Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 1 of 8
CLASS ACTION,HABEAS,HabeasPSLC
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:19−cv−02119−DMS−AGS

Doe et al v. McAleenan et al Assigned to: Judge Dana M. Sabraw Referred to: Magistrate Judge Andrew G. Schopler Cause: 28:2241fd Petition for Writ of Habeas Corpus (federal)
Petitioner

Date Filed: 11/05/2019 Jury Demand: None Nature of Suit: 540 Mandamus & Other Jurisdiction: Federal Question

Cristian Doe

represented by Monika Yvette Langarica ACLU Foundation of San Diego & Imperial Counties P. O. Box 87131 San Diego, CA 92138 619−398−4493 Fax: 619−232−0036 Email: mlangarica@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bardis Vakili ACLU Foundation of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138−7131 (619) 232−2121 Fax: (619) 232−0036 Email: bvakili@aclusandiego.org ATTORNEY TO BE NOTICED

John David Loy ACLU Foundation of San Diego and Imperial Counties PO Box 87131 San Diego, CA 92138 (619) 232−2121 Fax: (619)232−0036 Email: davidloy@aclusandiego.org ATTORNEY TO BE NOTICED

Jonathan Paul Markovitz 4055 Front Street San Diego, CA 92103 619−886−8173 Email: jmarkovitz@aclusandiego.org ATTORNEY TO BE NOTICED

Petitioner Diana Doe

represented by Monika Yvette Langarica (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bardis Vakili (See above for address) ATTORNEY TO BE NOTICED

John David Loy (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 2 of 8
Jonathan Paul Markovitz (See above for address) ATTORNEY TO BE NOTICED

V. Respondent Kevin K. McAleenan Acting Secretary of Homeland Security
Respondent Kenneth T. Cuccinelli Acting Director of U.S. Citizenship and Immigration Services
Respondent Mark A. Morgan Acting Commissioner of U.S. Customs and Border Protection

represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar Department of Justice Office of Immigration L PO Box 868 Ben Franklin Station Washington, DC 20044 202−598−8060 Fax: 202−305−7000 Email: Archith.Ramkumar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Grace Church United States Attorney's Office Southern District of California 880 Front Street Room 6293 San Diego, CA 92101 (619) 546−7721 Email: rebecca.church@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY

Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 3 of 8

ATTORNEY TO BE NOTICED

Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Douglas Harrison Chief Patrol Agent, U.S. Border Patrol San Diego Sector

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Ryan Scudder Acting Chief Patrol Agent, U.S. Border Patrol El Centro Sector

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Robert Hood U.S. Customs and Border Protection Officer in Charge, San Ysidro Port of Entry

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent

represented by

Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 4 of 8

Sergio Beltran U.S. Customs and Border Protection Officer in Charge, Calexico Port of Entry

U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
William Barr Attorney General of the United States

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Grace Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/05/2019
11/05/2019 11/05/2019 11/05/2019 11/05/2019 11/05/2019

# Docket Text
1 Petition for Writ of Habeas Corpus against William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder, filed by Diana Doe, Cristian Doe.(Filing fee $5 − receipt number: 0974−13129808) (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:19−cv−2119−DMS−AGS. Judge Dana M. Sabraw and Magistrate Judge Andrew G. Schopler are assigned to the case. (Langarica, Monika)(jms) (Entered: 11/05/2019)
2 MOTION for Temporary Restraining Order by Cristian Doe, Diana Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration)(jms) (Entered: 11/05/2019)
3 MOTION for Class Certification by Cristian Doe, Diana Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Monika Y. Langarica, # 3 Declaration of Bardis Vakili)(jms) (Entered: 11/05/2019)
4 MOTION Ex Parte Application to Leave to Proceed Under Pseudonym, to File Documents Under Seal, and For Interim Protective Order by Cristian Doe, Diana Doe. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration)(jms). Added MOTION to File Documents Under Seal on 11/5/2019 (dlg). (Entered: 11/05/2019)
5 SEALED LODGED Proposed Document re: 4 MOTION Ex Parte Application to Leave to Priceed Under Pseudonym, to File Documents Under Seal, and For Interim Protective OrderMOTION to File Documents Under Seal. Document to be filed by Clerk if Motion to Seal is granted. (Langarica, Monika) (dlg). (Entered: 11/05/2019)
6 ORDER Setting Briefing Schedule. Respondents−Defendants shall file a response to this motion on or before November 6, 2019 at 12:00 p.m. Hearing on the Petitioners−Plaintiff's motion for temporary restraining order shall be scheduled for November 6, 2019 at 2:00 p.m. The Parties may appear telephonically if necessary. Signed by Judge Dana M. Sabraw on 11/5/2019.(aef) (Entered: 11/05/2019)

Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 5 of 8

11/05/2019 11/05/2019 11/05/2019 11/06/2019
11/06/2019 11/06/2019 11/06/2019 11/07/2019 11/08/2019 11/08/2019 11/08/2019
11/12/2019

7 NOTICE of Appearance by Bardis Vakili on behalf of Cristian Doe, Diana Doe (Vakili, Bardis)Attorney Bardis Vakili added to party Cristian Doe(pty:pet), Attorney Bardis Vakili added to party Diana Doe(pty:pet) (jms). (Entered: 11/05/2019)
8 NOTICE of Appearance by Jonathan Paul Markovitz on behalf of Cristian Doe, Diana Doe (Markovitz, Jonathan)Attorney Jonathan Paul Markovitz added to party Cristian Doe(pty:pet), Attorney Jonathan Paul Markovitz added to party Diana Doe(pty:pet)(jms). (Entered: 11/05/2019)
9 NOTICE of Appearance by John David Loy on behalf of Cristian Doe, Diana Doe (Loy, John)Attorney John David Loy added to party Cristian Doe(pty:pet), Attorney John David Loy added to party Diana Doe(pty:pet) (jms). (Entered: 11/05/2019)
10 NOTICE Ex Parte Notice to Stipulate to Postpone Non−Refoulment Interviews of Petitioners Pending TRO Adjudication by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder re 6 Order Setting Briefing Schedule, (Church, Rebecca)Attorney Rebecca Grace Church added to party William Barr(pty:res), Attorney Rebecca Grace Church added to party Sergio Beltran(pty:res), Attorney Rebecca Grace Church added to party Kenneth T. Cuccinelli(pty:res), Attorney Rebecca Grace Church added to party Douglas Harrison(pty:res), Attorney Rebecca Grace Church added to party Robert Hood(pty:res), Attorney Rebecca Grace Church added to party Kevin K. McAleenan(pty:res), Attorney Rebecca Grace Church added to party Mark A. Morgan(pty:res), Attorney Rebecca Grace Church added to party Ryan Scudder(pty:res) (aef). (Entered: 11/06/2019)
11 RESPONSE re 10 Notice (Other), to Defendants−Respondents' Ex Parte Notice to Stipulate to Postpone Non−Refoulement Interviews of Petitioners Pending TRO Adjudication filed by Cristian Doe, Diana Doe. (Langarica, Monika) (aef). (Entered: 11/06/2019)
12 ORDER Setting Briefing Schedule. Respondents−Defendants shall file a response to Petitioners−Plaintiffs' motion for temporary restraining order on or before November 7, 2019 at 5:00 p.m. Hearing on this matter shall be scheduled for November 8, 2019 at 2:30 p.m. Signed by Judge Dana M. Sabraw on 11/6/2019.(aef) (Entered: 11/06/2019)
13 Minute Entry for proceedings held before Judge Dana M. Sabraw: Telephonic Status Conference held on 11/6/2019. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Monika Langarica, Bardis Vakili). (Defendant Attorney Katherine Parker, Rebecca Church, Samuel Bettwy). (no document attached) (jak) (Entered: 11/06/2019)
14 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order filed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder. (Attachments: # 1 Exhibit, # 2 Declaration Christian A. Couch)(Bettwy, Samuel) (jms). (Entered: 11/07/2019)
15 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jms) (Entered: 11/08/2019)
16 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order filed by Cristian Doe, Diana Doe. (Vakili, Bardis) (jms). (Entered: 11/08/2019)
17 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 11/8/2019 re 2 MOTION for Temporary Restraining Order filed by Cristian Doe, Diana Doe. Court to issue order.(Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Bardis Vakili, Monika Langarica, Jonathan Markovitz). (Defendant Attorney Samuel Bettwy, Rebecca Church, Caroline Prime). (no document attached) (jak) (Entered: 11/08/2019)
18 ORDER Granting 2 Motion for Temporary Restraining Order. Petitioners' motion for temporary restraining order is granted. Pending before the Court are Petitioners' motions for class certification and preliminary injunction. Respondents shall respond to the motions by November 27, 2019 at 5:00 p.m., and Petitioners shall file their replies by December 6, 2019 at 5 p.m. The parties are ordered to meet and confer in person by no later than December 4, 2019 to attempt resolution of these matters. Absent resolution, the motions will be heard on December 13, 2019 at 1:30 p.m.

Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 6 of 8

11/13/2019 11/13/2019
11/13/2019 11/13/2019 11/13/2019 11/13/2019 11/19/2019 11/19/2019
11/19/2019
12/02/2019

Signed by Judge Dana M. Sabraw on 11/12/2019. (aef) (Entered: 11/12/2019)
19 ***DOCUMENT WITHDRAWN PER ECF 23 *** − Ex Parte MOTION for Order to Enforce TRO by Cristian Doe, Diana Doe. (Attachments: # 1 Declaration)(Vakili, Bardis) Modified on 11/13/2019 to withdraw document; motion termed (aef). (Entered: 11/13/2019)
20 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 11/8/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. 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 12/4/2019. Redacted Transcript Deadline set for 12/16/2019. Release of Transcript Restriction set for 2/11/2020. (akr) (Entered: 11/13/2019)
21 ***DOCUMENT WITHDRAWN PER ECF 23 *** − MOTION to Supplement Ex Parte Application to Enforce TRO and Request to Hold Defendant U.S. Border Patrol in Contempt by Cristian Doe, Diana Doe. (Vakili, Bardis) Modified on 11/13/2019 to withdraw document; motion termed (aef). (Entered: 11/13/2019)
22 ORDER TO SHOW CAUSE Why Respondents are not in Contempt. Respondents, specifically Douglass Harrison, Chief Agent for San Diego Sector of Border Patrol, are ordered to show cause why. Hearing on this matter shall be scheduled for November 13, 2019 at 3:30 p.m. Signed by Judge Dana M. Sabraw on 11/13/2019.(aef) (Entered: 11/13/2019)
23 NOTICE OF WITHDRAWAL OF DOCUMENT by Cristian Doe, Diana Doe re 19 Ex Parte MOTION for Order to Enforce TRO filed by Cristian Doe, Diana Doe, 21 MOTION to Supplement Ex Parte Application to Enforce TRO and Request to Hold Defendant U.S. Border Patrol in Contempt filed by Cristian Doe, Diana Doe . (Vakili, Bardis) (aef). (Entered: 11/13/2019)
24 ORDER Re: Hearing. The hearing set for November 13, 2019 is vacated. Signed by Judge Dana M. Sabraw on 11/13/2019.(aef) (Entered: 11/13/2019)
25 Ex Parte MOTION for Extension of Time to File Unopposed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder. (Church, Rebecca)(aef). (Entered: 11/19/2019)
26 NOTICE of Appearance by Archith Ramkumar on behalf of William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder (Ramkumar, Archith)Attorney Archith Ramkumar added to party William Barr(pty:res), Attorney Archith Ramkumar added to party Sergio Beltran(pty:res), Attorney Archith Ramkumar added to party Kenneth T. Cuccinelli(pty:res), Attorney Archith Ramkumar added to party Douglas Harrison(pty:res), Attorney Archith Ramkumar added to party Robert Hood(pty:res), Attorney Archith Ramkumar added to party Kevin K. McAleenan(pty:res), Attorney Archith Ramkumar added to party Mark A. Morgan(pty:res), Attorney Archith Ramkumar added to party Ryan Scudder(pty:res) (jms). (Entered: 11/19/2019)
27 ORDER Granting 25 Unopposed Ex Parte Application for One−Week Extension of Time. The following deadlines set in the Order Granting Motion for Temporary Restraining Order (ECF No. 18) are extended: (1) the responses to the motions for class certification and preliminary injunction are extended from November 27, 2019 to December 4, 2019; (2) Petitioners replies are extended from December 6, 2019 to December 13, 2019; (3) the meet and confer deadline is extended from December 4, 2019 to December 11, 2019; and (4) the hearing is extended from December 13, 2019 to December 20, 2019 at 1:30 p.m. Signed by Judge Dana M. Sabraw on 11/19/2019. (aef) (Entered: 11/19/2019)
28 Ex Parte MOTION Allow Telephonic Meet and confer re 18 Order on Motion for TRO,, Unopposed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder.

Case: 3:19-cv-2119 As of: 02/12/2020 01:53 PM PST 7 of 8

12/03/2019 12/04/2019
12/04/2019 12/10/2019 12/13/2019 12/13/2019 12/18/2019 12/20/2019 01/09/2020 01/10/2020
01/14/2020
01/14/2020
01/22/2020 01/22/2020

(Church, Rebecca) (jms). (Entered: 12/02/2019)
29 ORDER Granting 28 Unopposed Ex Parte Application to Allow Telephonic Meet and Confer. The Court's Order Granting Motion for Temporary Restraining Order (ECF No. 18) is MODIFIED to allow for a telephonic meet and confer. Signed by Judge Dana M. Sabraw on 12/3/2019. (aef) (Entered: 12/03/2019)
30 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order filed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder. (Attachments: # 1 Exhibit Oral Decision Cruz v. DHS, # 2 Declaration of Ashley Caudill−Mirillo, # 3 Declaration of Scott Garrett, # 4 Declaration of Mariza Marin)(Ramkumar, Archith) (jms). (Entered: 12/04/2019)
31 RESPONSE in Opposition re 3 MOTION to Certify Class filed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder. (Attachments: # 1 Declaration of Ashley Caudill−Mirillo)(Ramkumar, Archith)(jms). (Entered: 12/04/2019)
32 STATUS REPORT Joint Status Report Regarding Meet and Confer by Cristian Doe, Diana Doe. (Vakili, Bardis) (jms). (Entered: 12/10/2019)
33 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order filed by Cristian Doe, Diana Doe. (Attachments: # 1 Declaration)(Vakili, Bardis) (jms). (Entered: 12/13/2019)
34 REPLY to Response to Motion re 3 MOTION to Certify Class filed by Cristian Doe, Diana Doe. (Vakili, Bardis) (jms). (Entered: 12/13/2019)
35 SUMMONS Returned Executed by Diana Doe, Cristian Doe. William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder served. (Attachments: # 1 Attachment to Proof of Service)(Vakili, Bardis) (jms). (Entered: 12/18/2019)
36 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 12/20/2019. Court to issue order. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Bardis Vakili, Jonathan Markovitz, Monika Langarica). (Defendant Attorney Archith Ramkumar). (no document attached) (jak) (Entered: 12/20/2019)
37 MOTION for Extension of Time to File Answer unopposed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder. (Ramkumar, Archith) (jms). (Entered: 01/09/2020)
38 ORDER Granting 37 Unopposed Motion for an Extension of Time to Answer or Otherwise Respond to the Complaint. Respondents must file their Answer or Response to the Complaint no later than three weeks after the Court rules on Petitioners' preliminary injunction motion (Dkt. 2). Signed by Judge Dana M. Sabraw on 1/10/2020. (aef) (Entered: 01/10/2020)
39 ORDER Granting 3 Motion for Class Certification. Petitioners are appointed as Class Representatives, and Counsel from the ACLU Foundation of San Diego and Imperial Counties are appointed as counsel for this Class pursuant to Federal Rule of Civil Procedure 23(g). Signed by Judge Dana M. Sabraw on 1/14/2020. (mme) (Entered: 01/14/2020)
40 ORDER Granting Motion for Classwide Preliminary Injunction. Respondents may not conduct class members non−refoulement interviews without first affording the interviewees access to their retained counsel both before and during any such interview. Signed by Judge Dana M. Sabraw on 1/14/2020.(mme) (Entered: 01/14/2020)
41 MOTION for Extension of Time to File Answer unopposed by William Barr, Sergio Beltran, Kenneth T. Cuccinelli, Douglas Harrison, Robert Hood, Kevin K. McAleenan, Mark A. Morgan, Ryan Scudder. (Ramkumar, Archith) (tcf). (Entered: 01/22/2020)
42 ORDER Granting 41 Unopposed Motion for an Extension of Time to Answer or Otherwise Respond to the Complaint. Respondents must file their Answer or Response to the Complaint no later than April 6, 2020. Signed by Judge Dana M. Sabraw on

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01/24/2020

1/22/2020. (aef) (Entered: 01/22/2020)
43 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 12/20/2019 before Judge Dana M. Sabraw. Court Reporter/Transcriber: Lee Ann Pence. 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 2/14/2020. Redacted Transcript Deadline set for 2/24/2020. Release of Transcript Restriction set for 4/23/2020. (akr) (Entered: 01/24/2020)

 
 Case 3:19-cv-02119-DMS-AGS Document 1 Filed 11/05/19 PageID.1 Page 1 of 28

1

MONIKA Y. LANGARICA (SBN 308518)(mlangarica@aclusandiego.org) JONATHAN MARKOVITZ (SBN 301767)(jmarkovitz@aclusandiego.org)

2

BARDIS VAKILI (SBN 247783)(bvakili@aclusandiego.org) DAVID LOY (SBN 229235)(davidloy@aclusandiego.org)

3

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES

4

P.O. Box 87131 San Diego, CA 92138-7131

5 Telephone: (619) 398-4493

6 Counsel for Plaintiff-Petitioners

7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9

10 Cristian Doe, Diana Doe,

11

Plaintiff-Petitioners,

12

v.

13

KEVIN K. McALEENAN, Acting Secretary of Homeland Security; KENNETH T.

14

CUCCINELLI, Acting Director of U.S. Citizenship and Immigration Services;

15

MARK A. MORGAN, Acting Commissioner of U.S. Customs and Border

16

Protection; DOUGLAS HARRISON, Chief Patrol Agent, U.S. Border Patrol San Diego

17

Sector; RYAN SCUDDER, Acting Chief Patrol Agent, U.S. Border Patrol El Centro

18

Sector; ROBERT HOOD, U.S. Customs and Border Protection Officer in Charge, San

19

Ysidro Port of Entry; SERGIO BELTRAN, U.S. Customs and Border Protection Officer

20

in Charge, Calexico Port of Entry; WILLIAM BARR, Attorney General of the

21 United States,

22

Defendants-Respondents.

Case No. __'1_9_C_V_2_1_1_9_D_M__S_A_G_ S COMPLAINT – CLASS ACTION AND PETITION FOR WRIT OF HABEAS CORPUS

23

24

INTRODUCTION

25

1. Plaintiff-Petitioners (“Plaintiffs”) are parents of a family with five

26 children that fled extortion, death threats, and rape in Guatemala. They endured

27 assault, robbery, and humiliation in Mexico en route to the United States.

28

Case 3:19-cv-02119-DMS-AGS Document 1 Filed 11/05/19 PageID.2 Page 2 of 28

1

2. Many other individuals and families have fled their home countries for

2 similar reasons and have faced abuses such as kidnapping, rape, and assault when

3 traveling through Mexico to reach the United States. Indeed, migrants are regularly

4 targeted for abuse in Mexico.

5

3. After Plaintiffs sought asylum in the United States, as is their right

6 under international and federal law, the government forced them to return to Mexico

7 during their immigration proceedings, under a new program the government refers

8 to as “Migrant Protection Protocols” (“MPP” or “Remain in Mexico”).

9

4. Since January 2019, the government has forced certain asylum seekers

10 to return to Mexico during the pendency of their immigration proceedings pursuant

11 to MPP.

12

5. Plaintiffs have suffered additional assault, robbery, and harm in

13 Mexico while their immigration proceedings are pending.

14

6. Plaintiffs are now represented by counsel. Through counsel, when they

15 recently appeared in immigration court, they expressed fear of return to Mexico,

16 triggering their legal right to a determination whether they can be forced back into

17 Mexico again.

18

7. That determination arises from treaty obligations, implemented by

19 statute, under which the United States is bound not to return individuals to a country

20 where their life or freedom would be threatened on account of enumerated grounds.

