Committee Conclusion No. 25, General Conclusion on
17 International Protection (Oct. 20, 1982)........................................................................ 7

18 UNHCR Executive Committee Conclusion No. 79, General Conclusion on 19 International Protection (Oct. 11, 1996)........................................................................ 7

20 You Don’t Have Any Rights Here: Illegal Pushbacks, Arbitrary Detention & 21 Ill-Treatment of Asylum-Seekers in the United States, AMNESTY INT’L
(Oct. 2018) ...................................................................................................................... 2 22

23

24

25

26

27

28

iii AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4665 Page 6 of 23

1

2

INTEREST OF AMICUS CURIAE

3

Amnesty International is a non-governmental, non-profit organization with a global

4 support base of more than seven million members, supporters and activists in more than

150 countries and territories, and domestic entities set up in more than seventy countries 5

6 and territories. Amnesty International’s vision is of a world in which every person enjoys

all of the human rights enshrined in the Universal Declaration of Human Rights and other 7

international human rights instruments. Amnesty International works independently and 8

impartially to promote respect for human rights. It monitors domestic law and practices in 9

countries throughout the world for compliance with international human rights law and 10

international humanitarian law and standards, and it engages in advocacy, litigation and 11

education to prevent and end human rights violations and to demand justice for those whose 12

rights have been violated. Amnesty International has particular expertise in international 13

law and policies concerning the rights of refugees and asylum-seekers.

14

SUMMARY OF ARGUMENT 15

16

The Trump Administration has created a humanitarian crisis at the US–Mexico

17 border by unlawfully turning back asylum-seekers, leaving them in squalor and in danger

18 of both direct and indirect harm.1 Amnesty International has documented the misconduct

19 of US border officials over the past two years as they implemented policies that violate US

20 and international law. Those laws are intended to protect individuals fleeing their countries

21 of origin and seeking refuge in the United States. International law prohibits states from

22 turning individuals away to any place where they would be at real risk of serious human

23 1 Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central Americans

24 Seeking Asylum, AMNESTY INT’L (Jan. 2018), https://www.amnestyusa.org/wp-

25

content/uploads/2018/01/AMR4176022018-ENGLISH-05.pdf. Amnesty International conducted a survey of 500 migrants and people seeking asylum, finding that the Mexican

26 government is routinely failing in its obligations under international law to protect those

27

who are in need of international protection, as well as repeatedly violating the nonrefoulement principle. These failures by the Mexican government in many cases can cost

28 the lives of those returned to the country from which they fled.

1 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4666 Page 7 of 23

1 rights violations, and the United States expressly incorporated these protections in the 2 passage of the Refugee Act of 1980. The U.S. government, as well as its operative 3 administrative agencies, has publicly acknowledged and affirmed its obligations to 4 refugees and asylum-seekers on several occasions. However, in recent years, the United

5 States has fallen egregiously short of meeting these obligations.

6

In 2017 and 2018, Amnesty International began receiving a dramatic increase of

7 reports regarding asylum-seekers being turned away by the Customs and Border Protection

8 (“CBP”) at U.S. ports-of-entry. In an apparent attempt to justify these “turnbacks,” the

9 CBP has cited amorphous—and, in Amnesty International’s view, fictional—“capacity”

10 constraints without any corroborative support. As a consequence, asylum-seekers are

11 being turned away at unprecedented rates and without any cognizable justification. This is

12 in direct contravention of domestic and international law, as documented in Amnesty

13 International’s October 2018 report entitled, “‘You Don’t Have Any Rights Here’: Illegal

14 Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States.”2

15

The United States has an obligation to receive and process these individuals’ claims

16 without discrimination or undue delay and, as evidenced by the treatment of Plaintiffs in

17 this action, it has fallen short of this obligation. For this reason, Amnesty International

18 supports Plaintiffs’ Opposition to Defendants’ Motion to Dismiss.

19

ARGUMENT

20

A. The Refugee Act of 1980 incorporates the protections of international

21 law afforded to refugees and asylum-seekers.

22

The principle of non-refoulement, which prohibits returning or turning away any

23 person to a place where they would be at real risk of serious human rights violations, is

24

25

26

27

2 You Don’t Have Any Rights Here: Illegal Pushbacks, Arbitrary Detention & IllTreatment of Asylum-Seekers in the United States, AMNESTY INT’L (Oct. 2018),

28 https://www.amnesty.org/download/Documents/AMR5191012018ENGLISH.PDF.

2 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4667 Page 8 of 23

1 well settled in international law and has acquired customary character.3 The principle 2 originates in international refugee law: the 1951 Convention Relating to the Rights of 3 Refugees codifies the principle of non-refoulement as it applies to asylum-seekers and 4 refugees.4 Over the past few decades, the principle has further developed in other areas of 5 international human rights law and now applies to all individuals subjected to a transfer of 6 jurisdiction, whether or not they claim or are entitled to international protection. Several 7 international and regional human rights instruments explicitly codify the principle of non8 refoulement.5 9

10

11 3 UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by
12 the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR

13 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994, available at: https://www.refworld.org/docid/437b6db64.html [accessed 30 January 2019]
14 4 UN General Assembly, Convention Relating to the Status of Refugees (July 28, 1951),

15 United Nations, Treaty Series, vol. 189, p. 137 (codifying the principle of non-

16 refoulement by prohibiting returning a refugee “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race,

17 religion, nationality, membership of a particular social group or political opinion.”)

18 [hereinafter, the “1951 Convention”].

19

5 The Convention Against Torture prohibits refoulement to torture at Article 3(1): “No State Party shall expel, return (“refouler”) or extradite a person to another State where

20 there are substantial grounds for believing that he would be in danger of being subjected

21

to torture.” G.A. Res. 39/46, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3 (Dec. 10, 1984). Article 16(1) of the

22 International Convention for the Protection for All Persons from Enforced Disappearance

23

includes a similar provision: “No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that

24 he or she would be in danger of being subjected to enforced disappearance.” G.A. Res.

25

61/177, International Convention for the Protection of All Persons from Enforced Disappearance, Art. 16(1) (Dec. 20, 2006). The American Convention on Human Rights,

26 signed by the United States on June 1, 1977, includes a prohibition against refoulement to

27

violations of the right to life or personal freedom on grounds of race, nationality, religion, social status, or political opinions. American Convention on Human Rights, June 1,

28 1977, 1144 U.N.T.S. 123, Art. 22(8)).

3 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4668 Page 9 of 23

1

The UN Refugee Agency (“UNHCR”) has described non-refoulement as

2 encompassing “any measure attributable to a State which could have the effect of returning

3 an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom

4 would be threatened,” or where he or she would risk persecution. This includes rejection

5 at the frontier, interception and indirect refoulement, whether of an individual seeking

6 asylum or in situations of mass influx.6

7

In an authoritative advisory opinion regarding state obligations created by

8 international refugee law,7 the UNHCR held that the principle of non-refoulement is

9 violated in instances where refugees and asylum-seekers are denied admission at the border

10 and returned not only to their countries of origin, but also to “any other place” where they

11 have reason to fear for their lives.8 Accordingly, a state must not only prevent an asylum-

12 seeker’s return to danger—it must take affirmative measures to prevent a risk of harm by

13 “adopt[ing] a course that does not result in [asylum-seekers’] removal, directly or

14 indirectly, to a place where their lives or freedom would be in danger.”9

15

The protections afforded to refugees and asylum-seekers under the 1951 Convention

16 also include access to “fair and efficient asylum procedures.”10 The right to fair and

17 efficient procedures is “an essential element in the full and inclusive application of the

18

19

20

21 6 UN General Assembly, Note on International Protection, ¶ 16, Un Doc. A/AC.96/951 22 (Sep. 13, 2001).
7 The legal status of Advisory Opinions of the UNHCR is explained in the Statute of the 23 Office of the UNHCR, available at http://www.unhcr.org/4d944e589.pdf. These are 24 generally seen as guidance for compliance with the 1951 Convention. 25 8 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 26 Protocol ¶ 7 (Jan. 26, 2007), https://www.unhcr.org/4d9486929.pdf. 27 9 See 1951 Convention, supra note 3.
28 10 Advisory Opinion, supra note 7, at ¶ 8 (emphasis added).

4 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4669 Page 10 of 23

1 1951 Convention.”11 In order to effectuate an asylum-seeker’s right to non-refoulement,

2 the United States is obligated to implement and follow procedures to ensure that his or her

3 request for asylum is duly and efficiently received and considered. In practice, this

4 obligation requires U.S. officials to allow those seeking protection in the U.S. to present a

5 claim for asylum and not to deny or unreasonably delay their access to a fair and efficient

6 asylum determination process.

7

The binding principle of non-refoulement under international refugee law is

8 complemented by other non-refoulement obligations under international human rights law.

9 Most notably, the Convention against Torture and Other Cruel, Inhuman or Degrading

10 Treatment or Punishment (“CAT”), which the United States has expressly ratified and

11 incorporated into US law, similarly forbids refoulement.12 In describing states’ obligations

12 of non-refoulement under the CAT, the UN Committee Against Torture emphasized that

13 this obligation includes a prohibition on policies and practices that dissuade people from

14 seeking protection (also known as “constructive refoulement”):

15

“States parties should not adopt dissuasive measures or policies,

16

such as detention in poor conditions for indefinite periods,

17

refusing to process claims for asylum or unduly prolong them . .

18

. which would compel persons in need of protection under Article

19

3 of the Convention to return to their country-of-origin in spite

20

21

22

23
24 11 Asylum Processes (Fair and Efficient Asylum Procedures), UNHCR (May 31, 2001), https://www.unhcr.org/protection/globalconsult/3b389254a/asylum-processes-fair-
25 efficient-asylum-procedures.html.

26 12 G.A. Res. 39/46, Convention against Torture and Other Cruel, Inhuman or Degrading

27

Treatment or Punishment, Art. 3 (Dec. 10, 1984) (“No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for

28 believing that he would be in danger of being subjected to torture.”).

5 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4670 Page 11 of 23

1

of their personal risk of being subjected there to torture and other

2

cruel, inhuman or degrading treatment or punishment.”13

3

Congress passed the Refugee Act in 1980 in a sweeping effort to bring the United

4 States’ domestic laws in line with these international principles and thereby to provide

5 additional assurances and protections to asylum-seekers and refugees.14 More specifically,

6 Congress expressed an intent to bring US laws into compliance with the United Nations

7 Protocol Relating to the Status of Refugees (the “Protocol”).15 In keeping with this intent,

8 federal courts have consistently looked to international standards when confronting legal

9 issues regarding refugees and asylum-seekers.16 For instance, the U.S. District Court for

10 the District of Columbia recently blocked a June 2018 policy adopted by the Trump

11 Administration that effectively gutted asylum protections for refugees fleeing domestic

12 violence and gang activity as being in direct contravention of both domestic and

13 international law.17 The Board of Immigration Appeals (“BIA”) has similarly

14 acknowledged that Congress’ intent in passing the Refugee Act was to align domestic

15 refugee law with the United States’ obligations under the Protocol, to give statutory

16 meaning to “our national commitment to human rights and humanitarian concerns,” and

17 “to afford a generous standard for protection in cases of doubt.”18

18

19

20 21 13 UN Committee Against Torture, General Comment No. 4 (2017) on the implementation
of Article 3 of the Convention in the context of Article 22 (Feb. 9, 2018), 22 http://www.ohchr.org/Documents/HRBodies/CAT/CAT-C-GC-4_EN.pdf.
23 14 Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102 (1980); see Grace v. 24 Whitaker, No. 18-cv-01853, 2018 U.S. Dist. LEXIS 213105 (D.D.C. Dec. 17, 2018).
15 See Grace, 2018 U.S. Dist. LEXIS 213105, at *6 (citing INS v. Cardoza-Fonseca, 480 25 U.S. 421, 424 (1987)). 26 16 See id.
27 17 See generally Grace, 2018 U.S. Dist. LEXIS 213105.
28 18 In re S-P-, 21 I&N Dec. 486, 492 (B.I.A. 1998)).

6 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4671 Page 12 of 23

1

The principle of non-refoulement is specific, universal, and obligatory.19 Indeed, in

2 1996, the United Nations Executive Committee on the International Protection of Refugees

3 explicitly stated that the principle had achieved the status of a norm not subject to

4 derogation and customary under international law.20 Thus, there can be no doubt that all

5 persons, including but not limited to refugees and asylum-seekers, are afforded robust

6 protections from refoulement in the United States by operation of both domestic and

7 international law.

8

B. CBP’s policies with regard to asylum-seekers are in direct violation of

9 both US and international law.

10

1. State of the US-Mexico border

11

As recently as August 2018, CBP has claimed to employ more than 60,000 personnel

12 in the United States.21 The Department of Homeland Security (“DHS”), under which CBP

13 is organized, also maintains one of the largest immigration detention systems worldwide,

14 with 211 places of detention22 and the capacity to incarcerate roughly 40,000 people per

15 day (despite there being viable alternatives to detention).23

16

17

18

19 UNHCR Executive Committee Conclusion No. 79, General Conclusion on International Protection (Oct. 11, 1996),

19 https://www.refworld.org/docid/3ae68c430.html; see also Advisory Opinion, supra note

20 7.

21

20 G.A. Res. 51/75, ¶ 3 (Feb. 12, 1997); G.A. Res. 52/132, preamble ¶ 12 (Dec. 12, 1997); UNHCR Executive Committee Conclusion No. 25, General Conclusion on International

22 Protection (Oct. 20, 1982).

23 21 The Life Saving Missions of CBP, DEP’T HOMELAND SECURITY (Aug. 20, 2018), https://www.dhs.gov/news/2018/08/20/life-saving-missions-cbp.
24 22 ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained

25 Compliance or Systemic Improvements, DEP’T HOMELAND SECURITY (June 26, 2018),

26 https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.

27

23 Budget Overview FY 2019, DEP’T HOMELAND SECURITY, https://www.dhs.gov/sites/default/files/publications/ICE%20FY19%20CJ.pdf (last visited

28 Jan. 4, 2019).

7 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4672 Page 13 of 23

1

Even so, the current administration has presented a false narrative of overwhelming

2 numbers of asylum-seekers at the US–Mexico border in order to justify its increasingly

3 frequent denials of access to the asylum process. According to available statistics, the

4 supposedly unmanageable number of asylum-seekers appears to be a complete fabrication.

5 In reality, as of October 2018, the actual monthly rate of people without legal status

6 attempting to enter the United States from Mexico—including asylum-seekers—has

7 remained at roughly the same level as that reported in the previous five years:

8 24

9

10

11

12

13

14

15

16

17

18 Throughout those years, US authorities regularly received and processed asylum claims

19 without undue delays—what is different today is less so the number of asylum-seekers than

20 the systems of processing those seeking protection that CBP systematically imposed at the

21 border as early as 2016. Indeed, President Trump publicly acknowledged in April 2018 the

22 46-year low in rates of people seeking to enter the United States between ports-of-entry,

23 and yet still called those numbers “unacceptable.”25

24

25 24 U.S. Border Patrol Southwest Border Apprehensions FY 2019, U.S. Customs & Border
26 Protection (last modified Feb. 8, 2019), https://www.cbp.gov/newsroom/stats/sw-bordermigration.
27 25 President Donald Trump (@RealDonaldTrump), TWITTER (Apr. 5, 2018),
28 https://twitter.com/realdonaldtrump/status/981859214380462081.

8 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4673 Page 14 of 23

1

Current flows of asylum-seekers do not present a demonstrably different landscape

2 than has been documented in recent years. Yet, in spite of its purportedly well-staffed ranks

3 and historically average influx of immigrants, CBP has recently and repeatedly cited a lack

4 of capacity in its dealings with asylum-seekers.

5

2. Refusal to accept asylum-seekers

6

In recent years, the U.S. government has significantly increased its efforts to

7 implement a systematic and dangerous practice of illegally turning away asylum-seekers

8 in order to prevent them from requesting protection at official United States ports-of-entry.

9 Government officials refer to this practice as the “metering” of asylum claims. DHS

10 Secretary Kirstjen Nielsen confirmed in a May 2018 interview that this practice is now a

11 de facto policy at United States borders, denouncing her agency’s legal obligation to

12 receive and protect asylum-seekers as a mere “loophole.”26 Nielsen explained the policy

13 of turning away asylum-seekers as follows:

14

We are “metering,” which means that if we don’t have the

15

resources to let them [asylum-seekers] in on a particular day, they

16

are going to have to come back. They will have to wait their turn

17

and we will process them as we can, but that’s the way that the

18

law works. Once they come into the United States, we process

19

them. We have asked Congress to fix this loophole. It’s a huge

20

gaping loophole that we need to fix because it is so abused.27

21

Notably, CBP’s policy of turning away asylum-seekers is directly contrary to public

22 statements from the US government that its official policy remains to receive all asylum-

23 seekers at U.S. ports-of-entry.28 Congress has acknowledged the illegality of the Trump

24

25 26 Interview by Fox News with Kirstjen Nielsen, Sec’y, Homeland Sec. (May 15, 2018).

26 27 Id.

27

28 Sec’y Kirstjen Nielson (@SecNielson), TWITTER (June 17, 2017), https://twitter.com/SecNielsen/status/1008467318744240128; see also Attorney Gen. Jeff

28 Sessions, Remarks at National Sheriffs’ Association Annual Conference (June 18, 2018).

9 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4674 Page 15 of 23

1 administration’s ongoing pushbacks of asylum-seekers at the border. In July 2018, while

2 proposing over $58 billion in federal funding for DHS agencies, the House Appropriations

3 Committee called on DHS to “ensure that the United States is meeting its legal obligations,

4 to include reminding field officers and agents about CBP’s legal responsibilities to ensure

5 that asylum-seekers can enter at POEs [ports-of-entry].”29

6

In spite of the government’s public stance on this issue, in 2017 and early 2018,

7 Amnesty International began receiving reports of CBP illegally turning away asylum-

8 seekers all along the US–Mexico border. While some such reports were isolated instances

9 of abuse of authority, CBP has increasingly shut its doors to asylum-seekers entirely, citing

10 usually unspecified “capacity” constraints as preventing their processing of asylum claims

11 on any given day.30

12

For instance, a shelter coordinator in Tijuana informed Amnesty International that

13 CBP personnel at the San Ysidro port-of-entry had in 2017 turned away about 20

14 unaccompanied minors whom his shelter hosted, without allowing them to claim asylum.

15 From January to April 2018, CBP turned back at least five more children who were seeking

16 asylum at the San Ysidro port-of-entry.31 The shelter coordinator said that most of those

17 unaccompanied minors were Mexican nationals who had fled from targeted violence in

18 Guerrero and Michoacán, which the United States recognizes to be two of Mexico’s most

19 violent states.32

20

21

22 29 H.R. REP. NO. 115-948, at 4, 26.

23 30 While Amnesty International acknowledges that there may be times during which a state is genuinely unable to accept and process all asylum-seekers at its border, repeated
24 instances would certainly constitute a failure to recognize and implement the resources 25 necessary to fulfill that state’s obligations in view of the UN Convention.

26 31 Interview with Anonymous Source in Tijuana, Mex. (May 1, 2018).

27

32 Mexico Travel Advisory, U.S. DEP’T STATE (Aug. 22, 2018), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-

28 advisory.html.

10 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4675 Page 16 of 23

1

In January 2018, Amnesty International spoke briefly with a 17-year-old girl from

2 Michoacán at the shelter who had fled for her life after cartels killed several of her relatives.

3 She confirmed that CBP had turned her away at the San Ysidro port-of-entry, and said that

4 Mexican immigration officials then informed her that Mexican asylum-seekers were not

5 being accepted at that time. The officials gave her a piece of paper with contacts for a local

6 shelter and told her to return and try again another time before transporting her to the

7 shelter. The shelter coordinator informed Amnesty International that CBP only later

8 processed the girl’s asylum claim when she returned to the port-of-entry accompanied by

9 a US immigration lawyer, who helped her exercise her right to seek asylum in the United

10 States. However, even this second attempt was unsuccessful.

11

Three shelters in Tijuana separately informed Amnesty International that Mexican

12 nationals were turned away by CBP more frequently than other nationalities when they

13 requested asylum at a port-of-entry. One shelter coordinator, who referred to this process

14 of turnbacks as the “revolving door system,” noted that Mexican women with children were

15 those most frequently turned away, and suggested that it might be due to their lack of

16 knowledge of the asylum system, or potentially to CBP’s disinclination to process families.

17

According to a women’s shelter in Tijuana, CBP turned away about twenty-five

18 Mexican women who were seeking asylum at the San Ysidro port-of-entry on April 27,

19 2018.33 The shelter staff indicated to Amnesty International that CBP personnel at San

20 Ysidro had similarly declined to receive any asylum-seekers at all on several Sundays in

21 2018.

22

23

24 33 Interview with Anonymous Shelter Staffer in San Ysidro, Mex. (Apr. 30, 2018). The

25

shelter staffer witnessed approximately 50 Mexican women leave her shelter on April 27 with the intention of seeking asylum at the San Ysidro Port-of-Entry. She informed

26 Amnesty International that, from her understanding, only 25 of these 50 women appeared

27

to have successfully presented themselves at the port-of-entry and were processed for asylum by CBP. Half of the women who left the shelter that morning to present

28 themselves came back unsuccessful that day.

11 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4676 Page 17 of 23

1

In late December 2017, CBP turned away dozens of asylum-seekers—primarily

2 from Africa and Mexico—at the San Ysidro port-of-entry. When roughly twenty-five to

3 thirty of the African asylum-seekers began sleeping in line in a plaza on the Mexican side

4 of the border crossing, Mexican municipal police cleared the plaza and arrested those

5 remaining asylum-seekers.34 Some stayed in shelters as they waited to request asylum in

6 the United States, according to shelter coordinators who met with Amnesty International

7 the following week.35 These are a mere handful of anecdotes out of thousands of similar

8 instances that arguably beile a widespread practice.

9

In a meeting with Amnesty International on January 5, 2018, the CBP Field Office

10 Director in charge of the San Ysidro port-of-entry defended those pushbacks by citing

11 capacity constraints: “So they weren’t being allowed into the port-of-entry. We said, ‘we’re

12 at capacity, so wait here.’ It’s because of our detention space limitation, we were at

13 capacity.”36 He added that CBP was not involved in or aware of the Mexican police’s

14 rationale for sweeping the plaza and detaining some of the asylum-seekers. While CBP

15 has consistently maintained that they rarely exceeded their capacity to receive asylum-

16 seekers, it has nonetheless CBP’s been most frequent justification for regularly reported

17 illegal pushbacks at the border.

18

The San Diego CBP Field Office Director told Amnesty International that a process

19 exists to investigate and sanction CBP officials if they deny asylum-seekers the opportunity

20 to present their claims. However, the official did not consider CBP pushbacks due to

21

22 34 Asylum-seekers overwhelming US processing in San Diego ports, SAN DIEGO UNION 23 TRIB. (Dec. 26, 2017, 7:40 PM),
http://www.sandiegouniontribune.com/news/immigration/sd-me-asylum-backlog24 20171226-story.html.
25 35 One staffer recalled their shelter having hosted 21 African asylum-seekers after the 26 release of those arrested by municipal police, including men from Eritrea, Cameroon,
DRC, Gambia, Ghana, Kenya, Sierra Leone, and Togo. 27 36 Interview with CBP Field Office Director at CBP Field Office, San Diego, CA (Jan. 5, 28 2018).

12 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4677 Page 18 of 23

1 alleged capacity constraints to constitute such an offense, and declined to share with

2 Amnesty International how many—if any—CBP personnel were sanctioned for illegal

3 pushbacks in 2017.37

4

Turnbacks are not an entirely new phenomenon at the US–Mexico border—CBP

5 officials are vested with broad discretion and Amnesty International has documented

6 abuses of that discretion, resulting in turnbacks, since at least 2015. But the scale of these

7 turnbacks has escalated within the past year, resulting from what is clearly a policy by the

8 Trump Administration to encourage CBP officers to limit the number of asylum-seekers,

9 and otherwise to deter migrants from seeking protection at the US border. As discussed

10 above, the principle of non-refoulement mandates that states take affirmative measures to

11 “adopt a course that does not result in [asylum-seekers’] removal, directly or indirectly, to

12 a place where their lives or freedom would be in danger.”38 The flagrant violation of this

13 obligation cannot be permitted to continue.39

14

3. Delay in processing

15

DHS Secretary Nielsen indicated in her statement regarding metering that, “[o]nce

16 [asylum-seekers] come into the United States, we process them.”40 This is a gross

17 oversimplification of the process experienced by those asylum-seekers who have

18 successfully crossed at points-of-entry in recent months. According to the aid organization

19 Kino Border Initiative (“KBI”), from May 20 to June 22, 2018, CBP processed an average

20

21

37 Id. (“Where we substantiate the fact that somebody was denied or turned around once they made a credible fear case, then we have internal actions that we take during the

22 disciplinary process and review. So there is a process for it. . . . I wouldn’t be able to tell

23

you that statistic, and it’s probably not something that we would release at this point as far as numbers. Those are internal numbers of what we’re doing with staff. That’s not

24 something our officers should be doing, turning people away.”).

25 38 See 1951 Convention, supra note 3.
26 39 Facing Walls: USA and Mexico’s Violation of the Rights of Asylum-Seekers, AMNESTY INT’L (June 2017), https://www.amnestyusa.org/wp-content/uploads/2017/06/USA-
27 Mexico-Facing-Walls-REPORT-ENG.pdf.

28 40 Nielsen, supra note 26.

13 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4678 Page 19 of 23

1 of only five to ten asylum applications per day, and forced asylum-seekers to wait in lines 2 ranging from fifty to 120 people on the Mexico side of the Nogales border crossing while 3 they awaited processing. Those waiting in line were subjected to temperatures exceeding 4 100 degrees, in addition to threats of deportation and potential exploitation or violence by

5 criminal gangs and smugglers, often for periods lasting from several days to more than two

6 weeks. Consequently, the overall number of people without legal status to enter the United

7 States who were processed at the port-of-entry dropped from May to June, and was

8 certainly no higher than other months41—contrary to the representations of the current

9 administration.

10

This delayed processing has become a consistent practice across ports-of-entry,

11 including San Ysidro, where CBP received and processed a maximum of only twenty to

12 forty asylum-seekers per day in May and June 2018, according to NGOs active at the

13 California–Mexico border. Similar to those at the Nogales border, asylum-seekers at the

14 San Ysidro port-of-entry were forced to queue in Tijuana, despite the fact that the city is

15 neither safe for asylum-seekers nor recognized as such by US authorities. On May 8, 2018,

16 the list of those waiting for their asylum claims to be processed at the San Ysidro port-of-

17 entry was roughly 350 people.42 By June 10, 2018, that number had grown to 1,200.43 On

18 July 5, 2018, the Los Angeles Times reported that the list of asylum-seekers waiting in

19 Tijuana has grown to nearly 2,000 people.44 When Amnesty International reviewed the list

20

21

41 Southwest Border Inadmissibles by Field Office FY2018, U.S. CUSTOMS & BORDER PROTECTION, https://www.cbp.gov/newsroom/stats/ofo-sw-border-inadmissibles (last

22 updated Dec. 21, 2018).

23 42 Text Message from Caravan Organizer to Amnesty International, Tijuana, Mex. (May 8, 2018).
24 43 E-mail from Caravan Organizer to Amnesty International, Tijuana, Mex. (June 10, 25 2018).

26 44 Cindy Carmaco, For many waiting in Tijuana, a mysterious notebook is the key to

27

seeking asylum, Los Angeles Times (July 5, 2018, 4:10 AM), https://www.latimes.com/local/california/la-me-asylum-seekers-notebook-holds-key-to-

28 entry-20180705-story.html.

14 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4679 Page 20 of 23

1 again on November 21, 2018, it contained the names of around 4,320 people, including 2 roughly 2,000 caravan members—mostly from Honduras—who had arrived since 3 November 15.45 Those already on the list prior to the caravan’s arrival had reportedly been 4 waiting about five weeks in Tijuana before US officials started processing their asylum

5 claims.46

6

Processing delays are similarly dire at the Texas–Mexico border where, in 2018, US

7 authorities temporarily stopped receiving any asylum claims at two ports-of-entry for

8 substantial periods of time. On July 17, 2018, CBP officers stationed at the center of the

9 Roma–Miguel Aleman international bridge informed US immigration lawyer Jennifer

10 Harbury that CBP no longer accepted asylum-seekers at the Roma port-of-entry. CBP

11 instructed asylum-seekers to travel to the Reynosa bridge—more than 60 miles away, and

12 potentially through dangerous cartel-controlled territory on the Mexican side of the border.

13 On August 17, 2018, KBI informed Amnesty International that CBP and the Mexican

14 government’s National Institute of Migration (“INM”) officials had closed the Laredo port-

15 of-entry to asylum-seekers and redirected them to the Eagle Pass port-of-entry, where they

16 were told to sign up on a waitlist managed by the municipal government. CBP was only

17 reportedly processing six to seven people per day, as over 100 asylum-seekers waited in

18 makeshift migrant shelters in Piedras Negras—some of whom were not allowed by

19 municipal authorities to join the waitlist. Among them were families with small children,

20 some of whom were sick and required medical attention at the local hospital. KBI reported

21 that many of those asylum-seekers left Piedras Negras after being deterred by CBP and

22 municipal authorities from requesting asylum at the port-of-entry.

23

24

25 45 Americas: US government endangers asylum seekers with unlawful policies, AMNESTY 26 INT’L (Nov. 26, 2018, 4:07 PM),
https://www.amnesty.org/en/latest/news/2018/11/americas-us-government-endangers27 asylum-seekers-with-unlawful-policies/.
28 46 Id.

15 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4680 Page 21 of 23

1

Clearly, these delays in processing have dire consequences. Asylum-seekers are

2 forced to wait in intolerable, and oftentimes life-threatening, conditions, without any

3 guarantee that CBP officials at their port-of-entry will ultimately receive and process their

4 requests. Regrettably, the effect of these delays is often the effective turning away of

5 asylum-seekers. And, once turned away to Mexico, asylum-seekers are often further

6 subjected to systematic refoulement to their countries of origin.47 In spite of this fact, the

7 Trump administration continues its attempts to designate Mexico as a “safe third country,”

8 as evidenced in part through the Department of Justice/DHS memorandum leaked in

9 January 2018 by Senator Jeff Merkley, which belies the administration’s full knowledge

10 that its continued efforts to do so may be unlawful under both domestic and international

11 law.48

12

Not only are these turnbacks and delays unjustified, as CBP officials continue to cite

13 vague claims of “capacity” restraints, but they are in further violation of domestic and

14 international laws that expressly prohibit states from “refusing to process claims for asylum

15 or unduly prolong them”49 and mandate “access to the territory and to fair and efficient

16 asylum procedures.”50 This contravention of asylum-seekers’ right to an efficient, lawful

17 process cannot be permitted to continue.

18

CONCLUSION

19

Regardless of the current administration’s public acknowledgement and affirmation

20 of its obligations under domestic and international law to accept and promptly process

21

22 47 Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central Americans

23

Seeking Asylum, AMNESTY INT’L (Jan. 2018), https://www.amnestyusa.org/wpcontent/uploads/2018/01/AMR4176022018-ENGLISH-05.pdf.

24 48 See Julia Ainsley, Trump admin weighed targeting migrant families, speeding up

25 deportation of children, NBC (Jan. 17, 2019, 7:37 PM), https://www.nbcnews.com/politics/immigration/trump-admin-weighed-targeting-migrant-
26 families-speeding-deportation-children-n958811.

27 49 UN Committee Against Torture, supra note 12.

28 50 Advisory Opinion, supra note 7, at ¶ 8 (emphasis added).

16 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4681 Page 22 of 23

1 asylum-seekers, the actions by its agents at the border tell a very different story. According

2 to Amnesty International’s research, CBP’s actions have been clear, consistent, and

3 synchronized at widely dispersed ports-of-entry, and the effect of these actions has been to

4 stifle the number of asylum-seekers permitted entry into the United States. Emboldened

5 by DHS Secretary Nielsen’s public denouncement of the asylum process as a “huge gaping

6 loophole,”51 border officials have instituted insidious practices that effectively boil down

7 to false claims of a lack of capacity as a justification for turning away asylum-seekers.

8 Even those ports-of-entry that do not expressly turn away asylum-seekers subject them to

9 significant delays that result in their waiting—oftentimes in dangerous territories or

10 intolerable conditions—for unspecified periods as they await processing. In many

11 accounts, this amounts to effective denial for asylum-seekers.

12

These practices are not only morally repugnant but also in flagrant violation of

13 domestic and international law. The United States has an obligation by virtue of the

14 principle of non-refoulement to “grant individuals seeking international protection across

15 to the territory and to fair and efficient asylum procedures,”52 and is similarly prohibited

16 from “refusing to process claims for asylum or unduly prolong them.”53 Border officials’

17 practices of metering and delayed processing violate both of these principles and

18 effectively force asylum-seekers to return to those same territories where their “life or

19

20

21

22

23

24

25

26 51 Nielsen, supra note 26. 27 52 UNHCR, supra note 8. 28 53 UN Committee Against Torture, supra note 12.

17 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 216-1 Filed 02/21/19 PageID.4682 Page 23 of 23

1 freedom” would be threatened.54 For these reasons, Amnesty International respectfully

2 supports the request that this Court deny Defendants’ Motion to Dismiss.

3

4 Dated: February 21, 2019

AKIN GUMP STRAUSS HAUER & FELD LLP Susan K. Leader

5

By: /s/ Susan K. Leader

6

Susan K. Leader Akin Gump Strauss Hauer & Feld LLP

7

1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067

Telephone: (310) 229-1000

8

Facsimile: (310) 229-1001

Email: sleader@akingump.com

9

Attorney for Amicus Curiae

Amnesty International

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 54 1951 Convention, supra note 3.

18 AMICUS CURIAE BRIEF OF AMNESTY INTERNATIONAL

No. 3:17-cv-02366-BAS-KSC

 
 Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4688 Page 1 of 19

1 Matthew D. Benedetto (SBN #252379)

2

Matthew.Benedetto@wilmerhale.com WILMER CUTLER PICKERING

3 HALE & DORR LLP

4

350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

5 Telephone: (213) 443-5300

6 Facsimile: (213) 443-5400

7 Jamie S. Dycus (pro hac vice pending)

8

Alexandra Hiatt (pro hac vice pending) WILMER CUTLER PICKERING

9 HALE & DORR LLP

10

7 World Trade Center 250 Greenwich Street

11 New York, NY 10007

12

Telephone: (212) 230-8800 Facsimile: (212) 230-8888

13

14

Attorneys for Amici Curiae Members of Congress

15

16

UNITED STATES DISTRICT COURT

17

SOUTHERN DISTRICT OF CALIFORNIA

18

19 Al Otro Lado, Inc., et al., 20 21 v. 22 Kirstjen M. Nielsen, et al., 23 24 25

Plaintiffs, Defendants.

Case No.: 3:17-cv-02366-BAS-KSC Hon. Cynthia A. Bashant Courtroom 4B
AMICUS BRIEF OF MEMBERS OF CONGRESS IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

26

27

28

3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4689 Page 2 of 19

1

TABLE OF CONTENTS

2 INTEREST OF AMICI CURIAE ......................................................................................... 1
3 SUMMARY OF ARGUMENT ........................................................................................... 1 4
BACKGROUND ................................................................................................................. 1 5
6 ARGUMENT ....................................................................................................................... 5

7 I. The INA Reflects the Intent of Congress to Facilitate Grants of Asylum..............5

8 II. The INA Imposes Strict Procedural Requirements Concerning Access to the

9

Asylum Process.......................................................................................................8

10 III. DHS’s Practice of Deterring Asylum Seekers by Limiting Access to Ports of
11 Entry and the Asylum Process Violates the INA....................................................9
12
13 APPENDIX: LIST OF AMICI ..........................................................................................12

14

15

16

17 18 19 20

21 22 23 24

25 26 27 28

i 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4690 Page 3 of 19

1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 City & County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) ...................... 10

5 East Bay Sanctuary Covenant v. Trump (“East Bay Sanctuary I”), No. 18-

6

CV-06810-JST, 2018 WL 6053140 (N.D. Cal. Nov. 19, 2018) ......................... 8, 10

7 East Bay Sanctuary Covenant v. Trump (“East Bay Sanctuary II”), 909 F.3d

8

1219 (9th Cir. 2018) ........................................................................................ 6, 8, 10

9 INS v. Chadha, 462 U.S. 919 (1983) ................................................................................. 10

10 Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) ..................................... 8

11 Trump v. Hawaii, 138 S. Ct. 2392 (2018).......................................................................... 10

12 Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) .............................................. 10

13 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ....................................... 10
14

15

STATUTES, RULES, AND REGULATIONS

16 8 C.F.R. § 235.3 ................................................................................................................... 9

17 8 U.S.C. § 1158 ........................................................................................................ 1, 6, 8, 9

18 8 U.S.C. § 1225 ............................................................................................................ 1, 8, 9

19 8 U.S.C. § 1229a .................................................................................................................. 9

20

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div.

21

C of Pub. L. No. 104-208, 110 Stat. 3009-546.......................................................... 6

22 Immigration and Nationality Act, 8 U.S.C. § 1101 et seq................................................... 1
23 Refugee Act of 1980, Pub. L. No. 96–212, § 101(a), 94 Stat. 102..................1, 5, 6, 10, 11
24 LEGISLATIVE MATERIALS
25

26 125 Cong. Rec. 23,231-32 (1979).................................................................................... 5, 6

27 126 Cong. Rec. 3,757 (1980) ............................................................................................... 5

28 126 Cong. Rec. 4,500 (1980) ............................................................................................... 5

ii 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4691 Page 4 of 19

1 126 Cong. Rec. 4,507 (1980) ............................................................................................. 10

2 164 Cong. Rec. H5430-31 (daily ed. June 21, 2018) .......................................................... 7

3 Asylum Reform and Border Protection Act of 2017, H.R. 391, 115th Cong.

4

§ 4 (2017)................................................................................................................... 7

5 Border Security and Immigration Reform Act of 2018, H.R. 6136, 115th

6

Cong., title IV, §§ 4101, 4108 (2018) ....................................................................... 7

7 H. Rep. No. 104-469, pt. 1 (1996) ....................................................................................... 7

8 Hearing on S. 269 Before the S. Comm. on the Judiciary, 104th Cong. 23

9

(1995)......................................................................................................................... 6

10 S. 3372, 115th Cong. § 2 (2018) .......................................................................................... 7

11 Securing America’s Future Act of 2018, H.R. 4760, 115th Cong., title

12

IV, §§ 4402, 4408 (2018) ......................................................................................... 7

13 Senate Amendment 5 to H.R. 268, 116th Cong., Div. L § 102(2), 165 Cong.

14

Rec. S472 (daily ed. Jan. 22, 2019) ........................................................................... 8

15

OTHER AUTHORITIES

16 1951 Convention Relating to the Status of Refugees, July 28, 1951, 189

17

U.N.T.S. 150 .............................................................................................................. 6

18 CBP, Claims of Fear: CBP Southwest Border and Claims of Credible Fear Total Apprehensions/Inadmissibles (FY2017 - FY2018) ...................................... 3, 9
19 20 CBP, Southwest Border Migration FY2017 ........................................................................ 3

21 CBP, Southwest Border Migration FY2018 ........................................................................ 3

22 CBP, U.S. Border Patrol Monthly Apprehensions (FY 2000 – FY 2017) ........................... 2

23 David Shepardson, Trump Says Family Separations Deter Illegal

24

Immigration, Reuters (Oct. 13, 2018) ....................................................................... 5

25 Dep’t of Homeland Sec., CBP, Budget Overview Fiscal Year 2019................................... 4

26 Human Rights First, Refugee Blockade: The Trump Administration’s

27

Obstruction of Asylum Claims at the Border (December 2018) ............................... 3

28

iii 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4692 Page 5 of 19

1 Letter from Ranking Members of House Committees on Judiciary,

2

Homeland Sec., and Subcommittee on Immigration and Border Sec. to Commissioner, CBP (Dec. 17, 2018) ........................................................................ 4

3

Manny Fernandez, Caitlin Dickerson & Paulina Villegas, The Price of

4

Trump’s Migrant Deterrence Strategy: New Chaos on the Border,

5

N.Y. Times (Jan. 4, 2019) ......................................................................................... 4

6 Press Release, DHS, Secretary Kirstjen M. Nielsen Announces Historic

7

Action to Confront Illegal Immigration (Dec. 20, 2018) .......................................... 2

8 Ryan Miller, Inhofe to Introduce New Asylum Bill to Senate, Enid News & Eagle (Aug. 8, 2018).................................................................................................. 7
9

10

Transcript: White House Chief of Staff John Kelly’s Interview With NPR, NPR (May 11, 2018).................................................................................................. 5

11

12

13 14 15 16

17 18 19 20

21 22 23 24

25 26 27 28

iv 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4693 Page 6 of 19

1

INTEREST OF AMICI CURIAE

2

Amici are members of Congress who are familiar with the Immigration and

3 Nationality Act (“INA”), 8 U.S.C. § 1101 et seq. Amici have a strong interest in 4 ensuring that the Executive Branch respects the role of Congress and faithfully

5 implements the INA. Amici are well suited to provide the Court with insights concerning 6 Congress’s intent in enacting the INA, the INA’s strict requirements in relation to asylum

7 seekers, and the conflict between the intent and requirements of the INA and the

8 Executive Branch practices challenged in this litigation. A complete list of amici is set

9 forth in the appendix to this brief.

10

SUMMARY OF ARGUMENT

11

There is reason to believe that the U.S. Department of Homeland Security (“DHS”)

12 is violating the INA by attempting to deter asylum seekers through artificial limitations

13 on arriving noncitizens’ access to ports of entry and to the asylum process. The asylum 14 provisions of the INA reflect the intent of Congress to “respond to the urgent needs of 15 persons subject to persecution in their homelands.” Refugee Act of 1980, Pub. L. No.

16 96–212, § 101(a), 94 Stat. 102, 102. To that end, the INA requires that arriving

17 noncitizens be afforded specific procedural protections including, in virtually every 18 instance, an opportunity to apply for asylum. 8 U.S.C. §§ 1158, 1225. Nothing in the 19 INA permits DHS to deny arriving noncitizens those protections, even temporarily, based

20 on the policy preferences of the Executive Branch.

21

BACKGROUND

22

As plaintiffs allege and DHS has acknowledged, DHS is limiting access by

23 arriving noncitizens to ports of entry and to the asylum process. As explained in

24 plaintiffs’ Second Amended Complaint (“SAC”) and in a September 2018 report of

25 DHS’s Office of Inspector General (“OIG Report”), U.S. Customs and Border Protection 26 (“CBP”) is “regulating the flow of asylum-seekers at ports of entry through ‘metering,’ a 27 practice CBP has utilized at least as far back as 2016.” SAC ¶ 70, ECF No. 189; see also

28 id. ¶¶ 51-57 (citing internal CBP documents that discuss controlling the flow of migrants

1 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4694 Page 7 of 19

1 at ports of entry). Specifically, “‘CBP officers stand at the international line out in the

2 middle of the footbridges,’ checking pedestrians’ travel documents, and preventing

3 asylum-seekers from crossing the international line until space is ‘available … to hold the

4 individual while being processed.’” Id. ¶ 70 n.61 (quoting OIG Report).

5

The Executive Branch has argued that it lacks the capacity to deal with the “illegal

6 immigration crisis facing the United States.”1 DHS Secretary Kirstjen M. Nielsen has

7 acknowledged that the government is “metering,” explaining that “if we don’t have the

8 resources to let [asylum-seekers] in on a particular day, they are going to have to come

9 back.” SAC ¶ 65 (quoting May 2018 Fox News interview). CBP Commissioner Kevin

10 K. McAleenan, similarly, has said that individuals arriving at the San Ysidro port of entry

11 “may need to wait in Mexico as CBP officers work to process those already within our

12 facilities.” Id. ¶ 68 n.56. Defendants offer the same rationale in this case, arguing that

13 “metering” is an “operational decision to control the flow of travel across the U.S.-

14 Mexico border based on operational constraints at the ports of entry.” Defs.’ Mem. Supp.

15 Mot. Dismiss 2-3 (“Defs. Mem.”), ECF No. 192-1.

16

However, CBP’s own statistics undermine the claim that it lacks sufficient capacity

17 to process arriving noncitizens. Apprehensions at the southern border dropped from

18 approximately 1.6 million in FY 2000 to approximately 300,000 in FY 2017.2 The

19 number increased in FY 2018 to just under 400,000, but remains significantly below

20

21

22 1 Press Release, DHS, Secretary Kirstjen M. Nielsen Announces Historic Action to
23 Confront Illegal Immigration (Dec. 20, 2018),
24 https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-actionconfront-illegal-immigration.
25 2 CBP, U.S. Border Patrol Monthly Apprehensions (FY 2000 – FY 2017),
26 https://www.cbp.gov/sites/default/files/assets/documents/2017-
27 Dec/BP%20Total%20Monthly%20Apps%20by%20Sector%20and%20Area%2C%20FY 2000-FY2017.pdf (last visited Feb. 15, 2019).
28

2 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4695 Page 8 of 19

1 historical levels.3 To be sure, the number of individuals arriving at ports of entry along

2 the southern border who assert a credible fear of returning to their home countries, the

3 foundation of an asylum claim, has increased over the past year from 17,284 to 38,269,

4 potentially as a result of public statements by DHS urging asylum seekers to go to ports

5 of entry.4 But the total number of noncitizens arriving at ports of entry who were deemed

6 inadmissible increased by a much smaller margin. In 2018, that number was 124,511,

7 compared to 111,601 in 2017, 150,825 in 2016, and 114,486 in 2015.5 Moreover, the

8 rate at which DHS is processing asylum seekers is below CBP’s own stated processing

9 capacity. In FY 2018, DHS processed an average of only 34 asylum seekers per day in

10 the San Diego field office area, even though CBP has claimed that the San Ysidro port of

11 entry has the ability to process 90 to 100 asylum seekers daily.6

12

Any contention that DHS lacks sufficient capacity to process the current volume of

13 noncitizens arriving at ports of entry is further belied by the administration’s failure to

14 prioritize increasing that capacity. The operations and support budget for CBP’s Office

15 of Field Operations (“OFO”), which manages ports of entry, was $3,942,479,000 in FY

16 2017. In FY 2018, the President’s budget called for a smaller amount ($3,900,330,000).

17

18 3 CBP, Southwest Border Migration FY2018, https://www.cbp.gov/newsroom/stats/sw-
19 border-migration/fy-2018 (last visited Feb. 15, 2019).
20 4 CBP, Claims of Fear: CBP Southwest Border and Claims of Credible Fear Total 21 Apprehensions/Inadmissibles (FY2017 - FY2018),
https://www.cbp.gov/newsroom/stats/sw-border-migration/claims-fear (last visited Feb. 22 15, 2019).
23 5 CBP, Southwest Border Migration FY2018, supra note 3; CBP, Southwest Border 24 Migration FY2017, https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017
(last visited Feb. 15, 2019). 25 6 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of 26 Asylum Claims at the Border, at 13 (December 2018), 27 https://www.humanrightsfirst.org/sites/default/files/December_Border_Report.pdf.

28

3 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4696 Page 9 of 19

1 And the FY 2019 request calls for a relatively modest 4.3 percent increase

2 ($4,067,985,000).7 Additionally, the amount requested in the President’s budget for

3 construction and facility improvements at OFO facilities in FY 2019 is identical to the

4 amount requested in FY 2018.8 And, of the five facilities at which the President’s budget

5 contemplates expenditures to expand capacity and improve operations, only two are

6 located at the southern border.9

7

Finally, recent statements of DHS personnel suggest that DHS is limiting arriving

8 noncitizens’ access to ports of entry not because it lacks capacity but as a means of

9 deterring asylum seekers. During a joint DHS and Department of Defense staff briefing

10 on December 6, 2018, a CBP official stated that DHS had limited processing at the San

11 Ysidro port of entry because “[t]he more we process, the more will come.”10 Other DHS

12 officials have similarly indicated that the administration’s focus at the border “has just

13 been on how can we deter, rather than how can we handle.”11

14

Any attempted deterrence would be consistent with the approach taken by the

15 Executive Branch to immigration policy generally. For example, in defending the

16 administration’s now-rescinded family separation policy, former White House Chief of

17

18 7 Dep’t of Homeland Sec., CBP, Budget Overview Fiscal Year 2019, at CBP – OS – 118,
19 https://www.dhs.gov/sites/default/files/publications/U.S.%20Customs%20and%20Border
20 %20Protection.pdf. 21 8 Id. at CBP – PC&I – 108.
9 Id. 22
10 Letter from Ranking Members of House Committees on Judiciary, Homeland Sec., and 23 Subcommittee on Immigration and Border Sec. to Commissioner, CBP (Dec. 17, 2018),
24 https://democratsjudiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/Nadler-Lofgren-
25 Thompson%2012.17%20Letter%20to%20CBP%20Commissioner.pdf.
26 11 Manny Fernandez, Caitlin Dickerson & Paulina Villegas, The Price of Trump’s
27 Migrant Deterrence Strategy: New Chaos on the Border, N.Y. Times (Jan. 4, 2019), https://www.nytimes.com/2019/01/04/us/mexico-wall-policy-trump.html.
28

4 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4697 Page 10 of 19

1 Staff John Kelly noted that it “would be a tough deterrent. A much faster turnaround on

2 asylum seekers.”12 Along the same lines, President Trump defended the family

3 separation policy by noting that if migrants “feel there will be separation, they don’t

4 come.”13 The limitations DHS has imposed on asylum seekers arriving at ports of entry

5 appear to reflect a similar deterrence-based strategy.

6

ARGUMENT

7

I.

The INA Reflects the Intent of Congress to Facilitate Grants of Asylum

8

The asylum provisions of the INA reflect Congress’s intent to “give statutory

9 meaning to our national commitment to human rights and humanitarian concerns,” bring

10 federal law into conformity with the United States’s commitments under international

11 law, and address needs that “touch at the heart of America’s foreign policy.” 125 Cong.

12 Rec. 23,231-32 (1979) (statement of Sen. Kennedy).

13

Congress enacted the Refugee Act of 1980 in recognition that “[t]he refugees of

14 tomorrow, like the refugees of today, will continue to look to the United States for safe

15 haven and resettlement opportunities—and our Government will continue to be called

16 upon to help.” 126 Cong. Rec. 3,757 (1980) (statement of Sen. Kennedy). The Act set

17 out for the first time an “asylum procedure … mandated in our immigration law.” 126

18 Cong. Rec. 4,500 (1980) (statement of Rep. Holtzman). It replaced what had been an “ad

19 hoc,” “inadequate,” and “discriminatory” administrative process, 125 Cong. Rec. 23,232

20 (1979) (statement of Sen. Kennedy), with a formal asylum application process for any

21 noncitizen “physically present in the United States or at a land border or port of entry,

22 irrespective of such alien’s status,” Refugee Act § 208(a) (current version, with similar

23

24 12 Transcript: White House Chief of Staff John Kelly’s Interview With NPR, NPR (May
25 11, 2018), https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of26 staff-john-kellys-interview-with-npr.
27 13 David Shepardson, Trump Says Family Separations Deter Illegal Immigration, Reuters (Oct. 13, 2018), https://www.reuters.com/article/us-usa-immigration-trump/trump-says-
28 family-separations-deter-illegal-immigration-idUSKCN1MO00C.

5 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4698 Page 11 of 19

1 language, at 8 U.S.C. § 1158). Consistent with the statutory goal of providing refuge 2 where needed, the Act invested the Executive Branch with discretion in deciding whether

3 to grant asylum, but made access to the application process mandatory. Id.

4

The Refugee Act also intended to bring U.S. law “into conformity with the United

5 States’s obligations” under the 1951 Convention Relating to the Status of Refugees 6 (“1951 Convention”) and the 1967 Protocol Relating to the Status of Refugees (“1967

7 Protocol”). East Bay Sanctuary Covenant v. Trump (“East Bay Sanctuary II”), 909 F.3d 8 1219, 1233 (9th Cir. 2018); see also 125 Cong. Rec. 23,232 (1979) (statement of Sen.

9 Kennedy that the Act will “make our law conform to the United Nations Convention and 10 protocol relating to the status of refugees, which we signed in 1969”). The 1951

11 Convention precludes parties, including the United States, from “impos[ing] penalties, on

12 account of their illegal entry or presence, on refugees who, coming directly from a

13 territory where their life or freedom was threatened … , enter or are present in their 14 territory without authorization, provided they present themselves without delay to the 15 authorities and show good cause for their illegal entry or presence.” 1951 Convention,

16 art. 31, § 1, July 28, 1951, 189 U.N.T.S. 150, 174.

17

In 1996, Congress further amended the INA through the Illegal Immigration

18 Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Div. C of Pub. L. No.

19 104-208, 110 Stat. 3009-546. That law, which required stricter asylum procedures,

20 continued to reflect the legislative conviction that asylum was “a cherished thing.”

21 Proposals to Reduce Illegal Immigration and Control Costs to Taxpayers: Hearing on S. 22 269 Before the S. Comm. on the Judiciary, 104th Cong. 23 (1995) (statement of Sen. 23 Simpson). While IIRIRA tightened asylum procedures, it also preserved the requirement

24 to permit otherwise inadmissible noncitizens to apply for asylum if they feared

25 persecution abroad. This continued protection for asylum seekers reflects Congress’s

26 long-held belief that the United States, “[a]s a nation of immigrants” and an “island of 27 freedom” to which “the world has looked as both protector and exemplar,” has a

28 “singular interest that its immigration laws encourage the admission of persons who will

6 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4699 Page 12 of 19

1 enrich our society.” H. Rep. No. 104-469, pt. 1, at 110 (1996) (quoting in part President

2 Reagan).

3

Confirming its intent to facilitate grants of asylum where warranted, Congress has

4 repeatedly rejected efforts to limit the number of asylum applicants. In 2018, for

5 example, Senator James Inhofe introduced the Asylum Abuse Reduction Act, which

6 would have prohibited migrants from applying for asylum at the border, requiring

7 prospective applicants to instead travel to a U.S. embassy or consulate for an interview

8 with an asylum officer. S. 3372, 115th Cong. § 2 (2018). Sen. Inhofe told an Oklahoma

9 newspaper that “[t]o resolve the large numbers [of asylum-seekers at the border,] the only

10 thing you have to do is not allow them to come into the United States.”14 The bill died in

11 committee. Another set of similar bills—including one that a co-sponsor acknowledged

12 was intended to deter asylum seekers—was equally unsuccessful in the House of

13 Representatives. See 164 Cong. Rec. H5430-31 (daily ed. June 21, 2018) (statement of

14 Rep. McCaul) (“[H.R. 4760] protects [children seeking asylum and separated from their

15 parents] because it provides a deterrent for them not to come here in the first place.”).

16 These bills would have raised the burden of proof in credible fear interviews and

17 introduced harsh criminal penalties for making any false statements in the asylum

18 interview process. Each failed to pass. See Securing America’s Future Act of 2018, H.R.

19 4760, 115th Cong., title IV, §§ 4402, 4408 (2018) (defeated on the floor 193-231);

20 Border Security and Immigration Reform Act of 2018, H.R. 6136, 115th Cong., title IV,

21 §§ 4101, 4108 (2018) (failed twice on the floor 121-301 and 190-230); Asylum Reform

22 and Border Protection Act of 2017, H.R. 391, 115th Cong. § 4 (2017) (died in

23 committee). And as recently as this year, the Senate rejected a bill aimed at “reduc[ing]

24

25 14 Ryan Miller, Inhofe to Introduce New Asylum Bill to Senate, Enid News & Eagle (Aug.
26 8, 2018) (“It’s an obvious solution to a problem …. Now if we don’t do anything, that’s
27 going to go right back up to the large numbers that we had under the Obama administration.”), https://www.enidnews.com/oklahoma/news/inhofe-to-introduce-new-
28 asylum-bill-to-senate/article_1d30f74d-1595-5ba5-9946-4082b68b4cc2.html.

7 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4700 Page 13 of 19

1 the incentive … to make the dangerous journey to the United States southern border to

2 request asylum” by, among other things, placing numerical limits on asylum processing

3 and grants. Senate Amendment 5 to H.R. 268, 116th Cong., Div. L § 102(2), 165 Cong.

4 Rec. S472 (daily ed. Jan. 22, 2019) (failed 50-47).

5

II.

The INA Imposes Strict Procedural Requirements Concerning Access to the

6 Asylum Process

7

In fulfillment of the legislative purposes just described, the INA requires that an

8 opportunity to apply for asylum be afforded to nearly all arriving noncitizens, and it

9 charges immigration officers with facilitating the asylum application process.

10

With three narrow exceptions not relevant here,15 the INA states that “any alien …

11 who arrives in the United States” may apply for asylum whether or not she arrives at a

12 designated port of entry and irrespective of her immigration status. 8 U.S.C. § 1158(a)(1)

13 (emphasis added). Courts have recognized this legislative command “that any alien who

14 arrives in the United States, irrespective of that alien’s status, may apply for asylum.”

15 East Bay Sanctuary Covenant v. Trump (“East Bay Sanctuary I”), No. 18-CV-06810-

16 JST, 2018 WL 6053140, at *1 (N.D. Cal. Nov. 19, 2018); see also Orantes-Hernandez v.

17 Thornburgh, 919 F.2d 549, 553 (9th Cir. 1990) (stating that “all aliens possess such a

18 right” to apply for asylum).

19

The INA also describes specific procedural protections that must be afforded to

20 asylum seekers. First, any noncitizen who is “seeking admission” to the United States

21 “shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3) (emphasis added).

22 Second, virtually all arriving noncitizens are entitled to an opportunity to request asylum.

23

24
25 15 “Section 1158(a) makes three classes of aliens categorically ineligible to apply for asylum: those who may be removed to a ‘safe third country’ in which their ‘life or
26 freedom would not be threatened’ and where they would have access to equivalent
27 asylum proceedings; those who fail to file an application within one year of arriving in the United States; and those who have previously applied for asylum and been denied.”
28 East Bay Sanctuary II, 909 F.3d at 1234.

8 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4701 Page 14 of 19

1 Specifically, under the expedited removal process that applies to most noncitizens

2 arriving at ports of entry along the U.S.-Mexico border without valid entry documents,

3 see id. § 1225(b)(1)(A), if an immigration officer determines that a noncitizen is

4 inadmissible, “the officer shall order the alien removed from the United States without

5 further hearing or review unless the alien indicates either an intention to apply for asylum

6 … or a fear of persecution.” Id. § 1225(b)(1)(A)(i) (emphasis added). And if such a

7 noncitizen “indicates either an intention to apply for asylum … or a fear of persecution,

8 the officer shall refer the alien for an interview by an asylum officer.” Id.

9 § 1225(b)(1)(A)(ii) (emphasis added). A person placed directly into ordinary removal

10 proceedings under § 240 of the INA need not be granted an interview with an asylum

11 officer, but (with limited exceptions) must still be permitted to seek asylum. See id.

12 §§ 1158, 1225(b)(2)(A), 1229a(c)(4).

13

DHS has repeatedly acknowledged the mandatory nature of the asylum process.

14 DHS regulations state, for example, that if a noncitizen “subject to the expedited removal

15 provisions indicates an intention to apply for asylum, or expresses a fear of persecution or

16 torture, or a fear of return to his or her country, the inspecting officer shall not proceed

17 further with removal of the alien until the alien has been referred for an interview by an

18 asylum officer.” 8 C.F.R. § 235.3(b)(4) (emphasis added). And public statements of

19 CBP recognize that its agents implementing the expedited removal process have “no

20 discretion as to whether or not to refer an alien for a credible fear interview.”16

21 III.

DHS’s Practice of Deterring Asylum Seekers by Limiting Access to Ports of

22 Entry and the Asylum Process Violates the INA

23

The Executive Branch is bound to implement duly enacted laws, including the

24 asylum provisions articulated by Congress in the INA. “In the framework of our

25

26
27 16 Claims of Fear, supra note 4 (“CBP Agents and Officers do not make any determination on the validity of such claims and refer the person for an interview with
28 [an] Asylum Officer.”).

9 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4702 Page 15 of 19

1 Constitution, the President’s power to see that the laws are faithfully executed refutes the 2 idea that he is to be a lawmaker.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

3 579, 587 (1952). The Framers left it to Congress, not the Executive Branch, to exercise 4 “the legislative power of the Federal government” using the “single, finely wrought and

5 exhaustively considered, procedure” they prescribed. INS v. Chadha, 462 U.S. 919, 951 6 (1983). It follows that “[t]he power of executing the laws … does not include a power to

7 revise clear statutory terms that turn out not to work in practice.” Util. Air Regulatory 8 Grp. v. EPA, 573 U.S. 302, 327 (2014). Much less may the executive “decline to follow

9 a statutory mandate or prohibition simply because of policy objections.” City & Cnty. of 10 San Francisco v. Trump, 897 F.3d 1225, 1232 (9th Cir. 2018) (quoting In re Aiken Cnty.,

11 725 F.3d 255, 259 (D.C. Cir. 2013)).

12

The Refugee Act “mandates a procedure for the consideration of asylum claims by

13 people who are here on our shores”—a procedure DHS is bound to follow. 126 Cong. 14 Rec. 4,507 (1980) (statement of Rep. Holtzman). Nothing in the INA permits the 15 Executive Branch to refuse to implement any aspect of the statutory scheme described

16 above based upon its own policy judgments. As recognized by the Ninth Circuit in a

17 recent case addressing one of the statutory provisions at issue here, “[w]here ‘Congress 18 itself has significantly limited executive discretion by establishing a detailed scheme that 19 the Executive must follow in [dealing with] aliens,’ the Attorney General may not

20 abandon that scheme because he thinks it is not working well.” East Bay Sanctuary II,

21 909 F.3d at 1250 (citation omitted). Noting that Congress “codified our obligation to

22 receive” asylum-seekers in the INA, id. at 1230, the court held that allowing the 23 Executive Branch to modify the asylum application process would do “indirectly what

24 the Executive cannot do directly: amend the INA,” id. at 1250; see also Trump v.

25 Hawaii, 138 S. Ct. 2392, 2411 (2018) (noting that the President may not “override

26 particular provisions of the INA”). The Ninth Circuit affirmed the district court’s 27 decision that the administration’s denial of asylum to migrants arriving between ports of

28 entry “irreconcilably conflicts with the INA and the expressed intent of Congress.” East

10 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4703 Page 16 of 19

1 Bay Sanctuary I, 2018 WL 6053140, at *1. The same conclusion applies with at least

2 equal force where DHS is refusing—even temporarily—to process asylum applications

3 from noncitizens who are following DHS’s directive to go to ports of entry and seek

4 asylum there.

5

For DHS to violate the INA’s provisions concerning asylum, not based on any

6 genuine lack of capacity to comply, but as a means of deterring asylum seekers, is

7 especially problematic. That is because doing so directly contravenes the intent of

8 Congress in enacting the INA: to make the asylum process, including specific procedural

9 protections, accessible to virtually all arriving noncitizens. The Refugee Act aimed to

10 “respond to the urgent needs of persons subject to persecution in their homelands.”

11 Refugee Act § 101(a). DHS may not flout that purpose by artificially limiting arriving

12 noncitizens’ access to ports of entry and to the asylum process in order to deter such

13 noncitizens from seeking asylum at all. To the extent DHS is doing so, it is violating the

14 letter and spirit of the INA.

15

16 DATED: February 21, 2019 17

WILMER CUTLER PICKERING HALE & DORR LLP

18

By: /s/ Matthew D. Benedetto

19

Matthew D. Benedetto

20

Attorney for Amici Curiae Members of

21

Congress

22

23

24

25 26 27 28

11 3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4704 Page 17 of 19

1

APPENDIX: LIST OF AMICI

2 Jerrold Nadler, Representative of New York

3 Zoe Lofgren, Representative of California 4 Bennie G. Thompson, Representative of Mississippi

5 Nanette Diaz Barragán, Representative of California 6 Suzanne Bonamici, Representative of Oregon

7 Julia Brownley, Representative of California

8 Tony Cárdenas, Representative of California

9 André Carson, Representative of Indiana 10 Joaquin Castro, Representative of Texas

11 Judy Chu, Representative of California

12 David N. Cicilline, Representative of Rhode Island

13 Gilbert R. Cisneros, Jr., Representative of California 14 Yvette D. Clarke, Representative of New York 15 Steve Cohen, Representative of Tennessee

16 Bonnie Watson Coleman, Representative of New Jersey

17 Lou Correa, Representative of California 18 Elijah E. Cummings, Representative of Maryland 19 Susan A. Davis, Representative of California

20 Madeleine Dean, Representative of Pennsylvania

21 Diana DeGette, Representative of Colorado

22 Val B. Demings, Representative of Florida 23 Mark DeSaulnier, Representative of California

24 Theodore E. Deutch, Representative of Florida

25 Eliot Engel, Representative of New York

26 Veronica Escobar, Representative of Texas 27 Adriano Espaillat, Representative of New York

28 Bill Foster, Representative of Illinois

12

3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4705 Page 18 of 19

1 Marcia L. Fudge, Representative of Ohio 2 Jesús G. “Chuy” García, Representative of Illinois 3 Sylvia Garcia, Representative of Texas 4 Jimmy Gomez, Representative of California 5 Vicente Gonzalez, Representative of Texas 6 Al Green, Representative of Texas 7 Raúl Grijalva, Representative of Arizona 8 Deb Haaland, Representative of New Mexico 9 Denny Heck, Representative of Washington 10 Sheila Jackson Lee, Representative of Texas 11 Pramila Jayapal, Representative of Washington 12 Henry C. “Hank” Johnson, Jr., Representative of Georgia 13 Joseph P. Kennedy, III, Representative of Massachusetts 14 Dan Kildee, Representative of Michigan 15 Raja Krishnamoorthi, Representative of Illinois 16 Brenda L. Lawrence, Representative of Michigan 17 Andy Levin, Representative of Michigan 18 John Lewis, Representative of Georgia 19 Ted W. Lieu, Representative of California 20 Alan Lowenthal, Representative of California 21 James P. McGovern, Representative of Massachusetts 22 Jerry McNerney, Representative of California 23 Gwen Moore, Representative of Wisconsin 24 Debbie Mucarsel-Powell, Representative of Florida 25 Grace F. Napolitano, Representative of California 26 Joe Neguse, Representative of Colorado 27 Eleanor Holmes Norton, Representative of the District of Columbia 28 Ilhan Omar, Representative of Minnesota
13

3:17-cv-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 219-1 Filed 02/21/19 PageID.4706 Page 19 of 19

1 Chellie Pingree, Representative of Maine 2 David E. Price, Representative of North Carolina 3 Jamie Raskin, Representative of Maryland 4 Kathleen M. Rice, Representative of New York 5 Cedric L. Richmond, Representative of Louisiana 6 Harley Rouda, Representative of California 7 Linda Sánchez, Representative of California 8 Mary Gay Scanlon, Representative of Pennsylvania 9 Jan Schakowsky, Representative of Illinois 10 Albio Sires, Representative of New Jersey 11 Darren Soto, Representative of Florida 12 Jackie Speier, Representative of California 13 Eric Swalwell, Representative of California 14 Dina C. Titus, Representative of Nevada 15 Rashida Tlaib, Representative of Michigan 16 Norma Torres, Representative of California 17 Lauren Underwood, Representative of Illinois 18 Juan Vargas, Representative of California 19 Filemon Vela, Representative of Texas 20 Nydia M. Velázquez, Representative of New York 21 Peter Welch, Representative of Vermont 22 John A. Yarmuth, Representative of Kentucky 23 24 25 26 27 28
14

3:17-cv-02366-BAS-KSC

 
 Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4715 Page 1 of 27

1 Susan Baker Manning, Bar No. 197350 MORGAN, LEWIS & BOCKIUS LLP
2 1111 Pennsylvania Avenue, NW Washington, DC 20004
3 Tel: +1.202.739.3000 Fax: +1.202.739.3001
4 susan.manning@morganlewis.com

5 Sabin Willett MORGAN, LEWIS & BOCKIUS LLP
6 One Federal Street Boston, Massachusetts 02110
7 Tel: +1.617.341.7700 Fax: +1.617.341.7701
8 sabin.willett@morganlewis.com

9 (Additional Attorneys Listed on Signature Page)
10
Attorneys for Amici Curiae
11

12

UNITED STATES DISTRICT COURT

13

SOUTHERN DISTRICT OF CALIFORNIA

14

SAN DIEGO DIVISION

15

16 AL OTRO LADO, INC., et al.,

Case No. 3:17-cv-02366-BAS-KSC

17

Plaintiffs,

Hon. Cynthia A. Bashant

18

vs.

19 KIRSTJEN M. NIELSEN, et al.,

20

Defendants.

21

22

BRIEF OF IMMIGRATION LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO PARTIALLY DISMISS THE SECOND AMENDED COMPLAINT

23

24

25

26

27

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

DB1/ 101381951.7

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4716 Page 2 of 27

1 2 3
I. 4
II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 III.

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ....................................................................................... 1
INTRODUCTION .............................................................................................................. 2
A. Governing Law Requires that the Extraterritoriality Arguments Be Reviewed Only Upon a Full Factual Record. ................................................................................... 4
B. Even If the New Individual Plaintiffs Were Turned Back Steps from the Border, They State Cognizable Claims. ............................................................................... 5
1. Under the INA, CBP Officials May Not Deny the New Individual Plaintiffs Access to the Asylum Process. ................................................. 6
a. Extraterritorial Application of U.S. Statutes.............................. 6
b. The Statutory Text Makes Asylum Available to Noncitizens Who Are at, But May Not Have Yet Crossed, the Border. ....... 7
c. Agency Interpretation of the INA Confirms That Asylum Is Available to Noncitizens Who Are at, But May Not Have Yet Crossed, the Border. ................................................................... 10
d. Sale Does Not Support Defendants’ Statutory Interpretation.12
2. CBP Officials May Not Deny Plaintiffs Access to the Asylum Process Without Due Process............................................................................... 12
3. The United States’ Non-Refoulement Obligations Prohibit It from Denying Noncitizens at The Border from Access to The Asylum Process. ..................................................................................................... 17
CONCLUSION ................................................................................................................. 20

20

21

22

23

24

25

26

27

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

DB1/ 101381951.7

i

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4717 Page 3 of 27

1

TABLE OF AUTHORITIES

2

Page(s)

3
Cases
4

Ark. Game & Fish Com’n v. United States,

5

568 U.S. 23 (2012) ........................................................................................ 18–19

6
Blazevska v. Raytheon Aircraft Co., 7 522 F.3d 948 (9th Cir. 2008) ............................................................................... 18

8 Boumediene v. Bush, 9 553 U.S. 723 (2008) ....................................................................12–13, 14, 16–17

10 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 11 467 U.S. 837 (1984) ........................................................................................... 11

12 Cohens v. Virginia, 13 19 U.S. (6 Wheat.) 264, 399 (1821) ................................................................... 19

14 Duncan v. Walker,

15

533 U.S. 167 (2001) .............................................................................................. 9

16 In re French, 320 B.R. 78 (D. Md. 2004).................................................................................. 18
17

18

In re French, 440 F.3d 145 (4th Cir. 2006) ............................................................................... 18

19
The Haitian Ctr. for Human Rights v. United States, 20 Case 10.675, Inter-Am. Comm’n H.R., Report No. 51/96, OEA/Ser.

21 L/V/II.95, Doc. 7 rev. (1997) .............................................................................. 20

22 Hernandez v. Mesa,

23

137 S. Ct. 2003 (2017) ........................................................................................ 15

24 Jamaa v. Italy (No. 27765/09), 2012-II Eur. Ct. H.R. 97 (2012)....................... 19–20

25
26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Kiobel v. Royal Dutch Petrol. Co., 569 U.S. 108 (2013) .............................................................................................. 7
Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) ............................................................................... 13

DB1/ 101381951.7

ii

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4718 Page 4 of 27

1 Johnson v. Eisentrager,

2

339 U.S. 763 (1950) ............................................................................................ 13

3 Loughrin v. United States, 573 U.S. 351 (2014) .............................................................................................. 9
4

5 Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010) .............................................................................................. 7
6

Reid v. Covert,

7

354 U.S. 1 (1957) ................................................................................................ 13

8
RJR Nabisco, Inc. v. European Cmty., 9 136 S. Ct. 2090 (2016) ...................................................................................... 6–7

10 Rodriguez v. Swartz, 11 899 F.3d 719 (9th Cir. 2018) ............................................................... 7, 13, 14, 15

12 Ruiz-Diaz v. United States, 13 618 F.3d 1055 (9th Cir. 2010)............................................................................. 11

14 Sale v. Haitian Ctrs. Council, Inc.,

15

509 U.S. 155 (1993) ................................................................ 3, 11–12, 13, 17–20

16 Thompson v. Davis, 295 F.3d 890 (2002) .............................................................................................. 5
17

18

United States v. Balint, 201 F.3d 928 (7th Cir. 2000) ................................................................................. 9

19
United States v. Delgado-Garcia, 20 374 F.3d 1337 (D.C. Cir. 2004) .......................................................................... 12

21 United States v. Verdugo-Urquidez, 22 494 U.S. 259 (1990) ............................................................................................ 13

23 W. Geco LLC v. ION Geophysical Corp., 24 138 S. Ct. 2129 (2018) .......................................................................................... 6

25 Statutes

26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

8 U.S.C. § 1158(a)(1) ........................................................................... 2, 8, 10, 11, 12 8 U.S.C. § 1225(a)(1) ................................................................................................. 8

DB1/ 101381951.7

iii

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4719 Page 5 of 27

1 8 U.S.C. § 1225(a)(3) ...........................................................................8, 9, 10, 11, 12

2 8 U.S.C. § 1225(b)(1) ..................................................................................... 8, 10, 12

3
8 U.S.C. § 1253(h) (1988) ....................................................................................... 12

4

Immigration and Nationality Act (“INA”),

5

8 U.S.C. §§ 1101–1537 .............................................1, 2, 3, 4, 5, 6, 10, 12, 16, 18

6

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

7

UNITED STATES §§ 402–03, at 237–54 (AM. LAW INST. 1987)........................... 14

8 Refugee Act of 1980 9 Pub. L. No. 96-212, § 101(a), (b), 94 Stat. 102, 102............................................. 5

10 Treaty to Resolve Pending Boundary Differences and Maintain the Rio

11 Grande and Colorado River as the International Boundary, art. IV, Nov. 23, 1970, 23 U.S.T. 390, T.I.A.S. No. 7313......................................... 14–15
12

13

Treaty on the Utilization of Waters of Colorado and Tijuana Rivers and of the Rio Grande,

14 Feb. 3, 1944, art. 2, 59 Stat. 1219, T.S. No. 904................................................. 15

15 United Nations Protocol Relating to the Status of Refugees, 16 art. 33.1, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577.............17, 18, 19, 20

17 Other Authorities

18 8 C.F.R. § 1.2........................................................................................................ 2, 10

19
8 C.F.R. § 235.3(b)(1)(i), (b)(4) ........................................................................... 2, 10
20

21

Eva Bitran, Note, Boumediene at the Border? The Constitution and Foreign Nationals on the U.S.-Mexico Border,

22 49 HARV. C.R.-C.L. L. REV. 229, 244–47 (2014) ............................................... 14

23 THE COMPACT OXFORD ENGLISH DICTIONARY 1564 (2d ed. 1989) .................. 17–18
24
Anil Kalhan, Immigration Surveillance, 25 74 MD. L. REV. 1, 65–68 (2014) ......................................................................... 15

26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 105th Cong. 17–18 (1997)............................................................................. 11–12

DB1/ 101381951.7

iv

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4720 Page 6 of 27

1 S. Rep. No. 96-256, at 1 (1979).............................................................................. 5–6
2 Securing Our Borders—Operational Control and the Path Forward, 3 112th Cong. 8 (2011)........................................................................................... 14

4 U.N. High Comm’r for Refugees, Advisory Opinion on the 5 Extraterritorial Application of Non-Refoulement Obligations under
the 1951 Convention relating to the Status of Refugees and its 1967 6 Protocol 12 (Jan. 26, 2007) ................................................................................. 19
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

DB1/ 101381951.7

v

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4721 Page 7 of 27

1 I. INTEREST OF AMICI CURIAE

2

Amici curiae are Deborah Anker (Clinical Professor of Law and founding

3 Director, Harvard Immigration and Refugee Clinical Program at Harvard Law

4 School), Alina Das (Professor of Clinical Law and Supervising Attorney at New

5 York University School of Law, and Co-Director of the Immigrant Rights Clinic),

6 Denise L. Gilman (Clinical Professor and Director, Immigration Clinic, University

7 of Texas at Austin School of Law), Anil Kalhan (Professor of Law, Drexel

8 University Thomas R. Kline School of Law), Ira Kurzban (Adjunct Faculty,

9 University of Miami School of Law), Stephen Legomsky (John S. Lehmann

10 University Professor Emeritus, Washington University in St. Louis School of Law),

11 Nancy Morawetz (Professor of Clinical Law and Co-Director, Immigrant Rights

12 Clinic at New York University School of Law), Sarah Paoletti (Practice Professor

13 of Law at the University of Pennsylvania Law School), Margaret L. Satterthwaite

14 (Professor of Clinical Law at New York University School of Law), Jayashri

15 Srikantiah (Professor of Law and founding Director, Immigrants’ Rights Clinic at

16 Stanford Law School), and Michael J. Wishnie (William O. Douglas Clinical 17 Professor of Law, Yale Law School).1

18

Amici curiae are law professors who research, write, and practice in the area

19 of immigration and refugee law. They bring a rich understanding of the United States’

20 obligations to enforce the United Nations Convention Relating to the Status of

21 Refugees of 1951 via the Immigration and Nationality Act (“INA”), and the broader

22 principles underlying the international law commitment to the principle and practice

23 of non-refoulement. They write out of concern for government practices that deny

24 migrants meaningful and timely access to the asylum process, as well as the legal

25 rationales proffered to justify them. Amici write to stress that the INA, the principles

26 of non-refoulement, and the constitutional constraints on the executive branch cannot

27 be obviated by preventing refugees who present themselves at the U.S. border from

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

1 All academic affiliations are listed for identification purposes only.

1

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4722 Page 8 of 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

crossing. Such a legal construction would undermine the bedrock principles of asylum law, and permit a legal manipulation of jurisdictional rules that could carry dangerously into the future. II. INTRODUCTION
The government views Maria (and each other plaintiff) as a player in a football game. In its view, she gained statutory and constitutional rights only if a panel of judges, examining slow-motion video angles, determines that she crossed the plane into the U.S. end zone. If border guards held her inches short of that plane, the government argues, she has no rights at all.
Amici submit that asylum is no game. The border is not a football field, and neither the U.S. Code nor the Constitution halts abruptly at a pinpoint in the desert or an eddy in a river. The “border” is more than a cartographical concept. It is built of ports of entry, of mountains, rivers, tidal areas that are land one hour and water six hours later, and of many places where, as the Complaint alleges, U.S. power regularly crosses the cartographer’s line. Congress chose prepositions and gerundives to match the border’s complexity, conferring rights on the asylum seeker when she is “at” the border, granting rights to an “arriving” class. 8 U.S.C. § 1158(a)(1); see also 8 C.F.R. § 1.2; 8 C.F.R. § 235.3(b)(1)(i), (b)(4). And as Constitutional jurisprudence teaches, if all that held an asylum seeker from the engineer’s line was the force or suasion of a burly lineman cloaked with federal authority, then perforce that plaintiff had already reached a place where the applicant’s rights are found.
For this reason, Amici begin with the special significance of Plaintiffs’ procedural arguments. The question whether a plaintiff has arrived “at” our border is fact-intensive. The Complaint alleges that each new Individual Plaintiff presented himself or herself “at [a] port of entry”—which is always on U.S. soil—spoke with U.S. Customs and Border Protection officers at the port, and either requested asylum or expressed an intent to do so. On the current record, the government’s label of eight individuals as “Extraterritorial Plaintiffs,” see Defendants’ Memorandum in Support

2

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4723 Page 9 of 27

1 of Their Motion to Partially Dismiss the Second Amended Complaint [Dkt. 192-1] 2 (“the Motion” or “Mot.”) at 2 n.1, 6–11 & 18–25, should be rejected.2 Review of the

3 requirements of the INA and Constitution requires facts, not labels.

