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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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Concely Del Carmen MENDEZ ROJAS, Elmer 10 Geovanni RODRIGUEZ ESCOBAR, Lidia

11 Margarita LOPEZ ORELLANA, and Maribel

No.:

SUAREZ GARCIA, on behalf of themselves as

12 individuals and on behalf of others similarly

situated,
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v.

Plaintiffs,

COMPLAINT—CLASS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF AND MANDAMUS

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Jeh JOHNSON, Secretary of the Department of 17 Homeland Security, in his official capacity; 18 Loretta E. LYNCH, Attorney General of the
United States, in her official capacity; Thomas S. 19 WINKOWSKI, Principal Deputy Assistant
Secretary for United States Immigration and 20 Customs Enforcement, in his official capacity; 21 Leon RODRIGUEZ, Director of United States
Customs and Immigration Services, in his official 22 capacity; R. GIL KERLIKOWSKE,
Commissioner of U.S. Customs and Border 23 Protection, in his official capacity; and JUAN P. 24 OSUNA, Director of the Executive Office for
Immigration Review, in his official capacity,
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Defendants.

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INTRODUCTION

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1. Plaintiffs are individuals who fled persecution in their countries of origin and who seek to

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apply for asylum. The U.S. government, aware of their fear of return, has authorized them to remain
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5 in the United States to pursue their claims.

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2. Under the Immigration and Nationality Act (INA) and its implementing regulations—as well

7 as under the Due Process Clause—Plaintiffs have an indisputable right to seek asylum and to a fair
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opportunity to present their claims. But Plaintiffs’ ability to seek asylum has been thwarted by a
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government process that is anything but fair; indeed, it conflicts with fundamental notions of due
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11 process: notice and the opportunity to be heard.

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3. Plaintiffs challenge Defendants’ policies and practices of unlawfully depriving them of

13 notice that there is a one-year statutory deadline from their date of arrival in the United States in

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which to file an application for asylum, see 8 U.S.C. § 1158(a)(2)(B), and of unlawfully failing to
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implement a mechanism that ensures them an opportunity to comply with that deadline.
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4. As a result of Defendants’ unlawful actions, Plaintiffs, and the class members they seek to

18 represent, are not informed of either the steps they must take in order to timely apply for asylum or

19 the drastic immigration consequence that ensues if they fail to timely apply—disqualification from
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seeking asylum. Defendants’ unlawful deprivation of Plaintiffs’ and putative class members’ right
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to seek asylum not only violates our nation’s commitment to the rule of law and principles of
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23 fairness, but also causes severe and irreparable suffering by depriving individuals of rights and

24 benefits afforded through the asylum process, including protection from removal to the countries in
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which they fear persecution, as well as the right to become lawful permanent residents, to travel, and
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to reunite with family members.
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5. Defendants’ policies and practices prevent many of those Plaintiffs and putative class

2 members, even if they are fortunate enough to learn of the statutory deadline, from complying with
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it. This is because there is no standard procedure in place by which an asylum seeker can submit her
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5 application and ensure that it is treated as timely filed by the adjudicating agency. The process an
6 asylum seeker must pursue to apply for asylum depends upon whether removal proceedings have

7 been initiated. 8 C.F.R. § 1208.4(b).1 If an applicant is not in removal proceedings, U.S. Citizenship
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and Immigration Services (USCIS) has jurisdiction over the application and, thus, the applicant must
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file with USCIS (known as an “affirmative” filing). 8 C.F.R. §§ 1208.4(b)(1), (2), and (5). If an
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11 applicant is or was in removal proceedings, the Executive Office for Immigration Review (EOIR),

12 which consists of the immigration courts and the Board of Immigration Appeals (BIA or Board), has

13 jurisdiction and, thus, the applicant must file with EOIR (known as a “defensive” filing). 8 C.F.R.
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§§ 1208.4(b)(3), (4).
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6. Defendants’ policies and practices prevent asylum seekers from complying with the one-year
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17 deadline in two ways. First, DHS agents often issue a charging document (known as a Notice to

18 Appear or NTA) and serve it on the individual, but delay filing it with the immigration court—

19 sometimes for months or even a year or longer. In addition, even when DHS submits the NTA to the
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immigration court, some immigration courts are so backlogged that they do not actually file the NTA
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in the EOIR system until months, or even more than a year, later. When either of these situations
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23 occurs, the individual is left in a “Catch-22.” If she tries to file her application with USCIS, that

24 agency generally refuses to accept the individual’s asylum application, claiming the person already
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Removal proceedings are initiated when the Department of Homeland Security (DHS) “files” the

charging document, known as the Notice to Appear (NTA), with the immigration court. 8 C.F.R. §

28 1003.14(a). Filing requires DHS to deliver the NTA to EOIR and EOIR to process the NTA by entering it

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1 is in removal proceedings because an NTA was issued. At the same time, the immigration court will

2 not accept the asylum application because the charging document has not yet been filed. The
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individual is left in limbo—without a mechanism to file the application until the charging document
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5 is filed with the immigration court, an event over which the applicant has no control. As a result,
6 individuals often miss the one-year deadline for reasons beyond their control.

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7. For individuals in removal proceedings, Defendants’ regulations state that an asylum

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application is “filed” for purposes of meeting the one-year deadline if it is “received by” an
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immigration court or the BIA. 8 C.F.R. §§ 208.4(a)(2)(B)(ii); 1208.4(a)(2). However, EOIR’s sub-
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11 regulatory policy, found in the Immigration Court Practice Manual and in a policy memorandum, is

12 that an asylum application is properly filed only if submitted in immigration court at a master

13 calendar hearing before an immigration judge. Immigration Court Practice Manual § 3.1(b)(iii)(A)
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(“Defensive asylum applications are filed in open court at a master calendar hearing.”), available at
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https://www.justice.gov/eoir/office-chief-immigration-judge-0. Yet, immigration court dockets are
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17 so backlogged that when the charging documents are filed and entered into EOIR’s case docketing

18 system, these individuals’ first immigration hearings routinely are scheduled well beyond a year,

19 after the one-year deadline has passed. Upon information and belief, while a handful of immigration
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courts have adopted their own informal policies in an effort to remedy this problem, such policies
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are not the norm and are subject to change at any point. The vast majority of putative class members
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23 whose hearings are scheduled beyond their one-year deadlines have no guaranteed mechanism for

24 complying with the deadline.
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into its system. Individuals may call EOIR’s 1-800 number hotline and enter their immigration number (A28 number) to determine whether they have been placed in removal proceedings.

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8. At no point in this process does DHS inform asylum seekers that they must file their

2 applications within a year of their arrival in the United States. Instead, even though DHS releases
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persons into the United States for the express purpose of applying for asylum, the agency never
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5 advises them that they must file a specific application within one year of arrival. It is often only
6 when individuals arrive with their applications in immigration court, frequently after the one-year

7 deadline has elapsed, that they first learn of the statutory time period. This lack of notice of the
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asylum deadline, combined with the failure to establish and implement a mechanism that ensures
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applicants have an opportunity to comply with the deadline, violates the INA and its implementing
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11 regulations, as well as the Due Process Clause of the Fifth Amendment.

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9. Providing vulnerable asylum seekers with fair notice and an opportunity to apply for asylum

13 is central to our laws, and is a basic tenet of international law and the domestic laws of countless
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nations throughout the world.
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10. Plaintiffs seek declaratory and injunctive relief to remedy Defendants’ unlawful failure to
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17 provide notice of the one-year deadline as well as a meaningful opportunity to comply with that

18 deadline. Plaintiffs seek this Court’s intervention to compel Defendants Johnson, Winkowski,

19 Rodriguez, and Kerlikowske and the agencies they direct (collectively, the DHS Defendants) to
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provide notice of the one-year deadline set forth in 8 U.S.C. § 1158(a)(2)(B), and to compel the DHS
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Defendants and Defendants Loretta E. Lynch and Juan P. Osuna of the Department of Justice (DOJ)
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23 (collectively, the DOJ Defendants) to establish and implement a mechanism that ensures that

24 putative class members are able to comply with that deadline.
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JURISDICTION AND VENUE

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11. This case arises under the United States Constitution; the INA, 8 U.S.C. § 1101 et seq.; the

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regulations implementing the INA’s asylum process; and the Administrative Procedure Act (APA), 5
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5 U.S.C. § 701 et seq.

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12. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, as a civil action arising

7 under the laws of the United States, and the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361.

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Declaratory judgment is sought pursuant to 28 U.S.C. §§ 2201-02. The United States has waived its
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sovereign immunity pursuant to 5 U.S.C. § 702.
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13. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because Defendants

12 are officers or employees of the United States or agencies thereof acting in their official capacities.

13 A substantial part of the events or omissions giving rise to the claims occurred in this district, and
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Plaintiffs Elmer Geovanni Rodriguez Escobar, Concely del Carmen Mendez Rojas, and Maribel
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Suarez Garcia reside in this district, as do many putative class members. In addition, no real
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17 property is involved in this action.

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PARTIES

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14. Plaintiff Elmer Geovanni Rodriguez Escobar is a 37-year-old asylum seeker from Honduras.

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He resides in Burien, Washington. Mr. Rodriguez entered the United States in July 2014 and
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established a credible fear of persecution in an interview with DHS. Subsequently, he was released
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23 from DHS custody with an NTA, but at no point did DHS advise him of the one-year deadline. Mr.

24 Rodriguez is not currently in removal proceedings, and has been unable to file his application for
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asylum, as both USCIS and EOIR have rejected his attempts to file his application with them.
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15. Plaintiff Concely del Carmen Mendez Rojas is a 30-year-old asylum seeker from the
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28 Dominican Republic. She resides in Burien, Washington. Ms. Mendez entered the United States in

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1 September 2013 and established a credible fear of persecution in an interview with DHS.
2 Subsequently, she was released from DHS custody with an NTA, but at no point did DHS advise her
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of the one-year deadline. Ms. Mendez attempted to file an asylum application with USCIS before
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5 being placed in removal proceedings, but USCIS rejected her application. She is unable to file an
6 asylum application until she appears in open court at a master calendar hearing scheduled by the
7 immigration court. Instead, she has only been able to “lodge” her asylum application with the
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immigration court. An application is “lodged” when presented at the court clerk’s window for
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purposes of initiating a “clock” to record the waiting period for eligibility for applying for
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11 employment authorization. Operating Policy and Procedures Memorandum No. 13-03, “Guidelines
12 for Implementation of the ABT Settlement Agreement,” (Dec. 2, 2013) at 2 available at
13 https://www.justice.gov/sites/default/files/eoir/legacy/2013/12/03/13-03.pdf. However, the Court
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does not file the application in EOIR’s system, but instead returns the application form after
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stamping the document as “lodged but not filed” for purposes of employment authorization
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17 applications. Id. Ms. Mendez was only able to “lodge” the application after the NTA was
18 eventually filed with the immigration court, which occurred after the one-year deadline. Her first
19 immigration court hearing will be in August 2016.
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16. Plaintiff Lidia Margarita Lopez Orellana is a 37-year-old asylum seeker from Guatemala.
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She resides in Austin, Texas, with her three children. She and her two youngest children arrived in
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23 the United States at the Eagle Pass, Texas, port of entry on February 28, 2014. There, Ms. Lopez
24 informed DHS officials that she was afraid of returning to Guatemala. Shortly afterwards, DHS
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issued NTAs to Ms. Lopez and her children and then released them into the United States to await a
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removal hearing. At no point did any DHS official inform Ms. Lopez that she was required to file an
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28 application for asylum within one year of her most recent entry into the United States. She first

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1 learned of this requirement more than a year later, after she was able to retain counsel. She then

2 lodged her asylum application with the San Antonio Immigration Court, in January 2016. On the
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same day, her removal proceedings were terminated. Subsequently, she filed an affirmative asylum
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5 application one month later on February 15, 2016.

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17. Plaintiff Maribel Suarez Garcia is a 29-year-old asylum seeker from Mexico. She resides in

7 Yelm, Washington, with her five young children. She and her children arrived at the Otay Mesa,
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California, port of entry in November 2013. Upon her arrival, Ms. Suarez informed DHS officials
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that she was afraid of returning to Mexico and that she was seeking asylum in the United States. She
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11 provided a sworn statement to DHS officials regarding her fear of returning to Mexico. Shortly

12 afterwards, DHS issued NTAs to her and her children, and paroled them into the United States to

13 await a removal hearing. At no point did DHS inform Ms. Suarez of her obligation to file an
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application for asylum within one year of her arrival. She first learned of this requirement more than
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a year later, after she was able to retain counsel. She then promptly lodged her application with the
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17 San Francisco Immigration Court. Ms. Suarez is scheduled for an individual hearing in May 2017.

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18. Defendant Jeh Johnson is sued in his official capacity as the Secretary of DHS. In this

19 capacity, he directs each of the component agencies within DHS, including United States
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Immigration and Customs Enforcement (ICE), USCIS, and CBP. As a result, in his official capacity,
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Defendant Johnson is responsible for the administration of the immigration laws pursuant to 8
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23 U.S.C. § 1103, and is empowered to grant asylum or other relief.

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19. Defendant Loretta E. Lynch is sued in her official capacity as the Attorney General of the

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United States and the head of the Department of Justice. In this capacity, she is responsible for the
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administration of the immigration laws pursuant to 8 U.S.C. § 1103, oversees EOIR, and is
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28 empowered to grant asylum or other relief.

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20. Defendant Thomas S. Winkowski is sued in his official capacity as the Principal Deputy

2 Assistant Secretary for ICE, which is the sub-agency of DHS that operates and oversees the
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prosecution of individuals apprehended near the border and either detained or released into the
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5 United States.

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21. Defendant Leon Rodriguez is sued in his official capacity as the Director of USCIS, which is

7 the sub-agency of DHS that, through its asylum officers, both conducts interviews of individuals

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placed in expedited removal to determine whether they have a credible fear of persecution and
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should be permitted to apply for asylum, and also adjudicates affirmative asylum applications.
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22. Defendant R. Gil Kerlikowske is sued in his official capacity as the Commissioner of CBP,

12 which is the sub-agency of DHS that is responsible for the initial processing and detention of

13 noncitizens who are apprehended near the border and either detained or paroled into the United
14
States.
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23. Defendant Juan P. Osuna is sued in his official capacity as Director of the EOIR, which is an
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17 agency of the Department of Justice. In this capacity, he is responsible for overseeing the Board’s

18 principal mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly

19 interpreting and administering the Nation’s immigration laws,” available at:
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http://www.justice.gov/eoir/. In addition, he has responsibility for the supervision of all personnel
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employed by the Executive Office for Immigration Review in carrying out their regulatory duties.
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23 See http://www.justice.gov/eoir/odinfo.htm.

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BACKGROUND

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24. This case involves asylum seekers whom DHS apprehends at or near the border and who

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express a fear of return to their countries of origin. Upon apprehension, a DHS officer must either
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5 refer the individual to an asylum officer to make an initial assessment of the claim (known as a

6 credible fear interview) or issue an NTA and release her from custody pending removal removal

7 proceedings.
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A. Credible Fear Entrants
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25. Congress created an expedited removal system and “credible fear” process in 1996. 8 U.S.C.
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11 § 1225 et seq. (setting forth the expedited removal system). As enacted by Congress, the expedited

12 removal system involves a more streamlined removal process than regular removal proceedings

13 under 8 U.S.C. § 1229a and is reserved for people apprehended at or near the border. See 8 U.S.C. §
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1225(b)(1)(A)(i) (permitting certain persons who are seeking admission at the border of the United
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States to be expeditiously removed without a full immigration judge hearing); 8 U.S.C. §
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17 1225(b)(1)(A)(iii) (authorizing the Attorney General to apply expedited removal to certain

18 inadmissible noncitizens located within the United States); 69 Fed. Reg. 48,877 (Aug. 11, 2004)

19 (providing that the Attorney General will apply expedited removal to persons within the United
20
States who are allegedly apprehended within 100 miles of the border and who are unable to
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demonstrate that they have been continuously physically present in the United States for the
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23 preceding 14-day period).

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26. Critically, however, Congress included safeguards in the statute to ensure that refugees are

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not returned to their countries of origin to face persecution. Congress recognized the high stakes
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involved in short-circuiting the formal removal process and the constitutional constraints under
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1 which it operates, and created specific procedures with particularly detailed requirements for

2 handling asylum claims.
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27. The expedited removal statute provides that the process begins with an inspection by an
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5 immigration officer, who makes a determination about the individual’s admissibility to the United
6 States. Of particular relevance here, if the individual indicates either an intention to apply for

7 asylum or any fear of return to his or her home country, the immigration officer must refer the

8
individual for an interview with an asylum officer. 8 U.S.C. § 1225(b)(1)(A)(ii), (B); 8 C.F.R.
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§ 235.3(b)(4).
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28. Under the applicable regulations, after a noncitizen is referred for an interview, the asylum

12 officer then conducts a “credible fear interview,” which is designed “to elicit all relevant and useful

13 information bearing on whether the applicant has a credible fear of persecution or torture.” 8 C.F.R.
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§ 208.30(d). At the conclusion of the interview, the asylum officer must create a written summary of
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the “material facts” provided during the interview, review that summary with the individual, and
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17 provide him or her with the opportunity to correct any errors. 8 C.F.R. § 208.30(d)(6).

18

29. If an asylum officer determines that an applicant satisfies the credible fear standard, the

19 applicant is taken out of the expedited removal system altogether, and charging documents are
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issued and served upon the individual, placing the applicant into regular (8 U.S.C. § 1229a) removal
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proceedings where she has the opportunity to develop a full record before an IJ, apply for asylum
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23 and any other relief that may be available, and appeal an adverse decision to the BIA and court of

24 appeals. 8 C.F.R. §§ 208.30(f), 1003.43(f) and 1208.30; see also 8 U.S.C. § 1225(b)(1)(B)(ii).2
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If the asylum officer makes a negative credible fear determination, the officer must provide a written

28 record of the determination and, upon request, the individual must be provided with prompt review of the

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30. Following a determination that an individual has a credible fear, and thus credible fear

2 proceedings are no longer pending, and while the person is in custody, DHS has an affirmative duty
3
to provide her “the appropriate application forms,” and to provide her with information regarding the
4
5 consequences of knowingly filing a frivolous asylum application and information about
6 representation by counsel. 8 C.F.R. § 208.5(a). Additionally, once an individual has passed a

7 credible fear determination, DHS makes a determination of whether to continue detaining the

8
individual, or to release the applicant on parole, bond, or on their own recognizance. 8 U.S.C. §
9
1226(a).
10

11

31. None of the documentation provided by DHS to these applicants upon release contains: (1)

12 notice of the one-year deadline for filing an asylum application in 8 U.S.C. § 1158(a)(2)(B); or (2)

13 instructions on how to timely file the application, even though they expressed a fear of returning to
14
their country of origin and/or a desire to apply for asylum, and were permitted to remain in the
15
country for the specific purpose of pursuing their asylum claims. Moreover, at no point in the
16
17 credible fear process, not even after the individuals are found to have a credible fear and thus are

18 taken out of the expedited removal process, are asylum officers required to provide notice of the

19 one-year deadline.
20
B. Other Entrants
21
32. Upon apprehension of persons seeking asylum, a DHS officer may elect not to initiate
22
23 expedited removal proceedings and the credible fear process. Instead, DHS may parole into the

24 United States or release from custody an individual who expresses a desire to apply for asylum or a
25

26

27
determination by an immigration judge. 8 U.S.C. § 1225(b)(1)(B)(iii)(II)-(III); see also 8 C.F.R. §§ 28 208.30(g)(1), 1003.42, 1208.30. DHS may deport individuals who do not establish a credible fear.

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1 fear to return to her country of origin into the United States. See 8 U.S.C. §1182(d) (authorizing

2 parole).
3
33. Thus, a DHS agent may decide to place an individual who appears to be inadmissible in
4
5 regular removal proceedings under 8 U.S.C. § 1229a rather than expedited removal proceedings
6 under 8 U.S.C. § 1225(b); in such case, the individual may be detained; however, DHS may consider

7 releasing the person on parole under 8 U.S.C. § 1182(d)(5) or on bond or on her own recognizance.
8
8 C.F.R. § 235.3(c).
9
34. DHS may grant parole on a case-by-case basis for “urgent humanitarian reasons” or where it
10
11 would serve a “significant public benefit,” provided the individual does not present a security risk or

12 a risk of absconding. 8 C.F.R. § 212.5(a). Individuals who may be paroled include those with

13 medical conditions, pregnant women, juveniles, and those “whose continued detention” DHS

14
determines is not in the public interest. 8 C.F.R § 212.5(b). DHS also may release a person from
15
custody on bond or on her own recognizance. 8 U.S.C. § 1226.
16

17

35. While the person is in custody, DHS has an affirmative duty to provide her “the appropriate

18 application forms,” and to provide her with information regarding the consequences of knowingly

19 filing a frivolous asylum application and information about representation by counsel. 8 C.F.R. §
20
208.5(a).
21
36. DHS may require reasonable assurance that the individual will appear at a hearing and/or
22
23 depart the United States if required. 8 C.F.R. § 212.5(d). DHS may also require that the individual

24 post a bond, demonstrate close community ties such as a relative with a known address, or agree to
25
other reasonable conditions for parole. Id.
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37. Where parole or release from custody is granted, DHS generally issues an NTA and, in

2 parole cases, must issue a Form I-94 (Entry/Exit form) endorsed with a parole stamp. 8 C.F.R. §

3
235.1(h)(2).
4

5

38. None of the documentation provided by DHS to these individuals upon release contains: (1)

6 notice of the one-year deadline for filing an asylum application in 8 U.S.C. § 1158(a)(2)(B); or (2)

7 instructions on how to timely file the application, even though they expressed a fear of returning to
8
their country of origin and/or a desire to apply for asylum, and were paroled into the country for the
9
express purpose of pursuing their asylum claims. Moreover, at no point in the parole or release
10
11 process, not even after the individuals have expressed their intention to seek asylum, are asylum

12 officers required to provide notice of the one-year deadline.

13

C. Asylum and the One-Year Deadline

14
39. To prevail on an asylum claim, an applicant must demonstrate that she cannot return to her
15
country of origin “because of persecution or a well-founded fear of persecution on account of race,
16

17 religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §

18 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A).

19

40. Those who are granted asylum in the United States may not be removed to the country in

20
which they face persecution. 8 U.S.C. § 1158(c)(1)(A). In addition, asylees may file a petition to
21

22 accord their spouse and/or children derivative asylum status. 8 C.F.R. § 208.21(a). Asylees may

23 also apply for permission to travel in and out of the United States. 8 C.F.R. § 223.1(b). Finally,
24

25

26

27

28

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1 after they have held that status for at least one year, asylees may adjust their status to that of a lawful
2 permanent resident. 8 U.S.C. § 1159(b).3
3
41. In 1996, for the first time, Congress enacted a deadline requiring asylum seekers to file an
4
5 application within one year of their last arrival in the United States. 8 U.S.C. § 1158(a)(2)(B)

6 provides:

7

Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the

8

alien demonstrates by clear and convincing evidence that the application has been

filed within 1 year after the date of the alien’s arrival in the United States.

9

In enacting this provision, Congress sought to bar from asylum those noncitizens who, as an
10

11 example, were arrested by the immigration authorities after having been in the United States

12 for “2, 3 years, and . . . say, ‘I am seeking asylum’ because they know that these procedures
13 are interminable.” 142 CONG. REC. S4468 (daily ed. May 1, 1996) (statement of Sen.
14
Simpson). Congress affirmed, however, that it remained “committed to ensuring that those
15
with legitimate claims of asylum are not returned to persecution . . .” 142 CONG. REC. S11,
16
17 840 (daily ed. Sept. 30, 1996) (statement of Sen. Hatch).

18

42. The deadline contains two exceptions: (1) an exception for asylum seekers who prove the

19
existence of “changed circumstances … materially affect[ing] the[ir] … eligibility for asylum”; and
20
(2) an exception for asylum seekers who prove the existence of “extraordinary circumstances
21
22 relating to the[ir] delay in filing an application” by the deadline. 8 U.S.C. § 1158(a)(2)(D).

23

24 3

Other forms of protection that may be available to someone fleeing persecution provide less security

and fewer benefits than is provided by a grant of asylum. An applicant who is not eligible for asylum may 25 still qualify for protection under 8 U.S.C. § 1231(b)(3)(B) (withholding of removal) or under the Convention

Against Torture (CAT). 8 C.F.R. §§ 1003.42(d); 1208.30(g)(2)(iv)(C). However, to qualify for either form 26 of protection, an applicant must establish a much higher likelihood of future harm—i.e., that persecution or

27 torture is more likely than not. For CAT protection, the applicant must meet other requirements that are not applicable to an asylum claim. Moreover, unlike asylum, neither provides an avenue to lawful permanent

28 residence and eventual citizenship.

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1

43. Congress enacted these exceptions to provide “adequate protections to legitimate asylum

2 claimants.” 142 CONG. REC. S11, 491 (daily ed. Sept. 27, 1996) (statement of Sen. Hatch).
3
Congress emphasized that it did not want to see legitimate asylum seekers “returned to persecution”
4
5 due to mere “technical deficiencies” in their asylum applications, like the expiration of the one-year
6 deadline. Id. (statement of Sen. Hatch).