21 8 U.S.C. § 1231(b)(3). This is referred to as the duty of non-refoulement.

22

8. Plaintiffs face an imminent non-refoulement interview with

23 government officials that could determine whether they live or die if forced to return

24 to Mexico.

25

9. While detaining them pending that interview in deplorable conditions,

26 the government refuses to allow them to speak confidentially with their counsel to

27 prepare for the interview, although it routinely allows immigration detainees to do

28 so in other matters.

2

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1

10. The government refuses to allow their counsel to participate in the

2 interview, although it routinely allows counsel to participate in similar interviews in

3 other matters.

4

11. By policy and practice, the government does the same to numerous

5 other detained individuals and families represented by counsel who fear return to

6 Mexico and face non-refoulement interviews.

7

12. Instead of permitting individuals access to their lawyers to prepare for

8 the non-refoulement interviews, during which they must recount extremely traumatic

9 events, CBP disappears individuals for days in its detention facilities, which are

10 commonly referred to as hieleras, the Spanish word for iceboxes, due to their

11 infamously cold temperatures. Such detention can last days, and often longer than a

12 week. Throughout this time, CBP neither permits detained individuals to contact

13 retained counsel nor infoms attorneys of their clients’ whereabouts.

14

13. During this lengthy, virtually incommunicado detention, CBP subjects

15 individuals to conditions far from conducive to careful preparation required before a

16 highly consequential proceeding, including inadequate food and hygiene, exposure

17 to illnesses, overcrowding, verbal harassment, freezing temperatures, and other

18 abuses.

19

14. Because DHS’s current practice at the California-Mexico border is to

20 impose MPP predominantly, if not exlusively, against families, as it has in this case,

21 traumatized individuals must endure these conditions while also struggling to care

22 for their children, many of whom have suffered harm themselves in Mexico and/or

23 their home countries.

24

15. By the time individuals and families have their non-refoulement

25 interviews, they have spent days struggling to survive in the hieleras without access

26 to their lawyers instead of preparing for the life-or-death proceedings.

27

16. As in similar high-stakes proceedings, confidential access to counsel is

28 important for MPP detainees to prepare for non-refoulement interviews, which turn

3

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1 on complicated factual and legal questions that vulnerable and traumatized detainees

2 are ill-equipped to address without support from their lawyers.

3

17. As in similar interviews, the participation of counsel during MPP non-

4 refoulement interviews is important to ensure full development of the record

5 necessary to meet the complex legal standards and ensure accurate determinations.

6

18. In similar circumstances, the government permits individuals to

7 consult counsel confidentially before high-stakes interviews and allows their

8 attorneys to participate in the interviews.

9

19. The denial of access to counsel before non-refoulement interviews and

10 the refusal to allow counsel to participate in such interviews is likely to result in

11 erroneous return to Mexico of persons with legitmate fears of persecution and

12 torture in Mexico, endangering their lives and safety.

13

20. Plaintiffs bring this case to protect the statutory and constitutional right

14 of access to retained counsel before and during non-refoulement interviews for

15 persons facing threats of torture or persecution in Mexico.

16

21. Plaintiffs seek emergency relief to protect those rights before and

17 during their own non-refoulement interviews, which will occur within a few days.

18

PARTIES

19

22. Plaintiffs “Cristian Doe” (“Cristian”) and “Diana Doe” (“Diana”) ,

20 referred to by pseudonym, are seeking asylum in the United States for themselves

21 and their five children: a 17-year-old daughter, 12–year-old son, 10-year-old son, 9-

22 year-old son, and 4-year–old son.

23

23. Pending non-refoulement interviews, Plaintiffs are detained in the legal

24 custody of Defendants named below.

25

24. Defendant Kevin K. McAleenan is the Acting Secretary of the U.S.

26 Department of Homeland Security (“DHS”), an agency of the United States with

27 several components responsible for enforcing United States immigration laws.

28

4

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1 Secretary McAleenan is a legal custodian of Plaintiffs and other members of the

2 proposed class. He is sued in his official capacity.

3

25. Defendant Kenneth T. Cuccinelli is the Acting Director of U.S.

4 Citizenship and Immigration Services (“USCIS”), a component of DHS. He is sued

5 in his official capacity. USCIS is responsible for, among other things, the

6 administration of non-refoulement interviews, which in California are conducted by

7 USCIS asylum officers.

8

26. Defendant Mark A. Morgan is the Acting Commissioner of U.S.

9 Customs and Border Protection (“CBP”), a component of DHS. CBP is responsible

10 for, among other things, the apprehension and detention of individuals seeking

11 asylum at or near the border, including individuals ultimately forced into MPP, and

12 individuals detained pending and during non-refoulement interviews. Acting

13 Commissioner Morgan is a legal custodian of Plaintiffs and members of the

14 proposed class. He is sued in his official capacity.

15

27. On information and belief, Defendant Douglas Harrison is the Chief

16 Patrol Agent for the U.S. Border Patrol San Diego Sector, a component of CBP and

17 DHS. Chief Patrol Agent Harrison is the legal custodian of Plaintiffs and members

18 of the proposed class who are detained pending and during non-refoulement

19 interviews at Border Patrol stations in the San Diego Sector. He is sued in his

20 official capacity.

21

28. Defendant Ryan Scudder is the Acting Chief Patrol Agent for the U.S.

22 Border Patrol El Centro Sector, a component of CBP and DHS. Acting Chief Patrol

23 Agent Scudder is the legal custodian of members of the proposed class who are

24 detained pending and during non-refoulement interviews at Border Patrol stations in

25 the El Centro Sector. He is sued in his official capacity.

26

29. Defendant Robert Hood is the CBP Officer in Charge for the San

27 Ysidro port of entry. Officer in Charge Hood is the legal custodian of Plaintiffs who

28 were at least temporarily brought to the port of entry after their immigration court

5

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1 hearing and where they may still remain, as well as members of the proposed class

2 who are detained pending and during non-refoulement interviews at the San Ysidro

3 port of entry. He is sued in his official capacity.

4

30. Defendant Sergio Beltran is the CBP Officer in Charge for the

5 Calexico port of entry. Officer in Charge Beltran is the legal custodian of members

6 of the proposed class who are detained pending and during non-refoulement

7 interviews at the Calexico port of entry. He is sued in his official capacity.

8

31. Defendant William Barr is the Attorney General of the United States

9 and the most senior official in the U.S. Department of Justice (“DOJ”). He has the

10 authority to interpret the immigration laws, including those for individuals forced

11 into MPP. He is sued in his official capacity.

12

JURISDICTION AND VENUE

13

32. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331

14 (federal questions), 1361 (mandamus), 1651 (All Writs Act), 2241 (habeas corpus),

15 and 5 U.S.C. §§ 702, 706 (review of agency action). Sovereign immunity against

16 actions for relief other than money damages is waived pursuant to 5 U.S.C. § 702.

17

33. This Court may grant relief under 28 U.S.C. §§ 2241, 2243 (habeas

18 corpus), 2201–02 (declaratory relief), 1651 (All Writs Act), 5 U.S.C. § 702

19 (judgment against U.S. officers), Federal Rule of Civil Procedure 65 (injunctive

20 relief), as well as the First and Fifth Amendments to the U.S. Constitution.

21

34. Venue is proper in the Southern District of California pursuant to 28

22 U.S.C. § 1391(e) because Plaintiffs are detained in this district and a substantial part

23 of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.

24

FACTS

25 I. Plaintiffs’ Experience

26

35. Cristian, Diana, and their children are from Guatemala. They fled their

27 home in April 2019 after their family was extorted and their 17-year-old daughter

28 was raped and threatened with death.

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1

36. After experiencing rape, the 17-year-old girl suffered extreme trauma.

2 She has expressed a desire to take her life.

3

37. Cristian and Diana’s 9-year-old son has been seen and treated in

4 Guatemala for symptoms consistent with leukemia and is currently completely

5 untreated while forced to remain in Mexico, due to the family’s lack of resources.

6

38. The 9-year-old boy experiences daily symptoms of his illness

7 including dizziness, nausea, gastrointestinal problems, and fatigue.

8

39. While traveling through Mexico, Cristian and Diana’s family was

9 assaulted at gunpoint by three men whose faces were covered but who wore

10 uniforms they perceived to belong to Mexican federal officials, in part due to the

11 Mexican flag that was stitched onto the sleeves of the uniforms.

12

40. One of these officials carried a gun. The others carried machetes. They

13 pointed their weapons, beat Cristian with a gun, and ordered the family to hand over

14 all of their belongings.

15

41. The assailants ordered Cristian, Diana, and the five children to take all

16 of their clothes off. One assailant choked the 17-year-old girl while she was

17 completely undressed.

18

42. The assault exacerbated the trauma the 17-year-old girl had

19 experienced as a result of the rape she suffered in Guatemala. It horrified Diana,

20 who felt impotent as she was knocked to the ground while trying to defend her

21 daughter.

22

43. The assailants threatened to kill the family if they reported the assault

23 to anyone. Cristian and Diana reported it to Mexican law enforcement authorities

24 anyway, hoping to avail themselves of the protection of the Mexican government.

25

44. Nothing has come of their complaint, however. Consequently, Cristian

26 and Diana live in fear every day that someone will find their family and hurt them

27 while they are forced to live in Mexico.

28

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1

45. U.S. immigration agents took Cristian, Diana, and their children into

2 CBP custody at the Chula Vista Border Patrol station in California on or about

3 August 8, 2019. They immediately requested asylum, as is their right under federal

4 and international law.

5

46. After the family spent two days in Border Patrol detention, Defendants

6 sent them back into Mexico, subjecting them to MPP. Defendants never asked

7 Cristian, Diana, or their children about their fear of return to Mexico.

8

47. Although they have a safe place to go in the United States with

9 Cristian’s United States citizen aunt, Defendants have forced the family to remain in

10 Mexico pursuant to MPP.

11

48. Cristian and Diana currently lack permanent shelter in Mexico and

12 have been unable to access critical medical care for their children.

13

49. Since arriving in Tjiuana where they are forced to await their

14 immigration proceedings, Cristian, Diana, and their children have survived a shoot-

15 out just outside of where they were staying between people they believe to be drug

16 traffickers and Mexican military officials.

17

50. At their first immigration court hearing, at which they were

18 unrepresented, Cristian and Diana expressed a fear of return to Mexico. Defendants

19 detained them and transported them back to Border Patrol custody to await non-

20 refoulement interviews.

21

51. CBP separated Cristian from Diana and his family and held him in a

22 different cell.

23

52. While awaiting their interviews, Cristian, Diana, and their children

24 were subject to extremely cold temperatures, unhygienic conditions, exposure to

25 illnesses, lights on 24 hours per day, and they were forced to choose between eating

26 spoiled food and not eating at all, among other abuses.

27

53. USCIS interviewed Cristian while CBP kept him handcuffed, such that

28 he could not raise his hand to properly take the oath USCIS administered.

8

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1

54. USCIS interviewed Diana separately along with her children.

2

55. The interviews were telephonic and took place in small rooms inside

3 the Border Patrol station. The interviewers only permitted the family members to

4 answer yes-or-no questions.

5

56. Non-interviewing immigration officials sat in the small rooms during

6 each interview.

7

57. The day after the intial non-refoulement interviews, Defendants forced

8 Cristian, Diana, and their children back into Mexico without an explanation about

9 the results of the interview. They continue living in fear in Mexico while awaiting

10 the adjudication of their asylum claims.

11

58. Since their last interviews, Cristian experienced another assault while

12 on his way to attempt to work as a security guard. Three men dressed in black

13 robbed Cristian at gunpoint. One of the assailants held a gun to his back. The

14 assailants stole his money and the immigration documents he was carrying.

15

59. Since their last interview and after considerable effort, Cristian and

16 Diana secured the pro bono representation of Stephanie Blumberg, an immigration

17 lawyer with Jewish Family Services of San Diego.

18

60. Cristian, Diana, and their family had an immigration court hearing

19 today, November 5, 2019, at 8:30 am. At that hearing, Blumberg conveyed her

20 clients’ fear of return to Mexico to the immigration judge (IJ). Defendants then took

21 the family into CBP custody for non-refoulement interviews, which are likely to

22 occur within several days of the filing of this complaint.

23

61. CBP does not allow persons in its custody to meet confidentially with

24 their attorneys.

25

62. CBP does not allow attorneys representing persons in its custody to

26 visit such persons for the purpose of confidential legal advice.

27

63. CBP does not inform attorneys representing persons in its custody

28 where those persons are held.

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1

64. CBP does not allow persons in its custody to communicate

2 confidentially by telephone with their counsel.

3

65. CBP does not allow persons in its custody who are represented by

4 counsel to have their counsel present during or participate in non-refoulement

5 interviews.

6

66. While in CBP detention pending their non-refoulement interviews,

7 Cristian and Diana have been deprived of the right to communicate confidentially

8 with their counsel to prepare for their non-refoulement interviews.

9

67. Cristian and Diana will be deprived of the right to have their counsel

10 present during or participate in their non-refoulement interviews.

11 II. Asylum Process Before MPP

12

68. Before implementation of MPP, individuals applying for asylum at or

13 near a port of entry were placed in expedited removal (“ER”) proceedings or in full

14 removal proceedings before an IJ pursuant to Immigration and Nationality Act

15 (“INA”) § 240. 8 U.S.C. §§ 1225(b)(1), 1229a.

16

69. Individuals subject to ER who express a fear of persecution or torture

17 upon removal are given a Credible Fear Interview (“CFI”) to assess whether there

18 exists a significant possibility of establishing eligibility for asylum. 8 U.S.C. §

19 1225(b)(1)(A)(i).

20

70. Individuals held in detention pending a CFI have the opportunity to

21 consult confidentially with retained counsel before the CFI.

22

71. Individuals who fail a CFI are generally removed promptly through an

23 ER order. 8 U.S.C. § 1225(b)(1)(B)(iii).

24

72. Individuals who pass their CFI are taken out of ER proceedings and

25 placed into INA § 240 removal proceedings, in which they have the opportunity to

26 present their cases for asylum before an IJ. 8 U.S.C. §§ 1229a(c)(4);

27 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30, 235.3.

28

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1

73. Until MPP, most people who arrived at or near the southern U.S.

2 border to seek asylum were subjected to the ER and CFI process.

3

74. Those who passed a CFI remained in the United States pending

4 completion of their removal proceedings. They were either held in detention or

5 released into the community.

6

75. If held in detention, they had the opportunity to consult confidentially

7 with retained counsel.

8 III. Implementation of MPP

9

76. On December 20, 2018, DHS announced the commencement of MPP.

10

77. Under MPP, DHS forces individuals and families who have come to

11 the United States from a non-contiguous country to seek asylum to return to Mexico

12 while their claims are adjudicated.

13

78. They must then find temporary refuge, shelter, and basic amenities in

14 Mexican border cities like Tijuana and Mexicali, where there are insufficient shelter

15 and resources to accommodate their needs.

16

79. DHS permits such individuals to enter the United States only for

17 periodic immigration court hearings that are scheduled weeks or months apart from

18 one another.

19

80. DHS applies MPP to individuals and families regardless of whether

20 they presented at a port of entry or were apprehended after entering the United

21 States without inspection.

22

81. On or about January 28, 2019, DHS began implementing MPP at the

23 San Ysidro port of entry.

24

82. Before forcing people back into Mexico pursuant to MPP, the

25 government purports to notify them of the date and time for their first immigration

26 court hearing.

27

28

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1

83. On the day of their hearing, individuals and families subject to MPP

2 must present themselves for court at the port of entry hours before their immigration

3 court hearing.

4

84. Individuals subject to MPP whose removal proceedings are before the

5 San Diego immigration court must present themselves for court at the San Ysidro

6 port of entry as early as 4:00 a.m.

7

85. CBP then brings individuals and families into the United States, and

8 ICE transports them, dozens at a time, to the immigration court hearing. Throughout

9 this time, individuals are under the control and custody of DHS.

10

86. At the conclusion of the court hearing, DHS ordinarily returns MPP

11 respondents to Mexico to await their next hearing.

12

87. On the date of their next hearing, the process repeats.

13 IV. Defendants’ Duty of Non-Refoulement in the Context of MPP

14

88. Individuals and families seeking asylum and forced into MPP are often

15 extremely vulnerable and subject to grave danger in Mexico.

16

89. Individuals and families seeking asylum and forced into MPP have

17 experienced rape, kidnappings, robbery, and other serious harm in Mexico.

18

90. By policy and practice, Defendants do not affirmatively ask asylum

19 seekers whether they fear harm or face persecution or torture in Mexico before

20 forcing them into MPP.

21

91. If persons seeking asylum express a fear of return to Mexico, they are

22 referred for a non-refoulement interview with a USCIS asylum officer to determine

23 whether they are more likely than not to face persecution or torture in Mexico.

24

92. Once individuals claim a fear of return to Mexico, in an immigration

25 court hearing or otherwise, Defendants detain them up to a week or more until the

26 non-refoulement interview occurs.

27

28

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1

93. During such detention, individuals claiming a fear of return to Mexico

2 do not have the opportunity to communicate confidentially with retained counsel, by

3 telephone or in person, to prepare for non-refoulement interviews.

4

94. When detained pursuant to MPP, Plaintiffs and class members

5 awaiting non-refoulement interviews are not in primary or secondary inspection.

6

95. Non-refoulement interviews involve discussion of trauma-triggering

7 facts that subject MPP respondents to revictimization.

8

96. Non-refoulement interviews also involve highly complex legal

9 questions. For example, to discern the likelihood of persecution in Mexico, asylum

10 officers assess MPP respondents’ credibility, whether they have suffered past harm

11 and, if so, whether the harm suffered rises to the level of persecution and occurred or

12 is likely to occur on account of race, religion, nationality, political opinion, or

13 membership in a particular social group.

14

97. Asylum officers must also determine whether the entity that inflicted

15 the harm was an agent of the Mexican government or an entity the Mexican

16 government is unable to or unwilling to control.

17

98. Asylum officers must also determine whether the individual

18 interviewed is subject to any bars to withholding of removal.

19

99. In the absence of past harm, asylum officers must assess whether the

20 respondent’s life or freedom would be threatened in Mexico.

21

100. Regarding fear of torture in Mexico, asylum officers must assess

22 whether the respondent would be subject to severe physical or mental pain or

23 suffering and whether the harm would be inflicted by, instigated by, consented to, or

24 acquiesced to by a public official or any other person acting in an official capacity,

25 and while the respondent is in such entities’ custody or physical control.

26

101. Finally, asylum officers must determine whether the harm would be

27 specifically intended to hurt the individual or families being interviewed, and

28

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1 whether the harm would arise from or be inherent in or incidental to lawful

2 sanctions.

3

102. At the conclusion of non-refoulement interviews, asylum officers

4 render their decisions, which are reviewed by supervisory asylum officers.

5 Thereafter, USCIS provides their decisions to CBP.

6

103. Defendants prohibit attorney presence during or participation in non-

7 refoulement interviews for persons subject to MPP.

8

104. If USCIS determines after a non-refoulement interview that individuals

9 or families are more likely than not to be persecuted on account of a protected

10 ground or tortured if returned to Mexico, the individuals or families will be removed

11 from MPP and may be released or detained pending the conclusion of their removal

12 proceedings.

13

105. If USCIS does not so determine, the individuals and families are

14 returned to Mexico and forced to remain in MPP.

15

106. The non-refoulement interview determines where individuals will be

16 physically located while they go through removal proceedings, but it is not part of

17 the removal proceedings themselves.

18

107. Denial of access to counsel before and during non-refoulement

19 interviews is unreviewable and constitutes the agency’s final action regarding access

20 to counsel. An immigration judge does not review the issue of access to counsel

21 before and during a non-refoulement interview, and that issue is not made part of the

22 record of proceedings in the removal proceedings. The denial of access to counsel

23 before and during a non-refoulement interview cannot be reviewed in a petition for

24 review of a final order of removal

25

108. A non-refoulement decision is unreviewable and constitutes the

26 agency’s final action regarding the claim of fear of return to Mexico within MPP.