4

Second, even if the Complaint had not alleged that each plaintiff “crossed the

5 plane,” it would state cognizable claims. Defendants argue that the CBP officials who

6 spoke to the new Individual Plaintiffs, and who refused to process Plaintiffs’ asylum

7 requests, were on U.S. soil—and yet speaking face-to-face with new Individual

8 Plaintiffs who somehow were not. While it finds no basis in the Complaint, even this

9 theory—that refugees who present themselves at the cartographer’s line have no right

10 to make the asylum claim they orally deliver there—runs counter to the statute and

11 the Constitution. Amici show below that the inspection and asylum provisions of the

12 Immigration and Nationality Act apply both to (1) non-citizens physically present in

13 the U.S. and (2) non-citizens who are “arriving” in this country. Under the statute’s

14 express terms and implementing regulations, the latter group includes the new

15 Individual Plaintiffs.

16

Plaintiffs also state a Fifth Amendment claim because they plainly were denied

17 a statutory right to access the asylum system without due process of law. Defendants

18 cannot deprive Plaintiffs of this right by forcefully barring the applicant reaching the

19 line from crossing it. Defendants’ arguments ignore Supreme Court precedent

20 holding that extraterritorial application of the Constitution—if indeed these events

21 were extraterritorial—turns not on formalism, but on practical considerations.

22

Last, Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), does not

23 authorize the refoulement of Plaintiffs. Although the United States’ non-refoulement

24
25
26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

2 Amici do not address Defendants’ arguments that the Second Amended Complaint should be dismissed as to organizational Plaintiff Al Otro Lado or any of the Individual Plaintiffs who were part of the original complaint in this action, and who Defendants recognize as having each alleged that he or she crossed into the U.S. and applied for asylum (the so-called “Territorial Plaintiffs”). Amici understand that the asserted grounds for dismissal were previously addressed and rejected by the Court. See Dkt. No. 166; Mot. at 29 n.9 (noting that Defendants raise certain issues to preserve them for appeal).

3

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4724 Page 10 of 27

1 obligations do not extend to the high seas, an asylum applicant just steps from the

2 border—who is indeed “at” the border—is not on the high seas, or in any place

3 comparable to the high seas. She is fully protected from refoulement by U.S. law.

4

Amici therefore respectfully suggest that Defendants’ Motion to Dismiss

5 should be denied as to the eight new Individual Plaintiffs.

6 III. DEFENDANTS CANNOT EVADE THEIR LEGAL DUTIES BY

INTERCEPTING ASYLUM SEEKERS STEPS FROM U.S. SOIL.
7

A. Governing Law Requires that the Extraterritoriality Arguments

8

Be Reviewed Only Upon a Full Factual Record.

9

The premise of Defendants’ Motion is that the eight new Individual Plaintiffs

10 assert no valid claims because “when they approached the border to the territorial

11 United States at the San Ysidro, Laredo, or Hidalgo ports of entry [they] were

12 prevented by CBP officers or Mexican immigration officials from physically

13 crossing the international boundary.” Mot. at 2. Defendants assert that the new

14 Individual Plaintiffs’ claims should be dismissed outright because (1) Defendants’

15 “duties under the INA are not triggered until an alien is physically present in the

16 United States,” id. at n.1, (2) the new Individual Plaintiffs have no due process rights

17 because “the Fifth Amendment does not apply to aliens outside the United States,”

18 id. at 18, and (3) “the United States does not have any non-refoulement obligation to

19 aliens outside its borders,” id. at 23. In short, the government contends that

20 everything turns upon a cartographer’s line that the Plaintiffs did not reach.

21

At this point, however, the only record is the Complaint. And the Complaint

22 does not allege the Defendants’ theory. Rather, it alleges (at minimum) that each new

23 Individual Plaintiff:

24

 spoke to CBP officials;

25

 requested asylum (or expressed an intent to do so); and

26

 made the request while “at [a] port of entry.”

27 See Compl. ¶¶ 29 & 154–56 (Roberto); id. ¶¶ 30, 162, & 165–67 (Maria and her two

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

children); id. ¶¶ 31 & 174–75 (Juan and Úrsula); id. ¶¶ 32 & 181 (Victoria); id. ¶¶

4

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4725 Page 11 of 27

1 33, 185, & 187–88 (Bianca); id. ¶¶ 34 & 193 (Emiliana); and id. ¶¶ 35 & 199 (César).

2 It is undisputed that all U.S. ports of entry “are located within the territorial United

3 States.” Mot. at 11. Thus, the allegation that each new Individual Plaintiff presented

4 himself or herself “at” a port of entry where he or she spoke to CBP officials is a

5 plain assertion that each new Individual Plaintiff had sufficient “presence” in the

6 United States to seek asylum. See, e.g., Thompson v. Davis, 295 F.3d 890, 895 (9th

7 Cir. 2002) (“All allegations of material fact are taken as true and construed in the

8 light most favorable to the nonmoving party.”). Whatever the significance of

9 cartography to the ultimate question whether a plaintiff was “at” the border, the

10 question depends on a factual record that does not yet exist. Given the importance of

11 the legal questions presented, Amici suggest that the Court should resolve them only

12 upon development of that factual record.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

B. Even If the New Individual Plaintiffs Were Turned Back Steps from the Border, They State Cognizable Claims.
It has been nearly forty years since Congress amended the INA to replace the ad hoc refugee and asylum system that grew up over the preceding century to establish “for the first time a comprehensive United States refugee resettlement and assistance policy.” S. Rep. No. 96-256, at 1 (1979). The Refugee Act of 1980 amended the INA to “a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States.” Refugee Act of 1980, Pub. L. No. 96-212, § 101(b), 94 Stat. 102, 102. Explaining the purpose of the law, Congress declared:
[I]t is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including, where appropriate, humanitarian assistance for their care and maintenance in asylum areas, efforts to promote opportunities for resettlement or voluntary repatriation, aid for necessary transportation and processing, admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States. Id. § 101(a), 94 Stat. at 102. The 1980 Act thus “reflects one of the oldest themes in

5

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4726 Page 12 of 27

1 America’s history—welcoming homeless refugees to our shores” and “gives

2 statutory meaning to our national commitment to human rights and humanitarian

3 concerns.” S. Rep. No. 96-256, at 1.

4

Defendants contend that the new Individual Plaintiffs and CBP officials spoke

5 athwart the map-maker’s line: each new Individual Plaintiff, they argue, “spoke to a

6 CBP officer in the United States but never herself crossed the border.” Mot at 2 n.1

7 (emphasis added). Even if the Court were to accept what the Complaint contradicts,

8 it should rule Defendants wrong on the law. U.S. law indisputably provides that the

9 government may not strip Plaintiff’s rights by barring asylees at the border from

10 “breaking the plane.”

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

1. Under the INA, CBP Officials May Not Deny the New Individual Plaintiffs Access to the Asylum Process.
The INA’s asylum provisions extend to persons like the new Individual Plaintiffs who are in the process of arriving in the United States, even if—as Defendants suggest happened here—CBP officers stop them a few feet from the border. CBP officials acted under color of U.S. law, and whether they kept Plaintiffs from breaking the plane by exerting force from the “U.S. side” of the mapmaker’s line, or whether they used “pre-checkpoints” to screen out asylum seekers on the other side of the line, their very ability to exert governmental power on Plaintiffs shows that those Plaintiffs had reached the place where U.S. power exists: that is, the Plaintiffs were “at” the border. Both the text and broader statutory scheme of the INA require that when a noncitizen in that place indicates either an intention to apply for asylum or a fear of persecution to a U.S. immigration officer, that person’s must be processed.
a. Extraterritorial Application of U.S. Statutes Courts analyze whether a statute applies extraterritorially using a two-step framework. W. Geco LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2136 (2018). First, the court considers “whether the presumption against extraterritoriality has

6

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4727 Page 13 of 27

1 been rebutted—that is, whether the statute gives a clear, affirmative indication that it

2 applies extraterritorially.” RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090,

3 2101 (2016). “While the presumption can be overcome only by a clear indication of

4 extraterritorial effect, an express statement of extraterritoriality is not essential.

5 ‘Assuredly context can be consulted as well.’” Id. at 2102 (quoting Morrison v. Nat’l

6 Austl. Bank Ltd., 561 U.S. 247, 265 (2010)).

7

If the statute clearly indicates that it applies extraterritorially, the analysis is

8 complete because “[t]he scope of an extraterritorial statute [] turns on the limits

9 Congress has (or has not) imposed on the statute’s foreign application[.]” Id.; see also

10 Rodriguez v. Swartz, 899 F.3d 719, 747 (9th Cir. 2018) (the presumption against the

11 extraterritorial application of a statute “can be overcome when actions ‘touch and

12 concern the territory of the United States . . . with sufficient force to displace the

13 presumption’”) (quoting Kiobel v. Royal Dutch Petrol. Co., 569 U.S. 108, 124–25,

14 (2013)). If the statute does not clearly indicate that it applies extraterritorially, the

15 court will consider “whether the case involves a domestic application of the

16 statute . . . by looking to the statute’s ‘focus.’” RJR Nabisco, 136 S. Ct. at 2101. “If

17 the conduct relevant to the statute’s focus occurred in the United States, then the case

18 involves a permissible domestic application even if other conduct occurred abroad;

19 but if the conduct relevant to the focus occurred in a foreign country, then the case

20 involves an impermissible extraterritorial application regardless of any other conduct

21 that occurred in U.S. territory.” Id.

22

b. The Statutory Text Makes Asylum Available to

Noncitizens Who Are at, But May Not Have Yet

23

Crossed, the Border.

24

Congress did not require that the applicant for asylum have fully crossed the

25 map-maker’s line. The statutory text sets out three different categories of noncitizens

26 who may seek asylum: (1) aliens “physically present in the United States”; (2) those

27 who are “arriving” in the United States; and (3) aliens who are “otherwise seeking

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

admission” to the United States. 8 U.S.C. § 1158(a)(1). These are distinct categories.

7

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4728 Page 14 of 27

1 Congress signified by noncitizens who are “arriving in the United States” or

2 “otherwise seeking admission” a class of persons distinct from those “physically

3 present” in the country.

4

Section 1158(a)(1) describes two categories of persons who may seek asylum:

5

Any alien who is [1] physically present in the United

States or [2] who arrives in the United States (whether or

6

not at a designated port of arrival and including an alien

who is brought to the United States after having been

7

interdicted in international or United States waters),

irrespective of such alien’s status, may apply for asylum

8

in accordance with this section or, where applicable,

section 1225(b) of this title.
9

8 U.S.C. § 1158(a)(1) (emphasis added). Just as Section 1158(a)(1) makes “[a]ny

10

alien … who arrives in the United States” eligible to apply for asylum, Section

11

1225(b)(1) also requires that an immigration officer to refer the asylum request of

12

“an alien … who is arriving in the United States” for proper evaluation.

13

If an immigration officer determines that an alien … who

14

is arriving in the United States … is inadmissible ... and

the alien indicates either an intention to apply for asylum

15

under section 1158 of this title or a fear of persecution,

the officer shall refer the alien for an interview by an

16

asylum officer[.]”

17 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).

18

Consistent with these asylum-specific provisions, Section 1225(a)(1) defines

19 “applicant for admission” as including an alien who arrives in the United States:

20
21
22
23
24
25
26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

An alien [1] present in the United States who has not been admitted or [2] who arrives in the United States (whether or not at a designated port of arrival . . . ) shall be deemed for purposes of this chapter an applicant for admission. 8 U.S.C. § 1225(a)(1) (emphasis added). The duty of immigration officers to inspect noncitizens—which will, in appropriate circumstances, trigger the duty to refer the noncitizen for an asylum interview—builds on the Section 1225(a)(1) definition of “applicant for admission,” but is framed even more broadly: All aliens (including alien crewmen) [1] who are applicants for admission or [2] otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.

8

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4729 Page 15 of 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

8 U.S.C. § 1225(a)(3). In each of the cited statutes, Congress carefully distinguished the categories
from each other. First, each of the provisions uses the disjunctive “or.” This makes clear that a person in any one of the categories must be appropriately inspected and have his asylum claim addressed. See, e.g., Loughrin v. United States, 573 U.S. 351, 357 (2014) (the “ordinary use” of the word “or” “is almost always disjunctive, that is, the words it connects are to be given separate meanings”) (internal quotation omitted). Second, by setting out distinct categories of eligibility, Congress intended the terms “[physically] present in the United States” and “who arrives in the United States” (or “who is arriving in the United States”) to mean different things, under the familiar canon against surplusage. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001). Third, the use of the present tense (“arrives”) and present progressive tense (“is arriving”) of the verb “to arrive” indicates an ongoing or continuing action. See, e.g., United States v. Balint, 201 F.3d 928, 933 (7th Cir. 2000) (“[U]se of the present progressive tense, formed by pairing a form of the verb ‘to be’ and the present participle, or ‘-ing’ form of an action verb, generally indicates continuing action.”). A guest may not have entered the house, and still we refer to him as an “arriving guest.”
The hole in Defendants’ argument appears most starkly in their elisions of the text. The Motion refers to non-citizens who have “arriv[ed]” in the United States. See Mot. at 8 & 9 (alteration in original). But the statute does not say “arrived”; it says “arrives” and “arriving.” The text does not require a noncitizen to complete her arrival, but only that she be in the process of doing so. Noncitizens like Plaintiffs who request asylum or express a fear of persecution in a face-to-face conversation with CBP officials are in the process of “arriving in the United States” even if those officials physically stop them from stepping across the cartographer’s line.
The third category of noncitizens who must be inspected, and whose asylum claims must be processed, are those who are “otherwise seeking admission” within

9

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4730 Page 16 of 27

1 the meaning of Section 1225(a)(3). The Complaint describes how each new

2 Individual Plaintiff specifically sought admission to the United States—in some

3 cases repeatedly—and was turned back by CBP officials. See Compl. ¶¶ 29 & 154–

4 56 (Roberto); id. ¶¶ 30, 162, & 165–167 (Maria and her two children); id. ¶¶ 31 &

5 174–75 (Juan and Úrsula); id. ¶¶ 32 & 181 (Victoria); id. ¶¶ 33, 185, & 187–88

6 (Bianca); id. ¶¶ 34 & 193 (Emiliana); and id. ¶¶ 35 & 199 (César). Although

7 Defendants assert that Plaintiffs were not “‘seeking admission’ in the manner

8 prescribed by statute and regulation,” Mot. at 8, the Complaint is clear that the new

9 Individual Plaintiffs were in fact seeking admission. As to the claim that they were

10 not seeking admission “in the manner prescribed by statute and regulation,” this is

11 incorrect for all the reasons discussed above. And, of course, the new Individual

12 Plaintiffs were not able to formally apply for asylum only because of Defendants’

13 Turnback Policy and the unlawful actions of CBP officers.

14

c. Agency Interpretation of the INA Confirms

That Asylum Is Available to Noncitizens Who

15

Are at, But May Not Have Yet Crossed, the

Border.
16

Although “arriving alien” is not a term expressly defined by statute, long-

17

standing agency interpretation of the INA confirms that Sections 1158(a)(1),

18

1225(b)(1), and 1225(a)(3) apply to noncitizens who are at the border and seeking

19

entry, but who may not yet have crossed the border.

20

Arriving alien means an applicant for admission coming

21

or attempting to come into the United States at a port-of-

entry, or an alien seeking transit through the United States

22

at a port-of-entry, or an alien interdicted in international

or United States waters and brought into the United States

23

by any means, whether or not to a designated port-of-

entry, and regardless of the means of transport.
24

25 8 C.F.R. § 1.2; see also 8 C.F.R. § 235.3(b)(1)(i), (b)(4) (describing the procedure

26 for an “arriving alien” to apply for asylum and the duties of immigration officers

27 under the INA). The present progressive tense phrase “coming . . . into the United

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

States” refers to ongoing or continuing action, not the act of having already come

10

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4731 Page 17 of 27

1 into the United States. It refers to individuals at the border and in the active process

2 of entering the United States, whether or not they have yet reached U.S. soil. And

3 “attempting to come into the United States” could not be plainer. It also refers to a

4 continuing action and necessarily excludes those who have accomplished what the

5 government asserts as the requirement—full presence in the United States. This

6 phrase plainly refers directly to individuals who are at or near the border and actively

7 seeking to enter the United States, but have not yet done so. Agency interpretation of

8 the statute is strong evidence that Sections 1158(a)(1), 1225(b)(1), and 1225(a)(3)

9 apply to noncitizens like the new Individual Plaintiffs who are in the process of

10 entering this country, even when they have not yet crossed the border. Ruiz-Diaz v.

11 United States, 618 F.3d 1055, 1060 (9th Cir. 2010) (“When . . . Congress has

12 expressly conferred authority on the agency to implement a statute by regulation, the

13 regulations have ‘controlling weight unless they are arbitrary, capricious, or

14 manifestly contrary to the statute.’”) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def.

15 Council, Inc., 467 U.S. 837, 843–44 (1984)).

16

During the rulemaking process, Rep. Lamar Smith, Chairman of the House

17 Judiciary Committee’s Subcommittee on Immigration and Claims, commented on

18 Congress’s intent in adopting the term “arriving alien”:

19

The term “arriving alien” was selected specifically by

Congress in order to provide a flexible concept that would

20

include all aliens who are in the process of physical entry

past our borders, regardless of whether they are at a

21

designated port of entry, on a seacoast, or at a land

border…. “Arrival” in this context should not be

22

considered ephemeral or instantaneous but, consistent with

common usage, as a process. An alien apprehended at any

23

stage of this process, whether attempting to enter, at the

point of entry, or just having made entry, should be

24

considered an “arriving alien” for the various purposes

in which that term is used in the newly revised provisions

25

of the INA.

26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. 17–18 (1997) (correspondence

11

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4732 Page 18 of 27

1 dated Feb. 3, 1997 to Immigration and Naturalization Service from Chairman Smith)

2 (emphasis added). An alien “attempting to enter” the United States necessarily has

3 not yet entered. Chairman Smith’s comments confirm that the statutory text was

4 intentional: Congress meant to reach aliens who are in the active process of entering

5 the United States, even if they have not yet taken the last steps to cross the border.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

d. Sale Does Not Support Defendants’ Statutory Interpretation.
Defendants cite Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993), in support of the assertion that “CBP’s duties to ‘inspect,’ ‘refer,’ or ‘detain’ an alien are triggered only if the alien is on American soil.” Mot. at 7–8 (emphasis in original). Sale does not say that. The footnote that Defendants cite merely quotes Section 1158(a)(1) without relevant commentary. See id. at 8 (citing Sale, 509 U.S. at 162 n.11).
A narrow decision, Sale was driven by the unique facts of the 1990s Haitian migration crisis. The Supreme Court analyzed whether INA § 243(h), 8 U.S.C. § 1253(h) (1988) (“Withholding of deportation or return”) (since abrogated), and U.S. treaty obligations controlled the interdiction of Haitian migrants outside the territorial waters of the United States and their subsequent return to Haiti. The Court held that neither set of obligations “applies to action taken by the Coast Guard on the high seas.” Sale, 509 U.S. at 159 (emphasis added). Sale’s review of the interdiction and summary repatriation of Haitian migrants on the high seas has no bearing on whether or how Sections 1158(a)(1), 1225(b)(1), and 1225(a)(3) apply to the current policy of turning back refugees at the U.S.-Mexico border. Cf. United States v. Delgado-Garcia, 374 F.3d 1337, 1348 (D.C. Cir. 2004) (finding that immigrationrelated statute applies extraterritorially, and distinguishing Sale because the statute at issue in Sale referenced a domestic official, the Attorney General, and deportation proceedings the Attorney General was not authorized to conduct outside the country).
2. CBP Officials May Not Deny Plaintiffs Access to the Asylum Process Without Due Process.

12

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4733 Page 19 of 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Even if the Court were to assume arguendo that a Plaintiff stood on Mexican soil when she informed CBP officers that she sought asylum, she nevertheless states a cognizable claim that CBP’s summary refusal to permit access to the asylum process violated the Due Process Clause.
The reach of the Constitution is not determined with simple reference to a line on the map. In Boumediene v. Bush, 553 U.S. 723, 759 (2008), the Supreme Court reviewed more than a hundred years of precedent regarding the Constitution’s geographic scope, including the Johnson v. Eisentrager, 339 U.S. 763 (1950), Reid v. Covert, 354 U.S. 1 (1957), and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), cases Defendants rely upon. The Court found “a common thread uniting all [the] cases: the idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism.” Boumediene, 553 U.S. at 764; see also Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012) (“The Supreme Court has held in a series of cases that the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not.”).
Following Boumediene, in the recent Rodriguez case, the Ninth Circuit examined three factors to determine the Constitution’s extraterritorial application: (1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right. Rodriguez v. Swartz, 899 F.3d 719, 729 (9th Cir. 2018) (Fourth Amendment analysis); see also Ibrahim, 669 F.3d at 994–97 (Fifth Amendment).
Regarding the first factor, each new Individual Plaintiff is a noncitizen. On these facts, foreign citizenship cuts sharply in Plaintiffs’ favor, of course, because asylum is conferred exclusively on non-citizens. So too does status. Each Plaintiff alleges that she fled persecution, traveling hundreds of miles, and approached the United States border with the intent of seeking asylum—that is, that she is precisely within the group contemplated by the statutory scheme.
As to the second factor, Plaintiffs were not apprehended far from American

13

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4734 Page 20 of 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

territory in international waters. Cf. Sale, 509 U.S. 155. Even under Defendants’ nonrecord-based assertions, Plaintiffs were certainly at the border, at most within steps of the cartographer’s line, so close they could speak to CBP agents whom the government says were on American soil, and so close that it was only U.S. government influence or control that prevented their further advance. See Boumediene, 553 U.S. at 749 (applying constitutional habeas privilege in non-U.S. territory subject to U.S. control); Rodriguez, 899 F.3d at 731 (“American law controls what people do here.”) (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 402–03, at 237–54 (AM. LAW INST. 1987)).
Defendants’ suggestion that the border constitutes a bright line between the United States’ de jure and de facto control over U.S. territory and genuinely foreign territory ignores the realities of the U.S.-Mexico border. CBP officials regularly operate in Northern Mexico, and the United States exercises significant control over the entire border region, Mexico’s de jure sovereignty notwithstanding. See, e.g., Securing Our Borders—Operational Control and the Path Forward: Hearing Before the Subcomm. on Border & Mar. Sec. of the H. Comm. on Homeland Sec., 112th Cong. 8 (2011) (prepared statement of Michael J. Fisher, Chief of U.S. Border Patrol) (U.S. border security policy “extends [the nation’s] zone of security outward, ensuring that our physical border is not the first or last line of defense, but one of many.”); Eva Bitran, Note, Boumediene at the Border? The Constitution and Foreign Nationals on the U.S.-Mexico Border, 49 HARV. C.R.-C.L. L. REV. 229, 244–47 (2014) (collecting historical examples showing the U.S. “exerts and has exerted powerful influence over northern Mexico”). If U.S. power projects beyond the map line, then so too does the Constitution’s demand that the government not deprive a statutorily-recognized class of would-be asylees of due process.
Under the applicable treaties, the United States and Mexico have agreed to jointly maintain the Rio Grande and related limitrophe areas. See Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as

14

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4735 Page 21 of 27

1 the International Boundary, art. IV, Nov. 23, 1970, 23 U.S.T. 390, T.I.A.S. No. 7313

2 (Rio Grande and Colorado River Treaty); see also Treaty on the Utilization of Waters

3 of Colorado and Tijuana Rivers and of the Rio Grande, Feb. 3, 1944, art. 2, 59 Stat.

4 1219, T.S. No. 904 (a U.S.-Mexico joint International Boundary and Water

5 Commission, exercises its “jurisdiction” over limitrophe parts of the Rio Grande). As

6 Justice Breyer recently observed:

7

[I]international law recognizes special duties and

obligations that nations may have in respect to limitrophe

8

areas. Traditionally, boundaries consisted of rivers,

mountain ranges, and other areas that themselves had depth

9

as well as length. It was not until the late 19th century that

effective national boundaries came to consist of an

10

engineer’s imaginary line, perhaps thousands of miles

long, but having no width. Modern precision may help

11

avoid conflicts among nations, but it has also produced

boundary areas—of the sort we have described—which are

12

subject to a special legal, political and economic regime of

internal and international law.

13

14 Hernandez v. Mesa, 137 S. Ct. 2003, 2010 (2017) (Breyer, J., dissenting) (internal

15 quotations and citations omitted); see also Anil Kalhan, Immigration Surveillance,

16 74 MD. L. REV. 1, 58–72 (2014). The constant presence of U.S. officials on both sides

17 of the cartographer’s line, and the U.S.’s significant control over the area of northern

18 Mexico adjacent to the border weighs strongly in favor of a finding that, in the

19 circumstances of this case, the new Individual Plaintiffs may not be denied access to

20 the asylum system when interdicted by the extension of that power.

21

As to the third factor, there are no practical obstacles inherent in requiring that

22 the new Individual Plaintiffs’ asylum claims be evaluated on the merits. The new

23 Individual Plaintiffs were standing at the border, and had a face-to-face conversation

24 with CBP officers who Defendants assert were on U.S. soil. It is no burden to require

25 American officials in the United States to provide due process when inspecting and

26 referring Plaintiffs’ asylum claims for appropriate evaluation, and to stop selectively

27 turning back would-be asylees at the border.

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Amici do not suggest that the statutory rights to seek asylum and have one’s

15

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4736 Page 22 of 27

1 asylum claim evaluated in accordance with Due Process extend to anyone, anywhere

2 who intends to seek asylum. But those rights do extend to those who are on the

3 threshold of entering the United States, close enough to have a face-to-face

4 conversation with CBP officers standing on U.S soil, and who are prevented from

5 advancing further only by the extension of the government’s active force. Cf.

6 Rodriguez, 899 F.3d at 731 (“The practical concerns . . . about regulating conduct on

7 Mexican soil also do not apply here. There are many reasons not to extend the Fourth

8 Amendment willy-nilly to actions abroad. . . . But those reasons do not apply to [the

9 CBP agent in Rodriguez]. He acted on American soil subject to American law.”).

10 Under the particular circumstances as pled, the Plaintiffs had a right to apply for

11 asylum under the INA, and a right to due process in the evaluation of those claims,

12 even if they technically were standing in Mexico when they requested asylum or

13 expressed their intent to do so. To hold otherwise, particularly without a full factual

14 record, would give Defendants carte blanche to ignore their duties under the INA,

15 and, as alleged in the Complaint, to use all manner of lies, threats, coercion, and

16 physical force to turn back refugees fleeing violence and persecution. See, e.g.,

17 Compl. at ¶¶ 2, 33, 62, 84, 87–97, 107–18, 121–23, 128–31, 134–36, 141–44, 150–

18 51, 155–56, 167, 174, 181, 185–88, 192–93, 197, 199.

19

The Supreme Court has previously rejected similar claims that the Executive’s

20 conduct is without constraint:

21
22
23
24
25
26
27
28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U.S. 15, 44, 5 S. Ct. 747, 29 L.Ed. 47 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803).

16

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4737 Page 23 of 27

1 Boumediene, 553 U.S. at 765.

2

3. The United States’ Non-Refoulement Obligations

Prohibit It from Denying Noncitizens at The Border

3

from Access to The Asylum Process.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Defendants assert that “the United States does not have a non-refoulement obligation to aliens outside its borders.” Mot. at 23. This is a misreading of the United States’ responsibilities, and Defendants’ categorical claim is not supported by Sale, the only case they cite. The Sale court determined that the United States’ nonrefoulement obligations did not “appl[y] to action taken by the Coast Guard on the high seas.” 509 U.S. at 159. In particular, the U.S.’s treaty obligations did not require the government to transport Haitians intercepted on the high seas to either the U.S. or a third country, rather than returning the migrants to their home country. Id. at 181–83. Here, both Article 33 and the Sale Court’s analysis support a finding that the United States does in fact have a non-refoulement obligation to refugees who are at the border and in the process of attempting to enter this country in search of asylum:

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Sale, 509 U.S. at 179 (quoting United Nations Protocol Relating to the Status of Refugees, art. 33.1, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577). In evaluating this prohibition, the Sale Court noted that the English word “return” and the French term “refouler” are not exact synonyms, and that English-French dictionaries did not translate “refouler” as “return,” or vice versa. Id. at 180–81.

[Dictionary definitions] do, however, include words like “repulse,” “repel,” “drive back,” and even “expel.” To the extent that they are relevant, these translations imply that “return” means a defensive act of resistance or exclusion at a border rather than an act of transporting someone to a particular destination. In the context of the Convention, to “return” means to “repulse” rather than to “reinstate.” Id. at 181–82 (emphasis added); see also THE COMPACT OXFORD ENGLISH DICTIONARY 1564 (2d ed. 1989) (“repulse … trans. 1. To drive or beat back (an

17

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4738 Page 24 of 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

assailant); to repel by force of arms. . . . 2. To repel with denial; to reject, refuse, rebuff. . . . 3. To shut out, exclude from something.”) (emphasis in original)).
In Sale, individuals intercepted outside the territorial waters of the U.S. were not being “repulse[d]” from, or “exclu[ded] at a border.” The Court viewed the issue as whether the United States was obligated to transport migrants at large on the high seas to a country that they had neither come from, nor approached. The Supreme Court held that it was not. Sale, 509 U.S. at 159 (“We hold that neither [INA] § 243(h) nor Article 33 of the United Nations Protocol Relating to the Status of Refugees applies to action taken by the Coast Guard on the high seas.” (emphasis added)). The Court repeatedly emphasized that the Coast Guard had intercepted the migrants in remote international waters. See id. at 160, 166–67, 173, 179–80, 187 (all emphasizing aliens’ presence on the high seas). Lower courts have also noted the importance of Sale’s unique facts to its analysis and holding. See, e.g., Blazevska v. Raytheon Aircraft Co., 522 F.3d 948, 954 (9th Cir. 2008) (describing Sale as involving the “deportation of aliens from international waters”); In re French, 320 B.R. 78, 82 n.8 (D. Md. 2004) (similarly noting that Sale concerned “refugees apprehended in international waters.”), aff’d, 440 F.3d 145 (4th Cir. 2006). With respect to the scope of Article 33, Sale is properly understood as limited to its unique facts, and the holding that it does not apply to the high seas.
Statements that go beyond the Court’s holding and related reasoning are properly understood as dicta. In particular, Justice Stevens’ statement that “[b]ecause the text of Article 33 cannot reasonably be read to say anything at all about a nation’s actions toward aliens outside its own territory, it does not prohibit such actions . . .” was not the holding of the case. Compare Sale, 509 U.S. at 183 with id. at 159 (“We hold . . . .”). This statement is, at most, dicta that goes beyond the facts of the case, or the analysis necessary to the Court’s specific holding. See, e.g., Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 35 (2012) (“We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard,

18

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4739 Page 25 of 27

1 we recall Chief Justice Marshall’s sage observation that ‘general expressions, in

2 every opinion, are to be taken in connection with the case in which those expressions

3 are used. If they go beyond the case, they may be respected, but ought not to control

4 the judgment in a subsequent suit when the very point is presented for decision.’”

5 (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)).

6

The Sale majority opinion has been broadly criticized, not least by Justice

7 Blackmun in dissent:

8

When, in 1968, the United States acceded to the United

Nations Protocol Relating to the Status of Refugees, it

9

pledged not to “return (‘refouler’) a refugee in any manner

whatsoever” to a place where he would face political

10

persecution. In 1980, Congress amended our immigration

law to reflect the Protocol’s directives. Today’s majority

11

nevertheless decides that the forced repatriation of the

Haitian refugees is perfectly legal, because the word

12

“return” does not mean return, because the opposite of

“within the United States” is not outside the United States,

13

and because the official charged with controlling

immigration has no role in enforcing an order to control

14

immigration.

15 Sale, 509 U.S. at 188–89 (Blackmun, J., dissenting) (internal citations omitted).

16 UNHCR, the European Court for Human Rights, and the Inter-American

17 Commission on Human Rights have been similarly critical. See, e.g., U.N. High

18 Comm’r for Refugees, Advisory Opinion on the Extraterritorial Application of Non-

19 Refoulement Obligations under the 1951 Convention relating to the Status of

20 Refugees and its 1967 Protocol 12 (Jan. 26, 2007) (“[T]he purpose, intent and

21 meaning of Article 33(1) of the 1951 Convention are unambiguous and establish an

22 obligation not to return a refugee or asylum-seeker to a country where he or she

23 would be risk of persecution or other serious harm, which applies wherever a State

24 exercises jurisdiction, including at the frontier, on the high seas or on the territory of

25 another State.”), https://www.unhcr.org/4d9486929.pdf; id. at 12 n.54 (“Sale does

26 not accurately reflect the scope of Article 33(1)”); Jamaa v. Italy (No. 27765/09),

27 2012-II Eur. Ct. H.R. 97, 173, 175 (2012) (De Albuquerque, J., concurring),

28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

https://www.echr.coe.int/Documents/Reports_Recueil_2012-II.pdf

(“The

19

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4740 Page 26 of 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

prohibition of refoulement is not limited to the territory of a State, but also applies to extraterritorial State action, including action occurring on the high seas. . . . With all due respect, the United States Supreme Court’s interpretation contradicts the literal and ordinary meaning of the language of Article 33 of the United Nations Convention relating to the Status of Refugees and departs from the common rules of treaty interpretation.”); The Haitian Ctr. for Human Rights v. United States, Case 10.675, Inter-Am. Comm’n H.R., Report No. 51/96, OEA/Ser. L/V/II.95, Doc. 7 rev. ¶ 157 (1997), http://hrlibrary.umn.edu/cases/1996/unitedstates51-96.htm (“Article 33 had no geographical limitations”). These criticisms do not, of course, effect Sale’s status as precedent, but they do counsel against over-reading Sale to go beyond the Court’s holding and reasoning.
The facts here are very different from Sale, and compel a different conclusion. It is undisputed that Plaintiffs were at least “at a border” of the United States. See, e.g., Compl. at ¶¶ 30, 86, 96, 97, 105, 150–51, 154, 162, 197; Mot. at 2. The Complaint specifically alleges that Defendants’ agents resisted Plaintiffs’ efforts to enter the country and excluded them at the border. Compl. at ¶¶ 33, 62, 84, 87–97, 107–18, 121–23, 128–31, 134–36, 141–44, 150–51, 155–56, 167, 174, 181, 185–88, 192–93, 197, 199. The Complaint also specifically alleges that U.S. officials did so because Plaintiffs indicated a desire to seek asylum in the United States. Id. at ¶¶ 32, 34, 86, 94, 100, 105, 114, 116, 121, 144, 158, 181, 192. Defendants do not claim otherwise. Consistent with the Supreme Court’s view that Article 33 prohibits the “repuls[ion]” or “exclu[sion]” of refugees “at the border,” turning Plaintiffs back at the border and denying them access to the asylum process is a core example of the type of activity that Article 33 prohibits. III. CONCLUSION
For these reasons, Amici Curiae respectfully suggest that Defendants’ Motion to Partially Dismiss the Second Amended Complaint be denied as to the new Individual Plaintiffs.

20

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

Case 3:17-cv-02366-BAS-KSC Document 221-1 Filed 02/21/19 PageID.4741 Page 27 of 27

1
Dated: February 21, 2019
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW WASHINGTON, D.C.

Respectfully submitted,
By Susan Baker Manning, Bar No. 197350 MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Tel: +1.202.739.3000 Fax: +1.202.739.3001 susan.manning@morganlewis.com Sabin Willett MORGAN, LEWIS & BOCKIUS LLP One Federal Street Boston, Massachusetts 02110 Tel: +1.617.341.7700 Fax: +1.617.341.7701 sabin.willett@morganlewis.com Julie S. Goldemberg Shannon N. Doherty MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, Philadelphia 19103 Tel: +1.215.963.5000 Fax: +1.215.963.5001 julie.goldemberg@morganlewis.com shannon.doherty@morganlewis.com Anthony P. Ferrara MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178 Tel: +1.212.309.6706 Fax: +1.212.309.6001 anthony.ferrara@morganlewis.com Attorneys for Amici Curiae

21

BRIEF OF AMICI CURIAE 3:17-CV-02366-BAS-KSC

 
 Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6455 Page 1 of 84

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 AL OTRO LADO, INC.; ABIGAIL DOE, BEATRICE DOE, CAROLINA
12 DOE, DINORA DOE, INGRID DOE, 13 ROBERTO DOE, MARIA DOE,
JUAN DOE, ÚRSULA DOE, 14 VICTORIA DOE, BIANCA DOE, 15 EMILIANA DOE, AND CÉSAR
DOE, individually and on behalf of all 16 others similarly situated,

17

18

v.

Plaintiffs,

Case No. 17-cv-02366-BAS-KSC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THE SECOND AMENDED COMPLAINT [ECF No. 192]

19 KEVIN MCALEENAN, Acting
20 Secretary of U.S. Department of Homeland Security, in his official
21 capacity, et al.,

22

Defendants.

23

24

In this case, Organizational Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”), an

25 organization that helps individuals seek asylum in the United States, and thirteen

26 Individual Plaintiffs—Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid

27 Doe, Roberto Doe, Maria Doe, Juan Doe, Úrsula Doe, Victoria Doe, Bianca Doe,

28 Emiliana Doe, and César Doe—challenge conduct that they allege is “designed to

– 1 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6456 Page 2 of 84

1 serve the Trump [A]dministration’s broader, publicly proclaimed goal of deterring

2 individuals from seeking access to the asylum process.” (ECF No. 189 Second Am.

3 Compl. (“SAC”) ¶ 4.) According to Plaintiffs, U.S. Customs and Border Protection

4 (“CBP”) officials “have systematically restricted the number of asylum seekers who

5 can access the U.S. asylum process through POEs along the U.S.-Mexico border.”

6 (Id. ¶ 48.) Plaintiffs seek to hold various Defendant federal officials1 that have

7 authority over immigration enforcement liable in their official capacities for an

8 alleged pattern or practice by CBP officers of denying asylum seekers at ports of

9 entry (“POEs”) along the U.S.-Mexico border access to the U.S. asylum process, and

10 an alleged formalized policy designed for the same end, which Plaintiffs refer to as

11 the Turnback Policy.

12

13

In the months following the Court’s grant in part and denial in part of

14 Defendants’ motion to dismiss the original complaint, see Al Otro Lado, Inc. v.

15 Nielsen, 327 F. Supp. 3d 1284 (S.D. Cal. 2018), Plaintiffs filed the operative Second

16 Amended Complaint (“SAC”). Like the original complaint, Plaintiffs allege in the

17 SAC that since late 2016 there is an alleged pattern and practice amongst CBP

18 officials at POEs along the U.S-Mexico border to “deny[] asylum seekers access to

19 the asylum process” “through a variety of illegal tactics.” (SAC ¶ 2.) Five original

20 Individual Plaintiffs—Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora

21 Doe, and Ingrid Doe (the “Original Individual Plaintiffs”)—once more allege that

22

23

1 The SAC names the following Defendants in their official capacities: (1)

Kirstjen M. Nielsen, Secretary, U.S. Department of Homeland Security (“DHS”), 24 (2) Kevin McAleenan, Commissioner, U.S. Customs and Border Protection

25 (“CBP”), and (3) Todd C. Owens, Executive Assistant Commissioner, Office of

Field Operations, U.S. CBP. (SAC ¶¶ 36–39.) In the time since the SAC’s filing in 26 November 2018, at least two defendants have changed. Pursuant to Rule 25(d), the

27 Court hereby substitutes (1) Kevin McAleenan as Acting Secretary of DHS in place

28

of Nielsen and (2) John P. Sanders as the Acting Commissioner of CBP. Defendants shall notify the Court in the event any further substitution is warranted.

– 2 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6457 Page 3 of 84

1 they were subjected to these tactics when CBP officials denied them access to the

2 U.S. asylum process at various POEs.2 Unlike the original complaint, the SAC now

3 alleges that as early as 2016, Defendants were implementing a policy to restrict the

4 flow of asylum seekers at the San Ysidro POE. Plaintiffs allege that Defendants

5 formalized this policy in spring 2018 in the form of the border-wide Turnback

6 Policy, an alleged “formal policy to restrict access to the asylum process at POEs by

7 mandating that lower-level officials directly or constructively turn back asylum

8 seekers at the border,” including through pretextual assertions that POEs lack

9 capacity to process asylum seekers. (Id. ¶¶ 3, 48–83.) Eight new Individual

10 Plaintiffs—Roberto Doe, Maria Doe, Juan and Úrsula Doe, Victoria Doe, Bianca

11 Doe, Emiliana Doe, and César Doe (the “New Individual Plaintiffs”)—have joined

12 this lawsuit, alleging that they were subjected to this Turnback Policy. Both the

13 illegal tactics and the alleged Turnback Policy have resulted in many asylum seekers,

14 particularly those from Central America, who present themselves at POEs along the

15 U.S.-Mexico border being “turned back by” and “at the instruction of” CBP officials.

16 (Id. ¶ 58.)

17

18

Based on the conduct alleged, Plaintiffs press claims for violations of various

19 Immigration and Nationality Act (“INA”) provisions, which Plaintiffs call “the U.S.

20 asylum process.” In connection with the alleged INA violations, Plaintiffs assert

21 claims under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(1),

22 706(2), and claims directly under the Fifth Amendment Due Process Clause for

23 alleged procedural due process violations. All Plaintiffs further assert claims under

24 the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, on the ground that the alleged

25

26

2 For reasons unknown to the Court, Original Individual Jose Doe was dropped

27 from this suit in the First Amended Complaint (“FAC”) filed nearly two months after

28

the Court’s prior dismissal order and he is not a plaintiff to the SAC filed a month after the FAC. (ECF Nos. 176, 189.)

– 3 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6458 Page 4 of 84

1 conduct violates a duty of non-refoulement, which Plaintiffs contend is an

2 international law norm that “forbids a country from returning or expelling an

3 individual to a country where he or she has a well-founded fear of persecution and/or

4 torture[.]” Defendants move to dismiss the SAC under Rule 12(b)(6) for failure to

5 state a claim. (ECF Nos. 192, 238.) Plaintiffs oppose. (ECF No. 210.) The parties

6 presented oral argument to the Court. (ECF No. 259; ECF No. 260, Hr’g Tr.) In

7 addition to the parties’ submissions, six amicus briefs have been submitted with the

8 Court’s permission. (ECF Nos. 215, 216, 219, 221, 223.)3

9

10

For the reasons herein, the Court grants in part and denies in part Defendants’

11 motion to dismiss the SAC.

12

13

BACKGROUND

14 I. Statutory and Regulatory Background

15

8 U.S.C. § 1158(a)(1) is this case’s statutory bedrock. It provides that:

16

Any alien who is physically present in the United States or who

17

arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States

18

19 3The briefs are: (1) Amicus Curiae Brief of the States of California,
20 Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maryland,

21 Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New

York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington in 22 support of Plaintiffs, (ECF No. 215-1); (2) Amicus Curiae Brief of Amnesty

23 International in Opposition to Defendants’ Motion to Dismiss, (ECF No. 216-1); (3)

Amicus Brief of Certain Members of Congress in Support of Plaintiffs’ Opposition 24 to Defendants’ Motion to Dismiss the Second Amended Complaint, (ECF No. 219-

25 1); (4) Brief of Certain Immigration Law Professors as Amici Curiae in Support of

Plaintiffs’ Opposition to Defendants’ Motion to Partially Dismiss the Second 26 Amended Complaint, (ECF No. 221-1); (5) Amicus Curiae Brief of Nineteen

27 Organizations Representing Asylum Seekers, (ECF No. 223-2); and (6) Brief of

28

Amici Curiae Kids in Need of Defense, et al., in Support of Plaintiffs’ Opposition to Motion to Dismiss, (ECF No. 225-1).)

– 4 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6459 Page 5 of 84

1

after having been interdicted in international or United States

waters), irrespective of such alien’s status, may apply for asylum

2

in accordance with this section or. . . section 1225(b)[.]

3

8 U.S.C. § 1158(a)(1).

4

This case turns on the Section 1225(b) asylum procedure that Section 1158

5 incorporates. Section 1225 sets forth, in relevant part, certain inspection duties of

6 immigration officers, which undergird additional specific duties that arise when

7 certain aliens express an intent to seek asylum in the United States or a fear of

8 persecution.

9

10

Section 1225(a) establishes the general inspection duty: “[a]ll aliens . . . who

11 are applicants for admission or otherwise seeking admission . . . to . . . the United

12 States shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3). In

13 language that echoes Section 1158(a)(1), Section 1225(a) defines as an “applicant

14 for admission” “[a]n alien present in the United States who has not been admitted or

15 who arrives in the United States (whether or not at a designated port of arrival

16 including an alien who is brought to the United States after having been interdicted

17 in international or United States waters)[.]” 8 U.S.C. § 1225(a)(1). An

18 implementing regulation more broadly defines “arriving alien” as “an applicant for

19 admission coming or attempting to come into the United States at a port-of-entry, or

20 an alien seeking transit through the United States at a port-of-entry, or an alien

21 interdicted in international or United States waters and brought into the United States

22 by any means, whether or not to a designated port-of-entry, and regardless of the

23 means of transport.” 8 C.F.R. § 1.2. By regulation, “application to lawfully enter

24 the United States shall be made in person to an immigration officer at a U.S. port-

25 of-entry when the port is open for inspection, or as otherwise” provided. 8 C.F.R. §

26 231.1(a).

27

28

Section 1225(b) sets forth two sets of procedures that apply to aliens “arriving

– 5 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6460 Page 6 of 84

1 in the United States.” First, pursuant to the procedure under Section 1225(b)(1), an

2 arriving alien may be summarily “removed from the United States without further

3 hearing or review” “if an immigration officer determines” that the alien “is

4 inadmissible” for making certain fraudulent or misleading representations or for not

5 having valid entry or travel documents. 8 U.S.C. § 1225(b)(1)(A)(i); Thuraissigiam

6 v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1100 (9th Cir. 2019) (citing, inter

7 alia, 8 U.S.C. § 1182(a)(6)(C) and 8 U.S.C. § 1182(a)(7)). Section 1225(b)(1)’s

8 removal mandate, however, does not apply if “the alien indicates either an intention

9 to apply for asylum under section 1158 [] or a fear of persecution.” Id. Instead, “[i]f

10 the immigration officer determines that an alien” is “inadmissible” for making

11 certain fraudulent or misleading representations or for not having valid entry or

12 travel documents “and the alien indicates either an intention to apply for asylum

13 under section 1158 [] or a fear of persecution, the officer shall refer the alien for an

14 interview by an asylum officer[.]” 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).

15 An implementing regulation governing this expedited removal procedure imposes

16 an analogous obligation. 8 C.F.R. § 235.3(b)(4). In these circumstances, the

17 immigration officer must refer the alien to an “asylum officer,” who is statutorily

18 required to be “an immigration officer who has had professional training in country

19 conditions, asylum law, and interview techniques comparable to that provided to

20 full-time adjudicators of applications under section 1158 of this title,” and “is

21 supervised by an officer who,” inter alia, “has had substantial experience

22 adjudicating asylum applications.” 8 U.S.C. § 1225(b)(1)(E).

23

24

In contrast with the Section 1225(b)(1) procedure, Section 1225(b)(2)

25 establishes the procedure for “inspection of other aliens.” 8 U.S.C. § 1225(b)(2).

26 “Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for

27 admission,” the alien “shall be detained for a proceeding under [8 U.S.C. §] 1229a”

28 (the general “removal proceedings” provision) “if the examining immigration officer

– 6 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6461 Page 7 of 84

1 determines that an alien seeking admission is not clearly and beyond a doubt entitled

2 to be admitted[.]” 8 U.S.C. § 1225(b)(2)(A). Subparagraph (C) provides that “in

3 the case of an alien described in subparagraph (A) who is arriving on land . . . from

4 a foreign territory contiguous to the United States, the Attorney General may return

5 the alien to that territory pending a proceeding under section 1229a[.]” 8 U.S.C. §

6 1225(b)(2)(C). In relevant part, Subparagraph (B) provides that “[s]ubparagraph (A)

7 shall not apply to an alien—(ii) “to whom paragraph (1) applies”—i.e. aliens who

8 are subject to the procedure in 8 U.S.C. § 1225(b)(1). 8 U.S.C. § 1225(b)(2)(B)(ii).

9 Consistent with Section 1225(b)(2)’s instruction that asylum applicants are

10 channeled through the Section 1225(b)(1) procedure, Section 1225(b)(2) does not

11 elaborate on any asylum procedure.

12

13

During the Section 1225 admission process, “[a]n alien applying for

14 admission may, in the discretion of the Attorney General and at any time, be

15 permitted to withdraw the application for admission and depart immediately from

16 the United States.” 8 U.S.C. § 1225(a)(4). By regulation, “the alien’s decision to

17 withdraw his or her application for admission must be made voluntarily[.]” 8 C.F.R.

18 § 235.4.

19

20 II. Factual Allegations

21

A. Allegations Regarding Defendants

22

Defendants are U.S. government officials sued in their official capacity who

23 exercise authority over CBP in various capacities. The Defendant Secretary of

24 Homeland Security (the “Secretary”) “has ultimate authority over all CBP policies,

25 procedures, and practices.” (SAC ¶ 36.) The Secretary “is responsible for ensuring

26 that all CBP officials perform their duties in accordance with the Constitution and

27 all relevant laws.” (Id.) The Defendant CBP Commissioner “has direct authority

28 over all CBP policies, procedures, and practices.” (Id. ¶ 37.) Defendant oversees a

– 7 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6462 Page 8 of 84

1 staff of more than 60,000 employees and “exercises authority over all CBP

2 operations.” (Id.) The Defendant Executive Assistant Commissioner (“EAC”) of

3 CBP’s Office of Field Operations oversees “the largest component of CBP and is

4 responsible for border security, including immigration and travel through U.S.

5 POEs,” for which the EAC oversees a staff of “more than 24, 000 CBP officials and

6 specialists[.]” (Id. ¶ 38.) Plaintiffs also sue 25 Doe Defendants who “were agents

7 or alter egos of Defendants, or [who] are otherwise responsible for all of the acts”

8 alleged. (Id. ¶ 39.) Defendants allegedly have denied access to the U.S. asylum

9 process to noncitizens fleeing “grave harm in their countries to seek protection in the

10 United States” “in contravention of U.S. and international law” pursuant to (1) “a

11 policy initiated by Defendants”—the Turnback Policy—and (2) “practices

12 effectively ratified by Defendants.” (Id. ¶ 1.) The Court describes Plaintiffs’

13 allegations regarding each.

14

15

1. Alleged Pattern and Practice of Illegal Tactics

16

“Since 2016 and continuing to this day, CBP has engaged in an unlawful,

17 widespread pattern and practice of denying asylum seekers access to the asylum

18 process at POEs on the U.S.-Mexico border through a variety of illegal tactics.”

19 (SAC ¶¶ 2, 84.) CBP officials have carried out this practice through

20 misrepresentations, threats and intimidation, verbal and physical abuse, and

21 coercion. (Id. ¶¶ 84–106.) For example, CBP officials are alleged to turn away

22 asylum seekers by falsely informing them that the U.S. is no longer providing

23 asylum, that President Trump signed a new law ending asylum, that a law providing

24 asylum to Central Americans ended, that Mexican citizens are not eligible for

25 asylum, and that the U.S. is no longer accepting mothers with children for asylum.

26 (Id. ¶¶ 85–86.) CBP officials allegedly intimidate asylum seekers by threatening to

27 take away their children if they do not renounce a claim for asylum and by

28 threatening to deport asylum seekers. (Id. ¶¶ 87–88.) CBP officials allegedly force

– 8 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6463 Page 9 of 84

1 asylum seekers to sign forms in English, without translation, in which the asylum

2 seekers recant their fears of persecution. (Id. ¶¶ 91–92.) CBP officials are alleged

3 to instruct some asylum seekers to recant their fears of persecution while being

4 recorded on video. (Id.) In some instances, CBP officials have “simply turn[ed]

5 asylum seekers away from POEs without any substantive explanation.” (Id. ¶¶ 93–

6 94.) Other alleged tactics include: (1) CBP officers physically block access to the

7 POE, including by “CBP sometimes enlist[ing] Mexican officials to act as their

8 agents”; (2) CBP officials impose “a fixed number of asylum seekers” per day and

9 place asylum seekers on a waiting list that results in “asylum-seeking men, women

10 and children wait[ing] endlessly on or near bridges leadings to POEs in rain, cold,

11 and blistering heat, without sufficient food or water and with limited bathroom

12 access”; and (3) racially discriminatory denials of access by CBP officers, including

13 by denying asylum seekers from specific countries access to POEs and allowing

14 “lighter-skinned individuals to pass.” (Id. ¶¶ 95–106.) Plaintiffs point to numerous

15 reports by non-governmental organization and “other experts working in the U.S.-

16 Mexico border region” as corroborating the existence and use of these tactics by

17 CBP officers. (Id. ¶¶ 107–08, 110–111, 113–16.)

18

19

2. The Alleged “Turnback Policy”

20

a. Nascent Stages

21

Plaintiffs allege that “evidence of a Turnback Policy” exists as early as May

22 2016, at least insofar as it concerns the San Ysidro POE, a POE that figures

23 prominently in the SAC and the Plaintiffs’ allegations. (SAC ¶¶ 51–53, 60; see also

24 id. ¶¶ 16, 25–26, 28, 32–35, 48 & n.37.) Plaintiffs point to a communication from

25 the “Watch Commander at the San Ysidro POE” indicating that “[t]he Asylee line

26 in the pedestrian building is not being used at this time,” with a follow-up

27 communication indicating that “it’s even more important that when the traffic is free-

28 flowing that the limit line officers ask for and check documents to ensure that groups

– 9 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6464 Page 10 of 84

1 that may be seeking asylum are directed to remain in the waiting area on the Mexican

2 side.” (Id.) At the time, CBP allegedly “collaborat[ed] with the Mexican

3 government to turn back asylum seekers at the San Ysidro POE,” collaboration that

4 was allegedly formalized in July 2016 and confirmed in December 2016. (Id. ¶¶ 52–

5 53.)

6

7

A border-wide policy allegedly existed as early as November 2016 because

8 the Assistant Director of Field Operations for the Laredo Field Office “instructed all

9 Port Directors under his command to follow the mandate of the then-CBP

10 Commissioner and Deputy Commissioner” to request that Mexico’s immigration

11 agency “control the flow of aliens to the port of entry.” (Id. ¶ 55.) Under this

12 mandate, the Commissioner allegedly directed that “if you determine that you can

13 only process 50 aliens, you will request that [Mexico’s immigration agency] release

14 only 50,” and if the agency “cannot or will not control the flow,” then CBP staff “is

15 to provide the alien with a piece of paper identifying a date and time for an

16 appointment and return then [sic] to Mexico.” (Id.) This directive “was promptly

17 implemented” at POEs along the Texas-Mexico portion of the U.S.-Mexico border

18 and “memorialized in January 2017.” (Id. ¶¶ 56, 57.) Plaintiffs allege that in a June

19 13, 2017 hearing before the House Appropriations Committee, John P. Wagner, the

20 Deputy Executive Assistant Commissioner for CBP’s Office of Field Operations,

21 admitted that CBP officials were turning back asylum seekers at POEs along the

22 U.S-Mexico border and argued that “the practice was justified by a lack of capacity.”

23 (Id. ¶ 59.) The CBO Field Operations Director in charge of the San Ysidro POE

24 similarly acknowledged and defended the turnbacks in December 2017. (Id. ¶ 60.)

25

26

b. Alleged Formalization and High-Level Recognition

27

The alleged border-wide policy to turnback asylum seekers through false

28 assertions of lack of capacity took on a new life in spring 2018 “following an

– 10 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6465 Page 11 of 84

1 arduous, widely-publicized journey” of “a group of several hundred asylum

2 seekers”—dubbed by the press as a “caravan”—who “arrived at the San Ysidro

3 POE.” (Id. ¶ 61.) “President Trump posted a series of messages on Twitter warning

4 of the dangers posed by the group, including one indicating that he had instructed

5 DHS ‘not to let these large Caravans of people into our Country.’” (Id. (citations

6 omitted).)

7

8

Around this time, high-level Trump Administration officials unambiguously

9 proclaimed, “the existence of their policy to intentionally restrict access to the

10 asylum process at POEs in violation of U.S. law.” (Id. ¶¶ 5, 62.) Then-U.S. Attorney

11 General Jeff Session “characterized the caravan’s arrival as ‘a deliberate attempt to

12 undermine our laws and overwhelm our system.’” (Id. ¶ 63.) Following the arrival

13 of the “caravan,” “CBP officials indicated—in accordance with the Turnback

14 Policy—that they had exhausted their capacity to process individuals traveling

15 without proper documentation.” (Id. ¶¶ 7, 64, 67.) On May 15, 2018, then-Secretary

16 of Homeland Security Kirstjen Nielsen “characterized the asylum process . . . as a

17 legal ‘loophole’ and publicly announced a ‘metering’ process designed to restrict—

18 and constructively deny—access to the asylum process through unreasonable and

19 dangerous delay.” (Id. ¶¶ 5, 65.) President Trump made a number of tweets

20 throughout June and July 2018 that further confirmed the alleged Turnback Policy,

21 including statements that “[w]hen somebody comes in, we must immediately, with

22 no Judges or Court Cases, bring them back from where they came from,” and “we

23 must IMMEDIATELY escort them back without going through years of

24 maneuvering.” (Id.) Plaintiffs point to numerous other confirmations of the

25 existence of the alleged Turnback Policy, designed and implemented by U.S.

26 officials, including statements by then-CBP Commissioner McAleenan in April

27 2018 indicating that “individuals [without appropriate entry documentation] may

28 need to wait in Mexico as CBP officers work to process those already within our

– 11 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6466 Page 12 of 84

1 facilities”; a September 27, 2018 report from the Office of the Inspector General (the

2 “OIG Report”); and statements by Mexican immigration officials, one of whom

3 allegedly complained that “[CBP] was making [the Mexican immigration agency]

4 do [CBP’s] dirty work.” (Id. ¶¶ 68–76 & nn. 56–71.)

5

6

According to Plaintiffs, the asserted capacity concerns used to justify the

7 alleged Turnback Policy are a pretextual and false “cover for a deliberate slowdown

8 of the rate at which agency receives asylum seekers at POEs.” (Id. ¶¶ 3, 76–83.)

9 They allege that “CBP’s own statistics indicate that there has not been a particular

10 surge in [the] numbers of asylum seekers coming to POEs.” (Id. ¶ 76.) Amnesty

11 International has allegedly characterized capacity concerns as “a fiction” based on

12 the available statistics. (Id. (citation omitted).) Plaintiffs point to statements by

13 “senior CBP and ICE officials in San Ysidro, California” in early 2018, in which the

14 officials stated that “CBP has only actually reached its detention capacity a couple

15 times per year and during ‘a very short period’ in 2017.” (Id. ¶ 77.) Plaintiffs further

16 note that in the OIG Report, “the OIG team did not observe severe overcrowding at

17 the ports of entry it visited.” (Id.) And “[h]uman rights researchers visiting seven

18 POEs in Texas in June 2018 reported that ‘[t]he processing rooms visible in the

19 [POE] . . . appeared to be largely empty.’” (Id. (citations omitted).) Plaintiffs

20 otherwise point to anecdotal accounts for specific POEs, which Plaintiffs allege

21 show “abrupt” changes in assertions of a lack of capacity at POEs and CBP officers

22 allowing some asylum seekers to cross—sometimes in the span of a few hours. (Id.

23 ¶ 78.) For example, CBP officials at the Nogales, Arizona POE abruptly switched

24 from processing 6 asylum seekers a day, based on assertions of lack of capacity, to

25 20 asylum seekers a day. (Id.) And, of course, there are the alleged experiences of

26 the eight New Individual Plaintiffs, which provide a further gloss on the Turnback

27 Policy. (Id. ¶ 83.)

28

– 12 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6467 Page 13 of 84

1

B. The Plaintiffs

2

The challenge to Defendants’ alleged conduct is pressed by Organizational

3 Plaintiff Al Otro Lado and thirteen Individual Plaintiffs. For the purposes of this

4 order, the Court refers to the Individual Plaintiffs as two groups: the Original

5 Individual Plaintiffs and the New Individual Plaintiffs.4 As the Court has noted,

6 Organizational Plaintiff Al Otro Lado and the Original Individual Plaintiffs have

7 been parties since this case’s inception. The Court will not retrace in great detail the

8 allegations pertaining to these Plaintiffs. The Court, however will provide relatively

9 more detail regarding the New Individual Plaintiffs because this order is the first

10 occasion to do so.

11

12

1. Organizational Plaintiff Al Otro Lado

13

Al Otro Lado is a non-profit California legal services organization established

14 in 2014, which provides services to indigent deportees, migrants, refugees, and their

15 families. (SAC ¶ 17.) Al Otro Lado alleges that the Defendants’ alleged conduct has

16 frustrated its ability to advance and maintain its “central” and “organizational

17 mission” because Al Otro Lado has had “to divert substantial” time and resources

18 away from its programs “to counteract the effects of the Turnback Policy and

19 Defendants’ other unlawful practices.” (Id. ¶¶ 12–13, 17–23.)

20

21 4 In their present motion to dismiss, Defendants divide the Individual Plaintiffs
22 into two groups. Defendants refer to the Original Individual Plaintiffs as “Territorial

23 Plaintiffs” on the ground that the SAC’s allegations show that all Original Individual

Plaintiffs were in a POE at the time they were allegedly denied access to the asylum 24 process. (ECF No. 192-1 at 1–2.) In contrast, Defendants refer to all New Individual

25 Plaintiffs as “Extraterritorial Plaintiffs,” based on Defendants’ view that these

Individual Plaintiffs’ allegations show that “they experienced the purported 26 ‘Turnback Policy’ when they approached the border to the territorial United States

27 at the San Ysidro, Laredo, or Hidalgo [POEs] but were prevented by CBP officers

28

or Mexican immigration officials from physically crossing the international boundary.” (Id. at 2.) The Court declines to use Defendants’ labeling.

– 13 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6468 Page 14 of 84

1

2. Original Individual Plaintiffs

2

Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe are natives and citizens of

3 Mexico, who fled to Tijuana, Mexico where they attempted to access the U.S.

4 asylum process at various points in May 2017, due to violence they experienced at

5 the hands of drug cartels. (SAC ¶¶ 24–26, 119–121, 125–127, 133–134.) They

6 allege that CBP officers at the San Ysidro and Otay Mesa POEs located along the

7 California-Mexico portion of the U.S.-Mexico border coerced them into signing

8 English language forms in which they recanted their fears of returning to Mexico

9 and withdrew their applications for admission. (Id. ¶¶ 24–26, 122–123, 128–130,

10 135–136.) Plaintiffs Dinora Doe and Ingrid Doe are natives and citizens of

11 Honduras, who fled to Tijuana, Mexico after violence they experienced at the hands

12 of criminal gangs and Ingrid experienced severe abuse from her partner. (Id. ¶¶ 27–

13 28, 138–140, 147–149.) Dinora presented herself at the Otay Mesa POE three times

14 in August 2016 but was told “there was no asylum in the United States,” including

15 specifically “for Central Americans,” and that she “would be handed over to

16 Mexican authorities and deported to Honduras.” (Id. ¶¶ 27, 141–144.) Ingrid

17 presented herself at the Otay Mesa and San Ysidro POEs, where CBP officers told

18 her and her children that they could not seek asylum in the United States. (Id. ¶¶ 28,

19 149–151.) Based on developments that occurred after the original complaint’s filing

20 and which the Court determined did not moot this case, Al Otro Lado, 327 F. Supp.

21 3d at 1295, 1302–04, the Original Individual Plaintiffs allege that “Defendants made

22 arrangements to facilitate” their “entry . . . into the United States.” (Id. ¶¶ 24–28,

23 124, 132, 137, 145, 152.)

24

25

3. New Individual Plaintiffs

26

Plaintiffs Juan and Úrsula Doe, husband and wife, are natives and citizens of

27 Honduras, who fled Honduras “with their sons after receiving death threats from

28 gangs.” (SAC ¶¶ 31, 171–72.) They presented themselves at the Laredo POE in late

– 14 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6469 Page 15 of 84

1 September 2018, but when they “reached the middle of the bridge to the POE, CBP

2 officials denied them access to the asylum process by telling them the POE was

3 closed and that they could not enter.” (Id. ¶¶ 31, 173–74.)

4

5

Plaintiff Roberto Doe is a native and citizen of Nicaragua, who alleges that he

6 fled Nicaragua due to threats of violence “from the Nicaraguan government and

7 paramilitaries allied with the government.” (Id. ¶¶ 29, 153.) Roberto presented

8 himself at the Hidalgo, Texas POE in October 2018, where he encountered CBP

9 officials in the middle of the bridge between Mexico and the United States, who he

10 told that he wanted to seek asylum in the United States. (Id. ¶¶ 29, 154.) The

11 officials “t[old] him the POE was full and that he could not enter.” (Id. ¶¶ 29, 155.)

12 After the FAC was filed in October 2018, Roberto returned to the Hidalgo POE

13 “where Mexican officials detained him as he was walking onto the international

14 bridge to seek access to the asylum process in the United States” and he “remains in

15 the custody of the Mexican government.” (Id. ¶¶ 29, 159.)

16

17

Plaintiff Maria Doe is a native and citizen of Guatemala and permanent

18 resident of Mexico. (SAC ¶¶ 30, 160.) Maria “left her husband, who was abusive

19 and is involved with cartels[.]” (Id. ¶¶ 30, 161.) Since she left him, “two different

20 cartels have been tracking and threatening her,” and located her despite her attempts

21 to find a “safe place to live” in both Guatemala and Mexico. (Id. ¶¶ 30, 161.) Maria

22 and her two children presented themselves at the Laredo, Texas POE on September

23 10, 2018. (Id. ¶¶ 30, 162.) However, “[w]hen Maria encountered CBP officials in

24 the middle of the bridge, [and] she told them that she and her children wanted to seek

25 asylum in the United States,” the CBP officials told them to wait on the Mexican

26 side of the bridge. (Id. ¶¶ 30, 162.)

27

28

Plaintiff Bianca Doe is a transgender woman who is a native and citizen of

– 15 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6470 Page 16 of 84

1 Honduras. (Id. ¶¶ 33–34, 184, 191.) Bianca “has been subjected to extreme and

2 persistent physical and sexual assault, as well as discrimination and ongoing threats

3 of violence in Honduras and Mexico City . . . because she is a transgender woman[.]”

4 (Id. ¶¶ 33, 184–85.) Bianca presented herself at the San Ysidro POE on September

5 19, 2018, where “CBP officers . . . stat[ed] that she could not apply at that time

6 because they were at capacity.” (Id. ¶¶ 33, 185.) Bianca returned the next day and

7 “was given a piece of paper with the number ‘919,’ placed on a waiting list, and told

8 that she would have to wait several weeks to proceed to the POE.” (Id. ¶¶ 33, 186.)

9 On September 28, 2018, Bianca “attempted to enter the United States without

10 inspection by climbing a fence on a beach in Tijuana[,]” but “once over the fence, a

11 U.S. Border Patrol officer stopped [her]” and she “expressed her desire to seek

12 asylum in the U.S.” (Id. ¶¶ 33, 187.) “The U.S. Border Patrol Officer told [her] that

13 there was no capacity in U.S. detention centers and threatened to call Mexican police

14 if [she] did not climb the fence back into Mexico.” Bianca did so. Bianca presented

15 herself “again” at the San Ysidro POE on October 8, 2018. (Id. ¶¶ 33, 188.) “She

16 was told, once again, that CBP had no capacity for asylum seekers.” (Id. ¶¶ 33, 188.)

17

18

Plaintiff Emiliana Doe is a transgender woman and a native and citizen of

19 Honduras. (Id. ¶¶ 34, 191.) She “was subjected to multiple sexual and physical

20 assaults, kidnapping, and discrimination, as well as threats of severe harm and

21 violence in Honduras because she is a transgender woman.” (Id. ¶ 34.) After fleeing

22 Honduras in June 2018, Emiliana reached Tijuana in September 2018 and presented

23 herself at the San Ysidro POE, where a stranger told her she would need to get on

24 “the waiting list” to apply for asylum. (Id. ¶ 192.) After going to the San Ysidro

25 POE and speaking with two women, “[s]he was given a piece of paper with the

26 number ‘1014’ on it, placed on a waiting list, and told to return in six weeks.” (Id.

27 ¶¶ 34, 192.) On October 8, 2018, “[f]eeling desperate and unsafe, Emiliana returned

28 to the POE just a few weeks later,” but “CBP officers . . . t[old] her that there was

– 16 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6471 Page 17 of 84

1 no capacity for asylum seekers and instruct[ed] her to wait for Mexican officials.”

2 (Id. ¶¶ 34, 193.)

3

4

Plaintiff César Doe is a native and citizen of Honduras. (SAC ¶¶ 35, 196.)

5 “César has been threatened numerous times with severe harm and death and

6 kidnapped by members of the 18th street gang.” (Id. ¶¶ 35, 196.) He alleges, inter

7 alia, that on one occasion, he “present[ed] himself at the San Ysidro POE” “with

8 two staff members from Al Otro Lado” “but CBP officers refused to accept him.”

9 (Id. ¶¶ 35, 199.)

10

11

Plaintiff Victoria Doe is a 16-year old native and citizen of Honduras. (SAC

12 ¶¶ 32, 179.) She “has been threatened with severe harm and death by members of

13 the 18th street gang for refusing to become the girlfriend of one of the gang’s

14 leaders.” (Id. ¶¶ 32, 179.) Victoria fled to Mexico where she gave birth to a son.

15 (Id. ¶¶ 32, 179.) Victoria and her son arrived in Tijuana as part of a “refugee

16 caravan” and went to the San Ysidro POE on October 8, 2018. (Id. ¶¶ 32, 180.)

17 “When Victoria expressed her desire to seek asylum in the United States, CBP

18 officers . . . stat[ed] that she could not apply for asylum at that time and t[old] her to

19 speak to a Mexican official without providing any additional information.” (Id. ¶¶

20 32, 181.) Except for Roberto Doe, all New Individual Plaintiffs allege that

21 “following the filing of the First Amended Complaint in this case, Defendants made

22 arrangements to facilitate the[ir] entry . . . into the United States.” (SAC ¶¶ 30–35.)

23

24 III. Procedural Synopsis

25

Organizational Plaintiff Al Otro Lado and, on behalf of themselves and a

26 putative class, the Original Individual Plaintiffs commenced this action against

27 Defendants on July 12, 2017 in the United States District Court for the Central

28 District of California. (ECF No. 1 (“Compl.”).) After the Central District transferred

– 17 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6472 Page 18 of 84

1 the action to this Court on November 29, 2017, Defendants renewed their motion to

2 dismiss the original complaint in its entirety. (ECF No. 135.)

3

4

The Court granted Defendants’ motion in part. Al Otro Lado, Inc. v. Nielsen,

5 327 F. Supp. 3d 1284 (S.D. Cal. 2018). In relevant part, the Court dismissed the

6 Section 706(1) APA claims of Plaintiffs Abigail Doe, Beatrice Doe, and Carolina

7 Doe to the extent they sought to compel relief under 8 C.F.R. § 235.4 for allegedly

8 being coerced into withdrawing their applications for admission. Id. at 1314–15.

9 The Court also dismissed Plaintiffs’ Section 706(2) APA claims based on an alleged

10 “pattern or practice” because the Court was not convinced that Plaintiffs had

11 plausibly alleged facts to “support[] the inference that there is an overarching policy”

12 and, consequently, had failed to identify a final agency action. Id. at 1320. The

13 Court granted Plaintiffs leave to amend their Section 706(2) claims. Id. at 1321. The

14 Court otherwise denied Defendants’ motion to dismiss on all other grounds. Id. at

15 1295–1304 (rejecting Defendants’ argument that the entire case was moot because

16 Defendants had allowed original Individual Plaintiffs to be processed for admission

17 at a POE after filing of the case); id. at 1306–08 (rejecting Defendants’ argument

18 that the United States had not waived sovereign immunity for ATS claims on the

19 ground that Section 702 of the APA provides a “broad waiver of sovereign immunity

20 for claims against the United States for nonmonetary relief”); id. at 1311–13

21 (rejecting Defendants’ argument that Plaintiffs cannot challenge an alleged pattern

22 or practice of alleged CBP officer denials of access to the asylum process under

23 Section 706(1) of the APA).

24

25

In November 2018, Plaintiffs filed the operative Second Amended Complaint,

26 a pleading that raises claims largely identical to those in the original complaint albeit

27 upon an expanded set of factual allegations and with some refinement. (SAC ¶¶

28 244–303.) All Individual Plaintiffs seek to press their claims on behalf of a putative

– 18 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6473 Page 19 of 84

1 class of “noncitizens who seek or will seek to access the U.S. asylum process by

2 presenting themselves at a POE along the U.S.-Mexico border and are denied access

3 to the U.S. asylum process by or at the instruction of CBP officials.” (Id. ¶¶ 1, 236–

4 43.) Once more, Plaintiffs seek only declaratory and injunctive relief. (Id. at 100.)