7

44. Following the enactment of the deadline, Defendants promulgated regulations to implement

8
it. In relevant part, the regulations provide:

9

One-year filing deadline. (i) For purposes of [8 U.S.C. § 1158(a)(2)(B)], an applicant

10

has the burden of proving:

11
(A) By clear and convincing evidence that the application has been filed within 1 year

12

of the date of the alien’s arrival in the United States, or

13

(B) To the satisfaction of the asylum officer, the immigration judge or the Board that

14

he or she qualifies for an exception to the 1-year deadline.

15

The 1-year period shall be calculated from the date of the alien’s last arrival in

the United States or April 1, 1997, whichever is later. . . . For the purpose of making

16

determinations under [8 U.S.C. § 1158(a)(2)(B)] only, an application is considered to

17

have been filed on the date it is received by the Service, pursuant to § 103.2(a)(7) of

this chapter. In a case in which the application has not been received by

18

the Service within 1 year from the applicant’s date of entry into the United States, but

the applicant provides clear and convincing documentary evidence of mailing

19

the application within the 1-year period, the mailing date shall be considered the

20

filing date. For cases before the Immigration Court in accordance with § 3.13 of this

chapter, the application is considered to have been filed on the date it is received by

21

the Immigration Court. For cases before the Board of Immigration Appeals, the

application is considered to have been filed on the date it is received by the Board. In

22

the case of an application that appears to have been filed more than a year after the

23

applicant arrived in the United States, the asylum officer, the immigration judge, or

the Board will determine whether the applicant qualifies for an exception to the

24

deadline. . . .

25
8 C.F.R. § 208.4(a)(2) (DHS), 8 C.F.R. § 1208.4(a)(2) (emphasis added).
26

27

28

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1

45. Accordingly, an individual may apply for asylum affirmatively by sending an application on

2 Form I-589 to USCIS (if she is not in removal proceedings) or defensively in immigration court

3
(also using Form I-589 if removal proceedings have been initiated).
4

5

46. An applicant who applies affirmatively must attend an interview with a USCIS asylum

6 officer, who may grant, deny, refer, or dismiss the application. 8 C.F.R. §§ 208.9(b), 208.14(c),

7 1208.9(b), and 1208.14(c). If the asylum officer refers the application, it is sent to an immigration
8
judge for adjudication in removal proceedings. 8 C.F.R. §§ 208.14(c), 1208.14(c). The asylum
9
application is then considered a “defensive” asylum application. An immigration judge reviews de
10
11 novo the previously filed asylum application, which may be amended or supplemented, without the

12 applicant having to file a new asylum application. 8 C.F.R. § 1208.4(c).

13

47. Asylum applicants who already are in removal proceedings must file their asylum

14
applications directly with EOIR. In these cases, the regulations require that the asylum application
15
be filed with the “immigration court.” 8 C.F.R. § 1208.4(b)(3). The application is “filed” for
16

17 purposes of meeting the deadline if it is “received by” an immigration court or the Board. 8 C.F.R.

18 §§ 208.4(a)(2)(B)(ii); 1208.4(a)(2)(B)(ii).

19

48. Unlike other applications and pleadings which may be filed with the immigration court at any

20
time, EOIR’s sub-regulatory policy and practice requires asylum applications to be filed only at a
21

hearing before an immigration judge. See Immigration Court Manual, 3.1(b)(iii)(A), supra; Revised
22

23 Operating Policy and Procedures Memorandum No. 00-01, “Asylum Request Processing (Aug. 4,

24 2000) (OPPM 00-01) at 15, available at:
25
https://www.justice.gov/sites/default/files/eoir/legacy/2002/02/15/OPPM00-01Revised.pdf (“Local
26
Court rules notwithstanding, including any such rules related to the filing of Motions for a Change of
27

28

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1 Venue, defensive asylum applications can only be filed with the Immigration Court at a Master

2 Calendar or a Master Calendar Reset Hearing.”) (emphasis in original).

3
D. Existing Agency Barriers to One-Year Deadline Compliance
4

5

49. The asylum application process adversely affects Plaintiffs in two ways. First, DHS fails to

6 notify asylum seekers—including both those who are subject to a credible fear interview and those

7 released from custody without such an interview—of the one-year deadline. As a result, most
8
entrants are unaware of the deadline unless and until either an immigration lawyer or an immigration
9
judge informs them. Often these asylum seekers do not learn of the deadline until a significant time
10
11 has passed—in many cases after one year has elapsed. Upon information and belief, many

12 individuals who undergo the credible fear process erroneously believe that they already have applied

13 for asylum.

14
50. Second, even if applicants are on notice, DHS and EOIR have failed to implement a system
15
that ensures asylum seekers an opportunity in which they can comply with the deadline.
16

17

51. Often, DHS does not immediately send the Notice to Appear to the immigration court. For

18 these individuals, the one-year clock is ticking, but they have no formal venue in which to file their

19 asylum applications. Because the immigration court has not received the NTA, it has no jurisdiction
20
over that applicant’s case. Although USCIS does have jurisdiction, upon information and belief, it
21
refuses to accept applications because an NTA was issued, even though the NTA has not been
22
23 submitted to the immigration court. Plaintiffs Rodriguez and Mendez were unable to file their

24 asylum applications with USCIS for precisely this reason.
25
52. Similarly, in other cases, DHS may send the Notice to Appear to the immigration court, but
26
the court delays docketing the case. For these individuals also, the one-year clock is ticking but,
27
28 likewise, they have no formal venue in which to file their applications. In such cases, neither USCIS

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1 nor EOIR admits to having jurisdiction to accept the asylum application, and thus the individual

2 cannot file with either agency.
3
53. In accordance with EOIR national policy, individuals still are not able to file their asylum
4
5 applications with the immigration court even after the immigration court dockets the NTA, until the
6 first hearing before an immigration judge—despite the language of 8 C.F.R. §§ 208.4(a)(2) and

7 1208.4(a)(2), which do not impose that requirement, and instead specify only that an application is

8
filed when “received” by the immigration court. See Immigration Court Manual, Chapter
9
3.1(b)(iii)(A); OPPM 00-01 at 15.
10

11

54. Notwithstanding this national policy, on information and belief, an isolated handful of

12 immigration courts have adopted work-arounds to remedy this problem, resulting in a patchwork of

13 haphazard policies for accepting defensive asylum applications. For example, upon information and
14
belief, the immigration judges in Omaha, NE; Philadelphia, PA; Charlotte, NC; Cleveland, OH; San
15
Francisco, CA; and Seattle, WA allow individuals to meet the one-year deadline if they “lodge” the
16
17 application by submitting it to the clerk’s office within that time period. On information and belief,

18 these work-arounds are rare, given that there are more than 50 immigration courts. See EOIR

19 Immigration Court Listing, available at https://www.justice.gov/eoir/eoir-immigration-court-listing.
20
They also are non-binding on individual immigration judges, and, at any time, an individual judge
21
may decide to no longer agree that “lodging” constitutes “filing.”
22

23

55. Upon information and belief, in other immigration courts, including Los Angeles, CA,

24 judges reject this notion; in other words, they do not consider “lodging” as “filing” for purposes of
25
the one-year deadline.
26
56. Upon information and belief, in Houston, TX; Baltimore, MD; Chicago, IL; San Diego, CA;
27
28 New Orleans, LA; Denver, CO; and Portland, OR, each immigration judge has discretion to

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1 determine whether lodging constitutes filing and often makes this determination on a case-by-case

2 basis.
3
57. The well-documented backlog in immigration courts routinely prevents the scheduling of a
4
5 master calendar hearing within the one-year deadline. 4 As such, an individual’s first opportunity to
6 apply for asylum at a master calendar hearing may take place only after the one-year deadline has

7 passed.
8
58. Other individuals may appear at their first master calendar hearing without an attorney, and
9
the immigration judge may continue the proceedings for a second hearing well beyond the one-year
10
11 deadline. Even if such individuals subsequently secure legal representation, EOIR policy mandates

12 that they wait until the next hearing to file their asylum application. See Immigration Court Manual,

13 Chapter 3.1(b)(iii)(A); OPPM 00-01 at 15.
14
FACTUAL ALLEGATIONS
15
59. Plaintiffs are suffering and will continue to suffer serious and irreparable harm due to
16
17 Defendants’ failure to provide notice of the one-year deadline and a guaranteed opportunity to

18 comply with it, in violation of 8 U.S.C. § 1158(a)(2)(B), 8 C.F.R. §§ 208.4(a)(2), 1208.4(a)(2), and

19 the Due Process Clause.
20

21

22

23 4

See, e.g., Human Rights First, In the Balance: Backlogs Delay Protection in the U.S. Asylum and

Immigration Court Systems (April 2016) (reporting that, as of February 2016, there were 480,815 removal

24 cases pending before immigration courts and about 20 percent of incoming cases involve applications for

asylum and also estimating that the case backlog would reach over 500,000 by the end of Fiscal Year 2016 25 and 1 million by 2022); Transactional Records Access Clearinghouse (TRAC), Average Time Pending Cases

Have Been Waiting in Immigration Courts as of April 2016 (April 2016), available at 26 http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php (reporting average wait

27 time in 2016 for all cases in immigration courts to be 668 days); TRAC, Ballooning Wait Times for Hearing Dates in Overworked Immigration Courts (Sept. 21, 2015); available at

28 http://trac.syr.edu/immigration/reports/405/.

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1

Plaintiff Elmer Rodriguez

2

60. Plaintiff Elmer Geovanni Rodriguez Escobar is a 37-year-old citizen of Honduras who

3
resides in Burien, Washington.
4

5

61. He fled Honduras after he and his family were threatened by violent gang members who had

6 murdered his nephew. Mr. Rodriguez was robbed and threatened by these gang members, who

7 targeted him personally, shot at his home, and attempted to kidnap his daughter from her school
8
shortly before he fled the country.
9
62. He entered the United States without inspection on July 9, 2014, and DHS apprehended him
10
11 shortly thereafter. DHS placed him in expedited removal proceedings, but because he expressed a

12 fear of persecution if returned to Honduras, DHS scheduled him for a credible fear interview. After

13 DHS determined that he had demonstrated a credible fear of persecution, DHS issued and served
14
him with an NTA, and then released him from custody on bond. The NTA listed the relevant
15
location for his future immigration hearing as the San Antonio, Texas, Immigration Court, but did
16
17 not provide a hearing date and time, noting that these would be determined at a later date.

18

63. At no point in time did DHS inform Mr. Rodriguez that he would need to file an asylum

19 application within one year of his arrival into the country. Mr. Rodriguez only became aware of the
20
deadline when he sought legal counsel for his immigration case. Through counsel, he attempted to
21
file his asylum application with USCIS on May 7, 2015, within one year of his arrival in the United
22
23 States. He did so because EOIR records indicated that his NTA had not yet been filed with the

24 immigration court: his “A number” did not appear in EOIR’s telephonic case information system,5
25

26

27
5

EOIR established an electronic phone system to provide EOIR’s customers with ready access to

28 immigration court information in English and Spanish. Users can dial 240-314-1500 or 1-800-898-7180 (toll-

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1 and he had not yet received a hearing notice. Although he received a “filing receipt” from USCIS,

2 dated May 8, 2015, the notice indicated that USCIS was treating the application as a “Defensive
3
Asylum Application,” based on its assumption that Mr. Rodriguez was in removal proceedings.
4
5 Because USCIS did not accept the application as an affirmative application, it did not forward his
6 application to the asylum office for the scheduling of an asylum interview.

7

64. In the meantime, in June 2015, Mr. Rodriguez also tried to “lodge” his I-589 with the San

8
Antonio Immigration Court, in an attempt to comply with the one-year filing deadline. However, the
9
San Antonio Immigration Court rejected the submission, stating that his case had not been filed with
10

11 EOIR.

12

65. Mr. Rodriguez subsequently filed an application for employment authorization in October

13 2015, as more than 150 days had elapsed since he filed his application with USCIS. Under the
14
regulations, after an application for asylum has been pending for more than 150 days, an asylum
15
seeker is eligible to apply for employment authorization. 8 C.F.R. § 208.7(a)(1). On January 19,
16
17 2016, USCIS denied his application for work authorization, concluding that he was not eligible for

18 employment authorization because he had not filed an asylum application with USCIS.

19
66. Mr. Rodriguez now has been in the United States for almost two years, yet he has been

20
unable to file his application for asylum.
21

22

Plaintiff Concely Mendez

23

67. Plaintiff Concely del Carmen Mendez-Rojas is a 30-year-old citizen of the Dominican

24 Republic who resides in Burien, Washington.
25

26

27
free) to obtain case status information 24 hours a day, 7 days a week. https://www.justice.gov/eoir/customer28 service-initiatives.

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1

68. Ms. Mendez was the victim of repeated acts of egregious domestic violence at the hands of

2 her former partner and father of her son in the Dominican Republic. Because the Dominican
3
authorities refused to protect her from her abuser, Ms. Mendez ultimately fled her country and
4
5 sought refuge in the United States.

6

69. She entered the United States without inspection on September 23, 2013, and DHS

7 apprehended her shortly thereafter. She was placed in expedited removal proceedings, but because
8
she expressed a fear of persecution if returned to the Dominican Republic, she was scheduled for a
9
credible fear interview. After DHS determined she had demonstrated a credible fear of persecution,
10
11 DHS released her from custody on her own recognizance and issued her an NTA dated October 16,

12 2013. The NTA listed the relevant location for her future immigration hearing as the San Antonio

13 Immigration Court, but did not provide a hearing date and time, noting that it would be determined
14
at a later date.
15
70. At no point in time did DHS inform Ms. Mendez of the one-year deadline to file her
16
17 application for asylum. In fact, Ms. Mendez believed that, by virtue of the process she had

18 undergone while in DHS custody, she already had applied for asylum, and did not understand that

19 she would need to file a particular application to pursue her case.
20
71. Ms. Mendez only became aware of the filing deadline when she sought legal counsel for her
21
immigration case, in October 2014, more than a year after her arrival in the United States. Upon
22
23 information and belief, at that point in time, the NTA issued to Ms. Mendez had not been filed with

24 the immigration court. Through counsel, she promptly attempted to file her application for asylum
25
with USCIS on November 3, 2014. She did so because she had still not been placed in removal
26
proceedings: her immigration number did not appear in EOIR’s telephonic case information system,
27

28

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1 and she had yet to be issued a hearing notice. Her application was initially accepted by USCIS,

2 which issued a receipt notice on November 7, 2014.
3
72. In the meantime, through counsel, Ms. Mendez frequently contacted EOIR’s telephonic case
4
5 information system to find out if her case had been initiated in immigration court, but the system
6 reported that it had not.

7

73. On March 18, 2015, the San Francisco Asylum Office sent Ms. Mendez’s counsel a letter,

8
stating that it lacked jurisdiction over Ms. Mendez’ asylum application because she previously had
9
been placed in removal proceedings. On April 23, 2015, well after the one-year deadline had passed,
10

11 the San Francisco Asylum Office issued a second NTA, stating that Ms. Mendez would be scheduled

12 for a removal hearing in Seattle at a date and time to be determined at later date. Shortly after that,

13 however, Ms. Mendez learned through the EOIR telephonic case system that the San Antonio
14
Immigration Court had also scheduled an initial master calendar hearing for her on November 29,
15
2019. Almost immediately thereafter, Ms. Mendez “lodged” her asylum application with the San
16
17 Antonio Immigration Court, on May 8, 2015.

18

74. Her counsel subsequently filed a motion for a change of venue, and her case was transferred

19 to the Seattle Immigration Court. Her first master calendar hearing is scheduled for August 16,
20
2016.
21
Plaintiff Lidia Lopez
22

23

75. Plaintiff Lidia Margarita Lopez is a 37-year-old native and citizen of Guatemala who resides

24 in Austin, Texas, with her three children.
25
76. Ms. Lopez and her two younger children arrived at the Eagle Pass, Texas, port of entry on
26
February 28, 2014. After their arrival, Ms. Lopez stated to a DHS official that she was afraid to
27
28 return to Guatemala. DHS released Ms. Lopez and her children into the United States pending

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1 removal proceedings, and served them with NTAs, setting them for a hearing before an immigration

2 judge at a to-be-determined date before the San Antonio Immigration Court.
3
77. Ms. Lopez was released by CBP on the condition that she regularly report with ICE in San
4
5 Antonio, Texas. She complied, reporting to ICE on four occasions between March 2014 and
6 September 2015. At no point did any ICE officer at her check-ins inform her about the one-year

7 filing deadline or provide her with information about how to file an asylum application. Ms. Lopez

8
believed that she would learn more about how to seek asylum once she had a hearing at an
9
immigration court.
10

11

78. Ms. Lopez was issued a second, superseding NTA on February 23, 2015, providing that she

12 would have a hearing before an immigration judge at the San Antonio Immigration Court at a to-be-

13 determined date. In September 2015, Ms. Lopez was issued a third superseding NTA, providing that
14
she would have a hearing before an immigration judge at the San Antonio Immigration Court at a to-
15
be-determined date. In October 2015, more than a year and a half after she arrived in the United
16
17 States, Ms. Lopez was issued a Notice of Hearing, setting her first master calendar hearing for

18 November 2, 2015.

19

79. At no point did any DHS official ever inform Ms. Lopez that she was required to file an

20
asylum application within one year of her most recent arrival.
21

80. In December 2015, after Ms. Lopez retained an immigration attorney to represent her and her
22

23 children in removal proceedings, she learned for the first time from her attorney that she was

24 required to file her asylum application within a year of arriving in the United States. But by this
25
point, the one year deadline had already passed. Prior to her next Master Calendar hearing, Ms.
26
Lopez lodged her asylum application with the immigration court in San Antonio, Texas in January
27
28 2016.

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1

81. On January 11, 2016, upon a joint motion by the parties, an immigration judge terminated the

2 removal proceedings of Ms. Lopez and her children as improvidently issued. Ms. Lopez then filed
3
her asylum application affirmatively with USCIS on February 15, 2016. Ms. Lopez appeared for
4
5 fingerprinting and biometrics collection on March 14, 2016. She is currently awaiting an asylum
6 interview.

7

Plaintiff Maribel Suarez

8
82. Plaintiff Maribel Suarez Garcia is a 29-year-old native and citizen of Mexico who resides in
9
Yelm, Washington, with her five minor children.
10

11

83. Ms. Suarez was the victim of repeated acts of egregious domestic violence in Mexico at the

12 hands of her former partner and the father of her youngest children. That ex-partner is involved with

13 a violent drug cartel in Mexico, heightening the danger Ms. Suarez and her children already face. In

14
fact, the father of her three older children was murdered by a cartel in Mexico. For these reasons,
15
she and her children fled Mexico and sought refuge in the United States.
16

17

84. Ms. Suarez and her children arrived at the Otay Mesa port of entry on November 7, 2013.

18 Upon their arrival, Ms. Suarez informed DHS that she and her children were afraid to return to

19 Mexico and wanted to apply for asylum in the United States. After she provided a sworn statement
20
to DHS officials at the port-of-entry, DHS paroled her and her five children into the United States
21
pending removal proceedings. DHS also served them with NTAs, which indicated that they would
22
23 be scheduled for a removal proceeding before an immigration judge at a date, time, and location to

24 be determined later.
25
85. At no point did DHS ever inform Ms. Suarez that she was required to file an application for
26
asylum within one year of her arrival.
27

28

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1

86. The San Francisco Immigration Court eventually scheduled Ms. Suarez and four of her

2 children for an initial master calendar hearing on December 22, 2015. It scheduled the remaining
3
child for an initial master calendar hearing on February 2, 2016. These initial master calendar
4
5 hearings occurred more than a year after Ms. Suarez and her children arrived in the United States.

6

87. After Ms. Suarez retained an immigration attorney to represent her and her children in their

7 removal proceedings, she learned for the first time from her attorney that she was required to apply
8
for asylum within one year of her arrival into the country. By that point, the one-year deadline had
9
passed. Ms. Suarez and her children subsequently lodged their application for asylum with the San
10
11 Francisco Immigration Court on May 19, 2015. Shortly thereafter, Ms. Suarez and her children also

12 moved the San Francisco Immigration Court to change venue in their case to Seattle. They are

13 scheduled for an individual calendar hearing in Seattle on May 12, 2017.
14
88. There are no administrative remedies for Plaintiffs to exhaust. No other remedy exists for
15
Plaintiffs to compel Defendants to cease violating their statutory, regulatory, and constitutional
16
17 rights.

18

CLASS ALLEGATIONS

19

89. Plaintiffs bring this action on behalf of themselves and all others who are similarly situated

20
pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action is proper because
21

this action involves questions of law and fact common to the classes, the classes are so numerous
22

23 that joinder of all members is impractical, Plaintiffs’ claims are typical of the claims of the classes,

24 Plaintiffs will fairly and adequately protect the interests of the respective classes, and Defendants

25
have acted on grounds that apply generally to the class, so that final injunctive relief or

26
corresponding declaratory relief is appropriate with respect to the class as a whole.
27

28

90. Plaintiffs seek to represent the following nationwide classes:

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1

CLASS A (“Credible Fear Class”): All individuals who are released or will be

released from DHS custody after they have been found to have a credible fear of

2

persecution within the meaning of 8 U.S.C. § 1225(b)(1)(B)(v) and did not receive

3

notice from DHS of the one-year deadline to file an asylum application as set forth

in 8 U.S.C. § 1158(a)(2)(B).

4

5

A.I. All individuals in Class A who are not in removal proceedings and who

either (a) have not applied for asylum at all or (b) applied for asylum after one

6

year of their last arrival.

7

A.II. All individuals in Class A who are in removal proceedings and who

8

either (a) have not yet applied for asylum or (b) applied for asylum after one

year of their last arrival.

9

CLASS B (“Other Entrants Class”): All individuals who are detained upon

10

entry; express a fear of return to their country of origin; are released or will be

11

released from DHS custody without a credible fear determination; are issued a

Notice to Appear; and did not receive notice from DHS of the one-year deadline to

12

file an asylum application set forth in 8 U.S.C. § 1158(a)(2)(B).

13

B.I. All individuals in Class B who are not in removal proceedings and who

14

either (a) have not applied for asylum at all or (b) applied for asylum after one

year of their last arrival.

15

B.II. All individuals in Class B who are in removal proceedings and who

16

either (a) have not applied for asylum at all or (b) applied for asylum after one

17

year of their last arrival.

18

Class A - The Credible Fear Class

19

91. Plaintiffs Rodriguez and Mendez seek to represent Class A. Class A is so numerous that

20
joinder of all members is impracticable. Plaintiffs are not aware of the precise number of potential
21

class members because Defendants are in the best position to identify such persons. Upon
22

23 information and belief, there are thousands of persons who have been released from DHS custody

24 after having passed credible fear interviews whom Defendant DHS has not given notice of the one-
25
year deadline, and for whom Defendants have failed to provide a meaningful mechanism for
26
compliance with the deadline.
27

28

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1

92. Questions of law and fact common to the proposed class that predominate over any questions

2 affecting only the individually named Plaintiffs include whether the DHS Defendants violate the
3
U.S. Constitution, the INA, the regulations, and/or the APA by failing to provide notice of the one-
4
5 year deadline and whether the DHS and DOJ Defendants violate the U.S. Constitution, the INA, the
6 regulations, and/or the APA by failing to provide a uniform system for compliance with the

7 deadline.
8
93. Plaintiffs’ claims are typical of the claims of the proposed class. The DHS Defendants have
9
failed to provide notice and the DHS and DOJ Defendants have failed to implement a system that
10
11 ensures Plaintiffs and proposed class members have an opportunity to comply.

12

94. Plaintiffs will fairly and adequately protect the interests of the proposed class members

13 because they seek relief on behalf of the class as a whole and have no interest antagonistic to other
14
class members.
15
95. Plaintiffs also are represented by competent counsel with extensive experience in complex
16
17 class actions and immigration law.

18

96. Defendants have acted on grounds generally applicable to the proposed class, thereby making

19 appropriate final declaratory and injunctive relief.
20
Subclass A.I. – Passed Credible Fear and Not in Removal Proceedings
21
97. Plaintiff Rodriguez seeks to represent Subclass A.I. Subclass A.I. is so numerous that joinder
22
23 of all members is impracticable. Plaintiffs are not aware of the precise number of potential class

24 members because Defendants are in the best position to identify such persons. Upon information and
25
belief, there are hundreds of persons who have been released from DHS custody after having passed
26
credible fear interviews whom Defendant DHS has not given notice of the one-year deadline, who
27
28 are not in removal proceedings, and who have not applied for asylum within one year of their last

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1 arrival because Defendants have failed to provide a meaningful mechanism to do so.

2

98. Questions of law and fact common to the proposed subclass that predominate over any

3
questions affecting only the individually named Plaintiffs include whether the DHS Defendants
4

5 violate the U.S. Constitution, the INA, the regulations, and/or the APA by failing to provide notice

6 of the one-year deadline and whether the DHS and DOJ Defendants violate the U.S. Constitution,

7 the INA, the regulations, and/or the APA by failing to provide a uniform system for compliance with
8
the deadline.
9
99. Plaintiffs’ claims are typical of the claims of the proposed subclass. The DHS Defendants
10
11 have failed to provide notice and the DHS and DOJ Defendants have failed to implement a system

12 that guarantees Plaintiffs and proposed subclass members an opportunity to comply.