27 An immigration judge does not review the non-refoulement decision, which is not 28

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1 made part of the record of proceedings in the removal proceedings. The decision

2 cannot be reviewed in a petition for review of a final order of removal.

3

4

V.

Instead of Providing Access to Counsel, Defendants Subject Plaintiffs to Deplorable Detention Conditions

5

109. DHS conducts non-refoulement interviews in CBP facilities, including

6 at ports of entry and Border Patrol stations.

7

110. For individuals who express fear of return to Mexico at an immigration

8 court hearing, DHS transports them to await their interview at the port of entry or

9 Border Patrol stations.

10

111. Officials at the port of entry or Border Patrol stations contact USCIS to

11 schedule the interview.

12

112. After being transported to CBP facilities for non-refoulement

13 interviews, individuals and families, including small children, disappear into CBP

14 facilities and many go completely incommunicado for days or weeks.

15

113. CBP has a policy and practice of denying requests for in-person visits

16 or confidential telephonic communication with counsel at its holding facilities,

17 including Border Patrol stations.

18

114. This is consistent with CBP’s larger policy and practice of denying

19 attorneys confidential visitation or telephonic communication with their clients in

20 CBP custody in California, if not everywhere in the United States.

21

115. Individuals describe CBP hieleras as freezing cold facilities, holding

22 up to 100 other people in an extremely compact space with little room to walk or lie

23 down.

24

116. Hielera cells usually contain a single toilet and sink that are exposed to

25 all in the holding area.

26

117. Parents of infants and toddlers report being reprimanded for requesting

27 basic necessities like diapers or formula.

28

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1

118. Individuals report being exposed to illnesses and children contracting

2 lice and suffering from anxiety in the extremely overcrowded space. They also

3 report rarely being given access to showers, if at all, and being denied toothpaste,

4 hygiene products, and the ability to change their clothing during the several days

5 they are detained.

6

119. While detained in the hieleras, individuals do not have an opportunity

7 to make confidential phone calls to their retained counsel.

8

120. Defendants do not affirmatively inform lawyers where their clients are

9 detained and they refuse to respond to the lawyers’ requests for such information.

10

121. As a result, lawyers are unable to locate, visit, or make confidential

11 phone calls with their clients to provide counsel and prepare them for the high-

12 stakes non-refoulement interviews.

13

122. CBP officials berate and ridicule individuals who assert their right to

14 telephone their lawyers. In one case, in response to a mother detained with her 10-

15 year-old son who asked to speak with her lawyer prior to her non-refoulement

16 interview, a Border Patrol agent reportedly shouted, “I don’t give a fuck! Who do

17 you think you are that you can call your attorney?!”

18 VI. Defendants’ Non-Refoulement Interview Procedures in California

19

123. In California, USCIS conducts non-refoulement interviews

20 telephonically, with the respondents in a small windowless room and an asylum

21 officer on the telephone.

22

124. Pursuant to its written policy, DHS refuses to allow individuals and

23 families with lawyers to have their lawyers present during the interview. Asylum

24 officers do not ask if they have lawyers or want them present.

25

125. When individuals affirmatively request to have their lawyers present,

26 asylum officers refuse the request.

27

126. Typically, DHS informs individuals and families whether they will be

28 returning to Mexico or released from MPP hours or days later. DHS does not

16

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1 provide any documentation memorializing the result of the non-refoulement

2 interview or decision-making process.

3

127. DHS also refuses to provide information to lawyers, who usually do

4 not learn what happened to their clients until after they have been released—either

5 returned to Mexico if they did not pass the non-refoulement interview, or granted

6 entry into or detained within the United States if they did. DHS does not provide

7 the lawyers documents or any explanation for the decision.

8

128. Without the opportunity for meaningful and confidential

9 communication with counsel, individuals who undergo non-refoulement interviews 10 fail to understand the elaborate legal framework under which USCIS is judging their

11 claims. They do not know under which part of that framework UCSIS believes their

12 cases may fall short and require additional testimony. They do not know whether

13 they may volunteer additional or unsolicited testimony relevant to their claims. Even

14 if they know that they may do so, they do not know what additional information

15 would be relevant to volunteer. Many are so traumatized that they experience

16 difficulty remembering to voluteer information.

17

129. The presence of a lawyer to elicit relevant information during the

18 interview would ensure a full record by eliciting testimony that adjudicators may

19 overlook and asylum seekers lacking background in U.S. immigration law do not

20 know they should volunteer.

21

130. The ability to confidentially consult with a lawyer prior to the

22 interview would ensure individuals are better prepared to present all relevant

23 information to the asylum officer, thereby creating a full record.

24

131. The denial of confidential access to counsel before non-refoulement

25 interviews and the refusal to allow attorneys to participate in such interviews

26 increases the risk that individuals and families who face a likelihood of persecution

27 or torture will be wrongfully returned to Mexico.

28

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1

132. To provide such access to and participation by counsel would impose

2 little or no burden on Defendants compared to the gravity of the interests at stake for

3 persons facing a forced return to Mexico and the risk of error arising from denial of

4 such access to and participation by counsel.

5

133. To the extent Defendants might be burdened by allowing detained

6 individuals subject to MPP to have confidential access to counsel before non-

7 refoulement interviews or the participation of counsel during such interviews, any 8 such burden is a problem of Defendants’ own making by virtue of electing to

9 implement the MPP program or detain persons who express fear of return to Mexico

10 under that program.

11 VII. Access to Counsel is Required in Similar Adjudications

12

134. The legal standard that the government asserts applies to MPP non-

13 refoulement procedures is whether it is more likely than not that the alien would be

14 persecuted in Mexico on account of his or her race, religion, nationality,

15 membership in a particular social group, or political opinion or would more likely

16 than not be tortured.

17

135. That standard is the same as or similar to the legal standards for

18 granting withholding of removal pursuant to the INA or the Convention Against

19 Torture (“CAT”). 8 U.S.C. § 1231(b).

20

136. According to Defendants, non-refoulement interviews are carried out

21 pursuant to standards and procedures that are nearly identical to those regulating

22 CFIs and Reasonable Fear Interviews (“RFIs”). 8 C.F.R. §§ 208.30(d); 208.31(c).

23

137. For example, MPP’s implementing guidance provides the USCIS

24 officer should conduct the non-refoulement interview in a non-adversarial manner,

25 separate and apart from the general public. The purpose of the interview is to elicit

26 all relevant and useful information bearing on whether the alien would more likely

27 than not face persecution.

28

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1

138. By comparison, the CFI regulations provide asylum officers “will

2 conduct the interview in a non-adversarial manner, separate and apart from the

3 general public. The purpose of the interview shall be to elicit all relevant and useful

4 information….” 8 C.F.R. § 208.30(d).

5

139. Similarly, the RFI regulations provide asylum officers “shall conduct

6 the interview in a non-adversarial manner, separate and apart from the general

7 public.” 8 C.F.R. § 208.31(c).

8

140. The statute and regulations governing CFIs, RFIs, and applications for

9 withholding of removal—all of which involve adjudication of persecution or torture

10 claims—all provide for access to counsel or a representative of the individual’s

11 choosing before and during the interviews or hearings. 8 U.S.C. § 1225(b)(1)(B); 8

12 C.F.R. §§ 292.5(b); 208.30(d)(4); 208.31(c).

13

141. DHS, through its practice, acknowledges that individuals, including

14 those in DHS custody, have a right to confidentially consult with counsel before

15 such adjudications.

16

142. In criminal cases, this Court has required CBP to provide attorneys

17 access to their clients in ports of entry and Border Patrol stations within its

18 jurisdiction, notwithstanding any assertions of limited capacity and resources.

19 Provision of such access has not meaningfully impacted Defendants’ ability to

20 orderly and efficiently process individuals.

21

143. However, Defendants prohibit all confidential access to retained

22 counsel for persons in their custody before non-refoulement interviews conducted 23 under MPP and prohibit retained counsel from being present during and

24 participating in such non-refoulement interviews. 25

26

27

28

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1

CLASS ACTION ALLEGATIONS

2 I. 3
4

Defendants’ Policy and Practice of Denying Access to Counsel to MPP Respondents Awaiting and Undergoing Non-Refoulement Interviews
144. Defendant DHS has a written policy mandating a blanket denial of

5 access to counsel to individuals subject to MPP who are in its custody while

6 awaiting and during non-refoulement interviews.

7

145. Defendant CBP has a longstanding policy and practice of denying

8 attorneys visitation or confidential communication with their clients who are

9 detained in ports of entry and Border Patrol stations in California.

10

146. Defendant CBP detains all individuals referred for non-refoulement

11 interviews, and it holds them for up to a week or more under the conditions

12 described above.

13

147. Since MPP has been implemented, Plaintiffs and numerous other

14 individuals represented by counsel have been held in CBP custody in California

15 while awaiting non-refoulement interviews.

16

148. They have all been denied confidential communication with their

17 attorneys during their confinement, as well as the participation and representation of

18 their attorneys during their non-refoulement interviews.

19

149. As long as MPP is in operation, Defendants will continue to take

20 individuals represented by counsel into CBP custody in California for non-

21 refoulement interviews, deny such individuals confidential communication with

22 their attorneys before such interviews, and deprive such individuals of the presence

23 or participation of their attorneys during the interviews.

24 II. This Case Meets the Requirements of Federal Rule of Civil Procedure 23

25

150. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(a) and

26 23(b)(2) on behalf of themselves and all other persons similarly situated.

27

28

20

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1

151. The proposed class is defined as follows:

2

All individuals who are detained in CBP custody in California

3

athweagitoinvgeronrmuenndtecraglolsintghen“oMn-irgerfaonutlePmroetnetcitniotenrvPireowtoscpoulsr”suparnotgtroamwhaantd

4

who have retained lawyers.

5

152. The proposed class is so numerous and membership in the class so

6 fluid or transitory that joinder of all members is impracticable.

7

153. Through September 2019, about 380 individuals forced into the MPP

8 program whose cases are before the San Diego immigration court have been

9 represented by counsel.

10

154. All members of the class are equally subject to Defendants’ policy and

11 practice of denying access to counsel while awaiting and during MPP non-

12 refoulement interviews.

13

155. Common questions of law or fact exist as to all class members,

14 including but not necessarily limited to the following:

15

a. whether they are detained in CBP custody awaiting non-refoulement

16

interviews as part of MPP;

17

b. whether they are denied confidential visitation or communication with

18

retained counsel while in custody awaiting the interviews;

19

c. whether they are denied the participation or representation of their

20

attorneys in the interviews;

21

d. whether such denial of access to counsel violates the APA;

22

e. whether such denial of access to counsel violates the INA;

23

f. whether such denial of access to counsel violates the procedural

24

component of the Due Process Clause of the Fifth Amendment;

25

g. whether such denial of access to counsel violates the substantive

26

component of the Due Process Clause of the Fifth Amendment; and

27

h. whether such denial of access to counsel violates the First

28

Amendment;

21

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1

156. Plaintiffs’ claims are typical of the claims of the class as a whole,

2 because both Plaintiffs and the class members have been similarly detained in CBP

3 custody and denied access to counsel while awaiting and during MPP non-

4 refoulement interviews.

5

157. Plaintiffs will fairly and adequately represent the interests of the class.

6 Plaintiffs have no interests separate from those of the class with respect to the claims

7 and issues in this case.

8

158. Counsel for Plaintiffs are experienced in complex class action, civil

9 rights, and immigrants’ rights litigation.

10

159. Defendants have acted or refused to act on grounds generally

11 applicable to the class by refusing to allow confidential access to retained counsel

12 while individuals await MPP non-refoulement interviews and refusing to allow

13 retained counsel to be present or participate in the interviews themselves, thereby

14 making final injunctive and declaratory relief appropriate with respect to the class as

15 a whole.

16

CLAIMS FOR RELIEF

17

FIRST CLAIM

Violation of Statutory Right to Counsel

18

160. Plaintiffs repeat and reallege all the allegations above and incorporate

19 them by reference here.

20

161. Under the APA, a “person compelled to appear in person before an

21 agency or representative thereof is entitled to be accompanied, represented, and

22 advised by counsel….” 5 U.S.C. § 555(b).

23

162. Plaintiffs and the class they seek to represent are compelled to appear

24 before an agency for non-refoulement interviews and are denied the accompaniment,

25 representation, and advice of counsel before and during such interviews, in violation

26 of the APA.

27

163. No other statute, including the INA, has superceded the APA’s right to

28 counsel in the context of non-refoulement interviews. 5 U.S.C. § 559.

22

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1

164. In the alternative, if the INA does supercede the APA’s right to

2 counsel, then Defendants’ policies and practices violate the statutory right to counsel

3 contained in the INA. 8 U.S.C. §§ 1229a(b)(4)(A), 1362.

4

165. As a proximate result of Defendants’ violations of the statutory right to

5 counsel, Plaintiffs are suffering and will continue to suffer a significant deprivation

6 of their right to counsel while detained and awaiting or undergoing non-refoulement

7 interviews. Plaintiffs have no plain, adequate or complete remedy at law to address

8 the wrongs described herein. The relief sought by Plaintiffs is necessary to prevent

9 continued and future irreparable injury.

10

SECOND CLAIM

11

Violation of § 706(2) of APA for Agency Action that is in Excess of Statutory Authority, Not in Accordance with Law, and Arbitrary and Capricious

12

166. Plaintiffs repeat and reallege all the allegations above and incorporate

13 them by reference here.

14

167. Under the APA, courts “shall . . . hold unlawful and set aside agency

15 action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in

16 accordance with law” or “in excess of statutory jurisdiction, authority, or limitations,

17 or short of statutory right.” 5 U.S.C. § 706(2).

18

168. Defendants’ policy and practice of denying access to counsel as

19 described herein is final agency action and otherwise meets the APA’s prerequisites

20 for judicial review.

21

169. Every non-refoulement decision for each Plaintiff and class member is

22 also final agency action regarding their refoulement claims.

23

170. Defendants’ policy and practice of denying access to counsel in non-

24 refoulement interviews is in excess of statutory authority and not in accordance with

25 law because it violates Plaintiffs’ statutory and constitutional right to counsel.

26

171. Defendants’ policy and practice is arbitrary and capricious because it

27 creates arbitrary distinctions between MPP non-refoulement interviews and nearly

28 identical fear determination procedures that require access to counsel and because

23

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1 there is no rational connection between the policy and Defendants’ stated

2 justifications for it.

3

172. As a proximate result of Defendants’ violations of § 706(2) of the

4 APA, Plaintiffs are suffering and will continue to suffer a significant deprivation of

5 their right to counsel while detained and awaiting or undergoing non-refoulement

6 interviews. Plaintiffs have no plain, adequate or complete remedy at law to address

7 the wrongs described herein. The relief sought by Plaintiffs is necessary to prevent

8 continued and future irreparable injury.

9

THIRD CLAIM

10

Violation of Procedural Due Process

11

173. Plaintiffs repeat and reallege all the allegations above and incorporate

12 them by reference here.

13

174. The Due Process Clause of the Fifth Amendment to the U.S.

14 Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or

15 property, without due process of law.” U.S. Const. amend. V.

16

175. Once immigration detainees have retained counsel, procedural due

17 process requires that they have adequate opportunities to visit and communicate

18 with their lawyers confidentially.

19

176. Once immigration detainees have retained counsel, procedural due

20 process requires that their attorneys be allowed to participate in proceedings such as

21 non-refoulement interviews.

22

177. Defendants are violating procedural due process by refusing to allow

23 detainees to communicate confidentially with their lawyers before non-refoulement

24 interviews and refusing to allow their lawyers to participate in such interviews.

25

178. As a proximate result of Defendants’ violations of the procedural

26 component of the Due Process Clause, Plaintiffs are suffering and will continue to

27 suffer a significant deprivation of their right to counsel while detained and awaiting

28 or undergoing non-refoulement interviews. Plaintiffs have no plain, adequate or

24

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1 complete remedy at law to address the wrongs described herein. The relief sought by

2 Plaintiffs is necessary to prevent continued and future irreparable injury.

3

FOURTH CLAIM

4

Violation of Substantive Due Process

5

179. Plaintiffs repeat and reallege all the allegations above and incorporate

6 them by reference here.

7

180. The Due Process Clause has a substantive component prohibiting the

8 government from taking certain actions under any circumstances.

9

181. Pretrial detainees have a substantive due process right not to be housed

10 under conditions of confinement that amount to punishment.

11

182. Conditions of confinement are presumed to amount to punishment if

12 they are identical to, similar to, or more restrictive than those under which pretrial

13 criminal detainees are held, or if the individual is detained under conditions more

14 restrictive than those he or she would face upon commitment.

15

183. Conditions of confinement that unreasonably restrict civil detainees’

16 ability to consult with their attorneys and to prepare their defense are

17 unconstitutional.

18

184. Defendants are violating substantive due process by refusing to allow

19 detainees to communicate confidentially with their lawyers before non-refoulement

20 interviews and refusing to allow their lawyers to participate in such interviews.

21

185. As a proximate result of Defendants’ violations of the substantive

22 component of the Due Process Clause, Plaintiffs are suffering and will continue to

23 suffer a significant deprivation of their right to counsel while detained and awaiting

24 or undergoing non-refoulement interviews. Plaintiffs have no plain, adequate or

25 complete remedy at law to address the wrongs described herein. The relief sought by

26 Plaintiffs is necessary to prevent continued and future irreparable injury.

27

28

25

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1

FIFTH CLAIM Violation of the First Amendment

2

of the United States Constitution

3

186. The First Amendment guarantees the freedom of speech to all

4 persons—including detainees. This protection encompasses the right to make

5 telephone calls, exchange correspondence, and receive in-person visitors.

6

187. Immigrant detainees held pending a non-refoulement interview possess

7 a First Amendment right to receive legal advice from their retained counsel.

8

188. Defendants’ policy and practice of denying individuals detained

9 pending non-refoulement interviews confidential access to their retained counsel

10 violates the detainees’ First Amendment right to receive their counsel’s legal advice.

11

189. As a proximate result of Defendants’ violations of the First

12 Amendment, Plaintiffs are suffering and will continue to suffer a significant

13 deprivation of their right to counsel while detained and awaiting or undergoing non-

14 refoulement interviews. Plaintiffs have no plain, adequate or complete remedy at

15 law to address the wrongs described herein. The relief sought by Plaintiffs is

16 necessary to prevent continued and future irreparable injury.

17

PRAYER FOR RELIEF

18 WHEREFORE, Plaintiffs-Petitioners respectfully request that the Court:

19

a. Issue an order certifying this case as a class action pursuant to Rule 23

20

of the Federal Rules of Civil Procedure;

21

b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the

22

Federal Rules of Civil Procedure;

23

c. Issue a judgment declaring that Defendants’ policies, practices, acts,

24

and omissions described herein as applied to Plaintiffs and the class

25

members violate:

26

i. The statutory right to counsel under the APA or INA;

27

ii. Section 706(2) of the APA;

28

26

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1

iii. The procedural component of the Due Process Clause of the

2

Fifth Amendment;

3

iv. The substantive component of the Due Process Clause of the

4

Fifth Amendment; and

5

v. The First Amendment.

6

d. Preliminarily and permanently enjoin Defendants, their officers,

7

agents, servants, employees, attorneys, and all other persons in active

8

concert or participation with any of the foregoing persons from

9

preventing confidential legal visits or otherwise interfering with

10

confidential attorney-client communications between attorneys and the

11

Plaintiffs and class members they represent, blocking participation of

12

lawyers representing Plaintiffs and class members in their clients’ non-

13

refoulement interviews, and otherwise engaging in the unlawful

14

policies, practices, acts, and omissions causing the violations of law

15

described herein, and order such relief as necessary to cure such

16

violations;

17

e. Issue a writ of habeas corpus commanding the release of Plaintiffs and

18

the class members from detention if Defendants are unable to comply

19

with their constitutional and statutory obligations as described herein;

20

f. Isssue an immediate order requiring DHS officials to provide lawyers

21

representing Plaintiffs Cristian and Diana with their clients’ location

22

information, permit confidential attorney-client communication

23

between Plaintiffs and their attorneys while in CBP custody, and

24

permit attorneys’ participation in Plaintiffs’ non-refoulement

25

interviews;

26

g. Issue an Order permitting Plaintiffs Cristian and Diana to proceed

27

under pseudonym;

28

27

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1

h. Grant Plaintiffs their reasonable attorneys’ fees and expenses pursuant

2

to 28 U.S.C. § 2412, and other applicable law; and

3

i. Grant such other relief as this Court deems just and proper.