5

6

LEGAL STANDARDS

7

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth “a

8 short and plain statement of the claim showing that the pleader is entitled to relief,”

9 in order to “give the defendant fair notice of what the. . . claim is and the grounds

10 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

11 Conley v. Gibson, 355 U.S. 41, 47 (1957)). A defendant may test the sufficiency of

12 a complaint on several grounds, including on the ground that the court lacks subject

13 matter jurisdiction over the complaint or that the complaint fails to state a claim for

14 relief. Fed. R. Civ. P. 12(b)(1), (6).

15

16

A Rule 12(b)(1) motion tests whether a court possesses subject matter

17 jurisdiction to adjudicate the claims in the action. Fed. R. Civ. P. 12 (b)(1); Savage

18 v. Glendale Union High Sch., 343 F.3d 1036, 1039–40 (9th Cir. 2003), cert. denied,

19 541 U.S. 1009 (2004). As is relevant here, a Rule 12(b)(6) motion that asserts lack

20 of jurisdiction due to the alleged presence of a political question in a case is “more

21 appropriately construed as a Rule 12(b)(1) motion[.]” Corrie v. Caterpillar, 503

22 F.3d 974, 982 (9th Cir. 2007); Yellen v. United States, Civ. No. 14-00134 JMS-KSC,

23 2014 WL 2532460, at *1 (D. Haw. June 4, 2014) (same). Thus, although Defendants

24 nominally raise a Rule 12(b)(6) motion, the Court construes their motion on this

25 issue as raised under Rule 12(b)(1). When a party asserts a Rule 12(b)(1) challenge

26 limited to the pleadings, as Defendants do here, the Court accepts Plaintiffs’ factual

27 allegations as true and draws all reasonable inferences in Plaintiffs’ favor to

28 determine whether the allegations are sufficient to invoke federal jurisdiction. Pride

– 19 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6474 Page 20 of 84

1 v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).

2

3

A Rule 12(b)(6) motion tests whether the allegations, even if true, fail to state

4 a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); N. Star Int’l v.

5 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). To survive a Rule 12(b)(6)

6 motion, a plaintiff is required to set forth “enough facts to state a claim for relief that

7 is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility

8 when the plaintiff pleads factual content that allows the court to draw reasonable

9 inferences that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

10 556 U.S. 662, 678 (2009) (citation omitted). To assess the legal sufficiency of a

11 complaint, the court accepts as true the complaint’s factual allegations and construes

12 them in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467

13 U.S. 69, 73 (1984). A court may consider materials properly submitted as part of

14 the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

15

16

DISCUSSION

17

Defendants’ motion to dismiss raises a variety of arguments for why the SAC

18 should be dismissed in whole or in part, some of which are familiar and others of

19 which are new. The Court distills Defendants’ arguments into four overarching

20 parts. First, Defendants argue that the Court lacks jurisdiction under the political

21 question doctrine to consider certain factual allegations or grant certain forms of

22 relief. Second, and forming the bulk of Defendants’ motion to dismiss, is a set of

23 arguments that Plaintiffs fail to state Sections 706(1) and 706(2) APA claims. Third,

24 Defendants seek dismissal of the New Individual Plaintiffs’ Fifth Amendment Due

25 Process Clause claims, principally on the ground that the Fifth Amendment does not

26 apply extraterritorially. Fourth, Defendants seek dismissal of Plaintiffs’ ATS claims.

27 The Court considers each set of arguments in turn.

28

– 20 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6475 Page 21 of 84

1 I. The Political Question Doctrine

2

Defendants argue that that the political question doctrine bars judicial review

3 of “Defendants’ coordination with a foreign nation to regulate border crossings.”

4 (ECF No. 192-1 at 25.) Pointing to allegations in the SAC regarding interactions

5 between U.S. and Mexican government officials, Defendants argue that granting

6 Plaintiffs’ request to enjoin the alleged Turnback Policy “would prohibit Defendants

7 from ‘coordinating’ with Mexican government officials as they carry out their

8 statutory responsibility to manage the flow of traffic across the border.” (Id. at 25–

9 26, 28 (citing SAC ¶¶ 3, 7, 50–83, 86–87, 96, 98–102, 108–10, 114, 116).) The

10 Court rejects Defendants’ political question doctrine argument at this juncture.

11

12

“In general, the Judiciary has a responsibility to decide cases properly before

13 it, even those it ‘would gladly avoid.’” Zivotofsky v. Clinton, 566 U.S. 189, 194–95,

14 (2012) (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)). The “political

15 question doctrine” is a recognized “narrow exception” to the Judiciary’s Article III

16 responsibility. Id. at 195 (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478

17 U.S. 221, 230 (1986)). The doctrine “excludes from judicial review those

18 controversies which revolve around policy choices and value determinations

19 constitutionally committed for resolution to the halls of Congress or the confines of

20 the Executive Branch[.]” Japan Whaling Ass’n, 478 U.S. at 230. As such, “[t]he

21 political question doctrine concerns the jurisdictional ‘case or controversy

22 requirement’ of Article III of the Constitution, . . . and the Court must address it

23 ‘before proceeding to the merits[.]’” Ahmed Salem Bin Ali Jaber v. United States,

24 861 F.3d 241, 245 (D.C. Cir. 2017) (citing first Schlesinger v. Reservists Comm. To

25 Stop the War, 418 U.S. 208, 215 (1974) and quoting second Tenet v. Doe, 544 U.S.

26 1, 6 n.4 (2005)) (emphasis added). If a political question is inextricable from a case,

27 the doctrine “prevents a plaintiff’s claims from proceeding to the merits.” Ahmed

28 Salem Bin Ali Jaber, 861 F.3d at 245 (citing Baker v. Carr, 369 U.S. 186, 211

– 21 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6476 Page 22 of 84

1 (1962)).

2

3

There are at least six different “formulations” for determining whether a case

4 presents a political question that is understood to deprive a federal court of subject

5 matter jurisdiction. Baker, 369 U.S. at 217. As Defendants recognize, a case need

6 only present one formulation for a political question to preclude jurisdiction. Ahmed

7 Salem Bin Ali Jaber, 861 F.3d at 245 (citing Schneider v. Kissinger, 412 F.3d 190,

8 194 (D.C. Cir. 2005)). The only formulation on which Defendant rely here is that

9 there is a “textually demonstrable constitutional commitment of the issue to a

10 coordinate political department[.]” Baker, 369 U.S. at 217.

11

12

In particular, Defendants contend that this case presents the political question

13 “whether and to what extent it is lawful for the United States to (allegedly)

14 collaborate with the government of Mexico to control the flow of travel across the

15 countries’ shared border[.]” (ECF No. 192-1 at 26.) Viewed in this light, Defendants

16 contend that “Plaintiffs’ allegations and requests for relief are squarely outside the

17 Court’s jurisdiction” under the first Baker formulation because “[f]oreign-relations

18 matters are clearly committed by [the] Constitution to the Executive Branch,

19 particularly as they relate to the United States’ efforts to manage the flow of travel

20 across the border.” (Id. at 27.) For this reason, Defendants argue that “[t]he Court

21 does not have jurisdiction to declare unlawful or enjoin [the alleged coordination

22 with Mexican government officials][.]” (Id. at 28.) The Court disagrees with

23 Defendants’ view about the questions this case presents and, thus, rejects

24 Defendants’ argument that the political question doctrine precludes this Court from

25 reviewing Plaintiffs’ claims or granting corresponding relief.

26

27

The Court acknowledges that “[t]he exclusion of aliens is ‘a fundamental act

28 of sovereignty’ by the political branches[.]” Trump v. Hawaii, 138 S. Ct. 2392, 2407

– 22 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6477 Page 23 of 84

1 (2018) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542

2 (1950)). The Executive possesses a recognized power “to regulate the entry of aliens

3 into the United States” through its “inherent” “executive power to control the foreign

4 affairs of the nation[.]” Knauff, 338 U.S. at 542; E. Bay Sanctuary Covenant v.

5 Trump, 909 F.3d 1219, 1231 (9th Cir. 2018). The Executive’s foreign affairs powers

6 are understood to “derive from the President’s role as ‘Commander in Chief,’ [the

7 President’s] right to ‘receive Ambassadors and other public Ministers,’ and [the

8 President’s] general duty to ‘take Care that the Laws be faithfully executed’[.]” E.

9 Bay Sanctuary Covenant, 909 F.3d at 1232 (citing U.S. Const. art. II, § 2, cl. 1

10 (referring to President as “Commander in Chief”), id. § 3 (President’s power to

11 receive ambassadors)) (internal citations omitted). But the Executive’s recognized

12 power over foreign affairs under Article II of the Constitution is not exercised in a

13 constitutional vacuum. By virtue of Article I, Congress possesses certain powers

14 that render the admission or exclusion of aliens and foreign affairs an intimately

15 legislative matter, including the specific constitutionally enumerated legislative

16 powers “‘[t]o establish an uniform rule of Naturalization,’ to ‘regulate Commerce

17 with foreign Nations,’ and to ‘declare War[.]’” E. Bay Sanctuary Covenant, 909

18 F.3d at 1231 (citing U.S. Const. art. I § 8, cl. 4 (uniform naturalization rule power),

19 id. § 8, cl. 3 (foreign commerce power), id. § 8, cl. 11 (war power)) (internal citations

20 omitted). For this reason, it is indisputable that “‘over no conceivable subject is the

21 legislative power of Congress more complete than it is over’ the admission of

22 aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co.

23 v. Stranahan, 214 U.S. 320, 339 (1909)).

24

25

The claims asserted in this case undercut Defendants’ invocation of the

26 political question doctrine. Plaintiffs’ claims primarily concern alleged violations of

27 various INA provisions and an implementing regulation through alleged denials of

28 access to the U.S. asylum process and an alleged policy and pattern or practice of

– 23 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6478 Page 24 of 84

1 denying asylum seekers access to the U.S. asylum process. (SAC ¶¶ 203–223

2 (describing statutory and regulatory scheme that applies to asylum seekers); id. ¶¶

3 256–69 (APA Section 706(1) claims based on certain INA provisions and

4 implementing regulation); id. ¶¶ 270–82 (APA Section 706(2) claims premised on

5 certain INA provisions and implementing regulation); id. ¶¶ 283–93 (Fifth

6 Amendment Due Process Clause claims premised on certain INA provisions and

7 implementing regulation).) Federal courts have the power to “review the political

8 branches’ action to determine whether they exceed the constitutional or statutory

9 scope of their authority.” E. Bay Sanctuary Covenant, 909 F.3d at 1232 (citing

10 Hawaii, 138 S. Ct. at 2419).

11

12

Although Plaintiffs’ claims concern immigration, the statutory questions the

13 claims raise do not task the Court with, nor require the Court to engage in a

14 freewheeling inquiry into the wisdom of immigration policy choices. See Sale v.

15 Haitian Ctrs. Council, 509 U.S. 155, 165–66 (1993) (noting that “the wisdom of the

16 policy choices made by Presidents Reagan, Bush, and Clinton is not a matter for our

17 consideration. We must decide only whether Executive Order No. 12807, 57 Fed.

18 Reg. 23133 (1992), which reflects and implements those choices, is consistent with

19 § 243(h) of the INA.”). When “Congress has expressed its intent regarding an aspect

20 of foreign affairs” through a legislative command and a court is asked to “evaluate

21 the Government’s compliance” with that command, the court “is ‘not being asked to

22 supplant a foreign policy decision of the political branches with the courts’ own

23 unmoored determination of what United States policy . . . should be.’” Ctr. for Bio.

24 Diversity v. Mattis, 868 F.3d 803, 823 (9th Cir. 2017) (quoting Zivotofsky, 566 U.S.

25 at 196). “Instead, a court must engage in the ‘familiar judicial exercise’ of reading

26 and applying a statute, conscious of the purpose expressed by Congress.” Id.

27 (quoting Zivotofsky, 566 U.S. at 196). In this case, resolution of Plaintiffs’ claims

28 turns on whether Defendants’ alleged conduct complies with or violates the relevant

– 24 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6479 Page 25 of 84

1 INA provisions and implementing regulation. It is well within this Court’s Article

2 III province and duty to resolve these claims.

3

4

The Court acknowledges that there are some allegations that touch on alleged

5 coordination with Mexican government officials.5 (SAC ¶¶ 3, 7, 50–60.) The

6 coordination, however, is merely an outgrowth of the alleged underlying conduct by

7 U.S. officials. Based on the statutory claims in this case, review of such conduct

8 does not present a nonjusticiable political question. Accordingly, the Court denies

9 Defendants’ present motion to dismiss based on the political question doctrine.

10 Defendants may reassert their political question doctrine challenge “[i]f it becomes

11 clear at a later stage that resolving any of the plaintiffs’ claims requires” resolution

12 of an asserted political question over which this Court might lack subject matter

13 jurisdiction. Al-Tamimi v. Adelson, 916 F.3d 1, 14 (D.C. Cir. 2019).

14

15

16

5 As Defendants point out (ECF No. 192-1 at 26 n.8), there are also allegations

17 that concern alleged (mis)conduct by Mexican government officials. (SAC ¶¶ 29– 31, 35, 44–45, 52–54, 74–75, 83, 96–97, 110, 156–59, 163, 166, 175–76, 197, 199–
18 200.) Defendants argue that the act of state doctrine bars the issuance of declaratory

19 or injunctive relief relating to these allegations. (ECF No. 192-1 at 26 n.8.) The

Court does not agree. The act of state doctrine “bars a suit where ‘(1) there is an 20 official act of a foreign sovereign performed within its own territory; and (2) the

21 relief sought or the defense interposed [in the action would require] a court in the

United States to declare invalid the [foreign sovereign’s] official act.’” Sea Breeze 22 Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 1069 (9th Cir. 2018) (quoting Credit

23 Suisse v. U.S. Dist. Court, 130 F.3d 1342, 1346 (9th Cir. 1997)). The act of state

doctrine does not bar the claims in this case because the Court is not asked to declare 24 that any official acts of the Mexican government are unlawful. Instead, pursuant to

25 U.S. law, Plaintiffs challenge the legality of conduct by U.S. officials. Although

these officials have allegedly instructed Mexican officials to take certain conduct in 26 furtherance of the challenged Turnback Policy, the Court can assess the legality of

27 the U.S. officials’ alleged conduct and order any corresponding relief pursuant to the

28

statutory provisions at issue in this case without contravening the act of state doctrine.

– 25 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6480 Page 26 of 84

1 II. Administrative Procedure Act Claims

2

The bulk of Defendants’ motion to dismiss concerns the Plaintiffs’ APA

3 claims. (ECF No. 192-1 at 6–18, 28–31; ECF No. 238 at 2–12.) Defendants’

4 multipronged challenge to Plaintiffs’ APA claims consists of several arguments: (A)

5 Organizational Plaintiff Al Otro Lado cannot state APA claims based on the INA

6 provisions at issue as a “non-profit legal services organization,” (B) (1) the repleaded

7 Section 706(1) claims of Plaintiffs Abigail, Beatrice, and Carolina Doe fail because

8 they allegedly withdrew their applications for admission and (2) the Section 706(1)

9 claims of all New Individual Plaintiffs fail because the relevant INA provisions and

10 implementing regulation underlying their claims for relief “do not apply to

11 individuals in Mexico,” and (C) Plaintiffs’ Section 706(2) APA claims fail because

12 (1) Plaintiffs do not identify final agency action, (2) Plaintiffs challenge

13 discretionary conduct over which the APA forecloses judicial review, and (3)

14 Plaintiffs have not plausibly alleged an unlawful agency action. The Court considers

15 Defendants’ arguments in turn and rejects each of them.

16

17

A. Al Otro Lado’s APA Claims

18

For a second time, Defendants challenge Al Otro Lado’s ability to assert APA

19 claims premised on violations of the INA provisions and regulations at issue. (ECF

20 No. 192-1 at 28; ECF No. 238 at 20.) Defendants contend that Al Otro Lado’s APA

21 claims must be dismissed under Rule 12(b)(6) for failure to state a claim because

22 whereas the statutory and regulatory provisions pertain exclusively to aliens or

23 refugees, Al Otro Lado is merely a “non-profit legal services organization[.]” (ECF

24 No. 192-1 at 28; ECF No. 238 at 20.) Defendants’ argument simply reconfigures

25 Defendants’ prior argument that Al Otro Lado falls outside the zone of interests of

26 the relevant INA provisions. The Court squarely rejected Defendants’ argument in

27 the prior dismissal order. See Al Otro Lado, 327 F. Supp. 3d at 1298–1302.

28 Defendants identify no basis for the Court to depart from its prior decision.

– 26 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6481 Page 27 of 84

1

However, in the time since the Court’s prior dismissal order, the Ninth Circuit

2 has issued a decision that strengthens the Court’s prior rejection of Defendants’

3 challenge to Al Otro Lado’s APA claims in this case. Specifically, in East Bay

4 Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018), the government

5 argued that various organizations, including Organizational Plaintiff Al Otro Lado

6 who is also a plaintiff in that case, fell outside the zone of interests of certain INA

7 provisions, including 8 U.S.C. § 1158, as “legal services organizations” and

8 therefore could not challenge a rule promulgated by the Department of Justice and

9 the Department of Homeland Security (“DHS”), coinciding with a presidential

10 proclamation, which together purported to make aliens who entered the United States

11 at a place other than at a POE ineligible to apply for asylum in the United States. Id.

12 at 1230–31, 1236–38. The Ninth Circuit rejected the government’s zone of interest

13 argument, reasoning that “the Organizations’ interest in aiding immigrants seeking

14 asylum is consistent with the INA’s purpose to ‘establish[] . . . [the] statutory

15 procedure for granting asylum to refugees.’” Id. at 1245 (quoting INS v. Cardoza-

16 Fonseca, 480 U.S. 421, 427 (1987)). The Court noted that “[w]ithin the asylum

17 statute, Congress took steps to ensure that pro bono legal services of the type that the

18 Organizations provide are available to asylum seekers.” Id. (citing 8 U.S.C. §

19 1158(d)(4)(A)–(B)). The Ninth Circuit also determined that the INA, taken as a

20 whole, otherwise supports the inference that Congress intended eligibility for

21 organizations like the ones in East Bay Sanctuary Covenant to bring suit. Id.

22 (identifying various INA provisions expressly referring to nongovernmental

23 organizations as giving such organizations “a role in helping immigrants navigate

24 the immigration process”). The Ninth Circuit’s reasoning in East Bay Sanctuary

25 Covenant is equally applicable to this case and reinforces the Court’s prior rejection

26 of Defendants’ challenge to Al Otro Lado’s APA claims.6

27

28

6 In the time since both the Court’s ruling and East Bay Sanctuary Covenant,

– 27 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6482 Page 28 of 84

1

B. Section 706(1) APA Claims

2

The Court has previously discussed the principles governing Section 706(1)

3 APA claims. Under Section 706(1), a court “shall . . . compel agency action

4 unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A Section 706(1)

5 claim “can only proceed where a plaintiff asserts that an agency failed to take a

6 discrete agency action that it is required to take.” Norton v. S. Utah Wilderness

7 Alliance, 542 U.S. 55, 64 (2004) [hereinafter “SUWA”].”); Hells Canyon

8 Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). The

9 “limitation to required agency action rules out judicial direction of even discrete

10 agency action that is not demanded by law.” SUWA, 542 U.S. at 65. Because of this

11 limitation, courts “have no authority to compel agency action merely because the

12 agency is not doing something we may think it should do.” Zixiang Li v Kerry, 710

13 F.3d 995, 1004 (9th Cir. 2013).

14

15

16 one out-of-circuit district court has described this Court’s prior zone of interests

17 analysis as a “limited circumstance[]” for “organizations advocating for clients[.]” De Dandrade v. United States Dep’t of Homeland Sec., 367 F. Supp. 3d 174, 189
18 (S.D.N.Y. 2019) (“In the limited circumstances in which district courts determined

19 organizations advocating for clients fell within the INA’s zone of interest, the

provisions of the INA at issue did not concern naturalization.”). The De Dandrade 20 court in part misreads this Court’s prior analysis, which did not turn on whether Al

21 Otro Lado has clients that fall within the zone of interests of the relevant INA

provisions. The Court identified this as a potentially separate basis for Al Otro Lado 22 to assert APA claims, but on which Al Otro Lado did not rely. Al Otro Lado, 327 F.

23 Supp. 3d at 1301 n.7. In any event, as East Bay Sanctuary Covenant confirms, it is

not necessary for an organization to premise its APA claims for the underlying INA 24 provisions at issue in this case on the ground that the organization is representing

25 specific clients seeking asylum. See E. Bay Sanctuary Covenant, 909 F.3d at 1244–

45. Indeed, in East Bay Sanctuary Covenant, the Ninth Circuit expressly found that 26 the organizations lacked third-party standing to assert claims on behalf of asylum

27 seeker clients, yet concluded that the organizations possessed both Article III

28

standing and fell within the INA’s zone of interests in their capacity as legal organizations that assist asylum seekers. Compare id. with id. at 1240–41.

– 28 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6483 Page 29 of 84

1

Plaintiffs assert claims under Section 706(1) claims based on 8 U.S.C. §

2 1225(a)(3), § 1225(b)(1)(A)(ii), 1225(b)(2)(A), and 8 C.F.R. § 235.3(b)(4). (SAC

3 ¶¶ 256–69). In broad terms, Section 1225(a)(3) imposes a mandatory duty for

4 immigration officers to inspect “[a]ll aliens . . . who are applicants for admission or

5 otherwise seeking admission . . . to . . . the United States[.]” 8 U.S.C. § 1225(a)(3).

6 Section 1225(b)(1)(A)(ii) imposes on an immigration officer a duty to refer an alien

7 who indicates either an intention to apply for asylum under section 1158 or a fear of

8 persecution for an asylum interview under 8 U.S.C. § 1225(b)(1)(B) with an asylum

9 officer. 8 U.S.C. § 1225(b)(1)(A)(ii). In turn, 8 C.F.R. § 235.3(b)(4) imposes an

10 analogous regulatory duty on the inspecting officer. For all other aliens, Section

11 1225(b)(2)(A) imposes on an immigration officer a duty to detain the alien for

12 general removal proceedings under 8 U.S.C. § 1229a. 8 U.S.C. § 1225(b)(2)(A).

13

14

Defendants raise two dismissal arguments that together concern the Section

15 706(1) claims of ten Individual Plaintiffs. Defendants first move to dismiss the

16 repleaded Section 706(1) claims of Original Individual Plaintiffs Abigail, Beatrice

17 and Carolina Doe because these Plaintiffs allegedly withdrew their applications for

18 admission. (ECF No. 192-1 at 5.) Second, Defendants argue that all New Individual

19 Plaintiffs fail to state Section 706(1) claims because the statutory and regulatory

20 provisions at issue “do not apply to individuals located in Mexico.” (Id. at 6–11.)

21 The Court considers each argument in turn.

22

23

1. Repleaded Section 706(1) Claims of Certain Plaintiffs

24

Plaintiffs Abigail Doe, Beatrice Doe, and Carolina Doe once more each allege

25 that, on one of the occasions they sought asylum at a POE, CBP officials coerced

26 them into signing documents which stated that they lacked a fear of persecution and

27 were withdrawing their applications for admission. (SAC ¶¶ 24–26, 122–23, 129–

28 30, 136.) Carolina further alleges that CBP officers coerced her into recanting her

– 29 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6484 Page 30 of 84

1 fear on video. (Id. ¶¶ 26, 135.)

2

3

Based on their coercion allegations, Plaintiffs claimed in the original

4 complaint that “CBP officials failed to take actions mandated” by, inter alia, 8

5 C.F.R. § 235.4, the regulation which states that “[t]he alien’s decision to withdraw

6 his or her application for admission must be made voluntarily.” (ECF No. 1 ¶ 153.)

7 In the prior dismissal order, the Court dismissed Plaintiffs Abigail Doe, Beatrice

8 Doe, and Carolina Doe’s Section 706(1) claims insofar as the claims sought to

9 compel agency action under 8 C.F.R § 235.4, reasoning that “[t]he regulation does

10 not require CBP officers to determine whether a withdrawal was made voluntarily,

11 and it does not specify what CBP officers must do if a withdrawal was not.” Al Otro

12 Lado, 327 F. Supp. 3d at 1314. The Court stated that “[t]his determination does not

13 affect the Court’s conclusion that these Plaintiffs have otherwise stated Section

14 706(1) claims regarding their alleged denial of access to the asylum process in the

15 United States.” Id. at 1315. Plaintiffs Abigail Doe, Beatrice Doe, and Carolina Doe

16 thus understandably replead Section 706(1) claims based on the alleged failure of

17 immigration officers to inspect and refer them for asylum interviews or to otherwise

18 detain them for a removal proceeding. (SAC ¶¶ 256, 260.)

19

20

Notwithstanding the Court’s prior ruling expressly permitting Plaintiffs

21 Abigail Doe, Beatrice Doe, and Carolina Doe’s Section 706(1) claims to proceed

22 and the fact that no Plaintiff now alleges Section 706(1) claims based on 8 C.F.R. §

23 235.4, (see SAC ¶ 260), Defendants argue that these Plaintiffs’ Section 706(1) claims

24 must be dismissed because these Plaintiffs withdrew their applications for

25 admission. (ECF No. 192-1 at 29–30.) Citing 8 U.S.C. § 1225(a)(4) and 8 C.F.R. §

26 235.4—the statutory and regulatory provisions that authorize an alien to voluntarily

27 withdraw an application for admission and “depart immediately from the United

28 States”—Defendants argue that there is no continuing duty to inspect, refer, or detain

– 30 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6485 Page 31 of 84

1 an alien who has withdrawn her application. (ECF No. 192-1 at 30.)

2

3

Defendants’ dismissal argument mistakes the Court’s prior conclusion

4 regarding a judicial inability to compel relief under 8 C.F.R. § 235.4 with an inability

5 of the Court to otherwise compel discrete “agency action unlawfully withheld.” 5

6 U.S.C. § 706(1). As should have been clear from the Court’s prior order, the inability

7 to compel Section 706(1) relief under 8 C.F.R § 235.4 does not preclude relief under

8 8 U.S.C. § 1225(a)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), and 8 C.F.R. § 235.3(b)(4) in

9 this case. The parties agree that the mandatory duties to inspect all aliens and refer

10 certain aliens seeking asylum are discrete actions for which this Court can compel

11 Section 706(1) relief under 8 U.S.C. § 1225(a)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), and

12 8 C.F.R. § 235.3(b)(4). In view of the parties’ agreement regarding these duties, the

13 Court does not understand Defendants’ present dismissal argument.

14

15

Under the provisions that form the basis of the repleaded Section 706(1)

16 claims, an immigration officer must inspect an alien applying for admission and if

17 the alien is inadmissible for making misrepresentations or lacking proper

18 documentation and states an intent to seek or apply for asylum, the officer must refer

19 the alien for a credible fear interview. As even Defendants do not dispute, Plaintiffs

20 Abigail Doe, Beatrice Doe, and Carolina Doe’s allegations plausibly show that CPB

21 officers failed to take the discrete actions an immigration officer must take during

22 the admission process for aliens like these Plaintiffs, who allege that they asserted

23 an intent to apply for asylum and a fear of persecution. (SAC ¶¶ 24–26, 122–23,

24 129–30, 134–36.) All parties also agree that 8 C.F.R § 235.4 requires that an alien

25 voluntarily withdraw an application. Taking these Plaintiffs’ factual allegations of

26 coercion as true, these Plaintiffs did not voluntarily withdraw their applications for

27 admission. Thus, the mandatory duties to inspect and refer or detain were plausibly

28 “unlawfully withheld” such that these Plaintiffs may seek Section 706(1) relief.

– 31 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6486 Page 32 of 84

1 Accordingly, the Court denies Defendants’ latest attempt to dismiss Plaintiff Abigail

2 Doe, Beatrice Doe, and Carolina Doe’s Section 706(1) claims.7

3

4

2. New Individual Plaintiffs’ Section 706(1) Claims

5

As noted, all Plaintiffs’ Section 706(1) claims are premised on alleged failures

6 of CBP officers to take actions mandated by 8 U.S.C. § 1225(a)(3), 8 U.S.C. §

7 1225(b)(1)(A)(ii), 8 U.S.C. § 1225(b)(2), and 8 C.F.R. § 253.3(b)(4). (SAC ¶ 260.)

8 Two interlocking arguments are central to Defendants’ dismissal challenge to the

9 New Individual Plaintiffs’ Section 706(1) claims. First, Defendants contend that the

10 text of the underlying statutory and regulatory provisions “do not apply to

11 individuals in Mexico.” (ECF No. 192-1 at 6–11; ECF No. 238 at 1–7.) Second,

12 Defendants contend that, unlike the Original Individual Plaintiffs’ allegations, the

13 New Individuals Plaintiffs’ allegations show that these latter Plaintiffs were in

14 Mexico when they were allegedly turned away. (ECF No. 192-1 at 2 & n.2, 6–11;

15 ECF No. 238 at 1–7.) The Court finds it prudent to outline the SAC’s allegations

16 and then to address whether the allegations are sufficient to state claims for Section

17 706(1) relief under a proper construction of the relevant INA statutory and regulatory

18 provisions.

19

20

21 7 In opposition to Defendants’ motion to dismiss the SAC, Plaintiffs state in a
22 footnote that they “respectfully disagree with and preserve for appeal the Court’s

23 conclusion that it cannot compel relief under Section 706(1) based on Defendants’

alleged violation of 8 C.F.R. § 235.4[.]” (ECF No. 210 at 34 n.30.) The Court does 24 not understand how Plaintiffs have preserved an issue for appeal (1) which they

25 chose not to replead in their Section 706(1) claims and (2) for which Plaintiffs offer

no argument based on an application of the legal standards that govern a Section 26 706(1) claim to the text of 8 C.F.R. § 235.4. In any event, to the extent Plaintiffs’

27 assertion is animated by a concern that the Court would dismiss the repleaded

28

Section 706(1) claims on the grounds Defendants raise, this Order moots that concern.

– 32 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6487 Page 33 of 84

1

a. New Individual Plaintiffs’ Factual Allegations

2

As a threshold matter, Plaintiffs dispute whether the Court can even resolve

3 Defendants’ challenge to the New Individual Plaintiffs’ Section 706(1) claims at this

4 juncture. (ECF No. 210 at 4–5.) Plaintiffs contend that Defendants’ argument calls

5 for the Court to improperly find facts at the pleading stage, “specifically, that the

6 new Individual Plaintiffs were standing in Mexico when they confronted CBP

7 officers.” (ECF No. 210 at 4.) According to Plaintiffs, the SAC “does not actually

8 state that any Plaintiffs were in Mexico territory when CBP turned them back,” and

9 thus the Court must “assume that all Individual Plaintiffs were on U.S. soil when

10 Defendants turned them back.” (Id. at 4–5.) This argument is echoed by Amici

11 Immigration law Professors. (ECF No. 221-1 at 4–5.)

12

13

Implicit in Plaintiffs’ argument is the notion that the Court should assume

14 facts essential to their ability to state Section 706(1) claims to compel agency action

15 pursuant to 8 U.S.C. § 1225(a)(3), § 1225(b)(1)(A)(ii), 1225(b)(2)(A), and 8 C.F.R.

16 § 235.3(b)(4). The Court cannot do this. “Dismissal is warranted under Rule

17 12(b)(6) where the complaint lacks a cognizable theory or where the complaint

18 presents a cognizable legal theory yet fails to plead essential facts under that theory.”

19 C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1128 (E.D. Cal. 2009) (citing

20 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984))

21 (emphasis added). And this Court has recognized, “[d]espite the deference the Court

22 must pay to the plaintiff’s allegations, it is not proper for the Court to assume that

23 the [plaintiff] can prove facts that [he or she] has not alleged.’” Tinoco v. San Diego

24 Gas & Elec. Co., 327 F.R.D. 651, 657 (S.D. Cal. 2018) (quoting Associated Gen.

25 Contractors of Cal, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,

26 526(1983)) (alterations in original). Tellingly, both sides expressly rely on the

27 SAC’s allegations to argue whether the relevant INA provisions embrace the New

28 Individual Plaintiffs. (ECF No. 192-1 at 7, 8, 9, 11; ECF No. 210 at 4.) Thus, the

– 33 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6488 Page 34 of 84

1 Court rejects Plaintiffs’ threshold dispute.

2

3

The Court turns to a key concession that undergirds Defendants’ argument.

4 Defendants concede that a POE is within the U.S. (See ECF No. 192-1 at 11 (“[A]s

5 the regulation says, an ‘arriving alien’ is an ‘applicant for admission’ at a port of

6 entry, all of which are located within the territorial United States.” (quoting 8 C.F.R.

7 §§ 1.2, 235.3(b)(4), 8 U.S.C. § 1225(a)(1)) (emphasis added).) Defendants further

8 argue that a POE is not a “geographic area,” but instead a discrete facility. (ECF No.

9 238 at 5–6.) Defendants ground this argument in a Ninth Circuit decision regarding

10 a conviction for illegal entry under 8 U.S.C. § 1325—a statutory provision that

11 criminalizes an alien’s entry into the United States at any time or place other than as

12 designed by immigration officers—for entry at a place other than a POE. See United

13 States v. Aldana, 878 F.3d 877, 880–82 (9th Cir. 2017) (“[T]here is no indication

14 that DHS intended to change the meaning of ‘port of entry’ [in 8 C.F.R. § 235.1(a)]

15 to refer to geographical areas, as opposed to specific facilities where an alien could

16 apply for entry.”) (upholding convictions under Section 1325(a)(1) for unlawful

17 entry in the United States based in part on 8 C.F.R. § 235.1(a)).

18

19

Under Defendants’ own view, any New Individual Plaintiff who has

20 sufficiently alleged that he or she was “at a POE” has stated Section 706(1) claims

21 for the various INA provisions and implementing regulation that form the basis of

22 Plaintiffs’ claims. Defendants’ dismissal argument should therefore fail on its own

23 terms for New Individual Plaintiffs Victoria Doe, Bianca Doe, Emiliana Doe, and

24 César Doe. These four New Individual Plaintiffs offer allegations that, on one or

25 more occasion, they were “at a POE” and requested asylum, but CBP officers

26 refused. (SAC ¶¶ 32–35, 181, 185, 187, 193, 199.) As Plaintiffs observe, (ECF No.

27 210 at 7), the preposition “at” is a “function word” used “to indicate presence or

28 occurrence in, on, or near.”

See Merriam-Webster Dictionary,

– 34 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6489 Page 35 of 84

1 https://www.merriam-webster.com/dictionary/at (last accessed May 2, 2019).

2 Although Defendants would like these New Individual Plaintiffs to plead additional

3 factual allegations, the word “at” can plausibly embrace the inference that these New

4 Individual Plaintiffs are not subject to Defendants’ challenge.8

5

6

The remaining four New Individual Plaintiffs, however, offer allegations that

7 defeat such an inference. New Individual Plaintiffs Roberto Doe, Maria Doe, and

8 Juan and Úrsula Doe allege that they “sought access to the asylum process by

9 presenting” themselves at the Hidalgo, Texas POE and Laredo, Texas POE and

10 “encountered CBP officials in the middle of the bridge” between Mexico and the

11 U.S. POE and “told them” they “wanted to seek asylum in the United States.” (SAC

12 ¶¶ 29–31, 154–55, 162, 174.) The CBP officials, however, allegedly denied Roberto

13 Doe access “by telling him the POE was full and that he could not enter,” told Maria

14 Doe to wait on the Mexican side of the border where she was told “U.S. officials

15 would not let her and her children cross the bridge,” and told Juan and Úrsula Doe

16 that “the POE was closed and that they could not enter.” (Id. ¶¶ 155, 162, 174.)

17 These allegations squarely call on the Court to address Defendants’ arguments

18 regarding the proper construction of the statutory and regulatory provisions in this

19 case and to apply that construction to the factual allegations.

20

21

b. Scope of the Relevant Provisions

22

The starting point of statutory interpretation is the statute’s language.

23 Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985). “[I]f the statutory

24 language is plain,” a court “enforce[s] it according to its terms.” King v. Burwell,

25

8 Even if the Court did not draw the inference that New Individual Plaintiffs 26 Victoria Doe, Bianca Doe, Emiliana Doe, and César Doe were sufficiently “at a

27 POE” for the purposes of Defendants’ present motion, the Court’s analysis regarding

28

the scope of the statutory and regulatory provision similarly applies to their allegations and Section 706(1) claims.

– 35 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6490 Page 36 of 84

1 135 S. Ct. 2480, 2489 (2015) (citing Hardt v. Reliance Standard Life Ins. Co., 560

2 U.S. 242, 251 (2010)). A court interprets a statute “to give effect, if possible, to

3 every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)

4 (citation omitted). This process of statutory interpretation proceeds “with reference

5 to the statutory context, structure, history, and purpose, ‘as well as overall common

6 sense.’” Abramski v. United States, 573 U.S. 169, 179 (2014) (quoting Maracich v.

7 Spears, 570 U.S. 48, 76 (2013)). Two statutory provisions are relevant to

8 Defendants’ motion to dismiss: 8 U.S.C. § 1158(a)(1)’s general provision for asylum

9 and 8 U.S.C. § 1225’s articulation of certain immigration officer duties. The Court

10 considers the relevant statutory text in light of these principles.

11

12

(1) 8 U.S.C. § 1158(a)(1)

13

Although Plaintiffs do not premise their Section 706(1) claims to compel

14 agency action on 8 U.S.C. § 1158(a)(1), both sides anchor their statutory analysis in

15 this provision. Under Section 1158(a)(1)’s plain language, two classes of aliens may

16 apply for asylum: (1) any alien “who is physically present in the United States” and

17 (2) any alien “who arrives in the United States.” Applying the rule against

18 surplusage, the Court must presume that the phrases “mean different things.”

19 Duncan, 533 U.S. at 174.9 The parties’ dispute turns on whether the New Individual

20

21

9 The Court recognizes that the rule against surplusage “is not absolute.”

Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004). A court need not apply the rule when 22 its application would be “at the expense of [the statute’s] more natural reading, the

23 structure of the [statutory provision], and the structure of the Act.” Tima v. AG,

United States, 903 F.3d 272, 278 (3d Cir. 2018). Defendants appear to argue against 24 application of the rule and insist that Section 1158(a)(1)’s phrases are “not

25 surplusage” but together “ensure that any alien within the United States may apply

for asylum[.]” (ECF No. 238 at 4.) For reasons the will become clear, the Court 26 does not agree with Defendants’ arguments regarding the full scope of the

27 provisions. And the Court cannot find that application of the rule against surplusage

28

contravenes Section 1158(a)(1)’s natural reading as identifying two different classes of aliens who may apply for asylum, one of which includes aliens who are not

– 36 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6491 Page 37 of 84

1 Plaintiffs fall within the second class of aliens.

2

3

Defendants argue that any Plaintiffs on Mexican soil cannot qualify as an alien

4 who was “arriving in the United States.” Defendants’ opening brief largely does not

5 offer meaningful analysis regarding Section 1158(a)(1), except to contend that a

6 plain language reading of the statute shows that it does not apply to the New

7 Individual Plaintiffs. (ECF No. 192-1 at 7–8.) In the face of Plaintiffs’ statutory

8 analysis, however, Defendants advance three arguments. First, Defendants contend

9 that “the use of the present simple tense creates a nexus between the alien’s ability

10 to apply for asylum and the alien’s current physical presence (or arrival) in the

11 United States.” (ECF No. 238 at 2.) Defendants observe that the phrase “alien who

12 arrives in” is still linked with the geographic location of the United States. Second,

13 Defendants argue that the presumption against extraterritorial application of federal

14 statutes forecloses application of Section 1158 to conduct that occurs outside the

15 United States. (Id. at 3.) Third, Defendants argue that Congress has enacted a

16 separate scheme to deal with refugee claims for persons outside the United States.

17 (Id. at 3–4.) The Court rejects each of Defendants’ arguments and, in doing so, the

18 Court concludes that Congress included aliens in the process of arriving in the United

19 States in Section 1158(a)(1)’s general authorization to apply for asylum.

20

21

(a) The Statute’s Present Tense (Con)Text

22

Defendants argue that the statute’s use of the phrase “alien who arrives in” is

23 linked with a geographic location because “use of the present simple tense creates a

24 nexus between the alien’s ability to apply for asylum and the alien’s current physical

25 presence (or arrival) in the United States.” (ECF No. 238 at 2.) Although Plaintiffs

26 assert that “arrives in” “must mean something different than geographic presence in

27

28 physically in the United States but are in the process of doing so.

– 37 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6492 Page 38 of 84

1 the United States[,]” (ECF No. 210 at 8), Plaintiffs do not so much dispute that

2 Section 1158(a)(1)’s use of “arrives in” has a geographic focus. Rather, Plaintiffs’

3 fundamental contention is that the statute’s use of the present tense embraces an alien

4 who is in the process of arriving in the United States. (Id. at 7.) According to

5 Plaintiffs, the “natural meaning” of “arrives in,” as used in the statute, encompasses

6 “someone who is in the process of ‘arriv[ing] in’ the United States[.]” (Id.) Based

7 on this reading, Plaintiffs argue that “because all Individual Plaintiffs were arriving

8 in the United States, they are covered by” this provision. (Id.) The Court agrees.

9

10

“Congress’ use of a verb tense is significant in construing statutes.” United

11 States v. Wilson, 503 U.S. 329, 333 (1992) (collecting statutes). Although neither

12 side raises this point, it bears noting that Congress has enacted the Dictionary Act to

13 guide interpretation of congressional statutes. Pursuant to the Act, “[i]n determining

14 the meaning of any Act of Congress, unless the context indicates otherwise—words

15 used in the present tense include the future as well as the present.” 1 U.S.C. § 1.

16 This provision of the Dictionary Act has been applied to the INA. See Carrillo de

17 Palacios v. Holder, 651 F.3d 969, 976 (9th Cir. 2011) (citing 1 U.S.C. § 1). When

18 accounting for the rule against surplusage, application of the Dictionary Act readily

19 leads to the conclusion that Section 1158(a)(1)’s use of the present tense of “arrives”

20 plainly covers an alien who may not yet be in the United States, but who is in the

21 process of arriving in the United States through a POE.

22

23

This reading is buttressed by statutory provisions that Section 1158(a)(1)

24 expressly incorporates. Section 1158(a)(1) references the Section 1225 procedure

25 for aliens seeking asylum at the border. 8 U.S.C. § 1158(a)(1). In relevant part,

26 Section 1225(b)(1)(A)(ii) requires an immigration officer to refer an inadmissible

27 alien “who is arriving in the United States” and who expresses a fear of persecution

28 or “an intention to apply for asylum” for an interview with an asylum officer. 8

– 38 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6493 Page 39 of 84

1 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added). The use of the present progressive,

2 like use of the present participle, denotes an ongoing process. See United States v.

3 Balint, 201 F.3d 928, 933 (7th Cir. 2000) [U]se of the present progressive tense,

4 formed by pairing a form of the verb ‘to be’ and the present participle, or ‘-ing’ form

5 of an action verb, generally indicates continuing action.”); Laube v. Allen, 506 F.

6 Supp. 2d 969, 980 (M.D. Ala. 2007) (observing that a statute’s use of the present

7 participle “denotes action that is continuing or progressing”); cf. Khakhn v. Holder,

8 371 Fed. App’x 933, 937 (10th Cir. 2010) (finding use of the present participle

9 phrase “applying for adjustment” in section 1104(g) of the LIFE Act as

10 “unambiguous” that an alien who “is no longer applying for adjustment of status

11 under the LIFE Act” cannot prevent reinstatement of a prior deportation order).

12 Section 1225(b)(1)(A)(ii) therefore reinforces the conclusion that Congress intended

13 to authorize aliens in the process of arriving into the United States to apply for

14 asylum under Section 1158(a)(1). See E. Bay Sanctuary Covenant v. Trump, 349 F.

15 Supp. 3d 838, 844 (N.D. Cal. 2018) (observing that “[a]sylum is a protection granted

16 to foreign nationals already in the United States or at the border who meet the

17 international law definition of a ‘refugee.’” (emphasis added)).

18

19

Although Defendants focus on the “geographic nexus” that Section 1158(a)(1)

20 creates with the United States, they ignore its use of the present tense. In fact,

21 Defendants’ opening briefing expressly rewrites the statutory provision into the past

22 tense to seek dismissal of the New Individual Plaintiffs’ claims: “[n]one of the

23 Extraterritorial Plaintiffs alleges he or she was ‘physically present in’ the United

24 States or had ‘arrive[d] in’ the United States when subjected to Defendants’ alleged

25 conduct.” (ECF No. 192-1 at 8 (brackets in original and emphasis added).) In reply,

26 Defendants similarly argue for a past tense revision. (ECF No. 238 at 2 (purporting

27 to argue about the meaning of the statute’s “present simple tense” yet citing Matter

28 of F-P-R, 24 I. & N. Dec. 681, 683 (BIA 2008) for the proposition that “‘last arrival

– 39 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6494 Page 40 of 84

1 in’ at 8 C.F.R. § 1208.4(a)(2)(ii) . . . mean[s] the alien’s most recent coming or

2 crossing into the United States after having traveled from somewhere outside of the

3 country.” (emphasis added)).) Defendants’ argument must fail because it invites the

4 Court to do what it cannot: “[w]e are not at liberty to rewrite the words chosen by

5 Congress.” United States v. Vargas-Amaya, 389 F.3d 901, 906 (9th Cir. 2004).

6

7

Were the statute’s text not enough, as Amici Immigration Law Professors

8 observe, there is relevant legislative history on Congress’s intent in adopting the term

9 “arriving alien,” as reflected in a statement by Representative Lamar Smith,

10 Chairman of the House Judiciary Committee’s Subcommittee on Immigration and

11 Claims. (ECF No. 221-1 at 11.) In particular, Representative Smith observed that

12 the term “was selected specifically by Congress in order to provide a flexible concept

13 that would include all aliens who are in the process of physical entry past our

14 borders[.]. . . . ‘Arrival’ in this context should not be considered ephemeral or

15 instantaneous but, consistent with common usage, as a process. An alien

16 apprehended at any stage of this process, whether attempting to enter, at the point of

17 entry, or just having made entry, should be considered an ‘arriving alien’ for the

18 various purposes in which that term is used in the newly revised provisions of the

19 INA.” Implementation of Title III of the Illegal Immigration Reform and Immigrant

20 Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and

21 Claims of the H. Comm. on the Judiciary, 105th Cong. 17–18 (1997). Despite

22 Defendants’ attempt to dismiss this legislative history, (ECF No. 238 at 6), it

23 confirms the propriety of the Court’s conclusion that the statute’s use of the present

24 tense encompasses aliens in the process of arriving. See Daniel v. Nat’l Park Serv.,

25 891 F.3d 762, (9th Cir. 2018) (“[T]he legislative history ‘confirms what we have

26 concluded from the text alone.’” (quoting Mohamad v. Palestinian Auth., 566 U.S.

27 449, 460 (2012))).

28

– 40 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6495 Page 41 of 84

1

(b) Presumption Against Extraterritoriality

2

Faced with the statute’s text, Defendants turn to the statutory canon of the

3 presumption against extraterritoriality to argue that “the right codified at section

4 1158(a)(1)” simply cannot extend “to persons outside the United States borders”

5 because this would be “in direct contravention of Supreme Court precedent and in

6 violation of the presumption against extraterritoriality.” (ECF No. 238 at 3 (citing

7 Sale, 509 U.S. at 173–74; E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)

8 (“It is a longstanding principal of American law that legislation of Congress, unless

9 a contrary intent appears, is meant to apply only within the territorial jurisdiction of

10 the United States.” (internal quotation marks omitted)).) The Court does not find

11 Defendants’ argument persuasive.

12

13

The presumption against extraterritoriality is what its name suggests—a

14 presumption. Application of the presumption is a two-step process, which may

15 reveal that Congress has rebutted the presumption for an entire statutory provision

16 or that the presumption is displaced in the context of a particular case’s facts. Under

17 the first step, a court considers “whether the presumption against extraterritoriality

18 has been rebutted—that is, whether the statute gives a clear, affirmative indication

19 that it applies extraterritorially.” RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.

20 2090, 2101 (2016). Second, if the statute does not clearly indicate an intent that it

21 applies extraterritorially, the court must consider “whether the case involves a

22 domestic application of the statute . . . by looking to the statute’s ‘focus.’” Id. at

23 2101. “If the conduct relevant to the statute’s focus occurred in the United States,

24 then the case involves a permissible domestic application even if other conduct

25 occurred abroad; but if the conduct relevant to the focus occurred in a foreign

26 country, then the case involves an impermissible extraterritorial application

27 regardless of any other conduct that occurred in U.S. territory.” Id.

28

– 41 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6496 Page 42 of 84

1

Defendants fail to actually apply the framework to Section 1158. The Court

2 will not undertake the task of doing Defendants’ work for them, particularly when

3 Defendants effectively seek to rely on the presumption as a bar to application of

4 Section 1158 to the New Individual Plaintiffs. This is not how the presumption

5 works.

6

7

In any event, the Court finds that the presumption is rebutted in this case.

8 First, as Plaintiffs contend (ECF No. 210 at 8–9), “[i]mmigration statutes, by their

9 very nature, pertain to activity at or near international borders. It is natural to expect

10 that Congress intends for laws that regulate conduct that occurs near international

11 borders to apply to some activity that takes place on the foreign side of those

12 borders.” United States v. Villanueva, 408 F.3d 193, 199 (5th Cir. 2005). A reading

13 of Section 1158(a)(1), when placed into context, shows that Congress intended the

14 statute to apply to asylum seekers in the process of arriving. The Court concludes

15 that the statute’s language sufficiently displaces the presumption. See RJR Nabisco,

16 Inc., 136 S. Ct. at 2102 (observing that “[w]hile the presumption can be overcome

17 only by a clear indication of extraterritorial effect, an express statement of

18 extraterritoriality is not essential. ‘Assuredly context can be consulted as well.’”

19 (quoting Morrison v. Nat’l Australian Bank Ltd., 561 U.S. 247, 265 (2010))). Even

20 if the Court proceeded to the second step of the extraterritoriality analysis, the factual

21 allegations of this case concern the conduct of U.S. officials acting from within the

22 United States or from areas over which the U.S. exercises sovereignty, whether the

23 Court looks at the alleged Turnback Policy or the alleged acts of individual CBP

24 officers standing on the U.S. side of the international bridge between Mexico and

25 the United States. As the Court has discussed, Section 1158(a)(1) incorporates

26 Section 1225, which in turns places a focus on immigration officers who process

27 arriving aliens. Thus, even if the New Individual Plaintiffs had not crossed into the

28 United States when they were attempting admission and expressed to CBP officers

– 42 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6497 Page 43 of 84

1 an intent to seek asylum in the United States, they have alleged conduct occurring in

2 the United States that is a focus of the relevant statutory provisions when viewed in

3 context. Thus, this case involves a permissible territorial application of Section

4 1158.

5

6

(c) 8 U.S.C. § 1157(c) Refugee Admission Process

7

Finally, for the first time in reply, Defendants point to 8 U.S.C. § 1157(c) to

8 argue that this Court should not read Section 1158(a)(1) to encompass aliens who

9 are not yet in the United States. (ECF No. 238 at 3–4, 16.) According to Defendants,

10 under Section 1157(c), “a process already exists for accepting applications for

11 refugee status from persons outside the United States.” (ECF No. 238 at 3–4, 16.)

12 Defendants argue that “to adopt Plaintiffs’ interpretation of Section 1158 would

13 render section 1157 redundant.” (Id. at 4.) The Court does not share Defendants’

14 view.

15

16

Even a cursory review of Section 1157 shows that the statute establishes a

17 fundamentally different and separate scheme for admission of refugees into the

18 United States in the case of “humanitarian concerns” or “national interest.” 8 U.S.C.

19 § 1157(a)(1). The number of admissions is limited to “such number as the President

20 determines, before the beginning of the fiscal year and after appropriate consultation,

21 is justified by humanitarian concerns or is otherwise in the national interest.” 8

22 U.S.C. § 1157(a)(2). Section 1157(c) permits the Attorney General, subject to the

23 numerical limitation, to “admit any refugee who is not firmly resettled in any foreign

24 country, is determined to be of special humanitarian concern to the United States,

25 and is admissible. . . as an immigrant.” 8 U.S.C. § 1157(c)(1). Notably, Section

26 1157 does not refer to the asylum procedures set forth in Section 1158(a)(1), nor

27 does Section 1157 concern Section 1225’s focus on inspection of arriving aliens.

28 These textual differences blunt the force of Defendants’ argument that reading

– 43 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6498 Page 44 of 84

1 Section 1158(a)(1) in the manner the Court has would improperly render Section

2 1157 redundant, particularly in this case. No New Individual Plaintiff seeks relief

3 under Section 1157. In contrast, their allegations plausibly show that they were

4 arriving aliens and thus may avail themselves of the procedural protections available

5 under Sections 1158 and 1225. Accordingly, the Court rejects Defendants’ Section

6 1157(c) argument.

7

8

* * *

9

In sum, the Court concludes that Section 1158(a)(1)’s plain language, properly

10 construed, embraces any New Individual Plaintiffs whose allegations show that they

11 were in the process of arriving in the United States at the time of the challenged

12 conduct. With this construction in mind, the Court turns to the statutory provisions

13 pursuant to which the New Individual Plaintiffs seek to compel Section 706(1) relief.

14

15

(2) 8 U.S.C. § 1225

16

The core of the New Individual Plaintiffs’ Section 706(1) APA claims lies in

17 certain mandatory duties that 8 U.S.C. § 1225 imposes on an immigration officer.

18 As a threshold matter, Plaintiffs’ opposition to Defendants’ motion to dismiss is

19 silent on dismissal of the New Individual Plaintiffs’ Section 706(1) claims insofar as

20 the claims are premised on 8 U.S.C. § 1225(b)(2)(A), a provision that requires

21 detention of aliens not otherwise covered under 8 U.S.C. § 1225(b)(1) and who have

22 not shown that they are entitled to admission clearly and beyond a doubt. (Compare

23 ECF No. 192-1 at 9–10 with ECF No. 210 at 5–9.) Thus, the Court construes

24 Defendants’ motion to dismiss as unopposed insofar as Defendants seek dismissal

25 of Plaintiffs’ Section 706(1) claims. The Court limits its analysis to the statutory

26 and regulatory duties to inspect and refer asylum seekers under 8 U.S.C. §

27 1225(a)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), and 8 C.F.R. § 235.3(b)(4). Many of the

28 previously articulated statutory construction principles applied to Section 1158(a)(1)

– 44 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6499 Page 45 of 84

1 carry over and lead the Court to a similar interpretation of these provisions.

2

3

(a) Statutory Duty to Inspect

4

Section 1225 establishes that “[a]ll aliens . . . who are applicants for admission

5 or otherwise seeking admission or readmission to or transit through the United States

6 shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3) (emphasis

7 added). Section 1225(a)(3) provides a stronger textual argument that the duty to

8 inspect applies to aliens who may not yet be in the territorial United States. Referring

9 to the statute, albeit in passing, the Ninth Circuit has observed that “[a]ll applicants

10 for admission, whether they are at the border or already physically present inside the

11 country, must ‘be inspected by immigration officers’ who will determine their

12 admissibility.” Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1118 (9th Cir. 2007)

13 (quoting 8 U.S.C. § 1225(a)(3)). This interpretation makes sense because Section

14 1225(a)(3)’s duty to inspect reaches beyond “applicants for admission” to

15 encompass aliens who are “otherwise seeking admission.” 8 U.S.C. § 1225(a)(3).

16

17

Defendants fail to explain how, as a textual matter, Section 1225(a)(3)’s use

18 of the phrase “otherwise seeking admission . . . to. . . the United States” does not

19 include aliens who may be located outside the United States, but who are in the

20 process of seeking admission to the United States. Instead, Defendants contend that

21 the New Individual Plaintiffs were not seeking admission “in the manner prescribed

22 by statute and regulation.” (ECF No. 192-1 at 8 (citing 8 U.S.C. § 1225(a)(1), 8

23 C.F.R. § 235.1(a).) Defendants point to a regulation, which provides that

24 “[a]pplication to lawfully enter the United States shall be made in person to an

25 immigration officer at a U.S. port-of-entry when the port is open for inspection, or

26 as otherwise designated in this section.” 8 C.F.R. § 235.1(a). All New Individual

27 Plaintiffs, however, allege that they sought admission to the United States by

28 presenting him or herself to a CBP officer at a U.S. POE. (SAC ¶¶ 29–35, 154–56,

– 45 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6500 Page 46 of 84

1 162, 165–67, 174–75, 181, 185, 187–88, 193, 199.) Plaintiffs do not allege that the

2 POE was not open, but rather that CBP officers told them that the POE purportedly

3 did not have “capacity” to accept applications from asylum seekers. (Id. ¶¶ 83, 85–

4 86, 93– 94, 95–97, 98–102, 103–05, 153–202.) These allegations plausibly show

5 that these Plaintiffs were seeking admission into the United States. Defendants’

6 challenge to any Section 706(1) claims premised on the duty to inspect therefore

7 fails.

8

9

(b) Statutory and Regulatory Duties to Refer

10

Section 1225(b)(1)(A)(ii) provides that:

11

If an immigration officer determines that an alien (other than an

12

alien described in subparagraph (F)) who is arriving in the United

States or is described in clause (iii) is inadmissible under section

13

1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates

14

either an intention to apply for asylum under section 1158 of this

title or a fear of persecution, the officer shall refer the alien for an

15

interview by an asylum officer under subparagraph (B).

16

8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).

17 Unlike Section 1225(a)(1), Section 1225(b)(1)(A)(ii) uses the present progressive

18 phrase “to be arriving.” This phrase plainly encompasses aliens who are in the

19 process of arriving in the United States. As the Court has discussed, Defendants’

20 challenge to the New Individual Plaintiffs’ Section 706(1) claims largely turns on

21 rewriting the statute into the past tense. Properly applying the statute’s use of the

22 phrase alien “who is arriving in the United States” to the allegations of the New

23 Individual Plaintiffs blunts Defendants’ argument. This is equally true for the four

24 New Individual Plaintiffs who allege that they were crossing the international bridge

25 to the physical POE and were stopped midway on the bridge, yet who told the CBP

26 officers that they wanted to seek asylum in the United States.

27

28

The plain language of DHS’s own implementing regulations sweeps more

– 46 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6501 Page 47 of 84

1 broadly. 8 C.F.R. § 235.3(b)(4) imposes an analogous regulatory duty on the

2 inspecting officer not to proceed further with removal of an alien subject to the

3 expedited removal provisions if the alien indicates an intention to apply for asylum,

4 expresses a fear of persecution or torture, or expresses a fear of return to his or her

5 country. 8 C.F.R. § 235.3(b)(4). Two additional regulations directly bear on the

6 scope of 8 C.F.R. § 235.3(b)(4). By regulation, the expedited removal provisions of

7 the INA apply to “arriving aliens, as defined in 8 C.F.R. 1.2.” 8 C.F.R. §

8 235.3(b)(1)(i). 8 C.F.R. § 1.2 in turn defines “arriving alien” to mean, in relevant

9 part, “an applicant for admission coming or attempting to come into the United States

10 at a port-of-entry[.]” 8 C.F.R. § 1.2 (emphasis added). “A regulation should be

11 construed to give effect to the natural and plain meaning of its words.” Bayview

12 Hunters Point Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d 692, 698 (9th

13 Cir. 2004) (quoting Crown Pacific v. Occupational Safety & Health Review

14 Comm’n, 197 F.3d 1036, 1038 (9th Cir. 1999)). Here, by including aliens

15 “attempting to come into the United States at a [POE],” the regulation is broader

16 than 8 U.S.C. § 1225(a)(1)’s definition of “applicant for admission.” And these

17 regulations indicate that DHS—contrary to Defendants’ current position in this

18 litigation—interprets the statutory obligations under Section 1225 to apply to aliens

19 who have not yet come into the United States, but who are “attempting to” do so.

20 As the Court has already determined, the New Individual Plaintiffs were in the

21 process of seeking admission into the United States or otherwise attempting to do

22 so. Their allegations plainly show that they expressed an intent to seek asylum in

23 the United States to a CBP officer. Thus, the Court concludes that the New

24 Individual Plaintiffs have stated a claim for relief under the mandatory duties

25 reflected in 8 U.S.C. § 1225(b)(1)(A)(ii) and 8 C.F.R. § 235.3(b)(4).

26

27

C. Plaintiffs’ Section 706(2) APA Claims

28

Under Section 706(2) of the APA, a reviewing court must “hold unlawful and

– 47 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6502 Page 48 of 84

1 set aside agency action, findings, and conclusions found to be . . . arbitrary,

2 capricious, an abuse of discretion, or otherwise not in accordance with law; contrary

3 to constitutional right, power, privilege, or immunity; in excess of statutory

4 jurisdiction, authority, or limitations, or short of statutory right; [or] without

5 observance of procedure required by law.” 5 U.S.C. § 706(2)(A)–(D).

6

7

Plaintiffs assert Section 706(2) APA claims based on three sets of allegations.

8 (SAC ¶¶ 270–82.) First, Plaintiffs challenge the alleged Turnback Policy and

9 “sanctioning of CBP’s unlawful widespread pattern or practice of denying and

10 unreasonably delaying asylum seekers’ access to the asylum process” under Section

11 706(2)(C) and 706(2)(D). (Id. ¶¶ 272, 274.) Plaintiff allege that the Turnback Policy

12 is a final agency action under 5 U.S.C. § 704. (Id. ¶ 274.) Second, Plaintiffs

13 challenge the alleged turnbacks of Individual Plaintiffs and class members “at POEs

14 or along the U.S.-Mexico border without following the procedures mandated by the

15 INA and its implementing regulations” as unlawful conduct by CBP officials. (Id. ¶

16 273.) Plaintiffs allege that each instance when Defendants directly or constructively

17 deny Class Plaintiffs or purported class members access to the asylum process

18 constitutes a final agency action under 5 U.S.C. § 704. (Id. ¶ 275.) Third, like the

19 original complaint, Plaintiffs allege that Defendants have a pattern and practice of

20 unlawfully turning back asylum seekers at POEs.

21

22

Defendants raise three arguments for dismissal of Plaintiffs’ Section 706(2)

23 claims. First, Defendants argue that Plaintiffs fail to identify final agency action to

24 state APA claims for either the alleged Turnback Policy, the alleged widespread

25 pattern or practice of denying access to the asylum process, or any individual

26 turnbacks. Second, Defendants challenge the Section 706(2) claims of New

27 Individual Plaintiffs allegedly in Mexico at the time of their injuries. Defendants

28 argue that “metering is lawful” based on the Executive’s “inherent power” to control

– 48 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6503 Page 49 of 84

1 the Nation’s foreign affairs and two statutory provisions that Defendants contend

2 “authorize CBP officers to keep the [POEs] from being overwhelmed by an unsafe

3 number of pedestrians at a given time.” (ECF No. 192-1 at 9–12 (relying on 8 U.S.C.

4 § 1103(a)(3) and 6 U.S.C. § 202(2), (8).) Tucked into Defendants’ “metering is

5 lawful” argument is Defendants’ third argument that the asserted breadth of

6 Defendants’ authority under the same two statutory provisions makes Defendants’

7 conduct unreviewable under the APA. The Court addresses the arguments and

8 rejects them all.

9

10

1. Final Agency Action

11

The APA limits judicial review to agency action in the form of “the whole or

12 part of an agency rule, order, license, sanction, relief, or the equivalent or denial

13 thereof, or failure to act.” 5 U.S.C. § 551(13). An agency action must be

14 “reviewable by statute” or be a “final agency action for which there is no other

15 adequate remedy[.]” 5 U.S.C. § 704; Navajo Nation v. Dep’t of the Interior, 876

16 F.3d 1144, 1171 (9th Cir. 2017).

17

18

Two conditions must be satisfied for an agency action to be final: (1) “the

19 action must mark the consummation of the agency’s decisionmaking process—it

20 must not be of a merely tentative or interlocutory nature” and (2) “the action must

21 be one by which rights or obligations have been determined, or from which legal

22 consequences will flow.” United States Army Corps of Engineers v. Hawkes Co.,

23 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78

24 (1997)). “In determining whether an agency’s action is final, we look to whether [a]

25 the action amounts to a definitive statement of the agency’s position or [b] has a

26 direct and immediate effect on the day-to-day operations of the subject party, or [c]

27 if immediate compliance with the terms is expected.” Or. Nat. Desert Ass’n v.

28 United States Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (internal quotations

– 49 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6504 Page 50 of 84

1 and citations omitted). The focus is “on the practical and legal effects of the agency

2 action.” Id.

3

4

“[A]gency action . . . need not be in writing to be final and judicially

5 reviewable” pursuant to the APA. Al Otro Lado, Inc., 327 F. Supp. 3d at 1319

6 (quoting R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 184 (D.D.C. 2015)). An unwritten

7 policy can still satisfy the APA’s pragmatic final agency action requirement. See

8 Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.C. Cir. 2008)

9 (reviewing challenge to an agency’s “decision . . . to adopt [an unwritten] policy of

10 disclosing confidential information without notice” because such a policy was

11 “surely a consummation of the agency’s decisionmaking process” that impacted the

12 plaintiff’s rights); R.I.L.-R, 80 F. Supp. 3d at 174–176 (determining that plaintiffs

13 had shown a reviewable unwritten “DHS policy direct[ing] ICE officers to consider

14 deterrence of mass migration as a factor in their custody determinations” as

15 underlying the plaintiffs' detention). “[A] contrary rule ‘would allow an agency to

16 shield its decisions from judicial review simply by refusing to put those decisions in

17 writing.’” R.I.L.-R, 80 F. Supp. 3d at 184 (quoting Grand Canyon Tr. v. Pub. Serv.

18 Co. of N.M., 283 F. Supp. 2d 1249, 1252 (D.N.M. 2003)); see also Aracely, R. v.

19 Nielsen, 319 F. Supp. 3d 110, 138 (D.D.C. 2018) (“Despite Defendants’ assertions

20 to the contrary, agency action need not be in writing to be judicially reviewable as a

21 final action.”).

22

23

There are, of course, limitations on whether challenged agency action is

24 properly characterized as a policy, even if the policy is alleged to be unwritten. A

25 plaintiff may not simply attach a policy label to disparate agency practices or

26 conduct. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 870, 890 (1990); Bark v. U.S.

27 Forest Serv., 37 F. Supp. 3d 41, 50 (D.D.C. 2014) (concluding that although the

28 plaintiffs “have attached a [policy] label to their own amorphous description of the

– 50 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6505 Page 51 of 84

1 [agency’s] practices,” “a final agency action requires more.”); Lightfoot v. District

2 of Columbia, 273 F.R.D. 314, 326 (D.D.C. 2011) (“The question is not whether a

3 constellation of disparate but equally suspect practices may be distilled from the

4 varying experiences of the class; rather, Plaintiffs must first identify the ‘policy or

5 custom’ they contend violates [the law] and then establish that the ‘policy or custom’

6 is common to the class.”).

7

8

The parties dispute whether Plaintiffs have shown the existence of final

9 agency action for their Section 706(2) claims. Insofar as Plaintiffs seek to state

10 Section 706(2) claims for individual turnbacks, the Court has already advised

11 Plaintiffs that individual turnbacks—which fundamentally concern alleged failures

12 by CBP officers to discharge certain mandatory statutory duties—are appropriately

13 considered under Section 706(1). See Al Otro Lado, Inc., 327 F. Supp. 3d at 1309

14 (citing Rosario v. United States Citizenship, No. C15-0813JLR, 2017 WL 3034447,

15 at *7 n.6 (W.D. Wash. July 18, 2017); Leigh v. Salazar, No. 3:13-cv-00006-MMD-

16 VPC, 2014 WL 4700016, at *4 (D. Nev. Sept. 22, 2014) (construing a Section 706(2)

17 claim regarding an agency's alleged failure to act as in fact a Section 706(1) claim)).

18 This admonition applies equally to individual turnbacks that allegedly occurred

19 because of the Turnback Policy. Thus, the Court limits its present analysis to

20 whether the Turnback Policy and the alleged pattern or practice of illegal tactics by

21 CBP officers constitute final agency action sufficient for Plaintiffs to state an APA

22 claim.

23

24

a. Alleged Turnback Policy

25

In the wake of the Court’s dismissal of Plaintiffs’ previous Section 706(2)

26 claims, Plaintiffs have revised their factual allegations and their Section 706(2)

27 policy claim. Plaintiffs disavow a policy of categorical denials of access to the

28 asylum system. (ECF No. 210 at 10–11.) Instead, Plaintiffs contend that

– 51 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6506 Page 52 of 84

1 “Defendants, high-level agency officials, have adopted a policy mandating that CBP

2 officers at POEs drastically restrict the flow of asylum seekers at POEs along the

3 U.S.-Mexico border by turning them back to Mexico when they present themselves

4 for inspection, based on the false claims of ‘capacity constraints.’” (Id.) Plaintiffs

5 have sufficiently alleged the existence of such a policy that constitutes a final agency

6 action.

7

8

Plaintiffs allege that the Turnback Policy originated in 2016, was formalized

9 in 2018 as a culmination of the agency’s decision-making process, and is being

10 actively implemented along the border. (SAC ¶¶ 48–83 (explaining the initiation

11 and development of the Turnback Policy, based on publicly available materials and

12 limited discovery from CBP).) Plaintiffs point to various instances of U.S.

13 government officials’ acknowledgement of a policy concerning the ability of

14 noncitizens to access asylum when they present themselves at the U.S-Mexico

15 border. The SAC cites a DHS Office of Inspector General report indicating that

16 DHS has embraced a policy to limit access to the asylum process. (SAC ¶¶ 70–71.)

17 The SAC identifies statements from President Trump, former U.S. Attorney General

18 Jeff Sessions, then-DHS Secretary Kirstjen Nielsen, then-Commissioner

19 McAleenan, and other CBP employees, all of which are plausibly read to show the

20 existence of the alleged Turnback Policy. (SAC ¶¶ 60–66, 68–69, 71, 75.) The SAC

21 otherwise contains extensive allegations of alleged turnbacks of asylum seekers by

22 CBP officers at POEs along U.S.-Mexico border based on assertions of lack of

23 capacity, all of which plausibly point to the existence of an unwritten policy. (See

24 SAC ¶¶ 49, 75, 77–78, 83–201.)

25

26

Defendants’ arguments that Plaintiffs fail to establish a final agency action

27 miss the mark. For one, despite arguing that Plaintiffs have simply attached a

28 “policy” label to Defendants’ alleged conduct, Defendants’ briefing leaves the

– 52 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6507 Page 53 of 84

1 distinct impression that Defendants concede the existence of a policy from which

2 Plaintiffs’ alleged injuries flow. Whereas Plaintiffs refer to this policy as the

3 “Turnback Policy,” Defendants refer to the challenged conduct as one of “metering.”

4 (ECF No. 192-1 at 11–15; ECF No. 238 at 9–12.) Second, Defendants recycle an

5 argument that they raised in their first motion to dismiss Plaintiffs’ Section 706(2)

6 claims. Defendants argue once more that Plaintiffs have not plausibly alleged a

7 policy of categorical denials of asylum at POEs along the U.S-Mexico border. (ECF

8 No. 192-1 at 16, 30.) The Court previously dismissed Plaintiffs’ Section 706(2)

9 claims on this basis. But, as Plaintiffs expressly argue in opposition (ECF No. 210

10 at 10–11), they do not claim that the Turnback Policy is a policy to categorically

11 deny asylum seekers entry into the United States. Instead, Plaintiffs allege this is a

12 policy aimed at deterring or limiting asylum seekers from seeking asylum in the

13 United States. Defendants’ argument therefore lacks force based on the current

14 pleadings. Third, Defendants challenge Plaintiffs’ reliance on statements by U.S.

15 government officials as premised on a “limited selection of Defendants’ own

16 statements and communications[.]” (ECF No. 192-1 at 16–17.) Defendants’

17 argument is ostensibly based on the notion that there are other statements by U.S.

18 government officials that would defeat or undermine Plaintiffs’ claims regarding the

19 Turnback Policy. Such a merits challenge is inappropriate at this stage.

20 Accordingly, the Court concludes that Plaintiffs have adequately identified a final

21 agency action in the form of the Turnback Policy.

22

23

b. Alleged Pattern and Practice

24

Defendants move to dismiss Plaintiffs’ Section 706(2) claims insofar as the

25 claims concern the allegations that Defendants have “sanctioned” a practice and

26 pattern of denying access to the asylum procedure in the United States. Defendants

27 contend that “alleged misrepresentations, threats, intimidation, verbal and physical

28 abuse, coercion, ‘unreasonable delays,’ and racially discriminatory denial of access”

– 53 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6508 Page 54 of 84

1 are not final agency action because they “are not plausibly attributable to a DHS or

2 CBP Policy.” (ECF No. 238 at 8.) In previously dismissing Plaintiffs’ Section

3 706(2) claims, the Court observed that allegations regarding this conduct could not

4 state a Section 706(2) claim because Plaintiffs failed to connect the conduct to any

5 “unwritten policy” of Defendants. Al Otro Lado, 327 F. Supp. 3d at 1319. The

6 Court, however, does not find that this previous conclusion controls here. Plaintiffs

7 expressly allege that the pattern and practice of unlawful tactics and the Turnback

8 Policy “are designed” together to serve the Trump Administration’s “broader goal”

9 of deterring asylum seekers from accessing the asylum process and the allegations

10 show both co-existing. (SAC ¶¶2, 4, 48, 51–60, 84–106.) Plaintiffs’ allegations

11 regarding a “sanctioned” pattern and practice of CBP officers using certain tactics to

12 deny access to the asylum process dovetail with Plaintiffs’ allegations that the

13 Turnback Policy is based on false assertions of lack of capacity. Accordingly, the

14 Court finds that Plaintiffs’ allegations of an alleged pattern and practice are directly

15 linked with the alleged Turnback Policy such that it is not proper to dismiss

16 Plaintiffs’ Section 706(2) claims as to the alleged pattern and practice.

17

18

2. Asserted Unreviewable Agency Discretion

19

Defendants point to 8 U.S.C. § 1103(a)(1) and 6 U.S.C. § 202 as “especially

20 authoriz[ing] CBP officers to keep the ports from being overwhelmed by an unsafe

21 number of pedestrians at a given time,” thus requiring dismissal of Plaintiffs’ Section

22 706(2) claims. (ECF No. 192-1 at 13–14.) Defendants argue that the New Individual

23 Plaintiffs “make no attempt . . . to square the breadth of Defendants’ authority to

24 meter under these statutes with the APA’s prohibition on judicial review of agency

25 action ‘committed to agency discretion by law.’” (ECF No. 192-1 at 14 (quoting 5

26 U.S.C. § 701(a)(2)).) Because the APA precludes review of “agency action . . .

27 committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), the Court must

28 consider this argument before addressing the merits of Plaintiffs’ claim that the

– 54 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6509 Page 55 of 84

1 alleged Turnback Policy is unlawful.

2

3

Section 1103 establishes the powers and duties of the Secretary of Homeland

4 Security. As a general matter, “[t]he Secretary of Homeland Security shall be

5 charged with the administration and enforcement of this chapter and all other laws

6 relating to the immigration and naturalization of aliens[.]” 8 U.S.C. § 1103(a)(1).

7 Defendants point to Section 1103(a)(3) in particular, which provides that the

8 Secretary “shall establish such regulations; prescribe such forms of bond, reports,

9 entries, and other papers; issue such instructions; and perform such other acts as he

10 deems necessary for carrying out his authority under the provisions of this chapter.”

11 8 U.S.C. § 1103(a)(3) (emphasis added). 6 U.S.C. § 202 in turn provides, in relevant

12 part, that “[t]he Secretary shall be responsible for” “[s]ecuring the borders, territorial

13 waters, ports, terminals, waterways, and air, land, and sea transportation systems of

14 the United States, including managing and coordinating those functions transferred

15 to the Department [of Homeland Security] at ports of entry.” 6 U.S.C. § 202(2). “In

16 carrying out” this responsibility, the Secretary is responsible for “ensuring the

17 speedy, orderly, and efficient flow of lawful traffic and commerce.” 6 U.S.C. §

18 202(8). According to Defendants, Section 1103(a) and 202 are so broad, that they

19 do not offer any standard against which the challenged conduct may be evaluated

20 under the APA. (ECF No. 192-1 at 14–15.)