13

100.

Plaintiffs will fairly and adequately protect the interests of the proposed subclass

14
members because they seek relief on behalf of the class as a whole and have no interest antagonistic
15
to other class members.
16

17

101.

Plaintiffs also are represented by competent counsel with extensive experience in

18 complex class actions and immigration law.

19

102.

Defendants have acted on grounds generally applicable to the proposed subclass,

20
thereby making appropriate final declaratory and injunctive relief.
21

Subclass A.II. – Passed Credible Fear and in Removal Proceedings
22

23

103.

Plaintiff Mendez seek to represent Subclass A.II. Subclass A.II. is so numerous that

24 joinder of all members is impracticable. Plaintiffs are not aware of the precise number of potential
25
class members because Defendants are in the best position to identify such persons. Upon
26
information and belief, there are thousands of persons who have been released from DHS custody
27
28 after having passed credible fear interviews whom Defendant DHS has not given notice of the one-

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1 year deadline, who are in removal proceedings, and who have not applied for asylum within one year

2 of their last arrival because Defendants have failed to provide a meaningful mechanism to do so.

3

104.

Questions of law and fact common to the proposed subclass that predominate over

4

5 any questions affecting only the individually named Plaintiffs include whether the DHS Defendants

6 violate the U.S. Constitution, the INA, the regulations, and/or the APA by failing to provide notice

7 of the one-year deadline and whether the DHS and DOJ Defendants violate the U.S. Constitution,

8
the INA, the regulations, and/or the APA by failing to provide a uniform system for compliance with
9
the deadline.
10

11

105.

Plaintiffs’ claims are typical of the claims of the proposed subclass. The DHS

12 Defendants have failed to provide notice and the DHS and DOJ Defendants have failed to implement

13 a system that guarantees Plaintiffs and proposed subclass members an opportunity to comply.

14

106.

Plaintiffs will fairly and adequately protect the interests of the proposed subclass

15

members because they seek relief on behalf of the class as a whole and have no interest antagonistic
16

17 to other class members.

18

107.

Plaintiffs also are represented by competent counsel with extensive experience in

19 complex class actions and immigration law.

20

108.

Defendants have acted on grounds generally applicable to the proposed subclass,

21

thereby making appropriate final declaratory and injunctive relief.
22

23

Class B – Other Entrants Class

24

109.

Plaintiffs Lopez and Suarez seek to represent Class B (Other Entrants Class). Class B

25
is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the precise
26
number of potential class members because Defendants are in the best position to identify such
27
28 persons. Upon information and belief, there are hundreds of persons Defendant DHS has paroled

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1 into the country or released from custody after having expressed a fear of return whom Defendant

2 DHS has not given notice of the one-year asylum deadline, and for whom Defendants have failed to

3
provide a meaningful mechanism for compliance with the deadline.
4

5

110.

Questions of law and fact common to the proposed class that predominate over any

6 questions affecting only the individually named Plaintiffs include whether the DHS Defendants

7 violate the U.S. Constitution, the INA, the regulations, and/or the APA by failing to provide notice
8
of the one-year deadline and whether the DHS and DOJ Defendants violate the U.S. Constitution,
9
the INA, the regulations, and/or the APA by failing to provide a uniform system for compliance with
10
11 the deadline.

12

111.

Plaintiffs’ claims are typical of the claims of the proposed class. The DHS Defendants

13 have failed to provide notice and the DHS and DOJ Defendants have failed to implement a system

14
that guarantees Plaintiffs and proposed class members an opportunity to comply.

15

112.

Plaintiffs will fairly and adequately protect the interests of the proposed class

16

17 members because they seek relief on behalf of the class as a whole and have no interest antagonistic

18 to other class members.

19

113.

Plaintiffs also are represented by competent counsel with extensive experience in

20
complex class actions and immigration law.
21

114.

Defendants have acted on grounds generally applicable to the proposed class, thereby

22

23 making appropriate final declaratory and injunctive relief.

24

Subclass B.I. – Released from Custody, Given an NTA, But Not in Removal Proceedings

25

115.

Plaintiff Lopez seeks to represent Subclass B.I. Subclass B.I. is so numerous that

26
joinder of all members is impracticable. Plaintiffs are not aware of the precise number of potential
27

28 class members because Defendants are in the best position to identify such persons. Upon

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1 information and belief, there are hundreds of persons Defendant DHS has paroled into the country or

2 otherwise released from custody after having expressed a fear of return, to whom Defendant DHS
3
has not given notice of the one-year deadline, who are not in removal proceedings (although they
4
5 have been given an NTA), and who have not applied for asylum within one year of their last arrival
6 because Defendants have failed to provide a meaningful mechanism to do so.

7

116.

Questions of law and fact common to the proposed subclass that predominate over

8
any questions affecting only the individually named Plaintiffs include whether the DHS Defendants
9
violate the U.S. Constitution, the INA, the regulations, and/or the APA by failing to provide notice
10

11 of the one-year deadline and whether the DHS and DOJ Defendants violate the U.S. Constitution,

12 the INA, the regulations, and/or the APA by failing to provide a uniform system for compliance with

13 the deadline.

14

117.

Plaintiffs’ claims are typical of the claims of the proposed subclass. The DHS

15

Defendants have failed to provide notice and the DHS and DOJ Defendants have failed to implement
16

17 a system that guarantees Plaintiffs and proposed subclass members an opportunity to comply.

18

118.

Plaintiffs will fairly and adequately protect the interests of the proposed subclass

19 members because they seek relief on behalf of the class as a whole and have no interest antagonistic

20
to other class members.
21

119.

Plaintiffs also are represented by competent counsel with extensive experience in

22

23 complex class actions and immigration law.

24

120.

Defendants have acted on grounds generally applicable to the proposed subclass,

25
thereby making appropriate final declaratory and injunctive relief.
26

27

28

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1

Subclass B.II. – Released from Custody, Given an NTA, and in Removal Proceedings

2

121.

Plaintiff Suarez seek to represent Subclass B.II. Subclass B.II. is so numerous that

3
joinder of all members is impracticable. Plaintiffs are not aware of the precise number of potential
4

5 class members because Defendants are in the best position to identify such persons. Upon

6 information and belief, there are hundreds of persons Defendant DHS has paroled into the country or

7 otherwise released from custody after having expressed a fear of return, to whom Defendant DHS
8
has not given notice of the one-year asylum deadline, who are in removal proceedings, and who have
9
not applied for asylum within one year of their last arrival because Defendants have failed to provide
10
11 a meaningful mechanism to do so.

12

122.

Questions of law and fact common to the proposed subclass that predominate over

13 any questions affecting only the individually named Plaintiffs include whether the DHS Defendants
14
violate the U.S. Constitution, the INA, the regulations, and/or the APA by failing to provide notice
15
of the one-year deadline and whether the DHS and DOJ Defendants violate the U.S. Constitution,
16
17 the INA, the regulations, and/or the APA by failing to provide a uniform system for compliance with

18 the deadline.

19

123.

Plaintiffs’ claims are typical of the claims of the proposed subclass. The DHS

20
Defendants have failed to provide notice and the DHS and DOJ Defendants have failed to implement
21

a system that guarantees Plaintiffs and proposed subclass members an opportunity to comply.
22

23

124.

Plaintiffs will fairly and adequately protect the interests of the proposed subclass

24 members because they seek relief on behalf of the class as a whole and have no interest antagonistic

25
to other class members.

26

125.

Plaintiffs also are represented by competent counsel with extensive experience in

27

28 complex class actions and immigration law.

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1

126.

Defendants have acted on grounds generally applicable to the proposed subclass,

2 thereby making appropriate final declaratory and injunctive relief.

3
DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
4

5

127.

An actual and substantial controversy exists between the proposed classes and

6 Defendants as to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions

7 violate Plaintiffs’ rights and the rights of the proposed classes.

8

128.

The DHS Defendants’ policy and practice of failing to give notice of the one-year

9

deadline and the DHS and DOJ Defendants’ failure to provide a uniform and reliable system within
10

11 which to comply with that deadline has caused and will continue to cause irreparable injury to

12 Plaintiffs and proposed class members. Plaintiffs and proposed class members have lost, or are at

13 risk of losing, their right to seek asylum in the United States and all the associated rights and benefits
14
afforded through the asylum process, including protection from removal to countries where they face
15
a well-founded fear of persecution, as well as the rights to become lawful permanent residents, to
16
17 travel, and to reunite with family members.

18

129.

Plaintiffs have no adequate remedy at law. They do not seek a determination as to the

19 merits of their individual asylum claims; nor do they seek judicial review of an order of removal
20
entered against them. What they challenge are two unlawful procedural deficiencies in the way that
21
Defendants are implementing the asylum process/system—deficiencies that are unrelated to
22
23 Plaintiffs’ substantive eligibility for asylum, and that deprive many Plaintiffs and proposed class

24 members of the opportunity to present their claims for asylum to the relevant adjudicators. The
25
immigration court and subsequent appeals process is not empowered to remedy such systemic
26
deficiencies. Accordingly, Plaintiffs have exhausted their administrative remedies.
27

28

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1

130.

Under 5 U.S.C. §§ 702 and 704, Plaintiffs and proposed class members have suffered

2 a “legal wrong” and have been “adversely affected or aggrieved” by agency action for which there is

3
no adequate remedy in a court of law.
4

5

131.

Based on the foregoing, the Court should grant declaratory and injunctive relief under

6 28 U.S.C. §§ 2201, 2202, 5 U.S.C. § 702, and the Mandamus and Venue Act of 1962, 28 U.S.C. §

7 1361.

8
CAUSES OF ACTION
9
COUNT ONE
10

11

(Violation of the Immigration and Nationality Act, Implementing Regulations, and the

Administrative Procedure Act Based on Lack of Notice)

12

(Against the DHS Defendants)
13

132.

All of the foregoing allegations are repeated and realleged as though fully set forth

14

15

herein.

16

133.

The Immigration and Nationality Act and implementing regulations, including 8

17 U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. §
18
1158 (asylum), entitle Plaintiffs to a meaningful opportunity to apply for asylum, including notice of
19
the filing deadline. Defendants, through their directives, have violated these statutory and regulatory
20
21 rights, both singularly and collectively, by failing to provide notice of the one-year deadline set forth

22 in 8 U.S.C. § 1154(a)(2)(B).

23

134.

Plaintiffs have been harmed by the lack of notice in that they are then either deprived

24
of the right to apply for asylum, or at a minimum, face an additional hurdle of convincing the
25

26 adjudicator that they qualify for a statutory exception to the one-year deadline.

27

28

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1

COUNT TWO

2 (Violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution Based on

3

Lack of Notice)

4

(Against the DHS Defendants)

5

135.

All of the foregoing allegations are repeated and realleged as though fully set forth

6
herein.

7

136.

The Due Process Clause of the Fifth Amendment to the United States Constitution

8

9 provides that “[n]o person shall … be deprived of life, liberty, or property, without due process of

10 law.”

11

137. Plaintiffs have protected interests in applying for asylum and in not being removed to

12
countries where they face serious danger and potential loss of life.
13
138. Plaintiffs are entitled under the Due Process Clause to a fair hearing of their asylum
14

15 claims, including notice of the deadline for filing an asylum application set forth in 8 U.S.C. §

16 1158(a)(2)(B).

17

139.

DHS Defendants have violated Plaintiffs’ right to due process, both singularly and

18
collectively, by failing to provide notice of the one-year deadline.

19

140.

Plaintiffs have been harmed by the lack of notice in that they are then either deprived

20

21 of the right to apply for asylum, or at a minimum, face an additional hurdle of convincing the

22 adjudicator that they qualify for a statutory exception to the one-year deadline.

23
COUNT THREE

24

(Violation of the Immigration and Nationality Act, Implementing Regulations, and the

25

Administrative Procedure Act Based on Lack of a Uniform Procedural Mechanism)

26
(Against All Defendants)
27

28

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1

141. All of the foregoing allegations are repeated and realleged as though fully set forth

2 herein.
3
142. The Immigration and Nationality Act and implementing regulations, including 8
4
5 U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. §
6 1158 (asylum), entitle Plaintiffs to a meaningful opportunity to apply for asylum, including uniform

7 procedural mechanisms for both affirmative and defensive applications whereby they can comply
8
with the one-year filing deadline set forth in 8 U.S.C. § 1158(a)(2)(B).
9
143. Defendants have violated Plaintiffs’ statutory and regulatory rights, both singularly
10
11 and collectively, by failing to implement uniform procedural mechanisms that ensure that Plaintiffs

12 can comply with the filing deadline.

13

144. Plaintiffs have been harmed by the lack of a procedural mechanism that ensures them

14
the opportunity to comply with the one-year deadline in that they are then either deprived of the right
15
to apply for asylum, or at a minimum, face an additional hurdle of convincing the adjudicator that
16

17 they qualify for a statutory exception to the one-year deadline.

18

COUNT FOUR

19 (Violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution Based on

20

Lack of a Uniform Procedural Mechanism)

21

(Against All Defendants)

22

145. All of the foregoing allegations are repeated and realleged as though fully set forth

23 herein.
24
146. The Due Process Clause of the Fifth Amendment to the United States Constitution
25
26 provides that “[n]o person shall … be deprived of life, liberty, or property, without due process of
27 law.”

28

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1

147. Plaintiffs have protected interests in applying for asylum and in not being removed to

2 countries where they face serious danger and potential loss of life.
3
148. Plaintiffs are entitled under the Due Process Clause to a fair hearing of their claims,
4
5 including at a minimum uniform procedural mechanisms for both affirmative and defensive
6 applications whereby they can comply with the one-year deadline set forth in 8 U.S.C. §

7 1158(a)(2)(B).
8
149. Defendants have violated Plaintiffs’ right to due process, both singularly and
9
collectively, by failing to implement uniform procedural mechanisms that ensure that Plaintiffs can
10
11 comply with the filing deadline.

12

150. Plaintiffs have been harmed by the lack of a procedural mechanism that ensures them

13 the opportunity to comply with the one-year deadline in that they are then either deprived of the right

14
to apply for asylum, or at a minimum, face an additional hurdle of convincing the adjudicator that
15
they qualify for a statutory exception to the one-year deadline.
16

17

PRAYER FOR RELIEF

18 WHEREFORE, Plaintiffs respectfully pray for this Court to:

19

a. Assume jurisdiction over this matter;

20
b. Certify the case as class action as proposed herein;
21

c. Appoint Plaintiffs as representatives of the classes;
22

23

d. Declare that DHS Defendants’ policy and practice of failing to give notice of the one-year

24 deadline is contrary to the statute and the Constitution;
25
e. Declare that DHS and DOJ Defendants’ failure to provide uniform meaningful and reliable
26
mechanisms within which to comply is contrary to the statute and the Constitution;
27

28

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1

f. Enter an order directing Defendants to submit a plan for corrective action for approval by the

2 Court;
3
g. Issue an order directing Defendants to provide Plaintiffs and class members notice of the
4
5 one-year deadline;

6

h. Issue an order directing Defendants to authorize Plaintiffs and class members to file an

7 asylum application within one year of the date such notice is provided;
8
i. Require that Defendants return to the United States any deported Plaintiff or class member
9
whose asylum application was denied for having failed to meet the one-year deadline so that he or
10
11 she may submit a new asylum adjudication that complies with the law;

12

j. Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice Act,

13 and any other applicable statute or regulation; and

14
k. Grant such further relief as the Court deems just, equitable, and appropriate.
15
Respectfully submitted this 30th day of June, 2016,
16

17 s/Matt Adams Matt Adams, WSBA No. 28287
18
s/Glenda Aldana 19 Glenda M. Aldana Madrid, WSBA 46987

s/Vicky Dobrin Vicky Dobrin, WSBA No. 28554
s/Hilary Han Hilary Han, WSBA No. 33754

20
Northwest Immigrant Rights Project 21 615 Second Avenue, Suite 400
Seattle, WA 98104 22 (206) 957-8611 23 (206) 587-4025 (fax)

Dobrin & Han, PC 705 Second Avenue, Suite 610 Seattle, WA 98104 (206) 448-3440 (206) 448-3466 (fax)

24 Trina Realmuto, pro hac vice admission pending Mary Kenney, pro hac vice admission pending

National Immigration Project
25
of the National Lawyers Guild

American Immigration Council 1331 G Street, NW, Suite 200

26 14 Beacon Street, Suite 602

Washington, D.C. 20005

Boston, MA 02108

(202) 507-7512

27 (617) 227-9727

(202) 742-5619 (fax)

28 (617) 227-5495 (fax)

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 Case 2:16-cv-01024-RSM Document 7 Filed 07/21/16 Page 1 of 27

Honorable Ricardo S. Martinez
1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10
Concely del Carmen MENDEZ ROJAS, Elmer

11 Geovanni RODRIGUEZ ESCOBAR, Lidia

Margarita LOPEZ ORELLANA, and Maribel 12 SUAREZ GARCIA, on behalf of themselves as

13 individuals and on behalf of others similarly situated,

14

Plaintiffs,

15

v.

16
Jeh JOHNSON, Secretary of the Department of 17 Homeland Security, in his official capacity;
Loretta E. LYNCH, Attorney General of the 18 United States, in her official capacity; Thomas S. 19 WINKOWSKI, Principal Deputy Assistant
Secretary for U.S. Immigration and Customs 20 Enforcement, in his official capacity; Leon
RODRIGUEZ, Director of U.S. Citizenship and 21 Immigration Services, in his official capacity; R. 22 GIL KERLIKOWSKE, Commissioner of U.S.
Customs and Border Protection, in his official 23 capacity; and Juan P. OSUNA, Director of the
Executive Office for Immigration Review, in his 24 official capacity,
25
Defendants.
26

Case No. 2:16-cv-01024-RSM
MOTION FOR CLASS CERTIFICATION
NOTE ON MOTION CALENDAR: August 19, 2016
ORAL ARGUMENT REQUESTED

27

28

MOT. FOR CLASS CERTIFICATION Case No. 2:16-cv-01024-RSM

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I. MOTION AND PROPOSED CLASS DEFINITION
1
Plaintiffs are asylum seekers who challenge Defendants’ failure to provide them, and
2
3 the classes they move to represent, with notice of the statutory requirement that an asylum
4 seeker must apply for asylum within one year of arrival in the United States (the one-year

5 deadline), 8 U.S.C. § 1158(a)(2)(B), as well as Defendants’ failure to provide a mechanism that
6
ensures that an asylum seeker is able to comply with that deadline. Defendants’ policies and
7
practices infringe on Plaintiffs’ and putative class members’ statutory and regulatory rights to
8
9 apply for asylum, often depriving them of those rights altogether, and also violate their right to

10 due process under the Fifth Amendment to the United States Constitution.

11

Plaintiffs fled to the United States seeking refuge from the persecution they faced in

12
their countries of origin. When they presented themselves to officers of Customs and Border
13
Protection (CBP)—a component of the Department of Homeland Security (DHS)—at the
14

15 border or encountered them shortly after crossing the border, all Plaintiffs informed DHS of

16 their fear of return or their desire to seek refuge. Yet neither CBP nor other DHS Defendants

17 provided any of them with notice of the statutory obligation to file an asylum application (Form
18
I-589) within one year of their arrival. Moreover, both DHS Defendants and the Executive
19
Office for Immigration Review (EOIR)—a component of the Department of Justice (DOJ)—
20
21 failed to provide them with a guaranteed mechanism by which to submit their applications

22 within the statutory period. In order for Plaintiffs to have a meaningful opportunity to apply for
23
asylum, federal immigration and constitutional law necessitate both that the DHS Defendants
24
provide Plaintiffs, and the classes they seek to represent, with notice of the one-year deadline
25
26 and that all Defendants implement uniform procedural mechanisms for compliance with the

27 deadline.

28

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The questions presented in this case—whether the DHS Defendants are obligated to
1
2 provide Plaintiffs with notice of the one-year deadline when released from DHS custody, and

3 whether the DHS and DOJ Defendants must provide a mechanism that ensures that Plaintiffs
4 are able to apply for asylum in a timely manner—can and should be resolved on a class-wide
5
basis. The proposed classes and subclasses, moreover, satisfy the requirements set forth in
6
Rule 23(a) and Rule 23(b)(2) of the Federal Rules of Civil Procedure. Thus, Plaintiffs request
7
8 that the Court certify the following classes and subclasses, with the following Plaintiffs as class

9 and subclass representatives:1

10
CLASS A (“Credible Fear Class”): All individuals who have been

11

released or will be released from DHS custody after they have been found to

have a credible fear of persecution within the meaning of 8 U.S.C. §

12

1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year

13

deadline to file an asylum application as set forth in 8 U.S.C. §

1158(a)(2)(B).

14

A.I.: All individuals in Class A who are not in removal proceedings and

15

who either (a) have not yet applied for asylum or (b) applied for asylum after

16

one year of their last arrival.

17

A.II.: All individuals in Class A who are in removal proceedings and who

either (a) have not yet applied for asylum or (b) applied for asylum after one

18

year of their last arrival.

19 Plaintiffs Elmer Geovanni Rodriguez Escobar and Concely del Carmen Mendez Rojas move to
20
be appointed as representatives of Class A. Plaintiff Rodriguez moves to be appointed as
21
representative of Subclass A.I., while Plaintiff Mendez moves to be appointed as representative
22
23 of Subclass A.II.

24

25

1
26

For purposes of all four subclasses, an individual has “applied” for asylum when her application on Form

I-589 is accepted, and not subsequently rejected, by either Defendant U.S. Citizenship and Immigration Services

27 (USCIS) or Defendant EOIR. An application is rejected by USCIS where USCIS refuses to accept it or subsequently issues a rejection notice. An application is rejected by EOIR where EOIR refuses to accept it.

28 Pursuant to current EOIR policy, an application is not “filed” if it is accepted for “lodging” purposes only. See Imm. Ct. Practice Manual 3.1(b)(iii)(A).

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CLASS B (“Other Entrants Class”): All individuals who have been or will

1

be detained upon entry; express a fear of return to their country of origin; are

2

released or will be released from DHS custody without a credible fear

determination; are issued a Notice to Appear (NTA); and did not receive

3

notice from DHS of the one-year deadline to file an asylum application set

forth in 8 U.S.C. § 1158(a)(2)(B).
4

5

B.I.: All individuals in Class B who are not in removal proceedings and who

either (a) have not yet applied for asylum or (b) applied for asylum after one

6

year of their last arrival.

7

B.II.: All individuals in Class B who are in removal proceedings and who

8

either (a) have not yet applied for asylum or (b) applied for asylum after one

year of their last arrival.

9
Plaintiffs Maribel Suarez Garcia and Lidia Margarita Lopez Orellana move to be appointed as
10

representatives of Class B. Plaintiff Lopez moves to be appointed as representative of Subclass
11

12 B.I., while Plaintiff Suarez moves to be appointed as representative of Subclass B.II.2

13

Within each Class and Subclass, the relevant Plaintiffs and putative class members

14
present common legal claims. The difference between the two Classes centers on the two
15
different ways in which the DHS Defendants process asylum seekers upon entry. Class A
16

17 consists of individuals whom DHS initially placed in “expedited removal” proceedings and

18 who, as part of that process, passed an initial screening relative to their asylum claim (a

19 “credible fear” screening). Because they demonstrated a credible fear of returning to their
20
countries of origin, they were taken out of expedited removal proceedings. DHS subsequently
21
released them from detention. Class B consists of individuals who, upon arrival into the United
22
23 States, expressed to DHS a fear of returning to their countries of origin and whom DHS

24 released into the country; DHS did not give them a credible fear screening but instead issued

25

26

27

2
28

Due to an inadvertent scrivener’s error, the proposed definitions of subclasses A.I., B.I., and B.II. differ

from their definitions in the complaint, Dkt. 1, in that they substitute the word “yet” for “at all.”

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them an NTA for removal proceedings under 8 U.S.C. § 1229a. Neither Class includes
1
2 individuals who filed a timely application for asylum.