4

5

6

DATED: November 5, 2019

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES

7

s/ Monika Y. Langarica

8

9

MONIKA Y. LANGARICA JONATHAN MARKOVITZ

10

BARDIS VAKILI DAVID LOY

11

Attorneys for Plaintiffs-Petitioners

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

28

 
 Case 3:19-cv-02119-DMS-AGS Document 39 Filed 01/14/20 PageID.1234 Page 1 of 19

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 CRISTIAN DOE, DIANA DOE,

Case No.: 19-cv-2119-DMS (AGS)

12 13 v.

Petitioners-Plaintiffs, ORDER GRANTING MOTION FOR CLASS CERTIFICATION

14 CHAD F. WOLF, Acting Secretary of
15 Homeland Security; et al., Respondents-Defendants.
16

17

18

Pending before the Court is Petitioners’ motion for class certification. Petitioners,

19 on behalf of themselves and putative class members, allege Respondents have a practice or

20 policy of prohibiting asylum seekers access to retained counsel prior to and during non-

21 refoulement interviews. Petitioners seek to certify a class of similarly situated individuals

22 for whom injunctive relief can be entered allowing for such access to retained counsel.

23

On November 12, 2019, the Court granted Petitioners’ motion for temporary

24 restraining order (“TRO”) and ordered Respondents to allow Petitioners access to their

25 retained counsel prior to and during their non-refoulement interviews. Doe v. McAleenan,

26 --- F. Supp. 3d ---, 2019 WL 6605880, at *5 (S.D. Cal. Nov. 12, 2019). Since the issuance

27 of that Order, the parties have fully briefed the issue of class certification, and the Court

28

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1 has heard the arguments of counsel. For the reasons set forth below, the Court grants

2 Petitioners’ motion for class certification.

3

I.

4

DISCUSSION1

5

Petitioners Cristian and Diana Doe and their five children fled their home country of

6 Guatemala in April of 2019. (Mot. for TRO at 14). While traveling through Mexico,

7 Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped

8 of their clothing. (Id.). Upon reaching the United States, Petitioners immediately requested

9 asylum. (Id.).

10

Pursuant to the Migrant Protection Protocols Program (“MPP” or “Remain in

11 Mexico”), a program instituted in January of 2019, Respondents returned Petitioners to

12 Mexico to await their immigration proceedings. (Id.). While in Tijuana, the family

13 survived a shoot-out that occurred outside their temporary shelter. (Id. at 15). Because of

14 this violence and the trauma Petitioners experienced while traveling through Mexico,

15 Petitioners expressed a fear of returning to Mexico during an immigration court

16 proceeding. (Id. at 19). Petitioners were given a non-refoulement interview—which

17 assesses whether there is a likelihood the asylum seeker will face persecution or torture

18 upon return to Mexico—by a United States Citizenship and Immigration Services

19 (“USCIS”) Asylum Officer. (Resp. in Opp’n to Prelim. Inj., Declaration of Ashley Caudill-

20 Mirillo (“Caudill-Mirillo Decl.”), at ¶ 5). Petitioners did not pass the non-refoulement

21 interview. (Id.). Petitioners expressed a fear of returning to Mexico again at a later

22 immigration court hearing. (Id.). Pursuant to Respondents’ policy, Petitioners were denied

23

24

25

26 1 The factual background set out herein is abbreviated. A full discussion of the facts

27 relevant to this lawsuit is set out in the Order granting Petitioners’ motion for a classwide

28

preliminary injunction filed concurrently herewith and Order granting Petitioners’ motion for TRO. Doe, 2019 WL 6605880, at *1–2.

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1 access to their retained counsel prior to and during their non-refoulement interview. (Mot.

2 for Class Certification at 14).

3

Petitioners filed suit against Respondents, alleging their policy violated the

4 Administrative Procedures Act (“APA”), the Immigration and Nationality Act (“INA”),

5 and the First and Fifth Amendments to the United States Constitution. (Class Action

6 Compl. and Petition for Writ of Habeas Corpus, ECF No. 1). Petitioners also filed motions

7 for TRO and class certification. The Court granted Petitioners’ motion for TRO, enjoining

8 Respondents from prohibiting Petitioners access to retained counsel prior to and during

9 their non-refoulement interview. Doe, 2019 WL 6605880, at *1. With counsel present,

10 Petitioners ultimately passed their second non-refoulement interview. (Caudill-Mirillo

11 Decl. ¶ 5). Petitioners are still awaiting the outcome of their asylum case but are no longer

12 within the MPP. (Rep. in Supp. of Prelim. Inj., Declaration of Stephanie Blumberg

13 (“Blumberg Decl.”), at ¶ 9).

14

Petitioners, on behalf of themselves and putative class members, request certification

15 of the following class:

16

All individuals who are detained in CBP custody in California awaiting or

17

undergoing non-refoulement interviews pursuant to what the government

18

calls the “Migrant Protection Protocols” program and who have retained

lawyers.

19

20 (Mot. for Class Certification at 2). Petitioners argue this proposed class meets the

21 requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2). Defendants argue

22 these requirements are not met, Petitioners lack standing, and the class certification motion

23 is moot. (Resp. in Opp’n to Class Certification at 6). The only claim currently at issue and

24 subject to class certification is Petitioners’ APA claim.2 Petitioners’ pending motion for

25 classwide preliminary injunction is addressed in a separate order.

26

27 2 As noted in the Order granting Petitioners’ motion for classwide preliminary injunction,
28 the Court declines to address the balance of Petitioners’ statutory and constitutional claims

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1

2 A. Legal Standard

3

“The class action is ‘an exception to the usual rule that litigation is conducted by and

4 on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

5 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). To qualify

6 for the exception to individual litigation, the party seeking class certification must provide

7 facts sufficient to satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b).

8 Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308–09 (9th Cir. 1977). “The Rule ‘does

9 not set forth a mere pleading standard.’ ” Comcast Corp. v. Behrend, 569 U.S. 27, 33

10 (2013) (quoting Dukes, 564 U.S. at 350). “Rather, a party must not only ‘be prepared to

11 prove that there are in fact sufficiently numerous parties, common questions of law or fact,’

12 typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a).

13 The party must also satisfy through evidentiary proof at least one of the provisions of Rule

14 23(b)[.]” Id. (quoting Dukes, 564 U.S. at 350) (internal citation omitted).

15

Federal Rule of Civil Procedure 23(a) sets out four requirements for class

16 certification—numerosity, commonality, typicality, and adequacy of representation. A

17 showing that these requirements are met, however, does not warrant class certification. The

18 plaintiff also must show that one of the requirements of Rule 23(b) is met.

19

Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or

20 refused to act on grounds that apply generally to the class, so that final injunctive relief or

21 corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R.

22 Civ. P. 23(b)(2). Because the relief requested in a Rule 23(b)(2) class is prophylactic,

23 inures to the benefit of each class member, and is based on accused conduct that applies

24 uniformly to the class, notice to absent class members and an opportunity to opt out of the

25 class are not required. See Dukes, 564 U.S. at 361–62 (noting relief sought in a Rule

26

27

28

under the INA and the First and Fifth Amendments to the United States Constitution in light of Petitioners’ likelihood of success on their APA claim.

4 19-cv-2119-DMS (AGS)

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1 23(b)(2) class “perforce affect[s] the entire class at once” and thus, the class is “mandatory”

2 with no opportunity to opt out).

3

The district court must conduct a rigorous analysis to determine whether the

4 prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).

5 It is a well-recognized precept that “the class determination generally involves

6 considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s

7 cause of action.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting

8 Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)). However, “[a]lthough

9 some inquiry into the substance of a case may be necessary to ascertain satisfaction of the

10 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision

11 on the merits at the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d

12 475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. U.S. Steel Corp., 709 F.2d

13 675, 680 (11th Cir. 1983) (plaintiff’s burden “entails more than the simple assertion of

14 [commonality and typicality] but less than a prima facie showing of liability”) (citation

15 omitted). Rather, a court’s review of the merits should be limited to those aspects relevant

16 to making the certification decision on an informed basis. See Fed. R. Civ. P. 23 advisory

17 committee’s notes. If a court is not fully satisfied that the requirements of Rule 23(a) and

18 (b) have been met, certification should be refused. Falcon, 457 U.S. at 161.

19

Before turning to the requirements of Rule 23(a), the Court addresses Respondents’

20 arguments that Petitioners lack standing, and that Petitioners’ claim is moot.

21 B. Article III Standing

22

Standing is decided as of the “outset of the litigation.” Friends of the Earth, Inc. v.

23 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Thus, in determining whether

24 Petitioners have standing, the Court “must look at the facts as they exist at the time the

25 complaint was filed.” Slayman v. FedEx Ground Package Sys., Inc., 765 F.3d 1033,1047

26 (9th Cir. 2014) (internal quotation omitted). In a class action, like here, standing is satisfied

27 “if at least one named plaintiff meets the requirements.” Bates v. United Parcel Serv., 511

28 F.3d 974, 985 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.

5 19-cv-2119-DMS (AGS)

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1 2001)). Standing requires Petitioners to show (1) they have suffered injury-in-fact—“an

2 invasion of a legally protected interest which is (a) concrete and particularized, and (b)

3 actual or imminent, not conjectural or hypothetical,” (2) a causal connection between the

4 injury and the conduct complained of, and (3) redressability. Lujan v. Defenders of

5 Wildlife, 504 U.S. 555, 561 (1992).

6

Respondents contend Petitioners lack standing because Petitioners are no longer at

7 risk of being returned to Mexico under the MPP. (Resp. in Opp’n to Class Certification at

8 12–13). Petitioners argue Respondents’ argument confuses two separate doctrines:

9 standing and mootness. (Rep. in Supp. of Class Certification at 3).

10

The doctrine of standing addresses whether the party invoking federal court

11 jurisdiction has “[t]he requisite personal interest” in the outcome of the case “at the

12 commencement of the litigation.” Blair v. Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994)

13 (internal quotations omitted). The doctrine of mootness addresses whether the party’s

14 personal interests “continue[s] throughout [the litigation’s] existence.” Id. (internal

15 quotations omitted). In other words, “mootness [is] ‘the doctrine of standing set in a time

16 frame.’ ” Id. at 1518–19 (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397

17 (1980)).

18

As applied here, standing asks whether Petitioners had a personal stake in the

19 outcome of the litigation at the time they filed their Complaint. Clearly, Petitioners have

20 standing: Petitioners suffered the injury of being deprived access to retained counsel prior

21 to and during their non-refoulement interview, the injury was caused by Respondents’

22 policy prohibiting access to counsel, and the injury can be redressed by an injunction

23 enjoining Respondents from implementing their policy. See Lujan, 504 U.S. at 561. The

24 fact that Petitioners are no longer in the MPP does not change this analysis.

25

Petitioners need not demonstrate a “real or immediate threat that [Respondents] will

26 again subject [them] to [the MPP].” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260,

27 1264 (9th Cir. 1999) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105–10 (1983)).

28 Cases like B.C. and Lyons are not applicable to Petitioners’ case, for those cases concern

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1 plaintiffs who were not being subjected to the challenged policies at the time they filed

2 their complaint. In B.C., the plaintiff was a student challenging the school’s practice of

3 using dogs to sniff for drugs on the school campus. Id. at 1263. The plaintiff sought

4 injunctive relief, and the court dismissed his claim for lack of standing, noting he could not

5 “demonstrate a real or immediate threat that defendants will again subject him to an illegal

6 dog sniff of his person.” Id. at 1264. Similarly, in Lyons, the plaintiff sought injunctive

7 relief to enjoin Los Angeles police from illegally using chokeholds, and the Supreme Court

8 held the plaintiff lacked standing because he could not show he was “likely to suffer future

9 injury from the use of the chokeholds by police officers.” Lyons, 461 U.S. at 97–98, 105.

10

Unlike the plaintiffs in B.C. and Lyons, Petitioners sought injunctive relief while

11 being subjected to the practice they were challenging. Petitioners were not challenging

12 “[p]ast exposure to illegal conduct.” (Resp. in Opp’n to Class Certification at 13).

13 Petitioners’ injury—deprivation of the right to retained counsel—was concrete, actual, and

14 continuing at the time they filed their Complaint and moved for TRO. It was neither

15 speculative nor hypothetical. Petitioners, therefore, do not need to show a real or

16 immediate threat that they will again be subjected to the MPP and deprived of access to

17 retained counsel. Holding otherwise would drastically change the doctrine of standing.

18 C. Mootness

19

The doctrine of mootness, as explained above, requires that “an actual, ongoing

20 controversy exist at all stages of federal court proceedings.” Pitts v. Terrible Herbst, 653

21 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v. Barnes, 479 U.S. 361, 363 (1987)).

22 “Whether ‘the dispute between the parties was very much alive when suit was filed . . .

23 cannot substitute for the actual case or controversy that an exercise of this [c]ourt’s

24 jurisdiction requires.’ ” Id. (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). A case is

25 moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable

26 interest in the outcome” of the litigation. Powell v. McCormack, 395 U.S. 486, 496 (1969).

27 In a class action, however, the class claim “is not automatically moot because the named

28 representative’s claim is moot.” Kuahulu v. Empl’rs Ins. of Wausau, 557 F.3d 1334, 1336

7 19-cv-2119-DMS (AGS)

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1 (9th Cir. 1977) (citing Franks v. Bowman Transp. Co., 424 U.S. 747, 754 (1976)). “If the

2 district court certifies a class before the plaintiff’s claim becomes moot, ‘mooting the

3 putative class representative’s claim will not moot the class action.’ ” Slayman, 765 F.3d

4 at 1048 (quoting Pitts, 653 F.3d at 1090).

5

There is an exception to this rule for claims that “are so inherently transitory that the

6 trial court will not have even enough time to rule on a motion for class certification before

7 the proposed representative’s individual interest expires.” Pitts, 653 at F.3d at 1090.

8 Inherently transitory claims “will certainly repeat as to the class, either because ‘the

9 individual could nonetheless suffer repeated [harm]’ or because ‘it is certain that other

10 persons similarly situated’ will have the same complaint.” Id. (quoting Gerstein v. Pugh,

11 520 U.S. 103, 110 n.11 (1975)). “Such claims are ‘capable of repetition, yet evading

12 review,’ and thus do not become moot.” Slayman, 653 F.3d at 1048 (quoting Pitts, 653

13 F.3d at 1090). In these cases, the district court may apply the ‘relation back’ approach and

14 certify the class even after the named plaintiff’s claim becomes moot. Pitts, 653 F.3d at

15 1090; see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991) (holding that

16 even though “the class was not certified until after the named plaintiffs’ claims had become

17 moot,” the district court still had jurisdiction because the class claim was inherently

18 transitory); Sosna v. Iowa, 419 U.S. 393, 401 (1975) (holding that the controversy “remains

19 very much alive for the class of persons [the named plaintiff] has been certified to

20 represent” even if it was “no longer alive as to” the named plaintiff); Wade v. Kirkland,

21 118 F.3d 667, 670 (9th Cir. 1997) (noting that if the named plaintiff’s claim is inherently

22 transitory, then “the action qualifies for an exception to mootness even if there is no

23 indication that [the named plaintiff] or other current class members may again be subject

24 to the acts that gave rise to the claims”) (emphasis in original).

25

Petitioners contend their claim is inherently transitory because they were short-term

26 detainees whose claim expired quickly. (Rep. in Supp. of Class Certification at 4).

27 Respondents argue Petitioners’ claim does not qualify as inherently transitory because (1)

28 that exception is limited to cases in which there is a reasonable expectation that the plaintiff

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1 will be subjected to the same action again, (2) the Court had enough time to rule on

2 Petitioners’ motion for TRO, (3) Respondents do not have a litigation strategy in mooting

3 class members’ claims, and (4) Petitioners are not members of the class they are seeking

4 to certify. (Resp. in Opp’n to Class Certification at 14–16). These arguments are addressed

5 in turn.

6

First, Respondents argue the inherently transitory exception applies only if the

7 plaintiff will “be subjected to same action again.” Alvarez v. Hill, 667 F.3d 1061, 1064

8 (9th Cir. 2012) (holding that the individual plaintiff’s claim was not inherently transitory

9 because there was “no indication [he would] again be subject to the challenged prison

10 policies”) (emphasis added). Respondents are incorrect. In cases concerning class actions,

11 the named plaintiff need not be subjected to the same action again for the claim to be

12 inherently transitory. See Geraghty, 445 U.S. at 399 (noting that in Gerstein, there was

13 “no indication that the particular named plaintiffs might again be subject to pretrial

14 detention[,]” yet the Court held the case “not to be moot” because the claim was inherently

15 transitory); Gomez v. Campbell-Ewald Co., 805 F. Supp. 2d 923, 927–28 (C.D. Cal. 2011)

16 (noting the requirements of the inherently transitory exception for class claims include:

17 “(1) where the claim is ‘capable of repetition yet evading review’; and (2) where the claim

18 is so ‘inherently transitory’ that the trial court will not have enough time to rule on a motion

19 for class certification before the proposed named plaintiff's individual interest expires”).

20 The Court finds no controlling case law requiring it to first conclude Petitioners may be

21 subjected to the MPP and deprived of access to retained counsel again before it finds

22 Petitioners’ claim to be inherently transitory.

23

Next, Respondents contend the fact the Court ruled on Petitioners’ motion for TRO

24 undercuts Petitioners’ argument that their claim evades judicial review. Respondents

25 misconstrue the nature of inherently transitory claims. “The ‘inherently transitory’

26 rationale was developed to address circumstances in which the challenged conduct was

27 effectively unreviewable, because no plaintiff possessed a personal stake in the suit long

28 enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S.

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1 66, 76 (2013). Requiring an inherently transitory claim to expire before a court rules on a

2 TRO is too high of a standard and runs counter to long-standing case law. See McLaughlin,

3 500 U.S. at 52 (“Some claims are so inherently transitory that the trial court will not have

4 even enough time to rule on a motion for class certification before the proposed

5 representative's individual interest expires.”); Geraghty, 445 U.S. at 399 (same); Pitts, 653

6 F.3d at 1090 (same); Gomez, 805 F. Supp. at 927–28 (same).

7

Similarly, Respondents’ third argument—it is not their litigation strategy to moot

8 putative class members’ claims—also misapprehends the inherently transitory exception

9 to mootness. The defense does not need to have a litigation strategy of mooting class

10 members’ claims for the inherently transitory exception to apply. Although the inherently

11 transitory exception may apply when the defense is picking off class members, it by no

12 means is restricted to such fact patterns. See Pitts, 653 F.3d at 1091 (“Where, as here, a

13 defendant seeks to “buy off” the small individual claims of the named plaintiffs, the

14 analogous claims of the class—though not inherently transitory—become no less transitory

15 than inherently transitory claims.”).

16

Finally, Respondents argue that because Petitioners are no longer subjected to the

17 MPP and deprived of counsel, they are not class members and the class action cannot

18 proceed. As explained above, the inherently transitory doctrine is an exception to the

19 mootness doctrine—it only applies when a named plaintiff’s claim expires before a class

20 is certified. See Pitts, 653 F.3d at 1090. If Respondents’ argument was correct, then there

21 would be no set of a facts in which the exception could apply.

22

Contrary to Respondents’ arguments, Petitioners’ claim is inherently transitory.

23 Upon expressing a fear of returning to Mexico, Petitioners were placed in short-term

24 detention. (Mot. for TRO at 18). They sought an emergency TRO because they feared

25 their non-refoulement interview was “imminent.” (Id. at 11, 12). Petitioners’ fear was

26 correct—their non-refoulement interview was scheduled two days after the Court ruled on

27 the TRO. (Caudill-Mirillo Decl. at ¶ 5). It is clear the Court would not have had “enough

28

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1 time to rule on a motion for class certification before [Petitioners’] individual interest[s]

2 expire[d].” McLaughlin, 500 U.S. at 52.