21

22

“[A]t the outset, there is reason to be skeptical of [Defendants’] position[.]”

23 Weyerhaeuser Co. v. United States Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018)

24 (Roberts, C.J.). There exists a “strong presumption that Congress intends judicial

25 review of administrative action.” Bowen v. Mich. Acad. of Family Physicians, 476

26 U.S. 667, 670 (1986); Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1652–53 (2015)

27 (“[L]egal lapses and violations occur, and especially so when they have no

28 consequence. That is why this Court has so long applied a strong presumption

– 55 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6510 Page 56 of 84

1 favoring judicial review of administrative action.”). “The presumption may be

2 rebutted only if the relevant statute precludes review, 5 U.S.C. § 701(a)(1), or if the

3 action is ‘committed to agency discretion by law,’ § 701(a)(2).” Weyerhaeuser Co.,

4 139 S. Ct. at 370. The exception in Section 701(a)(2) is read “quite narrowly,

5 restricting to ‘those rare circumstances where the relevant statute is drawn so that a

6 court would have no meaningful standard against which to judge the agency’s

7 exercise of discretion.’” Id. (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993));

8 see also Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476,

9 494 (9th Cir. 2018) (noting only “rare” agency actions fit this “narrow” committed-

10 to-agency-discretion exception to judicial reviewability). Defendants have failed to

11 show that judicial review is precluded under the relevant statutes.

12

13

Sections 1158 and 1225 cannot be nullified by general statutory provisions

14 regarding the Secretary’s authority unless Congress clearly intended so. See BNSF

15 Ry. Co. v. Cal. Dep’t of Tax & Fee Admin., 904 F.3d 755, 766 (9th Cir. 2018)

16 (“[W]here there is no clear intention otherwise, a specific statute will not be

17 controlled or nullified by a general one, regardless of the priority of enactment.”

18 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987))).

19 Congress has already determined how immigration officers are to “manage the flow”

20 of arriving aliens who express to an immigration officer an intention to apply for

21 asylum or a fear of persecution. Section 1225 imposes mandatory obligations to

22 inspect all aliens who are applicants for admission or otherwise seeking admission

23 and further imposes certain screening duties for asylum seekers. Notably, 8 U.S.C.

24 § 1103(a)(1) expressly charges the Secretary with the enforcement of “all other laws

25 relating to the immigration,” which certainly includes the provisions at issue in this

26 case.

27

28

In the face of these specific statutes, Defendants endeavor to argue that any

– 56 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6511 Page 57 of 84

1 constraints on their authority under 8 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225 are

2 not at issue in this case and thus these statutory provisions do not bear on the

3 Secretary’s asserted exercise of discretionary authority under 8 U.S.C. § 1103(a)(3)

4 and 6 U.S.C. § 202(2). Defendants first contend that because the New Individual

5 Plaintiffs were not in the United States at the time of their alleged injuries, Plaintiffs’

6 argument that “Sections 1158 and 1225 limit the scope of the Secretary’s authority

7 under 8 U.S.C. § 1103(a)(3) and 6 U.S.C. § 202” “has no force.” (ECF No. 238 at

8 9.) Insofar as Defendants raise this argument against the Turnback Policy, this

9 argument fails because, at a minimum, Plaintiff Al Otro Lado—a domestic

10 Plaintiff—joins the Individual Plaintiffs in challenging Defendants’ conduct. The

11 argument otherwise fails because the Court has rejected Defendants’ underlying

12 premise regarding the scope of Sections 1158 and 1225 in relation to the New

13 Individual Plaintiffs.

14

15

Defendants further argue that the interpretative canon that specific statutes

16 limit general statutes “does not apply here, because the processes mandated by

17 Section 1225 do not implicate the authority conferred by Sections 1103(a)(3) and

18 202.” (ECF No. 238 at 10.) This argument makes no sense. There is no logical way

19 to treat the Secretary’s asserted authority and charge to secure the border as mutually

20 exclusive from the procedures Section 1225 mandates. Section 202(2) expressly

21 refers to “ports.” 6 U.S.C. § 202(2). Both Sections 1185(a)(1) and 1225 refer to

22 aliens who arrive in the United States, including at a “port of arrival.” Defendants

23 elsewhere argue that applications for admission must be made at ports of entry. 8

24 C.F.R. § 235.1(a) (“[a]pplication to lawfully enter the United States shall be made

25 in person to a U.S. immigration officer at a U.S. port-of-entry.”); (ECF No. 192-1 at

26 9 (citing 8 C.F.R. § 235.1(a)). Thus, the relevant INA provisions governing the

27 duties of immigration officers with respect to aliens who seek admission at POEs

28 plainly bear on how the Secretary may exercise whatever authority the Secretary has

– 57 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6512 Page 58 of 84

1 to manage POEs. Defendants conspicuously do not argue that these provisions do

2 not provide a means to assess the legality of Defendants’ conduct.

3

4

Accordingly, the Court rejects Defendants’ argument that Plaintiffs’ Section

5 706(2) claims are unreviewable on the asserted basis of discretion committed to the

6 agency. Whatever authority the Secretary may possess pursuant to the general grants

7 of authority in Sections 1103(a)(1) and 202(2) over the “flow of traffic” across the

8 border, Congress’s general allowance for the Secretary to “perform such other acts

9 as [she] deems necessary for carrying out” her authority to administer and enforce

10 the INA, 8 U.S.C. § 1103(a)(3), cannot entail the authority to rewrite specific

11 congressional mandates or to pretend that such mandates do not exist. “The power

12 of executing the laws . . . does not include a power to revise clear statutory terms

13 that turn out not to work in practice,” and it is thus a “core administrative-law

14 principle that an agency may not rewrite clear statutory terms to suit its own sense

15 of how the statute should operate.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,

16 328 (2014).

17

18

3. The Unlawfulness of the Alleged Turnback Policy

19

The core of Plaintiffs’ Section 706(2) claims is that the alleged Turnback

20 Policy is “in excess of statutory jurisdiction, authority, or limitations” and “without

21 observance of procedure required by law.” (SAC ¶¶ 271–72 (citing 5 U.S.C. §

22 706(2)(C), (D)).) In particular, Plaintiffs claim that the alleged Turnback Policy

23 contravenes the congressionally-established procedure set forth in 8 U.S.C. §

24 1158(a)(1) and 8 U.S.C. § 1225.

25

26

Plaintiffs offer two principal theories why the alleged policy violates the

27 procedures that Congress established in these provisions. First, Plaintiffs contend

28 that Defendants’ alleged conduct acting pursuant to the Turnback Policy is ultra

– 58 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6513 Page 59 of 84

1 vires because it “ignore[s] the mandatory procedures to inspect and process asylum

2 seekers that Congress has put in place.” (ECF No. 210 at 17.) Second, Plaintiffs

3 contend that the alleged Turnback Policy is unlawful because it is “impermissibly

4 aimed at deterrence” and “based on false claims of lack of capacity.” (Id. at 20.)

5 Although Plaintiffs treat these theories as distinct bases to find the alleged Turnback

6 Policy unlawful, (id. at 16–22), the Court finds that they cannot be disentangled from

7 each other. Construing them together, the Court concludes that Plaintiffs have

8 sufficiently alleged that the Turnback Policy is unlawful.10

9

10

As an initial matter, Defendants resist application of 8 U.S.C. § 1158(a)(1)

11 and 8 U.S.C. § 1225 to assess the legality of the alleged Turnback Policy.

12 Defendants reiterate their argument that the challenged conduct is entirely lawful

13 under 8 U.S.C. § 1103(a)(3) and 6 U.S.C. § 202 because 8 U.S.C. § 1158(a)(1) and

14 8 U.S.C. § 1225 have “no force as to the Extraterritorial Plaintiffs and the putative

15 class members they seek to represent” who, according to Defendants, “do not allege

16 that they were ever present in the United States.” (ECF No. 238 at 9.) These

17 arguments falter at this juncture for reasons the Court has already discussed. 8

18 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225 qualify the authority set forth in 8 U.S.C.

19 § 1103(a)(3) and 6 U.S.C. § 202.

20

21

Next, relying on Sections 1103(a)(3) and 202(2), Defendants contend that

22 there are valid reasons why CBP officers cannot unwaveringly adhere to the

23 procedures set forth in 8 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225. According to

24 Defendants, “port management is a complex task[.]” (ECF No. 192-1 at 13.)

25

26

10 Because the Court concludes that these theories are together sufficient for

27 Plaintiffs to state Section 706(2) claims, the Court declines to address Plaintiffs’

28

alternative and third argument that the alleged Turnback Policy is unlawful because it unreasonably delays the processing of asylum seekers. (ECF No. 210 at 22–23.)

– 59 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6514 Page 60 of 84

1 Defendants contend that “CBP necessarily could not ‘secure’ or ‘manage’ a port if,

2 in addition to its other mission responsibilities, any alien without appropriate travel

3 documents could cross the border whenever she chooses and immediately trigger

4 Defendants’ statutory duties to ‘inspect[],’ ‘refer,’ or ‘detain[]’ her under section

5 1225.” (Id. (emphasis in original).) Defendants argue the Sections 1103(a)(3) and

6 202(2) authorize CBP officers “to permit an alien without appropriate travel

7 documentation to cross the border only if the port has the capacity to safely and

8 humanely process her application for admission and hold her for further

9 proceedings,” (ECF No. 192-1 at 13 (emphasis added)), and “especially authorize

10 CBP officers to keep ports from being overwhelmed by an unsafe number of

11 pedestrians entering at any time,” (id). Consistent with this view about their

12 authority over “port management,” Defendants urge the Court to conclude that the

13 alleged conduct does not occur ultra vires, exceed the scope of their authority, or

14 without observance of the procedure required by law. (ECF No. 192-1 at 13.)

15

16

The Court acknowledges that it is entirely possible that there may exist

17 potentially legitimate factors that prevent CBP officers from immediately

18 discharging the mandatory duties set forth in 8 U.S.C. § 1158(a)(1) and 8 U.S.C. §

19 1225. Even Plaintiffs acknowledge as much. (ECF No. 210 at 21.) And the Court

20 acknowledges that federal agencies and the individuals who lead them can face co-

21 existing obligations that Congress has chosen to place on the agency, obligations that

22 may at times be viewed as competing with each other and competing for the

23 resources an agency has.

24

25

The problem with Defendants’ reliance on Sections 1103(a)(3) and 202(2) is

26 that Plaintiffs allege that the asserted concerns over capacity are merely a pretext to

27 avoid discharging the duties set forth in 8 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225

28 and deter asylum seekers from seeking asylum in the United States. Plaintiffs offer

– 60 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6515 Page 61 of 84

1 numerous factual allegations on this point. (SAC ¶¶ 4–6, 48, 61, 66, 72–73, 76–78,

2 109, 111, 274.) And, contrary to Defendants’ suggestion regarding complex port

3 management, Plaintiffs contend that Defendants’ Turnback Policy “screen[s] out

4 asylum seekers from other applications for admission approaching POEs and send[s]

5 them back to an uncertain fate in Mexico[.]” (ECF No. 210 at 17.) In other words,

6 the purported exercise of authority under Sections 1103(a)(3) and 202(2) specifically

7 targets asylum seekers—not any other aliens who may be crossing into the United

8 States through POEs.

9

10

In the face of these allegations, Defendants challenge the sufficiency of

11 Plaintiffs’ deterrence allegations as a factual matter by largely relying on materials

12 outside of the pleadings. (ECF No. 192-1 at 15; ECF No. 238 at 10.) Indeed, in their

13 opening brief, Defendants argue that “[t]he record before the Court shows clearly

14 that the Secretary and her designees have deemed it necessary to manage the flow of

15 pedestrian traffic when port resources are strained.” (ECF No. 192-1 at 15 (citing

16 Exs. 1–6).) There is no “record” before the Court on a Rule 12(b)(6) motion, but

17 rather the Court is limited to a review of the pleadings and any documents attached

18 to them. United States v. Ritchie, 342 F.3d 903, 907–09 (9th Cir. 2003). Defendants’

19 reliance on non-pleadings materials underscores that Defendants’ arguments about

20 the truthfulness of Plaintiffs’ deterrence allegations are fundamentally merits

21 arguments that the Court cannot resolve at this stage.11

22

23

Assuming the truth of Plaintiffs’ deterrence allegations, the remaining issue is

24 whether an alleged motive to deter asylum seekers from seeking asylum in the

25 United States is unlawful. Plaintiffs argue that it is. Plaintiffs’ fundamental

26

27

11 For this reason, the Court also rejects Defendants’ attempt to direct the

28

Court to factual assertions made in a declaration filed in a different case. (ECF No. 192-1 at 5, 13.)

– 61 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6516 Page 62 of 84

1 contention is that “[t]he plain language and intent of the INA’s asylum provision

2 unambiguously preclude Defendants from adopting a policy or otherwise engaging

3 in a practice of denying individuals access to the U.S. asylum process at POEs, even

4 if Defendants prevent those asylum seekers from physically crossing the U.S.-

5 Mexico border.” (ECF No. 210 at 17.) On this issue, Defendants argue that Plaintiffs

6 offer nothing more than a “legal conclusion.” (ECF No. 238 at 11.) The Court,

7 however, finds nothing conclusory about Plaintiffs’ assertions of illegality.

8

9

Congress has enacted a scheme that mandates inspection of all aliens seeking

10 admission to the United States and mandates referral to an asylum officer of asylum

11 seekers who present themselves at a POE and indicate their intention to apply for

12 asylum or a fear of persecution. 8 U.S.C. § 1225(a)(3); 8 U.S.C. § 1225(b)(1)(A)(i).

13 Although this statutory scheme treats asylum seekers differently, it does so only in

14 the sense that such aliens are to be promptly identified and their asylum claims are

15 to be appropriately considered. As Plaintiffs and Amici Immigration Law Professors

16 observe (ECF No. 210 at 19; ECF No. 221-1 at 5–6), the “uniform asylum policy”

17 driving the 1980 Refugee Act, an act which replaced the previous ad hoc refugee

18 and asylum system, was “[a] fundamental belief that the granting of asylum is

19 inherently a humanitarian act distinct from the normal operation and administration

20 of the immigration process.” Aliens and Nationality; Asylum and Withholding of

21 Deportation Procedures, 55 Fed. Reg. 30674-01, 30675 (July 27, 1990) (to be

22 codified at 8 CFR Parts 3, 103, 208, 236, 242, and 253) (emphasis added); see also

23 E. Bay Sanctuary Covenant, 909 F.3d at 1230 (observing that “[i]n 1980, Congress

24 codified our obligation to receive persons who are ‘unable or unwilling to return to’

25 their home countries ‘because of persecution or a well-founded fear of persecution

26 on account of race, religion, nationality, membership in a particular social group, or

27 political opinion.’ (quoting 8 U.S.C. §§ 1101(a)(42), 1158(b)(1))). Congress’s intent

28 to prescribe a uniform asylum procedure remains reflected in the current asylum

– 62 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6517 Page 63 of 84

1 procedure. 8 U.S.C. § 1158; 8 U.S.C. § 1225; see also E. Bay Sanctuary Covenant,

2 909 F.3d at 1230.

3

4

Turning back prospective asylum applicants pursuant to an alleged executive

5 policy that seeks to deter asylum seekers through false assertions of lack of capacity

6 is plausibly inconsistent with and violative of the scheme Congress enacted. This

7 conclusion follows from a comparison of Section 1157 and Section 1158. Although

8 Defendants have elsewhere pointed to Section 1157 as a purported limitation on the

9 extraterritorial scope of 8 U.S.C. § 1158(a)(1), Defendants overlook a key distinction

10 between Sections 1157 and 1158 that cuts against the lawfulness of adopting a policy

11 to deter asylum seekers. Section 1157 expressly authorizes the President to set

12 numerical limits for aliens who may be admitted as refugees into the United States

13 on an annual basis. 8 U.S.C. § 1157(a)(2). Neither Section 1158(a)(1), nor Section

14 1225(b), however, establishes numerical limits on the total number of aliens who

15 may seek asylum pursuant to the asylum procedure these statutes establish. See 8

16 U.S.C. § 1158; 8 U.S.C. § 1225. Pretextual assertions of “lack of capacity” to turn

17 away asylum seekers who seek access to a POE and express an intent to apply for

18 asylum directly to a CBP officer suggest the existence of an unlawful de facto

19 numerical limit on the number of asylum applicants that finds no support in Section

20 1158 or Section 1225. The imposition of such a limit, through false assertions of

21 lack of capacity, surely violates the scheme Congress enacted, particularly when

22 contrasted with the separate scheme in Section 1157. See Util. Air Regulatory Grp.,

23 573 U.S. at 327 (“The power of executing the laws necessarily includes both

24 authority and responsibility to resolve some questions left open by Congress that

25 arise during the law’s administration. But it does not include a power to revise clear

26 statutory terms that turn out not to work in practice.”).

27

28

Defendants nevertheless question that even if “any alleged metering is

– 63 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6518 Page 64 of 84

1 ‘motivated by deterrence,’ such an aim would not be inappropriate.” (ECF No. 238

2 at 11–12 n.8.) Most curiously, Defendants support this assertion by citing “Aliens

3 Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for

4 Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018),” a rule for which the Ninth

5 Circuit upheld a preliminary injunction barring its enforcement. See E. Bay

6 Sanctuary Covenant v. Trump, 909 F.3d 1219, 1250 (9th Cir. 2018), stay denied by,

7 Trump v. E. Bay Sanctuary Covenant, 139 S. Ct. 782, 2018 WL 6713079 (U.S.

8 Supreme Court Dec. 21, 2018).

9

10

In East Bay Sanctuary Covenant, the Ninth Circuit affirmed a preliminary

11 injunction barring implementation of a Rule promulgated by the Secretary of DHS

12 and the Attorney General. The Rule provided that “[f]or applications filed after

13 November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a

14 presidential proclamation or other presidential order suspending or limiting the entry

15 of aliens along the southern border with Mexico that is issued pursuant to [§

16 1182(f)].” 83 Fed. Reg. 55,952 (to be codified at 8 C.F.R. § 208.13(c)(3) (DHS) and

17 8 C.F.R. § 1208.13(c)(3) (DOJ)). The Rule coincided with a presidential

18 proclamation suspending the “entry of any alien into the United States across the

19 international boundary between the United States and Mexico,” but exempting from

20 that suspension “any alien who enters the United States at a port of entry and properly

21 presents for inspection.” Addressing Mass Migration Through the Southern Border

22 of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 9, 2018).

23

24

In relevant part, the East Bay Sanctuary Covenant majority found the Rule

25 likely to be unlawful under Section 706(2)(A) because the Rule “is inconsistent with

26 § 1158(a)(1).” E. Bay Sanctuary Covenant, 909 F.3d at 1247. Although the majority

27 noted that “[r]ather than restricting who may apply for asylum, the rule of decision

28 facially conditions only who is eligible to receive asylum,” the majority found this

– 64 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6519 Page 65 of 84

1 to be a distinction without a difference. Id. at 1247. The majority concluded that:

2 “the technical differences between applying for and eligibility for asylum are of no

3 consequence to a refugee when the bottom line—no possibility of asylum—is the

4 same.” Id. at 1247–48. The majority acknowledged that “[w]e are acutely aware of

5 the crisis in the enforcement of our immigration laws,” but concluded that “the

6 Attorney General may not abandon [a congressional] scheme because he thinks it is

7 not working well. . . . but continued inaction by Congress is not a sufficient basis

8 under our Constitution for the Executive to rewrite our immigration laws.” Id. at

9 1250–51.

10

11

The key lesson of East Bay Sanctuary Covenant is that the Executive cannot

12 “amend the INA”—specifically Section 1158—through executive action to establish

13 a procedure at variance with the scheme Congress chose. Id. at 1250. Much like the

14 challenged rule in East Bay Sanctuary Covenant, Defendants’ alleged Turnback

15 Policy directly concerns the statutory scheme for asylum seekers that Congress has

16 established. The Turnback Policy directly concerns the Section 1225(b)(1) aspect

17 of this procedure for aliens seeking admission to the United States. As Plaintiffs

18 persuasively argue, there is no room for deterrence under the scheme Congress has

19 enacted. An alleged policy that is premised on and implements such a motive

20 contravenes the clear purpose, intent, and text of the statutory scheme that enables

21 aliens arriving at POEs, including those in the process of doing so, to apply for

22 asylum. Accordingly, the Court concludes that Plaintiffs have stated Section 706(2)

23 claims premised on the unlawfulness of the alleged Turnback Policy.

24

25 III. The New Individual Plaintiffs’ Fifth Amendment Due Process Claims

26

The Fifth Amendment’s Due Process Clause provides that “[n]o person shall

27 . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const.

28 amend. V. The Individual Plaintiffs assert a protected Fifth Amendment due process

– 65 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6520 Page 66 of 84

1 interest in the various provisions of the INA that allows aliens to seek asylum in the

2 United States. (SAC ¶¶ 225–26, 283–93.) Specifically, the Individual Plaintiffs

3 allege that they possess “the right to be processed at a POE and granted meaningful

4 access to the asylum process” under 8 U.S.C. §§ 1158(a)(1), 1225(a)(3),

5 1225(b)(1)(A)(ii), 1225(b)(1)(B), and 8 C.F.R. § 235.3(b)(4). Defendants’ motion

6 to dismiss presents two issues. First, the Court must revisit the propriety of judicial

7 review of Plaintiffs’ constitutional claims independently of the APA. Second, the

8 Court must turn to the merits of Defendants’ dismissal arguments, in which

9 Defendants contend that the New Individual Plaintiffs seek to impermissibly apply

10 the Constitution extraterritorially and, alternatively, the New Individual Plaintiffs

11 were not denied any process that these Plaintiffs claim was due. The Court addresses

12 each issue in turn.

13

14

A. Non-APA Judicial Review of Constitutional Claims

15

In its prior dismissal order, the Court determined that “[w]hile a right to seek

16 judicial review of agency action may be created by a separate statutory or

17 constitutional provision, once created it becomes subject to the judicial review

18 provisions of the APA unless explicitly excluded.” Al Otro Lado, 327 F. Supp. 3d

19 at 1316. The parties dispute what the Court’s prior ruling should mean for the INA

20 and Fifth Amendment Due Process Clause claims that Plaintiffs raise independently

21 of the APA. Plaintiffs request that, to the extent the Court believes it resolved the

22 issue of reviewability of these claims in its prior dismissal order, the Court should

23 revise its previous order pursuant to Rule 54(b) to clarify that Plaintiffs’ INA and

24 Fifth Amendment due process claims may be reviewed even if Plaintiffs cannot state

25 APA claims. (ECF No. 210 at 26.) Defendants argue that Plaintiffs “offer no reason

26 to depart from the correct application of the APA to this case” and expressly argue

27 that the Court “should also reject Plaintiffs’ request to adjudicate their freestanding

28 INA claims under the concept of ‘nonstatutory review’ instead of the APA.” (ECF

– 66 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6521 Page 67 of 84

1 No. 238 at 18.)

2

3

As an initial matter, the Court clarifies that its prior statement regarding the

4 scope of judicial review flowed from the nature of the parties’ prior dismissal

5 briefing. Defendants did not move to dismiss Plaintiffs’ constitutional claims on the

6 merits, but rather limited their merits briefing to the sufficiency of Plaintiffs’ APA

7 claims. Plaintiffs in turn presented arguments regarding their APA claims, yet in

8 doing so, relied on case law regarding liability under 42 U.S.C. § 1983. Faced with

9 this briefing, the Court’s prior dismissal analysis necessarily turned on the APA’s

10 strictures.

11

12

The present motion to dismiss briefing alters the calculus. The parties have

13 briefed the merits of Plaintiffs’ constitutional due process claims, implicitly

14 assuming that the Court can and should review those claims independently of the

15 APA’s strictures. Although Defendants argue that Plaintiffs cannot raise

16 freestanding INA claims independently of the APA’s strictures, Defendants

17 conspicuously do not make a similar argument with respect to Plaintiffs’ Fifth

18 Amendment Due Process claims in their opening brief. (Compare ECF No. 192-1

19 at 18–22 (dismissal arguments regarding Plaintiffs’ due process claims) and ECF

20 No. 238 at 15 with ECF No. 192-1 at 23 (arguing that “Extraterritorial Plaintiffs’

21 INA claims must be evaluated under the APA, as the Court described, or not at

22 all.”).)12

23

24

12 Defendants argue for the first time in their reply brief that even if the

25 Plaintiffs state procedural due process claims, review of these claims must proceed

under the APA. (ECF No. 238 at 15.) The apparent reason for this argument is the 26 assumption that if Plaintiffs fail to state a claim in accordance with the APA’s

27 strictures (i.e., final agency action, identification of discrete agency action for

28

Section 706(1) claims, etc.), then this Court cannot address the merits of Plaintiffs’ constitutional claims. This argument underscores for the Court that non-APA review

– 67 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6522 Page 68 of 84

1

Guided by more recent precedent, the Court finds it necessary to clarify the

2 propriety of judicial review independently of the APA’s strictures. The Court’s prior

3 dismissal order observed that, at times, courts have resolved only APA claims

4 concerning agency action, even when a plaintiff asserts constitutional claims

5 premised on statutory provisions that underlie the APA claims. See Graham v. Fed.

6 Emergency Mgmt. Agency, 149 F.3d 997, 1001 n.2 (9th Cir. 1998) (“declin[ing] to

7 address the plaintiffs’ Fifth Amendment claim and affirm[ing] the district court’s

8 denial of this claim” because “plaintiffs’ due process claim is premised on their

9 assertion that they ‘have a statutory entitlement to the [individual and family grant]

10 disaster assistance program’” and thus “they may obtain all the relief they request

11 under the provisions of the APA.”); Al Otro Lado, 327 F. Supp. 3d at 1316 (relying

12 on Graham).

13

14

Recently, the Ninth Circuit has made clear that although “the APA is the

15 general mechanism by which to challenge final agency action,” “this does not mean

16 that the APA forecloses other causes of action.” Sierra Club v. Trump, No. 19-

17 16102, —F.3d—, 2019 WL 2865491, at *20 (9th Cir. July 3, 2019). And relying on

18 Navajo Nation v. Department of the Interior, 876 F.3d 1144 (9th Cir. 2017)—a case

19 that figured prominently in the Court’s prior determination that the APA waives the

20 United States’ sovereign immunity for any claims for nonmonetary relief, whether

21 asserted under the APA or not—Sierra Club instructs that Navajo Nation as well as

22 an earlier Ninth Circuit decision “clearly contemplate that claims challenging agency

23 actions—particularly constitutional claims—may exist wholly apart from the

24 APA.’” Sierra Club, —F.3d—, 2019 WL 2865491, at *20 (also relying on

25 Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989) for this

26 proposition). Thus, the Court concludes that review of the New Individual Plaintiffs’

27

28 of Plaintiffs’ constitutional claims is appropriate.

– 68 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6523 Page 69 of 84

1 constitutional claims, independently of their APA claims, is appropriate.

2

3

B. The New Individual Plaintiffs State Due Process Claims

4

The New Individual Plaintiffs’ claims, like those of the other Individual

5 Plaintiffs, are fundamentally procedural due process claims. “The requirements of

6 procedural due process apply to the deprivation of interests encompassed by [the

7 Due Process Clause’s] protection of liberty and property.” Bd. of Regents v. Roth,

8 408 U.S. 564, 569 (1972). “To assert a procedural due process claim under the Fifth

9 Amendment, [a plaintiff] must first establish a constitutionally protected interest.”

10 Stanley v. Gonzales, 476 F.3d 653, 660 (9th Cir. 2007); Foss v. Nat’l Marine

11 Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998) (noting that “[t]he threshold

12 question” in a procedural due process claim is whether the plaintiff has a

13 constitutionally protectible interest). “[T]he plaintiff must have more than a

14 unilateral expectation of it; instead, she must have a legitimate claim of entitlement.”

15 Serra v. Lappin, 600 F.3d 1191, 1196 (9th Cir. 2010). If the plaintiff shows the

16 existence of a constitutionally protected interest, the plaintiff must further establish

17 “a denial of adequate procedural protections.” Foss, 161 F.3d at 588.

18

19

Defendants do not contest that if any New Individual Plaintiff sufficiently

20 alleges that he or she was in the United States, such a New Individual Plaintiff may

21 assert a Fifth Amendment Due Process Clause claim against Defendants’ alleged

22 conduct. Indeed, “[i]t is well established that aliens legally within the United States

23 may challenge the constitutionality of federal and state actions.” Ibrahim v. Dep’t

24 of Homeland Sec., 669 F.3d 983, 994 (9th Cir. 2012). Thus, to the extent any New

25 Individual Plaintiffs sufficiently plead that they were in the United States at the time

26 of their alleged injuries, Defendants’ argument, by its own terms, does not apply.

27

28

With respect to the remaining New Individual Plaintiffs, Defendants raise two

– 69 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6524 Page 70 of 84

1 arguments for why they fail to state Fifth Amendment Due Process Clause claims.

2 Defendants first argue that these New Individual Plaintiffs possess no protected

3 interests under the Due Process Clause in the INA statutory and regulatory

4 provisions in this case because “the Fifth Amendment does not apply to aliens

5 outside the United States[.]” (ECF No. 192-1 at 18.) Second, Defendants argue that

6 “[e]ven assuming arguendo that the Fifth Amendment applie[s] to [these] Plaintiffs

7 while they were outside the United States, they still fail to state a cognizable Fifth

8 Amendment claim.” (Id. at 21.)

9

10

1. The Fifth Amendment Applies

11

Defendants’ principal challenge to the New Individual Plaintiffs’ Fifth

12 Amendment Due Process Clause claims is that “the Fifth Amendment does not apply

13 to aliens outside the United States, particularly where they do not allege they have

14 any previous voluntary connection to the United States.” (ECF No. 192-1 at 18;

15 ECF No. 238 at 14–15.) Defendants’ challenge raises a threshold issue about the

16 proper scope and application of the Constitution.

17

18

As an initial matter, the Court rejects Defendants’ formalistic, territorial

19 argument that the Due Process “Clause’s reference to ‘person[s],’ while broad, does

20 not include non-resident aliens outside the United States.” (ECF No. 192-1 at 19

21 (citing Johnson v. Eisentrager, 339 U.S. 763, 770 (1950)).) Defendants’ reliance on

22 Eisentrager is understandable because there is language in the decision that places a

23 constitutional premium on territorial presence in the United States, suggesting that

24 such presence is the only basis for a noncitizen to receive constitutional protection

25 that a federal court in turn has the power to enforce. See Eisentrager, 339 U.S. at

26 771 (“[I]n extending constitutional protections beyond the citizenry, the Court has

27 been at pains to point out that it was the alien’s presence within its territorial

28 jurisdiction that gave the Judiciary power to act.”); id. at 777–78 (“[T]hese prisoners

– 70 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6525 Page 71 of 84

1 at no relevant time were within any territory over which the United States is

2 sovereign, and the scenes of their offense, their capture, their trial and their

3 punishment were all beyond the territorial jurisdiction of any court of the United

4 States.”).

5

6

The Supreme Court, however, squarely rejected bright-line rules regarding the

7 extraterritorial application of the Constitution in Boumediene v. Bush, 553 U.S. 723

8 (2008). In Boumediene, the Supreme Court permitted alien plaintiffs who the U.S.

9 government had designated as enemy combatants and who were detained at the

10 United States Naval Station in Guantanamo, Cuba to seek habeas relief. In doing so,

11 the Supreme Court rejected the government’s proposed bright-line rule that the

12 plaintiffs were not entitled to seek habeas relief as aliens who had committed acts

13 outside the United States as a “formal, sovereignty-based test.” Id. at 764. The

14 Supreme Court stated that “questions of extraterritoriality turn on objective factors

15 and practical concerns, not formalism.” Id. at 764. To resolve such questions, the

16 Supreme Court directed the federal courts to examine the “‘particular circumstances,

17 the practical necessities, and the possible alternatives which Congress had before it’

18 and, in particular, whether judicial enforcement of the provision would be

19 ‘impracticable and anomalous.’” Id. at 762 (quoting Reid v. Covert, 354 U.S. 1, 74–

20 75 (1957) (Harlan, J., concurring)).

21

22

Defendants rely heavily on United States v. Verdugo-Urquidez, 494 U.S. 259

23 (1990), and Ibrahim v. Department of Homeland Security, 669 F.3d 983 (9th Cir.

24 2012), to argue that the New Individual Plaintiffs must nevertheless allege a “prior

25 significant voluntary connection” with the United States to receive protection under

26 the Fifth Amendment Due Process Clause. The Court briefly discusses these cases

27 and then explains why they do not foreclose the New Individual Plaintiffs’ claims.

28

– 71 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6526 Page 72 of 84

1

In Verdugo-Urquidez, the Supreme Court addressed the question “whether the

2 Fourth Amendment applies to the search and seizure by United States agents of

3 property that is owned by a nonresident alien and located in a foreign country.” 494

4 U.S. at 261. The Court held that the “nonresident alien” plaintiff in that case had

5 “no previous significant voluntary connection with the United States” and therefore

6 had no right to assert a Fourth Amendment challenge to the searches and seizures of

7 his property by United States agents in Mexico. Id. at 271 (emphasis added). In

8 Ibrahim, the Ninth Circuit expressly relied on Verdugo-Urquidez to permit a

9 Malaysian citizen who was precluded from entering the U.S., who had previously

10 been in the U.S. for four years on a student visa and who alleged that she was

11 mistakenly placed on a No-Fly List and other terrorist watchlists, to raise Fourth and

12 Fifth Amendment claims against the federal government. The Ninth Circuit

13 expressly observed that “the border of the United States is not a clear line that

14 separates aliens who may bring constitutional challenges from those who may not.”

15 Ibrahim, 669 F.3d at 995 (collecting cases including Boumediene). The Ninth

16 Circuit held that, “[u]nder Boumediene and Verdugo, we hold that Ibrahim has

17 ‘significant voluntary connection’ with the United States. She voluntarily

18 established a connection to the United States during her four years at Stanford

19 University while she pursued her Ph.D. She voluntarily departed from the United

20 States to present the results of her research at a Stanford-sponsored conference. The

21 purpose of her trip was to further, not to sever, her connection to the United States,

22 and she intended her stay abroad to be brief.” Id. at 997. Defendants contend that

23 because the New Individual Plaintiffs lack a “previous voluntary significant

24 connection” with the United States, they have no protected due process interests.

25

26

The fundamental problem with Defendants’ reliance on the “previous

27 voluntary significant connection” test set forth in Verdugo-Urquidez and applied in

28 Ibrahim is that the test does not constitute a ceiling on the application of the

– 72 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6527 Page 73 of 84

1 Constitution to aliens. Plaintiffs direct this Court to the Ninth Circuit’s recent

2 decision in Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018), a case in which the

3 panel majority relied on Boumediene to conclude that an alien located outside the

4 United States could press a Fourth Amendment claim against a U.S. border officer

5 who, standing on the U.S. side of the border, allegedly shot and killed a Mexican

6 teenager located on the Mexican side of the border. The Rodriguez majority

7 underscored that “[n]either citizenship nor voluntary submission to American law is

8 a prerequisite for constitutional rights[,]” rather, “citizenship is just one of several

9 non-dispositive factors to consider.” 899 F.3d at 729. The Rodriguez majority

10 determined that Verdugo-Urquidez’s “voluntary significant connection” test did not

11 apply in the circumstances of the case because “unlike the American agents in

12 Verdugo-Urquidez, who acted on Mexican soil, Swartz [the defendant U.S. border

13 officer] acted on American soil” and “[j]ust as Mexican law controls what people do

14 there, American law controls what people do here.” Id. at 731 (brackets added). The

15 Rodriguez majority underscored that “[t]he practical concerns in Verdugo-Urquidez

16 about regulating conduct on Mexican soil also do not apply here.” Id.

17

18

Defendants passingly refer to Boumediene only once in their opening brief

19 and do not acknowledge Rodriguez. (ECF No. 192-1 at 19–20 (observing that

20 Ibrahim cites Boumediene); id. at 18–22 (full argument regarding extraterritorial

21 application without reference to Rodriguez.) Faced with Plaintiffs’ opposition brief,

22 Defendants attempt to limit the scope and application of Boumediene in this case.

23 Defendants first contend that “Boumediene is the only case extending a

24 constitutional right to ‘noncitizens detained by our Government in territory over

25 which another country maintains de jure sovereignty.’” (ECF No. 238 at 13 (quoting

26 Boumediene, 533 U.S. at 770).) Defendants then argue that “this Court must follow”

27 “pre-Boumediene law holding that the Due Process Clause does not extend to aliens

28 without property or presence in the sovereign territory of the United States[.]” (Id.)

– 73 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6528 Page 74 of 84

1

The Court rejects both of Defendants’ arguments. For one, Rodriguez alone

2 renders Defendants’ first argument factually erroneous. Defendants’ erroneous

3 argument appears to stem from Defendants’ attempt to dismiss Rodriguez as

4 irrelevant in a footnote. (ECF No. 238 at 14 n.9 (stating that “[i]f any Ninth Circuit

5 case applies here, it is Ibrahim, not Rodriguez.”).) The Court does not understand

6 Defendants’ dismissive argument. Rodriguez is as much binding precedent on this

7 Court as is Ibrahim. And Rodriguez, applying Boumediene, indicates that Verdugo-

8 Urquidez’s “previous voluntary significant connection” test—and, by extension,

9 Ibrahim’s application of that test—do not alone control the question of constitutional

10 protection for aliens, particularly when the challenged conduct concerns the conduct

11 of U.S. officers acting on U.S. soil. Rodriguez, 899 F.3d at 731. Second, and more

12 critically, Defendants’ attempt to limit Boumediene simply ignores Boumediene’s

13 analysis. Boumediene expressly rejected a reading of Eisentrager that would

14 establish a “formalistic, sovereignty-based test” and expressly narrowed

15 Eisentrager’s reach, observing that “the United States lacked both de jure

16 sovereignty and plenary control” over the area where the petitioner prisoners were

17 located and “[n]othing in Eisentrager says that de jure sovereignty is or has ever

18 been the only relevant consideration in determining the geographic reach of the

19 Constitution or of habeas corpus.” Boumediene, 553 U.S. at 763–64. Thus, both

20 Boumediene and Rodriguez apply here.

21

22

Appropriately relying on both Boumediene and Rodriguez, Plaintiffs

23 persuasively argue that there is nothing “‘impracticable [or] anomalous’ in applying

24 elementary due process protection at the U.S. border.” (ECF No. 210 at 25.) For

25 one, as an objective matter, the New Individual Plaintiffs’ allegations do not show

26 conduct occurring wholly in foreign territory. Defendants attempt to argue that

27 “[t]he United States does not have de jure or de facto sovereignty over Mexican

28 border towns[.]” (ECF No. 238 at 14.) Insofar as Plaintiffs’ constitutional claims

– 74 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6529 Page 75 of 84

1 concern the Turnback Policy, allegedly formed by high-level federal officials,

2 Defendants’ argument falters on its own terms because surely such a policy was not

3 developed in Mexican border towns. (See SAC ¶ 287 (referring to Turnback Policy

4 as violation procedural due process rights); id. ¶¶ 50–60).) Insofar as the New

5 Individual Plaintiffs’ constitutional claims concern individual turnbacks, all New

6 Individual Plaintiffs offer allegations regarding conduct of CBP officers who

7 presumably were located on U.S. soil.

8

9

The allegations of the four New Individual Plaintiffs who were stopped in the

10 middle of the international bridge between Mexico and the United States and denied

11 access by the CBP officers on the U.S. side of the bridge also concerns conduct

12 occurring on territory subject to U.S. sovereign authority. (SAC ¶¶ 29–31, 154, 162,

13 173–74.) Defendants cite an 1886 U.S.-Mexico treaty, (ECF No. 238 at 14), which

14 expressly provides that “[i]f any international bridge have been or shall be built

15 across either of the rivers named, the point on such bridge exactly over the middle of

16 the main channel as herein determined shall be marked by a suitable monument,

17 which shall denote the dividing line for all the purposes of such bridge,

18 notwithstanding any change in the channel which may thereafter supervene.”

19 Convention Between the United States of America and the United States of Mexico

20 Touching the International Boundary Line Where It Follows the Bed of the Rio

21 Grande and the Rio Colorado, U.S.-Mex., arts. I, IV, Nov. 12, 1884, 24 Stat. 1011,

22 1886 WL 15138, at *2. New Individual Plaintiffs Roberto Doe, Maria Doe, and Juan

23 and Úrsula Doe allege that they “sought access to the asylum process by presenting

24 [themselves]” at the Hidalgo, Texas POE and Laredo, Texas POE and “encountered

25 CBP officials in the middle of the bridge” between Mexico and the U.S. POE and

26 “told them” they “wanted to seek asylum in the United States.” (SAC ¶¶ 29–31,

27 154–55, 162, 174.) Pursuant to the very treaty on which Defendants rely, these

28 allegations plausibly show conduct by CBP officers occurring on the U.S. side of the

– 75 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6530 Page 76 of 84

1 international bridge subject to U.S. sovereignty.

2

3

Second, as Plaintiffs argue, “the practical necessities” also warrant application

4 of the Due Process Clause in this case. (ECF No. 210 at 25–26.) The New Individual

5 Plaintiffs’ claims concern alleged denials of procedural due process by U.S.

6 immigration officers upon whom Congress has placed certain statutory obligations,

7 all in furtherance of the asylum protections Congress has also chosen to extend to

8 certain “arriving aliens” that express an intent to apply for asylum or fear of

9 persecution. And their claims concern adoption of an alleged policy that aims to

10 impede access to the statutorily-mandated asylum procedure. The lesson of

11 Boumediene is that the political branches do not enjoy the prerogative to “switch the

12 Constitution on or off at will.” Boumediene, 533 U.S. at 765. Appropriately

13 applying Boumediene and Rodriguez, the Court rejects Defendants’ threshold

14 argument that none of the New Individual Plaintiffs can even avail themselves of the

15 Fifth Amendment in this case.

16

17

2. Plaintiffs Have Plausibly Alleged Denials of Procedural Due

18

Process

19

For the reasons set forth in the Court’s statutory analysis, the Court can swiftly

20 reject Defendants’ second dismissal argument. Defendants concede that “[w]here

21 plaintiffs premise their procedural due process challenge on having a protected

22 interest in a statutory entitlement, ‘the protections of the Due Process Clause . . .

23 extend only as far as the plaintiffs’ statutory rights.’” (ECF No. 192-1 at 21 (quoting

24 Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1001 & n.2 (9th Cir.

25 1998)).) This concession all but forecloses dismissal of the New Individual

26 Plaintiffs’ due process claims at this juncture. Congress has the power to prescribe

27 the terms and conditions upon which aliens may come to this country. Kleindienst

28 v. Mandel, 408 U.S. 753, 766 (1972). “In the enforcement of [congressional]

– 76 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6531 Page 77 of 84

1 policies, the Executive Branch of the Government must respect the procedural

2 safeguards of due process[.]” Id. at 767. Here, as the Court has discussed in its

3 construction of the relevant statutory provisions, Congress has plainly established

4 procedural protections for aliens like the New Individual Plaintiffs in this case, who

5 allege that they were in the process of arriving to the United States and expressed an

6 intent to seek asylum. The New Individual Plaintiffs have plausibly alleged that

7 immigration officers failed to discharge their mandatory duties under the relevant

8 provisions. Consequently, the Court concludes that the New Individual Plaintiffs

9 have stated procedural process claims and the Court denies Defendants’ motion to

10 dismiss these claims.

11

12 IV. ATS Claims

13

The ATS provides in full that “[t]he district courts shall have original

14 jurisdiction of any civil action by an alien for a tort only, committed in violation of

15 the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. All Individual

16 Plaintiffs and Al Otro Lado seek to raise ATS claims for Defendants’ alleged

17 “violation of the non-refoulement doctrine.” (SAC ¶¶ 294–303.) Plaintiffs

18 specifically allege that:

19

CBP officials have systematically denied, or unreasonably

20

delayed, access to the asylum process by Class Plaintiffs, and the

asylum seekers they represent, in violation of customary

21

international law reflected in treaties which the United States has

22

ratified and implemented: namely, the specific, universal and

23

obligatory norm of non-refoulement, which has also achieved the status of a jus cogens norm, and which forbids a country from

24

returning or expelling an individual to a country where he or she

25

has a well-founded fear of persecution and/or torture . . .

26 (SAC ¶ 295.) Plaintiffs contend that Defendants’ alleged violations have caused

27 them harm by forcing them to return to Mexico or other countries where they face

28 threats of further persecution. (Id. ¶ 296.) Al Otro Lado also raises ATS claims for

– 77 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6532 Page 78 of 84

1 these alleged violations on the ground that its core mission is harmed through

2 resource diversion. (Id. ¶ 300.)

3

4

As a preliminary matter, Defendants argue that Plaintiffs’ “non-refoulement

5 claims are [not] actionable as presented” based on the Court’s prior ruling that

6 “Plaintiffs ‘may not’ seek judicial review of Defendants’ conduct ‘independently’ of

7 the APA’s judicial review framework.” (ECF No. 192-1 at 23.) Defendants misstate

8 the Court’s prior ruling, which did not speak to the Court’s jurisdiction over

9 Plaintiffs’ ATS claims. The ATS is a “strictly jurisdictional statute” in its own right

10 that “creates no new causes of action.” Sosa v. Alvarez-Machain, 542 U.S. 692, 713,

11 742 (2004); Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011) (noting the

12 ATS “has been interpreted as a jurisdiction statute only”). Thus, independently of

13 the APA, the relevant issue is whether Plaintiffs can state claims under the ATS over

14 which the Court has jurisdiction.

15

16

A. No Jurisdiction Exists for Al Otro Lado’s ATS Claims

17

Insofar as Defendants move to dismiss ATS claims that Organizational

18 Plaintiff Al Otro Lado raises, (ECF No. 192-1 at 28 (citing SAC ¶¶ 294–303)), the

19 Court finds that such claims must be dismissed for lack of subject matter jurisdiction

20 because“Al Otro Lado is corporation.” (ECF No. 238 at 20.) Although the fact that

21 Al Lado Lado is a corporation does not preclude Al Otro Lado’s assertion of APA

22 claims, its status as a corporation has jurisdictional consequences under the ATS.

23

24

Under its plain language, the ATS provides for federal jurisdiction only over

25 civil actions “by an alien.” 28 U.S.C. §1350. Thus, irrespective of the substantive

26 cause of action that underlies an asserted ATS claim, a federal court lacks

27 jurisdiction under the ATS over claims asserted by anyone or anything other than an

28 alien. See Serra v. Lappin, 600 F.3d 1191, 1198 (9th Cir. 2010) (“The ATS admits

– 78 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6533 Page 79 of 84

1 no cause of action by non-aliens.”); Yousuf v. Samantar, 552 F.3d 371, 375 n.1 (4th

2 Cir. 2009) (“To the extent that any of the claims under the ATS are being asserted

3 by plaintiffs who are American citizens, federal subject-matter jurisdiction may be

4 lacking.”); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) (same); Sikhs for

5 Justice Inc. v. Indian Nat’l Cong. Party, 17 F. Supp. 3d 334, 345 (S.D.N.Y. 2014)

6 (“[J]urisdiction is inapplicable because Plaintiff Sikhs is not an ‘alien’ under the

7 ATS[.]”); S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 113 (D.D.C. 2012)

8 (“[T]he American corporate Plaintiffs, as non-aliens, lack standing to bring claims

9 under the ATS”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F.

10 Supp. 2d 633, 661 (S.D.N.Y. 2006) (concluding that an institutional plaintiff that is

11 a United States corporation “is not an alien and may not bring suit under the ATS.”),

12 aff’d, 582 F.3d 244 (2d Cir. 2009). Al Otro Lado is concededly not an alien.

13 Accordingly, the Court grants Defendants’ motion to dismiss Organizational

14 Plaintiff Al Otro Lado’s ATS claims lack of jurisdiction.

15

16

B. The Individual Plaintiffs’ ATS Claims

17

Defendants initially moved to dismiss the ATS claims of only the New

18 Individual Plaintiffs and Al Otro Lado. (ECF No. 192-1 at 22–25.) In reply,

19 Defendants extend the scope of their motion to dismiss Plaintiffs’ ATS claims to

20 encompass the Original Individual Plaintiffs as well. (ECF No. 238 at 16–18.) To

21 resolve Defendants’ present motion, the Court will not venture beyond Defendants’

22 actual arguments. Reviewing these arguments, the Court finds that Defendants have

23 failed to show that the ATS claims must be dismissed at this juncture.

24

25

1. The Asserted Law of Nations Norm

26

Defendants first argue that (1) the ATS “has no bearing in this case” because

27 Plaintiffs “have not brought a civil action for a tort[.]” (ECF No. 192-1 at 25, ECF

28 No. 238 at 16–17.) Defendants point to the ATS’s use of the word “tort” and argue

– 79 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6534 Page 80 of 84

1 that Plaintiffs have no ATS claim here because they have not sued for a “tort.” (ECF

2 No. 192-1 at 25, ECF No. 238 at 16–17.) Defendants’ argument misconstrues the

3 ATS.

4

5

By its terms, the ATS “enable[s] federal courts to hear claims in a very limited

6 category defined by the law of nations and recognized at common law.” Sosa, 542

7 U.S. at 712. For this reason, it should not be disputed that “[t]he ATS ‘grants

8 jurisdiction over two types of claims: those for violations of a treaty of the United

9 States, and those for violations of the law of nations.’” Aragon v. Ku, 277 F. Supp.

10 3d 1055, 1064 (D. Minn. 2017) (quoting 14A Charles Alan Wright & Arthur R.

11 Miller, Federal Practice and Procedure § 3661.2 (4th ed., Apr. 2017 Update)); see

12 also Al-Tamimi v. Adelson, 916 F.3d 1, 11 (D.C. Cir. 2019) (recognizing that “[a]n

13 ATS claim . . . incorporates the law of nations”). When a plaintiff seeks to plead an

14 ATS claim based on an alleged violation of the law of nations, the plaintiff must

15 identify an international norm that is “specific, universal, and obligatory.” Sosa, 542

16 U.S. at 732. As a general matter, “[c]ourts ascertain customary international law ‘by

17 consulting the works of jurists, writing professedly on public law; or by the general

18 usage and practice of nations; or by judicial decisions recognizing and enforcing that

19 law.’” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714–15 (9th Cir.

20 1992) (quoting United States v. Smith, 18 U.S. 153, 160–61 (1820)).

21

22

Plaintiffs allege that the duty of non-refoulement is a jus cogens norm

23 recognized by the law of nations. (SAC ¶¶ 227–35.)13 And, in opposition to

24

25

13 “As defined in the Vienna Convention on the Law of Treaties, a jus cogens

norm, also known as a ‘peremptory norm’ of international law, ‘is a norm accepted 26 and recognized by the international community of states as a whole as a norm from

27 which no derogation is permitted and which can be modified only by a subsequent

28

norm of general international law having the same character.’” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna

– 80 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6535 Page 81 of 84

1 dismissal, Plaintiffs elaborate on these allegations under the applicable standard,

2 locating the asserted jus cogens norm in (1) a range of fundamental international

3 treaties, including Article 33 of the Convention on the Status of Refugees and its

4 Protocol (“Refugee Convention”), Article 13 of the International Covenant on Civil

5 and Political Rights (“ICCPR”), and Article 3 of the Convention Against Torture

6 and Other Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”); (2)

7 statements by international law bodies, including the Executive Committee of the

8 United Nations High Commissioner for Refugees (UNHCR); and (3) international

9 law commentators. (ECF No. 210 at 27–30.) Defendants simply fail to grapple with

10 Plaintiffs’ allegations or arguments on whether non-refoulement is a norm that is

11 recognized by the law of nations.14

12

13 Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679). Courts determine whether a jus cogens norm exists by looking to the
14 works of jurists, writing professedly on public law; or by the general usage and
15 practice of nations; or by judicial decisions recognizing and enforcing that law, but courts must make the additional determination “whether the international
16 community recognizes the norm as one ‘from which no derogation is permitted.’”
17 Id. (quoting Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988)).
18

19

14 None of Defendants’ dismissal arguments grapples with the Plaintiffs’

fundamental contention that non-refoulement is a jus cogens norm whose violation 20 is actionable. Defendants initially moved to dismiss the “non-refoulement claims”

21 of the New Individual Plaintiffs allegedly in Mexico at the time of their alleged

injuries on three grounds. First, Defendants argued that each of the treaties the SAC 22 identifies is not independently enforceable and separately analyzed each treaty.

23 (ECF No. 192-1 at 23–24.) Second, Defendants argued that the Refugee Act of 1980

does not provide Plaintiffs with any independent cause of action in this Court 24 because the Act only allows claims to be adjudicated defensively before an

25 immigration judge or affirmatively before USCIS. (Id. at 24.) These arguments

elide the ATS claims that Plaintiffs have actually pleaded. Plaintiffs’ opposition 26 brief expressly observes that Defendants’ opening brief fundamentally misconstrues

27 Plaintiffs’ ATS claims. (ECF No. 210 at 27.) And the SAC is fairly clear in alleging

28

Plaintiffs’ theory that the duty of non-refoulement is a jus cogens norm whose violation is actionable—not that each individual treaty cited in the SAC is a separate

– 81 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6536 Page 82 of 84

1

The only somewhat applicable argument Defendants raise is that “even if the

2 Extraterritorial Plaintiffs had raised tort claims, Defendants’ alleged conduct does

3 not come close to the type of egregious ‘violations of the law of nations’ even

4 potentially within the ATS’s grant of jurisdiction.” (ECF No. 192-1 at 25 (citing

5 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) as “allowing wrongful death

6 claim to proceed against Paraguayan police supervisor alleged to have ‘deliberate[ly]

7 tortured’ an individual in Paraguay ‘under color of official authority’”). The inquiry

8 under the ATS, however, does not turn on subjective assertions about whether the

9 challenged conduct is “egregious” or not. The Court can only understand

10 Defendants’ current briefing to concede, at this stage, the core contention underlying

11 Plaintiffs’ ATS claims that there exists a recognized duty of non-refoulement that

12 qualifies as an international law norm under the law of nations.

13

14

2. The INA Does Not “Preempt” Plaintiffs’ ATS Claims

15

Defendants’ second argument is that the existence of a “comprehensive and

16 exclusive scheme of legislation” under the INA “preempt[s] the enforcement of a

17 freestanding international law norm of non-refoulement in this Court.” (ECF No.

18 238 at 17–18.) Curiously, Defendants raise this argument while arguing in the same

19 breath that the New Individual Plaintiffs fall outside the scope of the relevant INA

20 provisions in this case. If this latter argument is to be credited, then there is no

21 comprehensive and exclusive scheme under which these Plaintiffs could seek relief

22 and Defendants’ argument collapses.

23

24

In any event, the Court has already rejected Defendants’ argument. The Court

25 expressly stated in the prior dismissal order, “[t]o the extent that Defendants contend

26 that the ATS claims must be dismissed because a remedy is available under domestic

27

28 basis for Plaintiffs’ ATS claims.

– 82 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6537 Page 83 of 84

1 law, the Court rejects that argument. ‘Contrary to defendants’ argument, there is no

2 absolute preclusion of international law claims by the availability of domestic

3 remedies for the same alleged harm.’” Al Otro Lado, 327 F. Supp. 3d at n.10

4 (quoting Hawa Abdi Jama v. United States INS, 22 F. Supp. 2d 353, 364 (D.N.J.

5 1998)). Defendants’ latest assertion of their prior argument under a “preemption”

6 label overlooks Jawa’s express recognition that “there is nothing in the [ATS] which

7 limits its applications to situations where there is no relief available under domestic

8 law” and Jawa’s conclusion that “[t]here is no reason why plaintiffs cannot seek

9 relief on alternative grounds.” Jama v, 22 F. Supp. 2d at 364. Defendants otherwise

10 direct the Court to cases in which federal courts rejected an alien’s attempt to rely

11 on international law norms to seek immigration relief and, in doing so, stated that

12 “where a controlling executive or legislative act does exist, customary international

13 law is inapplicable.” See Cortez-Gastelum v. Holder, 526 Fed. App’x 747 (9th Cir.

14 2013); Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996). Defendants’ reliance

15 on this caselaw underscores for the Court that, at a minimum, Plaintiffs may plead

16 their ATS claims as alternative claims in the event that their INA-based claims fail.

17 See Fed. R. Civ. P. 8(a)(3) (“A pleading that states a claim for relief must contain . .

18 . a demand for the relief sought, which may include relief in the alternative or

19 different types of relief.”); Fed. R. Civ. P. 8(d)(3) (“A party may state as many

20 separate claims . . . as it has, regardless of consistency.”). Thus, the Court rejects

21 Defendants’ “preemption” argument.

22

23

* * *

24

Nevertheless, the Court observes that Plaintiffs do not cite a single case in

25 which another federal court has recognized that the duty of non-refoulement is

26 actionable through a federal court’s ATS jurisdiction. The paucity of such caselaw

27 should at least give this Court pause on whether it is appropriate to recognize the

28 particular ATS cause of action the Individual Plaintiffs raise in this case. Having

– 83 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 278 Filed 07/29/19 PageID.6538 Page 84 of 84

1 reviewed Defendants’ present dismissal arguments, however, the Court cannot

2 conclude that it lacks jurisdiction over the Individual Plaintiffs’ ATS claims.

3 Because the ATS is a jurisdictional statute, Defendants are not foreclosed from

4 challenging the Plaintiffs’ ATS claims at a later stage. See Fed. R. Civ. P. 12(h)(3)

5 (recognizing that subject matter jurisdiction can be assessed “at any time”); see also

6 Baloco v. Drummond Co., 767 F.3d 1229, 1234 (11th Cir. 2014) (affirming dismissal

7 of ATS claims under Rule 12(b)(1)); Best Med. Belg., Inc. v. Kingdom of Belg., 913

8 F. Supp. 2d 230, 236 (E.D. Va. 2012) (“The [ATS] is jurisdictional in nature and

9 also subject to challenge by a Rule 12(b)(1) motion.”); In re Chiquita Brands Int’l,

10 Inc., 792 F. Supp. 2d 1301, 1354 (S.D. Fla. 2011) (observing that “a complaint that

11 fails to sufficiently plead the elements of an ATS claim is analyzed under Rule

12 12(b)(1)”).

13

14

CONCLUSION & ORDER

15

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN

16 PART Defendants’ motion to dismiss the SAC. The Court GRANTS Defendants’

17 motion as follows:

18

1. The Court DISMISSES WITHOUT LEAVE TO AMEND the

19 Section 706(1) claims of the New Individual Plaintiffs for alleged failures to take

20 agency action required by 8 U.S.C. § 1225(b)(2)(A).

21

2. The Court DISMISSES WITH PREJUDICE Organizational Plaintiff

22 Al Otro Lado’s ATS claim for lack of subject matter jurisdiction.

23

The Court otherwise DENIES Defendants’ motion to dismiss the SAC.

24 Defendants SHALL ANSWER the SAC no later than August 16, 2019. Given the

25 length of time this case has been pending at the motion to dismiss stage, the Court

26 will not grant extensions of the deadline.

27

IT IS SO ORDERED.

28 DATED: July 29, 2019

– 84 –

17cv2366

 
 Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6541 Page 1 of 84

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

SOUTHERN DISTRICT OF CALIFORNIA

8
9 AL OTRO LADO, INC.; ABIGAIL DOE, BEATRICE DOE, CAROLINA
10 DOE, DINORA DOE, INGRID DOE, 11 ROBERTO DOE, MARIA DOE,
JUAN DOE, ÚRSULA DOE, 12 VICTORIA DOE, BIANCA DOE, 13 EMILIANA DOE, AND CÉSAR
DOE, individually and on behalf of all 14 others similarly situated,

Case No. 17-cv-02366-BAS-KSC AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THE SECOND AMENDED COMPLAINT1 [ECF No. 192]

15

16

v.

Plaintiffs,

17 KEVIN MCALEENAN, Acting
18 Secretary of U.S. Department of Homeland Security, in his official
19 capacity, et al.,

20

Defendants.

21

22

In this case, Organizational Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”), an

23 organization that helps individuals seek asylum in the United States, and thirteen

24 Individual Plaintiffs—Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid

25 Doe, Roberto Doe, Maria Doe, Juan Doe, Úrsula Doe, Victoria Doe, Bianca Doe,

26 Emiliana Doe, and César Doe—challenge conduct that they allege is “designed to

27 1 This Amended Order amends certain citations in the Court’s July 29, 2019
28 order. (ECF No. 278.) It is substantively identical to the July 29, 2019 order.

– 1 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6542 Page 2 of 84

1 serve the Trump [A]dministration’s broader, publicly proclaimed goal of deterring

2 individuals from seeking access to the asylum process.” (ECF No. 189 Second Am.

3 Compl. (“SAC”) ¶ 4.) According to Plaintiffs, U.S. Customs and Border Protection

4 (“CBP”) officials “have systematically restricted the number of asylum seekers who

5 can access the U.S. asylum process through POEs along the U.S.-Mexico border.”

6 (Id. ¶ 48.) Plaintiffs seek to hold various Defendant federal officials2 that have

7 authority over immigration enforcement liable in their official capacities for an

8 alleged pattern or practice by CBP officers of denying asylum seekers at ports of

9 entry (“POEs”) along the U.S.-Mexico border access to the U.S. asylum process, and

10 an alleged formalized policy designed for the same end, which Plaintiffs refer to as

11 the Turnback Policy.

12

13

In the months following the Court’s grant in part and denial in part of

14 Defendants’ motion to dismiss the original complaint, see Al Otro Lado, Inc. v.

15 Nielsen, 327 F. Supp. 3d 1284 (S.D. Cal. 2018), Plaintiffs filed the operative Second

16 Amended Complaint (“SAC”). Like the original complaint, Plaintiffs allege in the

17 SAC that since late 2016 there is an alleged pattern and practice amongst CBP

18 officials at POEs along the U.S-Mexico border to “deny[] asylum seekers access to

19 the asylum process” “through a variety of illegal tactics.” (SAC ¶ 2.) Five original

20 Individual Plaintiffs—Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora

21 Doe, and Ingrid Doe (the “Original Individual Plaintiffs”)—once more allege that

22

23

2 The SAC names the following Defendants in their official capacities: (1)

Kirstjen M. Nielsen, Secretary, U.S. Department of Homeland Security (“DHS”), 24 (2) Kevin McAleenan, Commissioner, U.S. Customs and Border Protection

25 (“CBP”), and (3) Todd C. Owens, Executive Assistant Commissioner, Office of

Field Operations, U.S. CBP. (SAC ¶¶ 36–39.) In the time since the SAC’s filing in 26 November 2018, at least two defendants have changed. Pursuant to Rule 25(d), the

27 Court hereby substitutes (1) Kevin McAleenan as Acting Secretary of DHS in place

28

of Nielsen and (2) John P. Sanders as the Acting Commissioner of CBP. Defendants shall notify the Court in the event any further substitution is warranted.

– 2 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6543 Page 3 of 84

1 they were subjected to these tactics when CBP officials denied them access to the

2 U.S. asylum process at various POEs.3 Unlike the original complaint, the SAC now

3 alleges that as early as 2016, Defendants were implementing a policy to restrict the

4 flow of asylum seekers at the San Ysidro POE. Plaintiffs allege that Defendants

5 formalized this policy in spring 2018 in the form of the border-wide Turnback

6 Policy, an alleged “formal policy to restrict access to the asylum process at POEs by

7 mandating that lower-level officials directly or constructively turn back asylum

8 seekers at the border,” including through pretextual assertions that POEs lack

9 capacity to process asylum seekers. (Id. ¶¶ 3, 48–83.) Eight new Individual

10 Plaintiffs—Roberto Doe, Maria Doe, Juan and Úrsula Doe, Victoria Doe, Bianca

11 Doe, Emiliana Doe, and César Doe (the “New Individual Plaintiffs”)—have joined

12 this lawsuit, alleging that they were subjected to this Turnback Policy. Both the

13 illegal tactics and the alleged Turnback Policy have resulted in many asylum seekers,

14 particularly those from Central America, who present themselves at POEs along the

15 U.S.-Mexico border being “turned back by” and “at the instruction of” CBP officials.

16 (Id. ¶ 58.)

17

18

Based on the conduct alleged, Plaintiffs press claims for violations of various

19 Immigration and Nationality Act (“INA”) provisions, which Plaintiffs call “the U.S.

20 asylum process.” In connection with the alleged INA violations, Plaintiffs assert

21 claims under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(1),

22 706(2), and claims directly under the Fifth Amendment Due Process Clause for

23 alleged procedural due process violations. All Plaintiffs further assert claims under

24 the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, on the ground that the alleged

25

26

3 For reasons unknown to the Court, Original Individual Jose Doe was dropped

27 from this suit in the First Amended Complaint (“FAC”) filed nearly two months after

28

the Court’s prior dismissal order and he is not a plaintiff to the SAC filed a month after the FAC. (ECF Nos. 176, 189.)

– 3 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6544 Page 4 of 84

1 conduct violates a duty of non-refoulement, which Plaintiffs contend is an

2 international law norm that “forbids a country from returning or expelling an

3 individual to a country where he or she has a well-founded fear of persecution and/or

4 torture[.]” Defendants move to dismiss the SAC under Rule 12(b)(6) for failure to

5 state a claim. (ECF Nos. 192, 238.) Plaintiffs oppose. (ECF No. 210.) The parties

6 presented oral argument to the Court. (ECF No. 259; ECF No. 260, Hr’g Tr.) In

7 addition to the parties’ submissions, six amicus briefs have been submitted with the

8 Court’s permission. (ECF Nos. 215, 216, 219, 221, 223.)4

9

10

For the reasons herein, the Court grants in part and denies in part Defendants’

11 motion to dismiss the SAC.

12

13

BACKGROUND

14 I. Statutory and Regulatory Background

15

8 U.S.C. § 1158(a)(1) is this case’s statutory bedrock. It provides that:

16

Any alien who is physically present in the United States or who

17

arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States

18

19 4The briefs are: (1) Amicus Curiae Brief of the States of California,
20 Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maryland,

21 Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New

York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington in 22 support of Plaintiffs, (ECF No. 215-1); (2) Amicus Curiae Brief of Amnesty

23 International in Opposition to Defendants’ Motion to Dismiss, (ECF No. 216-1); (3)

Amicus Brief of Certain Members of Congress in Support of Plaintiffs’ Opposition 24 to Defendants’ Motion to Dismiss the Second Amended Complaint, (ECF No. 219-

25 1); (4) Brief of Certain Immigration Law Professors as Amici Curiae in Support of

Plaintiffs’ Opposition to Defendants’ Motion to Partially Dismiss the Second 26 Amended Complaint, (ECF No. 221-1); (5) Amicus Curiae Brief of Nineteen

27 Organizations Representing Asylum Seekers, (ECF No. 223-2); and (6) Brief of

28

Amici Curiae Kids in Need of Defense, et al., in Support of Plaintiffs’ Opposition to Motion to Dismiss, (ECF No. 225-1).)

– 4 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6545 Page 5 of 84

1

after having been interdicted in international or United States

waters), irrespective of such alien’s status, may apply for asylum

2

in accordance with this section or. . . section 1225(b)[.]

3

8 U.S.C. § 1158(a)(1).

4

This case turns on the Section 1225(b) asylum procedure that Section 1158

5 incorporates. Section 1225 sets forth, in relevant part, certain inspection duties of

6 immigration officers, which undergird additional specific duties that arise when

7 certain aliens express an intent to seek asylum in the United States or a fear of

8 persecution.

9

10

Section 1225(a) establishes the general inspection duty: “[a]ll aliens . . . who

11 are applicants for admission or otherwise seeking admission . . . to . . . the United

12 States shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3). In

13 language that echoes Section 1158(a)(1), Section 1225(a) defines as an “applicant

14 for admission” “[a]n alien present in the United States who has not been admitted or

15 who arrives in the United States (whether or not at a designated port of arrival

16 including an alien who is brought to the United States after having been interdicted

17 in international or United States waters)[.]” 8 U.S.C. § 1225(a)(1). An

18 implementing regulation more broadly defines “arriving alien” as “an applicant for

19 admission coming or attempting to come into the United States at a port-of-entry, or

20 an alien seeking transit through the United States at a port-of-entry, or an alien

21 interdicted in international or United States waters and brought into the United States

22 by any means, whether or not to a designated port-of-entry, and regardless of the

23 means of transport.” 8 C.F.R. § 1.2. By regulation, “application to lawfully enter

24 the United States shall be made in person to an immigration officer at a U.S. port-

25 of-entry when the port is open for inspection, or as otherwise” provided. 8 C.F.R. §

26 231.1(a).

27

28

Section 1225(b) sets forth two sets of procedures that apply to aliens “arriving

– 5 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6546 Page 6 of 84

1 in the United States.” First, pursuant to the procedure under Section 1225(b)(1), an

2 arriving alien may be summarily “removed from the United States without further

3 hearing or review” “if an immigration officer determines” that the alien “is

4 inadmissible” for making certain fraudulent or misleading representations or for not

5 having valid entry or travel documents. 8 U.S.C. § 1225(b)(1)(A)(i); Thuraissigiam

6 v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1100 (9th Cir. 2019) (citing, inter

7 alia, 8 U.S.C. § 1182(a)(6)(C) and 8 U.S.C. § 1182(a)(7)). Section 1225(b)(1)’s

8 removal mandate, however, does not apply if “the alien indicates either an intention

9 to apply for asylum under section 1158 [] or a fear of persecution.” Id. Instead, “[i]f

10 the immigration officer determines that an alien” is “inadmissible” for making

11 certain fraudulent or misleading representations or for not having valid entry or

12 travel documents “and the alien indicates either an intention to apply for asylum

13 under section 1158 [] or a fear of persecution, the officer shall refer the alien for an

14 interview by an asylum officer[.]” 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).

15 An implementing regulation governing this expedited removal procedure imposes

16 an analogous obligation. 8 C.F.R. § 235.3(b)(4). In these circumstances, the

17 immigration officer must refer the alien to an “asylum officer,” who is statutorily

18 required to be “an immigration officer who has had professional training in country

19 conditions, asylum law, and interview techniques comparable to that provided to

20 full-time adjudicators of applications under section 1158 of this title,” and “is

21 supervised by an officer who,” inter alia, “has had substantial experience

22 adjudicating asylum applications.” 8 U.S.C. § 1225(b)(1)(E).

23

24

In contrast with the Section 1225(b)(1) procedure, Section 1225(b)(2)

25 establishes the procedure for “inspection of other aliens.” 8 U.S.C. § 1225(b)(2).

26 “Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for

27 admission,” the alien “shall be detained for a proceeding under [8 U.S.C. §] 1229a”

28 (the general “removal proceedings” provision) “if the examining immigration officer

– 6 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6547 Page 7 of 84

1 determines that an alien seeking admission is not clearly and beyond a doubt entitled

2 to be admitted[.]” 8 U.S.C. § 1225(b)(2)(A). Subparagraph (C) provides that “in

3 the case of an alien described in subparagraph (A) who is arriving on land . . . from

4 a foreign territory contiguous to the United States, the Attorney General may return

5 the alien to that territory pending a proceeding under section 1229a[.]” 8 U.S.C. §

6 1225(b)(2)(C). In relevant part, Subparagraph (B) provides that “[s]ubparagraph (A)

7 shall not apply to an alien—(ii) “to whom paragraph (1) applies”—i.e. aliens who

8 are subject to the procedure in 8 U.S.C. § 1225(b)(1). 8 U.S.C. § 1225(b)(2)(B)(ii).

9 Consistent with Section 1225(b)(2)’s instruction that asylum applicants are

10 channeled through the Section 1225(b)(1) procedure, Section 1225(b)(2) does not

11 elaborate on any asylum procedure.

12

13

During the Section 1225 admission process, “[a]n alien applying for

14 admission may, in the discretion of the Attorney General and at any time, be

15 permitted to withdraw the application for admission and depart immediately from

16 the United States.” 8 U.S.C. § 1225(a)(4). By regulation, “the alien’s decision to

17 withdraw his or her application for admission must be made voluntarily[.]” 8 C.F.R.

18 § 235.4.

19

20 II. Factual Allegations

21

A. Allegations Regarding Defendants

22

Defendants are U.S. government officials sued in their official capacity who

23 exercise authority over CBP in various capacities. The Defendant Secretary of

24 Homeland Security (the “Secretary”) “has ultimate authority over all CBP policies,

25 procedures, and practices.” (SAC ¶ 36.) The Secretary “is responsible for ensuring

26 that all CBP officials perform their duties in accordance with the Constitution and

27 all relevant laws.” (Id.) The Defendant CBP Commissioner “has direct authority

28 over all CBP policies, procedures, and practices.” (Id. ¶ 37.) Defendant oversees a

– 7 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6548 Page 8 of 84

1 staff of more than 60,000 employees and “exercises authority over all CBP

2 operations.” (Id.) The Defendant Executive Assistant Commissioner (“EAC”) of

3 CBP’s Office of Field Operations oversees “the largest component of CBP and is

4 responsible for border security, including immigration and travel through U.S.

5 POEs,” for which the EAC oversees a staff of “more than 24, 000 CBP officials and

6 specialists[.]” (Id. ¶ 38.) Plaintiffs also sue 25 Doe Defendants who “were agents

7 or alter egos of Defendants, or [who] are otherwise responsible for all of the acts”

8 alleged. (Id. ¶ 39.) Defendants allegedly have denied access to the U.S. asylum

9 process to noncitizens fleeing “grave harm in their countries to seek protection in the

10 United States” “in contravention of U.S. and international law” pursuant to (1) “a

11 policy initiated by Defendants”—the Turnback Policy—and (2) “practices

12 effectively ratified by Defendants.” (Id. ¶ 1.) The Court describes Plaintiffs’

13 allegations regarding each.

14

15

1. Alleged Pattern and Practice of Illegal Tactics

16

“Since 2016 and continuing to this day, CBP has engaged in an unlawful,

17 widespread pattern and practice of denying asylum seekers access to the asylum

18 process at POEs on the U.S.-Mexico border through a variety of illegal tactics.”

19 (SAC ¶¶ 2, 84.) CBP officials have carried out this practice through

20 misrepresentations, threats and intimidation, verbal and physical abuse, and

21 coercion. (Id. ¶¶ 84–106.) For example, CBP officials are alleged to turn away

22 asylum seekers by falsely informing them that the U.S. is no longer providing

23 asylum, that President Trump signed a new law ending asylum, that a law providing

24 asylum to Central Americans ended, that Mexican citizens are not eligible for

25 asylum, and that the U.S. is no longer accepting mothers with children for asylum.

26 (Id. ¶¶ 85–86.) CBP officials allegedly intimidate asylum seekers by threatening to

27 take away their children if they do not renounce a claim for asylum and by

28 threatening to deport asylum seekers. (Id. ¶¶ 87–88.) CBP officials allegedly force

– 8 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6549 Page 9 of 84

1 asylum seekers to sign forms in English, without translation, in which the asylum

2 seekers recant their fears of persecution. (Id. ¶¶ 91–92.) CBP officials are alleged

3 to instruct some asylum seekers to recant their fears of persecution while being

4 recorded on video. (Id.) In some instances, CBP officials have “simply turn[ed]

5 asylum seekers away from POEs without any substantive explanation.” (Id. ¶¶ 93–

6 94.) Other alleged tactics include: (1) CBP officers physically block access to the

7 POE, including by “CBP sometimes enlist[ing] Mexican officials to act as their

8 agents”; (2) CBP officials impose “a fixed number of asylum seekers” per day and

9 place asylum seekers on a waiting list that results in “asylum-seeking men, women

10 and children wait[ing] endlessly on or near bridges leadings to POEs in rain, cold,

11 and blistering heat, without sufficient food or water and with limited bathroom

12 access”; and (3) racially discriminatory denials of access by CBP officers, including

13 by denying asylum seekers from specific countries access to POEs and allowing

14 “lighter-skinned individuals to pass.” (Id. ¶¶ 95–106.) Plaintiffs point to numerous

15 reports by non-governmental organization and “other experts working in the U.S.-

16 Mexico border region” as corroborating the existence and use of these tactics by

17 CBP officers. (Id. ¶¶ 107–08, 110–111, 113–16.)

18

19

2. The Alleged “Turnback Policy”

20

a. Nascent Stages

21

Plaintiffs allege that “evidence of a Turnback Policy” exists as early as May

22 2016, at least insofar as it concerns the San Ysidro POE, a POE that figures

23 prominently in the SAC and the Plaintiffs’ allegations. (SAC ¶¶ 51–53, 60; see also

24 id. ¶¶ 16, 25–26, 28, 32–35, 48 & n.37.) Plaintiffs point to a communication from

25 the “Watch Commander at the San Ysidro POE” indicating that “[t]he Asylee line

26 in the pedestrian building is not being used at this time,” with a follow-up

27 communication indicating that “it’s even more important that when the traffic is free-

28 flowing that the limit line officers ask for and check documents to ensure that groups

– 9 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6550 Page 10 of 84

1 that may be seeking asylum are directed to remain in the waiting area on the Mexican

2 side.” (Id. ¶ 51.) At the time, CBP allegedly “collaborat[ed] with the Mexican

3 government to turn back asylum seekers at the San Ysidro POE,” collaboration that

4 was allegedly formalized in July 2016 and confirmed in December 2016. (Id. ¶¶ 52–

5 53.)