3

Moreover, each Class is divided into two Subclasses based on whether the individual is

4 in removal proceedings. Those in Subclasses A.I. and B.I. face barriers to timely filing their
5
asylum applications because the DHS Defendants have not implemented a uniform procedural
6
mechanism to ensure that their asylum applications will be accepted and treated as timely filed.
7
8 Those in Subclasses A.II. and B.II. face barriers to timely filing their asylum applications

9 because the DOJ Defendants have not implemented uniform procedural mechanisms to ensure

10
that their asylum applications will be treated as timely filed with the immigration court

11
presiding over their removal proceedings.
12

13

Plaintiffs seek declaratory and injunctive relief on behalf of these classes, requiring the

14 DHS Defendants to provide notice of the one-year deadline and all Defendants to establish and

15 implement uniform procedural mechanisms that allow asylum applicants to comply with the

16
deadline.
17

18

II. BACKGROUND

A. Plaintiffs’ Legal Claims

19
Although the Court need not engage in “an in-depth examination of the underlying

20

merits” at this stage, it may analyze the merits to the extent necessary to determine the
21

22 propriety of class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th

23 Cir. 2011); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011). For that

24 reason, Plaintiffs provide a brief summary of their merits claims here. See also Dkt. 1.
25
Plaintiffs are asylum seekers who fled persecution in their countries of origin, and who
26
expressed a fear of persecution or desire to apply for asylum to DHS officers upon their arrival
27
28 in the United States. Class A Plaintiffs not only expressed a fear of persecution, but they were

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also found by Defendant U.S. Citizenship and Immigration Services (USCIS)—a component of
1
2 DHS—to have a “credible fear of persecution” if deported to their country of origin, and were

3 subsequently released from DHS custody to await an opportunity to pursue an asylum

4 application in removal proceedings. Class B Plaintiffs similarly expressed a fear of persecution
5
or desire to apply for asylum to DHS officers upon their arrival into the United States, and DHS
6
released them into the country to await an opportunity to pursue an asylum application in
7
8 removal proceedings. Significantly, the DHS Defendants failed to notify Plaintiffs and the

9 putative class members they seek to represent that, under the Immigration and Nationality Act
10
(INA), there is a one-year deadline for filing their asylum applications. See 8 U.S.C. §
11
1158(a)(2)(B). Nor were Plaintiffs provided with a guaranteed procedural mechanism to
12
13 ensure that they could timely submit their applications, as, inter alia, EOIR only allows

14 applicants to file asylum applications in open court and many such applicants do not receive a

15 court date until after the one-year deadline. See Dkt. 1 ¶¶52-58. Plaintiffs contend that the
16
DHS Defendants’ failure to notify them of the one-year deadline and all Defendants’ failure to
17
create and implement uniform procedural mechanisms to timely submit their asylum
18
19 applications violates the INA, governing regulations, and Plaintiffs’ due process rights.

20

“It is undisputed that all [noncitizens] possess” a statutory “right” to apply for asylum.

21 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 553 (9th Cir. 1990) (citing 8 U.S.C. §
22
1158(a) (1988); Jean v. Nelson, 727 F.2d 957, 982 (11th Cir. 1984) (en banc), aff’d as
23
modified, 472 U.S. 846 (1985); and Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038-39 (5th
24
25 Cir. 1982)). This statutory right stems from the Refugee Act of 1980, “in which Congress

26 sought to bring United States refugee law into conformity with the 1967 United Nations
27
Protocol Relating to the Status of Refugees (UN Protocol).” Orantes-Hernandez, 919 F.2d at
28

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551; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987) (noting “[t]he Act’s
1
2 establishment of a broad class of refugees who are eligible for a discretionary grant of asylum .

3 . . mirrors the provisions of the United Nations Protocol Relating to the Status of Refugees,

4 which provided the motivation for the enactment of the Refugee Act of 1980”).
5
The Refugee Act “expressly declared that its purpose was to enforce the ‘historic policy
6
of the United States to respond to urgent needs of the persons subject to persecution in their
7
8 homelands,’ and to provide ‘statutory meaning to our national commitment to human rights and

9 humanitarian concerns.’” Orantes-Hernandez, 919 F.2d at 552. Prior to this, “there was no
10
specific statutory basis for United States asylum policy with respect to [noncitizens] already in
11
the country.” Id. (quoting Cardoza-Fonseca, 480 U.S. at 433). Through § 201(b) of the
12
13 Refugee Act, Congress first enacted the asylum statute, currently located at 8 U.S.C. § 1158(a),

14 and directed the Attorney General to “establish a procedure for [a noncitizen] physically

15 present in the United States or at a land border or port of entry . . . to apply for asylum . . . .”
16
Id.; see also Refugee Act of 1980, Pub. L. No. 96-212, § 201(b), 94 Stat. 102 (1980).
17
“Congressional intent was to create a ‘uniform procedure’ for consideration of asylum claims
18
19 which would include an opportunity for [noncitizens] to have asylum applications ‘considered

20 outside a deportation and/or exclusion hearing setting.’” Orantes-Hernandez, 919 F.2d at 552

21 (citation omitted).
22
In Orantes-Hernandez, the Ninth Circuit affirmed a class-wide affirmative injunction
23
on behalf of Salvadoran asylum seekers who, as Plaintiffs do here, challenged the
24
25 government’s interference with their right to apply for asylum. In affirming the injunction on

26 other grounds, the Ninth Circuit noted that other circuits had agreed that it would be unlawful
27
“if [noncitizens] who indicated they feared persecution if returned home were not advised of
28

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the right to seek asylum.” 919 F.2d at 556-57 (citing Jean, 727 F.2d at 981-83 & n.35). “[I]f
1
2 [immigration] officials were refusing to inform [noncitizens] of their right to seek asylum even

3 if they did indicate that they feared persecution if returned to their home countries . . . this

4 would constitute a clear violation of the Refugee Act, and remedial action would be justified . .
5
. .” Id. at 557 (quoting Jean, 727 F.2d at 983 n.35).
6
Plaintiffs and putative class members possess the statutory right to apply for asylum
7
8 recognized by all courts, including the Supreme Court in Cardoza-Fonseca and the Ninth

9 Circuit in Orantes-Hernandez. They indicated to the DHS Defendants that they feared
10
persecution in their countries of origin. Indeed, for those within Class A, DHS already has
11
determined that they possess a credible fear of persecution. Nonetheless, DHS failed to inform
12
13 them of the one-year deadline, and the DHS and DOJ Defendants have failed to provide them

14 with a guaranteed procedural mechanism to timely apply for asylum. As a result, Defendants

15 deprived Plaintiffs and putative class members of their statutory right to apply for asylum.
16
In addition, this lack of notice and lack of a uniform procedural mechanism violate
17
Plaintiffs’ due process rights. It is well-settled that the Due Process Clause of the Fifth
18
19 Amendment protects citizens and noncitizens physically present in the United States. See, e.g.,

20 Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Mathews v. Diaz, 426 U.S. 67, 77 (1976).

21 Because Plaintiffs have a statutory right to apply for asylum, they are entitled to due process in
22
the pursuit of that right. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (stating that due
23
process requires compliance with fair procedures prior to any deprivation of an individual’s
24
25 protected liberty or property interest). In this case, due process requires Defendants to notify

26 Plaintiffs of the one-year deadline. See Mullane v. Central Hanover Bank & Trust Co., 339
27
U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due process in any
28

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proceeding which is to be accorded finality is notice reasonably calculated, under all the
1
2 circumstances, to apprise interested parties of the pendency of the action and afford them an

3 opportunity to present their objections.”). Due process also requires that Defendants provide a

4 procedural mechanism that ensures that Plaintiffs are able to timely file their asylum
5
application. See Mathews v. Eldridge, 424 U.S. 319 (1976).
6
B. Named Plaintiffs’ Factual Backgrounds
7
Plaintiff Rodriguez is a 37-year-old asylum seeker from Honduras. Mr. Rodriguez
8
9 entered the United States in July 2014 and established a credible fear of persecution in an

10 interview with USCIS. Subsequently, DHS released him from custody with an NTA, the

11 charging document in removal proceedings, but did not inform him of the one-year deadline.
12
DHS has not placed Mr. Rodriguez in removal proceedings yet. He only learned of the
13
deadline when he sought counsel for his immigration case. His attempts to comply with the
14
15 one-year deadline have been unsuccessful, however, as both USCIS and EOIR have rejected

16 his asylum application—USCIS rejected it on the assumption that Mr. Rodriguez was in

17 removal proceedings, so the application had to be filed with EOIR; EOIR rejected the
18
application Mr. Rodriguez attempted to lodge because he is not actually in removal
19
proceedings. As a result, he has been unable to file, or even lodge, his asylum application. See
20
21 Dkt. 1 ¶¶60-66.

22

Plaintiff Mendez is a 30-year-old asylum seeker from the Dominican Republic. Ms.

23
Mendez entered the United States in September 2013 and established a credible fear of
24
persecution in an interview with USCIS. Subsequently, DHS released her from custody with
25

26 an NTA, but did not inform her of the one-year deadline. She only learned of the deadline

27 when she sought counsel for her immigration case—after one year had already passed. As she

28 had not yet been placed in removal proceedings, Ms. Mendez attempted to file an asylum

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application with USCIS, but USCIS rejected it on the assumption that she already was in
1
2 removal proceedings. Only after this rejection—and more than one year after she entered the

3 country—did DHS file the NTA with the immigration court, allowing Ms. Mendez to finally

4 lodge her asylum application with the San Antonio Immigration Court. Her first immigration
5
court hearing will be in August 2016. See Dkt. 1 ¶¶67-74.
6
Plaintiff Lopez is a 37-year-old asylum seeker from Guatemala. In February 2014, she
7
8 arrived at a Texas port of entry with two of her children and told the inspecting officers that she

9 was afraid to return to Guatemala. DHS served Ms. Lopez and her children with NTAs and
10
released them from custody with the requirement that they check in with DHS on a regular
11
basis. DHS did not inform her of the one-year deadline. Ms. Lopez checked in with DHS on
12
13 four occasions between March 2014 and September 2015, yet at no point did DHS inform her

14 of the one-year deadline. In October 2015, she was issued a notice of hearing for November

15 2015 in the San Antonio Immigration Court. Ms. Lopez did not learn of the one-year deadline
16
until she consulted an immigration attorney in December 2015. She lodged her asylum
17
application with the court in January 2016, nearly two years after she arrived in the United
18
19 States. The immigration judge subsequently terminated her removal proceedings, and she filed

20 an asylum application affirmatively with USCIS in February 2016. USCIS has not yet

21 scheduled an interview regarding her asylum application. See Dkt. 1 ¶¶75-81.
22
Plaintiff Suarez is a 29-year-old asylum seeker from Mexico. She and her five young
23
children arrived at a California port of entry in November 2013. Upon her arrival, Ms. Suarez
24
25 informed DHS that she was afraid to return to Mexico and that she was seeking asylum in the

26 United States. She provided DHS with a sworn statement regarding her fear of returning to
27
Mexico. Shortly afterwards, DHS released her and her children from custody with NTAs, and
28

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paroled them into the country to await a removal hearing. At no point did DHS inform Ms.
1
2 Suarez of the one-year deadline. She first learned of this requirement more than a year later,

3 when she sought counsel. She then promptly lodged her application with the San Francisco

4 Immigration Court. Ms. Suarez is scheduled for an individual hearing in May 2017. See Dkt. 1
5
¶¶82-87.
6
III. THE COURT SHOULD CERTIFY THE CLASSES.
7
The statutory, regulatory, and constitutional violations Plaintiffs assert have tremendous
8
9 adverse consequences. The DHS Defendants’ failure to advise of the one-year deadline and all

10 Defendants’ failure to create a meaningful process that ensures that Plaintiffs and putative class

11 members are able to timely apply for asylum, has or will result in Plaintiffs and putative class
12
members effectively being denied the right to apply for asylum—a critical protection.
13
Plaintiffs thus seek certification of the aforementioned classes and subclasses under Rule
14
15 23(b)(2), to enjoin Defendants’ unlawful policies.

16

Courts in the Ninth Circuit routinely certify classes challenging the adequacy of policies

17 and procedures under the immigration laws. See, e.g., Orantes-Hernandez v. Smith, 541 F.
18
Supp. 351, 370-72 (C.D. Cal. 1982) (certifying provisional nationwide class of Salvadoran
19
asylum seekers challenging certain Immigration and Naturalization Service (INS) policies and
20
21 procedures including, inter alia, its failure to advise them of their right to apply for asylum);

22 Walters v. Reno, 1996 WL 897662, at *5-8 (W.D. Wash. 1996), aff’d, 145 F.3d 1032, 1045-47
23
(9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999) (certifying nationwide
24
class of individuals challenging adequacy of notice in document fraud cases); Rodriguez v.
25
26 Hayes, 591 F.3d 1105 (9th Cir. 2010) (reversing district court order denying class certification

27 for class of immigration detainees subject to prolonged detention); Khoury v. Asher, 3 F. Supp.

28 3d 877 (W.D. Wash. 2014) (certifying class and ordering declaratory relief for immigration

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detainees held in immigration custody without bond hearings); A.B.T. v. U.S. Citizenship and
1
2 Immigration Services, 2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) (certifying nationwide

3 class and approving settlement amending practices by EOIR and USCIS that precluded asylum
4 applicants from receiving employment authorization); Roshandel v. Chertoff, 554 F. Supp. 2d
5
1194 (W.D. Wash. 2008) (certifying district-wide class of delayed naturalization cases);
6
Gonzales v. U.S. Dept. of Homeland Sec., 239 F.R.D. 620, 627-29 (W.D. Wash. 2006)
7
8 (certifying Ninth Circuit wide class challenging USCIS policy contradicting binding

9 precedent), preliminary injunction vacated, 508 F.3d 1227 (9th Cir. 2007) (establishing new
10
rule and vacating preliminary injunction but no challenge made to class certification); Ali v.
11
Ashcroft, 213 F.R.D. 390, 408-11 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886-89 (9th Cir.
12
13 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of

14 Somalis challenging legality of removal to Somalia in the absence of a functioning

15 government).3
16
Certification of such classes under Rule 23(b)(2) is unsurprising. The rule was intended
17
to “facilitate the bringing of class actions in the civil-rights area,” 7AA WRIGHT & MILLER,
18
19 FEDERAL PRACTICE & PROCEDURE § 1775, at 71 (3d ed. 2005), especially those—like the

20 present case—seeking declaratory or injunctive relief. What is more, class actions in the

21 immigration arena often involve claims on behalf of class members who would not have the
22
ability to present their claims absent class treatment. This rationale applies with particular
23

24

3
25

See also Barahona-Gomez v. Reno, 236 F.3d 1115, 1118 (9th Cir. 2001) (finding district court had

jurisdiction to grant injunctive relief in certified class action challenging unlawful immigration directives issued by

26 EOIR); Gete v. INS, 121 F.3d 1285, 1299-1300 (9th Cir. 1997) (vacating denial of class certification in challenge to notice and standards in INS vehicle forfeiture procedure); Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash.

27 1998), aff’d on other grounds, 219 F.3d 1087 (9th Cir. 2000) (en banc) (certifying nationwide class of persons challenging validity of administrative denaturalization proceedings); Santillan v. Ashcroft, No. C 04-2686 MHP,

28 2004 WL 2297990, at *8-12 (N.D. Cal. Oct. 12, 2004) (certifying nationwide class of lawful permanent residents challenging delays in receiving documentation of their status).

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force to civil rights suits like this one, where, absent class certification, there likely will be no
1
2 opportunity to resolve the legal claim at issue. Putative class members are recent immigrants to

3 this country who have fled danger, many of whom do not understand English and have little to

4 no understanding of U.S. immigration or constitutional law. A large percentage of these
5
asylum seekers are indigent and many are unrepresented, and thus lack the legal counsel
6
necessary to even contemplate, much less raise, the type of claim brought here. Finally, the
7
8 core issues here, like the class actions cited above, involve questions of law, rather than

9 questions of fact, and are thereby well suited for resolution on a class-wide basis. See, e.g.,
10
Unthaksinkun v. Porter, No. C11-0588JLR, 2011 WL 4502050, at *15 (W.D. Wash. Sept. 28,
11
2011) (concluding that since all class members were subject to the same notice process, its
12
13 ruling as to the legal sufficiency of the process “would apply equally to all class members”).

14

In reviewing whether to certify a nationwide class, courts consider whether (1) there are

15 similar cases currently pending in other jurisdictions, and (2) the plaintiffs are challenging a
16
nationwide policy or practice. See, e.g., Arnott v. U.S. Citizenship & Immigration Servs., 290
17
F.R.D. 579, 589 (C.D. Cal. 2012); Clark v. Astrue, 274 F.R.D. 462, 471 (S.D.N.Y. 2011).
18
19 There are no other similar cases currently pending in other jurisdictions. And as noted above,

20 nationwide classes challenging immigration policies and practices are regularly certified given

21 that immigration policy is based on uniform, federal law. Further, nationwide certification is
22
required in this case in order to effectuate Congress’s intent to “create a ‘uniform procedure’
23
for consideration of asylum claims.” Orantes-Hernandez, 919 F.2d at 552 (citation omitted).
24

25

Moreover, this issue can only be addressed on a nationwide level. It would be

26 unworkable to limit the scope of certification to anything other than a nationwide class. The
27
putative classes consist of individuals released by DHS after presenting themselves at the
28

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border or being apprehended near the border. Upon release, they travel to all parts of the
1
2 country to reunite with family members or other supportive community members. Thus, any

3 challenge to Defendants’ practices and policies relating to a failure to provide notice and

4 procedural mechanisms to the individuals they release necessarily must apply to the entire
5
nation. Certification that is not nationwide in scope would result in Defendants continuing to
6
give defective notice and inadequate application procedures to affected noncitizens by virtue of
7
8 their location—an arbitrary and unjust result. See Gorbach v. Reno, 181 F.R.D. 642, 644

9 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000) (finding certification of a nationwide
10
class particularly fitting because “anything less that [sic] a nationwide class would result in an
11
anomalous situation allowing the INS to pursue denaturalization proceedings against some
12
13 citizens, but not others, depending on which district they reside in”).

14

A. This Action Satisfies the Class Certification Requirements of Rule 23(a).

15

A class “may be divided into subclasses that are each treated as a class.” Fed. R. Civ. P.

16 23(c)(5). Each subclass “must independently meet the requirements of Rule 23.” Buus v.

17 WAMU Pension Plan, 251 F.R.D. 578, 581 (W.D. Wash. 2008) (citing Rule 23(c)(5) and Betts
18
v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981)). Here, the classes
19
and the subclasses meet the requirements of Rule 23.
20

21

1. The Proposed Class Members Are so Numerous That Joinder Is

Impracticable.
22
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

23

impracticable.” “‘[I]mpracticability’ does not mean ‘impossibility,’ but only the difficulty or
24

25 inconvenience of joining all members of the class.” Harris v. Palm Springs Alpine Est., Inc.,

26 329 F.2d 909, 913-14 (9th Cir. 1964) (citation omitted). No fixed number of class members is

27 required. Perez-Funez v. District Director, Immigration & Naturalization Service, 611 F.
28

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Supp. 990, 995 (C.D. Cal. 1984). Courts generally find this requirement is satisfied even when
1
2 relatively few class members are involved.4

3

The proposed classes are numerous. According to statistics for Fiscal Year 2016 from

4 the Asylum Division of Defendant USCIS, thousands of noncitizens express a fear of
5
persecution to the DHS Defendants upon their arrival into the United States each month.5
6
During that same year, the Asylum Division determined that 36,324 individuals who were
7

8 originally detained and placed in expedited removal proceedings had a “credible fear” of

9 persecution if returned to their home countries.6 Upon information and belief, the vast
10
majority, if not all, of these 36,324 individuals are putative Class A members; as such, joinder
11
of all such members would be entirely unreasonable, if not virtually impossible. Consequently,
12
13 Defendant USCIS’s own data make clear that putative Class A is far too numerous to make

14 joinder practicable.

15

In addition, the supporting declarations filed by several immigration attorneys from

16
across the country further demonstrate that both Class A and Class B membership is too
17
numerous for joinder. See Declaration of Genevra W. Alberti ¶¶3-6 (Missouri legal services
18

19 attorney noting, inter alia, that she currently represents more than 30 asylum seekers who were

20 released by DHS with an NTA after expressing fear at the border and not given notice of the

21 one-year deadline); Declaration of Yuk Man Maggie Cheng ¶¶5, 8, 12-15 (Seattle legal
22

23

4

See, e.g., Arkansas Educ. Ass’n v. Bd. Of Educ., 446 F.2d 763, 765-66 (8th Cir. 1971) (finding 17 class

24 members sufficient); McCluskey v. Trs. Of Red Dot Corp. Employee Stock Ownership Plan & Trust, 268 F.R.D.

670, 674-76 (W.D. Wash. 2010) (certifying class with 27 known members); Jones v. Diamond, 519 F.2d 1090, 25 1100 (5th Cir. 1975) (class membership of 48); Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275

(10th Cir. 1977) (41-46 class members).

26 5

See Asylum Division, USCIS, “Credible Fear Workload Report Summary: FY 2016 Total Caseload,” at 1

available at 27 https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/CredibleFear

28 ReasonableFearStatisticsNationalityReports.pdf (last visited Jul. 7, 2016).

6

Id.

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services attorney remarking, inter alia, that in a five-month time span, the asylum unit of
1
2 NWIRP’s Seattle office interviewed “at least 21 asylum seekers who were not informed by

3 DHS of the one-year deadline upon their release from custody,” including eight such
4 individuals who had been released without a credible fear interview); Declaration of Ilana
5
Greenstein ¶¶3-15 (Massachusetts attorney recounting, inter alia, that in her 18 years of
6
experience, she has “never had a client who has received a written or oral advisal of the one-
7
8 year deadline” from DHS); Declaration of Jennifer Rotman ¶¶5-6, 8, 10-13 (Oregon attorney

9 observing that, of “dozens” of asylum-seeking clients who have expressed fear at the border,
10
she is not aware of any who were informed of the one-year deadline, and detailing difficulties
11
with filing asylum applications stemming from jurisdictional issues); Declaration of Patricia
12
13 Freshwater ¶¶5-17 (Texas attorney describing, inter alia, her representation of at least a dozen

14 individuals who have been released from DHS custody without being told of the one-year

15 deadline, despite passing a credible fear interview or expressing a fear of return, and the
16
challenges she has faced in filing her clients’ asylum applications in a timely manner);
17
Declaration of Elise Harriger ¶¶6-13 (Texas legal services attorney who serves several hundred
18
19 asylum seekers annually declaring that “DHS does not tell asylum seekers about the deadline”

20 despite having multiple interactions with them, and relating obstacles to filing individuals’

21 asylum applications); Declaration of Vanessa Allyn ¶¶2-15 (Maryland-licensed legal services
22
attorney describing asylum seekers’ overwhelming lack of awareness of one-year deadline and
23
the veritable “Gordian knot” that often results from complications associated with filing asylum
24
25 applications in a timely manner).7 Cf. Ali, 213 F.R.D. at 408 (noting that “the Court does not

26 need to know the exact size of the putative class, ‘so long as general knowledge and common
27

28
7

These declarations will be filed concurrently herewith.

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sense indicate that it is large’” (quoting Perez-Funez, 611 F. Supp. at 995)); Newberg on Class
1
2 Actions § 3:13 (noting that “it is well settled that a plaintiff need not allege the exact number or

3 specific identity of proposed class members”).

4

Numerosity is not a close question here; however, even were it so, the Court should

5
certify the class. See Stewart v. Associates Consumer Discount Co., 183 F.R.D. 189, 194 (E.D.
6

Pa. 1998) (“[W]here the numerosity question is a close one, the trial court should find that
7

8 numerosity exists, since the court has the option to decertify the class later pursuant to Rule

9 23(c)(1).”). Defendants are in possession of the precise number of proposed class members,
10
but Plaintiffs have demonstrated that the number of current and future class members, and the
11
numerous reasons why it would be impractical to join them, make class certification
12
13 appropriate as the classes are “so numerous that joinder of all members is impracticable.” Fed.

14 R. Civ. P. 23(a)(1).

15

2. The Classes Present Common Questions of Law and Fact.

16

Rule 23(a)(2) requires that there be questions of law or fact that are common to the

17 class. “‘[A]ll questions of fact and law need not be common’” to satisfy the commonality
18
requirement, however. Ellis, 657 F.3d at 981 (quoting Hanlon v. Chrysler Corp., 150 F.3d
19
1011, 1019 (9th Cir. 1998)). One shared legal issue can suffice. See, e.g., Rodriguez, 591 F.3d
20
21 at 1122 (“[T]he commonality requirements asks [sic] us to look only for some shared legal

22 issue or a common core of facts.”).
23
“Commonality requires the plaintiff to demonstrate that the class members ‘have
24
suffered the same injury.’” Wal-Mart, 131 S. Ct. at 2551 (citation omitted). To establish the
25
26 existence of a common question of law, the putative class members’ claims “must depend upon

27 a common contention” that is “of such a nature that it is capable of classwide resolution—

28 which means that determination of its truth or falsity will resolve an issue that is central to the

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validity of each one of the claims in one stroke.” Id. Thus, “[w]hat matters to class certification
1
2 . . . is not the raising of common ‘questions’ . . . but, rather the capacity of a classwide

3 proceeding to generate common answers apt to drive the resolution of the litigation.” Id.