3 D. Federal Rule of Civil Procedure 23(a)

4

Rule 23(a) and its prerequisites for class certification—numerosity, commonality,

5 typicality, and adequacy of representation—are addressed in turn.

6

1. Numerosity

7

Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is

8 impracticable.” Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.

9 2003). Petitioners need not state the exact number of potential class members; nor is a

10 specific minimum number required. Arnold v. United Artists Theatre Circuit, Inc., 158

11 F.R.D. 439, 448 (N.D. Cal. 1994). Rather, whether joinder is impracticable depends on

12 the facts and circumstances of each case. Id.

13

Petitioners assert that, from January to September of 2019, at least 380 individuals,

14 represented by retained counsel, were within the MPP and had cases before the San Diego

15 Immigration Court. (Mot. for Class Certification, Declaration of Monica Langarica

16 (“Langarica Decl.”), at ¶ 8). Of these 380 individuals, it is unknown how many had non-

17 refoulement interviews and were deprived of access to their retained counsel. Petitioners

18 do, however, provide declarations of attorneys who were unable to communicate with their

19 clients prior to and during the clients’ non-refoulement interviews. (Id., Declaration of

20 Leah L. Chavarria (“Chavarria Decl.”), at ¶¶ 13, 15–18; Declaration of Vanessa Dojaquez-

21 Torres (“Dojaquez-Torres Decl.”), at ¶ 26; Declaration of Margaret Cargioli (“Cargioli

22 Decl.”), at ¶ 4; Declaration of Siobhan M. Waldron (“Waldron Decl.”), at ¶¶ 8–10;

23 Declaration of Lisa Knox (“Knox Declaration”), at ¶¶ 4, 9). From this information, counsel

24 for Petitioners approximated the class size at 46 people. (Rep. Tr. (Draft) at 47, Dec. 20,

25 2019). Therefore, Petitioners provide an adequate approximation that class members are

26 sufficiently numerous and demonstrate joinder of all members would be significantly

27 difficult and impracticable. Fed. R. Civ. P. 23(a)(1); see also Rivera v. Holder, 307 F.R.D.

28 539, 550 (W.D. Wash. 2015) (holding a class of 40 aliens was sufficiently numerous,

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1 “especially given the transient nature of the class and the inclusion of future class

2 members”); Nat’l Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal.

3 1986) (“[W]here the class includes unnamed, unknown future members, joinder of such

4 unknown individuals is impracticable and the numerosity requirement is therefore met,

5 regardless of class size.”) (internal quotations omitted); Orantes-Hernandez v. Smith, 541

6 F. Supp. 351, 370 (C.D. Cal. 1982) (“Where the exact size of the class is unknown but

7 general knowledge and common sense indicate that it is large, the numerosity requirement

8 is satisfied.”). Accordingly, Petitioners satisfy the numerosity requirement.

9

2. Commonality

10

The second element of Rule 23(a) requires the existence of “questions of law or fact

11 common to the class[.]” Fed. R. Civ. P. 23(a)(2). This element has “ ‘been construed

12 permissively,’ and ‘[a]ll questions of fact and law need not be common to satisfy the rule.’ ”

13 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v.

14 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “However, it is insufficient to

15 merely allege any common question[.]” Id. Instead, Petitioners must allege the existence

16 of a “common contention” that is of “such a nature that it is capable of classwide

17 resolution[.]” Dukes, 564 U.S. at 350. As summarized by the Supreme Court:

18

What matters to class certification ... is not the raising of common ‘questions’—even

19

in droves—but, rather the capacity of a classwide proceeding to generate common

answers apt to drive the resolution of the litigation. Dissimilarities within the

20

proposed class are what have the potential to impede the generation of commons

21

answers.

22 Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84

23 N.Y.U. L. Rev. 97, 132 (2009)).

24

Petitioners argue commonality is satisfied because “they challenge a single [p]olicy

25 applied equally to all individuals in the non-refoulement process in California.” (Mot. for

26 Class Certification at 20). The Court agrees. First, the class is asserting the same legal

27 claim, namely whether Respondents’ practice of prohibiting putative class members access

28 to retained counsel prior to and during non-refoulement interviews violates the APA.

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1 Second, the facts underlying the putative class members’ claims are the same: each

2 individual class member came to the United States to seek asylum, was placed in the MPP,

3 expressed a fear of returning to Mexico, retained an attorney, and was refused access to

4 that attorney prior to and during his or her non-refoulement interview. (Id.). Third, putative

5 class members suffered the same legal injury: they were deprived of access to their retained

6 counsel. Fourth, class members are challenging the same Government policy of refusing

7 asylum seekers access to retained counsel prior to and during non-refoulement interviews.

8 Finally, class members are seeking the same relief: a declaration that Respondents’ conduct

9 is unlawful and an injunction requiring Respondents to allow asylum seekers access to their

10 retained counsel prior to and during non-refoulement interviews. Given the number of

11 common questions of law and fact, Petitioners satisfy the commonality requirement. See

12 Ms. L. v. U.S. Immigration & Customs Enf’t, 3331 F.R.D. 529, 538 (S.D. Cal. 2018)

13 (“[C]ommonality only requires a single significant question of law or fact[,] . . . and that is

14 particularly so where a suit challenges a system-wide practice or policy that affects all of

15 the putative class members.”) (internal quotations omitted).

16

Respondents contend Petitioners’ class flunks the commonality requirement because

17 the class includes individuals detained “as part of the primary or secondary inspection.”3

18 As the Court noted in the Order granting preliminary injunction, Respondents provide no

19 evidence that a non-refoulement interview has ever occurred during primary or secondary

20 inspection. (Order Granting Prelim. Inj. at 12). In comparison to primary and secondary

21 inspection, non-refoulement interviews are conducted in separate areas, at different times,

22 by officers of a different agency. (Resp. in Opp’n to TRO, Ex. 4 at 15 (“[T]he USCIS

23 officer should conduct the MPP Assessment interview in a non-adversarial manner,

24

25

26 3 As noted above, the Court declines to address the balance of Petitioners’ statutory and

27 constitutional claims under the INA and the First and Fifth Amendments to the United

28

States Constitution. The Court, therefore, will not address Respondents’ arguments pertaining to those claims.

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1 separate and apart from the general public.”); Mot. for TRO, Declaration of Cristian Doe

2 (“Cristian Doe Decl.”), at ¶ 17 (“After the court hearing we were returned to the [POE]

3 before being transferred to another nearby cold holding cell. We were there for two or three

4 days . . . .”)). Furthermore, according to the MPP Guiding Principles:

5

If an alien who is potentially amenable to MPP affirmatively states that he

6

or she has a fear of persecution or torture in Mexico, or a fear of return to

Mexico, whether before or after they are processed for MPP or other

7

disposition, that alien will be referred to a USCIS asylum officer for

8

screening . . . .

9 10 (Resp. in Opp’n to TRO, Ex. 5 at 18–19 (emphasis added)). Regardless of when they
express a fear of returning to Mexico, asylum seekers are “referred to a USCISM asylum 11
officer for screening.” (Id. at 19 (“Aliens who return to the POE for their scheduled hearing 12
and affirmatively state a fear of return to Mexico will be referred to USCIS for screening 13
prior to any return to Mexico.”)). Given this information, it is clear that the time in which 14 15 an asylum seeker expresses a fear of returning to Mexico does not affect the procedure of
non-refoulement interviews. 16
3. Typicality 17
The next requirement of Rule 23(a) is typicality, which focuses on the relationship 18
of facts and issues between the class and its representatives. “[R]epresentative claims are 19 20 ‘typical’ if they are reasonably co-extensive with those of absent class members; they need
not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether 21 22 other members have the same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other class members have been 23
injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 24 25 (9th Cir. 1992) (citation and internal quotation marks omitted). The typicality requirement
will occasionally merge with the commonality requirement, Parsons v. Ryan, 754 F.3d 26 27 657, 687 (9th Cir. 2014), because “[b]oth serve as guideposts for determining whether 28 under the particular circumstances maintenance of a class action is economical and whether

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1 the named plaintiff’s claim and the class claims are so interrelated that the interests of the

2 class members will be fairly and adequately protected in their absence.” Dukes, 564 U.S.

3 at 349 n.5.

4

Petitioners primarily rely on the arguments raised on commonality to support a

5 showing of typicality, while also emphasizing that the putative class representatives,

6 Cristian and Diana Doe, fit the pattern of the putative class members’ experiences. (Mot.

7 for Class Certification at 23). Respondents argue typicality is not satisfied because (1)

8 Petitioners’ claim is not typical of the class because the proposed class includes asylum

9 seekers who were not paroled into the United States for an immigration court hearing, as

10 well as asylum seekers who articulate a fear of returning to Mexico “later in the removal

11 proceeding process,” and (2) Petitioners’ claim is moot.

12

First, Respondents’ argument that the putative class includes both individuals who

13 have not attended an immigration court hearing and individuals who articulate a fear of

14 returning to Mexico later in removal proceedings distorts the non-refoulement interview

15 process. As the Court addressed in reference to the commonality requirement, when and

16 where an asylum seeker expresses a fear of returning to Mexico does not change the non-

17 refoulement procedure—the asylum seeker is always “referred to a USCIS asylum officer

18 for screening” upon an expression of fear of returning to Mexico. (Resp. in Opp’n to TRO,

19 Ex. 5 at 18–19). The issue of whether some class members have been “paroled into the

20 United States” for an immigration court hearing and some have not is a distinction without

21 a discernable or material difference in the context of typicality. (Resp. in Opp’n to Class

22 Certification at 21 (quoting Mot. for TRO at 23)). All putative class members’ claims—

23 that the Respondents’ policy of prohibiting access to retained counsel prior to and during

24 non-refoulement interviews violates the APA—are the same.

25

Second, Respondents argue Petitioners do not satisfy typicality because Petitioners’

26 claim is moot. Given that Petitioners’ claim is inherently transitory, Respondents’

27 argument is misplaced. In determining whether Petitioners’ claim is typical of a putative

28 class member’s claim, the Court invokes the relation back doctrine and asks whether

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1 typicality was satisfied as of the filing of the complaint. See Pitts, 653 F.3d at 1092

2 (holding that certification of inherently transitory claims “relates back to the filing of the

3 complaint”); see also Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration

4 Servs., 325 F.R.D. 671, 696 (W.D. Wash. 2016) (considering whether typicality was met

5 “as of the filing of the complaint” for an inherently transitory class claim); Rivera, 307

6 F.R.D. at 550 (W.D. Wash. 2015) (holding typicality was “easily satisfied” in a class action

7 with an inherently transitory claim); Lyon v. U.S. Immigration & Customs Enf’t, 300 F.R.D.

8 628, 640 (N.D. Cal. 2014) (same). As stated above, Petitioners’ claim was typical of the

9 class as of the filing of the Complaint.

10

4. Adequacy of Representation

11

The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) requires a showing

12 that “the representative parties will fairly and adequately protect the interests of the class.”

13 Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process

14 concerns; “absent class members must be afforded adequate representation before entry of

15 a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311

16 U.S. 32, 42–43 (1940)). In reviewing this issue, courts must resolve two questions: “(1)

17 do the named plaintiffs and their counsel have any conflicts of interest with other class

18 members and (2) will the named plaintiffs and their counsel prosecute the action vigorously

19 on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507,

20 512 (9th Cir. 1978)). The named plaintiffs and their counsel must have sufficient “zeal and

21 competence” to protect the interests of the rest of the class. Fendler v. Westgate-Cal. Corp.,

22 527 F.2d 1168, 1170 (9th Cir. 1975).

23

Petitioners satisfy Rule 23(a)(4)’s adequacy requirement. Petitioners have shown

24 they do not have any conflicts of interest with other class members. Petitioners’ Complaint

25 seeks the same relief as the class: an injunction requiring Respondents to allow individuals

26 access to retained counsel prior to and during non-refoulement interviews and

27 corresponding declaratory relief. Petitioners have also demonstrated they will protect the

28 interests of the class. Furthermore, there is no conflict between Petitioners’ counsel and

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1 the members of the proposed class, and counsel has demonstrated they will prosecute the

2 case vigorously on behalf of the class.

3

Respondents argue Petitioners cannot demonstrate adequacy because Petitioners

4 “would derive no benefit from any injunctive relief . . . awarded.” (Resp. in Opp’n to Class

5 Certification at 22). This argument, like Respondents’ argument concerning typicality,

6 does not address the inherently transitory nature of Petitioners’ claim. The Court again

7 invokes the relation back doctrine and asks whether adequacy was satisfied at the filing of

8 the complaint. See Padilla v. U.S. Immigration & Customs Enf’t, No. 18-928, 2019 WL

9 1056466, at *4 (W.D. Wash. March 6, 2019) (holding the class representatives would

10 adequately represent the class, despite their claim being moot, because their claim was

11 inherently transitory); McLaughlin v. Wells Fargo Bank, NA, No. 15-02904, 2016 WL

12 3418337, at *6 (N.D. Cal. June 22, 2016) (same); Lyon, 300 F.R.D. at 636–39 (same);

13 Franco-Gonzales v. Napolitano, No. 10-02211, 2011 WL 11705815, at *14 (C.D. Cal.

14 Nov. 21, 2011) (same). As stated, Petitioners are adequate class representatives.

15 Accordingly, the adequacy requirement of Rule 23(a)(4) is satisfied.

16 E. Federal Rule of Civil Procedure 23(b)

17

Having satisfied the requirements of Rule 23(a), the next issue is whether Petitioners

18 have shown that at least one of the requirements of Rule 23(b) is met. Amchem Products,

19 Inc. v. Windsor, 521 U.S. 591, 614–15 (1997). Petitioners assert they have met the

20 prerequisites of certification for a class under Rule 23(b)(2).

21

Under Rule 23(b)(2), class certification may be appropriate where a defendant acted

22 or refused to act in a manner applicable to the class generally, rendering injunctive and

23 declaratory relief appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2). The

24 Supreme Court has noted:

25

The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory

26

remedy warranted—the notion that the conduct is such that it can be enjoined or

declared unlawful only as to all of the class members or as to none of them.” [citation

27

omitted]. In other words, Rule 23(b)(2) applies only when a single injunction or

28

declaratory judgment would provide relief to each member of the class. It does not

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1

authorize class certification when each individual class member would be entitled to

2

a different injunction or declaratory judgment against the defendant.

Dukes, 564 U.S. at 360.

3

Petitioners argue this case satisfies the requirements of Rule 23(b)(2) because

4

Respondents are subjecting “all class members to the [p]olicy by denying them access to

5

counsel while they are awaiting their non-refoulement interviews, and then denying them

6

the participation and representation of their counsel during the interviews themselves.”

7

(Mot. for Class Certification at 26). Respondents contend Petitioners cannot satisfy Rule

8

23(b)(2) “[b]ecause of the class members’ various differences, which affect the viability of

9

the legal claims Petitioners purport to bring.” (Resp. in Opp’n of Class Certification at 25).

10

Respondents further argue that 8 U.S.C. § 1252(f)(1) precludes the Court from granting

11

classwide injunctive relief. (Id.).

12

Contrary to Respondents’ argument, Petitioners have demonstrated that certification

13

under Rule 23(b)(2) is appropriate here. Rule 23(b)(2)’s “requirements are unquestionably

14

satisfied when members of a putative class seek uniform injunctive or declaratory relief

15

from policies or practices that are generally applicable to the class as a whole.” Parsons,

16

754 F.3d at 688 (citing Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)). That is

17

surely the case here: putative class members seek the same injunctive and declaratory

18

relief, and Respondents’ policy of prohibiting access to retained counsel prior to and during

19

non-refoulement interviews is generally applicable to the entire class. In other words,

20

Petitioners and putative class members seek “relief from a single practice.” Rodriguez,

21

591 F.3d at 1126. Accordingly, the Court finds Petitioners’ case is particularly suited for

22

certification under Rule 23(b)(2).

23

Section 1252(f)(1) does not bar classwide injunctive relief in this case. In pertinent

24

part, § 1252(f)(1) states: “no court . . . shall have jurisdiction or authority to enjoin or

25

restrain the operation of the provisions of part IV of this subchapter,” referring to §§ 1221–

26

1232. 8 U.S.C. § 1252(f)(1). Respondents contend the relief Petitioners are seeking

27

“imposes additional requirements on the Government before it exercises its authority in 8 28

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1 U.S.C. § 1225(b)(2)(C)[,]” and “[t]hus, Petitioners are asking . . . to enjoin 8 U.S.C. §

2 1225(b)(2)(C) on a classwide basis.” (Resp. in Opp’n to Class Certification at 25).

3 Respondents’ argument is not persuasive. Section 1225(b)(2)(C) states: “the Attorney

4 General may return the alien to [a foreign territory contiguous to the United States] pending

5 a proceeding under section 1229a . . . .” 8 U.S.C. § 1225(b)(2)(C). The relief Petitioners

6 seek does not enjoin § 1225(b)(2)(C). Petitioners are not challenging the legality or the

7 implementation of the MPP or any decision to return an asylum seeker to Mexico.

8 Furthermore, § 1225(b)(2)(C) is silent as to non-refoulement interviews, and the relief

9 Petitioners seek relates only to non-refoulement interviews. (See Order granting Prelim.

10 Inj. at 7–10). Therefore, § 1252(f)(1) does not apply to Petitioners’ request for classwide

11 relief.

12

II.

13

CONCLUSION AND ORDER

14

For these reasons, Petitioners’ motion for class certification is granted as to

15 Petitioners’ APA statutory claim. Specifically, the Court certifies the following class under

16 Federal Rule of Civil Procedure 23(b)(2):

17

All individuals who are detained in CBP custody in California awaiting or

18

undergoing non-refoulement interviews pursuant to the “Migrant Protection

19

Protocols” program and who have retained lawyers.

20 Petitioners are appointed as Class Representatives, and Counsel from the ACLU

21 Foundation of San Diego and Imperial Counties are appointed as counsel for this Class

22 pursuant to Federal Rule of Civil Procedure 23(g).

23

IT IS SO ORDERED.

24

25 Dated: January 14, 2020

26

27

28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 CRISTIAN DOE; DIANA DOE,

Case No.: 3:19-cv-2119-DMS-AGS

12

Petitioners-Plaintiffs,

13 v.

14 KEVIN K. McALEENAN, Acting

15

Secretary of the Department of Homeland Security; et al.,

16

Respondents-Defendants.

17

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

18 This matter comes before the Court on Petitioners’ motion for temporary restraining
19 20 order (“TRO”) to allow Petitioners access to their retained counsel prior to and during
Petitioners’ non-refoulement interviews under the Government’s recently implemented 21 22 Migrant Protection Protocols Program (“MPP” or “Remain in Mexico”). Under the MPP,
asylum seekers like Petitioners who enter or seek admission to the United States by land 23
from Mexico may be returned to Mexico where they must await the outcome of their 24 25 immigration proceedings. An exception to the MPP exists where an asylum seeker can
show he or she faces persecution or torture in Mexico, a showing they attempt to make 26 27 during their non-refoulement interview. If successful, the individual is taken out of MPP 28 and paroled or detained in the United States for the duration of their removal proceedings.

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1

Petitioners await their non-refoulement interview but allege Respondents are

2 wrongfully denying them their right of access to retained counsel, both prior to and during

3 their interview, in violation of their statutory rights under the Administrative Procedure

4 Act (“APA”) and their rights under the First and Fifth Amendments to the United States

5 Constitution. Respondents have agreed not to conduct Petitioners’ non-refoulement

6 interviews pending the Court’s determination of the present motion. Respondents argue

7 the Court should deny the motion as the Court lacks jurisdiction to hear the matter, and in

8 any event, there is no right of access to retained counsel prior to or during a non-

9 refoulement interview.

10

The matter has been fully briefed and argued. For the reasons set forth below, the

11 Court concludes Petitioners have met their burden and are entitled to a TRO allowing them

12 access to their retained counsel before and during their non-refoulement interviews. The

13 APA, specifically 5 U.S.C. § 555(b), provides a right of access to retained counsel for such

14 interviews.

15

I.