6

7

A border-wide policy allegedly existed as early as November 2016 because

8 the Assistant Director of Field Operations for the Laredo Field Office “instructed all

9 Port Directors under his command to follow the mandate of the then-CBP

10 Commissioner and Deputy Commissioner” to request that Mexico’s immigration

11 agency “control the flow of aliens to the port of entry.” (Id. ¶ 55.) Under this

12 mandate, the Commissioner allegedly directed that “if you determine that you can

13 only process 50 aliens, you will request that [Mexico’s immigration agency] release

14 only 50,” and if the agency “cannot or will not control the flow,” then CBP staff “is

15 to provide the alien with a piece of paper identifying a date and time for an

16 appointment and return then [sic] to Mexico.” (Id.) This directive “was promptly

17 implemented” at POEs along the Texas-Mexico portion of the U.S.-Mexico border

18 and “memorialized in January 2017.” (Id. ¶¶ 56, 57.) Plaintiffs allege that in a June

19 13, 2017 hearing before the House Appropriations Committee, John P. Wagner, the

20 Deputy Executive Assistant Commissioner for CBP’s Office of Field Operations,

21 admitted that CBP officials were turning back asylum seekers at POEs along the

22 U.S-Mexico border and argued that “the practice was justified by a lack of capacity.”

23 (Id. ¶ 59.) The CBO Field Operations Director in charge of the San Ysidro POE

24 similarly acknowledged and defended the turnbacks in December 2017. (Id. ¶ 60.)

25

26

b. Alleged Formalization and High-Level Recognition

27

The alleged border-wide policy to turnback asylum seekers through false

28 assertions of lack of capacity took on a new life in spring 2018 “following an

– 10 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6551 Page 11 of 84

1 arduous, widely-publicized journey” of “a group of several hundred asylum

2 seekers”—dubbed by the press as a “caravan”—who “arrived at the San Ysidro

3 POE.” (Id. ¶ 61.) “President Trump posted a series of messages on Twitter warning

4 of the dangers posed by the group, including one indicating that he had instructed

5 DHS ‘not to let these large Caravans of people into our Country.’” (Id. (citations

6 omitted).)

7

8

Around this time, high-level Trump Administration officials unambiguously

9 proclaimed, “the existence of their policy to intentionally restrict access to the

10 asylum process at POEs in violation of U.S. law.” (Id. ¶¶ 5, 62.) Then-U.S. Attorney

11 General Jeff Session “characterized the caravan’s arrival as ‘a deliberate attempt to

12 undermine our laws and overwhelm our system.’” (Id. ¶ 63.) Following the arrival

13 of the “caravan,” “CBP officials indicated—in accordance with the Turnback

14 Policy—that they had exhausted their capacity to process individuals traveling

15 without proper documentation.” (Id. ¶¶ 7, 64, 67.) On May 15, 2018, then-Secretary

16 of Homeland Security Kirstjen Nielsen “characterized the asylum process . . . as a

17 legal ‘loophole’ and publicly announced a ‘metering’ process designed to restrict—

18 and constructively deny—access to the asylum process through unreasonable and

19 dangerous delay.” (Id. ¶¶ 5, 65.) President Trump made a number of tweets

20 throughout June and July 2018 that further confirmed the alleged Turnback Policy,

21 including statements that “[w]hen somebody comes in, we must immediately, with

22 no Judges or Court Cases, bring them back from where they came from,” and “we

23 must IMMEDIATELY escort them back without going through years of

24 maneuvering.” (Id. ¶ 66.) Plaintiffs point to numerous other confirmations of the

25 existence of the alleged Turnback Policy, designed and implemented by U.S.

26 officials, including statements by then-CBP Commissioner McAleenan in April

27 2018 indicating that “individuals [without appropriate entry documentation] may

28 need to wait in Mexico as CBP officers work to process those already within our

– 11 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6552 Page 12 of 84

1 facilities”; a September 27, 2018 report from the Office of the Inspector General (the

2 “OIG Report”); and statements by Mexican immigration officials, one of whom

3 allegedly complained that “[CBP] was making [the Mexican immigration agency]

4 do [CBP’s] dirty work.” (Id. ¶¶ 68–76 & nn. 56–71.)

5

6

According to Plaintiffs, the asserted capacity concerns used to justify the

7 alleged Turnback Policy are a pretextual and false “cover for a deliberate slowdown

8 of the rate at which agency receives asylum seekers at POEs.” (Id. ¶¶ 3, 76–83.)

9 They allege that “CBP’s own statistics indicate that there has not been a particular

10 surge in [the] numbers of asylum seekers coming to POEs.” (Id. ¶ 76.) Amnesty

11 International has allegedly characterized capacity concerns as “a fiction” based on

12 the available statistics. (Id. (citation omitted).) Plaintiffs point to statements by

13 “senior CBP and ICE officials in San Ysidro, California” in early 2018, in which the

14 officials stated that “CBP has only actually reached its detention capacity a couple

15 times per year and during ‘a very short period’ in 2017.” (Id. ¶ 77.) Plaintiffs further

16 note that in the OIG Report, “the OIG team did not observe severe overcrowding at

17 the ports of entry it visited.” (Id.) And “[h]uman rights researchers visiting seven

18 POEs in Texas in June 2018 reported that ‘[t]he processing rooms visible in the

19 [POE] . . . appeared to be largely empty.’” (Id. (citations omitted).) Plaintiffs

20 otherwise point to anecdotal accounts for specific POEs, which Plaintiffs allege

21 show “abrupt” changes in assertions of a lack of capacity at POEs and CBP officers

22 allowing some asylum seekers to cross—sometimes in the span of a few hours. (Id.

23 ¶ 78.) For example, CBP officials at the Nogales, Arizona POE abruptly switched

24 from processing 6 asylum seekers a day, based on assertions of lack of capacity, to

25 20 asylum seekers a day. (Id.) And, of course, there are the alleged experiences of

26 the eight New Individual Plaintiffs, which provide a further gloss on the Turnback

27 Policy. (Id. ¶ 83.)

28

– 12 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6553 Page 13 of 84

1

B. The Plaintiffs

2

The challenge to Defendants’ alleged conduct is pressed by Organizational

3 Plaintiff Al Otro Lado and thirteen Individual Plaintiffs. For the purposes of this

4 order, the Court refers to the Individual Plaintiffs as two groups: the Original

5 Individual Plaintiffs and the New Individual Plaintiffs.5 As the Court has noted,

6 Organizational Plaintiff Al Otro Lado and the Original Individual Plaintiffs have

7 been parties since this case’s inception. The Court will not retrace in great detail the

8 allegations pertaining to these Plaintiffs. The Court, however will provide relatively

9 more detail regarding the New Individual Plaintiffs because this order is the first

10 occasion to do so.

11

12

1. Organizational Plaintiff Al Otro Lado

13

Al Otro Lado is a non-profit California legal services organization established

14 in 2014, which provides services to indigent deportees, migrants, refugees, and their

15 families. (SAC ¶ 17.) Al Otro Lado alleges that the Defendants’ alleged conduct has

16 frustrated its ability to advance and maintain its “central” and “organizational

17 mission” because Al Otro Lado has had “to divert substantial” time and resources

18 away from its programs “to counteract the effects of the Turnback Policy and

19 Defendants’ other unlawful practices.” (Id. ¶¶ 12–13, 17–23.)

20

21 5 In their present motion to dismiss, Defendants divide the Individual Plaintiffs
22 into two groups. Defendants refer to the Original Individual Plaintiffs as “Territorial

23 Plaintiffs” on the ground that the SAC’s allegations show that all Original Individual

Plaintiffs were in a POE at the time they were allegedly denied access to the asylum 24 process. (ECF No. 192-1 at 1–2.) In contrast, Defendants refer to all New Individual

25 Plaintiffs as “Extraterritorial Plaintiffs,” based on Defendants’ view that these

Individual Plaintiffs’ allegations show that “they experienced the purported 26 ‘Turnback Policy’ when they approached the border to the territorial United States

27 at the San Ysidro, Laredo, or Hidalgo [POEs] but were prevented by CBP officers

28

or Mexican immigration officials from physically crossing the international boundary.” (Id. at 2.) The Court declines to use Defendants’ labeling.

– 13 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6554 Page 14 of 84

1

2. Original Individual Plaintiffs

2

Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe are natives and citizens of

3 Mexico, who fled to Tijuana, Mexico where they attempted to access the U.S.

4 asylum process at various points in May 2017, due to violence they experienced at

5 the hands of drug cartels. (SAC ¶¶ 24–26, 119–121, 125–127, 133–134.) They

6 allege that CBP officers at the San Ysidro and Otay Mesa POEs located along the

7 California-Mexico portion of the U.S.-Mexico border coerced them into signing

8 English language forms in which they recanted their fears of returning to Mexico

9 and withdrew their applications for admission. (Id. ¶¶ 24–26, 122–123, 128–130,

10 135–136.) Plaintiffs Dinora Doe and Ingrid Doe are natives and citizens of

11 Honduras, who fled to Tijuana, Mexico after violence they experienced at the hands

12 of criminal gangs and Ingrid experienced severe abuse from her partner. (Id. ¶¶ 27–

13 28, 138–140, 147–149.) Dinora presented herself at the Otay Mesa POE three times

14 in August 2016 but was told “there was no asylum in the United States,” including

15 specifically “for Central Americans,” and that she “would be handed over to

16 Mexican authorities and deported to Honduras.” (Id. ¶¶ 27, 141–144.) Ingrid

17 presented herself at the Otay Mesa and San Ysidro POEs, where CBP officers told

18 her and her children that they could not seek asylum in the United States. (Id. ¶¶ 28,

19 149–151.) Based on developments that occurred after the original complaint’s filing

20 and which the Court determined did not moot this case, Al Otro Lado, Inc., 327 F.

21 Supp. 3d at 1295, 1302–04, the Original Individual Plaintiffs allege that “Defendants

22 made arrangements to facilitate” their “entry . . . into the United States.” (SAC ¶¶

23 24–28, 124, 132, 137, 145, 152.)

24

25

3. New Individual Plaintiffs

26

Plaintiffs Juan and Úrsula Doe, husband and wife, are natives and citizens of

27 Honduras, who fled Honduras “with their sons after receiving death threats from

28 gangs.” (SAC ¶¶ 31, 171–72.) They presented themselves at the Laredo POE in late

– 14 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6555 Page 15 of 84

1 September 2018, but when they “reached the middle of the bridge to the POE, CBP

2 officials denied them access to the asylum process by telling them the POE was

3 closed and that they could not enter.” (Id. ¶¶ 31, 173–74.)

4

5

Plaintiff Roberto Doe is a native and citizen of Nicaragua, who alleges that he

6 fled Nicaragua due to threats of violence “from the Nicaraguan government and

7 paramilitaries allied with the government.” (Id. ¶¶ 29, 153.) Roberto presented

8 himself at the Hidalgo, Texas POE in October 2018, where he encountered CBP

9 officials in the middle of the bridge between Mexico and the United States, who he

10 told that he wanted to seek asylum in the United States. (Id. ¶¶ 29, 154.) The

11 officials “t[old] him the POE was full and that he could not enter.” (Id. ¶¶ 29, 155.)

12 After the FAC was filed in October 2018, Roberto returned to the Hidalgo POE

13 “where Mexican officials detained him as he was walking onto the international

14 bridge to seek access to the asylum process in the United States” and he “remains in

15 the custody of the Mexican government.” (Id. ¶¶ 29, 159.)

16

17

Plaintiff Maria Doe is a native and citizen of Guatemala and permanent

18 resident of Mexico. (Id. ¶¶ 30, 160.) Maria “left her husband, who was abusive and

19 is involved with cartels[.]” (Id. ¶¶ 30, 161.) Since she left him, “two different cartels

20 have been tracking and threatening her,” and located her despite her attempts to find

21 a “safe place to live” in both Guatemala and Mexico. (Id. ¶¶ 30, 161.) Maria and

22 her two children presented themselves at the Laredo, Texas POE on September 10,

23 2018. (Id. ¶¶ 30, 162.) However, “[w]hen Maria encountered CBP officials in the

24 middle of the bridge, [and] she told them that she and her children wanted to seek

25 asylum in the United States,” the CBP officials told them to wait on the Mexican

26 side of the bridge. (Id. ¶¶ 30, 162.)

27

28

Plaintiff Bianca Doe is a transgender woman who is a native and citizen of

– 15 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6556 Page 16 of 84

1 Honduras. (Id. ¶¶ 33–34, 184, 191.) Bianca “has been subjected to extreme and

2 persistent physical and sexual assault, as well as discrimination and ongoing threats

3 of violence in Honduras and Mexico City . . . because she is a transgender woman[.]”

4 (Id. ¶¶ 33, 184–85.) Bianca presented herself at the San Ysidro POE on September

5 19, 2018, where “CBP officers . . . stat[ed] that she could not apply at that time

6 because they were at capacity.” (Id. ¶¶ 33, 185.) Bianca returned the next day and

7 “was given a piece of paper with the number ‘919,’ placed on a waiting list, and told

8 that she would have to wait several weeks to proceed to the POE.” (Id. ¶¶ 33, 186.)

9 On September 28, 2018, Bianca “attempted to enter the United States without

10 inspection by climbing a fence on a beach in Tijuana[,]” but “once over the fence, a

11 U.S. Border Patrol officer stopped [her]” and she “expressed her desire to seek

12 asylum in the U.S.” (Id. ¶¶ 33, 187.) “The U.S. Border Patrol Officer told [her] that

13 there was no capacity in U.S. detention centers and threatened to call Mexican police

14 if [she] did not climb the fence back into Mexico.” Bianca did so. Bianca presented

15 herself “again” at the San Ysidro POE on October 8, 2018. (Id. ¶¶ 33, 188.) “She

16 was told, once again, that CBP had no capacity for asylum seekers.” (Id. ¶¶ 33, 188.)

17

18

Plaintiff Emiliana Doe is a transgender woman and a native and citizen of

19 Honduras. (Id. ¶¶ 34, 191.) She “was subjected to multiple sexual and physical

20 assaults, kidnapping, and discrimination, as well as threats of severe harm and

21 violence in Honduras because she is a transgender woman.” (Id. ¶ 34.) After fleeing

22 Honduras in June 2018, Emiliana reached Tijuana in September 2018 and presented

23 herself at the San Ysidro POE, where a stranger told her she would need to get on

24 “the waiting list” to apply for asylum. (Id. ¶ 192.) After going to the San Ysidro

25 POE and speaking with two women, “[s]he was given a piece of paper with the

26 number ‘1014’ on it, placed on a waiting list, and told to return in six weeks.” (Id.

27 ¶¶ 34, 192.) On October 8, 2018, “[f]eeling desperate and unsafe, Emiliana returned

28 to the POE just a few weeks later,” but “CBP officers . . . t[old] her that there was

– 16 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6557 Page 17 of 84

1 no capacity for asylum seekers and instruct[ed] her to wait for Mexican officials.”

2 (Id. ¶¶ 34, 193.)

3

4

Plaintiff César Doe is a native and citizen of Honduras. (Id. ¶¶ 35, 196.)

5 “César has been threatened numerous times with severe harm and death and

6 kidnapped by members of the 18th street gang.” (Id. ¶¶ 35, 196.) He alleges, inter

7 alia, that on one occasion, he “present[ed] himself at the San Ysidro POE” “with

8 two staff members from Al Otro Lado” “but CBP officers refused to accept him.”

9 (Id. ¶¶ 35, 199.)

10

11

Plaintiff Victoria Doe is a 16-year old native and citizen of Honduras. (Id. ¶¶

12 32, 179.) She “has been threatened with severe harm and death by members of the

13 18th street gang for refusing to become the girlfriend of one of the gang’s leaders.”

14 (Id. ¶¶ 32, 179.) Victoria fled to Mexico where she gave birth to a son. (Id. ¶¶ 32,

15 179.) Victoria and her son arrived in Tijuana as part of a “refugee caravan” and went

16 to the San Ysidro POE on October 8, 2018. (Id. ¶¶ 32, 180.) “When Victoria

17 expressed her desire to seek asylum in the United States, CBP officers . . . stat[ed]

18 that she could not apply for asylum at that time and t[old] her to speak to a Mexican

19 official without providing any additional information.” (Id. ¶¶ 32, 181.) Except for

20 Roberto Doe, all New Individual Plaintiffs allege that “following the filing of the

21 First Amended Complaint in this case, Defendants made arrangements to facilitate

22 the[ir] entry . . . into the United States.” (SAC ¶¶ 30–35.)

23

24 III. Procedural Synopsis

25

Organizational Plaintiff Al Otro Lado and, on behalf of themselves and a

26 putative class, the Original Individual Plaintiffs commenced this action against

27 Defendants on July 12, 2017 in the United States District Court for the Central

28 District of California. (ECF No. 1.) After the Central District transferred the action

– 17 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6558 Page 18 of 84

1 to this Court on November 29, 2017, Defendants renewed their motion to dismiss

2 the original complaint in its entirety. (ECF No. 135.)

3

4

The Court granted Defendants’ motion in part. Al Otro Lado, Inc. v. Nielsen,

5 327 F. Supp. 3d 1284 (S.D. Cal. 2018). In relevant part, the Court dismissed the

6 Section 706(1) APA claims of Plaintiffs Abigail Doe, Beatrice Doe, and Carolina

7 Doe to the extent they sought to compel relief under 8 C.F.R. § 235.4 for allegedly

8 being coerced into withdrawing their applications for admission. Id. at 1314–15.

9 The Court also dismissed Plaintiffs’ Section 706(2) APA claims based on an alleged

10 “pattern or practice” because the Court was not convinced that Plaintiffs had

11 plausibly alleged facts to “support[] the inference that there is an overarching policy”

12 and, consequently, had failed to identify a final agency action. Id. at 1320. The

13 Court granted Plaintiffs leave to amend their Section 706(2) claims. Id. at 1321. The

14 Court otherwise denied Defendants’ motion to dismiss on all other grounds. Id. at

15 1295–1304 (rejecting Defendants’ argument that the entire case was moot because

16 Defendants had allowed original Individual Plaintiffs to be processed for admission

17 at a POE after filing of the case); id. at 1306–08 (rejecting Defendants’ argument

18 that the United States had not waived sovereign immunity for ATS claims on the

19 ground that Section 702 of the APA provides a “broad waiver of sovereign immunity

20 for claims against the United States for nonmonetary relief”); id. at 1311–13

21 (rejecting Defendants’ argument that Plaintiffs cannot challenge an alleged pattern

22 or practice of alleged CBP officer denials of access to the asylum process under

23 Section 706(1) of the APA).

24

25

In November 2018, Plaintiffs filed the operative Second Amended Complaint,

26 a pleading that raises claims largely identical to those in the original complaint albeit

27 upon an expanded set of factual allegations and with some refinement. (SAC ¶¶

28 244–303.) All Individual Plaintiffs seek to press their claims on behalf of a putative

– 18 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6559 Page 19 of 84

1 class of “noncitizens who seek or will seek to access the U.S. asylum process by

2 presenting themselves at a POE along the U.S.-Mexico border and are denied access

3 to the U.S. asylum process by or at the instruction of CBP officials.” (Id. ¶¶ 1, 236–

4 43.) Once more, Plaintiffs seek only declaratory and injunctive relief. (Id. at 100.)

5

6

LEGAL STANDARDS

7

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth “a

8 short and plain statement of the claim showing that the pleader is entitled to relief,”

9 in order to “give the defendant fair notice of what the. . . claim is and the grounds

10 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

11 Conley v. Gibson, 355 U.S. 41, 47 (1957)). A defendant may test the sufficiency of

12 a complaint on several grounds, including on the ground that the court lacks subject

13 matter jurisdiction over the complaint or that the complaint fails to state a claim for

14 relief. Fed. R. Civ. P. 12(b)(1), (6).

15

16

A Rule 12(b)(1) motion tests whether a court possesses subject matter

17 jurisdiction to adjudicate the claims in the action. Fed. R. Civ. P. 12 (b)(1); Savage

18 v. Glendale Union High Sch., 343 F.3d 1036, 1039–40 (9th Cir. 2003), cert. denied,

19 541 U.S. 1009 (2004). As is relevant here, a Rule 12(b)(6) motion that asserts lack

20 of jurisdiction due to the alleged presence of a political question in a case is “more

21 appropriately construed as a Rule 12(b)(1) motion[.]” Corrie v. Caterpillar, 503

22 F.3d 974, 982 (9th Cir. 2007); Yellen v. United States, Civ. No. 14-00134 JMS-KSC,

23 2014 WL 2532460, at *1 (D. Haw. June 4, 2014) (same). Thus, although Defendants

24 nominally raise a Rule 12(b)(6) motion, the Court construes their motion on this

25 issue as raised under Rule 12(b)(1). When a party asserts a Rule 12(b)(1) challenge

26 limited to the pleadings, as Defendants do here, the Court accepts Plaintiffs’ factual

27 allegations as true and draws all reasonable inferences in Plaintiffs’ favor to

28 determine whether the allegations are sufficient to invoke federal jurisdiction. Pride

– 19 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6560 Page 20 of 84

1 v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).

2

3

A Rule 12(b)(6) motion tests whether the allegations, even if true, fail to state

4 a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); N. Star Int’l v.

5 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). To survive a Rule 12(b)(6)

6 motion, a plaintiff is required to set forth “enough facts to state a claim for relief that

7 is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility

8 when the plaintiff pleads factual content that allows the court to draw reasonable

9 inferences that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

10 556 U.S. 662, 678 (2009) (citation omitted). To assess the legal sufficiency of a

11 complaint, the court accepts as true the complaint’s factual allegations and construes

12 them in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467

13 U.S. 69, 73 (1984). A court may consider materials properly submitted as part of

14 the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

15

16

DISCUSSION

17

Defendants’ motion to dismiss raises a variety of arguments for why the SAC

18 should be dismissed in whole or in part, some of which are familiar and others of

19 which are new. The Court distills Defendants’ arguments into four overarching

20 parts. First, Defendants argue that the Court lacks jurisdiction under the political

21 question doctrine to consider certain factual allegations or grant certain forms of

22 relief. Second, and forming the bulk of Defendants’ motion to dismiss, is a set of

23 arguments that Plaintiffs fail to state Sections 706(1) and 706(2) APA claims. Third,

24 Defendants seek dismissal of the New Individual Plaintiffs’ Fifth Amendment Due

25 Process Clause claims, principally on the ground that the Fifth Amendment does not

26 apply extraterritorially. Fourth, Defendants seek dismissal of Plaintiffs’ ATS claims.

27 The Court considers each set of arguments in turn.

28

– 20 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6561 Page 21 of 84

1 I. The Political Question Doctrine

2

Defendants argue that that the political question doctrine bars judicial review

3 of “Defendants’ coordination with a foreign nation to regulate border crossings.”

4 (ECF No. 192-1 at 25.) Pointing to allegations in the SAC regarding interactions

5 between U.S. and Mexican government officials, Defendants argue that granting

6 Plaintiffs’ request to enjoin the alleged Turnback Policy “would prohibit Defendants

7 from ‘coordinating’ with Mexican government officials as they carry out their

8 statutory responsibility to manage the flow of traffic across the border.” (Id. at 25–

9 26, 28 (citing SAC ¶¶ 3, 7, 50–83, 86–87, 96, 98–102, 108–10, 114, 116).) The

10 Court rejects Defendants’ political question doctrine argument at this juncture.

11

12

“In general, the Judiciary has a responsibility to decide cases properly before

13 it, even those it ‘would gladly avoid.’” Zivotofsky v. Clinton, 566 U.S. 189, 194–95,

14 (2012) (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)). The “political

15 question doctrine” is a recognized “narrow exception” to the Judiciary’s Article III

16 responsibility. Id. at 195 (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478

17 U.S. 221, 230 (1986)). The doctrine “excludes from judicial review those

18 controversies which revolve around policy choices and value determinations

19 constitutionally committed for resolution to the halls of Congress or the confines of

20 the Executive Branch[.]” Japan Whaling Ass’n, 478 U.S. at 230. As such, “[t]he

21 political question doctrine concerns the jurisdictional ‘case or controversy

22 requirement’ of Article III of the Constitution, . . . and the Court must address it

23 ‘before proceeding to the merits[.]’” Ahmed Salem Bin Ali Jaber v. United States,

24 861 F.3d 241, 245 (D.C. Cir. 2017) (citing first Schlesinger v. Reservists Comm. To

25 Stop the War, 418 U.S. 208, 215 (1974) and quoting second Tenet v. Doe, 544 U.S.

26 1, 6 n.4 (2005)) (emphasis added). If a political question is inextricable from a case,

27 the doctrine “prevents a plaintiff’s claims from proceeding to the merits.” Ahmed

28 Salem Bin Ali Jaber, 861 F.3d at 245 (citing Baker v. Carr, 369 U.S. 186, 211

– 21 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6562 Page 22 of 84

1 (1962)).

2

3

There are at least six different “formulations” for determining whether a case

4 presents a political question that is understood to deprive a federal court of subject

5 matter jurisdiction. Baker, 369 U.S. at 217. As Defendants recognize, a case need

6 only present one formulation for a political question to preclude jurisdiction. Ahmed

7 Salem Bin Ali Jaber, 861 F.3d at 245 (citing Schneider v. Kissinger, 412 F.3d 190,

8 194 (D.C. Cir. 2005)). The only formulation on which Defendant rely here is that

9 there is a “textually demonstrable constitutional commitment of the issue to a

10 coordinate political department[.]” Baker, 369 U.S. at 217.

11

12

In particular, Defendants contend that this case presents the political question

13 “whether and to what extent it is lawful for the United States to (allegedly)

14 collaborate with the government of Mexico to control the flow of travel across the

15 countries’ shared border[.]” (ECF No. 192-1 at 26.) Viewed in this light, Defendants

16 contend that “Plaintiffs’ allegations and requests for relief are squarely outside the

17 Court’s jurisdiction” under the first Baker formulation because “[f]oreign-relations

18 matters are clearly committed by [the] Constitution to the Executive Branch,

19 particularly as they relate to the United States’ efforts to manage the flow of travel

20 across the border.” (Id. at 27.) For this reason, Defendants argue that “[t]he Court

21 does not have jurisdiction to declare unlawful or enjoin [the alleged coordination

22 with Mexican government officials][.]” (Id. at 28.) The Court disagrees with

23 Defendants’ view about the questions this case presents and, thus, rejects

24 Defendants’ argument that the political question doctrine precludes this Court from

25 reviewing Plaintiffs’ claims or granting corresponding relief.

26

27

The Court acknowledges that “[t]he exclusion of aliens is ‘a fundamental act

28 of sovereignty’ by the political branches[.]” Trump v. Hawaii, 138 S. Ct. 2392, 2407

– 22 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6563 Page 23 of 84

1 (2018) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542

2 (1950)). The Executive possesses a recognized power “to regulate the entry of aliens

3 into the United States” through its “inherent” “executive power to control the foreign

4 affairs of the nation[.]” Knauff, 338 U.S. at 542; E. Bay Sanctuary Covenant v.

5 Trump, No. 18-17274, —F.3d—, 2018 WL 8807133, at *4 (9th Cir. Dec. 7, 2018).

6 The Executive’s foreign affairs powers are understood to “derive from the

7 President’s role as ‘Commander in Chief,’ [the President’s] right to ‘receive

8 Ambassadors and other public Ministers,’ and [the President’s] general duty to ‘take

9 Care that the Laws be faithfully executed’[.]” E. Bay Sanctuary Covenant, 2018 WL

10 8807133, at *4 (internally citing U.S. Const. art. II, § 2, cl. 1 (referring to President

11 as “Commander in Chief”) and id. § 3 (President’s power to receive ambassadors)

12 and further citing Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)). But the

13 Executive’s recognized power over foreign affairs under Article II of the

14 Constitution is not exercised in a constitutional vacuum. By virtue of Article I,

15 Congress possesses certain powers that render the admission or exclusion of aliens

16 and foreign affairs an intimately legislative matter, including the specific

17 constitutionally enumerated legislative powers “‘[t]o establish an uniform rule of

18 Naturalization,’ to ‘regulate Commerce with foreign Nations,’ and to ‘declare

19 War[.]’” E. Bay Sanctuary Covenant, 2018 WL 8807133, at *4 (internally citing

20 U.S. Const. art. I § 8, cl. 4 (uniform naturalization rule power), id. § 8, cl. 3 (foreign

21 commerce power), id. § 8, cl. 11 (war power)). For this reason, it is indisputable that

22 “‘over no conceivable subject is the legislative power of Congress more complete

23 than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)

24 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).

25

26

The claims asserted in this case undercut Defendants’ invocation of the

27 political question doctrine. Plaintiffs’ claims primarily concern alleged violations of

28 various INA provisions and an implementing regulation through alleged denials of

– 23 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6564 Page 24 of 84

1 access to the U.S. asylum process and an alleged policy and pattern or practice of

2 denying asylum seekers access to the U.S. asylum process. (SAC ¶¶ 203–223

3 (describing statutory and regulatory scheme that applies to asylum seekers); id. ¶¶

4 256–69 (APA Section 706(1) claims based on certain INA provisions and

5 implementing regulation); id. ¶¶ 270–82 (APA Section 706(2) claims premised on

6 certain INA provisions and implementing regulation); id. ¶¶ 283–93 (Fifth

7 Amendment Due Process Clause claims premised on certain INA provisions and

8 implementing regulation).) Federal courts have the power to “review the political

9 branches’ action to determine whether they exceed the constitutional or statutory

10 scope of their authority.” E. Bay Sanctuary Covenant, 2018 WL 8807133, at *5

11 (citing Hawaii, 138 S. Ct. at 2419).

12

13

Although Plaintiffs’ claims concern immigration, the statutory questions the

14 claims raise do not task the Court with, nor require the Court to engage in a

15 freewheeling inquiry into the wisdom of immigration policy choices. See Sale v.

16 Haitian Ctrs. Council, 509 U.S. 155, 165–66 (1993) (noting that “the wisdom of the

17 policy choices made by Presidents Reagan, Bush, and Clinton is not a matter for our

18 consideration. We must decide only whether Executive Order No. 12807, 57 Fed.

19 Reg. 23133 (1992), which reflects and implements those choices, is consistent with

20 § 243(h) of the INA.”). When “Congress has expressed its intent regarding an aspect

21 of foreign affairs” through a legislative command and a court is asked to “evaluate

22 the Government’s compliance” with that command, the court “is ‘not being asked to

23 supplant a foreign policy decision of the political branches with the courts’ own

24 unmoored determination of what United States policy . . . should be.’” Ctr. for Bio.

25 Diversity v. Mattis, 868 F.3d 803, 823 (9th Cir. 2017) (quoting Zivotofsky, 566 U.S.

26 at 196). “Instead, a court must engage in the ‘familiar judicial exercise’ of reading

27 and applying a statute, conscious of the purpose expressed by Congress.” Id.

28 (quoting Zivotofsky, 566 U.S. at 196). In this case, resolution of Plaintiffs’ claims

– 24 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6565 Page 25 of 84

1 turns on whether Defendants’ alleged conduct complies with or violates the relevant

2 INA provisions and implementing regulation. It is well within this Court’s Article

3 III province and duty to resolve these claims.

4

5

The Court acknowledges that there are some allegations that touch on alleged

6 coordination with Mexican government officials.6 (SAC ¶¶ 3, 7, 50–60.) The

7 coordination, however, is merely an outgrowth of the alleged underlying conduct by

8 U.S. officials. Based on the statutory claims in this case, review of such conduct

9 does not present a nonjusticiable political question. Accordingly, the Court denies

10 Defendants’ present motion to dismiss based on the political question doctrine.

11 Defendants may reassert their political question doctrine challenge “[i]f it becomes

12 clear at a later stage that resolving any of the plaintiffs’ claims requires” resolution

13 of an asserted political question over which this Court might lack subject matter

14 jurisdiction. Al-Tamimi v. Adelson, 916 F.3d 1, 14 (D.C. Cir. 2019).

15

16

6 As Defendants point out (ECF No. 192-1 at 26 n.8), there are also allegations

17 that concern alleged (mis)conduct by Mexican government officials. (SAC ¶¶ 29– 31, 35, 44–45, 52–54, 74–75, 83, 96–97, 110, 156–59, 163, 166, 175–76, 197, 199–
18 200.) Defendants argue that the act of state doctrine bars the issuance of declaratory

19 or injunctive relief relating to these allegations. (ECF No. 192-1 at 26 n.8.) The

Court does not agree. The act of state doctrine “bars a suit where ‘(1) there is an 20 official act of a foreign sovereign performed within its own territory; and (2) the

21 relief sought or the defense interposed [in the action would require] a court in the

United States to declare invalid the [foreign sovereign’s] official act.’” Sea Breeze 22 Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 1069 (9th Cir. 2018) (quoting Credit

23 Suisse v. U.S. Dist. Court, 130 F.3d 1342, 1346 (9th Cir. 1997)). The act of state

doctrine does not bar the claims in this case because the Court is not asked to declare 24 that any official acts of the Mexican government are unlawful. Instead, pursuant to

25 U.S. law, Plaintiffs challenge the legality of conduct by U.S. officials. Although

these officials have allegedly instructed Mexican officials to take certain conduct in 26 furtherance of the challenged Turnback Policy, the Court can assess the legality of

27 the U.S. officials’ alleged conduct and order any corresponding relief pursuant to the

28

statutory provisions at issue in this case without contravening the act of state doctrine.

– 25 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6566 Page 26 of 84

1 II. Administrative Procedure Act Claims

2

The bulk of Defendants’ motion to dismiss concerns the Plaintiffs’ APA

3 claims. (ECF No. 192-1 at 6–18, 28–31; ECF No. 238 at 2–12.) Defendants’

4 multipronged challenge to Plaintiffs’ APA claims consists of several arguments: (A)

5 Organizational Plaintiff Al Otro Lado cannot state APA claims based on the INA

6 provisions at issue as a “non-profit legal services organization,” (B) (1) the repleaded

7 Section 706(1) claims of Plaintiffs Abigail, Beatrice, and Carolina Doe fail because

8 they allegedly withdrew their applications for admission and (2) the Section 706(1)

9 claims of all New Individual Plaintiffs fail because the relevant INA provisions and

10 implementing regulation underlying their claims for relief “do not apply to

11 individuals in Mexico,” and (C) Plaintiffs’ Section 706(2) APA claims fail because

12 (1) Plaintiffs do not identify final agency action, (2) Plaintiffs challenge

13 discretionary conduct over which the APA forecloses judicial review, and (3)

14 Plaintiffs have not plausibly alleged an unlawful agency action. The Court considers

15 Defendants’ arguments in turn and rejects each of them.

16

17

A. Al Otro Lado’s APA Claims

18

For a second time, Defendants challenge Al Otro Lado’s ability to assert APA

19 claims premised on violations of the INA provisions and regulations at issue. (ECF

20 No. 192-1 at 28; ECF No. 238 at 20.) Defendants contend that Al Otro Lado’s APA

21 claims must be dismissed under Rule 12(b)(6) for failure to state a claim because

22 whereas the statutory and regulatory provisions pertain exclusively to aliens or

23 refugees, Al Otro Lado is merely a “non-profit legal services organization[.]” (ECF

24 No. 192-1 at 28; ECF No. 238 at 20.) Defendants’ argument simply reconfigures

25 Defendants’ prior argument that Al Otro Lado falls outside the zone of interests of

26 the relevant INA provisions. The Court squarely rejected Defendants’ argument in

27 the prior dismissal order. See Al Otro Lado, Inc., 327 F. Supp. 3d at 1298–1302.

28 Defendants identify no basis for the Court to depart from its prior decision.

– 26 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6567 Page 27 of 84

1

However, in the time since the Court’s prior dismissal order, the Ninth Circuit

2 has issued a decision that strengthens the Court’s prior rejection of Defendants’

3 challenge to Al Otro Lado’s APA claims in this case. Specifically, in East Bay

4 Sanctuary Covenant v. Trump, —F.3d—, 2018 WL 8807133 (9th Cir. Dec. 7, 2018),

5 the government argued that various organizations, including Organizational Plaintiff

6 Al Otro Lado who is also a plaintiff in that case, fell outside the zone of interests of

7 certain INA provisions, including 8 U.S.C. § 1158, as “legal services organizations”

8 and therefore could not challenge a rule promulgated by the Department of Justice

9 and the Department of Homeland Security (“DHS”), coinciding with a presidential

10 proclamation, which together purported to make aliens who entered the United States

11 at a place other than at a POE ineligible to apply for asylum in the United States. Id.

12 at *3–4, *8–10. The Ninth Circuit rejected the government’s zone of interest

13 argument, reasoning that “the Organizations’ interest in aiding immigrants seeking

14 asylum is consistent with the INA’s purpose to ‘establish[] . . . [the] statutory

15 procedure for granting asylum to refugees.’” Id. at *16 (quoting INS v. Cardoza-

16 Fonseca, 480 U.S. 421, 427 (1987)). The Court noted that “[w]ithin the asylum

17 statute, Congress took steps to ensure that pro bono legal services of the type that the

18 Organizations provide are available to asylum seekers.” Id. (citing 8 U.S.C. §

19 1158(d)(4)(A)–(B)). The Ninth Circuit also determined that the INA, taken as a

20 whole, otherwise supports the inference that Congress intended eligibility for

21 organizations like the ones in East Bay Sanctuary Covenant to bring suit. Id.

22 (identifying various INA provisions expressly referring to nongovernmental

23 organizations as giving such organizations “a role in helping immigrants navigate

24 the immigration process”). The Ninth Circuit’s reasoning in East Bay Sanctuary

25 Covenant is equally applicable to this case and reinforces the Court’s prior rejection

26 of Defendants’ challenge to Al Otro Lado’s APA claims.7

27

28

7 In the time since both the Court’s ruling and East Bay Sanctuary Covenant,

– 27 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6568 Page 28 of 84

1

B. Section 706(1) APA Claims

2

The Court has previously discussed the principles governing Section 706(1)

3 APA claims. Under Section 706(1), a court “shall . . . compel agency action

4 unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A Section 706(1)

5 claim “can only proceed where a plaintiff asserts that an agency failed to take a

6 discrete agency action that it is required to take.” Norton v. S. Utah Wilderness

7 Alliance, 542 U.S. 55, 64 (2004) [hereinafter “SUWA”].”); Hells Canyon

8 Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). The

9 “limitation to required agency action rules out judicial direction of even discrete

10 agency action that is not demanded by law.” SUWA, 542 U.S. at 65. Because of this

11 limitation, courts “have no authority to compel agency action merely because the

12 agency is not doing something we may think it should do.” Zixiang Li v Kerry, 710

13 F.3d 995, 1004 (9th Cir. 2013).

14

15

16 one out-of-circuit district court has described this Court’s prior zone of interests

17 analysis as a “limited circumstance[]” for “organizations advocating for clients[.]” De Dandrade v. United States Dep’t of Homeland Sec., 367 F. Supp. 3d 174, 189
18 (S.D.N.Y. 2019) (“In the limited circumstances in which district courts determined

19 organizations advocating for clients fell within the INA’s zone of interest, the

provisions of the INA at issue did not concern naturalization.”). The De Dandrade 20 court in part misreads this Court’s prior analysis, which did not turn on whether Al

21 Otro Lado has clients that fall within the zone of interests of the relevant INA

provisions. The Court identified this as a potentially separate basis for Al Otro Lado 22 to assert APA claims, but on which Al Otro Lado did not rely. Al Otro Lado, Inc.,

23 327 F. Supp. 3d at 1301 n.7. In any event, as East Bay Sanctuary Covenant confirms,

it is not necessary for an organization to premise its APA claims for the underlying 24 INA provisions at issue in this case on the ground that the organization is

25 representing specific clients seeking asylum. See E. Bay Sanctuary Covenant, 2018

WL 8807133, at *15–16. Indeed, in East Bay Sanctuary Covenant, the Ninth Circuit 26 expressly found that the organizations lacked third-party standing to assert claims on

27 behalf of asylum seeker clients, yet concluded that the organizations possessed both

28

Article III standing and fell within the INA’s zone of interests in their capacity as legal organizations that assist asylum seekers. Compare id. with id. at *12.

– 28 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6569 Page 29 of 84

1

Plaintiffs assert claims under Section 706(1) claims based on 8 U.S.C. §

2 1225(a)(3), § 1225(b)(1)(A)(ii), 1225(b)(2)(A), and 8 C.F.R. § 235.3(b)(4). (SAC

3 ¶¶ 256–69). In broad terms, Section 1225(a)(3) imposes a mandatory duty for

4 immigration officers to inspect “[a]ll aliens . . . who are applicants for admission or

5 otherwise seeking admission . . . to . . . the United States[.]” 8 U.S.C. § 1225(a)(3).

6 Section 1225(b)(1)(A)(ii) imposes on an immigration officer a duty to refer an alien

7 who indicates either an intention to apply for asylum under section 1158 or a fear of

8 persecution for an asylum interview under 8 U.S.C. § 1225(b)(1)(B) with an asylum

9 officer. 8 U.S.C. § 1225(b)(1)(A)(ii). In turn, 8 C.F.R. § 235.3(b)(4) imposes an

10 analogous regulatory duty on the inspecting officer. For all other aliens, Section

11 1225(b)(2)(A) imposes on an immigration officer a duty to detain the alien for

12 general removal proceedings under 8 U.S.C. § 1229a. 8 U.S.C. § 1225(b)(2)(A).

13

14

Defendants raise two dismissal arguments that together concern the Section

15 706(1) claims of ten Individual Plaintiffs. Defendants first move to dismiss the

16 repleaded Section 706(1) claims of Original Individual Plaintiffs Abigail, Beatrice

17 and Carolina Doe because these Plaintiffs allegedly withdrew their applications for

18 admission. (ECF No. 192-1 at 5.) Second, Defendants argue that all New Individual

19 Plaintiffs fail to state Section 706(1) claims because the statutory and regulatory

20 provisions at issue “do not apply to individuals located in Mexico.” (Id. at 6–11.)

21 The Court considers each argument in turn.

22

23

1. Repleaded Section 706(1) Claims of Certain Plaintiffs

24

Plaintiffs Abigail Doe, Beatrice Doe, and Carolina Doe once more each allege

25 that, on one of the occasions they sought asylum at a POE, CBP officials coerced

26 them into signing documents which stated that they lacked a fear of persecution and

27 were withdrawing their applications for admission. (SAC ¶¶ 24–26, 122–23, 129–

28 30, 136.) Carolina further alleges that CBP officers coerced her into recanting her

– 29 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6570 Page 30 of 84

1 fear on video. (Id. ¶¶ 26, 135.)

2

3

Based on their coercion allegations, Plaintiffs claimed in the original

4 complaint that “CBP officials failed to take actions mandated” by, inter alia, 8

5 C.F.R. § 235.4, the regulation which states that “[t]he alien’s decision to withdraw

6 his or her application for admission must be made voluntarily.” (ECF No. 1 ¶ 153.)

7 In the prior dismissal order, the Court dismissed Plaintiffs Abigail Doe, Beatrice

8 Doe, and Carolina Doe’s Section 706(1) claims insofar as the claims sought to

9 compel agency action under 8 C.F.R § 235.4, reasoning that “[t]he regulation does

10 not require CBP officers to determine whether a withdrawal was made voluntarily,

11 and it does not specify what CBP officers must do if a withdrawal was not.” Al Otro

12 Lado, Inc., 327 F. Supp. 3d at 1314. The Court stated that “[t]his determination does

13 not affect the Court’s conclusion that these Plaintiffs have otherwise stated Section

14 706(1) claims regarding their alleged denial of access to the asylum process in the

15 United States.” Id. at 1315. Plaintiffs Abigail Doe, Beatrice Doe, and Carolina Doe

16 thus understandably replead Section 706(1) claims based on the alleged failure of

17 immigration officers to inspect and refer them for asylum interviews or to otherwise

18 detain them for a removal proceeding. (SAC ¶¶ 256, 260.)

19

20

Notwithstanding the Court’s prior ruling expressly permitting Plaintiffs

21 Abigail Doe, Beatrice Doe, and Carolina Doe’s Section 706(1) claims to proceed

22 and the fact that no Plaintiff now alleges Section 706(1) claims based on 8 C.F.R. §

23 235.4, (see SAC ¶ 260), Defendants argue that these Plaintiffs’ Section 706(1) claims

24 must be dismissed because these Plaintiffs withdrew their applications for

25 admission. (ECF No. 192-1 at 29–30.) Citing 8 U.S.C. § 1225(a)(4) and 8 C.F.R. §

26 235.4—the statutory and regulatory provisions that authorize an alien to voluntarily

27 withdraw an application for admission and “depart immediately from the United

28 States”—Defendants argue that there is no continuing duty to inspect, refer, or detain

– 30 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6571 Page 31 of 84

1 an alien who has withdrawn her application. (ECF No. 192-1 at 30.)

2

3

Defendants’ dismissal argument mistakes the Court’s prior conclusion

4 regarding a judicial inability to compel relief under 8 C.F.R. § 235.4 with an inability

5 of the Court to otherwise compel discrete “agency action unlawfully withheld.” 5

6 U.S.C. § 706(1). As should have been clear from the Court’s prior order, the inability

7 to compel Section 706(1) relief under 8 C.F.R § 235.4 does not preclude relief under

8 8 U.S.C. § 1225(a)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), and 8 C.F.R. § 235.3(b)(4) in

9 this case. The parties agree that the mandatory duties to inspect all aliens and refer

10 certain aliens seeking asylum are discrete actions for which this Court can compel

11 Section 706(1) relief under 8 U.S.C. § 1225(a)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), and

12 8 C.F.R. § 235.3(b)(4). In view of the parties’ agreement regarding these duties, the

13 Court does not understand Defendants’ present dismissal argument.

14

15

Under the provisions that form the basis of the repleaded Section 706(1)

16 claims, an immigration officer must inspect an alien applying for admission and if

17 the alien is inadmissible for making misrepresentations or lacking proper

18 documentation and states an intent to seek or apply for asylum, the officer must refer

19 the alien for a credible fear interview. As even Defendants do not dispute, Plaintiffs

20 Abigail Doe, Beatrice Doe, and Carolina Doe’s allegations plausibly show that CPB

21 officers failed to take the discrete actions an immigration officer must take during

22 the admission process for aliens like these Plaintiffs, who allege that they asserted

23 an intent to apply for asylum and a fear of persecution. (SAC ¶¶ 24–26, 122–23,

24 129–30, 134–36.) All parties also agree that 8 C.F.R § 235.4 requires that an alien

25 voluntarily withdraw an application. Taking these Plaintiffs’ factual allegations of

26 coercion as true, these Plaintiffs did not voluntarily withdraw their applications for

27 admission. Thus, the mandatory duties to inspect and refer or detain were plausibly

28 “unlawfully withheld” such that these Plaintiffs may seek Section 706(1) relief.

– 31 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6572 Page 32 of 84

1 Accordingly, the Court denies Defendants’ latest attempt to dismiss Plaintiff Abigail

2 Doe, Beatrice Doe, and Carolina Doe’s Section 706(1) claims.8

3

4

2. New Individual Plaintiffs’ Section 706(1) Claims

5

As noted, all Plaintiffs’ Section 706(1) claims are premised on alleged failures

6 of CBP officers to take actions mandated by 8 U.S.C. § 1225(a)(3), 8 U.S.C. §

7 1225(b)(1)(A)(ii), 8 U.S.C. § 1225(b)(2), and 8 C.F.R. § 253.3(b)(4). (SAC ¶ 260.)

8 Two interlocking arguments are central to Defendants’ dismissal challenge to the

9 New Individual Plaintiffs’ Section 706(1) claims. First, Defendants contend that the

10 text of the underlying statutory and regulatory provisions “do not apply to

11 individuals in Mexico.” (ECF No. 192-1 at 6–11; ECF No. 238 at 1–7.) Second,

12 Defendants contend that, unlike the Original Individual Plaintiffs’ allegations, the

13 New Individuals Plaintiffs’ allegations show that these latter Plaintiffs were in

14 Mexico when they were allegedly turned away. (ECF No. 192-1 at 2 & n.2, 6–11;

15 ECF No. 238 at 1–7.) The Court finds it prudent to outline the SAC’s allegations

16 and then to address whether the allegations are sufficient to state claims for Section

17 706(1) relief under a proper construction of the relevant INA statutory and regulatory

18 provisions.

19

20

21 8 In opposition to Defendants’ motion to dismiss the SAC, Plaintiffs state in a
22 footnote that they “respectfully disagree with and preserve for appeal the Court’s

23 conclusion that it cannot compel relief under Section 706(1) based on Defendants’

alleged violation of 8 C.F.R. § 235.4[.]” (ECF No. 210 at 34 n.30.) The Court does 24 not understand how Plaintiffs have preserved an issue for appeal (1) which they

25 chose not to replead in their Section 706(1) claims and (2) for which Plaintiffs offer

no argument based on an application of the legal standards that govern a Section 26 706(1) claim to the text of 8 C.F.R. § 235.4. In any event, to the extent Plaintiffs’

27 assertion is animated by a concern that the Court would dismiss the repleaded

28

Section 706(1) claims on the grounds Defendants raise, this Order moots that concern.

– 32 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6573 Page 33 of 84

1

a. New Individual Plaintiffs’ Factual Allegations

2

As a threshold matter, Plaintiffs dispute whether the Court can even resolve

3 Defendants’ challenge to the New Individual Plaintiffs’ Section 706(1) claims at this

4 juncture. (ECF No. 210 at 4–5.) Plaintiffs contend that Defendants’ argument calls

5 for the Court to improperly find facts at the pleading stage, “specifically, that the

6 new Individual Plaintiffs were standing in Mexico when they confronted CBP

7 officers.” (ECF No. 210 at 4.) According to Plaintiffs, the SAC “does not actually

8 state that any Plaintiffs were in Mexico territory when CBP turned them back,” and

9 thus the Court must “assume that all Individual Plaintiffs were on U.S. soil when

10 Defendants turned them back.” (Id. at 4–5.) This argument is echoed by Amici

11 Immigration law Professors. (ECF No. 221-1 at 4–5.)

12

13

Implicit in Plaintiffs’ argument is the notion that the Court should assume

14 facts essential to their ability to state Section 706(1) claims to compel agency action

15 pursuant to 8 U.S.C. § 1225(a)(3), § 1225(b)(1)(A)(ii), 1225(b)(2)(A), and 8 C.F.R.

16 § 235.3(b)(4). The Court cannot do this. “Dismissal is warranted under Rule

17 12(b)(6) where the complaint lacks a cognizable theory or where the complaint

18 presents a cognizable legal theory yet fails to plead essential facts under that theory.”

19 C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1128 (E.D. Cal. 2009) (citing

20 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984))

21 (emphasis added). And this Court has recognized, “[d]espite the deference the Court

22 must pay to the plaintiff’s allegations, it is not proper for the Court to assume that

23 the [plaintiff] can prove facts that [he or she] has not alleged.’” Tinoco v. San Diego

24 Gas & Elec. Co., 327 F.R.D. 651, 657 (S.D. Cal. 2018) (quoting Associated Gen.

25 Contractors of Cal, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526

26 (1983)) (alterations in original). Tellingly, both sides expressly rely on the SAC’s

27 allegations to argue whether the relevant INA provisions embrace the New

28 Individual Plaintiffs. (ECF No. 192-1 at 7, 8, 9, 11; ECF No. 210 at 4.) Thus, the

– 33 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6574 Page 34 of 84

1 Court rejects Plaintiffs’ threshold dispute.

2

3

The Court turns to a key concession that undergirds Defendants’ argument.

4 Defendants concede that a POE is within the U.S. (See ECF No. 192-1 at 11 (“[A]s

5 the regulation says, an ‘arriving alien’ is an ‘applicant for admission’ at a port of

6 entry, all of which are located within the territorial United States.” (quoting 8 C.F.R.

7 §§ 1.2, 235.3(b)(4), 8 U.S.C. § 1225(a)(1)) (emphasis added).) Defendants further

8 argue that a POE is not a “geographic area,” but instead a discrete facility. (ECF No.

9 238 at 5–6.) Defendants ground this argument in a Ninth Circuit decision regarding

10 a conviction for illegal entry under 8 U.S.C. § 1325—a statutory provision that

11 criminalizes an alien’s entry into the United States at any time or place other than as

12 designed by immigration officers—for entry at a place other than a POE. See United

13 States v. Aldana, 878 F.3d 877, 880–82 (9th Cir. 2017) (“[T]here is no indication

14 that DHS intended to change the meaning of ‘port of entry’ [in 8 C.F.R. § 235.1(a)]

15 to refer to geographical areas, as opposed to specific facilities where an alien could

16 apply for entry.”) (upholding convictions under Section 1325(a)(1) for unlawful

17 entry in the United States based in part on 8 C.F.R. § 235.1(a)).

18

19

Under Defendants’ own view, any New Individual Plaintiff who has

20 sufficiently alleged that he or she was “at a POE” has stated Section 706(1) claims

21 for the various INA provisions and implementing regulation that form the basis of

22 Plaintiffs’ claims. Defendants’ dismissal argument should therefore fail on its own

23 terms for New Individual Plaintiffs Victoria Doe, Bianca Doe, Emiliana Doe, and

24 César Doe. These four New Individual Plaintiffs offer allegations that, on one or

25 more occasion, they were “at a POE” and requested asylum, but CBP officers

26 refused. (SAC ¶¶ 32–35, 181, 185, 187, 193, 199.) As Plaintiffs observe, (ECF No.

27 210 at 7), the preposition “at” is a “function word” used “to indicate presence or

28 occurrence in, on, or near.”

See Merriam-Webster Dictionary,

– 34 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6575 Page 35 of 84

1 https://www.merriam-webster.com/dictionary/at (last accessed May 2, 2019).

2 Although Defendants would like these New Individual Plaintiffs to plead additional

3 factual allegations, the word “at” can plausibly embrace the inference that these New

4 Individual Plaintiffs are not subject to Defendants’ challenge.9

5

6

The remaining four New Individual Plaintiffs, however, offer allegations that

7 defeat such an inference. New Individual Plaintiffs Roberto Doe, Maria Doe, and

8 Juan and Úrsula Doe allege that they “sought access to the asylum process by

9 presenting” themselves at the Hidalgo, Texas POE and Laredo, Texas POE and

10 “encountered CBP officials in the middle of the bridge” between Mexico and the

11 U.S. POE and “told them” they “wanted to seek asylum in the United States.” (SAC

12 ¶¶ 29–31, 154–55, 162, 174.) The CBP officials, however, allegedly denied Roberto

13 Doe access “by telling him the POE was full and that he could not enter,” told Maria

14 Doe to wait on the Mexican side of the border where she was told “U.S. officials

15 would not let her and her children cross the bridge,” and told Juan and Úrsula Doe

16 that “the POE was closed and that they could not enter.” (Id. ¶¶ 155, 162, 174.)

17 These allegations squarely call on the Court to address Defendants’ arguments

18 regarding the proper construction of the statutory and regulatory provisions in this

19 case and to apply that construction to the factual allegations.

20

21

b. Scope of the Relevant Provisions

22

The starting point of statutory interpretation is the statute’s language.

23 Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985). “[I]f the statutory

24

25

9 Even if the Court did not draw the inference that New Individual Plaintiffs 26 Victoria Doe, Bianca Doe, Emiliana Doe, and César Doe were sufficiently “at a

27 POE” for the purposes of Defendants’ present motion, the Court’s analysis regarding

28

the scope of the statutory and regulatory provision similarly applies to their allegations and Section 706(1) claims.

– 35 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6576 Page 36 of 84

1 language is plain,” a court “enforce[s] it according to its terms.” King v. Burwell,

2 135 S. Ct. 2480, 2489 (2015) (citing Hardt v. Reliance Standard Life Ins. Co., 560

3 U.S. 242, 251 (2010)). A court interprets a statute “to give effect, if possible, to

4 every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)

5 (citation omitted). This process of statutory interpretation proceeds “with reference

6 to the statutory context, structure, history, and purpose, ‘as well as overall common

7 sense.’” Abramski v. United States, 573 U.S. 169, 179 (2014) (quoting Maracich v.

8 Spears, 570 U.S. 48, 76 (2013)). Two statutory provisions are relevant to

9 Defendants’ motion to dismiss: 8 U.S.C. § 1158(a)(1)’s general provision for asylum

10 and 8 U.S.C. § 1225’s articulation of certain immigration officer duties. The Court

11 considers the relevant statutory text in light of these principles.

12

13

(1)

8 U.S.C. § 1158(a)(1)

14

Although Plaintiffs do not premise their Section 706(1) claims to compel

15 agency action on 8 U.S.C. § 1158(a)(1), both sides anchor their statutory analysis in

16 this provision. Under Section 1158(a)(1)’s plain language, two classes of aliens may

17 apply for asylum: (1) any alien “who is physically present in the United States” and

18 (2) any alien “who arrives in the United States.” Applying the rule against

19 surplusage, the Court must presume that the phrases “mean different things.”

20 Duncan, 533 U.S. at 174.10 The parties’ dispute turns on whether the New Individual

21

22

10 The Court recognizes that the rule against surplusage “is not absolute.”

23 Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004). A court need not apply the rule when

its application would be “at the expense of [the statute’s] more natural reading, the 24 structure of the [statutory provision], and the structure of the Act.” Tima v. AG,

25 United States, 903 F.3d 272, 278 (3d Cir. 2018). Defendants appear to argue against

application of the rule and insist that Section 1158(a)(1)’s phrases are “not 26 surplusage” but together “ensure that any alien within the United States may apply

27 for asylum[.]” (ECF No. 238 at 4.) For reasons the will become clear, the Court

28

does not agree with Defendants’ arguments regarding the full scope of the provisions. And the Court cannot find that application of the rule against surplusage

– 36 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6577 Page 37 of 84

1 Plaintiffs fall within the second class of aliens.

2

3

Defendants argue that any Plaintiffs on Mexican soil cannot qualify as an alien

4 who was “arriving in the United States.” Defendants’ opening brief largely does not

5 offer meaningful analysis regarding Section 1158(a)(1), except to contend that a

6 plain language reading of the statute shows that it does not apply to the New

7 Individual Plaintiffs. (ECF No. 192-1 at 7–8.) In the face of Plaintiffs’ statutory

8 analysis, however, Defendants advance three arguments. First, Defendants contend

9 that “the use of the present simple tense creates a nexus between the alien’s ability

10 to apply for asylum and the alien’s current physical presence (or arrival) in the

11 United States.” (ECF No. 238 at 2.) Defendants observe that the phrase “alien who

12 arrives in” is still linked with the geographic location of the United States. Second,

13 Defendants argue that the presumption against extraterritorial application of federal

14 statutes forecloses application of Section 1158 to conduct that occurs outside the

15 United States. (Id. at 3.) Third, Defendants argue that Congress has enacted a

16 separate scheme to deal with refugee claims for persons outside the United States.

17 (Id. at 3–4.) The Court rejects each of Defendants’ arguments and, in doing so, the

18 Court concludes that Congress included aliens in the process of arriving in the United

19 States in Section 1158(a)(1)’s general authorization to apply for asylum.

20

21

(a) The Statute’s Present Tense (Con)Text

22

Defendants argue that the statute’s use of the phrase “alien who arrives in” is

23 linked with a geographic location because “use of the present simple tense creates a

24 nexus between the alien’s ability to apply for asylum and the alien’s current physical

25 presence (or arrival) in the United States.” (ECF No. 238 at 2.) Although Plaintiffs

26

27 contravenes Section 1158(a)(1)’s natural reading as identifying two different classes

28

of aliens who may apply for asylum, one of which includes aliens who are not physically in the United States but are in the process of doing so.

– 37 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6578 Page 38 of 84

1 assert that “arrives in” “must mean something different than geographic presence in

2 the United States[,]” (ECF No. 210 at 8), Plaintiffs do not so much dispute that

3 Section 1158(a)(1)’s use of “arrives in” has a geographic focus. Rather, Plaintiffs’

4 fundamental contention is that the statute’s use of the present tense embraces an alien

5 who is in the process of arriving in the United States. (Id. at 7.) According to

6 Plaintiffs, the “natural meaning” of “arrives in,” as used in the statute, encompasses

7 “someone who is in the process of ‘arriv[ing] in’ the United States[.]” (Id.) Based

8 on this reading, Plaintiffs argue that “because all Individual Plaintiffs were arriving

9 in the United States, they are covered by” this provision. (Id.) The Court agrees.

10

11

“Congress’ use of a verb tense is significant in construing statutes.” United

12 States v. Wilson, 503 U.S. 329, 333 (1992) (collecting statutes). Although neither

13 side raises this point, it bears noting that Congress has enacted the Dictionary Act to

14 guide interpretation of congressional statutes. Pursuant to the Act, “[i]n determining

15 the meaning of any Act of Congress, unless the context indicates otherwise—words

16 used in the present tense include the future as well as the present.” 1 U.S.C. § 1.

17 This provision of the Dictionary Act has been applied to the INA. See Carrillo de

18 Palacios v. Holder, 651 F.3d 969, 976 (9th Cir. 2011) (citing 1 U.S.C. § 1). When

19 accounting for the rule against surplusage, application of the Dictionary Act readily

20 leads to the conclusion that Section 1158(a)(1)’s use of the present tense of “arrives”

21 plainly covers an alien who may not yet be in the United States, but who is in the

22 process of arriving in the United States through a POE.

23

24

This reading is buttressed by statutory provisions that Section 1158(a)(1)

25 expressly incorporates. Section 1158(a)(1) references the Section 1225 procedure

26 for aliens seeking asylum at the border. 8 U.S.C. § 1158(a)(1). In relevant part,

27 Section 1225(b)(1)(A)(ii) requires an immigration officer to refer an inadmissible

28 alien “who is arriving in the United States” and who expresses a fear of persecution

– 38 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6579 Page 39 of 84

1 or “an intention to apply for asylum” for an interview with an asylum officer. 8

2 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added). The use of the present progressive,

3 like use of the present participle, denotes an ongoing process. See United States v.

4 Balint, 201 F.3d 928, 933 (7th Cir. 2000) [U]se of the present progressive tense,

5 formed by pairing a form of the verb ‘to be’ and the present participle, or ‘-ing’ form

6 of an action verb, generally indicates continuing action.”); Laube v. Allen, 506 F.

7 Supp. 2d 969, 980 (M.D. Ala. 2007) (observing that a statute’s use of the present

8 participle “denotes action that is continuing or progressing”); cf. Khakhn v. Holder,

9 371 Fed. App’x 933, 937 (10th Cir. 2010) (finding use of the present participle

10 phrase “applying for adjustment” in section 1104(g) of the LIFE Act as

11 “unambiguous” that an alien who “is no longer applying for adjustment of status

12 under the LIFE Act” cannot prevent reinstatement of a prior deportation order).

13 Section 1225(b)(1)(A)(ii) therefore reinforces the conclusion that Congress intended

14 to authorize aliens in the process of arriving into the United States to apply for

15 asylum under Section 1158(a)(1). See E. Bay Sanctuary Covenant v. Trump, 349 F.

16 Supp. 3d 838, 844 (N.D. Cal. 2018) (observing that “[a]sylum is a protection granted

17 to foreign nationals already in the United States or at the border who meet the

18 international law definition of a ‘refugee.’” (emphasis added)).

19

20

Although Defendants focus on the “geographic nexus” that Section 1158(a)(1)

21 creates with the United States, they ignore its use of the present tense. In fact,

22 Defendants’ opening briefing expressly rewrites the statutory provision into the past

23 tense to seek dismissal of the New Individual Plaintiffs’ claims: “[n]one of the

24 Extraterritorial Plaintiffs alleges he or she was ‘physically present in’ the United

25 States or had ‘arrive[d] in’ the United States when subjected to Defendants’ alleged

26 conduct.” (ECF No. 192-1 at 8 (brackets in original and emphasis added).) In reply,

27 Defendants similarly argue for a past tense revision. (ECF No. 238 at 2 (purporting

28 to argue about the meaning of the statute’s “present simple tense” yet citing Matter

– 39 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6580 Page 40 of 84

1 of F-P-R, 24 I. & N. Dec. 681, 683 (BIA 2008) for the proposition that “‘last arrival

2 in’ at 8 C.F.R. § 1208.4(a)(2)(ii) . . . mean[s] the alien’s most recent coming or

3 crossing into the United States after having traveled from somewhere outside of the

4 country.” (emphasis added)).) Defendants’ argument must fail because it invites the

5 Court to do what it cannot: “[w]e are not at liberty to rewrite the words chosen by

6 Congress.” United States v. Vargas-Amaya, 389 F.3d 901, 906 (9th Cir. 2004).

7

8

Were the statute’s text not enough, as Amici Immigration Law Professors

9 observe, there is relevant legislative history on Congress’s intent in adopting the term

10 “arriving alien,” as reflected in a statement by Representative Lamar Smith,

11 Chairman of the House Judiciary Committee’s Subcommittee on Immigration and

12 Claims. (ECF No. 221-1 at 11.) In particular, Representative Smith observed that

13 the term “was selected specifically by Congress in order to provide a flexible concept

14 that would include all aliens who are in the process of physical entry past our

15 borders[.]. . . . ‘Arrival’ in this context should not be considered ephemeral or

16 instantaneous but, consistent with common usage, as a process. An alien

17 apprehended at any stage of this process, whether attempting to enter, at the point of

18 entry, or just having made entry, should be considered an ‘arriving alien’ for the

19 various purposes in which that term is used in the newly revised provisions of the

20 INA.” Implementation of Title III of the Illegal Immigration Reform and Immigrant

21 Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and

22 Claims of the H. Comm. on the Judiciary, 105th Cong. 17–18 (1997). Despite

23 Defendants’ attempt to dismiss this legislative history, (ECF No. 238 at 6), it

24 confirms the propriety of the Court’s conclusion that the statute’s use of the present

25 tense encompasses aliens in the process of arriving. See Daniel v. Nat’l Park Serv.,

26 891 F.3d 762, 775 (9th Cir. 2018) (“[T]he legislative history ‘confirms what we have

27 concluded from the text alone.’” (quoting Mohamad v. Palestinian Auth., 566 U.S.

28 449, 460 (2012))).

– 40 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6581 Page 41 of 84

1

(b) Presumption Against Extraterritoriality

2

Faced with the statute’s text, Defendants turn to the statutory canon of the

3 presumption against extraterritoriality to argue that “the right codified at section

4 1158(a)(1)” simply cannot extend “to persons outside the United States borders”

5 because this would be “in direct contravention of Supreme Court precedent and in

6 violation of the presumption against extraterritoriality.” (ECF No. 238 at 3 (citing

7 Sale, 509 U.S. at 173–74; E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)

8 (“It is a longstanding principal of American law that legislation of Congress, unless

9 a contrary intent appears, is meant to apply only within the territorial jurisdiction of

10 the United States.” (internal quotation marks omitted)).) The Court does not find

11 Defendants’ argument persuasive.

12

13

The presumption against extraterritoriality is what its name suggests—a

14 presumption. Application of the presumption is a two-step process, which may

15 reveal that Congress has rebutted the presumption for an entire statutory provision

16 or that the presumption is displaced in the context of a particular case’s facts. Under

17 the first step, a court considers “whether the presumption against extraterritoriality

18 has been rebutted—that is, whether the statute gives a clear, affirmative indication

19 that it applies extraterritorially.” RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.

20 2090, 2101 (2016). Second, if the statute does not clearly indicate an intent that it

21 applies extraterritorially, the court must consider “whether the case involves a

22 domestic application of the statute . . . by looking to the statute’s ‘focus.’” Id. at

23 2101. “If the conduct relevant to the statute’s focus occurred in the United States,

24 then the case involves a permissible domestic application even if other conduct

25 occurred abroad; but if the conduct relevant to the focus occurred in a foreign

26 country, then the case involves an impermissible extraterritorial application

27 regardless of any other conduct that occurred in U.S. territory.” Id.

28

– 41 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6582 Page 42 of 84

1

Defendants fail to actually apply the framework to Section 1158. The Court

2 will not undertake the task of doing Defendants’ work for them, particularly when

3 Defendants effectively seek to rely on the presumption as a bar to application of

4 Section 1158 to the New Individual Plaintiffs. This is not how the presumption

5 works.

6

7

In any event, the Court finds that the presumption is rebutted in this case.

8 First, as Plaintiffs contend (ECF No. 210 at 8–9), “[i]mmigration statutes, by their

9 very nature, pertain to activity at or near international borders. It is natural to expect

10 that Congress intends for laws that regulate conduct that occurs near international

11 borders to apply to some activity that takes place on the foreign side of those

12 borders.” United States v. Villanueva, 408 F.3d 193, 199 (5th Cir. 2005). A reading

13 of Section 1158(a)(1), when placed into context, shows that Congress intended the

14 statute to apply to asylum seekers in the process of arriving. The Court concludes

15 that the statute’s language sufficiently displaces the presumption. See RJR Nabisco,

16 Inc., 136 S. Ct. at 2102 (observing that “[w]hile the presumption can be overcome

17 only by a clear indication of extraterritorial effect, an express statement of

18 extraterritoriality is not essential. ‘Assuredly context can be consulted as well.’”

19 (quoting Morrison v. Nat’l Australian Bank Ltd., 561 U.S. 247, 265 (2010))). Even

20 if the Court proceeded to the second step of the extraterritoriality analysis, the factual

21 allegations of this case concern the conduct of U.S. officials acting from within the

22 United States or from areas over which the U.S. exercises sovereignty, whether the

23 Court looks at the alleged Turnback Policy or the alleged acts of individual CBP

24 officers standing on the U.S. side of the international bridge between Mexico and

25 the United States. As the Court has discussed, Section 1158(a)(1) incorporates

26 Section 1225, which in turns places a focus on immigration officers who process

27 arriving aliens. Thus, even if the New Individual Plaintiffs had not crossed into the

28 United States when they were attempting admission and expressed to CBP officers

– 42 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6583 Page 43 of 84

1 an intent to seek asylum in the United States, they have alleged conduct occurring in

2 the United States that is a focus of the relevant statutory provisions when viewed in

3 context. Thus, this case involves a permissible territorial application of Section

4 1158.

5

6

(c) 8 U.S.C. § 1157(c) Refugee Admission Process

7

Finally, for the first time in reply, Defendants point to 8 U.S.C. § 1157(c) to

8 argue that this Court should not read Section 1158(a)(1) to encompass aliens who

9 are not yet in the United States. (ECF No. 238 at 3–4, 16.) According to Defendants,

10 under Section 1157(c), “a process already exists for accepting applications for

11 refugee status from persons outside the United States.” (ECF No. 238 at 3–4, 16.)

12 Defendants argue that “to adopt Plaintiffs’ interpretation of Section 1158 would

13 render section 1157 redundant.” (Id. at 4.) The Court does not share Defendants’

14 view.

15

16

Even a cursory review of Section 1157 shows that the statute establishes a

17 fundamentally different and separate scheme for admission of refugees into the

18 United States in the case of “humanitarian concerns” or “national interest.” 8 U.S.C.

19 § 1157(a)(1). The number of admissions is limited to “such number as the President

20 determines, before the beginning of the fiscal year and after appropriate consultation,

21 is justified by humanitarian concerns or is otherwise in the national interest.” 8

22 U.S.C. § 1157(a)(2). Section 1157(c) permits the Attorney General, subject to the

23 numerical limitation, to “admit any refugee who is not firmly resettled in any foreign

24 country, is determined to be of special humanitarian concern to the United States,

25 and is admissible. . . as an immigrant.” 8 U.S.C. § 1157(c)(1). Notably, Section

26 1157 does not refer to the asylum procedures set forth in Section 1158(a)(1), nor

27 does Section 1157 concern Section 1225’s focus on inspection of arriving aliens.

28 These textual differences blunt the force of Defendants’ argument that reading

– 43 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6584 Page 44 of 84

1 Section 1158(a)(1) in the manner the Court has would improperly render Section

2 1157 redundant, particularly in this case. No New Individual Plaintiff seeks relief

3 under Section 1157. In contrast, their allegations plausibly show that they were

4 arriving aliens and thus may avail themselves of the procedural protections available

5 under Sections 1158 and 1225. Accordingly, the Court rejects Defendants’ Section

6 1157(c) argument.

7

8

* * *

9

In sum, the Court concludes that Section 1158(a)(1)’s plain language, properly

10 construed, embraces any New Individual Plaintiffs whose allegations show that they

11 were in the process of arriving in the United States at the time of the challenged

12 conduct. With this construction in mind, the Court turns to the statutory provisions

13 pursuant to which the New Individual Plaintiffs seek to compel Section 706(1) relief.

14

15

(2)

8 U.S.C. § 1225

16

The core of the New Individual Plaintiffs’ Section 706(1) APA claims lies in

17 certain mandatory duties that 8 U.S.C. § 1225 imposes on an immigration officer.

18 As a threshold matter, Plaintiffs’ opposition to Defendants’ motion to dismiss is

19 silent on dismissal of the New Individual Plaintiffs’ Section 706(1) claims insofar as

20 the claims are premised on 8 U.S.C. § 1225(b)(2)(A), a provision that requires

21 detention of aliens not otherwise covered under 8 U.S.C. § 1225(b)(1) and who have

22 not shown that they are entitled to admission clearly and beyond a doubt. (Compare

23 ECF No. 192-1 at 9–10 with ECF No. 210 at 5–9.) Thus, the Court construes

24 Defendants’ motion to dismiss as unopposed insofar as Defendants seek dismissal

25 of Plaintiffs’ Section 706(1) claims. The Court limits its analysis to the statutory

26 and regulatory duties to inspect and refer asylum seekers under 8 U.S.C. §

27 1225(a)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), and 8 C.F.R. § 235.3(b)(4). Many of the

28 previously articulated statutory construction principles applied to Section 1158(a)(1)

– 44 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6585 Page 45 of 84

1 carry over and lead the Court to a similar interpretation of these provisions.

2

3

(a) Statutory Duty to Inspect

4

Section 1225 establishes that “[a]ll aliens . . . who are applicants for admission

5 or otherwise seeking admission or readmission to or transit through the United States

6 shall be inspected by immigration officers.” 8 U.S.C. § 1225(a)(3) (emphasis

7 added). Section 1225(a)(3) provides a stronger textual argument that the duty to

8 inspect applies to aliens who may not yet be in the territorial United States. Referring

9 to the statute, albeit in passing, the Ninth Circuit has observed that “[a]ll applicants

10 for admission, whether they are at the border or already physically present inside the

11 country, must ‘be inspected by immigration officers’ who will determine their

12 admissibility.” Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1118 (9th Cir. 2007)

13 (quoting 8 U.S.C. § 1225(a)(3)). This interpretation makes sense because Section

14 1225(a)(3)’s duty to inspect reaches beyond “applicants for admission” to

15 encompass aliens who are “otherwise seeking admission.” 8 U.S.C. § 1225(a)(3).

16

17

Defendants fail to explain how, as a textual matter, Section 1225(a)(3)’s use

18 of the phrase “otherwise seeking admission . . . to. . . the United States” does not

19 include aliens who may be located outside the United States, but who are in the

20 process of seeking admission to the United States. Instead, Defendants contend that

21 the New Individual Plaintiffs were not seeking admission “in the manner prescribed

22 by statute and regulation.” (ECF No. 192-1 at 8 (citing 8 U.S.C. § 1225(a)(1), 8

23 C.F.R. § 235.1(a)).) Defendants point to a regulation, which provides that

24 “[a]pplication to lawfully enter the United States shall be made in person to an

25 immigration officer at a U.S. port-of-entry when the port is open for inspection, or

26 as otherwise designated in this section.” 8 C.F.R. § 235.1(a). All New Individual

27 Plaintiffs, however, allege that they sought admission to the United States by

28 presenting him or herself to a CBP officer at a U.S. POE. (SAC ¶¶ 29–35, 154–56,

– 45 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6586 Page 46 of 84

1 162, 165–67, 174–75, 181, 185, 187–88, 193, 199.) Plaintiffs do not allege that the

2 POE was not open, but rather that CBP officers told them that the POE purportedly

3 did not have “capacity” to accept applications from asylum seekers. (Id. ¶¶ 83, 85–

4 86, 93– 94, 95–97, 98–102, 103–05, 153–202.) These allegations plausibly show

5 that these Plaintiffs were seeking admission into the United States. Defendants’

6 challenge to any Section 706(1) claims premised on the duty to inspect therefore

7 fails.