4 (quotation marks and citation omitted).
5
Challenges to the adequacy of a uniform notice given to a group of people are routinely
6
certified as class actions, since the sufficiency of notice is a question common to the entire
7
8 class, as is the answer. See, e.g., Walters, 145 F.3d at 1046 (“What makes the plaintiffs’ claims

9 suitable for a class action is the common allegation that the INS’s procedures provide
10
insufficient notice.”); Unthaksinkun, 2011 WL 4502050 at *12 (certifying class challenging
11
legality of notice of termination of health benefits after finding, inter alia, that commonality
12
13 existed where “[a]ll class members were offered the same [notice] process,” because any

14 finding that “this process was insufficient” would mean the process “was insufficient as to all

15 class members”); Buus, 251 F.R.D. at 584 (certifying subclasses asserting unlawful notice after

16
concluding, inter alia, that commonality existed because “[t]he members of each proposed
17
subclass presumably received identical notices”).
18

19

The commonality standard is more liberal in civil rights suits “challeng[ing] a system-

20 wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275

21 F.3d 849, 868 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S.
22
499, 504-05 (2005). “[C]lass suits for injunctive or declaratory relief,” like this case, “by their
23
very nature often present common questions satisfying Rule 23(a)(2).” 7A WRIGHT, MILLER &
24
25 KANE, FEDERAL PRACTICE & PROCEDURE § 1763 at 226.

26

In the instant case, the proposed Class and Subclass members allege common harms: a

27
violation of their statutory right to apply for asylum, which necessarily includes notice of the
28

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statutory deadline to file the application, and a meaningful opportunity to comply with that
1
2 deadline. Their entitlement to these rights is based on a common core of facts. All members of

3 Class A and Class B are individuals who expressed a fear of persecution or desire to apply for

4 asylum and were released from DHS custody to await removal proceedings. All were released
5
from such custody after DHS became aware of their fear of persecution in their home countries.
6
These facts entitle all of them to the opportunity to apply for asylum. See Orantes-Hernandez,
7
8 919 F.2d at 553 (“It is undisputed that all [noncitizens] possess . . . a right [to apply for asylum]

9 under the [Refugee] Act.”). They also are entitled to notice of the statutory deadline for doing

10
so. See id. at 556 (“[N]otice should be given to those [noncitizens] who indicate that they fear

11
persecution if they were to be returned home.”).
12

13

Whether these alleged harms exist implicates common factual questions:

14

i. Whether the DHS Defendants have a policy or practice of failing to advise

asylum seekers found to have a credible fear of persecution of the one-year deadline;
15

16

ii. Whether the DHS Defendants have a policy or practice of failing to advise

asylum seekers of the one-year deadline when it releases them from custody after they

17

have expressed a fear of persecution;

18

iii. Whether the DHS Defendants have a policy or practice of failing to provide

asylum seekers who are not in removal proceedings and are released from custody with

19

a meaningful mechanism to comply with the one-year deadline;

20
iv. Whether the DHS and DOJ Defendants have a policy or practice of failing to

21

provide asylum seekers who are in removal proceedings and are released from custody

with a meaningful mechanism to comply with the one-year deadline.
22

23

All of the putative members within each subclass make the same legal claims—that the

24 immigration laws and the Constitution require two things with respect to the right to apply for

25 asylum: notice of the one-year deadline and the provision of a meaningful opportunity to
26
comply with the deadline. These legal questions are common to all members of each subclass.
27
The shared common facts within each subclass will ensure that the answers as to the legality of
28

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these challenged policies and practices will be the same for all who fall within each subclass,
1
2 and will thus “‘drive the resolution of the litigation.’” Ellis, 657 F.3d at 981 (quoting Wal-

3 Mart, 131 S. Ct. at 2551). Should Plaintiffs prevail with respect to any of the subclasses, all
4 who fall within the subclass will benefit; they all will be entitled to such notice and/or an
5
application mechanism. The subclasses are therefore sufficiently common.
6
Factual variations as to, for example, the manner in which individual class members
7
8 were treated by DHS or EOIR, or as to the merits of the asylum claims of individual members,

9 are insufficient to defeat commonality where a uniform policy exists that treats all such
10
members in the same way. In a similar action challenging the adequacy of notice provided by
11
the immigration authorities to certain noncitizens at risk of removal—a failure that also resulted
12
13 in the noncitizens’ loss of the chance to argue the merits of their defenses in a removal

14 hearing—the district court announced,

15

[E]ven though the individual factual circumstances may vary among class

16

members, the commonality requirement is satisfied in a suit such as this

where it is alleged that the defendants have acted in a uniform manner with

17

respect to the class. The existence of a policy of providing information not

reasonably calculated to apprise non-[E]nglish speakers of their rights

18

would, if such a policy exists, affect all members of the proposed class.

19
Walters, 1996 WL 897662 at *6 (citations omitted). The Ninth Circuit affirmed the district
20
court’s finding of commonality, remarking that, as in this case, “[w]hat makes the plaintiffs’
21

22 claims suitable for a class action is the common allegation that the INS’s procedures provide

23 insufficient notice.” Walters, 145 F.3d at 1046.8

24

25

26

27
8

Moreover, even if some class members happened by chance to be told of the one-year deadline, this is not

28 enough to defeat commonality where the DHS Defendants have no policy or practice of providing such notice (and Defendants have not established or implemented a mechanism for timely filing). See Walters, 145 F.3d at 1045-46.

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Plaintiffs are not asking this Court to determine whether they or any putative class
1
2 member should be granted asylum; they are simply requesting that this Court review whether

3 Defendants are required to institute policies and practices providing appropriate notice along
4 with a meaningful opportunity to submit their applications pursuant to the law. As such, the
5
questions presented apply equally to all class members regardless of other factual differences.
6
In sum, the questions of law presented here are particularly well-suited to resolution on
7
8 a class-wide basis, as “the court must decide only once whether the application” of Defendants’

9 policies and practices “does or does not violate” the law. Troy v. Kehe Food Distribs., Inc.,
10
276 F.R.D. 642, 654 (W.D. Wash. 2011); see also LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th
11
Cir. 1985) (holding that the constitutionality of an INS procedure “plainly” created common
12
13 questions of law and fact).9 Because all putative Class and Subclass members allege the same

14 injuries and raise the same set of common questions, and because the remedy as to future class

15 members will be the same for all main class members, and the remedy for those who already
16
have been released by DHS will be Subclass-specific, see Section III.A.3, infra, this Court
17
should find the commonality requirement satisfied here.
18

19

3. The Claims of the Named Plaintiffs Are Typical of the Claims of the

Members of the Proposed Classes and Subclasses.

20
Rule 23(a)(3) requires that the claims of the class representatives be “typical of the

21
claims . . . of the class.” To establish typicality, “a class representative must be part of the class
22

23 and ‘possess the same interest and suffer the same injury’ as the class members.” Gen. Tel. Co.

24 of the Southwest v. Falcon, 457 U.S. 147, 156 (1982) (citation omitted). Factual differences

25 among class members do not defeat typicality in a case dealing with a uniform policy or
26

27

9
28

As such, resolution on a class-wide basis also serves a purpose behind the commonality doctrine:

practical and efficient case management. Rodriguez, 591 F.3d at 1122.

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practice, provided that “the unnamed class members have injuries similar to those of the named
1
2 plaintiffs and that the injuries result from the same, injurious course of conduct.” Armstrong,

3 275 F.3d at 869; see also Unthaksinkun, 2011 WL 4502050 at *13 (same); La Duke, 762 F.2d

4 at 1332 (“The minor differences in the manner in which the representative’s Fourth
5
Amendment rights were violated does not render their claims atypical of those of the class.”);
6
Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324, 1342 (W.D. Wash. 1998) (“When it is
7
8 alleged that the same unlawful conduct was directed at or affected both the named plaintiff and

9 the class sought to be represented, the typicality requirement is usually satisfied, irrespective of
10
varying fact patterns which underlie individual claims.”) (citation omitted).
11
Here, the claims of the Plaintiffs are typical of the claims of their putative class
12
13 members. Each proposed Class A Plaintiff, just like each Class A member, is an asylum seeker

14 who was found to possess a credible fear of persecution and was released from DHS custody

15 after that determination, yet was not given notice by DHS of the one-year deadline or access to
16
a uniform mechanism that ensures the opportunity to timely apply. Both class representatives
17
and class members are thus victims of the “same, injurious course of conduct”: their actual or
18
19 feared injury—missing their window to apply for asylum—stems from the DHS Defendants’

20 failure to notify them of the one-year deadline to apply for asylum and all Defendants’ failure

21 to create and implement a uniform mechanism for compliance. Similarly, every Class B
22
Plaintiff, along with every class B member, was in DHS custody and expressed a fear of
23
persecution; they were released from custody without notice of the one-year deadline or access
24
25 to a uniform mechanism in which to timely apply for asylum. Those Plaintiffs, too, are typical

26 of the class members they seek to represent: both have been injured by the DHS Defendants’
27
failure to afford them adequate notice and all Defendants’ failure to create and implement a
28

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uniform mechanism for compliance.
1

2

Similarly, each Subclass A.I. Plaintiff and Subclass A.I. member, as well as each

3 Subclass B.I. Plaintiff and Subclass B.I. member, has been injured by DHS’s failure to provide

4 a guaranteed, uniform mechanism for them to timely file an asylum application, and all share
5
the need for such a mechanism to exist outside the removal proceedings context.
6
Additionally, each Subclass A.II. Plaintiff and Subclass A.II. member, as well as each
7
8 Subclass B.II. Plaintiff and Subclass B.II. member, has been injured by Defendants’ failure to

9 provide a uniform mechanism for them to timely file an asylum application within the context
10
of pending removal proceedings. They share a need for a common remedy.
11
Because the Plaintiffs and the proposed classes and subclasses raise common legal
12
13 claims and are united in their interest and injury, the element of typicality is met.

14

4. The Named Plaintiffs Will Adequately Protect the Interests of the

Proposed Classes, and Counsel Are Qualified to Litigate this Action.
15
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect

16

the interests of the class.” “Whether the class representatives satisfy the adequacy requirement
17

18 depends on ‘the qualifications of counsel for the representatives, an absence of antagonism, a

19 sharing of interests between representatives and absentees, and the unlikelihood that the suit is
20
collusive.’” Walters, 145 F.3d at 1046 (citations omitted).
21
a. Named Plaintiffs
22
Plaintiffs each seek relief on behalf of their respective Subclass as a whole and have no
23
interest antagonistic to those of other Subclass members; they will thus fairly and adequately
24
25 protect the interests of the Subclass they seek to represent. Their mutual goal is to declare

26 Defendants’ challenged policies and practices unlawful and to obtain declaratory and injunctive

27 relief that would not only cure this illegality but remedy the damage to all Subclass members.

28
They thus seek a remedy for the same injuries, and all share an interest in having a meaningful

MOT. FOR CLASS CERTIFICATION

NORTHWEST IMMIGRANT RIGHTS PROJECT

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615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

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opportunity to apply for asylum. Thus, the interests of the representatives and of the class
1
2 members are aligned.

3

b. Counsel

4

Plaintiffs’ counsel are adequate. Counsel are considered qualified when they can

5 establish their experience in previous class actions and cases involving the same field of law.
6
See Lynch v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984); Marcus v. Heckler, 620 F. Supp.
7
1218, 1223-24 (N.D. Ill. 1985); Adams v. Califano, 474 F. Supp. 974, 979 (D. Md. 1979).
8
9 Plaintiffs are represented by attorneys from the Northwest Immigrant Rights Project, Dobrin &

10 Han PC, the National Immigration Project of the National Lawyers Guild, and the American

11 Immigration Council. Counsel have a demonstrated commitment to protecting the rights and
12
interests of noncitizens and, among them, have considerable experience in handling complex
13
and class action litigation in the immigration field. See Declaration of Matt Adams;
14
15 Declaration of Vicky Dobrin; Declaration of Hilary Han; Declaration of Mary Kenney; and

16 Declaration of Trina Realmuto.10 These attorneys have represented numerous classes of
17 immigrants in actions that successfully obtained class relief. Plaintiffs’ counsel will zealously
18
represent both named and absent class members.
19
B. This Action Also Satisfies the Requirements of Rule 23(b)(2).
20
Federal Rule of Civil Procedure 23(b)(2), under which Plaintiffs seek certification,
21
22 requires that “the party opposing the class has acted or refused to act on grounds that apply

23 generally to the class.” It also “requires ‘that the primary relief sought is declaratory or

24 injunctive.’” Rodriguez, 591 F.3d at 1125 (citation omitted). “The rule does not require [the
25
court] to examine the viability or bases of class members’ claims for declaratory and injunctive
26

27

28
10

These declarations will be filed concurrently herewith.

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relief, but only to look at whether class members seek uniform relief from a practice applicable
1
2 to all of them.” Id. This suit satisfies the requirements of Rule 23(b)(2), as Defendants have a

3 nationwide policy of inaction that is injurious to the rights and interests of the Plaintiffs and

4 putative class members.
5
Despite being aware of the notice defects and the lack of mechanism to apply for
6
asylum, the DHS Defendants have failed to provide Plaintiffs and putative class members with
7
8 adequate notice of the one-year deadline, and all Defendants have refused to provide a

9 mechanism for Plaintiffs and putative class members to comply with that deadline. See, e.g.,
10
Cheng Decl. ¶11; Allyn Decl. ¶8. “The only appropriate remedy, if these allegations are
11
established, is declaratory judgment and final injunctive relief.” Walters, 1996 WL 897662 at
12
13 *7. Defendants’ actions in this case violate Plaintiffs’ and proposed class members’ statutory,

14 regulatory, and constitutional right to apply for asylum and demonstrate that Defendants have

15 acted “on grounds generally applicable to the class, thereby making appropriate final injunctive
16
relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P.
17
23(b)(2); see also Rodriguez, 591 F.3d at 1126 (finding that class of noncitizens detained
18
19 during immigration proceedings met Rule 23(b)(2) criteria because “all class members’ [sic]

20 seek the exact same relief as a matter of statutory or, in the alternative, constitutional right”);

21 see also Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2014) (Rule 23(b)(2) “requirements are
22
unquestionably satisfied when members of a putative class seek uniform injunctive or
23
declaratory relief from policies or practices that are generally applicable to the class as a
24
25 whole”). Hence, the requirements of Rule 23(b)(2) are met.

26

IV. CONCLUSION

27

Plaintiffs respectfully request that the Court grant this Motion and enter the attached

28 proposed certification order.

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1

2

Dated this 21st day of July, 2016.

3

Respectfully submitted,

4

s/Matt Adams

5

Matt Adams, WSBA No. 28287

s/Vicky Dobrin Vicky Dobrin, WSBA No. 28554

6

s/Glenda Aldana

s/Hilary Han

Glenda M. Aldana Madrid, WSBA No. 46987 Hilary Han, WSBA No. 33754
7

8

Northwest Immigrant Rights Project

615 Second Avenue, Suite 400

9

Seattle, WA 98104

10

(206) 957-8611

(206) 587-4025 (fax)

11

s/Trina Realmuto

12

Trina Realmuto, pro hac vice

13

National Immigration Project

of the National Lawyers Guild

14

14 Beacon Street, Suite 602

Boston, MA 02108

15

(617) 227-9727

16

(617) 227-5495 (fax)

Dobrin & Han, PC 705 Second Avenue, Suite 610 Seattle, WA 98104 (206) 448-3440 (206) 448-3466 (fax)
s/Mary Kenney Mary Kenney, pro hac vice American Immigration Council 1331 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 507-7512 (202) 742-5619 (fax)

17

18

19

20

21

22

23

24

25

26

27

28

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CERTIFICATE OF SERVICE
1

2

I, Glenda M. Aldana Madrid, hereby certify that on July 21, 2016, I electronically filed

3 the foregoing motion, proposed order, corporate disclosure statement, and supporting

4 declarations with the Clerk of the Court using the CM/ECF system. In addition, I sent a copy of

5
these documents by U.S. first class mail, postage prepaid, to each of the following:
6

JEH JOHNSON
7
c/o Office of the General Counsel 8 Department of Homeland Security
Mail Stop 3650 9 Washington, DC 20528
10

R. GIL KERLIKOWSKE, Commissioner of CBP c/o Office of the General Counsel Department of Homeland Security Mail Stop 3650 Washington, DC 20528

11 THOMAS S. WINKOWSKI, Principal
Deputy Assistant Secretary for ICE 12 c/o Office of the General Counsel
13 Department of Homeland Security Mail Stop 3650
14 Washington, DC 20528

LEON RODRIGUEZ, Director of USCIS c/o Office of the General Counsel Department of Homeland Security Mail Stop 3650 Washington, DC 20528

15 LORETTA E. LYNCH, Attorney General of JUAN OSUNA, Director, Executive Office

16 the United States U.S. Department of Justice

for Immigration Review c/o Executive Office for Immigration Review

17 950 Pennsylvania Avenue, NW

Office of the Director

Washington, DC 20530-0001
18

5107 Leesburg Pike, Suite 2600 Falls Church, VA 20530

19
United States Attorney’s Office 20 Western District of Washington
Attn: Civil Process Clerk 21 700 Stewart Street, Suite 5220 22 Seattle, WA 98101-1271

23
Executed in Seattle, Washington, on July 21, 2016.
24
25 s/ Glenda M. Aldana Madrid Glenda M. Aldana Madrid, WSBA No. 46987
26 NORTHWEST IMMIGRANT RIGHTS PROJECT 27 615 2nd Avenue, Suite 400
Seattle, WA 98104 28 Tel: (206) 957-8646

MOT. FOR CLASS CERTIFICATION Case No. 2:16-cv-01024-RSM - 26

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

 
 Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 1 of 14

1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 CONCELY del CARMEN MENDEZ

)

8 ROJAS, et al.,

) CASE NO. C16-1024RSM )

9

Plaintiffs,

)

10

v.

) ORDER GRANTING MOTION FOR ) CLASS CERTIFICATION

11

)

JEH JOHNSON, Secretary of the

)

12 Department of Homeland Security, in his )

official capacity, et al.,

)

13

)

14

Defendants.

)

)

15

16

I. INTRODUCTION

17

This matter comes before the Court on Plaintiffs’ Motion for Class Certification. Dkt.

18
#7. Plaintiffs seek certification of two classes, each with two subclasses. Id. Defendants
19
oppose the motion, arguing that the Plaintiffs lack standing, and fail to meet any of the class
20

21 certification requirements. Dkt. #29. For the reasons set forth below, the Court disagrees with

22 Defendants and now GRANTS Plaintiffs’ motion.

23

II. BACKGROUND

24
Plaintiffs are asylum seekers who challenge Defendants’ alleged failure to provide
25

them, and the classes they move to represent, with notice of the statutory requirement that an
26

27 asylum seeker must apply for asylum within one year of arrival in the United States, 8 U.S.C. §

28 1158(a)(2)(B), as well as Defendants’ alleged failure to provide a mechanism that ensures that

ORDER PAGE - 1

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 2 of 14

an asylum seeker is able to comply with that deadline. Dkt. #1. Plaintiffs allege that
1
2 Defendants’ policies and practices infringe on their and the proposed putative class members’

3 statutory and regulatory rights to apply for asylum, often depriving them of those rights

4 altogether, and also violate their right to due process under the Fifth Amendment to the United
5
States Constitution. Id. Plaintiffs assert that the questions presented in this case – whether the
6
DHS Defendants are obligated to provide Plaintiffs with notice of the one-year deadline when
7
8 released from DHS custody, and whether the DHS and DOJ Defendants must provide a

9 mechanism that ensures that Plaintiffs are able to apply for asylum in a timely manner – can
10
and should be resolved on a class-wide basis. Dkt. #7 at 2.
11
For context, Plaintiffs have provided a brief background of the proposed class
12
13 representatives:

14

Plaintiff Rodriguez is a 37-year-old asylum seeker from Honduras. Mr.

Rodriguez entered the United States in July 2014 and established a credible

15

fear of persecution in an interview with USCIS. Subsequently, DHS

16

released him from custody with an NTA, the charging document in removal

proceedings, but did not inform him of the one-year deadline. DHS has not

17

placed Mr. Rodriguez in removal proceedings yet. He only learned of the

deadline when he sought counsel for his immigration case. His attempts to

18

comply with the one-year deadline have been unsuccessful, however, as

19

both USCIS and EOIR have rejected his asylum application – USCIS

rejected it on the assumption that Mr. Rodriguez was in removal

20

proceedings, so the application had to be filed with EOIR; EOIR rejected

the application Mr. Rodriguez attempted to lodge because he is not actually

21

in removal proceedings. As a result, he has been unable to file, or even

22

lodge, his asylum application. See Dkt. 1 ¶ ¶ 60-66.

23

Plaintiff Mendez is a 30-year-old asylum seeker from the Dominican

Republic. Ms. Mendez entered the United States in September 2013 and

24

established a credible fear of persecution in an interview with USCIS.

25

Subsequently, DHS released her from custody with an NTA, but did not

inform her of the one-year deadline. She only learned of the deadline when

26

she sought counsel for her immigration case – after one year had already

passed. As she had not yet been placed in removal proceedings, Ms.
27
Mendez attempted to file an asylum application with USCIS, but USCIS

28

rejected it on the assumption that she already was in removal proceedings.

ORDER PAGE - 2

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 3 of 14

Only after this rejection – and more than one year after she entered the

1

country – did DHS file the NTA with the immigration court, allowing Ms.

2

Mendez to finally lodge her asylum application with the San Antonio

Immigration Court. Her first immigration court hearing will be in August

3

2016. See Dkt. 1 ¶ ¶ 67-74.

4

Plaintiff Lopez is a 37-year-old asylum seeker from Guatemala. In

5

February 2014, she arrived at a Texas port of entry with two of her children

and told the inspecting officers that she was afraid to return to Guatemala.

6

DHS served Ms. Lopez and her children with NTAs and released them from

custody with the requirement that they check in with DHS on a regular
7
basis. DHS did not inform her of the one-year deadline. Ms. Lopez

8

checked in with DHS on four occasions between March 2014 and

September 2015, yet at no point did DHS inform her of the one-year

9

deadline. In October 2015, she was issued a notice of hearing for

10

November 2015 in the San Antonio Immigration Court. Ms. Lopez did not

learn of the one-year deadline until she consulted an immigration attorney

11

in December 2015. She lodged her asylum application with the court in

January 2016, nearly two years after she arrived in the United States. The

12

immigration judge subsequently terminated her removal proceedings, and

13

she filed an asylum application affirmatively with USCIS in February 2016.

USCIS has not yet scheduled an interview regarding her asylum application.

14

See Dkt. 1 ¶ ¶ 75-81.

15

Plaintiff Suarez is a 29-year-old asylum seeker from Mexico. She and her

16

five young children arrived at a California port of entry in November 2013.

Upon her arrival, Ms. Suarez informed DHS that she was afraid to return to

17

Mexico and that she was seeking asylum in the United States. She provided

DHS with a sworn statement regarding her fear of returning to Mexico.

18

Shortly afterwards, DHS released her and her children from custody with

19

NTAs, and paroled them into the country to await a removal hearing. At no

point did DHS inform Ms. Suarez of the one-year deadline. She first

20

learned of this requirement more than a year later, when she sought counsel.

She then promptly lodged her application with the San Francisco

21

Immigration Court. Ms. Suarez is scheduled for an individual hearing in

22

May 2017. See Dkt. 1 ¶ ¶ 82-87.

23 Dkt. #7 at 8-10. In response to the instant motion, Defendants have not disputed these

24 background facts as to each of the named Plaintiffs. See Dkt. #29.

25
Plaintiffs now request that the Court certify the following classes and subclasses:
26

CLASS A (“Credible Fear Class”): All individuals who have been
27
released or will be released from DHS custody after they have been found

28

to have a credible fear of persecution within the meaning of 8 U.S.C. §

ORDER PAGE - 3

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 4 of 14

1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year

1

deadline to file an asylum application as set forth in 8 U.S.C. §

2

1158(a)(2)(B).

3

A.I.: All individuals in Class A who are not in removal proceedings and

who either (a) have not yet applied for asylum or (b) applied for asylum

4

after one year of their last arrival.

5

A.II.: All individuals in Class A who are in removal proceedings and who

6

either (a) have not yet applied for asylum or (b) applied for asylum after one

year of their last arrival.
7

8 Dkt. #7 at 2.

9

CLASS B (“Other Entrants Class”): All individuals who have been or

10

will be detained upon entry; express a fear of return to their country of

origin; are released or will be released from DHS custody without a credible

11

fear determination; are issued a Notice to Appear (NTA); and did not

receive notice from DHS of the one-year deadline to file an asylum

12

application set forth in 8 U.S.C. § 1158(a)(2)(B).

13
B.I.: All individuals in Class B who are not in removal proceedings and

14

who either (a) have not yet applied for asylum or (b) applied for asylum

after one year of their last arrival.
15

16

B.II.: All individuals in Class B who are in removal proceedings and who

either (a) have not yet applied for asylum or (b) applied for asylum after one

17

year of their last arrival.

18 Dkt. #7 at 3.
19
Plaintiffs propose that Plaintiffs Elmer Geovanni Rodriguez Escobar and Concely del
20
Carmen Mendez Rojas be appointed as representatives of Class A. Plaintiff Rodriguez moves
21
22 to be appointed as representative of Subclass A.I., and Plaintiff Mendez Rojas moves to be

23 appointed as representative of Subclass A.II. Dkt. #7 at 2. Plaintiffs further propose that

24 Plaintiffs Maribel Suarez Garcia and Lidia Margarita Lopez Orellana be appointed as
25
representatives of Class B. Plaintiff Lopez Orellana moves to be appointed as representative of
26
Subclass B.I., and Plaintiff Suarez moves to be appointed as representative of Subclass B.II.
27
28 Dkt. #7 at 3.