16

BACKGROUND

17

Petitioners’ declarations in support of their motion provide the following

18 background facts. Petitioners are the parents of a family of five children that fled their

19 home country of Guatemala after suffering extortion, death threats, and rape. (Mot. for

20 TRO at 14). Like many families, they traveled through Mexico to seek asylum in the

21 United States. (Id.) While in Mexico, Petitioners and their children were threatened at gun

22 point, assaulted, robbed, and stripped of their clothing. (Id.) Their attackers, masked men

23 seemingly clothed in Mexican government uniforms, threatened to kill Petitioners if they

24 reported the incident. (Id.) These threats have left Petitioners and their children terrified.

25 (Id.)

26

Upon entering the United States, Petitioners immediately requested asylum. (Id.)

27 Prior to December 2018, asylum seekers like Petitioners were placed in expedited removal

28 (“ER”) proceedings. 8 U.S.C. § 1225(b)(1). If they expressed a fear of persecution or

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1 torture upon removal to their country of origin, the asylum seekers were given a credible

2 fear interview (“CFI”) to determine whether there was a significant possibility they were

3 eligible for asylum. 8 U.S.C. § 1225(b)(1)(A)(i). If they passed the CFI, they were placed

4 in full removal proceedings before an immigration judge (“IJ”) to present their asylum

5 case. 8 U.S.C. §§ 1229a(c)(4), 1225(b)(1)(B)(ii). After December 2018, however, the

6 MPP was instituted and the process changed.

7

As noted, asylum seekers arriving on land from Mexico are now required under the

8 MPP to remain in Mexico while their immigration proceedings are pending. (Res. to Mot.

9 for TRO, Exs. 1, 4). If an asylum seeker expresses fear of returning to Mexico, then he or

10 she is detained by Customs and Border Protection (“CBP”) pending a non-refoulement

11 interview with a U.S. Citizenship and Immigration Services (“USCIS”) asylum officer to

12 determine whether they are more likely than not to face persecution or torture in Mexico.

13 (Mot. for TRO at 16.) While awaiting a non-refoulement interview, an asylum seeker does

14 not have the ability to communicate confidentially with retained counsel. (Id. at 17–18.)

15 Furthermore, retained counsel may not be present during non-refoulement interviews,

16 which are conducted telephonically and can last up to several hours. (Id. at 16, 17–18.)

17 See Compl., ¶ 144 (Respondent Department of Homeland Security “has a written policy

18 mandating a blanket denial of access to counsel to individuals subject to MPP who are in

19 its custody while awaiting and during non-refoulement interviews.”)) If an individual

20 passes the non-refoulement interview, they are removed from MPP and either released on

21 parole or detained in the United States, pending removal proceedings. Mot. for TRO at 17.

22 If the individual does not pass, they must await the outcome of their removal proceedings

23 in Mexico. (Id.)

24

In accordance with the MPP, Petitioners were returned to Mexico to await the

25 outcome of their removal proceedings. (Id.) While in Tijuana, Petitioners survived a

26 shoot-out that occurred outside their temporary shelter. (Id. at 15.) Because of this

27 violence and the trauma Petitioners experienced while traveling through Mexico,

28 Petitioners expressed a fear of returning to Mexico during an immigration proceeding on

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1 November 5, 2019. (Id. at 19.) Bound by the duty of non-refoulement, the United States

2 placed Petitioners and their children in CBP detention to await their non-refoulement

3 interviews. (Id.) During their detention, Petitioners have not been allowed to

4 confidentially communicate with their retained counsel. (Id.) The same day on which they

5 expressed a fear of returning to Mexico, Petitioners commenced the present action and filed

6 the subject motion.

7

II.

8

DISCUSSION

9

Petitioners seek a TRO allowing them access to their retained counsel while in CBP

10 custody and during their non-refoulement interviews. Before turning to the merits and

11 other injunctive relief factors, the Court addresses Respondents’ various jurisdictional

12 arguments, including that there is no case or controversy under Article III, § 2 of the United

13 States Constitution as the case is moot and that Petitioners are not “in custody” for purposes

14 of habeas review under 28 U.S.C. § 2241.

15

Under Ninth Circuit law, the completion of activity is not the hallmark of mootness.

16 See, e.g., Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002)

17 (holding plaintiffs’ challenge to a timber sale is not moot, despite the completion of the

18 sale). A case is moot “only where no effective relief for the alleged violation can be given.”

19 Id. (citing Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001)). Here, the

20 relief Respondents offered was both incomplete and inadequate. The day after Petitioners

21 filed their motion for TRO, Respondents offered Petitioners the opportunity to speak with

22 their counsel over the phone for 45 minutes and the telephonic presence of counsel during

23 their non-refoulement interview. (Res. to Mot. for TRO at 13; Rep. to Respondents Res. at

24 3). Petitioners’ counsel requested confidential communication with their clients consistent

25 with Petitioners’ asserted statutory and constitutional rights to counsel, and Respondents

26 refused. (Res. to Mot. for TRO at 13). Consequently, Petitioners’ counsel declined the

27 offer. (Id.) Petitioners remain in CBP detention and Respondents’ policy prohibiting

28

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1 access to retained counsel remains in effect. Therefore, effective relief for the alleged

2 violation may still be given and the issue is not moot.

3

Respondents’ argument that Petitioners are not “in custody” for purposes of 28

4 U.S.C. § 2241 also fails. “Section 2241 requires a petitioner to be “in custody” at the time

5 of filing for the federal courts to have jurisdiction over a habeas petition.” Smith v. U.S.

6 Customs & Border Patrol Prot., 741 F.3d 1016, 1019 (9th Cir. 2014). A petitioner is “in

7 custody” if he is subject to conditions that “significantly confine and restrain his freedom.”

8 Jones v. Cunningham, 371 U.S. 236, 243 (1963). Petitioners are currently being held in

9 CPB detention facilities. (Mot. for TRO at 18). Their freedom is clearly confined and

10 restrained: they cannot come and go as they please, they have little room to walk, and they

11 allege they are subjected to cold temperatures and lack access to basic necessities,

12 including toothpaste, hygiene products, and changes of clothing. (Id. at 18–19.)

13 Respondents argue this kind of detention does not constitute “custody” because it is brief

14 and incidental to Petitioners’ removal proceedings.1 Neither of these reasons, however,

15 confronts whether Petitioners are subject to conditions that significantly confine and

16 restrain their freedom. Given the allegations at issue, Petitioners are “in custody” for

17 purposes of § 2241.2

18

19 1 Respondents also argue that if Petitioners are returned to Mexico under the MPP, then
20 they will not be considered “in custody.” This argument is beside the point. At the time
21 of their filing, Petitioners were in CBP custody, not in Mexico. (Mot. for TRO at 19.) 2 Respondents have raised other related meritless jurisdictional and procedural arguments,
22 including that Petitioners seek an advisory opinion and allege only speculative injury. As
23 discussed, the alleged deprivation of a statutory and constitutional right to counsel is a redressable injury. Seeking a determination that the right of access to retained counsel
24 exists and has been violated under the circumstances does not invite an advisory opinion.
25 Respondents also argue that Petitioners have no private right of action to sue for anything arising from the non-refoulement interview process, as the process was established to
26 satisfy “non self-executing” treaty obligations, citing among other things the Convention
27 Against Torture Act. But Petitioners are not suing under a treaty or related Act. Their claims arise under the APA and the Constitution of the United States. Finally, Respondents
28 argue that judicial review of international non-refoulement obligations is prohibited, citing

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1

With these findings, the Court turns to the TRO. The purpose of a TRO is to preserve

2 the status quo before a preliminary injunction hearing may be held; its provisional remedial

3 nature is designed merely to prevent irreparable loss of rights prior to judgment. Granny

4 Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439

5 (1974). The standard for issuing a temporary restraining order is identical to the standard

6 for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes

7 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). Injunctive relief is an

8 “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

9 entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

10 To meet that showing, Petitioners must demonstrate “‘[they are] likely to succeed on the

11 merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief,

12 that the balance of equities tips in [their] favor, and that an injunction is in the public

13 interest.’” Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

14 (quoting Winter, 555 U.S. at 20).3 Each factor is met.

15 ///

16

17

18 the rule of “non-inquiry” and Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2019)
19 (stating courts must refrain from second-guessing executive branch determinations “whether extradition should be denied on humanitarian grounds or on account of the
20 treatment that the fugitive is likely to receive upon his return to the requesting state.”) This
21 strawman argument fares no better than Respondents’ other arguments. Petitioners are not challenging an executive branch decision to return Petitioners to Mexico. Rather, they are
22 seeking to vindicate rights provided to them under federal law. 23 3 The Ninth Circuit applies separate standards for injunctions depending on whether they
are prohibitory, i.e. they prevent future conduct, or mandatory, i.e. “they go beyond 24 ‘maintaining the status quo[.]’” Hernandez v. Sessions, 872 F.3d 976, 997 (9th Cir. 2017).
25 To the extent Petitioners are requesting mandatory relief, that request is “subject to a higher standard than prohibitory injunctions,” namely that relief will issue only “when ‘extreme
26 or very serious damage will result’ that is not capable of compensation in damages,’ and
27 the merits of the case are not ‘doubtful.’” Id. at 999 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). Under either standard,
28 Petitioners have met their burden for the reasons set out above.

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1 A. Likelihood of Success

2

“The first factor under Winter is the most important—likely success on the merits.”

3 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Petitioners carry the

4 burden of demonstrating likelihood of success, they are not required to prove their case in

5 full at this stage but only such portions that enable them to obtain the injunctive relief they

6 seek. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

7

Here, Petitioners argue they are likely to succeed on the merits because under the

8 APA “default provision,” they have a right of access to counsel of their choice during and

9 before their non-refoulement interview. See 5 U.S.C. § 555(b) (“A person compelled to

10 appear in person before an agency or representative thereof is entitled to be accompanied,

11 represented, and advised by counsel . . . .”). Respondents argue that the Immigration and

12 Nationality Act (“INA”) supersedes the APA default provision, citing Marcello v. Bonds,

13 349 U.S. 302, 309 (1955), and Ardestani v. INS, 502 U.S. 129, 133 (1991), and that under

14 the INA, Petitioners are not permitted access to retained counsel before or during their

15 interview.

16

There are two flaws in Respondents’ argument. First, neither Marcello nor

17 Ardestani stands for the proposition that the INA supersedes the APA in all immigration

18 proceedings. The Supreme Court in Marcello held that § 242(b) of the INA, the precursor

19 to the modern removal proceeding statute in 28 U.S.C. § 1229a, supplants the APA as “the

20 sole and exclusive procedure for deportation proceedings.” Marcello, 349 U.S. at 310.

21 The Court cited the INA’s “laborious adaption of the [APA] to the deportation process,

22 the specific points at which deviations from the [APA] were made, the recognition in the

23 legislative history of this adaptive technique and of the particular deviations, and the

24 direction in the statute . . . ” in determining the INA, and not the APA, governed. Id. The

25 Court in Ardestani, relying on its decision in Marcello, held that because plaintiff’s

26 deportation proceedings were not subject to the APA, plaintiff could not seek attorney fees

27 under the Equal Access to Justice Act. Ardestani, 502 U.S. at 134. Both cases deal

28 specifically with deportation proceedings, not immigration proceedings in general. This

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1 distinction is significant: the INA lays out “a specialized’ and “very particularized”

2 procedure for deportation proceedings, indicating congressional intent to displace the APA

3 in the context of deportation proceedings. Marcello, 349 U.S. at 308–09. Where the INA

4 is silent, however, there is no evidence of such congressional intent. See, e.g., Shaughnessy

5 v. Pedreiro, 349 U.S. 48, 51 (1955) (holding that the INA does not supersede the APA’s

6 right to judicial review because there is no language in the INA which “expressly

7 supersedes or modifies” § 10 of the APA). In other words, if the INA does not provide

8 the procedure, the APA default provisions necessarily still apply. See 5 U.S.C. § 559

9 (“Subsequent statute may not be held to supersede or modify [the APA’s protection of the

10 right of access to retained counsel], except to the extent that it does so expressly.”).

11

The second flaw in Respondents’ argument is that even if the INA did supplant the

12 APA here, the INA does not address whether Petitioners have a right of access to counsel

13 prior to and during non-refoulement interviews. Respondents note that under the INA,

14 asylum seekers may consult with retained counsel prior to and during a CFI, but not during

15 expedited removal proceedings or primary or secondary inspections. See 8 C.F.R. §

16 208.30(d)(4) (stating that an asylum seeker may consult with a person prior to and during

17 her CFI); United States v. Barajas-Alvarado, 655 F.3d 1077, 1088 (9th Cir. 2011) (finding

18 “no legal basis for [the claim] that non-admitted aliens who have not entered the United

19 States have a right to representation” during expedited removal proceedings). By contrast,

20 there are no provisions addressing whether asylum seekers have access to retained counsel

21 prior to and during a non-refoulement interview. (Res. to Mot. for TRO at 21).

22 Respondents argue this lack of mention necessarily means that asylum seekers do not have

23 such a right. The Court, however, disagrees. Where the INA is silent, the APA default

24 provisions necessarily apply; to hold otherwise would be to render the default provisions

25 obsolete. See 5 U.S.C. § 559 (stating subsequent statute may not supersede or modify the

26 APA unless “it does so expressly.”).

27

Access to retained counsel for a non-refoulement interview, which is undisputedly

28 not a part of formal removal proceedings, is not addressed in the INA. The INA, therefore,

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1 has not expressly superseded the APA’s default provision concerning access to retained

2 counsel. Consequently, § 555(b) of the APA applies.4 For these reasons, the Court finds

3 there is a likelihood of success on Petitioners’ statutory claim under the APA, 5 U.S.C. §

4 555(b).5

5 B. Irreparable Injury and Balance of Equities

6

Turning to the next three factors, Petitioners must show they are “‘likely to suffer

7 irreparable harm in the absence of preliminary relief[,]’” and demonstrate that “‘the balance

8 of equities tips in [their] favor.’” Hernandez, 872 F.3d at 995 (quoting Winter, 555 U.S. at

9 20). Petitioners have met their burden.

10

Petitioners allege that without access to counsel, they risk the irreparable harm of a

11 non-reviewable erroneous decision that forces them to return to Mexico to face persecution.

12 Petitioners emphasize the complexity of non-refoulement interviews that they—as

13 unsophisticated migrants in stressful and foreign circumstances—do not understand; and

14

15 4 The issue of whether access to retained counsel includes confidential, in-person
16 communication, as opposed to telephonic communication, has not been briefed in this case.

17 The parties should be prepared to address this issue in their preliminary injunction briefing.

For the purposes of these Petitioners, however, the Court orders confidential, in-person 18 access to retained counsel prior to Petitioners’ non-refoulement interviews. See 5 U.S.C.

19 § 555(b) (“A person compelled to appear in person before an agency or representative

thereof is entitled to be accompanied, represented, and advised by counsel . . . .”) (emphasis 20 added); Black’s Law Dictionary (11th ed. 2019) (defining accompany as “to go along with

21 (another)” or “to attend); United States v. McPhaul, 617 F. Supp. 58, 59 (W.D.N.C. 1985)

(“Under 5 U.S.C. § 555(b), there is a right to have counsel present whenever a person is 22 compelled to appear.”). Petitioners seem to concede confidential, in-person access to

23 counsel is not required during the non-refoulement interview because “attorney

participation in that interview does not require confidentiality and the interview itself is 24 telephonic, placing counsel on equal footing with the adjudicators.” (Rep. to Respondents

25 Res. at 3 n.2). 5 In light of Petitioners’ likelihood of success on their first claim for relief under the APA,
26 5 U.S.C. § 555(b) (right of access to retained counsel), the Court declines to address the

27 balance of Petitioners’ statutory and constitutional claims under the APA and First and

28

Fifth Amendments to the United States Constitution. (See Class Action Complaint and Petition for Writ of Habeas Corpus, Second through Fifth Claims for Relief, ECF No. 1.)

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1 that without access to their counsel, their ability to answer questions and meaningfully

2 participate in the interview is significantly impaired. Given the high stakes of the

3 interview, the Court finds Petitioners have shown likelihood of irreparable harm.

4

The same reasoning suggests the balance of hardships tips in Petitioners favor. In

5 Respondents’ opposition, they raise the specter of national security, but fail to show how

6 allowing access to counsel threatens security. At oral argument, Respondents’ counsel

7 referenced logistical difficulties in allowing access to counsel, but provided no evidence in

8 support. On the other hand, Petitioners face potential persecution and harm should they be

9 returned to Mexico. The balance of these factors tips decidedly in favor of Petitioners.

10 C. Public Interest

11

The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

12 996. To obtain the requested relief, “[p]laintiffs must demonstrate that the public interest

13 favors granting the injunction ‘in light of [its] likely consequences,’ i.e., ‘consequences

14 [that are not] too remote, insubstantial, or speculative and [are] supported by evidence.’”

15 Id. (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)).

16

Here, the public interest is served by allowing Petitioners’ access to retained counsel

17 prior to and during their non-refoulement interviews. It would not be “‘in the public’s

18 interest to allow the [government] . . . to violate the requirements of federal law, especially

19 when there are not adequate remedies available.’” Ariz. Dream Act Coal. v. Brewer, 757

20 F.3d 1053, 1069 (9th Cir. 2014) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

21 Cir. 2012)). Given the procedural protections provided by the APA and the lack of

22 appealability of the non-refoulement interview, the public’s interest weighs in favor of

23 granting Petitioners motion.

24

III.

25

CONCLUSION

26

For these reasons, Petitioners’ motion for temporary restraining order is granted.

27 Respondents may not conduct Petitioners’ non-refoulement interviews without first

28 affording them access to their retained counsel both before and during any such interview.

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1

Pending before the Court are Petitioners’ motions for class certification and

2 preliminary injunction. Respondents shall respond to the motions by November 27, 2019

3 at 5:00 p.m., and Petitioners shall file their replies by December 6, 2019 at 5 p.m. The

4 parties are ordered to meet and confer in person by no later than December 4, 2019 to

5 attempt resolution of these matters. Absent resolution, the motions will be heard on

6 December 13, 2019 at 1:30 p.m.

7

8

IT IS SO ORDERED.

9

10 Dated: November 12, 2019

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UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 CRISTIAN DOE, DIANA DOE,

Case No.: 19-cv-2119-DMS (AGS)

12

Petitioners-Plaintiffs,

13 v.

14 CHAD F. WOLF, Acting Secretary of
15 Homeland Security; et al., Respondents-Defendants.
16

ORDER GRANTING MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

17

18

On November 5, 2019, Petitioners filed a motion for class certification and a motion

19 for temporary restraining order (“TRO”) to allow Petitioners access to their retained

20 counsel prior to and during Petitioners’ non-refoulement interviews under the

21 Government’s Migrant Protection Protocols Program (“MPP” or “Remain in Mexico”).

22 Pursuant to the MPP, asylum seekers arriving at the United States Border by land from

23 Mexico are returned to Mexico to await the outcome of their immigration proceedings.

24 Bound by the duty of non-refoulement, however, Respondents may not return an asylum

25 seeker to Mexico if the individual can show he or she faces persecution or torture in

26 Mexico. Instead, the asylum seeker is taken out of the MPP and paroled or detained in the

27 United States to await their removal proceedings.

28

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1

On November 12, 2019, the Court granted Petitioners’ motion for TRO and ordered

2 Respondents to allow Petitioners access to their retained counsel prior to and during their

3 non-refoulement interviews. Doe v. McAleenan, --- F. Supp. 3d ---, 2019 WL 6605880, at

4 *5 (S.D. Cal. Nov. 12, 2019). Petitioner Cristian Doe was interviewed two days later by

5 an U.S. Citizenship and Immigration Services (“USCIS”) Asylum Officer. Three attorneys

6 for Doe were present telephonically. The Asylum Officer found it is more likely than not

7 that Petitioners will be persecuted or tortured if they are returned to Mexico. Consequently,

8 the Doe family was taken out of the MPP and released from Customs and Border Patrol

9 (“CBP”) custody. They are still awaiting the remainder of their immigration case.

10

The Court has certified a class action to include similarly situated asylum seekers.