8

9

(b) Statutory and Regulatory Duties to Refer

10

Section 1225(b)(1)(A)(ii) provides that:

11

If an immigration officer determines that an alien (other than an

12

alien described in subparagraph (F)) who is arriving in the United

States or is described in clause (iii) is inadmissible under section

13

1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates

14

either an intention to apply for asylum under section 1158 of this

title or a fear of persecution, the officer shall refer the alien for an

15

interview by an asylum officer under subparagraph (B).

16

8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).

17 Unlike Section 1225(a)(1), Section 1225(b)(1)(A)(ii) uses the present progressive

18 phrase “to be arriving.” This phrase plainly encompasses aliens who are in the

19 process of arriving in the United States. As the Court has discussed, Defendants’

20 challenge to the New Individual Plaintiffs’ Section 706(1) claims largely turns on

21 rewriting the statute into the past tense. Properly applying the statute’s use of the

22 phrase alien “who is arriving in the United States” to the allegations of the New

23 Individual Plaintiffs blunts Defendants’ argument. This is equally true for the four

24 New Individual Plaintiffs who allege that they were crossing the international bridge

25 to the physical POE and were stopped midway on the bridge, yet who told the CBP

26 officers that they wanted to seek asylum in the United States.

27

28

The plain language of DHS’s own implementing regulations sweeps more

– 46 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6587 Page 47 of 84

1 broadly. 8 C.F.R. § 235.3(b)(4) imposes an analogous regulatory duty on the

2 inspecting officer not to proceed further with removal of an alien subject to the

3 expedited removal provisions if the alien indicates an intention to apply for asylum,

4 expresses a fear of persecution or torture, or expresses a fear of return to his or her

5 country. 8 C.F.R. § 235.3(b)(4). Two additional regulations directly bear on the

6 scope of 8 C.F.R. § 235.3(b)(4). By regulation, the expedited removal provisions of

7 the INA apply to “arriving aliens, as defined in 8 C.F.R. 1.2.” 8 C.F.R. §

8 235.3(b)(1)(i). 8 C.F.R. § 1.2 in turn defines “arriving alien” to mean, in relevant

9 part, “an applicant for admission coming or attempting to come into the United States

10 at a port-of-entry[.]” 8 C.F.R. § 1.2 (emphasis added). “A regulation should be

11 construed to give effect to the natural and plain meaning of its words.” Bayview

12 Hunters Point Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d 692, 698 (9th

13 Cir. 2004) (quoting Crown Pacific v. Occupational Safety & Health Review

14 Comm’n, 197 F.3d 1036, 1038 (9th Cir. 1999)). Here, by including aliens

15 “attempting to come into the United States at a [POE],” the regulation is broader

16 than 8 U.S.C. § 1225(a)(1)’s definition of “applicant for admission.” And these

17 regulations indicate that DHS—contrary to Defendants’ current position in this

18 litigation—interprets the statutory obligations under Section 1225 to apply to aliens

19 who have not yet come into the United States, but who are “attempting to” do so.

20 As the Court has already determined, the New Individual Plaintiffs were in the

21 process of seeking admission into the United States or otherwise attempting to do

22 so. Their allegations plainly show that they expressed an intent to seek asylum in

23 the United States to a CBP officer. Thus, the Court concludes that the New

24 Individual Plaintiffs have stated a claim for relief under the mandatory duties

25 reflected in 8 U.S.C. § 1225(b)(1)(A)(ii) and 8 C.F.R. § 235.3(b)(4).

26

27

C. Plaintiffs’ Section 706(2) APA Claims

28

Under Section 706(2) of the APA, a reviewing court must “hold unlawful and

– 47 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6588 Page 48 of 84

1 set aside agency action, findings, and conclusions found to be . . . arbitrary,

2 capricious, an abuse of discretion, or otherwise not in accordance with law; contrary

3 to constitutional right, power, privilege, or immunity; in excess of statutory

4 jurisdiction, authority, or limitations, or short of statutory right; [or] without

5 observance of procedure required by law.” 5 U.S.C. § 706(2)(A)–(D).

6

7

Plaintiffs assert Section 706(2) APA claims based on three sets of allegations.

8 (SAC ¶¶ 270–82.) First, Plaintiffs challenge the alleged Turnback Policy and

9 “sanctioning of CBP’s unlawful widespread pattern or practice of denying and

10 unreasonably delaying asylum seekers’ access to the asylum process” under Sections

11 706(2)(C) and 706(2)(D). (Id. ¶¶ 272, 274.) Plaintiff allege that the Turnback Policy

12 is a final agency action under 5 U.S.C. § 704. (Id. ¶ 274.) Second, Plaintiffs

13 challenge the alleged turnbacks of Individual Plaintiffs and class members “at POEs

14 or along the U.S.-Mexico border without following the procedures mandated by the

15 INA and its implementing regulations” as unlawful conduct by CBP officials. (Id. ¶

16 273.) Plaintiffs allege that each instance when Defendants directly or constructively

17 deny Class Plaintiffs or purported class members access to the asylum process

18 constitutes a final agency action under 5 U.S.C. § 704. (Id. ¶ 275.) Third, like the

19 original complaint, Plaintiffs allege that Defendants have a pattern and practice of

20 unlawfully turning back asylum seekers at POEs.

21

22

Defendants raise three arguments for dismissal of Plaintiffs’ Section 706(2)

23 claims. First, Defendants argue that Plaintiffs fail to identify final agency action to

24 state APA claims for either the alleged Turnback Policy, the alleged widespread

25 pattern or practice of denying access to the asylum process, or any individual

26 turnbacks. Second, Defendants challenge the Section 706(2) claims of New

27 Individual Plaintiffs allegedly in Mexico at the time of their injuries. Defendants

28 argue that “metering is lawful” based on the Executive’s “inherent power” to control

– 48 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6589 Page 49 of 84

1 the Nation’s foreign affairs and two statutory provisions that Defendants contend

2 “authorize CBP officers to keep the [POEs] from being overwhelmed by an unsafe

3 number of pedestrians at a given time.” (ECF No. 192-1 at 9–12 (relying on 8 U.S.C.

4 § 1103(a)(3) and 6 U.S.C. § 202(2), (8).) Tucked into Defendants’ “metering is

5 lawful” argument is Defendants’ third argument that the asserted breadth of

6 Defendants’ authority under the same two statutory provisions makes Defendants’

7 conduct unreviewable under the APA. The Court addresses the arguments and

8 rejects them all.

9

10

1. Final Agency Action

11

The APA limits judicial review to agency action in the form of “the whole or

12 part of an agency rule, order, license, sanction, relief, or the equivalent or denial

13 thereof, or failure to act.” 5 U.S.C. § 551(13). An agency action must be

14 “reviewable by statute” or be a “final agency action for which there is no other

15 adequate remedy[.]” 5 U.S.C. § 704; Navajo Nation v. Dep’t of the Interior, 876

16 F.3d 1144, 1171 (9th Cir. 2017).

17

18

Two conditions must be satisfied for an agency action to be final: (1) “the

19 action must mark the consummation of the agency’s decisionmaking process—it

20 must not be of a merely tentative or interlocutory nature” and (2) “the action must

21 be one by which rights or obligations have been determined, or from which legal

22 consequences will flow.” United States Army Corps of Engineers v. Hawkes Co.,

23 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78

24 (1997)). “In determining whether an agency’s action is final, we look to whether [a]

25 the action amounts to a definitive statement of the agency’s position or [b] has a

26 direct and immediate effect on the day-to-day operations of the subject party, or [c]

27 if immediate compliance with the terms is expected.” Or. Nat. Desert Ass’n v.

28 United States Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (internal quotations

– 49 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6590 Page 50 of 84

1 and citations omitted). The focus is “on the practical and legal effects of the agency

2 action.” Id.

3

4

“[A]gency action . . . need not be in writing to be final and judicially

5 reviewable” pursuant to the APA. Al Otro Lado, Inc., 327 F. Supp. 3d at 1319

6 (quoting R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 184 (D.D.C. 2015)). An unwritten

7 policy can still satisfy the APA’s pragmatic final agency action requirement. See

8 Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.C. Cir. 2008)

9 (reviewing challenge to an agency’s “decision . . . to adopt [an unwritten] policy of

10 disclosing confidential information without notice” because such a policy was

11 “surely a consummation of the agency’s decisionmaking process” that impacted the

12 plaintiff’s rights); R.I.L.-R, 80 F. Supp. 3d at 174–176 (determining that plaintiffs

13 had shown a reviewable unwritten “DHS policy direct[ing] ICE officers to consider

14 deterrence of mass migration as a factor in their custody determinations” as

15 underlying the plaintiffs' detention). “[A] contrary rule ‘would allow an agency to

16 shield its decisions from judicial review simply by refusing to put those decisions in

17 writing.’” R.I.L.-R, 80 F. Supp. 3d at 184 (quoting Grand Canyon Tr. v. Pub. Serv.

18 Co. of N.M., 283 F. Supp. 2d 1249, 1252 (D.N.M. 2003)); see also Aracely, R. v.

19 Nielsen, 319 F. Supp. 3d 110, 138 (D.D.C. 2018) (“Despite Defendants’ assertions

20 to the contrary, agency action need not be in writing to be judicially reviewable as a

21 final action.”).

22

23

There are, of course, limitations on whether challenged agency action is

24 properly characterized as a policy, even if the policy is alleged to be unwritten. A

25 plaintiff may not simply attach a policy label to disparate agency practices or

26 conduct. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 870, 890 (1990); Bark v. U.S.

27 Forest Serv., 37 F. Supp. 3d 41, 50 (D.D.C. 2014) (concluding that although the

28 plaintiffs “have attached a [policy] label to their own amorphous description of the

– 50 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6591 Page 51 of 84

1 [agency’s] practices,” “a final agency action requires more.”); Lightfoot v. District

2 of Columbia, 273 F.R.D. 314, 326 (D.D.C. 2011) (“The question is not whether a

3 constellation of disparate but equally suspect practices may be distilled from the

4 varying experiences of the class; rather, Plaintiffs must first identify the ‘policy or

5 custom’ they contend violates [the law] and then establish that the ‘policy or custom’

6 is common to the class.”).

7

8

The parties dispute whether Plaintiffs have shown the existence of final

9 agency action for their Section 706(2) claims. Insofar as Plaintiffs seek to state

10 Section 706(2) claims for individual turnbacks, the Court has already advised

11 Plaintiffs that individual turnbacks—which fundamentally concern alleged failures

12 by CBP officers to discharge certain mandatory statutory duties—are appropriately

13 considered under Section 706(1). See Al Otro Lado, Inc., 327 F. Supp. 3d at 1309

14 (citing Rosario v. United States Citizenship & Immigration Servs., No. C15-

15 0813JLR, 2017 WL 3034447, at *7 n.6 (W.D. Wash. July 18, 2017); Leigh v.

16 Salazar, No. 3:13-cv-00006-MMD-VPC, 2014 WL 4700016, at *4 (D. Nev. Sept.

17 22, 2014) (construing a Section 706(2) claim regarding an agency’s alleged failure

18 to act as in fact a Section 706(1) claim)). This admonition applies equally to

19 individual turnbacks that allegedly occurred because of the Turnback Policy. Thus,

20 the Court limits its present analysis to whether the Turnback Policy and the alleged

21 pattern or practice of illegal tactics by CBP officers constitute final agency action

22 sufficient for Plaintiffs to state an APA claim.

23

24

a. Alleged Turnback Policy

25

In the wake of the Court’s dismissal of Plaintiffs’ previous Section 706(2)

26 claims, Plaintiffs have revised their factual allegations and their Section 706(2)

27 policy claim. Plaintiffs disavow a policy of categorical denials of access to the

28 asylum system. (ECF No. 210 at 10–11.) Instead, Plaintiffs contend that

– 51 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6592 Page 52 of 84

1 “Defendants, high-level agency officials, have adopted a policy mandating that CBP

2 officers at POEs drastically restrict the flow of asylum seekers at POEs along the

3 U.S.-Mexico border by turning them back to Mexico when they present themselves

4 for inspection, based on the false claims of ‘capacity constraints.’” (Id.) Plaintiffs

5 have sufficiently alleged the existence of such a policy that constitutes a final agency

6 action.

7

8

Plaintiffs allege that the Turnback Policy originated in 2016, was formalized

9 in 2018 as a culmination of the agency’s decision-making process, and is being

10 actively implemented along the border. (SAC ¶¶ 48–83 (explaining the initiation

11 and development of the Turnback Policy, based on publicly available materials and

12 limited discovery from CBP).) Plaintiffs point to various instances of U.S.

13 government officials’ acknowledgement of a policy concerning the ability of

14 noncitizens to access asylum when they present themselves at the U.S-Mexico

15 border. The SAC cites a DHS Office of Inspector General report indicating that

16 DHS has embraced a policy to limit access to the asylum process. (SAC ¶¶ 70–71.)

17 The SAC identifies statements from President Trump, former U.S. Attorney General

18 Jeff Sessions, then-DHS Secretary Kirstjen Nielsen, then-Commissioner

19 McAleenan, and other CBP employees, all of which are plausibly read to show the

20 existence of the alleged Turnback Policy. (SAC ¶¶ 60–66, 68–69, 71, 75.) The SAC

21 otherwise contains extensive allegations of alleged turnbacks of asylum seekers by

22 CBP officers at POEs along U.S.-Mexico border based on assertions of lack of

23 capacity, all of which plausibly point to the existence of an unwritten policy. (See

24 SAC ¶¶ 49, 75, 77–78, 83–201.)

25

26

Defendants’ arguments that Plaintiffs fail to establish a final agency action

27 miss the mark. For one, despite arguing that Plaintiffs have simply attached a

28 “policy” label to Defendants’ alleged conduct, Defendants’ briefing leaves the

– 52 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6593 Page 53 of 84

1 distinct impression that Defendants concede the existence of a policy from which

2 Plaintiffs’ alleged injuries flow. Whereas Plaintiffs refer to this policy as the

3 “Turnback Policy,” Defendants refer to the challenged conduct as one of “metering.”

4 (ECF No. 192-1 at 11–15; ECF No. 238 at 9–12.) Second, Defendants recycle an

5 argument that they raised in their first motion to dismiss Plaintiffs’ Section 706(2)

6 claims. Defendants argue once more that Plaintiffs have not plausibly alleged a

7 policy of categorical denials of asylum at POEs along the U.S-Mexico border. (ECF

8 No. 192-1 at 16, 30.) The Court previously dismissed Plaintiffs’ Section 706(2)

9 claims on this basis. But, as Plaintiffs expressly argue in opposition (ECF No. 210

10 at 10–11), they do not claim that the Turnback Policy is a policy to categorically

11 deny asylum seekers entry into the United States. Instead, Plaintiffs allege this is a

12 policy aimed at deterring or limiting asylum seekers from seeking asylum in the

13 United States. Defendants’ argument therefore lacks force based on the current

14 pleadings. Third, Defendants challenge Plaintiffs’ reliance on statements by U.S.

15 government officials as premised on a “limited selection of Defendants’ own

16 statements and communications[.]” (ECF No. 192-1 at 16–17.) Defendants’

17 argument is ostensibly based on the notion that there are other statements by U.S.

18 government officials that would defeat or undermine Plaintiffs’ claims regarding the

19 Turnback Policy. Such a merits challenge is inappropriate at this stage.

20 Accordingly, the Court concludes that Plaintiffs have adequately identified a final

21 agency action in the form of the Turnback Policy.

22

23

b. Alleged Pattern and Practice

24

Defendants move to dismiss Plaintiffs’ Section 706(2) claims insofar as the

25 claims concern the allegations that Defendants have “sanctioned” a practice and

26 pattern of denying access to the asylum procedure in the United States. Defendants

27 contend that “alleged misrepresentations, threats, intimidation, verbal and physical

28 abuse, coercion, ‘unreasonable delays,’ and racially discriminatory denial of access”

– 53 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6594 Page 54 of 84

1 are not final agency action because they “are not plausibly attributable to a DHS or

2 CBP Policy.” (ECF No. 238 at 8.) In previously dismissing Plaintiffs’ Section

3 706(2) claims, the Court observed that allegations regarding this conduct could not

4 state a Section 706(2) claim because Plaintiffs failed to connect the conduct to any

5 “unwritten policy” of Defendants. Al Otro Lado, 327 F. Supp. 3d at 1319. The

6 Court, however, does not find that this previous conclusion controls here. Plaintiffs

7 expressly allege that the pattern and practice of unlawful tactics and the Turnback

8 Policy “are designed” together to serve the Trump Administration’s “broader goal”

9 of deterring asylum seekers from accessing the asylum process and the allegations

10 show both co-existing. (SAC ¶¶ 2, 4, 48, 51–60, 84–106.) Plaintiffs’ allegations

11 regarding a “sanctioned” pattern and practice of CBP officers using certain tactics to

12 deny access to the asylum process dovetail with Plaintiffs’ allegations that the

13 Turnback Policy is based on false assertions of lack of capacity. Accordingly, the

14 Court finds that Plaintiffs’ allegations of an alleged pattern and practice are directly

15 linked with the alleged Turnback Policy such that it is not proper to dismiss

16 Plaintiffs’ Section 706(2) claims as to the alleged pattern and practice.

17

18

2. Asserted Unreviewable Agency Discretion

19

Defendants point to 8 U.S.C. § 1103(a)(1) and 6 U.S.C. § 202 as “especially

20 authoriz[ing] CBP officers to keep the ports from being overwhelmed by an unsafe

21 number of pedestrians at a given time,” thus requiring dismissal of Plaintiffs’ Section

22 706(2) claims. (ECF No. 192-1 at 13–14.) Defendants argue that the New Individual

23 Plaintiffs “make no attempt . . . to square the breadth of Defendants’ authority to

24 meter under these statutes with the APA’s prohibition on judicial review of agency

25 action ‘committed to agency discretion by law.’” (ECF No. 192-1 at 14 (quoting 5

26 U.S.C. § 701(a)(2)).) Because the APA precludes review of “agency action . . .

27 committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), the Court must

28 consider this argument before addressing the merits of Plaintiffs’ claim that the

– 54 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6595 Page 55 of 84

1 alleged Turnback Policy is unlawful.

2

3

Section 1103 establishes the powers and duties of the Secretary of Homeland

4 Security. As a general matter, “[t]he Secretary of Homeland Security shall be

5 charged with the administration and enforcement of this chapter and all other laws

6 relating to the immigration and naturalization of aliens[.]” 8 U.S.C. § 1103(a)(1).

7 Defendants point to Section 1103(a)(3) in particular, which provides that the

8 Secretary “shall establish such regulations; prescribe such forms of bond, reports,

9 entries, and other papers; issue such instructions; and perform such other acts as he

10 deems necessary for carrying out his authority under the provisions of this chapter.”

11 8 U.S.C. § 1103(a)(3) (emphasis added). 6 U.S.C. § 202 in turn provides, in relevant

12 part, that “[t]he Secretary shall be responsible for” “[s]ecuring the borders, territorial

13 waters, ports, terminals, waterways, and air, land, and sea transportation systems of

14 the United States, including managing and coordinating those functions transferred

15 to the Department [of Homeland Security] at ports of entry.” 6 U.S.C. § 202(2). “In

16 carrying out” this responsibility, the Secretary is responsible for “ensuring the

17 speedy, orderly, and efficient flow of lawful traffic and commerce.” 6 U.S.C. §

18 202(8). According to Defendants, Section 1103(a) and 202 are so broad, that they

19 do not offer any standard against which the challenged conduct may be evaluated

20 under the APA. (ECF No. 192-1 at 14–15.)

21

22

“[A]t the outset, there is reason to be skeptical of [Defendants’] position[.]”

23 Weyerhaeuser Co. v. United States Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018)

24 (Roberts, C.J.). There exists a “strong presumption that Congress intends judicial

25 review of administrative action.” Bowen v. Mich. Acad. of Family Physicians, 476

26 U.S. 667, 670 (1986); see also Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1652–

27 53 (2015) (“[L]egal lapses and violations occur, and especially so when they have

28 no consequence. That is why this Court has so long applied a strong presumption

– 55 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6596 Page 56 of 84

1 favoring judicial review of administrative action.”). “The presumption may be

2 rebutted only if the relevant statute precludes review, 5 U.S.C. § 701(a)(1), or if the

3 action is ‘committed to agency discretion by law,’ § 701(a)(2).” Weyerhaeuser Co.,

4 139 S. Ct. at 370. The exception in Section 701(a)(2) is read “quite narrowly,

5 restricting to ‘those rare circumstances where the relevant statute is drawn so that a

6 court would have no meaningful standard against which to judge the agency’s

7 exercise of discretion.’” Id. (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993));

8 see also Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476,

9 494 (9th Cir. 2018) (noting only “rare” agency actions fit this “narrow” committed-

10 to-agency-discretion exception to judicial reviewability). Defendants have failed to

11 show that judicial review is precluded under the relevant statutes.

12

13

Sections 1158 and 1225 cannot be nullified by general statutory provisions

14 regarding the Secretary’s authority unless Congress clearly intended so. See BNSF

15 Ry. Co. v. Cal. Dep’t of Tax & Fee Admin., 904 F.3d 755, 766 (9th Cir. 2018)

16 (“[W]here there is no clear intention otherwise, a specific statute will not be

17 controlled or nullified by a general one, regardless of the priority of enactment.”

18 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987))).

19 Congress has already determined how immigration officers are to “manage the flow”

20 of arriving aliens who express to an immigration officer an intention to apply for

21 asylum or a fear of persecution. Section 1225 imposes mandatory obligations to

22 inspect all aliens who are applicants for admission or otherwise seeking admission

23 and further imposes certain screening duties for asylum seekers. Notably, 8 U.S.C.

24 § 1103(a)(1) expressly charges the Secretary with the enforcement of “all other laws

25 relating to the immigration,” which certainly includes the provisions at issue in this

26 case.

27

28

In the face of these specific statutes, Defendants endeavor to argue that any

– 56 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6597 Page 57 of 84

1 constraints on their authority under 8 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225 are

2 not at issue in this case and thus these statutory provisions do not bear on the

3 Secretary’s asserted exercise of discretionary authority under 8 U.S.C. § 1103(a)(3)

4 and 6 U.S.C. § 202(2). Defendants first contend that because the New Individual

5 Plaintiffs were not in the United States at the time of their alleged injuries, Plaintiffs’

6 argument that “Sections 1158 and 1225 limit the scope of the Secretary’s authority

7 under 8 U.S.C. § 1103(a)(3) and 6 U.S.C. § 202” “has no force.” (ECF No. 238 at

8 9.) Insofar as Defendants raise this argument against the Turnback Policy, this

9 argument fails because, at a minimum, Plaintiff Al Otro Lado—a domestic

10 Plaintiff—joins the Individual Plaintiffs in challenging Defendants’ conduct. The

11 argument otherwise fails because the Court has rejected Defendants’ underlying

12 premise regarding the scope of Sections 1158 and 1225 in relation to the New

13 Individual Plaintiffs.

14

15

Defendants further argue that the interpretative canon that specific statutes

16 limit general statutes “does not apply here, because the processes mandated by

17 Section 1225 do not implicate the authority conferred by Sections 1103(a)(3) and

18 202.” (ECF No. 238 at 10.) This argument makes no sense. There is no logical way

19 to treat the Secretary’s asserted authority and charge to secure the border as mutually

20 exclusive from the procedures Section 1225 mandates. Section 202(2) expressly

21 refers to “ports.” 6 U.S.C. § 202(2). Both Sections 1185(a)(1) and 1225 refer to

22 aliens who arrive in the United States, including at a “port of arrival.” Defendants

23 elsewhere argue that applications for admission must be made at ports of entry. 8

24 C.F.R. § 235.1(a) (“[a]pplication to lawfully enter the United States shall be made

25 in person to a U.S. immigration officer at a U.S. port-of-entry.”); (ECF No. 192-1 at

26 9 (citing 8 C.F.R. § 235.1(a)). Thus, the relevant INA provisions governing the

27 duties of immigration officers with respect to aliens who seek admission at POEs

28 plainly bear on how the Secretary may exercise whatever authority the Secretary has

– 57 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6598 Page 58 of 84

1 to manage POEs. Defendants conspicuously do not argue that these provisions do

2 not provide a means to assess the legality of Defendants’ conduct.

3

4

Accordingly, the Court rejects Defendants’ argument that Plaintiffs’ Section

5 706(2) claims are unreviewable on the asserted basis of discretion committed to the

6 agency. Whatever authority the Secretary may possess pursuant to the general grants

7 of authority in Sections 1103(a)(1) and 202(2) over the “flow of traffic” across the

8 border, Congress’s general allowance for the Secretary to “perform such other acts

9 as [she] deems necessary for carrying out” her authority to administer and enforce

10 the INA, 8 U.S.C. § 1103(a)(3), cannot entail the authority to rewrite specific

11 congressional mandates or to pretend that such mandates do not exist. “The power

12 of executing the laws . . . does not include a power to revise clear statutory terms

13 that turn out not to work in practice,” and it is thus a “core administrative-law

14 principle that an agency may not rewrite clear statutory terms to suit its own sense

15 of how the statute should operate.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,

16 328 (2014).

17

18

3. The Unlawfulness of the Alleged Turnback Policy

19

The core of Plaintiffs’ Section 706(2) claims is that the alleged Turnback

20 Policy is “in excess of statutory jurisdiction, authority, or limitations” and “without

21 observance of procedure required by law.” (SAC ¶¶ 271–72 (citing 5 U.S.C. §

22 706(2)(C), (D)).) In particular, Plaintiffs claim that the alleged Turnback Policy

23 contravenes the congressionally-established procedure set forth in 8 U.S.C. §

24 1158(a)(1) and 8 U.S.C. § 1225.

25

26

Plaintiffs offer two principal theories why the alleged policy violates the

27 procedures that Congress established in these provisions. First, Plaintiffs contend

28 that Defendants’ alleged conduct acting pursuant to the Turnback Policy is ultra

– 58 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6599 Page 59 of 84

1 vires because it “ignore[s] the mandatory procedures to inspect and process asylum

2 seekers that Congress has put in place.” (ECF No. 210 at 17.) Second, Plaintiffs

3 contend that the alleged Turnback Policy is unlawful because it is “impermissibly

4 aimed at deterrence” and “based on false claims of lack of capacity.” (Id. at 20.)

5 Although Plaintiffs treat these theories as distinct bases to find the alleged Turnback

6 Policy unlawful, (id. at 16–22), the Court finds that they cannot be disentangled from

7 each other. Construing them together, the Court concludes that Plaintiffs have

8 sufficiently alleged that the Turnback Policy is unlawful.11

9

10

As an initial matter, Defendants resist application of 8 U.S.C. § 1158(a)(1)

11 and 8 U.S.C. § 1225 to assess the legality of the alleged Turnback Policy.

12 Defendants reiterate their argument that the challenged conduct is entirely lawful

13 under 8 U.S.C. § 1103(a)(3) and 6 U.S.C. § 202 because 8 U.S.C. § 1158(a)(1) and

14 8 U.S.C. § 1225 have “no force as to the Extraterritorial Plaintiffs and the putative

15 class members they seek to represent” who, according to Defendants, “do not allege

16 that they were ever present in the United States.” (ECF No. 238 at 9.) These

17 arguments falter at this juncture for reasons the Court has already discussed. 8

18 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225 qualify the authority set forth in 8 U.S.C.

19 § 1103(a)(3) and 6 U.S.C. § 202.

20

21

Next, relying on Sections 1103(a)(3) and 202(2), Defendants contend that

22 there are valid reasons why CBP officers cannot unwaveringly adhere to the

23 procedures set forth in 8 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225. According to

24 Defendants, “port management is a complex task[.]” (ECF No. 192-1 at 13.)

25

26

11 Because the Court concludes that these theories are together sufficient for

27 Plaintiffs to state Section 706(2) claims, the Court declines to address Plaintiffs’

28

alternative and third argument that the alleged Turnback Policy is unlawful because it unreasonably delays the processing of asylum seekers. (ECF No. 210 at 22–23.)

– 59 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6600 Page 60 of 84

1 Defendants contend that “CBP necessarily could not ‘secure’ or ‘manage’ a port if,

2 in addition to its other mission responsibilities, any alien without appropriate travel

3 documents could cross the border whenever she chooses and immediately trigger

4 Defendants’ statutory duties to ‘inspect[],’ ‘refer,’ or ‘detain[]’ her under section

5 1225.” (Id. (emphasis in original).) Defendants argue the Sections 1103(a)(3) and

6 202(2) authorize CBP officers “to permit an alien without appropriate travel

7 documentation to cross the border only if the port has the capacity to safely and

8 humanely process her application for admission and hold her for further

9 proceedings,” (ECF No. 192-1 at 13 (emphasis added)), and “especially authorize

10 CBP officers to keep ports from being overwhelmed by an unsafe number of

11 pedestrians entering at any time,” (id). Consistent with this view about their

12 authority over “port management,” Defendants urge the Court to conclude that the

13 alleged conduct does not occur ultra vires, exceed the scope of their authority, or

14 without observance of the procedure required by law. (Id.)

15

16

The Court acknowledges that it is entirely possible that there may exist

17 potentially legitimate factors that prevent CBP officers from immediately

18 discharging the mandatory duties set forth in 8 U.S.C. § 1158(a)(1) and 8 U.S.C. §

19 1225. Even Plaintiffs acknowledge as much. (ECF No. 210 at 21.) And the Court

20 acknowledges that federal agencies and the individuals who lead them can face co-

21 existing obligations that Congress has chosen to place on the agency, obligations that

22 may at times be viewed as competing with each other and competing for the

23 resources an agency has.

24

25

The problem with Defendants’ reliance on Sections 1103(a)(3) and 202(2) is

26 that Plaintiffs allege that the asserted concerns over capacity are merely a pretext to

27 avoid discharging the duties set forth in 8 U.S.C. § 1158(a)(1) and 8 U.S.C. § 1225

28 and deter asylum seekers from seeking asylum in the United States. Plaintiffs offer

– 60 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6601 Page 61 of 84

1 numerous factual allegations on this point. (SAC ¶¶ 4–6, 48, 61, 66, 72–73, 76–78,

2 109, 111, 274.) And, contrary to Defendants’ suggestion regarding complex port

3 management, Plaintiffs contend that Defendants’ Turnback Policy “screen[s] out

4 asylum seekers from other applications for admission approaching POEs and send[s]

5 them back to an uncertain fate in Mexico[.]” (ECF No. 210 at 17.) In other words,

6 the purported exercise of authority under Sections 1103(a)(3) and 202(2) specifically

7 targets asylum seekers—not any other aliens who may be crossing into the United

8 States through POEs.

9

10

In the face of these allegations, Defendants challenge the sufficiency of

11 Plaintiffs’ deterrence allegations as a factual matter by largely relying on materials

12 outside of the pleadings. (ECF No. 192-1 at 15; ECF No. 238 at 10.) Indeed, in their

13 opening brief, Defendants argue that “[t]he record before the Court shows clearly

14 that the Secretary and her designees have deemed it necessary to manage the flow of

15 pedestrian traffic when port resources are strained.” (ECF No. 192-1 at 15 (citing

16 Exs. 1–6).) There is no “record” before the Court on a Rule 12(b)(6) motion, but

17 rather the Court is limited to a review of the pleadings and any documents attached

18 to them. United States v. Ritchie, 342 F.3d 903, 907–09 (9th Cir. 2003). Defendants’

19 reliance on non-pleadings materials underscores that Defendants’ arguments about

20 the truthfulness of Plaintiffs’ deterrence allegations are fundamentally merits

21 arguments that the Court cannot resolve at this stage.12

22

23

Assuming the truth of Plaintiffs’ deterrence allegations, the remaining issue is

24 whether an alleged motive to deter asylum seekers from seeking asylum in the

25 United States is unlawful. Plaintiffs argue that it is. Plaintiffs’ fundamental

26

27

12 For this reason, the Court also rejects Defendants’ attempt to direct the

28

Court to factual assertions made in a declaration filed in a different case. (ECF No. 192-1 at 5, 13.)

– 61 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6602 Page 62 of 84

1 contention is that “[t]he plain language and intent of the INA’s asylum provision

2 unambiguously preclude Defendants from adopting a policy or otherwise engaging

3 in a practice of denying individuals access to the U.S. asylum process at POEs, even

4 if Defendants prevent those asylum seekers from physically crossing the U.S.-

5 Mexico border.” (ECF No. 210 at 17.) On this issue, Defendants argue that Plaintiffs

6 offer nothing more than a “legal conclusion.” (ECF No. 238 at 11.) The Court,

7 however, finds nothing conclusory about Plaintiffs’ assertions of illegality.

8

9

Congress has enacted a scheme that mandates inspection of all aliens seeking

10 admission to the United States and mandates referral to an asylum officer of asylum

11 seekers who present themselves at a POE and indicate their intention to apply for

12 asylum or a fear of persecution. 8 U.S.C. § 1225(a)(3); 8 U.S.C. § 1225(b)(1)(A)(i).

13 Although this statutory scheme treats asylum seekers differently, it does so only in

14 the sense that such aliens are to be promptly identified and their asylum claims are

15 to be appropriately considered. As Plaintiffs and Amici Immigration Law Professors

16 observe (ECF No. 210 at 19; ECF No. 221-1 at 5–6), the “uniform asylum policy”

17 driving the 1980 Refugee Act, an act which replaced the previous ad hoc refugee

18 and asylum system, was “[a] fundamental belief that the granting of asylum is

19 inherently a humanitarian act distinct from the normal operation and administration

20 of the immigration process.” Aliens and Nationality; Asylum and Withholding of

21 Deportation Procedures, 55 Fed. Reg. 30674-01, 30675 (July 27, 1990) (to be

22 codified at 8 CFR Parts 3, 103, 208, 236, 242, and 253) (emphasis added); see also

23 E. Bay Sanctuary Covenant, 2018 WL 8807133, at *3 (observing that “[i]n 1980,

24 Congress codified our obligation to receive persons who are ‘unable or unwilling to

25 return to’ their home countries ‘because of persecution or a well-founded fear of

26 persecution on account of race, religion, nationality, membership in a particular

27 social group, or political opinion.’ (quoting 8 U.S.C. §§ 1101(a)(42), 1158(b)(1))).

28 Congress’s intent to prescribe a uniform asylum procedure remains reflected in the

– 62 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6603 Page 63 of 84

1 current asylum procedure. 8 U.S.C. § 1158; 8 U.S.C. § 1225; see also E. Bay

2 Sanctuary Covenant, 2018 WL 8807133, at *3.

3

4

Turning back prospective asylum applicants pursuant to an alleged executive

5 policy that seeks to deter asylum seekers through false assertions of lack of capacity

6 is plausibly inconsistent with and violative of the scheme Congress enacted. This

7 conclusion follows from a comparison of Section 1157 and Section 1158. Although

8 Defendants have elsewhere pointed to Section 1157 as a purported limitation on the

9 extraterritorial scope of 8 U.S.C. § 1158(a)(1), Defendants overlook a key distinction

10 between Sections 1157 and 1158 that cuts against the lawfulness of adopting a policy

11 to deter asylum seekers. Section 1157 expressly authorizes the President to set

12 numerical limits for aliens who may be admitted as refugees into the United States

13 on an annual basis. 8 U.S.C. § 1157(a)(2). Neither Section 1158(a)(1), nor Section

14 1225(b), however, establishes numerical limits on the total number of aliens who

15 may seek asylum pursuant to the asylum procedure these statutes establish. See 8

16 U.S.C. § 1158; 8 U.S.C. § 1225. Pretextual assertions of “lack of capacity” to turn

17 away asylum seekers who seek access to a POE and express an intent to apply for

18 asylum directly to a CBP officer suggest the existence of an unlawful de facto

19 numerical limit on the number of asylum applicants that finds no support in Section

20 1158 or Section 1225. The imposition of such a limit, through false assertions of

21 lack of capacity, surely violates the scheme Congress enacted, particularly when

22 contrasted with the separate scheme in Section 1157. See Util. Air Regulatory Grp.,

23 573 U.S. at 327 (“The power of executing the laws necessarily includes both

24 authority and responsibility to resolve some questions left open by Congress that

25 arise during the law’s administration. But it does not include a power to revise clear

26 statutory terms that turn out not to work in practice.”).

27

28

Defendants nevertheless question that even if “any alleged metering is

– 63 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6604 Page 64 of 84

1 ‘motivated by deterrence,’ such an aim would not be inappropriate.” (ECF No. 238

2 at 11–12 n.8.) Most curiously, Defendants support this assertion by citing “Aliens

3 Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for

4 Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018),” a rule for which the Ninth

5 Circuit upheld a preliminary injunction barring its enforcement. See E. Bay

6 Sanctuary Covenant v. Trump, No. 18-17274, —F.3d—, 2018 WL 8807133, at *19–

7 20 (9th Cir. Dec. 7, 2018), stay denied by, Trump v. E. Bay Sanctuary Covenant, 139

8 S. Ct. 782, 2018 WL 6713079 (U.S. Supreme Court Dec. 21, 2018).

9

10

In East Bay Sanctuary Covenant, the Ninth Circuit affirmed a preliminary

11 injunction barring implementation of a Rule promulgated by the Secretary of DHS

12 and the Attorney General. The Rule provided that “[f]or applications filed after

13 November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a

14 presidential proclamation or other presidential order suspending or limiting the entry

15 of aliens along the southern border with Mexico that is issued pursuant to [§

16 1182(f)].” 83 Fed. Reg. 55,952 (to be codified at 8 C.F.R. § 208.13(c)(3) (DHS) and

17 8 C.F.R. § 1208.13(c)(3) (DOJ)). The Rule coincided with a presidential

18 proclamation suspending the “entry of any alien into the United States across the

19 international boundary between the United States and Mexico,” but exempting from

20 that suspension “any alien who enters the United States at a port of entry and properly

21 presents for inspection.” Addressing Mass Migration Through the Southern Border

22 of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 9, 2018).

23

24

In relevant part, the East Bay Sanctuary Covenant majority found the Rule

25 likely to be unlawful under Section 706(2)(A) because the Rule “is inconsistent with

26 § 1158(a)(1).” E. Bay Sanctuary Covenant, 2018 WL 8807133, at *18. Although

27 the majority noted that “[r]ather than restricting who may apply for asylum, the rule

28 of decision facially conditions only who is eligible to receive asylum,” the majority

– 64 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6605 Page 65 of 84

1 found this to be a distinction without a difference. Id. The majority concluded that:

2 “the technical differences between applying for and eligibility for asylum are of no

3 consequence to a refugee when the bottom line—no possibility of asylum—is the

4 same.” Id. The majority acknowledged that “[w]e are acutely aware of the crisis in

5 the enforcement of our immigration laws,” but concluded that “the Attorney General

6 may not abandon [a congressional] scheme because he thinks it is not working well.

7 . . . but continued inaction by Congress is not a sufficient basis under our Constitution

8 for the Executive to rewrite our immigration laws.” Id. at *20.

9

10

The key lesson of East Bay Sanctuary Covenant is that the Executive cannot

11 “amend the INA”—specifically Section 1158—through executive action to establish

12 a procedure at variance with the scheme Congress chose. Id. Much like the

13 challenged rule in East Bay Sanctuary Covenant, Defendants’ alleged Turnback

14 Policy directly concerns the statutory scheme for asylum seekers that Congress has

15 established. The Turnback Policy directly concerns the Section 1225(b)(1) aspect

16 of this procedure for aliens seeking admission to the United States. As Plaintiffs

17 persuasively argue, there is no room for deterrence under the scheme Congress has

18 enacted. An alleged policy that is premised on and implements such a motive

19 contravenes the clear purpose, intent, and text of the statutory scheme that enables

20 aliens arriving at POEs, including those in the process of doing so, to apply for

21 asylum. Accordingly, the Court concludes that Plaintiffs have stated Section 706(2)

22 claims premised on the unlawfulness of the alleged Turnback Policy.

23

24 III. The New Individual Plaintiffs’ Fifth Amendment Due Process Claims

25

The Fifth Amendment’s Due Process Clause provides that “[n]o person shall

26 . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const.

27 amend. V. The Individual Plaintiffs assert a protected Fifth Amendment due process

28 interest in the various provisions of the INA that allows aliens to seek asylum in the

– 65 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6606 Page 66 of 84

1 United States. (SAC ¶¶ 225–26, 283–93.) Specifically, the Individual Plaintiffs

2 allege that they possess “the right to be processed at a POE and granted meaningful

3 access to the asylum process” under 8 U.S.C. §§ 1158(a)(1), 1225(a)(3),

4 1225(b)(1)(A)(ii), 1225(b)(1)(B), and 8 C.F.R. § 235.3(b)(4). Defendants’ motion

5 to dismiss presents two issues. First, the Court must revisit the propriety of judicial

6 review of Plaintiffs’ constitutional claims independently of the APA. Second, the

7 Court must turn to the merits of Defendants’ dismissal arguments, in which

8 Defendants contend that the New Individual Plaintiffs seek to impermissibly apply

9 the Constitution extraterritorially and, alternatively, the New Individual Plaintiffs

10 were not denied any process that these Plaintiffs claim was due. The Court addresses

11 each issue in turn.

12

13

A. Non-APA Judicial Review of Constitutional Claims

14

In its prior dismissal order, the Court determined that “[w]hile a right to seek

15 judicial review of agency action may be created by a separate statutory or

16 constitutional provision, once created it becomes subject to the judicial review

17 provisions of the APA unless explicitly excluded.” Al Otro Lado, 327 F. Supp. 3d

18 at 1316. The parties dispute what the Court’s prior ruling should mean for the INA

19 and Fifth Amendment Due Process Clause claims that Plaintiffs raise independently

20 of the APA. Plaintiffs request that, to the extent the Court believes it resolved the

21 issue of reviewability of these claims in its prior dismissal order, the Court should

22 revise its previous order pursuant to Rule 54(b) to clarify that Plaintiffs’ INA and

23 Fifth Amendment due process claims may be reviewed even if Plaintiffs cannot state

24 APA claims. (ECF No. 210 at 26.) Defendants argue that Plaintiffs “offer no reason

25 to depart from the correct application of the APA to this case” and expressly argue

26 that the Court “should also reject Plaintiffs’ request to adjudicate their freestanding

27 INA claims under the concept of ‘nonstatutory review’ instead of the APA.” (ECF

28 No. 238 at 18.)

– 66 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6607 Page 67 of 84

1

As an initial matter, the Court clarifies that its prior statement regarding the

2 scope of judicial review flowed from the nature of the parties’ prior dismissal

3 briefing. Defendants did not move to dismiss Plaintiffs’ constitutional claims on the

4 merits, but rather limited their merits briefing to the sufficiency of Plaintiffs’ APA

5 claims. Plaintiffs in turn presented arguments regarding their APA claims, yet in

6 doing so, relied on case law regarding liability under 42 U.S.C. § 1983. Faced with

7 this briefing, the Court’s prior dismissal analysis necessarily turned on the APA’s

8 strictures.

9

10

The present motion to dismiss briefing alters the calculus. The parties have

11 briefed the merits of Plaintiffs’ constitutional due process claims, implicitly

12 assuming that the Court can and should review those claims independently of the

13 APA’s strictures. Although Defendants argue that Plaintiffs cannot raise

14 freestanding INA claims independently of the APA’s strictures, Defendants

15 conspicuously do not make a similar argument with respect to Plaintiffs’ Fifth

16 Amendment Due Process claims in their opening brief. (Compare ECF No. 192-1

17 at 18–22 (dismissal arguments regarding Plaintiffs’ due process claims) and ECF

18 No. 238 at 15 with ECF No. 192-1 at 23 (arguing that “Extraterritorial Plaintiffs’

19 INA claims must be evaluated under the APA, as the Court described, or not at

20 all.”).)13

21

22

23 13 Defendants argue for the first time in their reply brief that even if the
24 Plaintiffs state procedural due process claims, review of these claims must proceed

25 under the APA. (ECF No. 238 at 15.) The apparent reason for this argument is the

assumption that if Plaintiffs fail to state a claim in accordance with the APA’s 26 strictures (i.e., final agency action, identification of discrete agency action for

27 Section 706(1) claims, etc.), then this Court cannot address the merits of Plaintiffs’

28

constitutional claims. This argument underscores for the Court that non-APA review of Plaintiffs’ constitutional claims is appropriate.

– 67 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6608 Page 68 of 84

1

Guided by more recent precedent, the Court finds it necessary to clarify the

2 propriety of judicial review independently of the APA’s strictures. The Court’s prior

3 dismissal order observed that, at times, courts have resolved only APA claims

4 concerning agency action, even when a plaintiff asserts constitutional claims

5 premised on statutory provisions that underlie the APA claims. See Graham v. Fed.

6 Emergency Mgmt. Agency, 149 F.3d 997, 1001 n.2 (9th Cir. 1998) (“declin[ing] to

7 address the plaintiffs’ Fifth Amendment claim and affirm[ing] the district court’s

8 denial of this claim” because “plaintiffs’ due process claim is premised on their

9 assertion that they ‘have a statutory entitlement to the [individual and family grant]

10 disaster assistance program’” and thus “they may obtain all the relief they request

11 under the provisions of the APA.”); Al Otro Lado, Inc., 327 F. Supp. 3d at 1316

12 (relying on Graham).

13

14

Recently, the Ninth Circuit has made clear that although “the APA is the

15 general mechanism by which to challenge final agency action,” “this does not mean

16 that the APA forecloses other causes of action.” Sierra Club v. Trump, 929 F.3d

17 670, 699 (9th Cir. 2019). And relying on Navajo Nation v. Department of the

18 Interior, 876 F.3d 1144 (9th Cir. 2017)—a case that figured prominently in the

19 Court’s prior determination that the APA waives the United States’ sovereign

20 immunity for any claims for nonmonetary relief, whether asserted under the APA or

21 not—Sierra Club instructs that Navajo Nation as well as an earlier Ninth Circuit

22 decision “clearly contemplate that claims challenging agency actions—particularly

23 constitutional claims—may exist wholly apart from the APA.’” Sierra Club, 929

24 F.3d at 699 (also relying on Presbyterian Church v. United States, 870 F.2d 518 (9th

25 Cir. 1989) for this proposition). Thus, the Court concludes that review of the New

26 Individual Plaintiffs’ constitutional claims, independently of their APA claims, is

27 appropriate.

28

– 68 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6609 Page 69 of 84

1

B. The New Individual Plaintiffs State Due Process Claims

2

The New Individual Plaintiffs’ claims, like those of the other Individual

3 Plaintiffs, are fundamentally procedural due process claims. “The requirements of

4 procedural due process apply to the deprivation of interests encompassed by [the

5 Due Process Clause’s] protection of liberty and property.” Bd. of Regents v. Roth,

6 408 U.S. 564, 569 (1972). “To assert a procedural due process claim under the Fifth

7 Amendment, [a plaintiff] must first establish a constitutionally protected interest.”

8 Stanley v. Gonzales, 476 F.3d 653, 660 (9th Cir. 2007); Foss v. Nat’l Marine

9 Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998) (noting that “[t]he threshold

10 question” in a procedural due process claim is whether the plaintiff has a

11 constitutionally protectible interest). “[T]he plaintiff must have more than a

12 unilateral expectation of it; instead, she must have a legitimate claim of entitlement.”

13 Serra v. Lappin, 600 F.3d 1191, 1196 (9th Cir. 2010). If the plaintiff shows the

14 existence of a constitutionally protected interest, the plaintiff must further establish

15 “a denial of adequate procedural protections.” Foss, 161 F.3d at 588.

16

17

Defendants do not contest that if any New Individual Plaintiff sufficiently

18 alleges that he or she was in the United States, such a New Individual Plaintiff may

19 assert a Fifth Amendment Due Process Clause claim against Defendants’ alleged

20 conduct. Indeed, “[i]t is well established that aliens legally within the United States

21 may challenge the constitutionality of federal and state actions.” Ibrahim v. Dep’t

22 of Homeland Sec., 669 F.3d 983, 994 (9th Cir. 2012). Thus, to the extent any New

23 Individual Plaintiffs sufficiently plead that they were in the United States at the time

24 of their alleged injuries, Defendants’ argument, by its own terms, does not apply.

25

26

With respect to the remaining New Individual Plaintiffs, Defendants raise two

27 arguments for why they fail to state Fifth Amendment Due Process Clause claims.

28 Defendants first argue that these New Individual Plaintiffs possess no protected

– 69 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6610 Page 70 of 84

1 interests under the Due Process Clause in the INA statutory and regulatory

2 provisions in this case because “the Fifth Amendment does not apply to aliens

3 outside the United States[.]” (ECF No. 192-1 at 18.) Second, Defendants argue that

4 “[e]ven assuming arguendo that the Fifth Amendment applie[s] to [these] Plaintiffs

5 while they were outside the United States, they still fail to state a cognizable Fifth

6 Amendment claim.” (Id. at 21.)

7

8

1. The Fifth Amendment Applies

9

Defendants’ principal challenge to the New Individual Plaintiffs’ Fifth

10 Amendment Due Process Clause claims is that “the Fifth Amendment does not apply

11 to aliens outside the United States, particularly where they do not allege they have

12 any previous voluntary connection to the United States.” (ECF No. 192-1 at 18;

13 ECF No. 238 at 14–15.) Defendants’ challenge raises a threshold issue about the

14 proper scope and application of the Constitution.

15

16

As an initial matter, the Court rejects Defendants’ formalistic, territorial

17 argument that the Due Process “Clause’s reference to ‘person[s],’ while broad, does

18 not include non-resident aliens outside the United States.” (ECF No. 192-1 at 19

19 (citing Johnson v. Eisentrager, 339 U.S. 763, 770 (1950)).) Defendants’ reliance on

20 Eisentrager is understandable because there is language in the decision that places a

21 constitutional premium on territorial presence in the United States, suggesting that

22 such presence is the only basis for a noncitizen to receive constitutional protection

23 that a federal court in turn has the power to enforce. See Eisentrager, 339 U.S. at

24 771 (“[I]n extending constitutional protections beyond the citizenry, the Court has

25 been at pains to point out that it was the alien’s presence within its territorial

26 jurisdiction that gave the Judiciary power to act.”); id. at 777–78 (“[T]hese prisoners

27 at no relevant time were within any territory over which the United States is

28 sovereign, and the scenes of their offense, their capture, their trial and their

– 70 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6611 Page 71 of 84

1 punishment were all beyond the territorial jurisdiction of any court of the United

2 States.”).

3

4

The Supreme Court, however, squarely rejected bright-line rules regarding the

5 extraterritorial application of the Constitution in Boumediene v. Bush, 553 U.S. 723

6 (2008). In Boumediene, the Supreme Court permitted alien plaintiffs who the U.S.

7 government had designated as enemy combatants and who were detained at the

8 United States Naval Station in Guantanamo, Cuba to seek habeas relief. In doing so,

9 the Supreme Court rejected the government’s proposed bright-line rule that the

10 plaintiffs were not entitled to seek habeas relief as aliens who had committed acts

11 outside the United States as a “formal sovereignty-based test.” Id. at 764. The

12 Supreme Court stated that “questions of extraterritoriality turn on objective factors

13 and practical concerns, not formalism.” Id. To resolve such questions, the Supreme

14 Court directed the federal courts to examine the “‘particular circumstances, the

15 practical necessities, and the possible alternatives which Congress had before it’ and,

16 in particular, whether judicial enforcement of the provision would be ‘impracticable

17 and anomalous.’” Id. at 759 (quoting, inter alia, Reid v. Covert, 354 U.S. 1, 74–75

18 (1957) (Harlan, J., concurring)).

19

20

Defendants rely heavily on United States v. Verdugo-Urquidez, 494 U.S. 259

21 (1990), and Ibrahim v. Department of Homeland Security, 669 F.3d 983 (9th Cir.

22 2012), to argue that the New Individual Plaintiffs must nevertheless allege a “prior

23 significant voluntary connection” with the United States to receive protection under

24 the Fifth Amendment Due Process Clause. The Court briefly discusses these cases

25 and then explains why they do not foreclose the New Individual Plaintiffs’ claims.

26

27

In Verdugo-Urquidez, the Supreme Court addressed the question “whether the

28 Fourth Amendment applies to the search and seizure by United States agents of

– 71 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6612 Page 72 of 84

1 property that is owned by a nonresident alien and located in a foreign country.” 494

2 U.S. at 261. The Court held that the “nonresident alien” plaintiff in that case had

3 “no previous significant voluntary connection with the United States” and therefore

4 had no right to assert a Fourth Amendment challenge to the searches and seizures of

5 his property by United States agents in Mexico. Id. at 271 (emphasis added). In

6 Ibrahim, the Ninth Circuit expressly relied on Verdugo-Urquidez to permit a

7 Malaysian citizen who was precluded from entering the U.S., who had previously

8 been in the U.S. for four years on a student visa and who alleged that she was

9 mistakenly placed on a No-Fly List and other terrorist watchlists, to raise Fourth and

10 Fifth Amendment claims against the federal government. The Ninth Circuit

11 expressly observed that “the border of the United States is not a clear line that

12 separates aliens who may bring constitutional challenges from those who may not.”

13 Ibrahim, 669 F.3d at 995 (collecting cases including Boumediene). The Ninth

14 Circuit held that, “[u]nder Boumediene and Verdugo, we hold that Ibrahim has

15 ‘significant voluntary connection’ with the United States. She voluntarily

16 established a connection to the United States during her four years at Stanford

17 University while she pursued her Ph.D. She voluntarily departed from the United

18 States to present the results of her research at a Stanford-sponsored conference. The

19 purpose of her trip was to further, not to sever, her connection to the United States,

20 and she intended her stay abroad to be brief.” Id. at 997. Defendants contend that

21 because the New Individual Plaintiffs lack a “previous voluntary significant

22 connection” with the United States, they have no protected due process interests.

23

24

The fundamental problem with Defendants’ reliance on the “previous

25 voluntary significant connection” test set forth in Verdugo-Urquidez and applied in

26 Ibrahim is that the test does not constitute a ceiling on the application of the

27 Constitution to aliens. Plaintiffs direct this Court to the Ninth Circuit’s recent

28 decision in Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018), a case in which the

– 72 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6613 Page 73 of 84

1 panel majority relied on Boumediene to conclude that an alien located outside the

2 United States could press a Fourth Amendment claim against a U.S. border officer

3 who, standing on the U.S. side of the border, allegedly shot and killed a Mexican

4 teenager located on the Mexican side of the border. The Rodriguez majority

5 underscored that “[n]either citizenship nor voluntary submission to American law is

6 a prerequisite for constitutional rights[,]” rather, “citizenship is just one of several

7 non-dispositive factors to consider.” 899 F.3d at 729. The Rodriguez majority

8 determined that Verdugo-Urquidez’s “voluntary significant connection” test did not

9 apply in the circumstances of the case because “unlike the American agents in

10 Verdugo-Urquidez, who acted on Mexican soil, Swartz [the defendant U.S. border

11 officer] acted on American soil” and “[j]ust as Mexican law controls what people do

12 there, American law controls what people do here.” Id. at 731 (brackets added). The

13 Rodriguez majority underscored that “[t]he practical concerns in Verdugo-Urquidez

14 about regulating conduct on Mexican soil also do not apply here.” Id.

15

16

Defendants passingly refer to Boumediene only once in their opening brief

17 and do not acknowledge Rodriguez. (ECF No. 192-1 at 19–20 (observing that

18 Ibrahim cites Boumediene); id. at 18–22 (full argument regarding extraterritorial

19 application without reference to Rodriguez.) Faced with Plaintiffs’ opposition brief,

20 Defendants attempt to limit the scope and application of Boumediene in this case.

21 Defendants first contend that “Boumediene is the only case extending a

22 constitutional right to ‘noncitizens detained by our Government in territory over

23 which another country maintains de jure sovereignty.’” (ECF No. 238 at 13 (quoting

24 Boumediene, 553 U.S. at 770).) Defendants then argue that “this Court must follow”

25 “pre-Boumediene law holding that the Due Process Clause does not extend to aliens

26 without property or presence in the sovereign territory of the United States[.]” (Id.)

27

28

The Court rejects both of Defendants’ arguments. For one, Rodriguez alone

– 73 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6614 Page 74 of 84

1 renders Defendants’ first argument factually erroneous. Defendants’ erroneous

2 argument appears to stem from Defendants’ attempt to dismiss Rodriguez as

3 irrelevant in a footnote. (ECF No. 238 at 14 n.9 (stating that “[i]f any Ninth Circuit

4 case applies here, it is Ibrahim, not Rodriguez.”).) The Court does not understand

5 Defendants’ dismissive argument. Rodriguez is as much binding precedent on this

6 Court as is Ibrahim. And Rodriguez, applying Boumediene, indicates that Verdugo-

7 Urquidez’s “previous voluntary significant connection” test—and, by extension,

8 Ibrahim’s application of that test—do not alone control the question of constitutional

9 protection for aliens, particularly when the challenged conduct concerns the conduct

10 of U.S. officers acting on U.S. soil. Rodriguez, 899 F.3d at 731. Second, and more

11 critically, Defendants’ attempt to limit Boumediene simply ignores Boumediene’s

12 analysis. Boumediene expressly rejected a reading of Eisentrager that would

13 establish a “formalistic, sovereignty-based test” and expressly narrowed

14 Eisentrager’s reach, observing that “the United States lacked both de jure

15 sovereignty and plenary control” over the area where the petitioner prisoners were

16 located and “[n]othing in Eisentrager says that de jure sovereignty is or has ever

17 been the only relevant consideration in determining the geographic reach of the

18 Constitution or of habeas corpus.” Boumediene, 553 U.S. at 763–64. Thus, both

19 Boumediene and Rodriguez apply here.

20

21

Appropriately relying on both Boumediene and Rodriguez, Plaintiffs

22 persuasively argue that there is nothing “‘impracticable [or] anomalous’ in applying

23 elementary due process protection at the U.S. border.” (ECF No. 210 at 25.) For

24 one, as an objective matter, the New Individual Plaintiffs’ allegations do not show

25 conduct occurring wholly in foreign territory. Defendants attempt to argue that

26 “[t]he United States does not have de jure or de facto sovereignty over Mexican

27 border towns[.]” (ECF No. 238 at 14.) Insofar as Plaintiffs’ constitutional claims

28 concern the Turnback Policy, allegedly formed by high-level federal officials,

– 74 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6615 Page 75 of 84

1 Defendants’ argument falters on its own terms because surely such a policy was not

2 developed in Mexican border towns. (See SAC ¶ 287 (referring to Turnback Policy

3 as violation procedural due process rights); id. ¶¶ 50–60.) Insofar as the New

4 Individual Plaintiffs’ constitutional claims concern individual turnbacks, all New

5 Individual Plaintiffs offer allegations regarding conduct of CBP officers who

6 presumably were located on U.S. soil.

7

8

The allegations of the four New Individual Plaintiffs who were stopped in the

9 middle of the international bridge between Mexico and the United States and denied

10 access by the CBP officers on the U.S. side of the bridge also concerns conduct

11 occurring on territory subject to U.S. sovereign authority. (SAC ¶¶ 29–31, 154, 162,

12 173–74.) Defendants cite an 1886 U.S.-Mexico treaty, (ECF No. 238 at 14), which

13 expressly provides that “[i]f any international bridge have been or shall be built

14 across either of the rivers named, the point on such bridge exactly over the middle of

15 the main channel as herein determined shall be marked by a suitable monument,

16 which shall denote the dividing line for all the purposes of such bridge,

17 notwithstanding any change in the channel which may thereafter supervene.”

18 Convention Between the United States of America and the United States of Mexico

19 Touching the International Boundary Line Where It Follows the Bed of the Rio

20 Grande and the Rio Colorado, U.S.-Mex., arts. I, IV, Nov. 12, 1884, 24 Stat. 1011,

21 1886 WL 15138, at *2. New Individual Plaintiffs Roberto Doe, Maria Doe, and Juan

22 and Úrsula Doe allege that they “sought access to the asylum process by presenting

23 [themselves]” at the Hidalgo, Texas POE and Laredo, Texas POE and “encountered

24 CBP officials in the middle of the bridge” between Mexico and the U.S. POE and

25 “told them” they “wanted to seek asylum in the United States.” (SAC ¶¶ 29–31,

26 154–55, 162, 174.) Pursuant to the very treaty on which Defendants rely, these

27 allegations plausibly show conduct by CBP officers occurring on the U.S. side of the

28 international bridge subject to U.S. sovereignty.

– 75 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6616 Page 76 of 84

1

Second, as Plaintiffs argue, “the practical necessities” also warrant application

2 of the Due Process Clause in this case. (ECF No. 210 at 25–26.) The New Individual

3 Plaintiffs’ claims concern alleged denials of procedural due process by U.S.

4 immigration officers upon whom Congress has placed certain statutory obligations,

5 all in furtherance of the asylum protections Congress has also chosen to extend to

6 certain “arriving aliens” that express an intent to apply for asylum or fear of

7 persecution. And their claims concern adoption of an alleged policy that aims to

8 impede access to the statutorily-mandated asylum procedure. The lesson of

9 Boumediene is that the political branches do not enjoy the prerogative to “switch the

10 Constitution on or off at will[.]” Boumediene, 553 U.S. at 765. Appropriately

11 applying Boumediene and Rodriguez, the Court rejects Defendants’ threshold

12 argument that none of the New Individual Plaintiffs can even avail themselves of the

13 Fifth Amendment in this case.

14

15

2. Plaintiffs Have Plausibly Alleged Denials of Procedural Due

16

Process

17

For the reasons set forth in the Court’s statutory analysis, the Court can swiftly

18 reject Defendants’ second dismissal argument. Defendants concede that “[w]here

19 plaintiffs premise their procedural due process challenge on having a protected

20 interest in a statutory entitlement, ‘the protections of the Due Process Clause . . .

21 extend only as far as the plaintiffs’ statutory rights.’” (ECF No. 192-1 at 21 (quoting

22 Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1001 & n.2 (9th Cir.

23 1998)).) This concession all but forecloses dismissal of the New Individual

24 Plaintiffs’ due process claims at this juncture. Congress has the power to prescribe

25 the terms and conditions upon which aliens may come to this country. Kleindienst

26 v. Mandel, 408 U.S. 753, 766 (1972). “In the enforcement of [congressional]

27 policies, the Executive Branch of the Government must respect the procedural

28 safeguards of due process[.]” Id. at 767. Here, as the Court has discussed in its

– 76 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6617 Page 77 of 84

1 construction of the relevant statutory provisions, Congress has plainly established

2 procedural protections for aliens like the New Individual Plaintiffs in this case, who

3 allege that they were in the process of arriving to the United States and expressed an

4 intent to seek asylum. The New Individual Plaintiffs have plausibly alleged that

5 immigration officers failed to discharge their mandatory duties under the relevant

6 provisions. Consequently, the Court concludes that the New Individual Plaintiffs

7 have stated procedural process claims and the Court denies Defendants’ motion to

8 dismiss these claims.

9

10 IV. ATS Claims

11

The ATS provides in full that “[t]he district courts shall have original

12 jurisdiction of any civil action by an alien for a tort only, committed in violation of

13 the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. All Individual

14 Plaintiffs and Al Otro Lado seek to raise ATS claims for Defendants’ alleged

15 “violation of the non-refoulement doctrine.” (SAC ¶¶ 294–303.) Plaintiffs

16 specifically allege that:

17

CBP officials have systematically denied, or unreasonably

18

delayed, access to the asylum process by Class Plaintiffs, and the

asylum seekers they represent, in violation of customary

19

international law reflected in treaties which the United States has

20

ratified and implemented: namely, the specific, universal and

21

obligatory norm of non-refoulement, which has also achieved the status of a jus cogens norm, and which forbids a country from

22

returning or expelling an individual to a country where he or she

23

has a well-founded fear of persecution and/or torture . . .

24 (Id. ¶ 295.) Plaintiffs contend that Defendants’ alleged violations have caused them

25 harm by forcing them to return to Mexico or other countries where they face threats

26 of further persecution. (Id. ¶ 296.) Al Otro Lado also raises ATS claims for these

27 alleged violations on the ground that its core mission is harmed through resource

28 diversion. (Id. ¶ 300.)

– 77 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6618 Page 78 of 84

1

As a preliminary matter, Defendants argue that Plaintiffs’ “non-refoulement

2 claims are [not] actionable as presented” based on the Court’s prior ruling that

3 “Plaintiffs ‘may not’ seek judicial review of Defendants’ conduct ‘independently’ of

4 the APA’s judicial review framework.” (ECF No. 192-1 at 23.) Defendants misstate

5 the Court’s prior ruling, which did not speak to the Court’s jurisdiction over

6 Plaintiffs’ ATS claims. The ATS is a “strictly jurisdictional statute” in its own right

7 that “creates no new causes of action.” Sosa v. Alvarez-Machain, 542 U.S. 692, 713,

8 742 (2004); Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011) (noting the

9 ATS “has been interpreted as a jurisdiction statute only”). Thus, independently of

10 the APA, the relevant issue is whether Plaintiffs can state claims under the ATS over

11 which the Court has jurisdiction.

12

13

A. No Jurisdiction Exists for Al Otro Lado’s ATS Claims

14

Insofar as Defendants move to dismiss ATS claims that Organizational

15 Plaintiff Al Otro Lado raises, (ECF No. 192-1 at 28 (citing SAC ¶¶ 294–303)), the

16 Court finds that such claims must be dismissed for lack of subject matter jurisdiction

17 because“Al Otro Lado is corporation.” (ECF No. 238 at 20.) Although the fact that

18 Al Lado Lado is a corporation does not preclude Al Otro Lado’s assertion of APA

19 claims, its status as a corporation has jurisdictional consequences under the ATS.

20

21

Under its plain language, the ATS provides for federal jurisdiction only over

22 civil actions “by an alien.” 28 U.S.C. §1350. Thus, irrespective of the substantive

23 cause of action that underlies an asserted ATS claim, a federal court lacks

24 jurisdiction under the ATS over claims asserted by anyone or anything other than an

25 alien. See Serra v. Lappin, 600 F.3d 1191, 1198 (9th Cir. 2010) (“The ATS admits

26 no cause of action by non-aliens.”); Yousuf v. Samantar, 552 F.3d 371, 375 n.1 (4th

27 Cir. 2009) (“To the extent that any of the claims under the ATS are being asserted

28 by plaintiffs who are American citizens, federal subject-matter jurisdiction may be

– 78 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6619 Page 79 of 84

1 lacking.”); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) (same); Sikhs for

2 Justice Inc. v. Indian Nat’l Cong. Party, 17 F. Supp. 3d 334, 345 (S.D.N.Y. 2014)

3 (“[J]urisdiction is inapplicable because Plaintiff Sikhs is not an ‘alien’ under the

4 ATS[.]”); S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 113 (D.D.C. 2012)

5 (“[T]he American corporate Plaintiffs, as non-aliens, lack standing to bring claims

6 under the ATS”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F.

7 Supp. 2d 633, 661 (S.D.N.Y. 2006) (concluding that an institutional plaintiff that is

8 a United States corporation “is not an alien and may not bring suit under the ATS.”),

9 aff’d, 582 F.3d 244 (2d Cir. 2009). Al Otro Lado is concededly not an alien.

10 Accordingly, the Court grants Defendants’ motion to dismiss Organizational

11 Plaintiff Al Otro Lado’s ATS claims lack of jurisdiction.

12

13

B. The Individual Plaintiffs’ ATS Claims

14

Defendants initially moved to dismiss the ATS claims of only the New

15 Individual Plaintiffs and Al Otro Lado. (ECF No. 192-1 at 22–25.) In reply,

16 Defendants extend the scope of their motion to dismiss Plaintiffs’ ATS claims to

17 encompass the Original Individual Plaintiffs as well. (ECF No. 238 at 16–18.) To

18 resolve Defendants’ present motion, the Court will not venture beyond Defendants’

19 actual arguments. Reviewing these arguments, the Court finds that Defendants have

20 failed to show that the ATS claims must be dismissed at this juncture.

21

22

1. The Asserted Law of Nations Norm

23

Defendants first argue that (1) the ATS “has no bearing in this case” because

24 Plaintiffs “have not brought a civil action for a tort[.]” (ECF No. 192-1 at 25, ECF

25 No. 238 at 16–17.) Defendants point to the ATS’s use of the word “tort” and argue

26 that Plaintiffs have no ATS claim here because they have not sued for a “tort.” (ECF

27 No. 192-1 at 25, ECF No. 238 at 16–17.) Defendants’ argument misconstrues the

28 ATS.

– 79 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6620 Page 80 of 84

1

By its terms, the ATS “enable[s] federal courts to hear claims in a very limited

2 category defined by the law of nations and recognized at common law.” Sosa, 542

3 U.S. at 712. For this reason, it should not be disputed that “[t]he ATS ‘grants

4 jurisdiction over two types of claims: those for violations of a treaty of the United

5 States, and those for violations of the law of nations.’” Aragon v. Ku, 277 F. Supp.

6 3d 1055, 1064 (D. Minn. 2017) (quoting 14A Charles Alan Wright & Arthur R.

7 Miller, Federal Practice and Procedure § 3661.2 (4th ed., Apr. 2017 Update)); see

8 also Al-Tamimi, 916 F.3d at 11 (recognizing that “[a]n ATS claim . . . incorporates

9 the law of nations”). When a plaintiff seeks to plead an ATS claim based on an

10 alleged violation of the law of nations, the plaintiff must identify an international

11 norm that is “specific, universal, and obligatory.” Sosa, 542 U.S. at 732. As a

12 general matter, “[c]ourts ascertain customary international law ‘by consulting the

13 works of jurists, writing professedly on public law; or by the general usage and

14 practice of nations; or by judicial decisions recognizing and enforcing that law.’”

15 Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714–15 (9th Cir. 1992)

16 (quoting United States v. Smith, 18 U.S. 153, 160–61 (1820)).

17

18

Plaintiffs allege that the duty of non-refoulement is a jus cogens norm

19 recognized by the law of nations. (SAC ¶¶ 227–35.)14 And, in opposition to

20

21

14 “As defined in the Vienna Convention on the Law of Treaties, a jus cogens

norm, also known as a ‘peremptory norm’ of international law, ‘is a norm accepted 22 and recognized by the international community of states as a whole as a norm from

23 which no derogation is permitted and which can be modified only by a subsequent

norm of general international law having the same character.’” Siderman de Blake 24 v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna

25 Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8

I.L.M. 679). Courts determine whether a jus cogens norm exists by looking to the 26 works of jurists, writing professedly on public law; or by the general usage and

27 practice of nations; or by judicial decisions recognizing and enforcing that law, but

28

courts must make the additional determination “whether the international community recognizes the norm as one ‘from which no derogation is permitted.’”

– 80 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6621 Page 81 of 84

1 dismissal, Plaintiffs elaborate on these allegations under the applicable standard,

2 locating the asserted jus cogens norm in (1) a range of fundamental international

3 treaties, including Article 33 of the Convention on the Status of Refugees and its

4 Protocol (“Refugee Convention”), Article 13 of the International Covenant on Civil

5 and Political Rights (“ICCPR”), and Article 3 of the Convention Against Torture

6 and Other Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”); (2)

7 statements by international law bodies, including the Executive Committee of the

8 United Nations High Commissioner for Refugees (UNHCR); and (3) international

9 law commentators. (ECF No. 210 at 27–30.) Defendants simply fail to grapple with

10 Plaintiffs’ allegations or arguments on whether non-refoulement is a norm that is

11 recognized by the law of nations.15

12

13

The only somewhat applicable argument Defendants raise is that “even if the

14 Extraterritorial Plaintiffs had raised tort claims, Defendants’ alleged conduct does

15

16 Id. (quoting Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 17 940 (D.C. Cir. 1988)).

18

15 None of Defendants’ dismissal arguments grapples with the Plaintiffs’

19 fundamental contention that non-refoulement is a jus cogens norm whose violation

is actionable. Defendants initially moved to dismiss the “non-refoulement claims” 20 of the New Individual Plaintiffs allegedly in Mexico at the time of their alleged

21 injuries on three grounds. First, Defendants argued that each of the treaties the SAC

identifies is not independently enforceable and separately analyzed each treaty. 22 (ECF No. 192-1 at 23–24.) Second, Defendants argued that the Refugee Act of 1980

23 does not provide Plaintiffs with any independent cause of action in this Court

because the Act only allows claims to be adjudicated defensively before an 24 immigration judge or affirmatively before USCIS. (Id. at 24.) These arguments

25 elide the ATS claims that Plaintiffs have actually pleaded. Plaintiffs’ opposition

brief expressly observes that Defendants’ opening brief fundamentally misconstrues 26 Plaintiffs’ ATS claims. (ECF No. 210 at 27.) And the SAC is fairly clear in alleging

27 Plaintiffs’ theory that the duty of non-refoulement is a jus cogens norm whose

28

violation is actionable—not that each individual treaty cited in the SAC is a separate basis for Plaintiffs’ ATS claims.

– 81 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6622 Page 82 of 84

1 not come close to the type of egregious ‘violations of the law of nations’ even

2 potentially within the ATS’s grant of jurisdiction.” (ECF No. 192-1 at 25 (citing

3 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) as “allowing wrongful death

4 claim to proceed against Paraguayan police supervisor alleged to have ‘deliberate[ly]

5 tortured’ an individual in Paraguay ‘under color of official authority’”). The inquiry

6 under the ATS, however, does not turn on subjective assertions about whether the

7 challenged conduct is “egregious” or not. The Court can only understand

8 Defendants’ current briefing to concede, at this stage, the core contention underlying

9 Plaintiffs’ ATS claims that there exists a recognized duty of non-refoulement that

10 qualifies as an international law norm under the law of nations.

11

12

2. The INA Does Not “Preempt” Plaintiffs’ ATS Claims

13

Defendants’ second argument is that the existence of a “comprehensive and

14 exclusive scheme of legislation” under the INA “preempt[s] the enforcement of a

15 freestanding international law norm of non-refoulement in this Court.” (ECF No.

16 238 at 17–18.) Curiously, Defendants raise this argument while arguing in the same

17 breath that the New Individual Plaintiffs fall outside the scope of the relevant INA

18 provisions in this case. If this latter argument is to be credited, then there is no

19 comprehensive and exclusive scheme under which these Plaintiffs could seek relief

20 and Defendants’ argument collapses.

21

22

In any event, the Court has already rejected Defendants’ argument. The Court

23 expressly stated in the prior dismissal order, “[t]o the extent that Defendants contend

24 that the ATS claims must be dismissed because a remedy is available under domestic

25 law, the Court rejects that argument. ‘Contrary to defendants’ argument, there is no

26 absolute preclusion of international law claims by the availability of domestic

27 remedies for the same alleged harm.’” Al Otro Lado, Inc., 327 F. Supp. 3d at 1307

28 n.10 (quoting Hawa Abdi Jama v. United States INS, 22 F. Supp. 2d 353, 364 (D.N.J.

– 82 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6623 Page 83 of 84

1 1998)). Defendants’ latest assertion of their prior argument under a “preemption”

2 label overlooks Jama’s express recognition that “there is nothing in the [ATS] which

3 limits its applications to situations where there is no relief available under domestic

4 law” and Jama’s conclusion that “[t]here is no reason why plaintiffs cannot seek

5 relief on alternative grounds.” Jama, 22 F. Supp. 2d at 364. Defendants otherwise

6 direct the Court to cases in which federal courts rejected an alien’s attempt to rely

7 on international law norms to seek immigration relief and, in doing so, stated that

8 “[w]here a controlling executive or legislative act does exist, customary international

9 law is inapplicable.” Cortez-Gastelum v. Holder, 526 Fed. App’x 747, 749 (9th Cir.

10 2013); Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996). Defendants’ reliance

11 on this caselaw underscores for the Court that, at a minimum, Plaintiffs may plead

12 their ATS claims as alternative claims in the event that their INA-based claims fail.