ORDER PAGE - 4

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 5 of 14

Plaintiffs also ask that the Court adopt the following definitions of certain terms for
1
2 purposes of all four subclasses:

3

an individual has “applied” for asylum when her application on Form I-589

is accepted, and not subsequently rejected, by either Defendant U.S.

4

Citizenship and Immigration Services (USCIS) or Defendant EOIR. An

5

application is rejected by USCIS where USCIS refuses to accept it or

subsequently issues a rejection notice. An application is rejected by EOIR

6

where EOIR refuses to accept it. Pursuant to current EOIR policy, an

application is not “filed” if it is accepted for “lodging” purposes only. See
7
Imm. Ct. Practice Manual 3.1(b)(iii)(A).

8
Dkt. #7 at 2 fn. 1.
9

10

III. DISCUSSION

11

A. Legal Standard

12

“Class certification is governed by Federal Rule of Civil Procedure 23.” Wal-Mart

13
Stores, Inc. v. Dukes, 564 U.S. 338, 345, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). Under
14
Federal Rule of Civil Procedure Rule 23(a), the party seeking certification must first
15

16 demonstrate that “(1) the class is so numerous that joinder of all members is impracticable; (2)

17 there are questions of law or fact common to the class; (3) the claims or defenses of the

18 representative parties are typical of the claims or defenses of the class; and (4) the
19
representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ.
20
P. 23(a). “Second, the proposed class must satisfy at least one of the three requirements listed
21
22 in Rule 23(b).” Dukes, 564 U.S. at 345; see also Leyva v. Medline Indus. Inc., 716 F.3d 510,

23 512 (9th Cir. 2013). In this case, Plaintiffs seek to certify a class under Rule 23(b)(2), which

24 requires that “the party opposing the class has acted or refused to act on grounds that apply
25
generally to the class, so that final injunctive relief or corresponding declaratory relief is
26
appropriate respecting the class as a whole.” Dkt. #7 at 23-24; Fed. R. Civ. P. 23(b)(2). “Rule
27

28

ORDER PAGE - 5

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 6 of 14

23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to
1
2 each member of the class.” Dukes, 564 U.S. at 360.

3

Rule 23 “does not set forth a mere pleading standard.” Id. at 350. Rather, “certification

4 is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of
5
Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation omitted). “[I]t may be
6
necessary for the court to probe behind the pleadings before coming to rest on the certification
7
8 question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d

9 740 (1982). This is because “the class determination generally involves considerations that are
10
enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id.
11
(internal quotation omitted). Nonetheless, the ultimate decision regarding class certification
12
13 “involve[s] a significant element of discretion.” Yokoyama v. Midland Nat'l Life Ins. Co., 594

14 F.3d 1087, 1090 (9th Cir. 2010).

15

B. Certification

16
Plaintiffs assert that their proposed classes and subclasses satisfy all Rule 23(a) and
17
Rule 23(b)(2) requirements. Accordingly, the Court addresses those arguments, in turn, below.
18

19

1. Numerosity and Standing

20

“The prerequisite of numerosity is discharged if ‘the class is so large that joinder of all

21 members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)
22
(quoting Fed. R. Civ. P. 23(a)(1)). Plaintiffs assert that the proposed classes are numerous.
23
Dkt. #7 at 14-16. Plaintiffs provide statistics for Fiscal Year 2016 from the Asylum Division of
24
25 Defendant USCIS to assert that thousands of noncitizens express a fear of persecution to the

26 DHS Defendants upon their arrival into the United States each month. See Asylum Division,
27
USCIS, “Credible Fear Workload Report Summary: FY 2016 Total Caseload,” at 1 available at
28

ORDER PAGE - 6

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 7 of 14

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engage
1
2 ments/CredibleFearReasonableFearStatisticsNationalityReports.pdf (last visited Jan. 9, 2017).

3 Further, during that same year, the Asylum Division determined that 36,324 individuals who

4 were originally detained and placed in expedited removal proceedings had a “credible fear” of
5
persecution if returned to their home countries. Id. Accordingly, Plaintiffs believe that the
6
majority, if not all, of these 36,324 individuals are putative Class A members.
7

8

In addition, Plaintiffs have presented Declarations from immigration attorneys around

9 the country supporting the assertion that both Class A and Class B membership is too numerous
10
for joinder. See Dkts. #13 at ¶ ¶ 3-6 and #19 at ¶ ¶5, 8 and 12-15. Finally, Plaintiffs note that
11
“Defendants are in possession of the precise number of proposed class members, but Plaintiffs
12
13 have demonstrated that the number of current and future class members, and the numerous

14 reasons why it would be impractical to join them . . .”.

15

Based on this evidence, “general knowledge,” and “common sense,” the Court can infer

16
that both putative classes and their subclasses are sufficiently large. Perez-Funez v. Dist. Dir.,
17
I.N.S., 611 F. Supp. 990, 995 (C.D. Cal. 1984). Further, each putative subclass includes
18

19 “unnamed and unknown future” asylum applicants, and joinder of such “individuals is

20 inherently impracticable.” Jordan v. L.A. Cty., 669 F.2d 1311, 1320 (9th Cir. 1982), vacated on

21 other grounds, 459 U.S. 810, 103 S. Ct. 35, 74 L. Ed. 2d 48.
22
However, the Court must also address Defendants’ argument that Plaintiffs cannot meet
23
the numerosity standard because none of the Plaintiffs can demonstrate an actual injury, and
24
25 therefore they do not have standing. Dkt. #29 at 6-7. Standing has three elements: (1) an

26 “injury in fact;” (2) a “causal connection between the injury and the conduct complained of”;
27
and (3) redressability, meaning that the injury is likely capable of being redressed by a
28

ORDER PAGE - 7

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 8 of 14

favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.
1
2 Ed. 2d 351 (1992). In a class action, standing is satisfied if “at least one named plaintiff meets

3 the requirements.” Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007). In this case, Defendants

4 argue that none of the representative Plaintiffs has experienced any injury in fact, and that any
5
future injury is purely speculative because they don’t know whether their asylum applications
6
will be denied. Dkt. #29 at 6-7.
7

8

The Court is not persuaded. Plaintiffs are not challenging any denial, past or future, of

9 asylum. See Dkt. #30 at 3. Rather, they challenge “their right to timely apply for asylum.” Id.
10
That is, they challenge the denial of an opportunity to apply within the one-year deadline,
11
which they allege is caused by Defendants’ failure to provide adequate notice of the deadline
12
13 and an alleged failure to implement a uniform method through which Plaintiffs can comply

14 with that deadline. Id. The Ninth Circuit has made clear that Plaintiffs and the proposed class

15 members have a statutory right to apply for asylum:

16
Section 201(b) of the Refugee Act, 8 U.S.C. § 1158, conferred upon all

17

aliens a statutory right to apply for asylum. Orantes-Hernandez v.

Thornburgh, 919 F.2d 549, 553 (9th Cir. 1990). That right may be violated

18

by a pattern or practice that forecloses the opportunity to apply. See Id. at

19

564 (upholding finding that coercion of aliens to accept voluntary departure

violated their right to apply for asylum). The same provision of the

20

Refugee Act required the Attorney General to establish means by which

aliens, regardless of status, may apply for political asylum. See 8 U.S.C. §

21

1158.

22
Campos v. Nail, 43 F.3d 1285, 1288 (9th Cir. 1994). Plaintiffs allege that the failures by
23

Defendants have caused them to lose this right, and they must now rely on an immigration
24

25 judge to find, in his or her discretion, that either changed circumstances or extraordinary

26 circumstances justified their delayed filings. Dkt. #30 at 2; 8 U.S.C. § 1158(a)(2)(D) and 8
27
C.F.R. § § 208.4(a)(2)(B), a(4)-(5). If Plaintiffs’ allegations are true, they have lost the
28

ORDER PAGE - 8

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 9 of 14

statutory right to apply for asylum and must now depend on the discretion of an adjudicator to
1
2 apply. Accordingly, the Court finds that Plaintiffs have demonstrated standing.

3

Defendants next argue that this Court has no jurisdiction to review asylum applications,

4 and that such applications must go to review in the Circuit Court of Appeals. Dkt. #29 at 7-8.
5
Again, that argument misconstrues Plaintiffs’ claims. Plaintiffs are not asking this Court to
6
make any finding with respect to how immigration judges analyze the extraordinary
7
8 circumstances exception. Rather, they allege that Defendants’ action or inactions have

9 deprived them of a statutory right to apply for asylum by foreclosing their opportunity to apply
10
as of right. See Dkt. #30 at 4. Accordingly, the Court finds that Plaintiffs have standing.
11
Because the only arguments that Defendants present in response to Plaintiffs’ assertion
12
13 of numerosity pertained to standing, and based on the evidence of numerosity presented by

14 Plaintiffs as discussed above, the Court concludes that the proposed classes and their subclasses

15 are sufficiently numerous to satisfy Rule 23(a)(1).
16
2. Commonality
17
The requirement of “commonality” is met through the existence of a “common
18
19 contention” that is of “such a nature that it is capable of classwide resolution.” Dukes, 564 U.S.

20 at 350. A contention is capable of classwide resolution if “the determination of its truth or

21 falsity will resolve an issue that is central to the validity of each one of the claims in one
22
stroke.” Id. Accordingly, “what matters to class certification . . . is not the raising of common
23
questions – even in droves – but, rather the capacity of a classwide proceeding to generate
24
25 common answers apt to drive the resolution of the litigation.” Id. This requirement is

26 “construed permissively.” Hanlon, 150 F.3d at 1019. Accordingly, “[a]ll questions of fact and
27

28

ORDER PAGE - 9

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 10 of 14

law need not be common to satisfy the rule.” Id.; see also Rodriguez v. Hayes, 591 F.3d 1105,
1
2 1122 (9th Cir. 2010).

3

In this case, the Plaintiffs and proposed class members allege a violation of their

4 statutory right to apply for asylum, including adequate notice of the statutory deadline and a
5
meaningful opportunity to comply with that deadline. Dkt. #7 at 17-18. Those claims are also
6
based on a common core of facts. Id. at 18. Defendants argue again that none of the Plaintiffs
7
8 have demonstrated an injury in fact, and therefore cannot demonstrate commonality. Dkt. #29

9 at 8. The Court has already rejected that argument. Defendants also argue that Plaintiffs
10
cannot demonstrate commonality because the resolution of the claims requires an
11
individualized inquiry, and the government actually provides notice of the one-year deadline in
12
13 several circumstances. Dkt. #29 at 8-10. This argument misses the mark. Plaintiffs assert that

14 Defendants do not have a policy and practice of advising the proposed members of the classes

15 of the filing deadline, and that they do not have an adequate mechanism for timely filing.
16
Defendants do not dispute either of those claims. Rather they assert that some asylum seekers
17
are provided with such notice and filing opportunities. Accordingly, the Court concludes that
18
19 the resolution of the legal issues raised by Plaintiffs will generate one result for each member of

20 the putative classes and subclasses. Thus, the Court agrees that these legal issues constitute a

21 “common contention” that is “capable of classwide resolution.” Dukes, 564 U.S. at 350.
22
3. Typicality
23
“[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with those of
24
25 absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020.

26 “Typicality refers to the nature of the claim or defense of the class representative, and not to the
27
specific facts from which it arose or the relief sought.” Hanon v. Dataproducts Corp., 976 F.2d
28

ORDER PAGE - 10

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 11 of 14
497, 508 (9th Cir. 1992). Nonetheless, the “commonality and typicality requirements of Rule
1
2 23(a) tend to merge.” Falcon, 457 U.S. at 157 n.13. “Both serve as guideposts for determining
3 whether under the particular circumstances maintenance of a class action is economical and 4 whether the named plaintiff’s claim and the class claims are so interrelated that the interests of
5
the class members will be fairly and adequately protected in their absence.” Id. In determining
6
typicality, courts consider “whether other members have the same or similar injury, whether the
7
8 action is based on conduct which is not unique to the named plaintiffs, and whether other class
9 members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508.
10
Plaintiffs convincingly argue that all Individual Plaintiffs suffered the same injury as the
11
putative class. Dkts. #7 at 20-22 and #30 at 7-10. Defendants primarily respond with the same
12
13 arguments regarding injury in fact as have already been rejected by this Court. Dkt. #29 at 10-
14 13. They are no more persuasive in the context of typicality. Accordingly, the Court concludes
15 that the individual Plaintiffs are typical of the classes and subclasses they seek to represent.
16
4. Adequacy
17
Defendants have not separately addressed the adequacy requirement. Instead, they
18
19 included their objections in their arguments as to typicality. Dkt. #29 at 10-13. For the same
20 reasons above, the Court concludes that the individual Plaintiffs and their proposed counsel 21 constitute adequate class representatives.
22
5. Common Grounds
23
Plaintiffs contend that their class action satisfies Rule 23(b)(2) because Defendants have
24
25 “acted or refused to act on grounds that apply generally to the class, so that final injunctive
26 relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.
27
R. Civ. P. 23(b)(2); Dkt. #7 at 23-24. “Class certification under Rule 23(b)(2) is appropriate
28
ORDER PAGE - 11

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 12 of 14

only where the primary relief sought is declaratory or injunctive.” Zinser v. Accufix Research
1
2 Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001). The Court treats “[p]redominance and

3 superiority a[s] self-evident,” Dukes, 564 U.S. at 363, and requires “[o]nly a showing of

4 cohesiveness of class claims,” Herskowitz v. Apple, Inc., 301 F.R.D. 460, 481 (N.D. Cal. 2014)
5
(citing Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625, 635 (W.D. Wash. 2011)).
6
In this case, the primary relief that Plaintiffs seek is declaratory and injunctive.
7
8 Plaintiffs seek a declaration that the DHS Defendants’ policy and practice of failing to give

9 notice of the one-year deadline is contrary to the statute and the Constitution and that the DHS
10
and DOJ Defendants’ failure to provide uniform meaningful and reliable mechanisms within
11
which to comply is contrary to the statute and the Constitution. Dkt. #1 at ¶ ¶ 127-131 and
12
13 Prayer for Relief, ¶ ¶ d.-e.

14

Defendants argue that Plaintiffs fail to meet the 23(b)(2) standard because Defendants

15 have not failed to act or refused to act on grounds applicable to the class. Dkt. #29 at 13-15.
16
For the reasons set forth by Plaintiffs, the Court does not agree that Defendants have presented
17
either a system whereby putative class members are guaranteed notice of the one-year filing
18
19 deadline or a mechanism whereby putative class members are assured of the opportunity to

20 timely file their asylum applications. See Dkt. #30 at 10-12.

21

Accordingly, the Court finds that Plaintiffs have also met the requirements of Rule

22
23(b)(2), and their proposed classes and subclasses should be certified.
23

IV. CONCLUSION
24

25

Having reviewed Plaintiffs’ motion for class certification, the opposition thereto and

26 reply in support thereof, along with the Declarations submitted by the parties and the remainder
27
of the record, the Court hereby finds and ORDERS:
28

ORDER PAGE - 12

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 13 of 14

1. Plaintiffs’ Motion for Class Certification (Dkt. #7) is GRANTED.
1

2

2. Plaintiffs have satisfied the class certification requirements as discussed above.

3

Therefore, the following classes and subclasses are CERTIFIED:

4

a. CLASS A (“Credible Fear Class”): All individuals who have been released or

5
will be released from DHS custody after they have been found to have a credible
6

fear of persecution within the meaning of 8 U.S.C. § 1225(b)(1)(B)(v) and did
7

8

not receive notice from DHS of the one-year deadline to file an asylum

9

application as set forth in 8 U.S.C. § 1158(a)(2)(B).

10
i) A.I.: All individuals in Class A who are not in removal proceedings and

11
who either (a) have not yet applied for asylum or (b) applied for asylum
12

13

after one year of their last arrival.

14

ii) A.II.: All individuals in Class A who are in removal proceedings and

15

who either (a) have not yet applied for asylum or (b) applied for asylum

16
after one year of their last arrival.
17
b. CLASS B (“Other Entrants Class”): All individuals who have been or will be
18

19

detained upon entry; express a fear of return to their country of origin; are

20

released or will be released from DHS custody without a credible fear

21

determination; are issued a Notice to Appear (NTA); and did not receive notice

22
from DHS of the one-year deadline to file an asylum application set forth in 8
23

U.S.C. § 1158(a)(2)(B).
24

25

i) B.I.: All individuals in Class B who are not in removal

26

proceedings and who either (a) have not yet applied for asylum or

27
(b) applied for asylum after one year of their last arrival.
28

ORDER PAGE - 13

Case 2:16-cv-01024-RSM Document 37 Filed 01/10/17 Page 14 of 14

ii) B.II.: All individuals in Class B who are in removal proceedings
1

2

and who either (a) have not yet applied for asylum or (b) applied

3

for asylum after one year of their last arrival.

4

3. Plaintiffs’ proposed representatives will fairly and adequately protect the class

5
interests as discussed above. Therefore, the following class representatives are
6

APPOINTED:
7

8

a. As Class A representatives: Plaintiffs Elmer Geovanni Rodriguez Escobar

9

and Concely del Carmen Mendez Rojas. Plaintiff Rodriguez will also

10
serve as representative of Subclass A.I., while Plaintiff Mendez will serve as

11
representative of Subclass A.II.
12

13

b. As Class B representatives: Plaintiffs Maribel Suarez Garcia and Lidia

14

Margarita Lopez Orellana. Plaintiff Lopez will also serve as

15

representative of Subclass B.I., while Plaintiff Suarez will serve as

16
representative of Subclass B.II.
17
4. The Court also adopts Plaintiffs’ definition of “applied” as defined in footnote 1 of
18

19

their motion for class certification (Dkt. #7 at 3, fn. 1).

20

5. Plaintiffs’ current counsel will also fairly and adequately protect the class interests

21

as discussed above.

22
DATED this 10 day of January, 2017.
23

24

25

A

26

RICARDO S. MARTINEZ

27

CHIEF UNITED STATES DISTRICT JUDGE

28

ORDER PAGE - 14

 
 Case 2:16-cv-01024-RSM Document 41 Filed 03/28/17 Page 1 of 4

1

2

3

4

5

6

UNITED STATES DISTRICT COURT
7
WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 CONCELY del CARMEN MENDEZ

)

ROJAS, et al.,
10

) CASE NO. C16-1024RSM )

11

Plaintiffs,

)

) ORDER DENYING DEFENDANTS’

12

v.

) MOTION TO DISMISS

)

13 JEH JOHNSON, Secretary of the

)

14 Department of Homeland Security, in his )

official capacity, et al.,

)

15

)

Defendants.

)

16

17

I. INTRODUCTION

18
This matter comes before the Court on Defendants’ Motion to Dismiss the Complaint
19
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
20

21 Dkt. #38. Defendants argue that Plaintiffs lack standing to bring their claims because any

22 potential harm is too remote and speculative to qualify as an injury in fact. Dkt. #38 at 4-9.

23 Defendants further argue that this Court lacks subject-matter jurisdiction to review Plaintiffs’
24
claims because they can raise their claims in their immigration proceedings. Id. at 9-12.
25
Plaintiffs essentially respond that the Court has already decided these arguments against
26
27 Defendants. Dkt. #40. For the reasons set forth below, the Court agrees with Plaintiffs and

28 DENIES Defendants’ motion.

ORDER PAGE - 1

Case 2:16-cv-01024-RSM Document 41 Filed 03/28/17 Page 2 of 4

II. BACKGROUND
1

2

The Court has previously set forth the background of this action and incorporates it by

3 reference herein. Dkt. #37 at 1-5.

4

III. DISCUSSION

5
A. Legal Standard
6

This Court must dismiss a Complaint under Rule 12(b)(1) if, considering the factual
7

8 allegations in a light most favorable to the plaintiff, the action: (1) does not arise under the

9 Constitution, laws, or treaties of the United States, or does not fall within one of the other
10
enumerated categories of Article III Section 2 of the Constitution; (2) is not a case or
11
controversy within the meaning of the Constitution; or (3) is not one described by any
12
13 jurisdictional statute. See Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 7 L. Ed. 2d 663

14 (1962); see also D.G. Rung Indus., Inc. v. Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash.

15 1986); 28 U.S.C. §§ 1331 and 1346. When considering a motion to dismiss under Rule
16
12(b)(1), the Court is not restricted to the face of the pleadings, but may review any evidence to
17
resolve factual disputes concerning the existence of jurisdiction. See McCarthy v. United
18
19 States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052, 109 S. Ct. 1312, 103 L.

20 Ed. 2d 581 (1989); see also Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.

21 1983). A federal court is presumed to lack subject matter jurisdiction until the plaintiff
22
establishes otherwise. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114
23
S. Ct. 1673, 128 L. Ed. 2d 391 (1994); see also Stock West, Inc. v. Confederated Tribes, 873
24
25 F.2d 1221, 1225 (9th Cir. 1989). Therefore, Plaintiffs bear the burden of establishing subject

26 matter jurisdiction. See Stock West, 873 F.2d at 1225.
27

28

ORDER PAGE - 2

Case 2:16-cv-01024-RSM Document 41 Filed 03/28/17 Page 3 of 4

B. Standing
1

2

This Court has previously reviewed Defendants’ arguments as to standing in its

3 previous Order on class certification. Defendants acknowledge that fact, but assert that their

4 motion to dismiss is based on “further develop[ed] arguments”. Dkt. #38 at 4 fn. 3. The Court
5
remains unpersuaded. As it previously explained, Plaintiffs are not challenging any denial, past
6
or future, of asylum. Dkt. #37 at 8. Rather, they challenge the denial of an opportunity to
7
8 apply within the one-year deadline, which they allege is caused by Defendants’ failure to

9 provide adequate notice of the deadline and an alleged failure to implement a uniform method

10
through which Plaintiffs can comply with that deadline. Id. The Ninth Circuit has made clear

11
that Plaintiffs and the proposed class members have a statutory right to apply for asylum:
12

13

Section 201(b) of the Refugee Act, 8 U.S.C. § 1158, conferred upon all

aliens a statutory right to apply for asylum. Orantes-Hernandez v.

14

Thornburgh, 919 F.2d 549, 553 (9th Cir. 1990). That right may be violated

by a pattern or practice that forecloses the opportunity to apply. See Id. at

15

564 (upholding finding that coercion of aliens to accept voluntary departure

16

violated their right to apply for asylum). The same provision of the

Refugee Act required the Attorney General to establish means by which

17

aliens, regardless of status, may apply for political asylum. See 8 U.S.C. §

1158.
18

19 Campos v. Nail, 43 F.3d 1285, 1288 (9th Cir. 1994). Plaintiffs allege that the failures by

20 Defendants have caused them to lose this right, and they must now rely on an immigration

21 judge to find, in his or her discretion, that either changed circumstances or extraordinary
22
circumstances justified their delayed filings. Dkt. #30 at 2; 8 U.S.C. § 1158(a)(2)(D) and 8
23
C.F.R. § § 208.4(a)(2)(B), a(4)-(5). If Plaintiffs’ allegations are true, they have lost the
24
25 statutory right to apply for asylum and must now depend on the discretion of an adjudicator to

26 apply. None of Defendants’ arguments or legal authority persuade this Court to reach a
27

28

ORDER PAGE - 3

Case 2:16-cv-01024-RSM Document 41 Filed 03/28/17 Page 4 of 4

different conclusion that it previously reached. Accordingly, the Court finds that Plaintiffs
1
2 have demonstrated standing.

3

C. Jurisdiction

4

Defendants next argue that this Court has no jurisdiction to review the claims made by

5
Plaintiffs in this case, and that such claims must go to review through the immigration
6

proceedings and ultimately in the Circuit Court of Appeals. Dkt. #38 at 9-12. As with their
7

8 standing arguments, the Court continues to remain unpersuaded. Again, the Court finds that

9 Defendants’ arguments misconstrue Plaintiffs’ claims. Plaintiffs are not asking this Court to
10
make any finding with respect to how immigration judges analyze the extraordinary
11
circumstances exception or on the asylum applications themselves. Rather, they allege that
12
13 Defendants’ action or inactions have deprived them of a statutory right to apply for asylum by

14 foreclosing their opportunity to apply within the one year statutory time period. Dkt. #37 at 9.

15 Nothing that Defendants present in the current motion persuades the Court that it should reach

16
a different conclusion. Accordingly, the Court finds that it has subject matter jurisdiction to
17
hear Plaintiffs’ claims.
18

19

IV. CONCLUSION

20

Having reviewed Defendants’ Motion to Dismiss, the Opposition thereto and Reply in

21 support thereof, along with the remainder of the record, the Court hereby finds and ORDERS
22
that Defendants’ Motion to Dismiss (Dkt. #38) is DENIED.
23
DATED this 28 day of March, 2017.
24

25

26

A

27

RICARDO S. MARTINEZ

28

CHIEF UNITED STATES DISTRICT JUDGE

ORDER PAGE - 4

 
 Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 1 of 27

Honorable Ricardo S. Martinez
1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10
Concely del Carmen MENDEZ ROJAS, et al.,
11

12

Plaintiffs,

13

v.