11 Petitioners now request classwide injunctive relief to allow for access to retained counsel

12 prior to and during their non-refoulement interviews. The matter has been fully briefed

13 and argued. For the reasons set forth below, the Court reaffirms its conclusion that

14 Petitioners have met their burden and that the Administrative Procedures Act (“APA”),

15 specifically 5 U.S.C. § 555(b), provides a right to retained counsel in these circumstances.

16

I.

17

BACKGROUND

18

Petitioners’ and Respondents’ declarations provide the following background facts.

19 Petitioners are the parents of a family of five children that fled their home country of

20 Guatemala after suffering extortion, death threats, and rape. (Mot. for TRO, Declaration

21 of Cristian Doe (“Cristian Doe Decl.”), at ¶¶ 2, 4). Like many families, Petitioners traveled

22 through Mexico to seek asylum in the United States. (Id. at ¶ 7). While in Mexico,

23 Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped

24 of their clothing. (Mot. for TRO at 14). Their attackers, masked men clothed in what

25 appeared to be Mexican government uniforms, threatened to kill Petitioners if they reported

26 the incident. (Id.). Petitioners and their children were left terrified. (Id.). Upon reaching

27 the United States, Petitioners immediately requested asylum. (Id.).

28

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1

Prior to the MPP, asylum seekers arriving at the Southern border were usually placed

2 in expedited removal proceedings. 8 U.S.C. § 1225(b)(1). If they expressed a fear of

3 persecution or torture upon removal to their country of origin, the asylum seekers were

4 given a credible fear interview (“CFI”) to determine whether there was a significant

5 possibility they would establish eligibility for asylum. 8 U.S.C. § 1225(b)(1)(A)(i). Before

6 such interviews, asylum seekers had a right to consult with counsel. 8 C.F.R. §§ 208.30(d),

7 208.31(c). If the asylum seekers passed their CFIs, they were placed in full removal

8 proceedings before an Immigration Judge (“IJ”) to present their asylum claims. 8 U.S.C.

9 §§ 1229a(c)(4), 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30, 235.3. While awaiting their

10 removal proceedings, the asylum seekers were often paroled into the United States.

11

The process changed in January of 2019 when the Department of Homeland Security

12 (“DHS”) instituted the MPP: “an unprecedented action” meant to “address the urgent

13 humanitarian and security crisis at the Southern border.” (Resp. in Opp’n to TRO, Ex. 2

14 at 4). Pursuant to the MPP, “individuals arriving in or entering the United States from

15 Mexico—illegally or without proper documentation—may be returned to Mexico for the

16 duration of their immigration proceedings.” (Id., Ex. 1 at 1). Asylum seekers within the

17 MPP are given “Notice[s] to Appear” for their immigration court hearings and await such

18 hearings in Mexico. (Id. at 2). In effect, the MPP replaces expedited removal proceedings

19 and CFIs for certain asylum seekers. (Id., Ex. 2 at 7). The MPP is authorized by the

20 Immigration and Nationality Act (“INA”), which provides that asylum seekers “arriving

21 on land . . . from a foreign territory contiguous to the United States” may be returned “to

22 that territory pending [their immigration] proceeding[s.]” 8 U.S.C. § 1225(b)(2)(C).

23

In implementing the MPP, DHS officials must act consistent with the principle of

24 non-refoulement. (Resp. in Opp’n to TRO, Ex. 3 at 11). This principle, contained in both

25 Article 33 of the 1951 Convention Relating to the Status of Refugees1 and Article 3 of the

26

27

28 1 July 28, 1951, 189 U.N.T.S. 150.

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1 Convention Against Torture,2 prohibits the return of an individual to a country in which he

2 or she would more likely than not be persecuted or tortured. (Id. at 10–11). As applied to

3 the MPP, asylum seekers must first express a fear of returning to Mexico, and those that

4 do are then detained by CBP pending a non-refoulement interview with USCIS Asylum

5 Officers. (Id. at 11 n.4). During this interview, the Asylum Officer “elicit[s] all relevant

6 and useful information” regarding the likelihood the asylum seeker will face persecution

7 and torture upon his or her return to Mexico. (Id., Ex. 4 at 15). The interview “can last up

8 to several hours, during which time the [asylum seeker] is often handcuffed.” (Mot. for

9 TRO at 16; Cristian Doe Decl. at ¶¶ 25–26). If the asylum seeker passes the non-

10 refoulement interview, he or she is removed from the MPP and is either released on parole

11 or detained in the United States pending removal proceedings. (Mot. for TRO at 17). If

12 the asylum seeker does not pass, he or she must await the outcome of their removal

13 proceedings in Mexico. (Id.).

14

Pursuant to DHS policy, asylum seekers cannot communicate with retained counsel

15 prior to or during non-refoulement interviews.3 In practice, asylum seekers are given

16 sporadic access to counsel—prior to their interviews, asylum seekers may have monitored

17 calls with their attorneys if the phones are working, and during their interviews, asylum

18 seekers are “sometimes” given access to counsel “on an ad hoc basis.” (Id. at 18; Resp. in

19 Opp’n to Prelim. Inj., Declaration of Ashley B. Caudill-Mirillo (“Caudill-Mirillo Decl.”),

20 at ¶ 3). DHS maintains, however, that providing asylum seekers with access to retained

21 counsel is not required by law. (Resp. in Opp’n to Prelim. Inj. at 18–19).

22

23 2 Dec. 10, 1984, 1465 U.N.T.S. 85.
24 3 USCIS states in its Policy Memorandum concerning the implementation of the MPP,
25 “[P]rovided the [non-refoulement interviews] are part of either primary or secondary inspection, DHS is currently unable to provide access to counsel during the [interviews]
26 given the limited capacity and resources at ports-of-entry and Border Patrol stations as well
27 as the need for orderly and efficient processing of individuals.” (Resp. in Opp’n to TRO, Ex. 4 at 15). USCIS does not state in writing whether there is a right to access retained
28 counsel if the interview occurs outside of primary or secondary inspection.

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1

In accordance with the MPP, Petitioners and their children were returned to Mexico

2 to await their immigration proceedings. (Mot. for TRO at 14). At their first immigration

3 court hearing, Petitioners articulated a fear of return to Mexico and were given separate

4 non-refoulement interviews. They did not have counsel present. (Caudill-Mirillo Decl. at

5 ¶ 5; Cristian Doe Decl. at ¶ 26; Rep. in Supp. of Mot. for Prelim. Inj. at 9). Petitioners did

6 not pass their interviews and were returned to Mexico. (Caudill-Mirillo Decl. at ¶ 5).

7 Petitioners again articulated their fear of returning to Mexico at their third immigration

8 court hearing, in which retained counsel was present. (Mot. for TRO at 19). The family

9 was then detained by CBP to await a second non-refoulement interview. (Id.). Petitioners

10 were not given confidential access to retained counsel. (Id.)

11

Petitioners filed suit the same day on which they expressed a fear of returning to

12 Mexico in immigration court. Petitioners sought a temporary restraining order to enjoin

13 Respondents from prohibiting access to retained counsel and moved for class certification.

14 The Court granted Petitioners’ motion for a temporary restraining order and thereafter

15 certified the class. The Court now determines whether Petitioners are entitled to a

16 classwide preliminary injunction that requires Respondents to provide asylum seekers

17 access to retained counsel prior to and during non-refoulement interviews.

18

II.

19

DISCUSSION

20

Before addressing the merits of injunctive relief, the Court considers Respondents’

21 jurisdictional arguments, including that the INA forecloses judicial review of Petitioners’

22 claims and that the rule of non-inquiry bars judicial review of non-refoulement procedures.

23 The INA prohibits judicial review of a “decision or action” that is “in the discretion of the

24 Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii).

25 Respondents assert this jurisdictional bar extends not only to decisions to return asylum

26 seekers to Mexico pending removal proceedings—which this case does not concern—but

27 also extends to “the procedures used to arrive at those decisions.” (Resp. in Opp’n to

28 Prelim. Inj. at 13). In support, Respondents cite Gebhardt v. Nielsen, in which the Ninth

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1 Circuit held it did not have jurisdiction to review the plaintiff’s statutory claim attacking

2 the USCIS’s denial of his I-130 petition because of the INA’s jurisdictional bar. Gebhardt

3 v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018). In that case, the Ninth Circuit noted that it

4 did not matter whether the plaintiff “characterize[d] his claims as challenges to the

5 substantive standards that the Secretary [of DHS] use[d]” or as challenges to the

6 Secretary’s ultimate decision. Id. Either way, the Court lacked jurisdiction to review the

7 claim because “[t]he standards by which the Secretary reaches a decision within his or her

8 ‘sole and unreviewable discretion’—and the methods by which the Secretary adopts those

9 standards—are just as unreviewable as the Secretary’s ultimate decisions themselves.” Id.

10 (citing Ortiz v. Meissner, 179 F.3d 718, 722 (9th Cir. 1999)). Respondents argue the same

11 logic applies here: Petitioners’ claims attack “the procedures used to arrive at the ultimate

12 decisions to return [asylum seekers] to Mexico” and those procedures are not subject to

13 judicial review. (Resp. in Opp’n to Prelim. Inj. at 14).

14

Respondents’ argument distorts Petitioners’ claim. Petitioners are not challenging

15 Respondents’ decisions to return asylum seekers to Mexico or the substantive standards

16 used to determine whether an asylum seeker will face persecution or torture upon return to

17 Mexico. Petitioners’ claim is narrow in its attack on Respondents’ policy prohibiting

18 access to retained counsel prior to and during non-refoulement interviews—an issue that is

19 collateral to the outcome of the interview, and therefore within the Court’s jurisdiction.

20 See Gebhardt, 879 F.3d at 987 (“[W]e can review a claim in this context only if it

21 challenges a genuinely collateral action”) (emphasis in original); Hernandez v. Sessions,

22 872 F.3d 976, 988 (9th Cir. 2017) (“[Section] 1252(a)(2)(B)(ii) restricts jurisdiction only

23 with respect to the executive’s exercise of discretion.”); Make the Road N.Y. v. McAleenan,

24 405 F. Supp. 3d 1, 31 (D.D.C. 2019) (“[S]ection 1252(a)(2)(B)(ii) relates to judicial review

25 of ‘denials of discretionary relief[,]’ . . . and nothing about Plaintiffs’ claims challenges

26 relief at all, much less discretionary relief or denials thereof.”) (internal citations omitted).

27 To hold otherwise, as Petitioners argue, would be to grant Respondents the unreviewable

28 freedom to determine the results of non-refoulement interviews with a “Ouija board” or

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1 “prevent persons from speaking” or “bind and gag” asylum seekers during the interview.

2 (Rep. in Supp. of Mot. for Prelim. Inj. at 3). The Court, therefore, has jurisdiction over

3 Petitioners’ claim.

4

As to Respondents’ argument that the rule of non-inquiry bars judicial review of

5 Petitioners’ claim, the Court reaffirms its conclusion that the rule of non-inquiry does not

6 apply because Petitioners are not challenging extradition or return decisions. (Order

7 Granting TRO at 5–6 n.2). Petitioners seek to vindicate rights provided to them under

8 federal law, specifically the APA, and do not seek relief under the Convention Against

9 Torture or any extradition statute.

10

With these findings, the Court considers whether Petitioners are entitled to a

11 classwide preliminary injunction. Injunctive relief is “an extraordinary remedy that may

12 only be awarded upon a clear showing that the [petitioner] is entitled to such relief.” Winter

13 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To meet that showing, Petitioners

14 must demonstrate “ ‘[they are] likely to suffer irreparable harm in the absence of

15 preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is

16 in the public interest.’ ” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

17 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). Petitioners have met each factor.

18 A. Likelihood of Success

19

“The first factor under Winter is the most important—likely success on the merits.”

20 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Petitioners carry the

21 burden of demonstrating likelihood of success, they are not required to prove their case in

22 full at the preliminary injunction stage but only such portions that enable them to obtain

23 the injunctive relief they seek. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

24

As explained in the Order granting Petitioners’ motion for TRO, Petitioners contend

25 they are likely to succeed on the merits because 5 U.S.C. § 555(b) provides asylum seekers

26 the right to access counsel of their choice prior to and during non-refoulement interviews.

27 Petitioners argue that because the INA does not contain any statutory provision concerning

28 access to retained counsel and non-refoulement interviews, the APA provision providing

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1 such access remains in effect. See 5 U.S.C. § 559 (“Subsequent statute may not be held to

2 supersede or modify [the APA’s protection of the right to access of retained counsel],

3 except to the extent that it does so expressly.”). Respondents argue § 555(b) of the APA

4 does not apply in any immigration proceeding, the INA provides no right to access retained

5 counsel prior to or during non-refoulement interviews, non-refoulement interviews occur

6 during primary and secondary inspections, and finally, even if the INA did not supplant the

7 APA here, § 555(b) does not apply. The Court addresses these arguments in turn.

8

In opposition to the preliminary injunction, Respondents revive their argument that

9 two Supreme Court cases, Ardestani v. Immigration and Naturalization Service and

10 Marcello v. Bonds, hold the INA displaces the APA in all “immigration proceedings”—

11 immigration being broadly defined. Ardestani v. INS, 502 U.S. 219 (1991); Marcello v.

12 Bonds, 349 U.S. 302 (1955). The Court reaffirms its previous decision: neither case stands

13 for the proposition Respondents proffer. The Supreme Court held in Marcello that § 242(b)

14 of the INA, the precursor to the modern removal proceeding statute, 8 U.S.C. § 1229a,

15 supplants the APA as the “sole and exclusive procedure for deportation proceedings.”

16 Marcello, 349 U.S. at 310. Relying on its decision in Marcello, the Supreme Court held in

17 Ardestani that deportation proceedings are not within the scope of the Equal Access to

18 Justice Act (“EAJA”) because “deportation proceeding[s] [are] not subject to the APA.”

19 Ardestani, 502 U.S. at 134. Both cases emphasize the INA’s “laborious adaptation of the

20 [APA] to the deportation process” and the INA’s language asserting that it “shall be the

21 sole and exclusive procedure for deportation proceedings.” Id. at 134 (quoting Marcello,

22 349 U.S. at 310). Distilled to their core holdings, both cases concern solely deportation

23 proceedings, not all immigration proceedings.

24

The problem is the Supreme Court’s language in Ardestani is not specific. In stating

25 the question before the Court, the Court writes: “We now consider whether the EAJA

26 authorizes the award of attorney’s fees and costs for administrative deportation

27 proceedings before the INS.” Id. at 131 (emphasis added). The Court later replaces the

28 phrase ‘deportation proceedings’ with ‘immigration proceedings’ and states: “Although

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1 immigration proceedings are required by statute to be determined on the record after a

2 hearing . . . , we previously have decided that they are not governed by the APA.” Id. at

3 132 (citing Marcello, 349 U.S. 302). We know, however, that not all immigration

4 proceedings ‘are required by statute to be determined on the record after a hearing.’ The

5 immigration proceeding at issue here, a non-refoulement interview, is undeniably not

6 determined on the record after a hearing. (Resp. in Opp’n to TRO, Ex. 4 at 15–16). Do

7 we take the Supreme Court’s language to mean that all immigration proceedings must be

8 determined on the record after a hearing? Or, do we understand the Supreme Court’s

9 language to concern the narrower category of deportation proceedings? The Court finds

10 the latter, most importantly because the Supreme Court’s decision in Marcello requires

11 such an interpretation. In comparison, there is no Supreme Court precedent holding the

12 INA supplants the APA in all immigration proceedings.

13

Respondents argue the Court’s reading of these two cases is not correct, for if it was,

14 then § 555(b) of the APA would necessarily extend to expedited removal proceedings. (Id.

15 at 17). Respondents contend this cannot be right because “courts have repeatedly and

16 unequivocally concluded the APA right-to-counsel provision does not govern expedited

17 removal proceedings.” (Id. at 17 (citing United States v. Barajas, 655 F.3d 1077, 1088

18 (9th Cir. 2011); United States v. Quinteros Guzman, No. 3:18-cr-00031-001, 2019 WL

19 3220576, at *10 (W.D. Va. July 17, 2019))). Respondents’ argument is a non sequitur

20 because expedited removal proceedings and non-refoulement interviews are not

21 comparable immigration proceedings. The INA provision concerning expedited removal

22 proceedings is complex, specialized, and specific to expedited removal proceedings. See

23 8 U.S.C. § 1225. The INA contains no provision concerning non-refoulement interviews.

24 This difference is crucial in this context: the INA’s expedited removal proceeding

25 provision supersedes the APA, whereas the INA’s lack of mention of non-refoulement

26 interview does not. See 5 U.S.C. § 559 (“Subsequent statute may not be held to supersede

27 or modify [the APA’s protection of the right to access of retained counsel], except to the

28 extent that it does so expressly.”); United States v. Menasche, 348 U.S. 528, 538–39 (1955)

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1 (“It is our duty to give effect, if possible, to every clause and word of a statute, rather than

2 to emasculate an entire section, as the Government's interpretation requires) (internal

3 quotation omitted); Barajas, 655 F.3d at 1088 (“The cases cited by [the plaintiff] involve

4 aliens in the more formal removal proceedings, where the regulations provide a right of

5 counsel, as compared to expedited removal proceedings, where they do not.”); Kim v.

6 Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004) (“[A]lthough there is no statutory or

7 regulatory deadline by which [Citizenship and Immigration Services] must adjudicate an

8 application, at some point, defendants’ failure to take any action runs afoul of section

9 555(b) [of the APA]”). Holding the INA fails to supplant the APA for non-refoulement

10 interview procedures says nothing about whether the INA supplants the APA for expedited

11 removal proceedings.

12

Next, Respondents argue the INA does not provide a right to access retained counsel

13 prior to and during non-refoulement interviews. Although Respondents agree there is “no

14 statutory or regulatory provision” addressing the issue, Respondents contend that this

15 silence buttresses their conclusion that the INA does not provide for a right to access

16 retained counsel. (Resp. in Opp’n to Prelim. Inj. at 18). Respondents cite the Ninth

17 Circuit’s decision in Barajas in support of their argument. In that case, the court held that

18 aliens do not have a right to counsel in expedited removal proceedings because the

19 expedited removal proceeding provision of the INA does not provide for one, unlike the

20 formal removal proceeding provision, which does. Barajas, 655 F.3d at 1088.

21 Respondents argue the same logic applies here. The INA is silent on whether asylum

22 seekers may access retained counsel prior to and during non-refoulement interviews,

23 whereas the INA provides access to retained counsel prior to CFIs and during formal

24 removal proceedings. Therefore, Respondents argue, the INA does not provide asylum

25 seekers access to retained counsel in the non-refoulement interview context.

26

Respondents’ argument is not persuasive. It is impossible to evince from the INA

27 whether there is a right to counsel in non-refoulement interviews because the INA does not

28

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1 mention non-refoulement interviews at all.4 In Barajas, the court’s reasoning necessarily

2 depends on Congressional consideration of both expedited removal proceedings and formal

3 removal proceedings. Barajas, 655 F.3d at 1088 (“The cases cited by [the plaintiff] involve

4 aliens in the more formal removal proceedings, where the regulations provide a right of

5 counsel, as compared to expedited removal proceedings, where they do not.”); see also 8

6 C.F.R. § 287.3 (“Except in the case of an alien subject to the expedited removal provisions

7 of section 235(b)(1)(A) of the Act, an alien arrested without warrant and placed in formal

8 proceedings under section 238 or 240 of the Act will be advised of . . . the right to be

9 represented at no expense of the Government.”). Here, there is no such Congressional

10 consideration. Therefore, the Court stands by its prior conclusion that the INA does not

11 foreclose asylum seekers the right to access retained counsel prior to and during non-

12 refoulement interviews.