13 See Fed. R. Civ. P. 8(a)(3) (“A pleading that states a claim for relief must contain . .

14 . a demand for the relief sought, which may include relief in the alternative or

15 different types of relief.”); Fed. R. Civ. P. 8(d)(3) (“A party may state as many

16 separate claims . . . as it has, regardless of consistency.”). Thus, the Court rejects

17 Defendants’ “preemption” argument.

18

19

* * *

20

Nevertheless, the Court observes that Plaintiffs do not cite a single case in

21 which another federal court has recognized that the duty of non-refoulement is

22 actionable through a federal court’s ATS jurisdiction. The paucity of such caselaw

23 should at least give this Court pause on whether it is appropriate to recognize the

24 particular ATS cause of action the Individual Plaintiffs raise in this case. Having

25 reviewed Defendants’ present dismissal arguments, however, the Court cannot

26 conclude that it lacks jurisdiction over the Individual Plaintiffs’ ATS claims.

27 Because the ATS is a jurisdictional statute, Defendants are not foreclosed from

28 challenging the Plaintiffs’ ATS claims at a later stage. See Fed. R. Civ. P. 12(h)(3)

– 83 –

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 280 Filed 08/02/19 PageID.6624 Page 84 of 84

1 (recognizing that subject matter jurisdiction can be assessed “at any time”); see also

2 Baloco v. Drummond Co., 767 F.3d 1229, 1234 (11th Cir. 2014) (affirming dismissal

3 of ATS claims under Rule 12(b)(1)); Best Med. Belg., Inc. v. Kingdom of Belg., 913

4 F. Supp. 2d 230, 236 (E.D. Va. 2012) (“The [ATS] is jurisdictional in nature and

5 also subject to challenge by a Rule 12(b)(1) motion.”); In re Chiquita Brands Int’l,

6 Inc., 792 F. Supp. 2d 1301, 1354 (S.D. Fla. 2011) (observing that “a complaint that

7 fails to sufficiently plead the elements of an ATS claim is analyzed under Rule

8 12(b)(1)”).

9

10

CONCLUSION & ORDER

11

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN

12 PART Defendants’ motion to dismiss the SAC. The Court GRANTS Defendants’

13 motion as follows:

14

1. The Court DISMISSES WITHOUT LEAVE TO AMEND the

15 Section 706(1) claims of the New Individual Plaintiffs for alleged failures to take

16 agency action required by 8 U.S.C. § 1225(b)(2)(A).

17

2. The Court DISMISSES WITH PREJUDICE Organizational Plaintiff

18 Al Otro Lado’s ATS claim for lack of subject matter jurisdiction.

19

The Court otherwise DENIES Defendants’ motion to dismiss the SAC.

20 Defendants SHALL ANSWER the SAC no later than August 16, 2019. Given the

21 length of time this case has been pending at the motion to dismiss stage, the Court

22 will not grant extensions of the deadline.

23

The Court WITHDRAWS the previously docketed July 29, 2019 order (ECF

24 No. 278) and REPLACES it with this Amended Order. Because the Amended

25 Order is substantively the same, the Court does not alter any deadlines.

26

IT IS SO ORDERED.

27 DATED: August 2, 2019

28

– 84 –

17cv2366

 
 Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7308 Page 1 of 35

1 MAYER BROWN LLP Matthew H. Marmolejo (CA Bar No. 242964)
2 mmarmolejo@mayerbrown.com 350 S. Grand Avenue
3 25th Floor Los Angeles, CA 90071-1503
4 Ori Lev (DC Bar No. 452565) (pro hac vice)
5 olev@mayerbrown.com Stephen M. Medlock (VA Bar No. 78819)
6 (pro hac vice) smedlock@mayerbrown.com
7 1999 K Street, N.W. Washington, D.C. 20006
8 Telephone: +1.202.263.3000 Facsimile: +1.202.263.3300
9
SOUTHERN POVERTY LAW CENTER 10 Melissa Crow (DC Bar No. 453487)
(pro hac vice) 11 melissa.crow@splcenter.org
1101 17th Street, N.W., Suite 705 12 Washington, D.C. 20036
Telephone: +1.202.355.4471 13 Facsimile: +1.404.221.5857

14 Additional counsel listed on next page

Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17
Al Otro Lado, Inc., et al.,
18

Case No.: 17-cv-02366-BAS-KSC

19

Plaintiffs,

20

v.

21 Kevin K. McAleenan,1 et al.,

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR PROVISIONAL CLASS CERTIFICATION

22

Defendants.

PORTIONS FILED UNDER SEAL

23

Hearing Date: October 28, 2019

24

NO ORAL ARGUMENT UNLESS

25

REQUESTED BY THE COURT

26

27 1 Acting Secretary McAleenan is automatically substituted for former Secretary

28 Nielsen pursuant to Fed. R. Civ. P. 25(d).

PLAINTIFFS’ MOTION FOR PROVISIONAL

CLASS CERTIFICATION

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7309 Page 2 of 35

1

CENTER FOR CONSTITUTIONAL RIGHTS 2 Baher Azmy (NY Bar No. 2860740) (pro hac vice)

3

bazmy@ccrjustice.org Ghita Schwarz (NY Bar No. 3030087) (pro hac vice)

4 gschwarz@ccrjustice.org Angelo Guisado (NY Bar No. 5182688) (pro hac vice)

5 aguisado@ccrjustice.org

666 Broadway, 7th Floor 6 New York, NY 10012

7 Telephone: +1.212.614.6464 Facsimile: +1.212.614.6499

8

SOUTHERN POVERTY LAW CENTER 9 Mary Bauer (VA Bar No. 31388) (pro hac vice)
mary.bauer@splcenter.org 10 1000 Preston Ave.

11

Charlottesville, VA 22903 Sarah Rich (GA Bar No. 281985) (pro hac vice)

12

sarah.rich@splcenter.org Rebecca Cassler (MN Bar No. 0398309) (pro hac vice)

13

rebecca.cassler@splcenter.org 150 E. Ponce de Leon Ave., Suite 340

14 Decatur, GA 30030

15 AMERICAN IMMIGRATION COUNCIL Karolina Walters (DC Bar No. 1049113) (pro hac vice)
16 kwalters@immcouncil.org 17 1331 G St. NW, Suite 200
Washington, D.C. 20005 18 Telephone: +1.202.507.7523
Facsimile: +1.202.742.5619
19

20

21

22

23

24

25

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

2

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7310 Page 3 of 35

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION........................................................................................... 1

4 II. FACTS COMMON TO THE PROVISIONAL CLASS ................................ 4

5
6
7
III. 8 IV.

A. THE METERING POLICY.................................................................. 4 B. THE ASYLUM BAN ........................................................................... 8 C. THE GOVERNMENT’S CONTEMPORANEOUS
ADMISSIONS .................................................................................... 11 THE PROVISIONAL CLASS DEFINITION IS REASONABLE .............. 12 THE REQUIREMENTS OF FED. R. CIV. P. 23(A) ARE MET ................ 13

9

A. THE PROVISIONAL CLASS IS NUMEROUS ............................... 13

10
11
12
V. 13 VI.

B. THERE ARE COMMON QUESTIONS OF LAW AND FACT....... 16 C. TYPICALITY IS SATISFIED ........................................................... 19 D. THE NAMED PLAINTIFFS AND COUNSEL ARE
ADEQUATE ....................................................................................... 20 RULE 23(B)(2) IS SATISFIED .................................................................... 22 THE PROVISIONAL CLASS IS ASCERTAINABLE ............................... 24

14 VII. CONCLUSION ............................................................................................. 25

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

i

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7311 Page 4 of 35

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952 (9th Cir. 2013) .............................................................................. 16
5
Armstrong v. Davis, 6 275 F.3d 849 (9th Cir. 2001).............................................................................. 17

7 Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013) ........................................................................ 14
8
Baby Neal v. Casey, 9 43 F.3d 48 (3d Cir. 1994) ................................................................................... 22

10 Backhaut v. Apple Inc., 2015 WL 4776427 (N.D. Cal. 2015).................................................................. 25
11
Bee, Denning, Inc. v. Capital Alliance Grp., 12 2016 WL 3952153 (S.D. Cal. 2016) .................................................................. 24

13 Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000 (9th Cir. 1981) .............................................................................. 1
14
Brantley v. Maxwell-Jolly, 15 656 F. Supp. 2d 1161 (N.D. Cal. 2009) ............................................................. 12

16 Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ............................................................................ 13
17
Briseno v. ConAgra Foods, Inc., 18 844 F.3d 1121 (9th Cir. 2017)...................................................................... 24, 25

19 Canales-Robles v. Peters, 2018 WL 4762899 (D. Or. 2018) ....................................................................... 20
20
Carrillo v. Schneider Logistics, Inc., 21 2012 WL 556309 (C.D. Cal.) ............................................................................. 13

22 Civ. Rights Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 317 F.R.D. 91 (N.D. Cal. 2016) ......................................................................... 14
23
Cole v. City of Memphis, 24 839 F.3d 530 (6th Cir. 2016).............................................................................. 24

25 Doe v. Nielsen, 357 F. Supp. 3d 972 (N.D. Cal. 2018) ......................................................... 23, 24
26
E. Bay Sanctuary Covenant v. Trump, 27 349 F. Supp. 3d 838 (N.D. Cal. 2018) ................................................................. 2

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

ii

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7312 Page 5 of 35

1 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) .............................................................................. 16
2
In re Facebook, Inc. PPC Advertising Litig., 3 282 F.R.D. 446 (N.D. Cal. 2012) ....................................................................... 14

4 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ............................................................................ 21
5
Harris v. Palm Springs Estates, Inc., 6 329 F.2d 909 (9th Cir. 1964).............................................................................. 14

7 Inland Empire - Immigrant Youth Collective, 2018 WL 1061408 .............................................................................................. 19
8
J.L. v. Cissna, 9 2019 WL 415579 (N.D. Cal. 2019).................................................................... 25

10 Just Film, Inc. v. Merchant Servs., Inc., 474 F. App’x 493 (9th Cir. 2012)....................................................................... 13
11
Krueger v. Wyeth, Inc., 12 310 F.R.D. 468 (S.D. Cal. 2015)........................................................................ 18

13 LaReau v. Manson, 383 F. Supp. 214 (D. Conn. 1974) ..................................................................... 20
14
Leyva v. Buley, 15 125 F.R.D. 512 (E.D. Wash. 1989) .................................................................... 16

16 Lucas v. Berg, Inc., 212 F. Supp. 3d 950 (S.D. Cal. 2016) ................................................................ 25
17
Lyon v. ICE, 18 171 F. Supp. 3d 961 (N.D. Cal. 2016) ............................................................... 23

19 Lyon v. ICE, 300 F.R.D. 628 (N.D. Cal. 2014) ....................................................................... 17
20
Lyon v. ICE, 21 308 F.R.D. 203 (N.D. Cal. 2014) ....................................................................... 23

22 McCluskey v. Trustees of Red Dot Corp., 268 F.R.D. 670 (W.D. Wash. 2010)................................................................... 15
23
Meyer v. Portfolio Recovery Assocs., LLC, 24 707 F.3d 1036 (9th Cir. 2012)............................................................................ 13

25 Ms. L. v. U.S. Immigration & Customs Enforcement (“ICE”), 2018 WL 8665001 (S.D. Cal. 2018) ...................................................... 14, 20, 23
26
Nak Kim Chhoeun, 27 2018 WL 6265014.............................................................................................. 19

28 Orantes-Hernandez v. Meese,

MEMO OF P. & A. IN SUPP. OF MOT. FOR

iii

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7313 Page 6 of 35

1 685 F. Supp. 1488 (C.D. Cal. 1988)................................................................... 23

2 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) .............................................................................. 19
3
Plata v. Schwarzenegger, 4 2005 WL 2932253 (N.D. Cal. 2005).................................................................. 23

5 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ............................................................................ 13
6
Rodriguez v. Hayes, 7 591 F.3d 1105 (9th Cir. 2010)................................................................ 16, 19, 20

8 In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346 (N.D. Cal. 2005) ....................................................................... 14
9
Sali v. Corona Reg’l Med. Ctr., 10 909 F.3d 996 (9th Cir. 2018).............................................................................. 14

11 Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017) ............................................................. 24
12
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins., 13 559 U.S. 393 (2010) ........................................................................................... 12

14 Unknown Parties v. Johnson, 163 F. Supp. 3d 630 (D. Ariz. 2016) ................................................ 17, 19, 23, 24
15
Vietnam Veterans of Am. v. C.I.A., 16 288 F.R.D. 192 (N.D. Cal. 2012) ....................................................................... 25

17 Von Colln v. Cty. of Ventura, 189 F.R.D. 583 (C.D. Cal. 1999) ....................................................................... 14
18
Wal-Mart Stores, Inc. v. Dukes, 19 564 U.S. 338 (2011) ..................................................................................... 16, 22

20 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ...................................................................... 22, 23
21
Westways World Travel, Inc. v. AMR Corp., 22 218 F.R.D. 223 (C.D. Cal. 2003) ....................................................................... 22

23 In re Yahoo Mail Litig., 308 F.R.D. 577 (N.D. Cal. 2015) ....................................................................... 14
24
Zepeda v. INS, 25 753 F.2d 719 (9th Cir. 1983).............................................................................. 13

26 Other Authorities

27 8 C.F.R. § 208.13(c)(4)............................................................................................ 18

28 Asylum Eligibility and Procedural Modifications, 84 Fed. Reg.

MEMO OF P. & A. IN SUPP. OF MOT. FOR

iv

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7314 Page 7 of 35

1 33,829, 33,830 (July 16, 2019)....................................................................passim

2 Fed. R. Civ. P. 23..............................................................................................passim

3 Mary J. Kane, Fed. Prac. & Proc. Civ. (3d ed. 2018) ...................................... 17, 21

4 William B. Rubenstein, Newberg on Class (5th ed. 2018) ..................................... 23

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

v

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7315 Page 8 of 35

1 I. INTRODUCTION

2

The Named Plaintiffs (“Named Plaintiffs” or “Plaintiffs”) seek provisional

3 class certification for the purposes of pursuing preliminary injunctive relief.

4 Plaintiffs easily meet all of the requirements of Rules 23(a) and 23(b)(2). They seek

5 certification of a cohesive class consisting of all non-Mexican noncitizens who were

6 denied access to the U.S. asylum process before July 16, 2019 as a result of the

7 Government’s metering policy and continue to seek access to the U.S. asylum

8 process.2 All of the class members advance claims for violations of the Immigration

9 and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), the Due

10 Process Clause of the Fifth Amendment, and the Alien Tort Statute (“ATS”).

11

Their claims are based on a common nucleus of operative facts. Although

12 discovery is ongoing, Plaintiffs have uncovered evidence that one aspect of the

13 Turnback Policy alleged in their Second Amended Complaint—the metering

14 policy—exists and has denied members of the provisional class access to the U.S.

15 asylum process. Moreover, the discovery record produced thus far shows that there

16 is no valid justification for the metering policy.

17

Each member of the provisional class makes the same arguments concerning

18 the metering policy. The Government’s metering policy singles out asylum seekers

19 for treatment that applies to no other group of individuals seeking to enter the United

20 States via the U.S.-Mexico border. As they approached Ports of Entry (“POEs”) on

21 the U.S.-Mexico border, members of the class were denied access to the U.S. asylum

22 process by virtue of the border-wide implementation of the Government’s metering

23

2 For purposes of the concurrently filed motion for preliminary injunction, by this 24 motion Plaintiffs seek to provisionally certify a subclass of the class alleged in their

Second Amended Complaint. See Dkt. 189 at ¶ 236. “[A] class may be divided into 25 subclasses that are each treated as a class under this rule.” Fed. R. Civ. P. 23(c)(5).

A proposed subclass should be certified if it meets Rule 23’s requirements. Betts v. 26 Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981). The

provisional class includes noncitizens who currently reside in the United States that 27 were metered prior to July 16, 2019 and have been denied meaningful access to the

U.S. asylum process by the combined effect of the metering policy and the Asylum 28 Ban.

MEMO OF P. & A. IN SUPP. OF MOT. FOR

1

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7316 Page 9 of 35

1 policy. Under that policy, U.S. Customs and Border Protection (“CBP”) officers do

2 not inspect and process asylum seekers when they are in the process of arriving at

3 POEs in the United States as the INA requires. See Dkt. 278 at 38-40, 42, 44-47.

4 Instead, CBP officers block asylum seekers—and only asylum seekers—from

5 crossing the international boundary line on the pathway to POEs. CBP officers

6 inspect and process a limited number of asylum seekers at POEs, only sporadically,

7 and generally based on their positions on lists of asylum seekers maintained by third

8 parties in Mexico. When asylum seekers approach POEs without going through this

9 waitlist process, CBP officers generally refuse to inspect and process them. Faced

10 with this illegal conduct, the class members put their names on waitlists in Mexican

11 border towns and waited weeks or months in dangerous and unsanitary conditions.

12 The class members did so hoping that they would be one of the handful of asylum

13 seekers on the waitlists allowed to present themselves at POEs on a particular day.

14

Then the Government pulled a bait-and-switch. After many of the class

15 members had been waiting weeks or months due to the Government’s metering

16 policy, the Government issued an interim final rule (the “Asylum Ban”) on July 16,

17 2019 that effectively denies access to the asylum process to any noncitizen who

18 traveled through a third country before reaching the U.S.-Mexico border.3 The

19 Asylum Ban contains one limited exception that is relevant here—in order to avoid

20 the bar on asylum eligibility, noncitizens must first seek protection from persecution

21 or torture in a country through which they traveled en route to the United States and

22 be denied such protection in a final judgment before seeking asylum in the United

23 States.

24

This rule is not merely an additional administrative hurdle; it effectively

25

26 3 The Asylum Ban bars non-Mexicans from “eligibility” for asylum, not from

applying for asylum. However, “[t]o say that one may apply for something that one 27 has no right to receive is to render the right to apply a dead letter. There simply is no

reasonable way to harmonize the two.” E. Bay Sanctuary Covenant v. Trump, 349 28 F. Supp. 3d 838, 857 (N.D. Cal. 2018).

MEMO OF P. & A. IN SUPP. OF MOT. FOR

2

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7317 Page 10 of 35

1 denies any meaningful access to the U.S. asylum process to the class of individuals

2 who were abiding by the rules of the Government’s metering policy. Asylum seekers

3 forced to “seek protection from persecution or torture,” Asylum Eligibility and

4 Procedural Modifications, 84 Fed. Reg. 33,829, 33,830 (July 16, 2019) [hereinafter

5 “Asylum Ban”], in Mexico before seeking asylum in the United States face delays

6 of over two years caused by the chronic underfunding and understaffing of Mexican

7 Commission for Refugee Assistance (“COMAR”), the Mexican agency charged

8 with evaluating asylum applications. The class members, who are fleeing horrific

9 violence and threats to their lives, cannot wait years before even being allowed to

10 wait for asylum in the United States. They are living in migrant centers, in

11 overcrowded group homes, and on the streets of Mexican towns, where they are

12 vulnerable to abuse by criminal gangs and, in many cases, lack access to basic

13 sanitation and medical services.

14

To make matters worse, CBP is forcing members of the provisional class to

15 go through a charade by seeking asylum in Mexico. Provisional class members who

16 were metered before July 16, by definition, have been in Mexico longer than a

17 month, and are now barred from obtaining asylum in Mexico by that country’s 30-

18 day bar on asylum applications. Although it is possible to seek a waiver of the 30-

19 day bar, it is nearly impossible to do without retaining legal counsel, which destitute

20 asylum seekers cannot do. For all intents and purposes, nearly all provisional class

21 members are unable to even apply for asylum in Mexico. Therefore, the combined

22 effect of the Asylum Ban and the metering policy is that the class members are barred

23 from seeking asylum in either Mexico (due to the 30-day rule) or the United States

24 (due to the Asylum Ban).

25

Under the INA, which contains no cap on the number of asylum seekers that

26 can present themselves at POEs, the class members were eligible for asylum when

27 they arrived at the U.S.-Mexico border. But for the Government’s illegal metering

28 policy, the class members would have accessed the U.S. asylum process before the

MEMO OF P. & A. IN SUPP. OF MOT. FOR

3

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7318 Page 11 of 35

1 Asylum Ban went into effect. Instead, while the class members were waiting in

2 Mexican border towns, the Government foreclosed their eligibility for asylum and

3 thus effectively eliminated their ability to access the U.S. asylum process. Now,

4 regardless of whether class members are ever inspected and processed, they will be

5 unable to access the U.S. asylum process. The Government cannot pull such an

6 immoral bait and switch.

7

The class members are subject to the metering policy and the Asylum Ban.

8 They seek preliminary injunctive relief that will remedy the combined effect of these

9 policies in a single stroke. Provisional class certification is warranted.

10 II. FACTS COMMON TO THE PROVISIONAL CLASS

11

A. THE METERING POLICY

12

On April 27, 2018, CBP issued its metering policy, which was distributed to

13 the four directors of field operations that oversee the operations of all POEs on the

14 U.S.-Mexico border. See Ex. 1.4 Under the metering policy, directors of POEs were

15 empowered to “meter the flow of travelers at the land border.” Id. When “metering”

16 is in place, CBP officers tell “waiting travelers that processing at the port of entry is

17 currently at capacity.” Id.

18

The Government subsequently confirmed the existence of the metering policy

19 in a September 2018 report from the Office of the Inspector General of the U.S.

20 Department of Homeland Security. See Ex. 2 at 4. The report concluded that, “while

21 the Government encouraged all asylum-seekers to come to ports of entry to make

22 their asylum claims, CBP managed the flow of people who could enter at those ports

23 of entry through metering.” Id.

24

The Government’s metering policy has a border-wide, systematic effect on

25 asylum seekers. Prior to the formalization of the metering policy,

26

.

27

4 “Ex.” refers to the exhibits to the Declaration of Stephen Medlock (“Medlock 28 Decl.”), which are filed concurrently with this motion.

MEMO OF P. & A. IN SUPP. OF MOT. FOR

4

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7319 Page 12 of 35

1 See Ex. 3 at 12000.

2

3

.” Id.

4

.

5

6

.

7

8

9

10

. See Ex. 4 at 12012-13.

11

12

See Ex. 5 at 12141.

13

At POEs on the U.S-Mexico border, the metering policy singles out asylum

14 seekers and treats them differently from every other traveler arriving at a POE. At

15 POEs, pedestrian traffic for non-asylum seekers flows freely—pedestrians cross into

16 the United States sometimes through turnstiles and sometimes by stepping across a

17 literal line on the ground; they then enter the POE’s arrival hall, where they

18 encounter a CBP officer. See Ex. 6 ¶¶ 5-6. The CBP officer inspects the pedestrian,

19 who may be admitted into the country or sent to secondary inspection for additional

20 questioning. See id. at ¶ 6. Under the metering policy, while other pedestrians flow

21 freely across the international boundary en route to the arrival hall, CBP officers

22 intercept asylum seekers at the international boundary. See id. at ¶ 6. These CBP

23 officers instruct the asylum seekers to return to Mexico. See id. at ¶ 6. Plaintiffs

24 have documented the existence of this metering policy through multiple

25 declarations. See Ex. 7 ¶¶ 9-10; Ex. 8 ¶¶ 8-9; Ex. 9 ¶¶ 9-10; Ex. 10 ¶¶ 9-10; Ex. 11

26 ¶¶ 7-8; Ex. 12 ¶ 9; Ex. 13 ¶¶ 9-12; Ex. 14 ¶¶ 5-7; Ex. 15 ¶¶ 4-11; Ex. 16 ¶¶ 14-17;

27 Ex. 17 ¶¶ 7-11; Ex. 18 ¶¶ 14-16 ; Ex. 19 ¶¶ 9-12 ; Ex. 20 ¶¶ 7-11; Ex. 21 ¶¶ 7-10;

28 Ex. 22 ¶¶ 6-18; Ex. 23 ¶¶ 8-10; Ex. 24 ¶¶ 8-9; Ex. 25 ¶¶ 5-6. In Mexico, asylum

MEMO OF P. & A. IN SUPP. OF MOT. FOR

5

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7320 Page 13 of 35

1 seekers contact local organizations to place themselves on waitlists. See, e.g., Ex. 7

2 ¶¶ 9-10; Ex. 8 ¶¶ 8-9; Ex. 9 ¶¶ 9-10; Ex. 10 ¶¶ 9-10; Ex. 26 ¶¶ 6-7. These asylum

3 seekers then spend week or months waiting for their names to be called along with

4 hundreds of other asylum seekers. See, e.g., Ex. 6-A at 5-13; Ex. 26 ¶¶ 7-10. These

5 wait times can last months because, on average, no POE processes over 30 asylum

6 seekers per day. Ex. 6-A at 5-13.

7

This is entirely different from the way that asylum seekers were inspected and

8 processed at POEs prior to the implementation of the metering policy. Prior to the

9 metering policy, asylum seekers could proceed past the international boundary to the

10 entry halls or inspection stations at the POEs. See Ex. 6 ¶ 6. Asylum seekers were

11 not forced to spend months on waitlists on the Mexican side of the border. Id.

12

The Government has used the metering policy to drastically cut the number

13 of asylum seekers processed at POEs. See Ex. 6-A at 5-14; Ex. 6-B at 4-8; Ex. 6-C

14 at 2-3; Ex. 6-D at 7. These processing levels cannot be justified by the capacity of

15 particular POEs. For example,

16

Ex.

17 27 at 11124,

18

Id. at 11135.

19

20

21

.

22

23

24

25

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

6

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7321 Page 14 of 35

1

2

3

4

5

6

7

8

9

10

11

12

13

As shown above,

14

,

15

.

16 Even when accounting for such factors as the need to house vulnerable migrant

17 populations (such as juveniles) separately from other migrants, the Government has

18 offered no valid justification for its decision to

19

.

20

The same trend can be seen border-wide. CBP’s own statistics show that the

21 Government has far more capacity to process asylum seekers than it is currently

22 using. Between July 2015 and January 2017, before the Government implemented

23 its formal border-wide metering policy, CBP processed 12,651 undocumented

24 migrants per month. Ex. 28 ¶ 6(a). Between June 2018 and July 2019, CBP processed

25 only 9,904 undocumented migrants per month, a 28% decrease. Id. ¶ 6(b)-(c).

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

7

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7322 Page 15 of 35

1

2

3

4

5

6

7

8

9

10

11

This reduction in migrant processing cannot be explained by other factors.

12 From 2015 to 2019, CBP’s budget increased from $12.8 billion to $14.7 billion. Ex.

13 29 at fig. 2. In 2017 and 2018, the number of “frontline” CBP officers increased.

14 Ex. 30 at 6. Moreover, in 2019, CBP is scheduled to complete a $741 million

15 expansion of the San Ysidro POE, which includes an expansion of the secondary

16 inspection and detention capabilities of the POE. Ex. 31 at 2. Moreover, after the

17 Government implemented the Asylum Ban, which rendered many migrants

18 ineligible for asylum, the number of undocumented migrants allowed to approach

19 ports of entry increased to 13,313. Ex. 28 ¶ 7.

20

B. THE ASYLUM BAN

21

On July 16, 2019, the Attorney General and the Acting Secretary of Homeland

22 Security promulgated an interim final rule providing that noncitizens who transit

23 through another country prior to reaching the U.S.-Mexico land border are ineligible

24 for asylum. See Asylum Ban at 33,830. The rule has three narrow exceptions: (1)

25 noncitizens who applied for protection in one of the countries through which they

26 traveled and were denied protection in a final judgment, (2) noncitizens who meet

27 the definition of “victim of severe form of trafficking in persons,” and (3)

28 noncitizens who transited only through countries that are not parties to the 1951

MEMO OF P. & A. IN SUPP. OF MOT. FOR

8

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7323 Page 16 of 35

1 Refugee Convention, the 1967 Refugee Protocol, or the Convention Against Torture.

2 Id. at 33,834. The Asylum Ban does not apply to noncitizens who “enter[ed] or

3 attempt[ed] to enter the United States across the southern border” before the

4 promulgation of the rule. Id.

5

The Asylum Ban has especially pernicious effects when coupled with the

6 metering policy. Due to the metering policy, approximately 26,000 asylum seekers

7 have been forced to wait for protracted periods in Mexican border towns under

8 dangerous conditions without access to basic resources. See, e.g., Ex. 6 ¶ 7; Ex. 7 ¶

9 17; Ex. 10 ¶ 17; Ex. 11 ¶ 12; Ex. 12 ¶ 11; Ex. 13 ¶ 14; Ex. 14 ¶ 9; Ex. 15 ¶ 11.

10 Because migrant shelters are over capacity, asylum seekers, including families with

11 young children, are forced to live on the street where temperatures regularly exceed

12 100 degrees. See Ex. 6 ¶ 7.5

13

14

15

16

17

18

19

20

21

22

Now the Government has pulled a bait and switch. After making the

23 provisional class members wait for lengthy periods in the hope of accessing the U.S.

24 asylum process, the Government is denying them meaningful access to the asylum

25 process because they did not apply for and wait to receive protection in a country

26 they traveled through to get to the United States first. For provisional class members

27

28 5 Associated Press (Aug. 1, 2019), available at http://bit.ly/2KzNfJT.

MEMO OF P. & A. IN SUPP. OF MOT. FOR

9

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7324 Page 17 of 35

1 stranded in Mexico, applying for protection in Mexico may be their only option now.

2

Applying for asylum in Mexico first will harm each of the members of the

3 provisional class. To begin with, “[m]igrants traveling through Mexico are

4 frequently subject to abuses and human rights violations.” Ex. 32 at 5-6. Even

5 though it is likely that crimes against asylum seekers “are severely underreported,”

6 between 2012 and January 2018, Mexico’s National Human Rights Commission

7 received “more than 3,000 complaints of abuses against migrants.” Id. at 5-6.

8 Moreover, many asylum seekers in Mexico “are left unprotected due to lack of

9 access to full and fair procedures.” Ex. 33 at 2. COMAR, the Mexican agency

10 charged with processing asylum claims, has a total annual budget of $1.2 million, its

11 lowest level of funding in seven years—far less than the $59.6 million that the United

12 Nations has determined is needed to operate COMAR properly ⸺and a staff of 63

13 people. Ex. 34 at 1-2; Ex. 35 at 4; Ex. 45 ¶ 19. COMAR is “[b]uckling under surging

14 asylum applications” and has recently turned to the United Nations for assistance.

15 Ex. 34 at 1. COMAR’s employees are already “working up to 15 hours a day” to

16 process a backlog of over 16,300 asylum applications. Ex. 36 at 1; Ex. 45 ¶ 19.

17 Even before the combination of the metering policy and the Asylum Ban forced

18 many more asylum seekers to lodge asylum applications with COMAR, it took the

19 agency over two years to process asylum applications (despite the fact that Mexican

20 law requires asylum applications to be processed in 45 days). Ex. 37 at 1.

21

Furthermore, there is only one COMAR office on the U.S.-Mexico border, in

22 Tijuana, with just two staff members who are not authorized to decide cases on their

23 own. Ex. 44 ¶¶ 26-28. Although class members can apply for asylum at National

24 Institute for Migration (“INM”) offices in other border cities, those offices have no

25 staff with specialized training in asylum, humanitarian protection, or working with

26 traumatized populations. Id. at ¶¶ 30-31. While their applications are pending,

27 migrants are not allowed to leave the Mexican state where they filed their

28 applications, and have to check in regularly with COMAR or INM to avoid

MEMO OF P. & A. IN SUPP. OF MOT. FOR

10

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7325 Page 18 of 35

1 “abandonment” of their applications, which could lead to deportation. Id. at ¶ 32.

2

Requiring members of the provisional class to seek protection from

3 persecution or torture in Mexico first is a farce. All of the provisional class members

4 have been in Mexico for over 60 days. As a result, they are generally barred from

5 applying for asylum in Mexico by that country’s 30-day bar on asylum applications.

6 Ex. 44 ¶¶ 34-36, 43-45; Ex. 45 ¶¶ 22-23. Although asylum seekers represented by

7 private attorneys may be able to seek a waiver of this 30-day bar, the provisional

8 class members generally do not have the resources to hire a private attorneys. See,

9 e.g., Ex. 22 ¶ 6 (“I had nowhere to go and no money”); Ex. 18 ¶ 19 (“I go to bed

10 hungry”); Ex. 45 ¶ 23.

11

Therefore, the net effect of the Government’s Asylum Ban and metering

12 policy is to force asylum seekers to apply for protection in a country where they are

13 barred from seeking asylum absent a waiver and where a massively underfunded

14 government agency staffed by a skeleton crew takes up to two years to process

15 asylum applications before they might be able to wait to access the U.S. asylum

16 process. For individuals who are fleeing persecution, waiting two years without

17 reliable access to employment and basic necessities to seek asylum in the United

18 States is not just irreparable harm; it is unconscionable and immoral.

19

C. THE GOVERNMENT’S CONTEMPORANEOUS ADMISSIONS

20

The Government’s contemporaneous statements show that the purpose of the

21 metering policy and Asylum Ban is to illegally deter asylum seekers from accessing

22 the U.S. asylum process. For instance, at a December 6, 2018 Congressional staff

23 briefing concerning metering at POEs on the U.S.-Mexico border, Judson W.

24 Murdock, II, the Acting Assistant Commissioner of CBP, justified the policy by

25 stating, “[t]he more we process, the more will come.” Ex. 38 at 1. Similarly, in a

26 July 26, 2019 email, one of President Trump’s chief immigration advisors, Stephen

27 Miller, stated, “My mantra has persistently been presenting aliens with multiple

28 unavoidable dilemmas to impact their calculus for choosing to make the arduous

MEMO OF P. & A. IN SUPP. OF MOT. FOR

11

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7326 Page 19 of 35

1 journey to begin with.” Ex. 39 at 2. Mr. Miller has been even more direct about his

2 intentions, stating that he “would be happy if not a single refugee foot ever again

3 touched America’s soil.” Ex. 40 at 6. President Trump has been more prosaic,

4 explaining, “They have to get rid of the whole asylum system because it doesn’t

5 work. And, frankly, we should get rid of judges. You can’t have a court case every

6 time somebody steps foot on our ground.” Ex. 41 at 3; see also Ex. 42 at 24

7 (“Asylum is a ridiculous situation. . . . It’s a big con job. That’s what it is.”); Ex.

8 43 at 24 (“How stupid can we be to put up with this? How stupid can we be? . . .

9 [T]he asylum program is a scam.”).

10 III. THE PROVISIONAL CLASS DEFINITION IS REASONABLE

11

Federal Rule of Civil Procedure 23 governs the certification and maintenance

12 of class actions. A plaintiff whose lawsuit meets the requirements of Rule 23 has a

13 “categorical” right “to pursue his claim as a class action.” Shady Grove Orthopedic

14 Assocs., P.A. v. Allstate Ins., 559 U.S. 393, 398 (2010). The “suit must satisfy the

15 criteria set forth in subdivision (a) [of Rule 23], and it must also fit into one of the

16 three categories described in subdivision (b) [of Rule 23].” Id.

17

A district court may enter class-wide preliminary injunctive relief, even

18 without certifying a class, so long as it finds that the putative class members will

19 face the same harm as plaintiffs. See Brantley v. Maxwell-Jolly, 656 F. Supp. 2d

20 1161, 1178 n.14 (N.D. Cal. 2009). District courts “are empowered to grant

21 preliminary injunctions regardless of whether the class has been certified.” Id.

22 (citation and quotation marks omitted) (granting class-wide preliminary injunction

23 to Medicaid recipients before class certification); see also Price v. City of Stockton,

24 390 F.3d 1105, 1117-18 (9th Cir. 2004) (affirming preliminary injunction that

25 benefitted displaced tenants beyond the named plaintiffs). But see Zepeda v. INS,

26 753 F.2d 719, 728 n.1 (9th Cir. 1983) (“Without a properly certified class, a court

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

12

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7327 Page 20 of 35

1 cannot grant relief on a class-wide basis.”).6

2

Courts may also “certify a provisional class for purposes of [a] preliminary

3 injunction.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1040 (9th

4 Cir. 2012); see also Carrillo v. Schneider Logistics, Inc., 2012 WL 556309, at *9

5 (C.D. Cal.) (“[C]ourts routinely grant provisional class certification for purposes of

6 entering injunctive relief.”), aff’d, 501 F. App’x 713 (9th Cir. 2012).

7

Out of an abundance of caution, Plaintiffs seek provisional certification of the

8 following class, for purposes of preliminary injunctive relief only:

9

All non-Mexican noncitizens who were denied access to the U.S.

10

asylum process before July 16, 2019 as a result of the Government’s

11

metering policy and continue to seek access to the U.S. asylum process.

12 IV. THE REQUIREMENTS OF FED. R. CIV. P. 23(A) ARE MET

13

A. THE PROVISIONAL CLASS IS NUMEROUS

14

Federal Rule of Civil Procedure 23(a)(1) requires that the class be “so

15 numerous that joinder of all members is impracticable.” “‘Impracticability does not

16 mean impossibility’” but only “the difficulty or inconvenience of joining all

17 members of [the] class.” Astiana v. Kashi Co., 291 F.R.D. 493, 501 (S.D. Cal. 2013)

18 (quoting Harris v. Palm Springs Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964)).

19

There is no “specific number of class members required for numerosity.” In

20 re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005). A

21 plaintiff does not need to specify the exact number of class members in order to

22

23 6 Since Zepeda was decided, the Ninth Circuit has suggested that this single sentence in the opinion may have been overruled and, in any case, should not be read broadly.
24 See, e.g., Just Film, Inc. v. Merchant Servs., Inc., 474 F. App’x 493, 496 (9th Cir. 2012) (citing Zepeda and finding that “[t]he district court did not abuse its discretion
25 by finding sufficient evidence to support its preliminary injunction, which was carefully tailored to maintain the status quo where class certification is pending and
26 the plaintiff has shown that a class-wide injunction is necessary to remedy the alleged class-wide harm”); Bresgal v. Brock, 843 F.2d 1163, 1169-70 (9th Cir. 1987)
27 (“there is no general requirement that an injunction affect only the parties in the suit”).
28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

13

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7328 Page 21 of 35

1 certify a class. Ms. L. v. U.S. Immigration & Customs Enforcement (“ICE”), 2018

2 WL 8665001, at *4 (S.D. Cal. 2018).

3

However, “courts generally find that the numerosity factor is satisfied if the

4 class comprises 40 or more members, and will find that it has not been satisfied when

5 the class comprises 21 or fewer.” In re Facebook, Inc. PPC Advertising Litig., 282

6 F.R.D. 446, 452 (N.D. Cal. 2012). Where, as here, a plaintiff “seek[s] only

7 injunctive and declaratory relief, the numerosity requirement is relaxed and [the]

8 plaintiff[] may rely on [] reasonable inference[s] . . . that the number of unknown

9 and future members . . . is sufficient to make joinder impracticable.” Civ. Rights

10 Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 317 F.R.D. 91, 100 (N.D. Cal. 2016) (internal

11 quotation marks and citations omitted); see also In re Yahoo Mail Litig., 308 F.R.D.

12 577, 589-90 (N.D. Cal. 2015) (“In determining whether numerosity is satisfied, the

13 Court may consider reasonable inferences drawn from the facts before it.”).

14

Here, joinder is clearly impracticable, because “general knowledge and

15 common sense indicate that [the provisional class] is large.” Von Colln v. Cty. of

16 Ventura, 189 F.R.D. 583, 590 (C.D. Cal. 1999). The best current estimate of the

17 number of individuals in the provisional class is the number of individuals who are

18 currently on waitlists kept in towns on the Mexican side of the border, and who put

19 their names on those lists on or before July 16, 2019. See Ex. 6-A at 2.7

20 Approximately 26,000 people are on waitlists in border towns due to the

21 Government’s metering policy. Id. at 1. That number is under-inclusive. For

22 instance, it does not include unaccompanied children, who are generally prohibited

23 from putting their names on these lists, and trans individuals who fear retaliation by

24

25 7 When analyzing class certification, “[t]he court may consider whether the

plaintiff’s proof is, or will likely lead to, admissible evidence.” Sali v. Corona Reg’l 26 Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018). “But admissibility must not be

dispositive. Instead, an inquiry into the evidence’s ultimate admissibility should go 27 to the weight the evidence is given at the class certification stage.” Id. (concluding

that district court abused its jurisdiction by refusing to consider declaration purely 28 on the grounds of admissibility).

MEMO OF P. & A. IN SUPP. OF MOT. FOR

14

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7329 Page 22 of 35

1 identifying their birth name and gender on these waitlists. Ex. 26 ¶¶ 8-10. Plaintiffs

2 have also collected 19 declarations from members of the provisional class detailing

3 the effects of the metering policy and Asylum Ban. See Exs. 7-25.

4

Additional factors commonly considered by courts when evaluating

5 numerosity also compel the conclusion that class treatment is appropriate here.

6 These factors include “(1) the judicial economy that will arise from avoiding

7 multiple actions; (2) the geographic dispersion of members of the proposed class;

8 (3) the financial resources of those [class] members; (4) the ability of the members

9 to file individual suits; and (5) requests for prospective relief that may have an effect

10 on future class members.” McCluskey v. Trustees of Red Dot Corp. Emp. Stock

11 Ownership Plan & Tr., 268 F.R.D. 670, 674 (W.D. Wash. 2010) (citations omitted).

12 While each of these factors weighs sharply in favor of provisional class certification,

13 the second, third, and fourth factors are particularly instructive. Members of the

14 provisional class are scattered in encampments and shelters in Mexican border cities.

15 See Ex. 6-A at Fig. 1.

16

17

18

19

20

21

22

23

24

25 In many cases, they do not speak English, do not have any understanding of the U.S.

26 legal system, and do not have the financial resources to retain legal counsel capable

27 of pursuing complex litigation. See, e.g., Ex. 22 ¶ 6 (“I slept on the ground with my

28 son. . . I had nowhere to go and no money”); Ex. 18 ¶ 19 (“I go to bed hungry because

MEMO OF P. & A. IN SUPP. OF MOT. FOR

15

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7330 Page 23 of 35

1 there is not enough food for dinner.”); see also Ex. 6 ¶ 6; Ex. 6-A at 3; Ex. 19 ¶¶ 15-

2 18; Ex. 20 ¶¶ 13-14; Ex. 21 ¶¶ 14-16. Thus, they lack any practical ability to file

3 individual suits. See, e.g., Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th Cir. 2010)

4 (finding numerosity satisfied, in part, because of “the several practical concerns that

5 would likely attend [prospective immigrant class members] were they forced to

6 proceed alone.”); Leyva v. Buley, 125 F.R.D. 512, 515 (E.D. Wash. 1989) (certifying

7 class of migrant workers due to class members’ limited knowledge of the legal

8 system, limited or non-existent English language skills, and fear of retaliation).

9 Accordingly, the provisional class is numerous.

10

B. THERE ARE COMMON QUESTIONS OF LAW AND FACT

11

Rule 23(a) next requires that there be “questions of law or fact common to the

12 class.” Fed. R. Civ. P. 23(a)(2). However, all questions of law and fact do not need

13 to be common to the proposed class in order to satisfy Rule 23(a). Ellis v. Costco

14 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). Instead, commonality requires

15 plaintiffs to demonstrate that their claims “depend upon a common contention . . .

16 [whose] truth or falsity will resolve an issue that is central to the validity of each one

17 of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

18 (2011). Commonality can be satisfied by a single common issue. See, e.g., Abdullah

19 v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (commonality “does not

20 . . . mean that every question of law or fact must be common to the class; all that

21 Rule 23(a)(2) requires is a single significant question of law or fact.”) (citations and

22 internal quotation marks omitted).

23

When a plaintiff is seeking injunctive and declaratory relief, commonality is

24 present “where the lawsuit challenges a system-wide practice or policy that affects

25 all of the putative class members.” Unknown Parties v. Johnson, 163 F. Supp. 3d

26 630, 635 (D. Ariz. 2016) (quoting Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.

27 2001)). Such suits “by their very nature often present common questions satisfying

28 Rule 23(a)(2).” 7A Mary J. Kane, Fed. Prac. & Proc. Civ. § 1763 (3d ed. 2018).

MEMO OF P. & A. IN SUPP. OF MOT. FOR

16

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7331 Page 24 of 35

1 Furthermore, the fact that a policy is enforced in a less than uniform manner does

2 not negate a finding of commonality. See Lyon v. ICE, 300 F.R.D. 628, 642 (N.D.

3 Cal. 2014) (“The fact that the precise practices among the three [immigration

4 detention] facilities may vary does not negate the application of a constitutional floor

5 equally applicable to all facilities.”).

6

For example, in Unknown Parties v. Johnson, a group of detainees at CBP

7 detention facilities in the U.S. Border Patrol’s Tucson Sector sued the Secretary of

8 Homeland Security and the CBP Commissioner for violations of the Due Process

9 Clause of the Fifth Amendment. 163 F. Supp. 3d at 634. The plaintiffs sought

10 declaratory and injunctive relief, including an order compelling the Government to

11 provide the proposed class with beds; access to soap, toothbrushes, toothpaste, and

12 other sanitary supplies; clean drinking water and nutritious meals; reasonable

13 holding cell temperatures; and access to medical care. Id. The plaintiffs moved to

14 certify a class of “‘all individuals who are now or in the future will be detained for

15 one or more nights at a CBP facility, including Border Patrol facilities, within the

16 Border Patrol’s Tucson Sector.’” Id. The Government argued that the proposed

17 class lacked commonality, because plaintiffs were challenging “a number of

18 different conditions they allege were experienced by a variety of individuals . . . over

19 an unspecified period of time at eight different Border Patrol stations throughout the

20 Tucson Sector.” Id. at 637. Because the plaintiffs “provide[d] numerous

21 declarations in which the putative class members attested to” system-wide

22 deprivation of their due process rights, the court found that the commonality

23 requirement was met and that “[p]laintiffs’ contentions, if proven, would be

24 []capable of classwide resolution.” Id.; see also id. at 638-39 (rejecting as

25 “irrelevant” Government’s argument that “factual differences” in the treatment of

26 “the individual immigration detainees” negated commonality because plaintiffs

27 asserted claims based on “Sector-wide conditions of confinement”).

28

So too here. It is undisputed that, on April 27, 2018, CBP’s Office of Field

MEMO OF P. & A. IN SUPP. OF MOT. FOR

17

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7332 Page 25 of 35

1 Operations promulgated the metering policy. Ex. 1.8 This metering policy applies

2 to all POEs on the U.S.-Mexico border, meaning that any non-Mexican asylum

3 seeker who approaches a POE could be metered. See Ex. 1. Similarly, the Asylum

4 Ban applies to all non-Mexican asylum seekers who “enter[], attempt[] to enter, or

5 arrive[] in the United States across the southern land border on or after July 16,

6 2019.” 8 C.F.R. § 208.13(c)(4). Therefore, unless injunctive relief is granted, the

7 members of the provisional class will never be able to meaningfully access the U.S.

8 asylum process. Ex. 46 at 2; see also supra at 8-10. Plaintiffs have presented

9 numerous declarations showing that the existence and effects of the metering policy

10 are systemic and capable of common proof. See, e.g., Ex. 6 ¶ 6; Ex. 7 ¶¶ 9-10; Ex.

11 8 ¶¶ 8-9; Ex. 9 ¶¶ 9-10; Ex. 10 ¶¶ 9-10; Ex. 11 ¶¶ 7-8; Ex. 12 ¶ 9; Ex. 13 ¶¶ 9-12;

12 Ex. 14 ¶¶ 5-7 ; Ex. 15 ¶¶ 4-11; Ex. 16 ¶¶ 14-17; Ex. 17 ¶¶ 7-11; Ex. 18 ¶¶ 14-16;

13 Ex. 19 ¶¶ 9-12 ; Ex. 20 ¶¶ 7-11; Ex. 21 ¶¶ 7-10; Ex. 22 ¶¶ 6-18; Ex. 23 ¶¶ 8-10. The

14 Government’s Answer contains no defenses that are specific to the Named Plaintiffs.

15 See generally Dkt. 283. Instead, the Government generally acknowledges the

16 existence of the April 27, 2018 metering policy, denies that it implemented the

17 metering policy with the intent of deterring asylum seekers, and asserts that the

18 metering policy was justified by purportedly limited capacity at particular POEs on

19 the U.S.-Mexico border. See Dkt. 283 ¶¶ 7, 54, 67, 69, 79, 83, 226, 272, 273.

20 Therefore, there are numerous common questions of fact and law, including:

21

 Whether the metering policy violates the INA;

22

 Whether the metering policy violates the Due Process Clause of the

23

Fifth Amendment;

24

 Whether the metering policy violates the ATS;

25

8 Plaintiffs claim that the Government’s illegal conduct in this case was far broader 26 than metering asylum seekers and that this broader Turnback Policy began as early

as 2016. See Dkt. 189 at ¶¶ 2, 84. Plaintiffs intend to seek certification of this 27 broader class at a later point in this case. See, e.g., Krueger v. Wyeth, Inc., 310

F.R.D. 468, 473 (S.D. Cal. 2015) (“courts retain discretion to revisit class 28 certification throughout the legal proceedings”).

MEMO OF P. & A. IN SUPP. OF MOT. FOR

18

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7333 Page 26 of 35

1

 Whether the Government has a valid justification for the metering

2

policy; and

3

 Whether the Government’s proffered justification for the metering

4

policy is pretextual.

5 As a result, Plaintiffs easily satisfy the commonality requirement here. See, e.g.,

6 Unknown Parties, 164 F. Supp. 3d at 636-38; Nak Kim Chhoeun, 2018 WL 6265014,

7 at *5 (commonality satisfied where “the central question in [the] case is whether the

8 Government’s policy of revoking proposed class members’ release and re-detaining

9 them without any procedural protections is unlawful”); Inland Empire - Immigrant

10 Youth Collective, 2018 WL 1061408, at *8 (commonality satisfied where plaintiffs

11 “challenge[d] Defendants’ common termination policies and practices as

12 categorically violating the APA and the Due Process Clause—not the agency’s

13 ultimate exercise of discretion with respect to each recipient.”).

14

C. TYPICALITY IS SATISFIED

15

Federal Rule of Civil Procedure 23(a)(3) requires that “the claims . . . of the

16 representative parties [be] typical of the claims . . . of the class.” “[T]he typicality

17 requirement is permissive and requires only that the representative’s claims are

18 reasonably coextensive with those of absent class members; they need not be

19 substantially identical.” Rodriguez, 591 F.3d at 1124 (quotation marks omitted).

20 “The test of typicality is ‘whether other members [of the class] have the same or

21 similar injury, whether the action is based on conduct which is not unique to the

22 named plaintiffs, and whether other class members have been injured by the same

23 course of conduct.’” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (citation

24 omitted). Typicality is satisfied “‘when each class member’s claim arises from the

25 same course of events, and each class member makes similar legal arguments to

26 prove the defendant’s liability.’” Rodriguez, 591 F.3d at 1124 (quotation omitted).

27

Here, there is nothing unique or disparate about the Named Plaintiffs’ claims

28 against the Government. Like the remainder of the provisional class, the Named

MEMO OF P. & A. IN SUPP. OF MOT. FOR

19

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7334 Page 27 of 35

1 Plaintiffs presented themselves at POEs on the U.S.-Mexico border but were turned

2 away by CBP officers. See Ex. 15 ¶¶ 4-5. See also Ex. 7 ¶¶ 9-10; Ex. 8 ¶¶ 8-9; Ex.

3 9 ¶¶ 9-10; Ex. 10 ¶¶ 9-10; Ex. 11 ¶¶ 7-8; Ex. 12 ¶ 9; Ex. 13 ¶¶ 9-12; Ex. 14 ¶¶ 5-7 ;

4 Ex. 16 ¶¶ 14-17; Ex. 17 ¶¶ 7-11. For instance, Named Plaintiff Roberto Doe was

5 turned away from the U.S.-Mexico border due to the metering policy and is now

6 subject to the Asylum Ban. See Ex. 15 ¶¶ 4-11. Like the remainder of the

7 provisional class, the Named Plaintiffs raise the same legal arguments that the

8 metering policy violates Section 706(1) and 706(2) of the Administrative Procedure

9 Act (and the Immigration and Nationality Act), the Due Process Clause of the Fifth

10 Amendment, and the Alien Tort Statute. See Dkt. 189 ¶¶ 203-235. Furthermore, the

11 mere fact that not all of the representatives of the provisional class were subject to

12 both the metering policy and the Asylum Ban does not defeat typicality. “Class

13 representation may change as circumstances change and develop during the span of

14 litigation.” Canales-Robles v. Peters, 2018 WL 4762899, at *5 (D. Or. 2018). “[A]

15 lack of an identified subclass representative may not be fatal, even at the certification

16 stage.” Id. In cases such as this, where the nature of immigration enforcement may

17 lead to a case that is “capable of repetition, yet evading review,” id., the dismissal of

18 a subclass “on the ground of inadequate representation would be premature and

19 contrary to the interests of justice.” Id. at *6; see also LaReau v. Manson, 383 F.

20 Supp. 214, 216-18 (D. Conn. 1974) (release of named plaintiffs in civil rights

21 challenge to correctional center practices did not require dismissal of class action).

22 Accordingly, the Named Plaintiffs’ claims are typical of those of the provisional

23 class. See, e.g., Ms. L., 2018 WL 8665001, at *7 (typicality satisfied when plaintiffs

24 were “injured by the same course of conduct.”).

25

D. THE NAMED PLAINTIFFS AND COUNSEL ARE ADEQUATE

26

Federal Rule of Civil Procedure 23(a)(4) requires that “the representative

27 parties will fairly and adequately protect the interests of the class.” This factor

28 requires (1) that the proposed representative plaintiffs not have conflicts of interest

MEMO OF P. & A. IN SUPP. OF MOT. FOR

20

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7335 Page 28 of 35

1 with the proposed class and (2) that the plaintiffs be represented by qualified or

2 competent counsel. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).

3 “[O]nly a conflict that goes to the very subject matter of the litigation will defeat a

4 party’s claim of representative status.” Fed. Prac. & Proc. Civ., supra, § 1768.

5

Similarly, Federal Rule of Civil Procedure 23(g) is designed to “guide the

6 court in assessing proposed class counsel as part of the certification decision.” Fed.

7 R. Civ. P. 23, Notes of Advisory Committee on 2003 Amendments. Fed. R. Civ. P.

8 23(g)(1)(A) provides that, in appointing class counsel, a court “must consider” the

9 following: (i) the work counsel has done in identifying or investigating potential

10 claims in the action; (ii) counsel’s experience in handling class actions, other

11 complex litigation, and the types of claims asserted in the action; (iii) counsel’s

12 knowledge of the applicable law; and (iv) the resources that counsel will commit to

13 representing the class.

14

Each of those requirements is satisfied here. Plaintiffs’ counsel have

15 investigated the Government’s Turnback Policy and analyzed the legal basis for

16 Plaintiffs’ claims. They have also identified hundreds of additional victims of the

17 Government’s Turnback Policy, worked closely with non-governmental

18 organizations to obtain relevant evidence concerning the metering policy and related

19 practices, aggressively sought discovery from the Government, and were successful

20 in defeating both of the Government’s motions to dismiss.

21

Plaintiffs’ counsel has extensive experience litigating complex litigation and

22 class actions, including complex litigation related to the Government’s immigration

23 policies. See Medlock Decl. ¶¶ 4-5 (listing prior litigation experience of Plaintiffs’

24 counsel). Together, the provisional class action and subject matter expertise of

25 Plaintiffs’ counsel qualify them to represent the Class. Plaintiffs’ counsel have also

26 committed substantial resources to this litigation, including retaining expert

27 witnesses, e-discovery vendors, and trial graphics providers. Id. at ¶ 2. Collectively,

28 over 40 attorneys have spent over 6,760.45 hours on this litigation through August

MEMO OF P. & A. IN SUPP. OF MOT. FOR

21

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7336 Page 29 of 35

1 31, 2019. Id. at ¶ 6. Finally, Plaintiffs are aware of no conflicts amongst the

2 provisional class.

3 V. RULE 23(B)(2) IS SATISFIED

4

Rule 23(b)(2) permits class certification when “the party opposing the class

5 has acted or refused to act on grounds that apply generally to the class, so that final

6 injunctive relief or corresponding declaratory relief is appropriate respecting the

7 class as a whole.” Fed. R. Civ. P. 23(b)(2); see also Wal-Mart, 564 U.S. at 360

8 (“[t]he key to the [23](b)(2) class is ‘the indivisible nature of the injunctive and

9 declaratory remedy warranted—the notion that the conduct is such that it can be

10 enjoined or declared unlawful only as to all of the class members or as to none of

11 them.’”) (quotation omitted).

12

“‘Generally applicable,’” as used in Rule 23(b)(2), means that the party

13 opposing the class “‘has acted in a consistent manner towards members of the class

14 so that [its] actions may be viewed as part of a pattern of activity, or has established

15 or acted pursuant to a regulatory scheme common to all class members.’” Westways

16 World Travel, Inc. v. AMR Corp., 218 F.R.D. 223, 238 (C.D. Cal. 2003) (quotation

17 omitted). “Even if some class members have not been injured by the challenged

18 practice, a class may nevertheless be appropriate.” Walters v. Reno, 145 F.3d 1032,

19 1047 (9th Cir. 1998). Thus, it is sufficient if the defendant has adopted a pattern of

20 activity that is central to the claims of all class members irrespective of their

21 individual circumstances and the disparate effects of the defendant’s conduct. Baby

22 Neal v. Casey, 43 F.3d 48, 57 (3d Cir. 1994).

23

The mere existence of factual differences between some class members will

24 not defeat a motion to certify a Rule 23(b)(2) class. See Unknown Parties, 163 F.

25 Supp. 3d at 643 (rejecting argument that plaintiffs were “challeng[ing] . . . various

26 practices amongst [multiple] facilities,” because plaintiffs identified the “systemic

27 nature of the conditions” at CBP detention facilities); Walters, 145 F.3d at 1047 (“the

28 government’s dogged focus on the factual differences among the class members

MEMO OF P. & A. IN SUPP. OF MOT. FOR

22

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7337 Page 30 of 35

1 appears to demonstrate a fundamental misunderstanding of the rule”). Even if such

2 claims “may involve some individualized inquiries,” the relevant question for

3 purposes of Rule 23(b)(2) is “the ‘indivisible’ nature of the claim alleged and the

4 relief sought.” Ms. L., 2018 WL 8665001, at *9 (certifying Rule 23(b)(2) class);

5 Lyon v. ICE, 308 F.R.D. 203, 214 (N.D. Cal. 2014) (rejecting argument that ICE

6 facilities had different attributes, because “these differences do not negate the fact

7 that Plaintiffs seek relief that is applicable to . . . the entire class”). This is because

8 Rule 23(b)(2) “focuses on the defendant and questions whether the defendant has a

9 policy that affects everyone in the proposed class in a similar fashion.” William B.

10 Rubenstein, Newberg on Class Actions § 4:28 (5th ed. 2018).

11

Moreover, the “rights of the class under Rule 23(b)(2) are not measured solely

12 by the facts and circumstances of the named representatives.” Lyon v. ICE, 171 F.

13 Supp. 3d 961, 984 n. 17 (N.D. Cal. 2016); see also Plata v. Schwarzenegger, 2005

14 WL 2932253, at *6 (N.D. Cal. 2005) (citing a “few representative examples from

15 the testimonial and documentary evidence” not confined to named plaintiffs to

16 demonstrate inadequate medical care in California prisons); Orantes-Hernandez v.

17 Meese, 685 F. Supp. 1488, 1507 (C.D. Cal. 1988) (reviewing testimony from class

18 members, not just the named plaintiffs, to determine there was a procedural due

19 process violation).

20

For instance, in Doe v. Nielsen, a group of 87 Iranian Christians sued the

21 Department of Homeland Security for denying them entry into the United States.

22 357 F. Supp. 3d 972, 980-81 (N.D. Cal. 2018). In their class certification motion,

23 plaintiffs argued that the Government’s “uniform response” to their applications to

24 enter the United States was “sufficient to satisfy Rule 23(b)(2).” Id. at 992. The

25 court reasoned that, in the face of the Government’s apparent uniform action,

26 “declaratory and injunctive relief [would] appl[y] equally to all members of the

27 proposed class and thus conform[ed] to Rule 23(b)(2).” Id.

28

This case is even stronger than Doe v. Nielsen. Here, Plaintiffs have evidence

MEMO OF P. & A. IN SUPP. OF MOT. FOR

23

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7338 Page 31 of 35

1 of a uniform response through multiple declarations plus direct evidence that the

2 Government adopted a common and systemic policy with respect to members of the

3 provisional class and statistical evidence and contemporaneous admissions showing

4 that the Government’s justifications for its policies are a sham. It is difficult to

5 conceive of a stronger and more cohesive Rule 23(b)(2) class. Plaintiffs’ provisional

6 Rule 23(b)(2) class should be certified. See, e.g., Unknown Parties, 163 F. Supp. 3d

7 at 643 (injunctive relief claim that CBP systematically violated detainees’

8 constitutional rights was “the quintessential type of claims that Rule 23(b)(2) was

9 meant to address”); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1205 (N.D. Cal.

10 2017) (Rule 23(b)(2) satisfied “[b]ecause a single injunction can protect all class

11 members’ procedural due process rights”).

12 VI. THE PROVISIONAL CLASS IS ASCERTAINABLE

13

While the Ninth Circuit has not yet ruled on the issue, this Court has

14 previously concluded that “ascertainability should not be required when determining

15 whether to certify a class in the 23(b)(2) context.” Bee, Denning, Inc. v. Capital

16 Alliance Grp., 2016 WL 3952153, at *5 (S.D. Cal. 2016) (Bashant, J.).9 However,

17 even if ascertainability is a requirement for a Rule 23(b)(2) class, the provisional

18 class is readily ascertainable. Rule 23 “does not impose a freestanding

19 administrative feasibility requirement to class certification.” Briseno v. ConAgra

20 Foods, Inc., 844 F.3d 1121, 1126 (9th Cir. 2017). “Although a proposed class must

21 be ascertainable in the sense that the proposed class must be sufficiently defined and

22 not vague, ‘ascertainability’ is not a threshold requirement for class certification.”

23 J.L. v. Cissna, 2019 WL 415579, at *7 (N.D. Cal. 2019). Instead, ascertainability is

24 only relevant to the extent it is implicated by Rule 23’s enumerated requirements.

25 Briseno, 844 F.3d at 1124 n.4 (citation omitted).

26

9 See also Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016) (“The decisions 27 of other federal courts and the purpose of Rule 23(b)(2) persuade us that

ascertainability is not an additional requirement for certification of a (b)(2) class 28 seeking only injunctive and declaratory relief.”).

MEMO OF P. & A. IN SUPP. OF MOT. FOR

24

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7339 Page 32 of 35

1

Therefore, a proposed class is ascertainable if it can be defined using

2 “objective criteria.” Backhaut v. Apple Inc., 2015 WL 4776427, at *11 (N.D. Cal.

3 2015); Lucas v. Berg, Inc., 212 F. Supp. 3d 950, 973 (S.D. Cal. 2016) (“[A] class is

4 not ascertainable where a court must investigate the merits of individual claims to

5 determine class membership, or if membership depends upon subjective factors such

6 as a prospective member’s state of mind.”). “Where the class definition proposed is

7 overly broad or unascertainable, the court has the discretion to narrow it.” Vietnam

8 Veterans of Am. v. C.I.A., 288 F.R.D. 192, 211-12 (N.D. Cal. 2012).

9

Here, members of the class can be determined using objective criteria.

10 Members of the provisional class attempted to present themselves at a port of entry

11 on the U.S.-Mexico border in order to seek asylum before July 16, 2019 but were

12 subjected to the Government’s metering policy and turned back from the port of

13 entry. See supra at 5. The names of many members of the provisional class appear

14 on waitlists kept by the Mexican government and non-governmental entities at

15 Mexican border towns, including Matamoros, Reynosa, Nuevo Laredo, Juarez,

16 Nogales, Mexicali, and Tijuana. See Ex. 6A at 5-3. Where the names of class

17 members do not appear on a waitlist, their membership in the provisional class can

18 be established by declarations or records from immigration shelters. As a result, the

19 class is ascertainable.

20 VII. CONCLUSION

21

For the foregoing reasons and those explained in the accompanying motion

22 for preliminary injunction, the Court should therefore provisionally certify the class.

23 Dated: September 26, 2019
24 25 26 27 28

MAYER BROWN LLP Matthew H. Marmolejo Ori Lev Stephen S. Medlock

SOUTHERN POVERTY LAW CENTER
Melissa Crow

MEMO OF P. & A. IN SUPP. OF MOT. FOR

25

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7340 Page 33 of 35

1

Mary Bauer

Sarah Rich

2

Rebecca Cassler

3

CENTER FOR CONSTITUTIONAL

4

RIGHTS

5

Baher Azmy Ghita Schwarz

6

Angelo Guisado

7

AMERICAN IMMIGRATION

8

COUNCIL

Karolina Walters

9

10

By: /s/ Stephen M. Medlock

11

Stephen M. Medlock

12

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

26

PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7341 Page 34 of 35

1

CERTIFICATE OF COMPLIANCE WITH MEET-AND-CONFER

2

REQUIREMENT

3

Pursuant to Section 4(A) of the Court’s Standing Order for Civil Cases, this

4 motion is made following the in-person conference of counsel that took place on

5 September 19, 2019 at Mayer Brown LLP, 1999 K Street, N.W., Washington, D.C.

6 20006-1101. During this conference, the parties were unable to eliminate the need

7 to file this motion.

8 Dated: September 26, 2019

MAYER BROWN LLP

9

By /s/ Stephen M. Medlock

10

Attorney for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
MEMO OF P. & A. IN SUPP. OF MOT. FOR PROVISIONAL CLASS CERT.

Case 3:17-cv-02366-BAS-KSC Document 293-1 Filed 09/26/19 PageID.7342 Page 35 of 35

1

CERTIFICATE OF SERVICE

2

I certify that I caused a copy of the foregoing document to be served on all

3 counsel via the Court’s CM/ECF system.

4 Dated: September 26, 2019

MAYER BROWN LLP

5

6

By /s/ Stephen M. Medlock

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMO OF P. & A. IN SUPP. OF MOT. FOR

2

PROVISIONAL CLASS CERT.

 
 Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15443 Page 1 of 36

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

Al Otro Lado, Inc., et al.,
11

Case No.: 17-cv-02366-BAS-KSC

12

Plaintiffs, ORDER:

v.
13

(1) GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL

Kevin K. McAleenan, et al.,
14

CLASS CERTIFICATION (ECF No. 293);

Defendants.

15

AND

16

(2) GRANTING PLAINTIFFS’

17

MOTION FOR PRELIMINARY INJUNCTION

18

(ECF No. 294)

19

Before the Court are Plaintiffs’ Motion for Provisional Class Certification and

20 Plaintiffs’ Motion for a Preliminary Injunction. (Mot. for Provisional Class

21 Certification, ECF No. 293; Mot. for Prelim. Inj., ECF No. 294.) These Motions

22 identify a subclass of asylum-seekers caught in the legal bind created by Defendants’

23 previous policies at the southern border and a newly-promulgated regulation known

24 as the Asylum Ban. The Asylum Ban requires non-Mexican nationals who enter,

25 attempt to enter, or arrive at a port of entry (“POE”) at the southern border on or after

26 July 16, 2019 to first seek asylum in Mexico, subject to narrow exceptions. Plaintiffs

27 ask the Court to prevent the Government Defendants from applying the Asylum Ban

28 to a class of non-Mexican nationals who were prevented from making direct claims

1

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15444 Page 2 of 36

1 for asylum at POEs before July 16, 2019 and instructed to instead wait in Mexico

2 pursuant to the Government’s own policies and practices.

3

The putative class members in this case did exactly what the Government told

4 them to do: they did not make direct claims for asylum at a POE and instead returned

5 to Mexico to wait for an opportunity to access the asylum process in the United States.

6 Now, the Government is arguing that these class members never attempted to enter,

7 entered, or arrived at a POE before July 16, 2019, and, therefore, the newly

8 promulgated Asylum Ban is applicable to them.

9

The Court disagrees. Because the Court finds that members of the putative

10 class attempted to enter a POE or arrived at a POE before July 16, 2019, and that as

11 such, the Asylum Ban by its terms does not apply to them, the Court GRANTS

12 Plaintiffs’ Motions.

13 I. BACKGROUND

14

Plaintiffs filed their initial complaint in the underlying action on July 12, 2017

15 in the Central District of California. (Compl., ECF No. 1.) The case was

16 subsequently transferred to the Southern District of California. (ECF Nos. 113, 114.)

17 The Court provides a brief overview of the action’s lengthy litigation history below.

18

A. Overview of the Litigation

19

Plaintiffs’ putative class action complaint alleges that Customs and Border

20 Protection (“CBP”) uses various unlawful tactics, “including misrepresentation,

21 threats and intimidation, verbal abuse and physical force, and coercion” to

22 systematically deny asylum seekers access to the asylum process. (Compl. ¶ 2.)

23 Defendants moved to dismiss the Complaint on December 14, 2017. (ECF No. 135.)

24 In its order on the motion, the Court found that organizational Plaintiff Al Otro Lado

25 had standing to bring the case and that the case was not moot, even though some

26 named Plaintiffs had received an asylum hearing. See Al Otro Lado, Inc. v. Nielsen,

27 327 F. Supp. 3d 1284, 1296–1304 (S.D. Cal. 2018). The Court further denied

28 requests to dismiss the lawsuit based on sovereign immunity and held that Plaintiffs

2

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15445 Page 3 of 36

1 had adequately alleged a claim under the Administrative Procedure Act (“APA”), 5

2 U.S.C. § 706(1), to “compel agency action unlawfully withheld.” (Id. at 1304–05,

3 1309–10.)

4

However, the Court dismissed the § 706(1) claims brought by Plaintiffs

5 Abigail Doe, Beatrice Doe and Carolina Doe to the extent they sought to compel

6 relief under 8 C.F.R. § 235.4 for allegedly being coerced into withdrawing their

7 applications for admission. Id. at 1314–15 (concluding that § 235.4 did not require

8 CBP to take “discrete agency action” to determine whether a withdrawal was made

9 voluntarily). The Court also dismissed Plaintiffs’ § 706(2) claims based on an alleged

10 “pattern or practice” because Plaintiffs had not alleged facts to plausibly “support []

11 the inference that there is an overarching policy” to deny access to the asylum

12 process, and thus had not identified a “final agency action” reviewable under this

13 provision of the APA. Id. at 1320. The Court granted Plaintiffs leave to amend their

14 § 706(2) claims. Id. at 1321.

15

Plaintiffs then filed a First Amended Complaint (“FAC”) on October 12, 2018,

16 followed by a Second Amended Complaint (“SAC”) on November 13, 2018. (ECF

17 Nos. 176, 189). The amended complaints added allegations regarding the

18 Government’s purported “Turnback Policy,” which included a “metering” or

19 “waitlist” system in which asylum seekers were instructed “to wait on the bridge, in

20 the pre-inspection area, or at a shelter”—or were simply told that “they [could not]

21 be processed because the [POE] is ‘full’ or ‘at capacity[.]’” (SAC ¶ 3.) Plaintiffs

22 contend that CBP officials “routinely tell asylum seekers approaching POEs that in

23 order to apply for asylum, they must get on a list or get a number” and that CBP

24 prevents asylum-seekers from coming to the POE “until their number is called which

25 can take days, weeks or longer.” (Id. ¶ 100.) Some individuals are prevented from

26 registering on the lists due to discrimination based on race, sexual orientation, or

27 gender identity by the Mexican officials or third parties managing the lists. (Id.)

28 Plaintiffs allege that CBP’s rationale for this system—that the POEs did not have the

3

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15446 Page 4 of 36

1 capacity to process the asylum claims—is a pretext to serve “the Trump

2 administration’s broader, public proclaimed goal of deterring individuals from

3 seeking access to the asylum process.” (Id. ¶¶ 3, 5; see also id. ¶¶ 72–83.)

4

Defendants moved to dismiss the SAC on November 29, 2018. (ECF No. 192.)

5 Following briefing—including six amicus briefs filed in support of Plaintiffs’

6 arguments1—and oral argument, the Court largely denied Defendants’ motion to

7 dismiss the SAC. See Al Otro Lado v. McAleenan, 394 F. Supp. 3d 1168 (S.D. Cal.

8 2019). First, the Court denied Defendants’ Motion to Dismiss the SAC with respect

9 to the amended § 706(2) allegations, finding that:

10

Unlike the original Complaint, the SAC now alleges that as early as 2016, Defendants were implementing a policy to restrict the flow of

11

asylum seekers at the San Ysidro Port of Entry. Plaintiffs allege that

Defendants formalized this policy in spring 2018 in the form of the

12

border-wide Turnback Policy, an alleged “formal policy to restrict

access to the asylum process at POEs by mandating that lower-level

13

officials directly or constructively turn back asylum seekers at the

border,” including through pretextual assertions that POEs lack

14

capacity to process asylum seekers.

15 Id. at 1180 (citing SAC ¶¶ 3, 48–93).

16

The Court also rejected, without prejudice, Defendants’ argument that the SAC

17 raised issues barred by the political question doctrine because they implicated

18 “Defendants’ coordination with a foreign national to regulate border crossings.” Id.

19 at 1190–93. The Court found that although some allegations “touch on coordination

20 with Mexican government officials[,]” this coordination was “merely an outgrowth

21 of the alleged underlying conduct by U.S. Officials.” Id. at 1192

22

Finally, the Court rejected Defendants’ arguments that Plaintiffs located on

23 Mexican soil were not “arriving in” the United States for purposes of asylum. Id. at

24 1199–1201 (citing 8 U.S.C. § 1158(a)(1) (applicants for asylum include “[a]ny alien

25 who is physically present in the United States or who arrives in the United States”)

26 and 8 U.S.C. § 1225(b)(1)(A)(ii) (requiring an immigration officer to refer for an

27 1 Amicus briefs were filed in support of Plaintiffs by: (1) twenty states; (2) Amnesty International;
28 (3) certain members of Congress; (4) certain immigration law professors; (5) nineteen organizations

representing asylum seekers; and (6) Kids In Need of Defense (“KIND”).

4

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15447 Page 5 of 36

1 asylum interview certain individuals who are “arriving in the United States”)). The

2 Court found that the plain language and legislative histories of these statutes

3 supported the conclusion that the statute applies to asylum seekers in the process of

4 arriving. Id. at 1199–1201. Furthermore, the Court concluded that the allegations in

5 the SAC plausibly showed that Plaintiffs were in the process of arriving in the United

6 States at the time they attempted to raise their asylum claims at POEs. Id. at 1203.

7

Defendants then answered the Complaint on August 16, 2019. (ECF No. 283).

8

B. The Asylum Ban

9

On July 16, 2019, the Government issued a joint interim final rule entitled

10 “Asylum Eligibility and Procedural Modifications,” widely known as the “Asylum

11 Ban.” 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. § 208.13(c)(4). In

12 relevant part, Asylum Ban provides the following:

13

(c) Mandatory denials—

14

(4) Additional limitation on eligibility for asylum.

15

Notwithstanding the provisions of § 208.15, any alien who enters, attempts to enter, or arrives in the United States across the

16

southern land border on or after July 16, 2019, after transiting through at least one country outside the alien’s country of

17

citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum unless:

18

(i) The alien demonstrates that he or she applied for protection

19

from persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual

20

residence through which the alien transited en route to the United States, and the alien received a final judgment denying the alien

21

protection in such country.

22 Id. (emphasis added). Although the initial implementation of this new regulation

23 was enjoined by the Northern District of California, the Supreme Court subsequently

24 stayed the district court’s injunction of the Asylum Ban on September 11, 2019,

25 without explanation, “pending disposition of the Government’s appeal in the United

26 States Court of Appeals for the Ninth Circuit and disposition of the Government’s

27 petition for a writ of certiorari, if such a writ is sought.” Barr v. East Bay Sanctuary

28 Covenant, __S. Ct. __, 2019 WL 4292781 (Sept. 11, 2019) (mem.). Thus, at present,

5

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15448 Page 6 of 36

1 non-Mexican asylum-seekers who entered, attempted to enter, or arrived at the

2 United States-Mexico border after July 16, 2019 must first seek and be denied asylum

3 in Mexico to establish eligibility for asylum in the United States.2

4

Due to the Government’s metering policies, these individuals were prevented

5 from crossing through POEs and were instead instructed to “wait their turn” in

6 Mexico for U.S. asylum processing.3 Many understood this to be a necessary and

7 sufficient way to legally seek asylum in the United States.4 Their understanding of

8 the process, under the law that existed at the time of they sought asylum at the

9 southern border, was correct.