14 Elaine C. DUKE, Acting Secretary of the Department of Homeland Security, in her official
15 capacity; 1 et al.,
16
Defendants.
17

Case No. 2:16-cv-01024-RSM
MOTION FOR SUMMARY JUDGMENT
NOTE ON MOTION CALENDAR: November 24, 2017

18

ORAL ARGUMENT REQUESTED

19

20

21

22

23

24

25

26

27

28 1 Elaine C. Duke has been substituted for Defendant Jeh Johnson pursuant to Fed. R. Civ. P. 25(d).

PLS.’ MOT. FOR SUMM. J. Case No. 2:16-cv-01024-RSM

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400

Seattle, WA 98104 Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 2 of 27

I. INTRODUCTION
1
Plaintiffs and class members (hereinafter “class members”) are asylum seekers who fled
2
persecution in their countries of origin and expressed a fear of persecution or a desire to apply
3
4 for asylum to federal immigration officers employed by the Department of Homeland Security 5 (DHS) upon their arrival in the United States. DHS Defendants specifically permitted class 6 members to enter the country to pursue their asylum claims, but did not notify them that they
7 must file their asylum applications (Form I-589) within one-year of their arrival. See 8 U.S.C. §

8 1158(a)(2)(B). As a result, class members either are unaware of the deadline or already have

9 missed it, and therefore are at risk of losing their opportunity to obtain refuge from the

10 persecution they fled.

11

Furthermore, all class members, even those fortunate enough to retain counsel and

12 discover the filing deadline, risk missing the deadline or have already missed it because neither

13 DHS nor Executive Office for Immigration Review (EOIR) Defendants provide procedural

14 mechanisms that ensure class members the ability to timely file. Defendants’ systems

15
effectively prevent class members from filing asylum applications until after DHS files the case

16
with EOIR and EOIR enters it into its system. Yet Defendants often do not take the necessary
17
actions to ensure that cases are filed and entered into the EOIR system before the expiration of
18
the one-year deadline. DHS Defendants’ failure to provide notice of the one-year deadline and
19
the failure of all Defendants to create and implement procedural mechanisms that guarantee
20
class members the opportunity to timely submit their asylum applications violate the
21
Immigration and Nationality Act (INA), Administrative Procedure Act (APA), governing
22

23 regulations, and due process.
24

II. BACKGROUND

This class action challenges Defendants’ policies and practices as violative of class
25

26 members’ statutory and regulatory rights to apply for asylum and their right to due process

27 under the Fifth Amendment to the Constitution. This Court previously certified the following

28 two classes and subclasses:

PLS.’ MOT. FOR SUMM. J. Case No. 2:16-cv-01024-RSM - 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 3 of 27

CLASS A (“Credible Fear Class”): All individuals who have been released or will be

1

released from DHS custody after they have been found to have a credible fear of

2

persecution within the meaning of 8 U.S.C. § 1225(b)(1)(B)(v) and did not receive

notice from DHS of the one-year deadline to file an asylum application as set forth in 8

3

U.S.C. § 1158(a)(2)(B).

A.I.: All individuals in Class A who are not in removal proceedings and who either (a)

4

have not yet applied for asylum or (b) applied for asylum after one year of their last

5

arrival.

A.II.: All individuals in Class A who are in removal proceedings and who either (a)

6

have not yet applied for asylum or (b) applied for asylum after one year of their last

arrival.
7
CLASS B (“Other Entrants Class”): All individuals who have been or will be

8

detained upon entry; express a fear of return to their country of origin; are released or

will be released from DHS custody without a credible fear determination; are issued a

9

Notice to Appear (NTA); and did not receive notice from DHS of the one-year deadline

10

to file an asylum application set forth in 8 U.S.C. § 1158(a)(2)(B).

B.I.: All individuals in Class B who are not in removal proceedings and who either (a)

11

have not yet applied for asylum or (b) applied for asylum after one year of their last

arrival.

12

B.II.: All individuals in Class B who are in removal proceedings and who either (a)

13

have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.2

14
Dkt. 37 at 13-14. This Court also denied Defendants’ motion to dismiss, clarifying that “[i]f

15
Plaintiffs’ allegations are true, they have lost the statutory right to apply for asylum and must

16
now depend on the discretion of an adjudicator to apply.” Dkt. 41 at 3. Class members now
17
move for summary judgment because the record demonstrates that their allegations are true.
18
Class members seek a meaningful opportunity to apply for asylum: this requires DHS
19

20

21 2

The difference between the two classes centers on the two different ways in which DHS Defendants

process asylum seekers upon entry. Class A consists of individuals whom DHS initially placed in “expedited

22 removal” proceedings, 8 U.S.C. § 1225(b)(1), and who, as part of that process, passed initial screenings for their

asylum claims (“credible fear” screenings). Because they demonstrated credible fear of returning to their countries

23 of origin, they were taken out of expedited removal proceedings to pursue their asylum claims in removal

proceedings before an immigration judge under 8 U.S.C. § 1229a. 8 U.S.C. § 208.30(f). DHS subsequently

24 released them from detention. Class B consists of individuals who, upon arrival into the United States, expressed

to DHS a fear of returning to their countries of origin and whom DHS released into the country; DHS did not give

25 them credible fear screenings but instead issued them NTAs for removal proceedings before an immigration judge.

Moreover, each class is divided into two subclasses based on whether the individual is in removal

26 proceedings. Those in subclasses A.I. and B.I. face barriers to timely filing their asylum applications because DHS

Defendants have not implemented a uniform procedural mechanism to ensure that their asylum applications will

27 be accepted and treated as timely filed. Those in subclasses A.II. and B.II. face barriers to timely filing their

asylum applications because EOIR Defendants have not implemented a uniform procedural mechanism to ensure

28 that their asylum applications will be treated as timely filed with the immigration court presiding over their

removal proceedings.

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 2

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 4 of 27

1 Defendants to provide them with notice of the one-year deadline and DHS and EOIR

2 Defendants to implement uniform procedural mechanisms to ensure compliance with the

3 deadline.

4

III. ARGUMENT

5

Summary judgment is warranted where “there is no genuine dispute as to any material

6 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. DHS’S FAILURE TO PROVIDE ADEQUATE NOTICE OF THE ONE-YEAR

7

DEADLINE VIOLATES CLASS MEMBERS’ STATUTORY AND

8

CONSTITUTIONAL RIGHTS.

1. DHS’s Failure to Provide Adequate Notice of the One-Year Deadline Violates

9

the INA and the APA.

10

The INA and implementing regulations entitle class members to an opportunity to apply

11 for asylum. See 8 U.S.C. § 1158(a)(1) (providing that “[a]ny [individual] who is physically

12 present in the United States or who arrives in the United States . . . may apply for asylum in

13 accordance with [8 U.S.C. §§ 1158 or 1225(b)]”); 8 U.S.C. § 1225(b)(1)(A)(ii) (obligating
14 immigration officers to refer for a credible fear interview noncitizens subject to expedited
15 removal who express an intention to apply for asylum or a fear of persecution); 8 C.F.R. §§
16 235.3(b)(4) (requiring that “the inspecting officer shall not proceed further with removal of the
17 [noncitizen] until the [noncitizen] has been referred for an interview by an asylum officer,” if a
18
noncitizen subject to expedited removal expresses an intention to apply for asylum or a fear of
19
persecution); 208.309(f) (obligating an asylum officer to process an individual for “full
20
consideration” of her asylum claim, if the individual demonstrates a credible fear of
21
persecution); and 1003.42(f) (requiring that an individual who demonstrates a credible fear of
22
persecution “shall have the opportunity to apply for asylum”); see also Campos v. Nail, 43 F.3d
23
1285, 1288 (9th Cir. 1994) (recognizing that the statute “confer[s] upon all [noncitizens] a
24
statutory right to apply for asylum”).3 The failure to file an asylum application within one year
25

26

3

Moreover, the United States is obligated under various international treaties and protocols to abide by

27 non-refoulement, a duty that prohibits a country from returning or expelling an individual to a country where she

has a well-founded fear of persecution and/or torture. See, e.g., 1967 Protocol Relating to the Status of Refugees

28 (adopting Articles 2-34 of the 1951 Convention on the Rights of Refugees); Convention Against Torture (CAT),

Art. 3.

PLS.’ MOT. FOR SUMM. J. Case No. 2:16-cv-01024-RSM - 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 5 of 27

1 of arrival is a basis to deny an individual’s application unless the applicant overcomes

2 additional obstacles. 8 U.S.C. § 1158(a)(2)(B).4 Notice of this one-year deadline is critical, and

3 DHS’s failure to provide such notice amounts to a denial of class members’ statutory and

4 regulatory right to seek asylum.

5

a. DHS Does Not Provide Notice of the One-Year Deadline.

i. DHS’s position is that the agency has no legal obligation to

6

provide affirmative notice of the one-year deadline.

7

Notwithstanding the statutory right to seek asylum, DHS Defendants take the position

8 that DHS is not legally required to provide notice of the one-year deadline to class members.
9 See Dkt. 42 ¶31 (“Defendants admit that upon apprehension, during the credible fear process,
10
and upon release Defendants are not required to provide notice of the one-year deadline.”); id.
11
¶38 (“[A]t no point in the parole or release process are DHS officers required to provide notice
12
of the one-year deadline”); see also Ex. A, Mura Dep., at 143:23-146:3 (admitting that there is
13
no national policy requiring USCIS officers to provide oral or written notice of the one-year
14
deadline during the credible fear process or when an asylum application is rejected); Ex. B,
15
DHS Resp. to First Interrog., Interrog. 8-11 (failing to identify any documents that DHS
16
employees are required to provide which contain notice of the one-year deadline).5 Moreover,
17
18 there is no mention whatsoever of the one-year deadline in the documentation DHS officers
19 must affirmatively provide to class members. See Ex. C, DHS Resp. to First Req. for Produc.,

20 RFP 6-9 (referencing documentation provided to class members after apprehension, after

21 expressing fear of persecution, and during the credible fear interview process); Ex. B, DHS

22 Resp. to First Interrog., Interrog. 8-11 (same). Nor is there any mention of the one-year

23 deadline in any other documentation that Defendants state they affirmatively provide to many

24 class members. See, e.g., Ex. B, DHS Resp. to First Interrog., Interrog. 8 (discussing, inter alia,

25

26

4

An adjudicator may review an untimely asylum application only if the applicant demonstrates either (1)

27 “changed circumstances … materially affect[ing] the[ir] … eligibility for asylum”; or (2) “extraordinary

circumstances relating to the[ir] delay in filing an application” by the deadline. 8 U.S.C. § 1158(a)(2)(D).

28 5

All references to exhibits in this motion refer to the exhibits accompanying the Declaration of Glenda M.

Aldana Madrid in support of Plaintiffs’ Motion for Summary Judgment, filed concurrently herewith.

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 4

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 6 of 27

1 the National Detainee Handbook).

ii. DHS’s reliance on any mention of the deadline in existing
2
materials or through legal orientation programs is misguided

3

and insufficient to guarantee notice to all class members.

4

Unable to demonstrate that DHS affirmatively provides notice of the one-year deadline

5 to all class members, DHS Defendants argue that the notice in the instructions to Form I-589 or

6 instructions provided through some legal orientation programs might reach some class

7 members. Significantly, however, DHS does not provide the I-589 or its accompanying

8 instructions to class members prior to releasing them, believing it is not obligated to do so.
9 Similarly, many, if not most, class members do not even attend a legal orientation program
10 (LOP). And even if they do attend an LOP, providers are not obligated to discuss the one-year
11 deadline and, indeed, Defendants acknowledge that some do not. Consequently, most class
12
members never receive notice. That notice may fortuitously reach some class members is
13
insufficient to safeguard the statutory right to asylum for all class members.
14
With respect to the instructions to Form I-589, DHS Defendants admit that they do not
15
affirmatively or uniformly provide either the form or these instructions to class members. See
16
Ex. C, DHS Resp. to First Req. for Produc., RFP 6-9 (listing documents DHS is required to
17
provide to class members, which does not include Form I-589 or its accompanying
18
instructions); Ex. D, DHS Supp. Resp. to First Req. for Admis., RFA 12-15 (admitting only
19
that DHS complies with the immigration statute and applicable regulations, which do not
20
21 require affirmatively providing a copy of the instructions or Form I-589 to all class members).
22 Curiously, Defendants ignore 8 C.F.R. § 208.5(a), which provides that when class members are
23 detained, DHS “shall make available the appropriate application forms” to pursue asylum or
24 withholding of removal.6

25

26 6

The regulation creates an exception for detained persons with pending credible fear determinations,

stating only that “[a]lthough DHS does not have a duty in the case of an [noncitizen] who is in custody pending a

27 credible fear or reasonable fear determination . . . DHS may provide the appropriate forms upon request.” 8 C.F.R.

§ 208.5(a). However, by definition, Class A members successfully completed the credible fear process and Class B

28 members were not placed in credible fear proceedings. Thus, under the regulation, DHS should provide class

members with appropriate application forms because they all were in DHS custody when they stated their fear of

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 5

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 7 of 27

1

The instructions to Form I-589 are on USCIS’ website,7 but that provides no aid to class

2 members who lack knowledge of the deadline and, based on Defendants’ actions, have no

3 reason to believe that they need to seek out additional information regarding their ability to

4 apply for asylum before seeing an immigration judge (IJ). Similarly, online materials do not aid

5 class members who face a language barrier or lack access to technology. Cf. Jacinto v. INS, 208
6 F.3d 725, 733 (9th Cir. 2000) (noting that applicants for asylum are often unrepresented,
7
uninformed about relevant legal issues, and lacking English-language proficiency). Nor will it
8
aid class members who mistakenly believe they already have applied for asylum when USCIS
9
determined their fear of return was credible. See, e.g., Dkt. 15, Freshwater Decl., ¶8 (“[S]everal
10
of my clients have told me that they believed they had applied for asylum by passing the
11
credible fear interview because during that process they told an asylum officer in detail about
12
their asylum claim. . . . They are surprised when I tell them that they need to complete another
13
application for asylum in writing.”); Dkt. 16, Greenstein Decl., ¶7 (“[S]ome of these
14
15 individuals think that because they have a received a positive credible fear determination, they
16 have been granted asylum.”); Dkt. 19, Cheng Decl., ¶9 (“Many of the individuals released from

17 DHS custody are under the assumption that they have already applied for asylum”).

18

Furthermore, an agency cannot comply with its duty to provide notice at a particular

19 time by assuming that another entity may provide notice at some later time. Cf. Picca v

20 Mukasey, 512 F.3d 75, 79 (2d Cir. 2008) (finding DHS’s provision of notice of free legal

21 services insufficient to fulfill immigration judge’s duty to inform respondents of such services).

22 Thus, DHS may not rely on EOIR’s legal access programs to discharge its legal obligation.

23

Moreover, EOIR’s legal access programs are inadequate as a substitute for notice.

24 Many, if not most, class members will never attend one of the EOIR programs mentioned in 25 Defendants’ discovery responses, which include LOPs, Immigration Court Helpdesk programs
26

27 return and/or desire to apply for asylum. But DHS does not do so. See Ex. C., DHS Resp. to First Req. for Produc.,

RFP 9 (identifying documents DHS is required to provide to class members who completed the credible fear

28 process, which does not include Form I-589 or its accompanying instructions).

7

See, e.g., Ex. B, DHS Resp. to First Interrog., Interrog. 12-13.

PLS.’ MOT. FOR SUMM. J. Case No. 2:16-cv-01024-RSM - 6

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 8 of 27

1 (ICHs), and Self-Help Legal Centers (SHLC). See Ex. F, EOIR Resp. to First Interrog.,

2 Interrog. 4. LOPs offer services only at 36 detention centers in the nation. Compare Ex. G,

3 LOP Sites, at USA00173 with Ex. H, Authorized Facility List, at USA03338- USA03344

4 (revealing that out of 203 Immigration and Customs Enforcement (ICE) detention facilities,

5 167 do not offer LOPs). Since LOPs are intended for individuals in standard removal

6 proceedings, they currently are not targeted to reach class members in expedited removal

7
proceedings, and are only offered in over-72-hour detention facilities. See Ex. I, Lang Dep., at
8
57:6-58:18; 80:2-80:18. Where LOPs are offered, they are not provided every day, and
9
Defendants admit that DHS could either transfer or release an individual interested in attending
10
prior to the actual LOP session. See Ex. J, LOP and ICH Sched., at USA00175-USA00195; Ex.
11
I, Lang Dep., at 95:22-96:3; 96:22-97:14. Tellingly, in 2015, over half of the individuals who
12
appeared in LOP courts—that is the courts with detained dockets that serve LOP facilities—
13
had not attended an LOP session. See Ex. K, 2015 Annual LOP Report, at USA-6-000317.8
14

15

Third, even if a class member were to attend an EOIR legal access program, there is

16 absolutely no requirement—let alone any guarantee—that he or she would receive information

17 about the filing deadline. EOIR approves a model curriculum for the LOP and ICH programs,

18 which contains information about the one-year deadline, but Defendants readily admit that

19 providers need not follow the model curriculum. See Ex. I, Lang Dep., at 74:12-75:10; id. at

20 64:21-65:12 (admitting also that the model curriculum does not include information about how

21 an application can be filed to meet the one-year deadline).

22

In sum, DHS does not provide adequate notice of the one-year deadline.

23

24

25 8

Similarly, ICHs, to the extent that they might provide information on the filing deadline, do not reach all

class members. They currently are available in only five of the more than 58 immigration courts nationwide. See

26 Ex. G at USA00174; U.S. Dep’t of Justice, EOIR, “EOIR Immigration Court Listing,” available at

https://www.justice.gov/eoir/eoir-immigration-court-listing (last updated Sept. 2017) (listing immigration court

27 locations) (last accessed Oct. 27, 2017). SHLCs are also only offered in 22 immigration courts nationwide. See Ex.

G at 174; Ex. L, Weintraub email, at 2 (providing updates to SHLC sites). Moreover, SHLC materials are not

28 automatically provided to all potentially interested class members at those courts. See Ex. I, Lang Dep., at 143:4-

14.

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 7

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

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b. DHS’s Failure to Provide Notice Violates the INA and the APA.
1
Class members have a statutory right to apply for asylum. See supra § III.A.1. Because
2
their ability to exercise that right is contingent upon filing in a timely manner, when DHS fails
3
4 to provide notice of the one-year deadline or delays providing notice, it violates congressional 5 intent. When it established the one-year deadline, Congress affirmed that it remained 6 “committed to ensuring that those with legitimate claims of asylum are not returned to
7 persecution . . .” 142 CONG. REC. S11, 840 (daily ed. Sept. 30, 1996) (statement of Sen.

8 Hatch). Congress also emphasized that it did not want legitimate asylum seekers “returned to

9 persecution” due to mere “technical deficiencies” in their asylum applications, like the

10 expiration of the one-year deadline. Id. (statement of Sen. Hatch).

11

By failing to provide notice of the deadline when it apprehends and later releases class

12 members, DHS causes class members to either (1) not receive notice of the deadline within one

13 year of arrival, forcing them to face additional obstacles (see supra n.4); or (2) belatedly learn

14 about the deadline through a third party, effectively depriving them of the full statutory period
15
to which they are entitled to prepare and file their asylum application. In so doing, DHS limits
16
the opportunity for class members to timely pursue their asylum claims, even though Congress
17
did not intend for the one-year deadline to foreclose legitimate claims. See Reyes-Torres v.
18
Holder, 645 F.3d 1073, 1076-77 (9th Cir. 2011) (holding that the government cannot
19
unilaterally reduce the statutory time period for filing a motion to reopen where doing so would
20
“completely eviscerate” congressional intent); Almero v. INS, 18 F.3d 757, 763 (9th Cir. 1994)
21
(“[T]he INS may not restrict eligibility to a smaller group of beneficiaries than provided for by
22
23 Congress”). Defendants’ failure to provide notice of the one-year deadline thus violates the

24 asylum statute and the implementing regulations. See also 8 C.F.R. § 208.5(a). Moreover,

25 because the INA has been violated, the APA provides this Court with authority to remedy this

26 violation. 5 U.S.C. §§ 702, 706.

2. DHS’s Failure to Provide Adequate Notice Violates the Due Process Clause of

27

the Fifth Amendment.

28

Notice is a “[a]n elementary and fundamental requirement of due process in any

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1 proceeding which is to be accorded finality.” Mullane v. Cent. Hanover Bank & Trust Co., 339

2 U.S. 306, 314 (1950); see also Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14

3 (1978) (“The purpose of notice under the Due Process Clause is to apprise the affected

4 individual of, and permit adequate preparation for, an impending ‘hearing.’”). Such notice must

5 be “reasonably calculated, under all the circumstances, to apprise interested parties of the

6 pendency of the action and afford them an opportunity to present their objections.” Mullane,

7
339 U.S. at 314. DHS must provide written notice of the one-year deadline at the time of or

8
before class members’ release from custody to comply with its due process obligations.

9

a. DHS Does Not Provide Notice That Is Reasonably Calculated to

Timely Convey Information About the One-Year Deadline.
10

When determining “whether the government has provided sufficient notice,” courts
11

12 should apply the “reasonably calculated” test set out by the Supreme Court in Mullane. Nozzi v.

13 Hous. Auth., 806 F.3d 1178, 1193 n.17 (9th Cir. 2015). Thus, to comply with due process: [t]he notice must be of such nature as reasonably to convey the required information,

14

and it must afford a reasonable time for those interested to make their appearance. . . .

[W]hen notice is a person’s due, process which is a mere gesture is not due process. The

15

means employed must be such as one desirous of actually informing the absentee might

16

reasonably adopt to accomplish it.

17 Mullane, 339 U.S. at 314-15 (citations omitted); see also Nozzi, 806 F.3d at 1994 (“The means

18 [of providing notice] employed must be reasonably certain to actually inform the party, and in

19 choosing the means, one must take account of the capacities and circumstances of the parties to

20 whom the notice is addressed.”) (citations and quotations omitted). For example, where the

21 government provides notice on forms that are “confusing” and “affirmatively misleading,”

22 those forms are not reasonably calculated to inform affected parties of their rights. Walters v.

23 Reno, 145 F.3d 1032, 1042, 1043 (9th Cir. 1998) (holding that “a confluence of factors”

24 rendered notice constitutionally inadequate).

25

Here, DHS’s failure to affirmatively require officials to provide any notice of the one-

26
year deadline is a policy that, by definition, is not “reasonably calculated” to put class members

27
on notice. See supra § III.A.1.a.i.

28

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1

Moreover, as in Walters, a “confluence of factors” here demonstrates that whatever

2 notice EOIR Defendants happen to provide is not reasonably calculated to impart the necessary

3 information to class members at a reasonable time and thus is constitutionally insufficient.
4 Specifically, Defendants’ discovery responses indicate that any notice they allegedly provide to
5 class members is: (1) not provided to all or even most class members (see, e.g., failure to
6 provide Form I-589 with instructions and discussion of LOPs, supra § III.A.1.a.ii), and/or (2)
7
not provided to class members early enough to allow them to benefit from the full statutory
8
period which Congress authorized (see, e.g., Ex. M, EOIR Resp. to First Req. for Produc., RFP
9
1 (discussing notice provided by IJs); infra n.11 (discussing delays in scheduling hearings
10
before IJs)). The documents which Defendants are required to provide affirmatively in writing,
11
either prior to or at the time they release class members from custody, do not contain notice of
12
the filing deadline. See Ex. B, DHS Resp. to First Interrog., Interrog. 8-11; supra § III.A.1.a.i.
13
Furthermore, some of the documentation DHS provides to class members is affirmatively
14
15 misleading in that it states that IJs will provide them with any necessary information about
16 and/or the opportunity to seek relief from removal. See, e.g., Ex. N, Form I-862, “Notice to
17 Appear,” at USA03060 (“You will be advised by the immigration judge before whom you
18 appear of any relief from removal for which you may appear eligible . . . . You will be given a

19 reasonable opportunity to make any such application to the immigration judge.”).