13

Respondents also argue the regulation prohibiting individuals from accessing

14 retained counsel during primary and secondary inspection precludes the Court’s conclusion

15

16
17 4 At oral argument, counsel for Respondents argued the INA’s provision concerning the return of asylum seekers to contiguous territories pending their immigration proceedings
18 constitutes a statutory provision concerning non-refoulement interviews. (Rep. Tr. (Draft) 19 at 19–20, Dec. 20, 2019); See 8 U.S.C. § 1225(b)(2)(c). Respondents asked the Court to
compare § 1225(b)(2)(c) to § 1225(b)(1)(B)(iv), which provides for the right to consult 20 with counsel prior to a CFI. Respondents argued that the INA’s mention of a right to 21 consult counsel prior to CFIs and its lack of mention of a right to access counsel in non-
refoulement interviews indicates there is no right to counsel in the latter immigration 22 proceeding. There is one major problem with this argument: § 1225(b)(2)(c) says nothing 23 about the duty of non-refoulement or the mechanisms by which Respondents comply with
this obligation. It is textually inappropriate to consider § 1225(b)(2)(c) a provision that 24 concerns non-refoulement interviews whatsoever. If Respondents’ argument were true and 25 § 1225(b)(2)(c) concerned the procedures of a non-refoulement interview, then, by
extension, the lack of mention of non-refoulement interviews in comparison to the detailed 26 procedures of a CFI could be used to argue Congress did not intend for there to be a duty 27 of non-refoulement altogether. Yet, we know this not to be true. See Article 33 of the 1951
Convention Relating to the Status of Refugees; Article 3 of the Convention Against 28 Torture. Respondents’ argument is not textually sound.

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1 that § 555(b) of the APA applies to non-refoulement interviews. (Resp. in Opp’n to Prelim.

2 Inj. at 19). Respondents cite the USCIS’s Policy Memorandum concerning the

3 implementation of the MPP, which states: “[P]rovided the MPP assessments are part of

4 either primary or secondary inspection, DHS is currently unable to provide access to

5 counsel during the assessments given the limited capacity and resources at the ports-of-

6 entry and Border Patrol stations as well as the need for the orderly and efficient processing

7 of individuals.” (Resp. in Opp’n to TRO, Ex. 4, at 15). Respondents argue that, at the very

8 least, the regulation forecloses a right to access retained counsel if the non-refoulement

9 interview occurs during primary or secondary inspection.

10

There are two problems with this argument. First, there is no evidence that a non-

11 refoulement interview has ever occurred during primary or secondary inspection.

12 Respondents’ declarations provide information concerning the number of individuals in

13 the MPP and the number of individuals crossing the United States-Mexico border. (Resp.

14 in Opp’n to Prelim. Inj., Declaration of Scott Garrett (“Garrett Decl.”), at ¶ 8 (“Since

15 [implementation of the MPP] San Diego Sector has processed approximately 6,200 cases

16 through the program . . . . El Centro Sector has also processed approximately 6,800 cases

17 which includes aliens apprehended by Tucson Sector . . . . On November 21, 2019, there

18 were approximately 190 individuals processed by Border Patrol who were scheduled to

19 appear in immigration court.”), Declaration of Mariza Marin (“Marin Decl.”), at ¶ 27 (“For

20 fiscal year 2019, through the end of August, the San Ysidro POE processed more than 11

21 million northbound pedestrians, more than 13 million northbound vehicles, and more than

22 34 million northbound travelers altogether . . . . San Diego OFO has processed

23 approximately 1,110 aliens pursuant to the MPP . . . . While daily numbers vary, there

24 were 224 individuals scheduled for their immigration court appearance, of which 116

25 showed up for transport to court.”). None of Respondents’ declarations, however, state

26 that non-refoulement interviews are, or ever have been, conducted during primary or

27 secondary inspection.

28

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1

In fact, Respondents’ declarations lend themselves to conclude the opposite.

2 “Generally, the MPP respondents are returned to Mexico within a day or two after

3 encounter.” (Marin Decl. at ¶ 17). If an asylum seeker were to articulate a fear of returning

4 to Mexico before he or she is processed for MPP, the asylum seeker is referred to a USCIS

5 Asylum Officer. (Resp. in Opp’n to TRO, Ex. 5 at 18–19 (“If an alien who is potentially

6 amendable to MPP affirmatively states that he or she has a fear of persecution or torture in

7 Mexico, or a fear of return to Mexico, whether before or after they are processed for MPP

8 or other disposition, that alien will be referred to a USCIS asylum officer for

9 screening . . . .”)). It is clear that non-refoulement interviews do not occur within primary

10 or secondary inspection. They are conducted in separate areas by an officer of a different

11 agency at a later time. (Id., Ex. 4 at 15 (“[T]he USCIS officer should conduct the MPP

12 Assessment interview in a non-adversarial manner, separate and apart from the general

13 public.”); Cristian Doe Decl. at ¶ 17 (“After the court hearing we were returned to the

14 [POE] before being transferred to another nearby cold holding cell. We were there for two

15 or three days . . . .”). Respondents have provided no information stating otherwise.5

16

The second problem with Respondents’ argument is that primary and secondary

17 inspection and non-refoulement interviews are separate immigration proceedings with

18 different purposes. In primary and secondary inspection, CBP officers “at the inspections

19 booths . . . ensur[e] and facilitiat[e] lawful trade and travel, and prevent[] the introduction

20

21

22 5 At oral argument, counsel for Respondents pointed to paragraphs 12 and 24 of the Marin
23 Declaration in support of their argument that non-refoulement interviews occur during primary and secondary inspection. Paragraph 12 of the Marin Declaration states:
24 “Amenable aliens arriving at the San Ysidro POE or Calexico POE are initially processed
25 for MPP at the POE at which they attempted to enter the U.S.” (Marin Decl. at ¶ 12). Paragraph 24 states: “Nor do the ports have the manpower to supervise MPP respondent
26 visits, as most officers are at the inspection booths in primary and secondary inspection
27 ensuring and facilitating lawful trade and travel, and preventing the introduction of contraband into the United States.” (Id. at 24). Neither paragraph substantiates
28 Respondents’ claim.

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1 of contraband into the United States.” (Marin Decl. at ¶ 24); see also Am. Immigration

2 Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 42 (D.D.C. 1998) (“During the primary

3 inspection stage, the immigration officer literally has only a few seconds to examine

4 documents, run basic lookout queries, and ask pertinent questions to determine

5 admissibility and issue relevant entry documents.”). During non-refoulement interviews,

6 the USCIS Asylum Officer’s purpose is to “elicit all relevant and useful information

7 bearing on whether the alien would more likely than not face persecution on account of a

8 protected ground, or torture, if the alien is returned to Mexico . . . .” (Resp. in Opp’n to

9 TRO, Ex. 4, at 15). The Asylum Officer takes into account (1) the credibility of the asylum

10 seeker’s statements, (2) commitments from the Government of Mexico regarding treatment

11 and protection of asylum seekers, and (3) whether the alien has engaged in criminal,

12 persecutory, or terrorist activity. (Id. at 15–16). This fact intensive interview can last up

13 to several hours. (Cristian Decl. at ¶¶ 25, 26). Although a non-refoulement interview may

14 be conducted close in time and space to inspection, the two immigration proceedings are

15 separate and different—the procedures of one do not extend to the procedures of another.

16 Therefore, the regulation prohibiting right to counsel during primary and secondary

17 inspection is irrelevant to the issue of whether there is such a right prior to and during non-

18 refoulement interviews.

19

Finally, Respondents argue that even if the INA fails to supersede the APA, § 555(b)

20 of the APA does not apply to non-refoulement interviews. (Resp. in Opp’n to Prelim. Inj.

21 at 19–21). Section 555(b) contains two distinct provisions on access to retained counsel.

22 The first provision states: “A person compelled to appear in person before an agency or

23 representative thereof is entitled to be accompanied, represented, and advised by counsel

24 or, if permitted by the agency, by other qualified representative.” 5 U.S.C. § 555(b). The

25 second provision states: “A party is entitled to appear in person or by or with counsel or

26 other duly qualified representative in an agency proceeding.” Id. Respondents argue

27 Petitioners are not “ ‘compelled to appear’ at non-refoulement interviews” and non-

28 refoulement interviews are not “agency proceedings.” (Resp. in Opp’n to Prelim. Inj. at

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1 20). Because the Court finds the first provision of § 555(b) applies, it will not address the

2 applicability of the second provision.

3

Prior to non-refoulement interviews, asylum seekers are detained in CBP custody.

4 (Cristian Decl. at ¶¶ 2, 22). During the interview, asylum seekers may be handcuffed.

5 (Mot. for TRO, Declaration of A.V.D. (“AVD Decl.”), at ¶ 27). Although asylum seekers

6 must articulate a fear of return to Mexico before non-refoulement interviews commence,

7 they are not “elect[ing] to appear at their non-refoulement interviews.” (Res. in Opp’n to

8 Prelim. Inj. at 20). A non-refoulement interview is merely the next step in a long, multi-

9 stage immigration process, and it is irrelevant to the applicability of § 555(b) whether or

10 not Petitioners triggered that process. (See Resp. In Opp’n to TRO, Ex. 4 at 16). To hold

11 otherwise would suggest § 555(b) does not apply in workers’ compensation hearings—

12 hearings that are initiated by the same individuals claiming a right to counsel under §

13 555(b). The Ninth Circuit has, however, held otherwise. See Smiley v. Dir. Office of

14 Workers Comp. Programs, 984 F.3d 278, 282 (9th Cir. 1993) (“[The plaintiff] had a

15 statutory right to be advised and represented by counsel. 5 U.S.C.A. § 555(b).”). Given

16 the circumstances in which the non-refoulement interview takes place, Petitioners are

17 “compelled” to appear for the purposes of § 555(b).

18

The Court’s conclusion that asylum seekers have a right to access retained counsel

19 prior to and during non-refoulement interviews is required by the text of § 555(b) and §

20 559 of the APA. Petitioners have established a likelihood of success on their statutory

21 claim under the APA, 5 U.S.C. § 555(b).6

22 ///

23 ///

24

25

26 6 In light of Petitioners’ likelihood of success on their first claim for relief under the APA,

27 the Court declines to address the balance of Petitioners’ statutory and constitutional claims

28

under the INA and the First and Fifth Amendments to the United States Constitution. (See Class Action Compl. and Petition for Writ of Habeas Corpus, ECF No. 1, at 23–26).

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1 B. Irreparable Injury

2

Turning to the next factor, Plaintiffs must show they are “ ‘likely to suffer irreparable

3 harm in the absence of preliminary relief.’ ” Hernandez v. Sessions, 872 F.3d 976, 994

4 (9th Cir. 2017) (quoting Winter, 555 U.S. at 20). Respondents argue Petitioners have not

5 demonstrated an immediate threatened injury, but only a speculative injury. (Resp. in

6 Opp’n to Prelim. Inj. at 30). Specifically, Respondents argue that Petitioners’ showing is

7 lacking because (1) they have not identified “any named class members who would suffer

8 irreparable harm in the absence of injunctive relief, and (2) even if the unnamed,

9 unidentified class members obtained the relief sought and were able to have [an] attorney

10 present during their interview they could very well still nonetheless be returned to Mexico.”

11 (Id.). Petitioners allege that without access to counsel, class members risk the irreparable

12 harm of a non-reviewable, erroneous decision that forces them to return to Mexico to face

13 persecution and torture. (Mot. for TRO at 32–33).

14

Petitioners’ declarations provide sufficient evidence to establish a likelihood of

15 irreparable injury. Petitioners’ first non-refoulement interview, in which counsel was not

16 present, resulted in a negative assessment of fear. (Caudill-Mirillo Decl. at ¶ 5).

17 Petitioners’ second interview, in which counsel was present, resulted in a positive

18 assessment of fear. (Id. at ¶ 7). Respondents suggest Petitioners provided the USCIS

19 Asylum Officer with information concerning “additional threats” that occurred “between

20 the first and second interview.” (Id.). Petitioners’ counsel, however, notes that during the

21 interview, she “identif[ied] discrepancies with the interpretation and add[ed] to the record

22 by eliciting important testimony from [Petitioner] Cristian Doe.” (Rep. in Supp. of Prelim.

23 Inj., Declaration of Stephanie Blumberg (“Blumberg Decl.”), at ¶ 5). The presence of

24 counsel was clearly helpful to Petitioner Cristian Doe in presenting his fear of return to

25 Mexico. Given the stakes of a non-refoulement interview—the return to a country in which

26 one may face persecution and torture—and the interview’s fact-intensive nature, it is

27 undeniable that access to counsel is important.

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1

The fact that some class members may still be returned to Mexico, despite having

2 an attorney present during their non-refoulement interview, does not preclude a finding of

3 irreparable injury. Petitioners “need not further show that the action sought to be enjoined

4 is the exclusive cause of the injury.” M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012).

5 It is enough to find that injunctive relief will prevent additional suffering, persecution, and

6 torture. See Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004) (finding the

7 plaintiff satisfied the irreparable injury element because the injunctive relief prevented

8 “exacerbation of the current . . . situation and additional suffering”). In addition,

9 deprivation of the right to retained counsel for an interview of this magnitude is an injury

10 itself. Accordingly, the Court finds Petitioners have shown a likelihood of irreparable

11 injury.

12 C. Balance of Equities

13

“To obtain a preliminary injunction, a plaintiff must also demonstrate that ‘the

14 balance of equities tips in his favor.’ ” Hernandez, 872 F.3d at 995 (quoting Winter, 555

15 U.S. at 20). Respondents argue the balance of equities weighs against granting injunctive

16 relief because “the Government will be required to comply with additional procedural

17 prerequisites in numerous non-refoulement interviews in California going forward.”

18 (Resp. in Opp’n to Prelim. Inj. at 31). Respondents further contend that an injunction

19 would threaten national security and hinder immigration officers from addressing “the flow

20 of illegal immigration.” (Id.). Respondents’ declarations note the heightened security at

21 border patrol stations, the border patrol’s limited staff and space, and the likelihood of

22 asylum seekers’ counsel overhearing sensitive information. (See Garrett Decl. at ¶¶ 14–

23 17; Marin Decl. at ¶¶ 21–24).

24

The balance of equities weighs in favor of granting the preliminary injunction,

25 despite Respondents’ allegations. Although Respondents will be required to comply with

26 additional procedural requirements prior to and during non-refoulement interviews, those

27 procedural requirements are required by federal law, specifically the APA. Respondents

28 “cannot reasonably assert that [they are] harmed in any legally cognizable sense” by being

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1 compelled to the follow the law. Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983).

2 Furthermore, if injunctive relief is not granted, class members face the possibility of being

3 forced to return to Mexico to suffer persecution, torture, and potentially death. The balance

4 of equities, therefore, favors preventing the violation of “requirements of federal law.”

5 Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014).

6 D. Public Interest

7

The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

8 996 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (“When, as

9 here, ‘the impact of an injunction reaches beyond the parties, carrying with it a potential

10 for public consequences, the public interest will be relevant to whether the district court

11 grants the preliminary injunction.’ ”)) To obtain the requested relief, “[Petitioners] must

12 demonstrate that the public interest favors granting the injunction ‘in light of [its] likely

13 consequences,’ i.e., ‘consequences [that are not] too remote, insubstantial, or speculative

14 and [are] supported by evidence.’ ” Id. (quoting Stormans, 586 F.3d at 1139).

15 Respondents contend that the “public interest favors the efficient administration of

16 immigration laws at the border” and thus, favors the Government. (Resp. in Opp’n to

17 Prelim. Inj. at 31 (citing Innovation Law Lab v. McAleenan, 924 F.3d 503, 510 (9th Cir.

18 2019)).

19

As explained in the Court’s Order granting Petitioners’ motion for TRO, the public

20 interest is served by allowing class members access to retained counsel prior to and during

21 non-refoulement interviews. It would not be “in the public’s interest to allow

22 [Respondents] . . . to violate the requirements of federal law, especially when there are not

23 adequate remedies available.” Ariz. Dream Act Coal., 757 F.3d at 1069 (quoting

24 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). Federal law, specifically the

25 APA, requires class members to have access to retained counsel prior to and during non-

26 refoulement interviews. Respondents have failed to demonstrate how complying with this

27 legal requirement will impede the efficient administration of immigration laws at the

28 border. Furthermore, Respondents’ argument that it lacks the staff and space required to

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1 comply with the APA is not persuasive, for Respondents elected to implement the MPP

2 and detain asylum seekers in CBP custody pending non-refoulement interviews. As

3 Petitioners note, Respondents “cannot bootstrap [their] choices into justifications for those

4 choices.” (Rep. in Supp. of Prelim. Inj. at 8). Therefore, the public’s interest weighs in

5 favor of granting injunctive relief.

6 E. In-Person Access

7

In its Order granting Petitioners’ motion for TRO, the Court asked the parties to

8 address whether the APA’s right to access retained counsel provided for in-person access

9 or only telephonic access. Respondents contend (1) Petitioners did not demand in-person

10 access in their Complaint, (2) courts have upheld restrictions on defendants’

11 communication with counsel within the Sixth Amendment context, and (3) § 555(b)’s right

12 to be ‘accompanied’ does not extend to being represented in ‘an agency proceeding.’

13 (Resp. in Opp’n of Prelim. Inj. at 22). Petitioners argue they expressly sought to enjoin

14 Respondents from “preventing confidential visits” with class members in their Complaint,

15 and therefore, demanded the appropriate relief from the outset. (Class Action Compl. and

16 Petition for Writ of Habeas Corpus, ECF No. 1, at 27). Petitioners further argue it is

17 assumed that § 555(b)’s right to counsel includes in-person access given the importance of

18 face-to-face communication. Neither party has provided case law concerning in-person,

19 as opposed to telephonic, access to counsel within the context of § 555(b) of the APA.

20

Before considering the text of § 555(b), the Court must address whether Petitioners

21 adequately raised the issue of in-person access to counsel in their Complaint. It “is

22 axiomatic that the complaint may not be amended by the briefs.” Candor v. United States,

23 1 F. Supp. 3d 1076, 1082 (S.D. Cal. 2014) (internal quotation omitted). Petitioners’

24 Complaint includes the word ‘visit’ nine times. Petitioners allege that CBP does not “allow

25 attorneys representing persons in its custody to visit such persons for the purpose of

26 confidential legal advice,” and CBP has “a policy and practice of denying requests for in-

27 person visits or confidential telephonic communication with counsel at its holding

28 facilities.” (Class Action Compl. and Petition for Writ of Habeas Corpus, ECF No. 1, at 9,

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1 15). Petitioners allege that as a result of CBP’s policy, “lawyers are unable to locate, visit

2 or make confidential phone calls with their clients.” (Id. at 16). Petitioners also note that

3 the common questions of law and fact as to all class members include “whether they are

4 denied confidential visitation or communication with retained counsel.” (Id. at 21).

5 Finally, Petitioners’ prayer for relief includes a request that the Court enjoin Defendants

6 from “preventing confidential legal visits.” (Id. at 27). Given Petitioners’ allegations and

7 requests of the Court in their Complaint, the Court finds the question of whether access to

8 retained counsel includes in-person access is properly before the Court.

9

As noted above, § 555(b) of the APA contains two provisions providing access to

10 retained counsel. The Court has already found that the first provision applies to non-

11 refoulement interviews. This provision reads: “A person compelled to appear in person

12 before an agency or representative thereof is entitled to be accompanied, represented, and

13 advised by counsel or, if permitted by the agency, by other qualified representative.” 5

14 U.S.C. § 555(b). The pertinent word is “accompanied.” Black’s Law Dictionary defines

15 ‘accompany’ as “[t]o go along with” or “to attend.” Black’s Law Dictionary (11th ed.

16 2019). This definition suggests § 555(b) envisioned in-person access to counsel. See also

17 United States v. McPhaul, 617 F. Supp. 58, 59 (W.D.N.C. 1985) (“Under 5 U.S.C. §

18 555(b), there is a right to have counsel present whenever a person is compelled to appear.”).

19 Although Petitioners have conceded telephonic access to counsel during the non-

20 refoulement interviews is sufficient, Petitioners have maintained the need for in-person

21 access prior to non-refoulement interviews. (Rep. in Supp. of TRO at 3 n.2). Therefore,

22 given the text of § 555(b), class members are entitled to in-person access to retained counsel

23 prior to their non-refoulement interviews.

24

III.

25

CONCLUSION AND ORDER

26

For these reasons, Petitioners’ motion for classwide preliminary injunction is

27 granted. Respondents may not conduct class members’ non-refoulement interviews

28

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1 without first affording the interviewees access to their retained counsel both before and

2 during any such interview.

3

IT IS SO ORDERED.

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5 Dated: January 14, 2020

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