10

Plaintiffs argue the Asylum Ban would, if applied to non-Mexican asylum-

11 seekers who were metered at the border before July 16, 2019, preclude these

12 individuals from accessing any asylum process altogether due to circumstances

13 entirely of the Government’s making. Mexico’s Commission to Assist Refugees, the

14 administrative agency responsible for processing asylum claims, requires that

15 applicants for asylum submit their petitions within 30 days of entering Mexico. (See

16 Decl. of Alejandra Macias Delgadillo ¶¶ 34–37, Ex. 27 to Mot. for Prelim. Inj., ECF

17 No. 294-27; Decl. of Michelle Brané ¶ 22, Ex. 28 to Mot. for Prelim. Inj., ECF No.

18 294-28.) However, because the Asylum Ban was not promulgated until after the

19 time these individuals were subject to metering, none of the members of the putative

20 2 The regulation provides two alternative circumstances in which an individual will still be
21 considered eligible for asylum in the United States even though he or she cannot demonstrate

compliance with subsection (i): (1) if an individual can show that he or she is a victim of trafficking; 22 or (2) if the countries through which an individual traveled in transit to the United States were not
parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol 23 Relating to the Status of Refugees, or the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. See 8 C.F.R. § 208.13(c)(4)(ii)–(iii). 24 Neither exception is relevant to the instant action.
3 See, e.g., Decl. of Roberto Doe ¶¶ 4–6, Ex. 5 to Mot. for Prelim. Inj., ECF No. 294-7; Decl. of 25 K-S ¶¶ 15-–16, Ex. 6 to Mot. for Prelim. Inj., ECF No. 294-8; Decl. of S.N. ¶¶ 14–16, Ex. 7 to Mot.
for Prelim. Inj., ECF No. 294-9; Decl. of Dora Doe ¶¶ 6–9, Ex. 13 to Mot. for Prelim. Inj., ECF 26 No. 294-15; Decl. of Jordan Doe ¶ 9, Ex. 15 to Mot. for Prelim. Inj., ECF No. 294-17; Decl. of B.B.
¶ 8, Ex. 22 to Mot. for Prelim. Inj., ECF No. 294-24; Decl. of Mowha Doe ¶ 8, Ex. 49 to Mot. for 27 Prelim. Inj., ECF No. 294-47.
4 See, e.g., Decl. of K-S ¶ 16; Decl. of S.N. ¶ 17; Decl. of China ¶ 9, Ex. 9 to Mot. for Prelim. Inj., 28 ECF No. 294-11; Decl. of Jordan Doe ¶ 9; Decl. of A.V.M.M. ¶ 8, Ex. 17 to Mot. for Prelim. Inj.,

ECF No. 294-19.

6

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15449 Page 7 of 36

1 class attempted to exhaust Mexico’s asylum procedures within the 30-day window.

2 In short, should the Asylum Ban apply to these individuals, the situation would

3 effectively be this: Based on representations of the Government they need only “wait

4 in line” to access the asylum process in the United States, the members of the putative

5 class may have not filed an asylum petition in Mexico within 30 days of entry, thus

6 unintentionally and irrevocably relinquishing their right to claim asylum in Mexico

7 and, due to the Asylum Ban, their right to claim asylum in the United States.5

8

Thus, Plaintiffs seek to provisionally certify a subclass of the original class

9 consisting of “all non-Mexican noncitizens who were denied access to the U.S.

10 asylum process before July 16, 2019 as a result of the Government’s metering policy

11 and continue to seek access to the U.S. asylum process[.]” (Mot. for Provisional

12 Class Certification at 13.) Plaintiffs further request that the Court preliminarily

13 enjoin Defendants from applying the Asylum Ban to provisional class members who

14 were metered prior to July 16, 2019. (Mot. for Prelim. Inj. at 24–25.)

15

Defendants argue that this Court has no jurisdiction to issue the requested relief

16 in either Motion under a variety of provisions in the Immigration and Nationality Act

17 (“INA”) and because the subject of Plaintiffs’ injunction is not of the same character

18 as the underlying lawsuit. As to the merits of Plaintiffs’ Motions, Defendants contend

19 that Plaintiffs are not entitled to an injunction because the Government’s metering

20 policies are lawful, the balance of equities tips sharply in favor of the Government,

21 and Plaintiffs have failed to satisfy any of the prerequisites to class certification under

22 Federal Rule of Civil Procedure 23. For the reasons explained below, the Court

23 rejects Defendants’ arguments.

24

25

26

5 Plaintiffs note that Mexico’s 30-day limitation to file petitions for asylum is subject to a waiver 27 for good cause. However, appealing untimeliness determinations on the basis of the waiver “are

often decided on legal formalities” that generally require the legal expertise of an attorney, which 28 very few of those waiting in Mexico have the means to retain. (Decl. of Alejandra Macias

Delgadillo ¶¶ 35–36; Decl. of Michelle Brané ¶ 22.)

7

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15450 Page 8 of 36

1 II. JURISDICTION

2

Defendants challenge the Court’s jurisdiction to grant the requested relief,

3 citing to various provisions of 8 U.S.C. § 1252 that preclude jurisdiction in certain

4 contexts. Before turning to the specific subsections, it is necessary to clarify the

5 factual and legal framework within which this Order operates. First, it is important

6 to identify what precise question the Court has been asked to decide—and what it has

7 not been asked to decide—on Plaintiffs’ two Motions. Plaintiffs ask that the Court

8 enjoin the Government from applying the Asylum Ban to them because they arrived

9 at POEs before July 16, 2019. Plaintiffs do not make a facial challenge to the Asylum

10 Ban’s legality by asking the Court to pass upon the constitutionality of the regulation

11 as an exercise of the Executive Branch’s powers. Plaintiffs’ request also does not

12 require the Court to make any determinations about the merits of their asylum claims,

13 review removal proceedings (expedited or otherwise), or determine the legitimacy of

14 any orders of removal.

15

Second, Defendants’ challenge to jurisdiction in this case calls into question

16 bars on courts’ inherent powers of equity. It is undisputed that Congress can restrict

17 a federal courts’ traditional equitable discretion. Tennessee Valley Auth. v. Hill, 437

18 U.S. 153, 194–95 (1978). “However, because of the long and established history of

19 equity practice, ‘we do not lightly assume that Congress has intended to depart from

20 established principles [of equitable discretion].’” Owner Operator Indep. Drivers

21 Ass’n, Inc. v. Swift Transp. Co. (AZ), 367 F.3d 1108, 1112 (9th Cir. 2004) (quoting

22 Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)). Therefore, “[u]nless a

23 statute in so many words, or by a necessary and inescapable inference, restricts the

24 court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized

25 and applied.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); see also

26 United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 496 (2001) (holding

27 that trial courts’ equitable discretion “is displaced only by a clear and valid legislative

28 command”) (internal quotations omitted); Rodriguez v. Hayes, 591 F.3d 1105, 1120

8

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15451 Page 9 of 36

1 (9th Cir. 2010) (“[T]raditional equitable powers can be curtailed only by an

2 unmistakable legislative command.”).

3

Turning to Defendants’ specific challenges to the Court’s jurisdiction,

4 Defendants make two arguments. First, Defendants argue that various subsections of

5 8 U.S.C. § 1252 divest this Court of jurisdiction to review the implementation of the

6 Asylum Ban. (Opp’n to Prelim. Inj. Mot. at 6–10, ECF No. 307.) Second,

7 Defendants argue that the requested injunction is improper because it is not of the

8 same character as the underlying lawsuit and deals with matter lying wholly outside

9 the issues in the suit. (Id. at 10–11.) The Court rejects both arguments for the reasons

10 discussed below.

11

A. Bars to Jurisdiction Under 8 U.S.C. § 1252

12

The provisions of 8 U.S.C. § 1252 deprive this Court of jurisdiction over

13 certain cases. Defendants take a scattershot approach, arguing that multiple

14 subsections are applicable to Plaintiffs’ requests and thus the court has no jurisdiction

15 to reach the issues raised. The Court disagrees.

16

1. The relief requested does not arise from, pertain to, or otherwise

17

relate to pending removal proceedings or removal orders.

18

Several subsections of § 1252 limit judicial review of claims and questions that

19 relate to removal proceedings or existing orders of removal. Defendants argue that

20 §§ 1252(a)(2)(A)(i), 1252(g), 1252(a)(5), and 1252(b)(9) all strip this Court of 21 jurisdiction.6

22

23 6 See 8 U.S.C. § 1252(a)(2)(A)(i) (precluding jurisdiction over causes or claims “arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1)”);
24 § 1252(a)(5) (directing that “a petition for review filed with an appropriate court of appeals in

accordance with this section shall be the sole and exclusive means for judicial review of an order 25 of removal entered or issued under any provision of this chapter, except as provided in subsection
(e)”); § 1252(b)(9) (“Judicial review of all questions of law and fact, including interpretation and 26 application of statutory provisions, arising from any action taken or proceeding brought to remove
an alien from the United States under this subchapter shall be available only in judicial review of a 27 final order under this section.”); 8 U.S.C. § 1252(e)(1)(A) (divesting courts’ jurisdiction to issue

equitable relief “in any action pertaining to an order to exclude an alien in accordance with section 28 1225(b)(1)[,]” with exceptions); § 1252(g) (barring exceptions, “no court shall have jurisdiction to

hear any cause or claim by or on behalf of an alien arising from the decision or action by the

9

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15452 Page 10 of 36

1

Section 1252(a)(2)(A)(i) prohibits “a direct challenge to an expedited removal

2 order.” Pena v. Lynch, 815 F.3d 452, 455 (9th Cir. 2016); see also Jennings v.

3 Rodriguez, 138 S. Ct. 830, 841 (2018) (§ 1252(b)(9) did not apply where respondents

4 were not asking for review of an order of removal, challenging the decision to detain

5 them or seek removal, or challenging the process for determining removability);

6 M.M.M. on Behalf of J.M.A. v. Sessions, 347 F. Supp. 3d 526, 532 (S.D. Cal. 2018)

7 (§ 1252(a)(2)(A)(i) did not apply where plaintiffs did not have final removal orders

8 and where they were “not challenging the Government’s ultimate decision to detain

9 or remove them”).

10

Section 1252(g), by its terms, applies to only the three discrete actions that the

11 Attorney General may take—to commence proceedings, adjudicate cases, or execute

12 removal orders. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S.

13 471, 482 (1999). It does not refer to “all claims arising from deportation

14 proceedings.” Id.

15

Finally, the prohibitory language in § 1252(a)(5) and § 1252(b)(9) “mean[s]

16 that any issue—whether legal or factual—arising from any removal-related activity

17 can be reviewed only through the PFR [petition for review] process.” J.E.F.M. v.

18 Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (emphasis omitted). However, §

19 1259(b)(9) “excludes from the PFR process any claim that does not arise from

20 removal proceedings. Accordingly, claims that are independent of or collateral to the

21 removal process do not fall within the scope of § 1252(b)(9).” Id. at 1032; see also

22 Jennings, 138 S. Ct. at 841. The question is not whether the challenged action “is an

23 action taken to remove an alien but whether the legal questions in this case arise from

24 such an action.” Jennings, 138 S. Ct. at 841 n.3.

25

The Government does not allege that any Plaintiff is in removal proceedings

26 or that a final order of removal has been issued as to any Plaintiff. Likewise, Plaintiffs

27

28 Attorney General to commence proceedings, adjudicate cases or execute removal orders against

any alien under this chapter”).

10

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15453 Page 11 of 36

1 do not request review of an order of removal, challenge the decision to seek removal,

2 or contest any step that has been taken by the Government to determine their

3 removability, including a decision to commence or adjudicate proceedings. (See Mot.

4 for Prelim. Inj. at 2 (stating that Plaintiffs did not “file this motion to seek a specific

5 outcome in provisional class members’ asylum cases”).) In fact, the very relief

6 Plaintiffs seek is to commence such proceedings and have their asylum claims

7 adjudicated by being granted access to the asylum process.

8

Defendants have not alleged that any final removal orders have been issued as

9 to any Plaintiff, or that Plaintiffs’ requests challenge any such orders per subsection

10 (a)(2)(A), implicate the discrete actions outlined in subsection (g), or arise from

11 actions taken to remove these aliens under subsections (a)(5) and (b)(9). Thus, the

12 Court finds that these provisions do not preclude its jurisdiction over the claims raised

13 in Plaintiffs’ Motions.

14

2. The Asylum Ban does not implement the expedited removal

15

statute (8 U.S.C. § 1225(b)).

16

Two subsections in § 1252 prohibit judicial review of policies, regulations, or

17 procedures issued or adopted by the Attorney General “to implement 8 U.S.C. § 18 1225(b)(1).”7 Defendants claim that § 1225(b)(1) is implicated because of the

19 possibility that some Plaintiffs “will be adjudicated in expedited removal proceedings

20 under section 1225(b)(1), and some in regular removal proceedings under section

21 1229a.” (Opp’n to Mot. for Prelim. Inj. at 6–7.)

22

Although the Asylum Ban’s limitation on eligibility requirements may

23 derivatively affect certain aspects of the expedited removal process authorized in

24

25 7 See 8 U.S.C. § 1252(a)(2)(A)(iv) (providing courts have no jurisdiction to review “procedures or

26

policies adopted by the Attorney General to implement the provisions of § 1225(b)(1)” except as provided in subsection (e)); § 1252(e)(3)(A)(ii) (limiting judicial review to the United States

27 District Court for the District of Columbia to determine “whether a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the

28 Attorney General to implement” 8 U.S.C. § 1225(b)(1) is inconsistent with the statute or otherwise

unlawful).

11

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15454 Page 12 of 36

1 § 1225(b)(1), the Asylum Ban does not implement § 1225(b)(1). See E. Bay

2 Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1118–19 (N.D. Cal. 2018),

3 appeal filed, Nos. 18-17274, 18-17436 (9th Cir. Dec. 26, 2018). Rather, the Asylum

4 Ban implements the asylum eligibility requirements stated in the asylum statute, 8

5 U.S.C. § 1158.

6

Section 1158 states that asylum may be granted “to an alien who has applied

7 for asylum in accordance with the requirements and procedures established by the

8 Secretary of Homeland Security or the Attorney General under this section.” 8

9 U.S.C. § 1158(b)(1)(A). The Asylum Ban, housed in the Code of Federal Regulations

10 under Part 208 (“Procedures for Asylum and Withholding of Removal”), Section

11 208.13 (“Establishing Asylum Eligibility”), appears to be one such procedure. The

12 Ban itself is characterized not as an additional procedure for expedited removal, but

13 as an “Additional limitation on eligibility for asylum.” See 8 C.F.R. § 208.13(c)(4).

14 Nothing in the language of the Ban discusses § 1225(b)(1), cites to § 1225(b)(1), or

15 otherwise indicates that it implements expedited removal under § 1225(b)(1). Thus,

16 the Court sees no basis for concluding that the Asylum Ban implements expedited

17 removal. See Kucana v. Holder, 558 U.S. 233, 252 (2010) (“[T]he textual limitations

18 upon a law’s scope are no less a part of its purpose than its substantive

19 authorizations.”) (quoting Rapanos v. United States, 547 U.S. 715, 752 (2006)

20 (plurality op.)).

21

An analysis of the relevant provisions of § 1252 leads to the same conclusion.

22 Nothing in the language of § 1252, including in § 1252(a)(2)(A)(iv) and §

23 1252(e)(3)(A)(ii), precludes judicial review of regulations implementing asylum

24 eligibility requirements under 8 U.S.C. § 1158. Courts must interpret congressional

25 language barring jurisdiction precisely. Cheng Fan Kwok v. INS, 392 U.S. 206, 212

26 (1968) (holding that a statute affecting federal jurisdiction “must be construed both

27 with precision and with fidelity to the terms by which Congress has expressed its

28 wishes”). “[W]here Congress includes particular language in one section of a statute

12

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15455 Page 13 of 36

1 but omits it in another section of the same Act, it is generally presumed that Congress

2 acts intentionally and purposely in the disparate inclusion or exclusion.” Nken v.

3 Holder, 556 U.S. 418, 430 (2009). Thus, in these provisions, where Congress sought

4 to limit judicial review of policies, procedures, and regulations made under only §

5 1225(b)(1), the Court must presume that Congress intentionally excluded § 1158

6 from this jurisdictional bar. See E. Bay Sanctuary Covenant, 354 F. Supp. at 1118–

7 19.

8

Further, the regulatory scheme for immigration law already includes a separate

9 section discussing the implementation of the expedited removal system. See 8 C.F.R.

10 Part 235 (Inspection of Persons Applying for Admission). These regulations specify

11 the record an immigration officer must create during the expedited removal process

12 and the advisements that the officer must give to individuals subject to expedited

13 removal. United States v. Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011)

14 (citing 8 C.F.R. §§ 235.3, 1235.3 (“Inadmissible aliens and expedited removal”)); see

15 also Am. Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 43 (D.D.C. 1998)

16 (Part 235 “regulate[s] how the inspecting officer is to determine the validity of travel

17 documents, how the officer should provide information to and obtain information

18 from the alien, and how and when an expedited removal order should be reviewed”),

19 aff’d, 199 F.3d 1352 (D.C. Cir. 2000). Courts have identified these regulations as the

20 “implementing regulations” for the expedited removal system. See id. at 43–45

21 (applying § 1252(e)(3) to bar claims challenging regulations in Part 235).

22

A decision from the District Court for the District of Columbia illustrates when

23 a rule or policy implements § 1225(b)(1). In Grace v. Whitaker, asylum applicants

24 challenged new credible fear policies, established by the Attorney General’s decision

25 in Matter of A-B-, for asylum applications based on domestic or gang violence. 344

26 F. Supp. 3d 96, 108–10 (D.D.C. 2018), appeal docketed, No. 19-5013 (D.C. Cir. Jan.

27 30, 2019). In finding that § 1252(e)(3)(A)(ii) conferred jurisdiction on the D.C.

28 District Court to hear the challenge, the court focused on the fact that the Attorney

13

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15456 Page 14 of 36

1 General’s decision in Matter of A-B- “went beyond” asylum and “explicitly

2 address[ed] ‘the legal standard to determine whether an alien has a credible fear of

3 persecution’ under 8 U.S.C. § 1225(b).” Id. at 116 (citing Matter of A-B-, 27 I. & N.

4 Decl. 316, 320 n.1 (A.G. 2018)). Further, in Matter of A-B-, the Attorney General

5 expressly directed immigration judges and asylum officers to “analyze the

6 requirements as set forth” in the decision and stated that generally, claims of domestic

7 or gang-related violence would often fail to satisfy the credible fear standard. The

8 District Court cited this direction as evidence that the decision constituted a “written

9 policy directive” or “written policy guidance” about expedited removal such that it

10 was brought “under the ambit of section 1252(e)(3).” Id. Thus, the court concluded

11 that “[b]ecause the Attorney General cited section 1225(b) and the standard for

12 credible fear determinations when articulating the new general legal standard, the

13 Court finds that Matter of A-B- implements section 1225(b) within the meaning of

14 section 1252(e)(3).” Id.

15

Conversely, here, the Asylum Ban contains no similar explicit invocation of

16 § 1225 or articulation of the credible fear standard such that the Court can conclude

17 that this regulation falls within the ambit of § 1252(e)(3). As stated above, the

18 regulation is framed as an additional limitation on asylum eligibility and makes no

19 reference to the expedited removal statute or the procedures contained therein.

20 Therefore, the Asylum Ban does not “implement” § 1225(b).

21

Defendants have not demonstrated how determinations about asylum

22 eligibility constitute an “implement[ation]” of § 1225(b), the statute governing

23 expedited removal. See East Bay Sanctuary Covenant, 354 F. Supp. at 1118–19.

24 Hence, the Court does not find that § 1252(a)(2)(A)(iv) or § 1252(e)(3)(A)(ii) divests

25 it of jurisdiction to hear challenges to the Asylum Ban’s applicability in this case.

26

27

28

14

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15457 Page 15 of 36

1

3. The Court is not being asked to determine the lawfulness of the

2

Asylum Ban.

3

Several statutes also prohibit the judicial review of certain regulations.8 Here,

4 the Court is not reviewing the Asylum Ban such that these statutes apply.

5

Plaintiffs are not asking the Court to allow a class action challenge to the

6 implementation of § 1225 or the Asylum Ban, to enjoin the operation of either

7 provision, or to determine whether the Asylum Ban itself is constitutional, consistent

8 with the Immigration and Nationality Act (“INA”), or otherwise lawful. Instead,

9 Plaintiffs request that the Court enjoin the Government’s improper application of the

10 Asylum Ban—the constitutionality of which is the subject of other lawsuits—outside

11 the confines of its self-imposed limitations on its scope, i.e., to those who arrived in

12 the United States before July 16, 2019.

13

In other words, Plaintiffs ask the Court to enjoin the Government from taking

14 actions not authorized by the Asylum Ban or, in fact, by any implementing regulation

15 or statute. The Court’s authority to do so is well-recognized. See, e.g., Rodriguez,

16 591 F.3d at 1120 (“Where, however, a petitioner seeks to enjoin conduct that

17 allegedly is not even authorized by the statute, the court is not enjoining the operation

18 of part IV . . . and § 1252(f)(1) therefore is not implicated.”) (quoting Ali v. Ashcroft,

19 346 F.3d 873, 886 (9th Cir. 2003)), vacated on unrelated ground sub nom., Ali v.

20 Gonzales, 421 F.3d 795 (9th Cir. 2005).

21

4. The Court is not reviewing the Attorney General’s decision to

22

invoke or apply expedited removal to individual cases.

23

Various subsections of § 1252 also prevent the Court from reviewing decisions

24 by the Attorney General to “invoke expedited removal proceedings” or the

25 8 See 8 U.S.C. § 1252(a)(2)(A)(iv) and 1252(e)(3)(A)(ii) (prohibiting review of regulations
26 implementing expedited removal and limiting determinations about a regulation’s constitutionality, consistency with the INA, and general lawfulness to the United States District Court for the District
27 of Colombia); § 1252(f)(1) (divesting the courts of “jurisdiction or authority to enjoin or restrain

the operation of the provisions of part IV of this subchapter . . . other than with respect to the 28 application of such provisions to an individual alien against whom proceedings under such part

have been initiated”).

15

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15458 Page 16 of 36

1 application of expedited removal in individual cases.9 See, e.g., In re Li, 71 F. Supp.

2 2d 1052, 1061 (D. Haw. 1999) (“Section 1252(a)(2), entitled Matters not subject to

3 judicial review, provides that no court shall have jurisdiction to review the application

4 of section 1225(b)(1) to individual aliens.”) (citing 8 U.S.C. § 1252(a)(20(A)(iv))

5 (emphasis added). Here, neither party has alleged that there has been any such

6 decision to invoke expedited removal or apply expedited removal to individual

7 Plaintiffs. Instead, Defendants argue that this provision, particularly subsection (iii),

8 divests this Court of jurisdiction “to enjoin the application of the [Asylum Ban] to

9 putative provisional subclass members who will be placed in expedited removal

10 proceedings.” (Opp’n to Mot. for Prelim. Inj. at 7.)

11

Defendants offer no support for the proposition that any relevant subsection of

12 § 1252 seeks to prevent review of any issue because the Attorney General will invoke

13 expedited removal as to Plaintiffs in the future. Further, as stated before, Plaintiffs

14 do not seek review of any decision to place them in expedited removal proceedings.

15 The Court’s determination at the injunction stage, therefore, is not a “review” of

16 decisions related to expedited removal, and these sections do not apply to divest this

17 Court of jurisdiction regarding Plaintiffs’ Motions.

18

5. Plaintiffs do not raise systemic challenges to expedited removal.

19

The Court also finds that the jurisdictional bar under 8 U.S.C. § 1252(e)(3)

20 does not apply to Plaintiffs’ claims. This provision states that judicial review of

21 “determinations under section 1225(b) of this title and its implementation” may only

22 be brought in the U.S. District Court for the District of Columbia, and limits those

23 actions to questions about whether a regulation “issued to implement such section

24 [1225(b)]” is constitutional, inconsistent with other provisions of the Immigration

25

26 9 See 8 U.S.C. § 1252(a)(2)(A)(ii) (“[N]o court shall have jurisdiction to review . . . a decision by the Attorney General to invoke the provisions of [§ 1225(b)(1)]”); § 1252(a)(2)(A)(iii) (“[N]o court
27 shall have jurisdiction to review “the application of [§ 1225(b)(1)] to individual aliens,” including

credible fear determinations); § 1252(a)(2)(A)(iv) (courts have no jurisdiction to review 28 “procedures or policies adopted by the Attorney General to implement the provisions of §

1225(b)(1)”).

16

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15459 Page 17 of 36

1 and Nationality Act (“INA”), or “is otherwise in violation of the law.” See 8 U.S.C.

2 § 1252(e)(3)(A)(i)–(ii).

3

The provision, entitled “Challenges on validity of the system,” limits its

4 jurisdictional reach only to actions calling into question the legality of the expedited

5 removal process itself. See Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110,

6 1120 (N.D. Cal. 2019), reversed on other grounds, Innovation Law Lab v.

7 McAleenan, 924 F.3d 503 (9th Cir. 2019). The challenges that are subject to the

8 circumscribed jurisdiction in subsection (e)(3) must therefore target the process of

9 removal directly, not target other circumstances incidental to removal, such as access

10 to the asylum process. See Padilla v. U.S. Immigration & Customs Enf’t, 387 F.

11 Supp. 3d 1219, 1227 (W.D. Wash. 2019) (“[Section] 1252(e)(3) is addressed to

12 challenges to the removal process itself, not to detentions attendant upon that

13 process.”), appeal filed, No. 19-35565 (9th Cir. July 2, 2019).

14

In Innovation Law Lab, the Northern District found the plaintiffs’ challenge to

15 the Migrant Protection Protocols (“MPP”)—namely, that MPP did not apply to

16 them—was not a challenge to the expedited removal system under § 1252(e)(3). Id.

17 at 1119–20. Similarly, here, Plaintiffs are not raising a systemic challenge to any part

18 of the expedited removal process. As Plaintiffs state, they do not seek to challenge,

19 either as individual cases or systemically, Defendants’ discretion to place them in

20 expedited removal proceedings. (See Reply in Supp. of Mot. for Prelim. Inj. at 10–

21 11 (“Plaintiffs take no position on whether provisional class members should be put

22 into expedited removal, or instead placed directly into regular removal proceedings

23 or paroled into the United States.”), ECF No. 313.) Rather, they are challenging the

24 Government’s application of a specific condition of asylum eligibility to Plaintiffs

25 themselves, regardless of the type of removal proceedings in which they are currently

26 placed or will be placed in the future. See Olivas v. Whitford, No. 14-CV-1434-

27 WQH-BLM, 2015 WL 867350, at *8 (S.D. Cal. Mar. 2, 2015) (“Plaintiff’s challenge

28 is not subject to 8 U.S.C. section 1252(e)(3) because it is not a challenge to the

17

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15460 Page 18 of 36

1 validity of expedited removal proceedings pursuant to section 1225(b)(1).”).

2 Accordingly, the Court finds that § 1252(e)(3) does not bar the relief requested in

3 Plaintiffs’ Motions.

4

In sum, this Court finds that none of the cited subsections of 8 U.S.C. § 1252

5 divest this Court of jurisdiction to decide the issues raised by Plaintiffs’ Motions.

6

B. Different Character From the Underlying Suit

7

Defendants argue that the request for a preliminary injunction must be denied

8 because Plaintiffs are seeking relief that is of a different character and deals with

9 matter lying wholly outside the issues in the suit. The Court disagrees.

10

“A preliminary injunction is always appropriate to grant intermediate relief of

11 the same character as that which may be granted finally.” See Kaimowitz v. Orlando,

12 122 F.3d 41, 43 (11th Cir. 1997) (citing De Beers Consol. Mines v. United States,

13 325 U.S. 212, 220 (1945)). To determine whether the preliminary and final relief are

14 of the same character, “there must be a relationship between the injury claimed in the

15 motion for injunctive relief and the conduct asserted in the underlying complaint.”

16 Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir.

17 2015) (adopting the rule in Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)).

18 This requires “a sufficient nexus between the claims raised in a motion for injunctive

19 relief and the claims set forth in the underlying complaint itself.” Id.

20

The Court finds that a sufficient nexus exists between Plaintiffs’ request for an

21 injunction of the Asylum Ban and the claims in the SAC. In their SAC, Plaintiffs

22 allege numerous violations of the law based on CBP’s “unlawful, widespread pattern

23 and practice of denying asylum seekers access to the asylum process at POEs with

24 the United States border through a variety of illegal tactics.” (SAC ¶ 2.) For example,

25 according to Plaintiffs, Defendants are “[i]mposing unreasonable delays before

26 granting access to the asylum process” and “denying outright access to the asylum

27 process.” (Id.) In the Prayer for Relief, Plaintiffs include a request that the Court

28 certify a class and issue injunctive relief requiring Defendants to comply with the

18

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15461 Page 19 of 36

1 INA, the APA, the Due Process Clause of the Fifth Amendment and the duty of non-

2 refoulement under international law. (SAC, Prayer for Relief, ¶ 3.)

3

In the instant Motions, Plaintiffs request that the Court require Defendants to

4 comply with the limited scope of the Asylum Ban to preserve their access to the

5 asylum process. This relates to the allegations in the SAC, described above,

6 regarding Defendants’ denial of Plaintiffs’ right to asylum access. See Williams v.

7 Navarro, No. 3:18-CV-01318-DMS (RBM), 2019 WL 2966314, at *4 (S.D. Cal. July

8 9, 2019) (“The character of relief requested in the Motion, i.e., increased law library

9 access, relates to conduct alleged in the Complaint, i.e., denial of the right to law

10 library access.”). Indeed, Plaintiffs’ claims regarding the Asylum Ban and Plaintiffs’

11 underlying claims in their SAC are so intertwined that denying Plaintiffs’ Motion for

12 Preliminary Injunction could effectively eviscerate the asylum claims Plaintiffs seek

13 to preserve in their underlying suit.

14

Thus, Plaintiffs are not seeking relief that is of a different character than that

15 sought in the SAC, and a preliminary injunction can be appropriately granted.

16

C. All Writs Act

17

Alternatively, the Court finds that the All Writs Act (“AWA”), 28 U.S.C.

18 § 1651, authorizes this Court to issue injunctive relief to preserve its jurisdiction in

19 the underlying action. The AWA allows Article III courts to “issue all writs

20 necessary or appropriate in aid of their respective jurisdictions and agreeable to the

21 usages and principles of law.” 28 U.S.C. § 1651(a). The AWA provides this Court

22 with the ability to construct a remedy to right a “wrong [which] may [otherwise] stand

23 uncorrected.” United States v. Morgan, 346 U.S. 502, 512 (1954). In the context of

24 administrative law, the AWA allows court “to preserve [its] jurisdiction or maintain

25 the status quo by injunction pending review of an agency’s action through the

26 prescribed statutory channels.” F.T.C. v. Dean Foods Co., 384 U.S. 597, 604 (1966).

27

28

19

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15462 Page 20 of 36

1

Plaintiffs claim the AWA independently authorizes this Court to grant

2 injunctive relief to prevent the claims in the SAC from being “prematurely

3 extinguished” by the application of the Asylum Ban. (Mot. For Prelim. Inj. at 23.)

4 Defendants argue that the AWA is not a source of this Court’s authority to grant the

5 requested relief because: (1) the Court “does not have jurisdiction in the first instance

6 over the substantive standards governing the putative provisional subclass members’

7 asylum applications”; (2) Plaintiffs have not shown how application of the Asylum

8 Ban affects the Court’s jurisdiction over the claims in the SAC; and (3) the INA

9 divests this Court of jurisdiction over the expedited removal process. (Opp’n to Mot.

10 for Provisional Class Certification at 24–25, ECF No. 308.) The Court does not find

11 Defendants’ arguments persuasive.

12

First, Defendants misidentify the source of the Court’s jurisdiction for

13 purposes of the AWA. Jurisdiction over the claims in the SAC arises not from the

14 substantive standards governing the subclass’s asylum applications, but from the

15 statutory and constitutional questions over Defendants’ issuance of policies and

16 practices barring access to the asylum process. The Government does not argue that

17 this Court lacks jurisdiction in the underlying lawsuit concerning the Government’s

18 metering practices. Therefore, jurisdiction has already been independently conferred

19 on this Court. See Hamilton v. Nakai, 453 F.2d 152, 157 (9th Cir. 1971) (§ 1651

20 “does not confer original jurisdiction, but rather, prescribes the scope of relief that

21 may be granted when jurisdiction otherwise exists”).

22

Second, as Plaintiffs argue, the improper application of the Asylum Ban

23 affects this Court’s jurisdiction because it would effectively moot Plaintiffs’ request

24 for relief in the underlying action by extinguishing their asylum claims. Should the

25 Asylum Ban be applied to Plaintiffs, these individuals’ asylum claims would be

26 foreclosed, as would any claim and request for relief regarding their right to access

27 the asylum process. As a result, an order from this Court finding metering practices

28 unlawful and requiring Defendants to comply with the law at the time of the metering

20

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15463 Page 21 of 36

1 would provide no remedy. Thus, the metering practices, if found unlawful, are the

2 type of wrong that may otherwise stand uncorrected without the invocation of the

3 AWA, as contemplated by the Supreme Court. See Morgan, 346 U.S. at 512.

4

Hence, to preserve its jurisdiction over the underlying claims in the SAC, the

5 Court finds that it possesses the authority under the AWA to issue an injunction

6 preserving the status quo in this case and allow this Court to resolve the underlying

7 questions of law before it. See United States v. N.Y. Tel. Co., 434 U.S. 159, 173

8 (1977) (holding that the AWA allows a federal court to “avail itself of all auxiliary

9 writs as aids in the performance of its duties, when the use of such historic aids is

10 calculated in its sound judgment to achieve the ends of justice entrusted to it”).

11 III. CLASS CERTIFICATION

12

Concurrent with their request for a preliminary injunction, Plaintiffs request

13 that the Court provisionally certify a subclass consisting of “all non-Mexican

14 noncitizens who were denied access to the United States Asylum process before July

15 16, 2019 as a result of the Government’s metering policy and continue to seek access

16 to the U.S. asylum process.” (Mem. of P. & A. in support of (“ISO”) Mot. for

17 Provisional Class Certification at 13, ECF No. 293-1.) The Court is inclined to

18 modify this subclass to consist of

19

all non-Mexican asylum-seekers who were unable to make a direct

asylum claim at a U.S. POE before July 16, 2019 because of the

20

Government’s metering policy, and who continue to seek access to the

U.S. asylum process.

21

22 See Victorino v. FCA US LLC, 326 F.R.D. 282, 301–02 (S.D. Cal. 2018) (“[D]istrict

23 courts have the inherent power to modify overbroad class definitions.”)

24

The Court may provisionally certify a class for purposes of a preliminary

25 injunction. Meyer v. Portfolio Recovery Assoc., LLC, 707 F.3d 1036, 1043 (9th Cir.

26 2012). However, “[t]he class action is ‘an exception to the usual rule that litigation

27 is conducted by and on behalf of the individual named parties only.’” Wal-Mart

28 Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011). Therefore, Plaintiffs have the burden

21

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15464 Page 22 of 36

1 of meeting the threshold requirements of Federal Rule of Civil Procedure 23(a).

2 Meyer, 77 F.3d at 1041.

3

Rule 23(a) provides that a class may be certified only if:

4

(1) the class is so numerous that joinder of members is impracticable;

(2) there are questions of law or fact common to the class; (3) the claims

5

or defenses of the representative parties are typical of the claims or

defenses of the class; and (4) the representative parties will fairly and

6

adequately protect the interests of the class.

7 Fed. R. Civ. P. 23(a). In addition to meeting the 23(a) requirements, a class action

8 must fall into one of the categories laid out in Rule 23(b). Fed. R. Civ. P. 23(b).

9 Plaintiffs move for provisional certification under Rule 23(b)(2).

10

A. Fed. R. Civ. P. 23(a)

11

1. Numerosity

12

Plaintiffs claim that as of August 2019, there were 26,000 asylum seekers

13 either on waitlists or waiting to get on those waitlists in 12 Mexican border cities.

14 (See Decl. of Stephanie Leutert ¶¶ 4, 7, Ex. A, Ex. 6 to Mot. for Provisional Class

15 Certification, ECF No. 293-8.) The numerosity requirement is generally satisfied

16 when the class contains 40 or more members, a threshold far exceeded in this case.

17 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995);

18 Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007). Defendants do

19 not contest that Plaintiffs have met the numerosity requirement in this case. Further,

20 a class of 26,000 individuals is large enough on its face that individual joinder of all

21 class members would be impracticable. Rule 23(a)(1) is, therefore, satisfied.

22

2. Commonality

23

The commonality requirement requires that there be “questions of law or fact

24 common to the class.” Fed. R. Civ. P. 23(a)(2). “What matters to class certification

25 . . . is not the raising of common questions—even in droves—but rather, the capacity

26 of a class-wide proceeding to generate common answers apt to drive the resolution

27 of the litigation.” Dukes, 564 U.S. at 350 (quotations omitted).

28

22

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15465 Page 23 of 36

1

“All questions of fact and law need not be common to satisfy the [commonality

2 requirement]. The existence of shared legal issues with divergent factual predicates

3 is sufficient.” Meyer, 707 F.3d at 1041 (quotations omitted). “The common

4 contention ‘must be of such a nature that it is capable of classwide resolution—which

5 means that determination of its truth or falsity will resolve an issue that is central to

6 the validity of each one of the claims in one stroke.’” Id. at 1041–42 (quoting Dukes,

7 564 U.S. at 350).

8

In this case, Plaintiffs argue that the common question capable of generating a

9 common answer involves whether the metering is statutorily and constitutionally

10 legal. (Mem. of P. & A. ISO Mot. for Provisional Class Certification at 18–19.)

11 Defendants argue that this requires individual determinations of whether there was

12 capability to process the asylum applications at each POE for each class member at

13 the time they sought asylum. (Opp’n to Mot. for Provisional Class Certification at

14 17, ECF 308.)

15

The Court sees the common question differently. The common question raised

16 by the instant preliminary injunction and class certification motions is whether

17 Defendants are improperly construing the Asylum Ban to apply to those class

18 members who attempted to enter or arrived at a U.S. POE before July 16, 2019. Even

19 assuming the Government’s metering practice was legal, the fact remains that the

20 members of the proposed subclass intended to apply for asylum at a U.S. POE and

21 yet were required, pursuant to the Government’s policy, to wait their turn in Mexico.

22 The Court can determine, in one fell swoop, whether class members attempted to

23 enter or arrived in the United States such that the Asylum Ban is inapplicable to them.

24 This is a common issue for all subclass members. Thus, the Court finds the

25 requirement of Rule 23(a)(2) has been met.

26

3. Typicality

27

In general, the claims of the representative parties “need not be substantially

28 identical” to those of all absent class members and need only be “reasonably co-

23

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15466 Page 24 of 36

1 extensive” in order to qualify as typical. Hanlon v. Chrysler Corp., 150 F.3d 1011,

2 1020 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes,

3 464 U.S. 338 (2011). “The test of typicality is ‘whether other members [of the class]

4 have the same or similar injury, whether the action is based on conduct which is not

5 unique to the named plaintiffs, and whether other class members have been injured

6 by the same course of conduct.’” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014)

7 (citation omitted).

8

Defendants contend that the named Plaintiffs in this action have not and will

9 not be injured “in the manner in which they claim the putative subclass members have

10 been or will be injured.” (Opp’n to Mot. for Provisional Class Certification at 11.)

11 Defendants allege that the named individual Plaintiffs are either Mexican nationals

12 to whom the Asylum Ban does not apply or eventually entered and were processed

13 before July 16, 2019. (Id. at 11–12.) Further, Defendants claim that Roberto Doe,

14 the one named Plaintiff whose case does not suffer from the above deficiencies, has

15 not provided “sufficient information to establish that he is subject to the” Asylum

16 Ban. (Id. at 12–13.)

17

The Court finds that, contrary to Defendants’ assertions, the Declaration of

18 Roberto Doe contains such sufficient information. Roberto Doe alleges that he is a

19 national of Nicaragua and traveled through Mexico to reach the United States’

20 southern border. (Decl. of Roberto Doe ¶¶ 2–4.) He attests that on October 2, 2018,

21 he presented himself to U.S. immigration officials at the Reynosa-Hidalgo POE with

22 a group of Nicaraguan nationals and requested asylum. (Id. ¶ 4.) He then alleges that

23 U.S. officials told him the POE was “all full” and that he would have to wait “hours,

24 days, or weeks” before he would have the opportunity to apply before contacting the

25 Mexican authorities to remove them from the POE. (Id. ¶¶ 5–6.) While waiting in

26 Mexico, he applied for asylum but was denied due to the 30-day time bar and was

27 subsequently deported from Mexico. (Suppl. Decl. of Roberto Doe ¶ 7, Ex. 2 to

28

24

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15467 Page 25 of 36

1 Reply ISO Mot. for Provisional Class Certification, ECF No. 315-3.) He still seeks

2 to apply for asylum in the United States. (Id.)

3

Because Roberto Doe claims he came to a U.S. POE from a country other than

4 Mexico to seek asylum, attempted to make a direct claim for asylum at a POE before

5 July 16, 2019 but was turned away due to the metering policy, and still intends to

6 seek asylum in the United States, the Court finds that he has provided sufficient

7 information to satisfy the test of typicality for the purposes of Rule 23.

8

4. Adequacy of Representation

9

For the class representative to adequately and fairly protect the interests of the

10 class, two criteria must be satisfied. “First, the named representatives must appear

11 able to prosecute the action vigorously through qualified counsel, and second, the

12 representatives must not have antagonistic or conflicting interests with the unnamed

13 members of the class.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512

14 (9th Cir. 1978). Defendants do not contest the adequacy of the representation in this

15 case.

16

Pursuant to its own assessment, the Court finds no evidence that the proposed

17 class representatives have any antagonistic or conflicting interests with the unnamed

18 members of the class, and counsel has shown that they are qualified and willing to

19 prosecute this action vigorously. (See Decl. of Stephen Medlock ISO Mot. for

20 Provisional Class Certification ¶¶ 2–6, ECF No. 293-2.) Thus, the requirements of

21 Rule 23(a)(4) have been met.

22

B. Fed. R. Civ. P. 23(b)(2)

23

Plaintiffs seek certification under subsection (b)(2), which allows the court to

24 certify a class if it finds that “the party opposing the class has acted or refused to act

25 on grounds that apply generally to the class, so that final injunctive relief or

26 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.

27 R. Civ. P. 23(b)(2). “The key to a (b)(2) class is the indivisible nature of the

28 injunctive or declaratory remedy warranted—the notion that the conduct is such that

25

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15468 Page 26 of 36

1 it can be enjoined or declared unlawful only as to all of the class members or as to

2 none of them.” Dukes, 564 U.S. at 360 (quotation omitted). “In other words, Rule

3 23(b)(2) applies only when a single injunctive or declaratory judgment would provide

4 relief to each member of the class.” Id.

5

In this case, a single preliminary injunctive or declaratory judgment would

6 provide that each member of the subclass does not fall within the Asylum Ban. The

7 conduct of the Government, therefore, can be enjoined or declared unlawful as to all

8 members of the subclass. Hence, Plaintiffs have shown that the requirements of Rule

9 23(b)(2) have been met.

10

Defendants make an additional argument that the requirements of Rule

11 23(b)(2) are not met because the class is not ascertainable. Specifically, they contend

12 that “there is no reliable way to confirm the date when individuals first sought to

13 present themselves at ports to seek access to the U.S. asylum process.” (Opp’n to

14 Mot. for Provisional Class Certification at 23.)

15

Although the Ninth Circuit has yet to expressly address the ascertainability

16 requirement in the context of Rule 23(b)(2), courts in this Circuit have held that it

17 does not apply. See In re Yahoo Mail Litig., 308 F.R.D. 577, 597 (N.D. Cal. 2015)

18 (distinguishing (b)(2) actions from (b)(3) actions in finding that ascertainability was

19 not required under the former); Inland Empire-Immigrant Youth Collective v.

20 Nielsen, No. EDCV 17-2048 PSG (SHKx), 2018 WL 1061408, at *12 (C.D. Cal. Feb.

21 26, 2018) (same); see also Hernandez v. Lynch, No. EDCV 16-00620-JGB (KKx),

22 2016 U.S. Dist. LEXIS 191881, at *43 n.17 (C.D. Cal. Nov. 10, 2016) (“Courts have

23 held that ascertainability may not be required with respect to a class seeking

24 injunctive relief.”). This Court has itself noted in previous opinions that

25 “ascertainability should not be required when determining whether to certify a class

26 in the Rule 23(b)(2) context.” Bee, Denning, Inc. v. Capital Alliance Group, No. 13-

27

28

26

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15469 Page 27 of 36

1 CV-2654-BAS (WVG), 14-cv-2915-BAS (WVG), 2016 WL 3952153 at *5 (S.D.

2 Cal. July 21, 2016).10

3

The Court notes, however, that even if the class was required to satisfy the

4 ascertainability requirement, “it would be satisfied because it is ‘administratively

5 feasible’ to ascertain whether an individual is a member.” Inland Empire-Immigrant

6 Youth Collective, 2018 WL 1061408, at *12 (citing Greater L.A. Agency on Deafness,

7 Inc. v. Reel Servs. Mgmt. LLC, No. CV 13–7172 PSG (ASx), 2014 WL 12561074, at

8 *5 (C.D. Cal. May 6, 2014)).

9

Defendants’ arguments to the contrary do not alter this conclusion. Defendants

10 allege that because they do not maintain a systematic record of encounters at the limit

11 line, the class is not ascertainable. Specifically, Defendants state the Government of

12 Mexico, and not the U.S. Government, was responsible for implementing a process

13 to monitor asylum-seekers (Opp’n to Mot. for Provisional Class Certification at 24)

14 and CBP officers who metered asylum-seekers at the limit line “do not memorialize

15 the encounter in any way.” (Decl. of Randy Howe ¶¶ 4–5, Ex. 4 to Opp’n to Mot.

16 for Provisional Class Certification, ECF No. 308-5.)

17

Ironically, however, the class is based on a system established to facilitate the

18 Defendants’ metering policy. As the system currently stands, when a port is allegedly

19 at capacity, asylum-seekers are informed that access to the POE “is not immediately

20 available” and that they will be permitted to enter “once there is sufficient space and

21 resources to process them.” (Decl. of Randy Howe ¶ 2; CBP Metering Guidance

22 Memorandum, Ex. 5 to Opp’n to Mot. for Provisional Class Certification, ECF No.

23 308-6.) Further, Defendants do not address, let alone challenge, that Grupo Beta, a

24 10 The absence of an ascertainability requirement “does not obviate the basic requirement that
25 Plaintiffs provide a clear class definition under Rule 23(c)(1)(B).” In re Yahoo Mail Litig., 308

26

F.R.D. at 597–98 (citing Fed.R.Civ.P. 23(c)(1)(B) (“An order that certifies a class action must define the class and the class claims, issues, or defenses . . . . ”)). However, Defendants do not argue that

27 the definition of the class proposed by Plaintiff is so unclear as to fail to satisfy Rule 23(c)(1)(B). In any event, “[a] precise class definition is less important in cases in which plaintiffs are attempting

28 to certify a class for injunctive relief because the representative plaintiffs may move the Court to

enforce compliance.” Conant v. McCaffrey, 172 F.R.D. 681, 693 (N.D. Cal. 1997).

27

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15470 Page 28 of 36

1 service run by the Mexican Government’s National Institute of Migration, maintains

2 a formalized list of asylum-seekers, communicates with CBP regarding POE

3 capacity, and transports asylum-seekers from the top of the list to CBP. (Decl. of

4 Nicole Ramos ¶ 7, Ex. 26 to Mot. for Provisional Class Certification, ECF No. 293-

5 28; Decl. of J.R. ¶ 11, Ex. 14 to Mot. for Prelim. Inj., ECF No. 294-16 (alleging

6 waitlist “was controlled by Mexican immigration officials, and they were in touch

7 with U.S. officials who would ask every day for a certain number of people to present

8 themselves at the U.S. offices”).)

9

Therefore, CBP relied on these lists to facilitate the process of metering, which

10 was premised on the idea that those individuals who were metered would have to

11 wait—but were not precluded from—applying for asylum in the United States.

12 Despite this, Defendants now take the position, without contradicting claims that they

13 themselves relied on the lists for purposes of metering, that the waitlists are “subject

14 to fraud and corruption and are not themselves reliable means of ascertaining class

15 membership.” (Opp’n to Mot. for Provisional Class Certification at 34.)

16

The Court does not find Defendants’ position persuasive. Class members are

17 defined by a completely objective criteria: whether these individuals were prohibited

18 from requesting asylum at a U.S. POE and instead required to place themselves on a

19 waitlist and effectively “take a number” before July 16, 2019 pursuant to the U.S.

20 Government’s metering policy. Class membership can be determined by cross-

21 checking a class members’ name with the names included on these waitlists. Surely

22 the Government can determine, taking into account the delay in processing asylum

23 claims at each POE, which individuals listed arrived before July 16, 2019, the Asylum

24 Ban’s effective date. Alternatively, individuals could be required to submit proof

25 (either by list or declaration) that he or she is a member of the class in order to get

26 the relief sought. See In re Vitamin C Antitrust Litig., 279 F.R.D. at 116 (“The fact

27 that this manual process may be slow and burdensome cannot defeat the

28 ascertainability requirement.”) (internal quotations omitted); see also Inland Empire-

28

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15471 Page 29 of 36

1 Immigrant Youth Collective, 2018 WL 1061408, at *13 (“That some administrative

2 effort is required does not preclude certification.”). Thus, even if ascertainability is

3 required under Rule 23(b)(2), the Court finds that the proposed class satisfies this

4 requirement.

5

Because Plaintiffs have met the requirements of Federal Rules of Civil

6 Procedure 23(a) and 23(b)(2), the Court finds certification of a subclass is

7 appropriate. Accordingly, the Court GRANTS Plaintiffs’ Motion for Provisional

8 Class Certification consisting of all non-Mexican noncitizens who sought

9 unsuccessfully to make a direct asylum claim at a U.S. POE before July 16, 2019,

10 were instead required to wait in Mexico due to the U.S. Government’s metering

11 policy, and who continue to seek access to the U.S. asylum process.

12 IV. PRELIMINARY INJUNCTION

13

The Court now turns to Plaintiffs’ Motion for Preliminary Injunction.

14 Plaintiffs request that the Court enjoin the newly passed Asylum Ban, 8 C.F.R. §

15 208.13(c)(4)(i), from applying to members of the provisionally certified class who

16 arrived before the regulation’s stated date of effect.

17

“A preliminary injunction is a matter of equitable discretion and is ‘an

18 extraordinary remedy that may only be awarded upon a clear showing that the

19 plaintiff is entitled to such relief.’” California v. Azar, 911 F.3d 558, 575 (9th Cir.

20 2018) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).

21 “Crafting a preliminary injunction is ‘an exercise of discretion and judgment often

22 dependent as much on the equities of a given case as the substance of the legal issues

23 it presents.’” Azar, 911 F.3d at 582 (quoting Trump v. Int’l Refugee Assistance

24 Project, __U.S. __, 137 S. Ct. 2080, 2087 (2017)). “‘The purpose of such interim

25 equitable relief is not to conclusively determine the rights of the parties but to balance

26 the equities as the litigation moves forward.’” Id.

27

In order to obtain a preliminary injunction, the plaintiff must establish: (1) that

28 he or she is likely to succeed on the merits; (2) that he or she is likely to suffer

29

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15472 Page 30 of 36

1 irreparable harm in the absence of preliminary relief; (3) that the balance of equities

2 tips in his or her favor; and (4) that an injunction is in the public interest. Winter. 555

3 U.S. at 20. “When the government is a party, the last two factors merge.” Azar, 911

4 F.3d at 575 (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.

5 2014)).

6

A preliminary injunction can take two forms. Marlyn Nutraceuticals Inc. v.

7 Mucus Pharma GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009). “‘A mandatory

8 injunction orders a responsible party to take action,’ while ‘[a] prohibitory injunction

9 prohibits a party from taking action and preserves the status quo pending a

10 determination of the action on the merits.’” Ariz. Dream Act Coalition v. Brewer,

11 757 F.3d 1053, 1060 (9th Cir. 2014) (quoting McCormack v. Hiedeman, 694 F.3d

12 1004, 1019 (9th Cir. 2012)). “The ‘status quo’ refers to the legally relevant

13 relationship between the parties before the controversy arose.” Id. at 1061. When

14 the Government seeks to revise a policy, it is affirmatively changing the status quo,

15 and any injunction ordering that the new policy not take effect is a prohibitory

16 injunction. Id. A mandatory injunction is particularly disfavored and requires

17 heightened scrutiny. Marlyn Nutraceuticals, 571 F.3d at 878; Ariz. Dream Act

18 Coalition, 757 F.3d at 1060.

19

The Plaintiffs in this case seek a prohibitory injunction. The Government has

20 passed a regulation which affirmatively changes the status quo. Plaintiffs are seeking

21 an injunction ordering that this new policy not be applied to a small subclass of

22 asylum seekers. As such, the heightened scrutiny is not applicable to Plaintiffs’

23 Motion.

24

A. Likelihood of Success on the Merits

25

The wording of the Asylum Ban is clear. It is only applicable to aliens who

26 enter, attempt to enter, or arrive in the United States after July 16, 2019. See 8 C.F.R.

27 § 208.13(c)(4)(i) (applying additional limitation on asylum eligibility to “any alien

28

30

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15473 Page 31 of 36

1 who enters, attempts to enter, or arrives in the United States across the southern land

2 border on or after July 16, 2019”).

3

In its most recent order in this case, this Court concluded that class members

4 “who may not yet be in the United States, but who [are] in the process of arriving in

5 the United States through a POE[,]” were “arriving in the United States” such that

6 the statutory and regulatory provisions at issue applied to them. See Al Otro Lado,

7 394 F. Supp. at 1199–1205. Adopting and applying the same reasoning here, the

8 Court concludes that the Asylum Ban, by its express terms, does not apply to those

9 non-Mexican foreign nationals in the subclass who attempted to enter or arrived at

10 the southern border before July 16, 2019 to seek asylum but were prevented from

11 making a direct claim at a POE pursuant to the metering policy.

12

“A regulation should be construed to give effect to the natural and plain

13 meaning of its words.” Bayview Hunters Point Cmty. Advocates v. Metro. Transp.

14 Comm’n, 366 F.3d 692, 698 (9th Cir. 2004) (quoting Crown Pac. v. Occupational

15 Safety & Health Review Comm’n, 197 F.3d 1036, 1038 (9th Cir. 1999)). Construing

16 the Asylum Ban consistent with this principle, the Court finds that Plaintiffs are likely

17 to succeed on the merits of their claim that the Asylum Ban does not apply to them.

18

The Government knowingly and intentionally implemented the Turnback

19 Policy at its POEs before July 16, 2019. The Government also knew that, pursuant

20 to this policy, CBP turned away many asylum-seekers who had approached a United

21 States POE but could not cross the international boundary because they were required

22 to wait in Mexico as a condition to accessing the asylum process in the United States.

23 Despite this knowledge, the Government decided to issue a regulation applying only

24 from July 16, 2019 forward. The Government could have enacted the Asylum Ban

25 without specifying a time period, and thus imposed it on those subject to the metering

26 procedures of the Turnback Policy. It could have also enacted the Asylum Ban with

27 language specifying that it would be effective retrospectively to those metered at the

28 border before the date the regulation was adopted. The Government chose to do

31

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15474 Page 32 of 36

1 neither. Instead, although the regulation clearly states that it applies only to aliens

2 who entered, attempted to enter, or arrived on or after July 16, 2019, the Government

3 is now attempting to apply the Asylum Ban beyond its unambiguous constraints to

4 capture the subclass of Plaintiffs who are, by definition, not subject to this rule.

5

The Government’s position that the Asylum Ban applies to those who

6 attempted to enter or arrived at the southern border seeking asylum before July 16,

7 2019 contradicts the plain text of their own regulation. Thus, the Court finds that

8 Plaintiffs are likely to succeed on this issue on the merits.

9

B. Irreparable Harm

10

“Irreparable harm is traditionally defined as harm for which there is no

11 adequate legal remedy, such as an award of damages.” Ariz. Dream Coalition, 757

12 F.3d at 1068. “Because intangible injuries generally lack an adequate legal remedy,

13 ‘intangible injuries [may] qualify as irreparable harm.’” Id. (quoting Rent-A-Ctr, Inc.

14 v. Canyon Television and Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991)).

15 One potential component of irreparable harm in an asylum case can be the claim that

16 the individual is in physical danger if returned to his or her home country. Leiva-

17 Perez v. Holder, 640 F.3d 962, 969 (9th Cir. 2011).

18

In this case, the provisionally certified subclass came to the southern border

19 seeking asylum, claiming that they faced physical danger, torture or death if returned

20 to their country of origin.11

21

CBP officers prevented asylum-seekers from crossing the international line to

22 U.S. soil on the basis that the POE was at capacity, and CBP guidance instructed

23 officers to inform individuals “that they will be permitted to enter once there is

24 sufficient space and resources to process them.” (OIG Special Review at 6, Ex. 2 to

25 Mot. for Prelim. Inj., ECF No. 294-4.) In other words, these asylum seekers

26

27 11 See, e.g., Decl. of Roberto Doe ¶ 3; Decl. of S.N. ¶ 5; Decl. of Bianka Doe ¶ 3, Ex. 8 to Mot. for Prelim. Inj., ECF No. 294-10; Decl. of Djamal Doe ¶ 3, Ex. 12 to Mot. for Prelim. Inj., ECF No.

28 294-14; Decl. of Jordan Doe ¶ 3; Decl. of S.M.R.G. ¶ 4, Ex. 16 to Mot. for Prelim. Inj., ECF No.

294-20; Decl. of B.B. ¶ 4; Decl. of Mowha Doe ¶¶ 3–6.

32

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15475 Page 33 of 36

1 understood their access to asylum in the United States to be premised on their

2 willingness to wait in Mexico. In reliance on this representation by the U.S.

3 Government, they did so. (See Decl. of B.B. ¶ 9 (“We put our names on the list

4 because we believed in the process.”).)

5

The Government—in a shift that can be considered, at best, misleading, and at

6 worst, duplicitous—now seeks to change course. Although these individuals had

7 already attempted to seek asylum in the United States and returned to Mexico only at

8 the instruction of the Government, the Government intends to construe the fact that

9 they were waiting in Mexico on or after July 16, 2019 as a failure to arrive in the

10 United States before that date, thus subjecting them to the asylum eligibility bar

11 contained in the Asylum Ban.

12

As such, the Government argues that the members of the subclass must first

13 seek asylum in Mexico before they will be permitted to make a claim for asylum in

14 the United States. See 8 C.F.R. § 208.13(c)(4)(i) (requiring foreign nationals to apply

15 for asylum in at least one country through which they transited to the United States,

16 “and receive[]a final judgment denying the alien protection in such country”). Again,

17 however, based on the representations of the Government, these individuals have not

18 done so because they believed that the process to receive an asylum hearing in the

19 United States required only that they place themselves on a waitlist. As a result, they

20 are now subject to Mexico’s 30-day window for submitting asylum petitions and will

21 likely be unable to meet the requirements of Asylum Ban. (Mot. for Prelim. Inj. at

22 12 (“[P]rovisional class members who were metered before July 16, 2019, by

23 definition, have been in Mexico longer than a month, and are now barred from

24 applying for asylum in Mexico by that country’s 30-day bar on asylum

25 applications.”); see also Suppl. Decl. of Roberto Doe ¶ 7.). By extension, should the

26 Asylum Ban be imposed on them, they will also lose their right to claim asylum in

27 the United States.

28

33

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15476 Page 34 of 36

1

Plaintiffs are simply seeking an opportunity to have their asylum claims heard.

2 Failure to grant this preliminary injunction and return Plaintiffs to the status quo

3 before the Asylum Ban went into effect, giving rise to the instant controversy, would

4 therefore lead Plaintiffs to suffer irreparable harm.

5

C. Balance of Equities/Public Interest

6

While the Court must consider the public interest in preventing asylum-seekers

7 from being improperly denied their access to the asylum process—particularly when

8 the resulting ban could result in their removal to countries where they could face

9 substantial harm—the Court is also mindful of the Government’s position that it has

10 a limited capacity to process all asylum-seekers in a timely fashion. Defendants argue

11 that the Asylum Ban was passed in response to these limitations and that a

12 preliminary injunction could complicate the Government’s ability to deal with these

13 issues, slowing the asylum process for others.

14

However, ultimately the Court finds the balance of equities and public interest

15 tips in Plaintiffs’ favor for two reasons. First, the putative subclass relied on the

16 Government’s representations. They returned to Mexico reasonably believing that if

17 they followed these procedures, they would eventually have an opportunity to make

18 a claim for asylum in the United States. But for the Government’s metering policy,

19 these asylum-seekers would have entered the United States and started the asylum

20 process without delay. Similarly, but for the Government’s current attempt to apply

21 the Asylum Ban to them, these individuals could have their asylum claims

22 adjudicated under the law in place at the time of their metering, which did not include

23 the requirement that they first exhaust asylum procedures in Mexico. But because

24 they did as the Government initially required and waited in Mexico, the Government

25 is now arguing that they did not enter, attempt to enter, or arrive in the United States

26 before July 16, 2019 and are now subject to this additional eligibility limitation. This

27 situation, at its core, is quintessentially inequitable.

28

34

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15477 Page 35 of 36

1

Second, as discussed above, if the Asylum Ban was meant to apply to those

2 individuals waiting for their asylum hearing in Mexico due to the metering policy,

3 the regulation could simply have said so. The fact that the Government is now so

4 broadly interpreting a regulation that could have, but did not, include those who were

5 metered, also leads the Court to include that the balance of equities tips in favor of

6 Plaintiffs.

7

The Court concludes Plaintiffs have clearly shown a likelihood of success on

8 the merits and irreparable harm, and that the balance of equities and public interest

9 fall in their favor. Hence, the Court GRANTS Plaintiffs’ Motion for a Preliminary

10 Injunction.

11

D. Scope of the Injunction

12

“[T]he scope of injunctive relief is dictated by the extent of the violation

13 established, not by the geographical extent of the plaintiff.” Califano v. Yamasaki,

14 442 U.S. 682, 702 (1979). In the immigration context, moreover, courts “have

15 consistently recognized the authority of district courts to enjoin unlawful policies on

16 a universal basis.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir.

17 2018) (citing cases).

18

Unlike East Bay Sanctuary, however, nationwide injunctive relief is not

19 necessary in this case to offer complete redress. Rather, the scope of the injunctive

20 relief is limited by the class definition. See All. to End Repression v. Rochford, 565

21 F.2d 975, 980 (7th Cir. 1977) (“If, however, the suit is based on the constitutionality

22 of a statute as applied or of a general practice, as is the case here, then the scope of

23 the appropriate remedy can be defined more clearly by reference to the definition of

24 the plaintiff class.”).12 The injunctive relief in this case would apply only to the class

25

26

12 In fact, critics of the universal or nationwide injunction endorse the use of Rule 23(b)(2) class actions when injunctive relief limited to the named plaintiff “proves too narrow.” Samuel L.

27 Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 475–76 (2017) (“Indeed, if federal courts were to end the practice of issuing national injunctions, and

28 instead were to issue only plaintiff-protective injunctions, it would become easier to see the

rationale for the Rule 23(b)(2) class action as a means of achieving broad injunctive relief.”).

35

17cv2366

Case 3:17-cv-02366-BAS-KSC Document 330 Filed 11/19/19 PageID.15478 Page 36 of 36

1 certified in this case, defined in Section III, supra. The preliminary injunction

2 therefore does not restrain nationwide effect of the Asylum Ban; it restrains only the

3 effect of the Ban on those members of the provisionally certified class who fall

4 outside the Ban’s stated parameters.

5 V. CONCLUSION

6

For the reasons stated above, the Court GRANTS Plaintiffs’ Motion for

7 Provisional Class Certification (ECF No. 293). The Court provisionally certifies a

8 class consisting of “all non-Mexican asylum-seekers who were unable to make a

9 direct asylum claim at a U.S. POE before July 16, 2019 because of the U.S.

10 Government’s metering policy, and who continue to seek access to the U.S. asylum

11 process.”

12

Furthermore, the Court GRANTS Plaintiffs’ Motion for a Preliminary

13 Injunction (ECF No. 294) and orders the following: Defendants are hereby

14 ENJOINED from applying the Asylum Ban to members of the aforementioned

15 provisionally certified class and ORDERED to return to the pre-Asylum Ban

16 practices for processing the asylum applications of members of the certified class.

17

IT IS SO ORDERED.

18

19 Dated: November 19, 2019

20

21

22

23

24

25

26

27

28

36

17cv2366

 
 Case 3:17-cv-02366-BAS-KSC Document 382 Filed 01/06/20 PageID.26739 Page 1 of 6

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
AL OTRO LADO, et al.,

Case No. 17-cv-02366-BAS-KSC

11
Plaintiffs, ORDER:
12

v.
13

(1) GRANTING DEFENDANTS’ MOTION TO AMEND/CORRECT

14

CHAD F. WOLF, Acting Secretary of Homeland Security, et al.,

[ECF No. 362]; AND

15

Defendants. (2) DENYING PLAINTIFFS’

16

MOTION FOR TEMPORARY

RESTRAINING ORDER

17

WITHOUT PREJUDICE

[ECF No. 344]
18

19

On December 6, 2019, Plaintiffs moved for a temporary restraining order (“TRO”)

20 prohibiting the Government from applying a new regulation, “Implementing Bilateral and

21 Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act”

22 (“ACA Rule”), to provisional class members who were metered by the U.S. Government

23 at a port of entry before the effective date of the regulation. (Mot. for TRO, ECF No. 344;

24 Mot. for Provisional Class Certification, ECF No. 352.) Defendants oppose the Motion and

25 have submitted Motion amending their Opposition. (ECF Nos. 352, 362.) For the reasons

26 stated below, the Court GRANTS Defendants’ Motion to Amend/Correct their Opposition

27 and DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for a TRO.

28

1
19cv2366

Case 3:17-cv-02366-BAS-KSC Document 382 Filed 01/06/20 PageID.26740 Page 2 of 6

1 I. BACKGROUND

2

The Rule implements a statutory exception to asylum in the Immigration and

3 Nationality Act known as the “Safe third country” provision. 8 U.S.C.

4 § 1158(a)(2)(A). Under this provision, the Attorney General can remove a foreign national

5 otherwise eligible for asylum,

6

pursuant to a bilateral or multilateral agreement, to a country (other than the

country of the alien’s nationality or, in the case of an alien having no

7

nationality, the country of the alien’s last habitual residence) in which the

alien’s life or freedom would not be threatened on account of race, religion,

8

nationality, membership in a particular social group, or political opinion, and

where the alien would have access to a full and fair procedure for determining

9

a claim to asylum or equivalent temporary protection, unless the Attorney

General finds that it is in the public interest for the alien to receive asylum in

10

the United States.

11 Id. The United States recently entered into ACAs with El Salvador, Guatemala, and

12 Honduras which constitute such “bilateral or multilateral agreement[s]” to which the

13 statutory exception applies, and the ACA Rule “modif[ies] existing regulations to provide 14 for the implementation of” these ACAs.1 84 Fed. Reg. 63994 (Nov. 19, 2019) (to be

15 codified at 8 C.F.R. §§ 208.4, 208.30, 1003.42, 1208.4, and 1240.11).

16

In addition to implementing the three aforementioned ACAs, the ACA Rule creates

17 a bar that restricts “whether an alien may even apply for asylum.” Id. at 63996 (emphasis

18 original). To do so, the rule establishes “a screening mechanism” to evaluate an alien’s

19 likelihood of torture or of persecution based on race, religion, nationality, political opinion,

20 or membership in a particular social group if removed a “third country”—in this case, El

21 Salvador, Guatemala, or Honduras.

22

This threshold inquiry is conducted by an asylum officer or immigration judge who

23 must determine: (1) if a foreign national is subject to the terms of an existing ACA; and (2)

24 if the individual, should he or she state an affirmative fear of removal to a signatory third

25 country, is more likely than not to be persecuted or tortured in that country. Id. at 63998.

26

27 1 The ACA Rule does not alter the existing regulations governing removal under the U.S.-Canada Agreement, which is narrower in scope and directed only at third country nationals seeking to enter the
28 U.S. at a U.S.-Canada land border port of entry. 84 Fed. Reg. 63,996.

2
19cv2366

Case 3:17-cv-02366-BAS-KSC Document 382 Filed 01/06/20 PageID.26741 Page 3 of 6

1 The inquiry occurs directly after an initial inadmissibility or deportability determination is

2 made during either an expedited removal proceeding or a “regular removal proceeding”

3 under § 240 of the INA. Id.

4 II. LEGAL STANDARD

5

If the nonmovant has received notice of a TRO, the standard for issuing a temporary

6 restraining order is the same as that for issuing a preliminary injunction. See Brown Jordan

7 Int’l, Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002);

8 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D.

9 Cal. 1995). “[A] preliminary injunction is an extraordinary and drastic remedy, one that

10 should not be granted unless the movant, by a clear showing, carries the burden of

11 persuasion.” Mazurek v. Armstrong, 520 U.S. 98, 972 (1997) (emphasis original) (quotation

12 omitted). “[T]he burden of proof at the preliminary injunction stage tracks the burden of

13 proof at trial.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011).

14

To obtain preliminary injunctive relief, a movant must “meet one of two variants of

15 the same standard.” All for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017.)

16 Under the first standard, the movant must show “that he is likely to succeed on the merits,

17 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

18 balance of equities tips in his favor, and that an injunction is in the public interest.” Id.

19 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

20

Under the second standard, the movant must show “that there are serious questions

21 going to the merits—a lesser showing than likelihood of success on the merits,” that the

22 “balance of hardships tips sharply in the Plaintiff’s favor,” and that “the other two Winter

23 factors are satisfied.” Id. (quotation omitted). The balance of equities and public interest

24 factors merge “[w]hen the government is a party.” Drakes Bay Oyster Co. v. Jewell, 747

25 F.3d 1073, 1092 (9th Cir. 2014) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). Under

26 the second standard, when the government is a party, the movant must show serious

27 questions going to the merits; a balance of hardships, merged with public interest

28

3
19cv2366

Case 3:17-cv-02366-BAS-KSC Document 382 Filed 01/06/20 PageID.26742 Page 4 of 6

1 considerations, tipping sharply in the movant’s favor; and a likelihood of irreparable harm

2 absent preliminary relief.

3 III. ANALYSIS

4

Plaintiffs allege that the application of the ACA Rule to the class members will result

5 in irreparable injury because removal to a third country would extinguish their ability to

6 obtain relief in the underlying action. (Mem. of P. & A. In Support of Mot. for TRO at 4,

7 ECF No. 344-1.) However, the Court does not find that Plaintiffs have met this burden

8 because Plaintiffs have not established that Defendants are likely to apply the regulation to

9 the class.

10

“Under either formulation of the [preliminary injunction] test, the party seeking the

11 injunction must demonstrate that it will be exposed to some significant risk of irreparable

12 injury.” Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity, 950

13 F.2d 1401, 1410 (9th Cir. 1991). While Plaintiffs are not required to show actual injury, “a

14 strong threat of irreparable injury before trial is an adequate basis” for such relief.

15 Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990) (quoting 11 C. Wright & A. Miller,

16 Federal Practice and Procedure, § 2948 at 437–38 (1973) (footnote omitted)). Thus, a

17 plaintiff must show an “immediate threatened injury as a prerequisite to preliminary

18 injunctive relief.” Midgett v. Tri-County Met. Transp. Dist., 254 F.3d 846, 851 (9th Cir.

19 2001).

20

To support its claim that application of the ACA Rule on the class satisfies this

21 standard, Plaintiffs claim that “the Government is accelerating its enforcement of the rule”

22 and has rescinded its previous representations about the breadth of the application of the 23 rule.2 Specifically, although an initial declaration from a CBP official represented that the

24

25 2 Defendants’ Motion to Amend/Correct (ECF No. 362) includes a revised version of the Declaration of
26 Michael Ringler, an Assistant Chief for Border Patrol’s Specialty Programs/Planning Division and the Declaration of Todd Hoffman, Executive Director, Admissibility and Passenger Programs, Office of Field
27 Operations, Customs and Border Protection. (ECF Nos. 362-2, 362-3.) The Motion to Amend/Correct
was not opposed by Plaintiffs. The Court hereby GRANTS the Motion and considers its contents for 28 purposes of this Order.

4
19cv2366

Case 3:17-cv-02366-BAS-KSC Document 382 Filed 01/06/20 PageID.26743 Page 5 of 6

1 ACA Rule was “being applied only to those aliens who entered without inspection, and not

2 those aliens seeking admission at a port of entry,” Defendants submitted an amended

3 declaration from the same official that omits this language. (Compare Dec. of Michael

4 Ringler ¶ 10, ECF No. 357-4 with Mot. to Amend/Correct, Dec. of Michael Ringler 5 (“Amended Ringler Dec.”), ECF No. 362-2.)3 Further, an additional declaration from

6 another CBP official states that the ACA Rule is being applied at the El Paso port of entry

7 and that, to date, one person has been referred to USCIS pursuant to the Rule but was

8 ultimately “reprocessed for a different form of removal proceedings.” (Dec. of Todd

9 Hoffman ¶¶ 4, 5, ECF No. 362-3.)

10

These statements, however, do not establish a likelihood that Defendants will apply

11 the Rule to provisional class members, thereby causing them irreparable harm. The fact

12 that Defendants have referred a single individual pursuant under the ACA Rule at a port of

13 entry—who was then reprocessed pursuant to a different removal authority—does not

14 create a “strong threat” of enforcement of the Rule against the class members. See Los

15 Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir.

16 1980) (finding that facts “sufficient to justify some apprehension” of immediate injury,

17 while potentially sufficient for standing, did not satisfy plaintiff’s burden for preliminary

18 injunctive relief). These circumstances are distinct from those surrounding the Asylum

19 Ban, in which Defendants affirmatively stated their intention to enforce compliance of the

20 Asylum Ban on the provisional class. (See Opp’n to Mot. for Prelim. Inj. at 23–24, ECF

21 No. 307 (“Class members have all had the opportunity since July 16 to seek relief in Mexico

22 to comply with the terms of the [Asylum Ban] . . .”).)

23

Further, the Court’s initial order granting a preliminary injunction and class

24 certification regarding the Asylum Ban is currently on appeal. See Al Otro Lado et al. v.

25 Chad Wolf, et al., No. 19-56417 (9th Cir. Dec. 5, 2019). Depending on the outcome of the

26 3 The amended declaration also includes statistics from the Rio Grande Valley sector inadvertently omitted
27 in the initial declaration and qualifies the accuracy of the statistics by stating that they are “unofficial
approximates . . . based on the numbers of individuals who were referred to USCIS.” (Amended Dec. of 28 Michael Ringler ¶¶ 3, 8.)

5
19cv2366

Case 3:17-cv-02366-BAS-KSC Document 382 Filed 01/06/20 PageID.26744 Page 6 of 6

1 appeal, the Government may be required to “return to the pre-Asylum Ban practices for

2 processing the asylum applications of members of the certified class.” (Order Granting

3 Prelim. Inj. and Class Certification at 36, ECF No. 330.) The “pre-Asylum Ban practices”

4 necessarily prohibit any application of the ACA Rule to the class because the ACA Rule

5 became effective well after the Asylum Ban. The Court assumes that the Government will,

6 in good faith, await the Ninth Circuit’s decision on the merits of this Court’s preliminary

7 injunction and avoid taking steps that could complicate or preclude its compliance with a

8 court order.

9 IV. CONCLUSION

10

The Court GRANTS Defendants’ Motion to Amend/Correct (ECF No. 362) and

11 DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for a TRO (ECF No. 344).

12 Plaintiffs may renew the Motion for a TRO if Plaintiffs learn that Defendants have applied

13 or will imminently apply the ACA Rule to any provisional class member. Further, if

14 Plaintiffs marshal additional evidence to support the likelihood of irreparable harm to the

15 class, Plaintiffs may file a noticed Motion for a Preliminary Injunction regarding the

16 application of the ACA Rule to the provisional class.

17

IT IS SO ORDERED.

18

19 DATED: January 6, 2020

20

21

22

23

24

25

26

27

28

6
19cv2366