20

Notice that is publicly available but not affirmatively provided may sometimes meet the

21 requirements of due process. See City of W. Covina v. Perkins, 525 U.S. 234, 242 (1999)

22 (finding public sources, like state statutes and case law, provided sufficient notice of remedies
23 for return of seized property). Significantly, however, such notice is not always sufficient. See 24 Grayden v. Rhodes, 345 F.3d 1225, 1244 (11th Cir. 2003) (“[]West Covina does not stand for 25 the . . . proposition that statutory notice is always sufficient to satisfy due process.”). It is not
26
sufficient here. Class members in this case are especially vulnerable: many have suffered
27
severe trauma, do not speak English, are unfamiliar with the very complicated immigration
28

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1 legal system, do not have access to counsel, and will be returned to face persecution if they are

2 unable to navigate the asylum application process. See Jacinto, 208 F.3d at 733 (noting that

3 applicants for asylum are often unrepresented, uninformed about relevant legal issues, and

4 lacking English-language proficiency); see also, e.g., Baltazar-Alcazar v. INS, 386 F.3d 940,

5 948 (9th Cir. 2004) (emphasizing the complexity of the immigration system and noting lawyers

6 may be the only ones capable of navigating it); Castro-O’Ryan v. INS, 847 F.2d 1307, 1312

7
(9th Cir. 1987) (describing immigration laws as “second only to the Internal Revenue Code in
8
complexity”) (citation omitted). Furthermore, DHS released class members from its custody for
9
the express purpose of allowing them to pursue their claims for asylum; its failure to provide
10
them notice of the one-year deadline—a basic, threshold requirement to consideration of their
11
applications—understandably deceived many of them, who would not expect to have to do
12
more than what DHS officers advised when they were allowed to enter the country to seek
13
refuge.
14

15

This problem is compounded by notices that DHS does provide class members, which

16 indicate that they will be able to seek relief from removal by appearing before an IJ, but which

17 make no mention of the one-year deadline. See Ex. N, Form I-862, “Notice to Appear,” at

18 USA03060 (stating that individuals “will be given” an opportunity to apply for relief before an

19 IJ); Ex. O, Form I-870, “Record of Determination/Credible Fear Worksheet,” at USA03069

20 (stating that if DHS finds credible fear, “your case will be referred to an immigration court,

21 where you will be allowed to seek asylum” and related relief from removal). This information

22 is particularly misleading for class members whose filing deadline will pass before they appear
23 before an IJ. See infra § III.B.1 (discussing class members who do not appear before an IJ 24 before the one-year deadline has run). These class members, having received instructions to 25 pursue their cases in immigration court, reasonably wait for a hearing and indeed, many believe
26
that they already have applied for asylum when they were interviewed by asylum officers for
27
the credible fear determination. See supra § III.A.1.a.ii. To meet the deadline, class members
28

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1 would need to anticipate that the directions they receive are insufficient—i.e., do not inform

2 them that they may be required to apply for relief before they have an opportunity to see an

3 IJ—and then choose to seek out the information regarding obstacles they must overcome to

4 secure their right to apply for asylum.

5

This is not a situation, then, in which class members could be expected to be on notice

6 that they should search publicly available information for possible remedies they should

7
pursue. Such a “confusing” and “misleading” system is not reasonably calculated to provide the

8
necessary information. Walters, 145 F.3d at 1043; see also Fogel v. Zell, 221 F.3d 955, 962-63

9
(7th Cir. 2000) (“Fair or adequate notice has two basic elements: content and delivery. If the

10
notice is unclear, the fact that it was received will not make it adequate.”) (citation omitted).
11

Thus, DHS does not provide sufficient notice of the one-year deadline to satisfy the
12

requirements of the Due Process Clause.
13
b. DHS’s Failure to Provide Adequate Notice Violates Procedural Due

14

Process.

15

DHS’s failure to provide notice also violates procedural due process under the

16 balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). When considering claims

17 that an administrative procedure impedes individuals’ due process rights, courts consider:

[f]irst, the private interest that will be affected by the official action; second, the

18

risk of an erroneous deprivation of such interest through the procedures used, and

19

the probable value, if any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function involved and the fiscal

20

and administrative burdens that the additional or substitute procedural requirement

21

would entail.

Id. at 335. To comply with their procedural due process obligations, DHS must provide
22

23 affirmative notice of the filing deadline in writing at or before class members’ release from

24 custody.
25

i. Class members have a protected interest in the right to apply for asylum.

26

DHS’s failure to provide adequate notice impedes class members’ right to apply for

27 asylum, and the strength of class members’ interests in this right should weigh heavily in favor

28 of requiring additional procedural protections. Decades of case law confirm that deportation

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1 from the United States can result in serious and irreparable injuries, see, e.g., Delgadillo v.

2 Carmichael, 332 U.S. 388, 391 (1947) (“Deportation can be the equivalent of banishment or

3 exile.”), especially for class members here, all of whom fear persecution in their countries of

4 origin, see, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (“Deportation is always a

5 harsh measure; it is all the more replete with danger when the [noncitizen] makes a claim that
6 he or she will be subject to death or persecution if forced to return to his or her home
7
country.”).
8
These interests are cognizable under the Due Process Clause of the Fifth Amendment.
9
Class members have an unquestioned right to apply for asylum under the INA. See supra §
10
III.A.1; Campos, 43 F.3d at 1288. Their protected interest in this statutory right triggers
11
procedural due process protections. See Kerry v. Din, 135 S. Ct. 2128, 2136 (2014) (Scalia, J.)
12
(finding the proposition “that procedural due process rights attach to liberty interests . . .
13
created by nonconstitutional law, such as a statute,” “unobjectionable” under Supreme Court
14
15 case law); Goldberg v. Kelly, 397 U.S. 254, 261-63 (1970); Wilkinson v. Austin, 545 U.S. 209,
16 221 (2005) (“A liberty interest may arise from . . . an expectation or interest created by state

17 laws or policies . . . .”).
ii.
18

The risk of erroneous deprivation is high absent adequate notice.

19

Unrefuted evidence confirms that the second Mathews factor also weighs in class

20 members’ favor. Under DHS’s current system, class members regularly miss the one-year

21 deadline. Adequate notice—provided directly by DHS, in writing, soon after apprehension—
22 would decrease the risk that class members would be erroneously denied their statutory right to
23
apply for asylum.
24
The record reflects that asylum seekers regularly fail to file their applications within a
25
year of entering the United States because they are unaware of the deadline. See, e.g., Dkt. 13,
26
Alberti Decl., ¶6; Dkt. 15, Freshwater Decl., ¶¶12-13; Dkt. 16, Greenstein Decl., ¶7; Dkt. 19,
27
Cheng Decl., ¶¶8-10. These class members are therefore erroneously deprived of their statutory
28

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1 right to seek asylum.9 Written notice affirmatively provided to class members shortly after their

2 entry into the United States and apprehension by DHS would minimize the risk of erroneous

3 deprivation by alerting asylum seekers to their obligations while they are still within the

4 statutory period in which to prepare and file an application. See supra § III.A.2.a. (discussing

5 misleading information DHS currently provides to class members).

6

iii. Defendants have no countervailing interests that overcome

the private interests at issue in this case.

7

There are no government interests that weigh against providing adequate notice of the

8

one-year deadline under the third prong of Mathews. Indeed, the government has an affirmative

9

interest in the fair and accurate adjudication of immigration cases in general—and asylum cases
10

in particular—which further counsels in favor of providing notice. See, e.g., Matter of S-M-J-,
11

12 21 I. & N. Dec. 722, 727 (BIA 1997) (“[A]s has been said, the government wins when justice is

13 done.”); Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest

14 concerns are implicated when a constitutional right has been violated, because all citizens have

15 a stake in upholding the Constitution.”).

16

Any associated administrative burden or cost to DHS in providing affirmative, written

17 notice at or before class members’ release from detention would be marginal at most. DHS

18 already provides a variety of printed forms to class members between their apprehension and

19 release from custody, see Ex. B, DHS Resp. to First Interrog., Interrog. 8-11, and either
20 handing a person a pre-printed form or printing one out and handing it to a person generally 21 takes officers only a few minutes, see, e.g., Ex. A, Mura Dep., at 150:22-151:11; see also 8 22 C.F.R. § 208.5(a) (obligating DHS officials to make available appropriate application forms
23
while persons are detained). Adding information about the filing deadline to such forms or
24

25

9

The opportunity to seek a discretionary waiver of the deadline from an IJ does not remedy this harm. As

26 this Court has already recognized, individuals who must undertake the burden of seeking a discretionary waiver

are still denied their statutory right to apply for asylum. Dkt. 37 at 8-9; Dkt. 41 at 3. But even if the discretionary

27 waiver system were a potential alternative safeguard, it would not solve the procedural due process concerns at

issue here—requiring each class member to seek a discretionary waiver would further impede both private and

28 government interests by requiring additional litigation by vulnerable class members and slowing down the already

overburdened immigration court system.

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 14

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

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1 creating a new print-out would not place a significant burden on the government. As the Ninth

2 Circuit has recognized:

3

Surely [a small amount of additional] information could be readily incorporated into the

standard form without placing any burden on the government’s fiscal and administrative

4

resources. There is no reason to conclude, after all, that “printing six paragraphs of

information is any more burdensome than printing four paragraphs of information.”
5

Nozzi, 806 F.3d at 1198 (quoting Henry v. Gross, 803 F.2d 757, 768 (2d Cir. 1986)). Here,

6

there is no reason to believe that adding text to a document or printing one additional document
7

would place any burden on the government. For all these reasons, the record reveals no genuine
8

dispute as to class members’ due process claim to adequate notice of the one-year deadline.
9

B. DEFENDANTS’ FAILURE TO PROVIDE A MECHANISM TO TIMELY FILE

10

THEIR ASYLUM APPLICATIONS VIOLATES CLASS MEMBERS’ STATUTORY

11

AND CONSTITUTIONAL RIGHTS TO APPLY FOR ASYLUM.

12

1. The Lack of a Uniform Mechanism Violates the Asylum Statute and the APA.

13

Defendant DHS’s failure to provide notice of the one-year deadline is compounded by

14 the fact that, even if class members happen to learn of the filing deadline in a timely manner,

15 Defendants have failed to create uniform mechanisms which ensure that they may timely file

16 their asylum applications. Instead, Defendants have done the exact opposite, making it

17 impossible in many cases for class members to timely apply for asylum.

18

As detailed below, DHS refuses to accept asylum applications filed by class members,

19 purportedly because jurisdiction to adjudicate those applications is going to—at some point in
20 the future—vest with the immigration court. However, at the same time, an immigration court
21
will not accept an application until, at a very minimum, an NTA has been filed with that
22
court—an event that, in some cases, does not occur until the class member has been in the
23
United States for more than a year. See Ex. V, DHS Resp. to First Req. for Admis., RFA 5.
24
Moreover, as Defendants acknowledge, immigration courts have delayed processing an NTA
25
after receipt for more than six, nine, or even 12 months. See Ex. P, EOIR Resp. to First Req. for
26
Admis., RFA 3-5. These delays are not rare and occur at immigration courts across the country.
27
See Ex. W, Neifert Memo., at USA-6-000193 (Los Angeles Immigration Court); Ex. X,
28

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1 Memo., at USA-6-000117 (Cleveland Immigration Court); Ex. Y, Email “RE: Overtime

2 Evaluation,” at USA-6-000844 (Boston Immigration Court); Ex. Z, Email “RE: NTAs,” at

3 USA-8-002111-12 (San Francisco Immigration Court); see also Dkt. 14, Allyn Decl., ¶11
4 (“[T]he NTA might be delivered to the court, but it may not be recorded in the court system for
5 weeks or months”); Dkt. 13, Alberti Decl., ¶6 (discussing case of client whose first immigration
6 court hearing was not scheduled until more than a year after her arrival in the U.S.); Dkt. 17,
7
Harriger Decl., ¶8 (noting that the San Antonio immigration court “regularly is delayed in
8
docketing cases”). Where the immigration court does not promptly process the NTA, and the
9
filing deadline passes, there is no venue for class members to file their asylum applications and,
10
thus, Defendants violate class members’ statutory right to apply for asylum.
11
The absence of a guaranteed and accessible venue in which to timely file an asylum
12
application also violates congressional intent. Through § 201(b) of the Refugee Act, Congress
13
first enacted the asylum statute, currently located at 8 U.S.C. § 1158(a), and directed the
14
15 Attorney General to “establish a procedure for [a noncitizen] physically present in the United
16 States or at a land border or port of entry . . . to apply for asylum . . . .” Orantes-Hernandez v.
17 Thornburgh, 919 F.2d 549, 552 (9th Cir. 1990); see also Refugee Act of 1980, Pub. L. No. 96-
18 212, § 201(b), 94 Stat. 102 (1980). “Congressional intent was to create a ‘uniform procedure’

19 for consideration of asylum claims which would include an opportunity for [noncitizens] to

20 have asylum applications ‘considered outside a deportation and/or exclusion hearing setting.’”

21 Orantes-Hernandez, 919 F.2d at 552 (citation omitted).

22

All class members have indicated to DHS that they fear persecution in their countries

23 of origin and, all possess the statutory right to apply for asylum. See supra § III.A.1; see also

24 Dkt. 7 § II.A. Indeed, for those within Class A, DHS already has determined that they possess a
25 credible fear of persecution. The procedures that DHS and EOIR have developed for thereafter
26
accepting class members’ asylum applications do not allow them to uniformly exercise their
27
right to apply for that protection. Instead, class members are only able to file their asylum
28

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1 applications within a year of their arrival if the agencies act promptly to initiate their removal

2 proceedings—which Defendants acknowledge does not always happen and is entirely outside

3 the control of the class members themselves. Put simply, there is no procedural mechanism that

4 ensures class members will have the opportunity to timely file their applications.

5

USCIS, the agency within DHS designated to adjudicate affirmative asylum

6 applications, has a convoluted system for determining whether to accept asylum applications

7
filed by individuals who have been issued NTAs. See Ex. Q, Lafferty Memo, at USA-2-000053
8
(“Asylum Jurisdiction Reference Chart” identifying when USCIS has jurisdiction over an
9
asylum application filed by an individual who has been issued an NTA). As a result, USCIS
10
will accept few, if any, applications filed by class members. Id.
11
First, USCIS will not accept any application filed by a Class A member. See, e.g., id.
12
(noting that USCIS does not have jurisdiction over an I-589 application from an applicant who
13
has been placed in expedited removal proceedings). These class members are initially placed in
14

15 expedited removal; but once they are found to have a credible fear of persecution, they are

16 taken out of expedited removal proceedings and issued an NTA. See supra n.2. USCIS policy is

17 to uniformly reject asylum applications filed by these class members, even where the NTA has

18 not yet been filed with an immigration court. See Ex. Q, Lafferty Memo, at USA-2-000053. In

19 fact, this is exactly what happened to Plaintiffs Rodriguez and Mendez. Plaintiff Rodriguez

20 attempted to file his asylum application with USCIS within a year of his arrival in the United

21 States (and before his NTA had been filed with an immigration court). However, USCIS did

22 not accept his application as affirmatively filed. See Dkt. 42 ¶63. In fact, it appears USCIS did
23 not know how to process his application. See Ex. R, at USA-3-000348 (email correspondence 24 noting that USCIS does not “exactly have a system” for dealing with I-589 applications filed by 25 someone to whom an NTA has been issued and that two individuals “have been working on
26
some of these cases piecemeal”). Similarly, Plaintiff Mendez attempted to file her application
27
with USCIS while waiting for her NTA to be filed with an immigration court. However, USCIS
28

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1 rejected her application, presumably because an NTA had been issued. See Dkt. 42 ¶73; Ex. T,

2 USCIS Notice of Lack of Jurisdiction.

3

USCIS also prevents most Class B members from applying for asylum with USCIS if

4 their NTAs have not yet been filed with immigration courts. Class B members have expressed a

5 fear of persecution, been issued an NTA, and released to wait for a court hearing. USCIS will
6 not accept an asylum application for filing if it determines that ICE “will file” the NTA with a
7
court at some point in the future. See Ex. Q, Lafferty Memo, at USA-2-000053. Because ICE
8
almost always intends to submit the NTAs it has issued with the immigration court, USCIS
9
generally will reject an asylum application filed by a Class B member.
10
USCIS’s refusal to accept jurisdiction over asylum applications from class members
11
whose NTAs have not been filed with an immigration court violates the immigration
12
regulations and the agency’s own policy: 8 C.F.R. § 208.2 provides that an immigration court’s
13
jurisdiction to accept and adjudicate an asylum application vests “after the charging document
14
15 has been filed with the Immigration Court.” Similarly, USCIS’s Affirmative Asylum
16 Procedures Manual states that USCIS has jurisdiction over an application until an NTA has

17 been filed. Ex. S, Affirmative Asylum Proc. Manual, at USA-2-000003. Yet, USCIS’s policy

18 and practice dictate the opposite. See Ex. Q, Lafferty Memo., at USA-2-000053 (identifying

19 numerous scenarios in which USCIS will not accept jurisdiction over an asylum application

20 even though an NTA has not been filed with the immigration court). Even assuming USCIS has

21 a valid basis for rejecting asylum applications in this procedural posture, the fact remains that

22 class members are unable to file their applications with that agency.

23

Where USCIS refuses to accept jurisdiction over asylum applications from class

24 members whose NTAs have not been filed with the immigration court, the only possible venue
25 for filing these applications is with an immigration court. However, many class members are
26
unable, through no fault of their own, to timely file their applications with an immigration court
27
for several reasons.
28

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1

First, immigration courts will not accept an asylum application unless the NTA is filed

2 with the immigration court. See Ex. U, Neifert Dep., at 58:9-21. But, as Defendants admit,

3 there is no requirement that DHS ever file an NTA with an immigration court and,
4 correspondingly, no requirement that DHS file an NTA within any particular period of time.
5 See Ex. V, DHS Resp. to First Req. for Admis., RFA 1-2. Consistent with that lack of a
6 temporal requirement, Defendants admit that at times it takes more than a year for DHS to file
7
an NTA with an immigration court. See id., RFA 5; Ex. U, Neifert Dep., at 27:11-15; see also
8
Dkt. 31, Bailey Decl., ¶¶4-5 (reporting more than a year-long delay in filing an NTA with the
9
immigration court); Dkt. 32, Huebner Decl., ¶¶4, 7 (reporting more than a three-year and two-
10
year delay); Dkt. 33, Arno Decl., ¶¶6, 13 (reporting more than a year-long and two-and-a-half-
11
year delay); Dkt. 34, Contreras Decl., ¶5 (reporting more than a three-year delay).
12
Indeed, this is exactly the experience of named Plaintiffs Rodriguez, Mendez, and
13
Lopez. DHS did not file Plaintiff Rodriguez’s NTA with the immigration court until more than
14
15 one year after his arrival—in fact, until after this litigation began. See Ex. DD, Rodriguez NTA,
16 at USA-3-000307 (showing issuance date of July 2014 and filing date with EOIR of September
17 2016). In the meantime, USCIS rejected his asylum application based solely on the fact that an
18 NTA had been issued, see Ex. R at USA-3-000349, and the San Antonio Immigration Court

19 rejected his application because the NTA had not been filed, see Ex. FF, San Antonio Rejection

20 Notice. Likewise, DHS did not file Plaintiff Mendez’s NTA within one year of her arrival.

21 Compare Ex. CC, Mendez NTA, at USA-3-254 (showing issuance date of October 2013 and

22 entry date of September 2013) with Ex. BB, Mendez Hearing Notice (showing first
23 immigration court hearing notice sent May 2015, with the hearing set for November 2019). In 24 the meantime, USCIS had rejected her asylum application because DHS had issued an NTA. 25 See Ex. T, USCIS Notice of Lack of Jurisdiction. Additionally, DHS also filed Plaintiff
26
Lopez’s NTA more than a year after her arrival. See Ex. GG, Lopez NTA, at USA-3-000422
27
(showing issuance date of September 2015 and entry date of February 2014, along with filing
28

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1 date with EOIR of October 2015). For these Plaintiffs, and for similarly situated class

2 members, there was and is no mechanism for timely filing their asylum applications.

3

Second, even where DHS files an NTA with an immigration court within a year of a

4 class member’s arrival in the United States, various delays within the immigration court

5 prevent that class member from being able to file an application prior to the deadline.
6 Immigration courts routinely experience delays between the court’s receipt of an NTA and its
7
entry into EOIR’s computer system. Defendants admit that, in some cases, it has taken more
8
than a year for an immigration court to enter a filed NTA into its computer system. See Ex. P,
9
EOIR Resp. to First Req. for Admis., RFA 5; Ex. U, Neifert Dep. at 49:2-5. For example, EOIR
10
noted in March 2016 that, in the Los Angeles Immigration Court, there were NTAs from
11
November 2015 that had not yet been entered into its computer system. Ex. W, Neifert Memo.,
12
at USA-6-000193. EOIR also found numerous NTAs stacked on staging shelves in that court.
13
Id. In May 2017, there were 377 NTAs in the Cleveland Immigration Court that had, similarly,
14
15 not been processed. Ex. X, Memo., at USA-6-000117. The Boston Immigration Court likewise
16 noted backlogs in its processing of NTAs. Ex. Y, Email “RE: Overtime Evaluation,” at USA-6-

17 000844; see also Ex. Z, Email “RE: NTAs,” at USA-8-002111-12 (showing that as of March

18 2017, San Francisco Immigration Court staff had not entered NTAs from December 2016 into

19 EOIR’s system).10

20

During this period—between the receipt of the NTA and its entry into EOIR’s computer

21 system—courts do not uniformly accept class members’ asylum applications. In the San

22 Francisco Immigration Court, for example, court staff were instructed to check the computer 23 system before accepting asylum applications submitted by mail. See Ex. AA, Email from SF 24 Court Administrator, at USA-8-001800 (“With regard to mailed filings, the staff person . . . will 25 review CASE to ensure the NTA has been filed with San Francisco . . .”). And it makes sense
26

27

10

In fact, even where the court takes four months to input the NTA, as it did in Los Angeles in March 2016,

28 Ex. W, Neifert Memo., at USA-6-000193, a class member could be denied the opportunity to timely file his or her

application if DHS waited eight months or more to file the NTA with the court.

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Telephone (206) 957-8611

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1 that a court would not know whether an NTA had been filed with it before the NTA has been

2 entered into the computer system, because—as discussed above—some courts have hundreds

3 of unprocessed NTAs at any one time. Thus, the courts’ delay in entering NTAs into their

4 computer system provides another impediment to class members’ ability to timely file their

5 applications.

6

This delay affects class members in another way as well. As Defendants acknowledge,

7
“no information [about a case in removal proceedings] would be available on [EOIR’s public]
8
phone system until an NTA was filed with EOIR and entered into EOIR’s system.” Dkt. 42 ¶72
9
(emphasis added); see also Ex. U, Neifert Dep., at 65:20-67:10. Even entering the NTA into
10
EOIR’s computer system, however, is insufficient to notify class members that the court has his
11
or her case.11 And, of course, where that NTA entry takes more than a year, Defendants
12
effectively deny class members the ability to timely file their applications with the court.
13
To the extent Defendants attempt to argue that their September 14, 2016, Operating
14

15 Policies and Procedures Memorandum (“OPPM”), see Ex. E, OPPM 16-01, which was

16 implemented after this lawsuit was filed, provides a mechanism ensuring that class members

17 may timely file their asylum applications, this is not the case. To be sure, class members who

18 sought to timely file their asylum applications before the issuance of the OPPM faced

19 additional significant procedural roadblocks. Most significantly, before the OPPM, EOIR’s

20 sub-regulatory policy and practice required that asylum applications be filed only at a hearing

21 before an immigration judge. Dkt. 1 ¶¶53-58.

22

The OPPM changed this EOIR policy by eliminating the requirement that asylum

23 applicants file their applications in open court. Now, after an NTA is filed with an immigration

24 court and entered into the EOIR system, an applicant can file the application by mail or at the
25

26 11

EOIR does not affirmatively notify class members of their removal proceedings until it issues a hearing

notice, something which is not necessarily done upon initial entry of the NTA into EOIR’s system, and which is

27 not required by written policy to occur within a particular time frame. See Ex. U, Neifert Dep., at 70:3-25, 72:16-

19; 75:22-76:1; see also, e.g., Dkt. 14, Allyn Decl., ¶11 (noting that scheduling a hearing in immigration court

28 “also present[s] further delay”); Dkt. 15, Freshwater Decl., ¶11 (noting it “may take the Immigration Court several

months to schedule a hearing”).

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 21

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 23 of 27

1 court prior to an initial master hearing, and upon receipt by the court, the application will be

2 considered filed for purposes of the one-year rule. Ex. E, OPPM 16-01, at 3. Though this new

3 policy has allowed some class members to timely file their asylum applications with an

4 immigration court, it does not come close to providing a guaranteed mechanism for all class

5 members.12 This is because, as discussed above, DHS fails to file, and/or immigration courts

6 fail to enter, many NTAs until the filing deadline has passed. As such, asylum seekers are

7
unaware that their cases are pending in a particular immigration court and that they may apply
8
for asylum with EOIR. And in the meantime, USCIS generally will not accept these asylum
9
applications because an NTA has been issued. See supra at 17-18. Thus, the OPPM did not
10
remedy Defendants’ failure to provide an adequate mechanism to protect class members’
11
statutory rights.13
12
In sum, Defendants have violated class members’ statutory right to apply for asylum by
13
failing to provide a mechanism that guarantees them the opportunity to file their applications
14

15 within a year of their arrival in the country. As such, the APA provides this Court with

16 authority to remedy this violation. 5 U.S.C. §§ 702, 706.

2. Defendants’ Failure to Provide a Mechanism for Timely Filing Also Violates

17

Procedural Due Process.

18
Defendants’ failure to implement a mechanism by which class members can timely file
19
their asylum applications also violates their constitutional right to due process.
20
Because they have a statutory right to apply for asylum, class members are entitled to
21
due process in the pursuit of that right. Wilkinson, 545 U.S. at 221 (stating that due process
22
requires compliance with fair procedures prior to any deprivation of an individual’s protected
23
liberty or property interest). The “fundamental requirement of due process is the opportunity to
24

25

26 12

Moreover, for class members who missed their filing deadline before the OPPM was implemented, the

changes it created are of no value. See, e.g., supra at 17-18 (discussing Plaintiffs Rodriguez and Mendez’s

27 inability to file within one year after entries in 2014 and 2013, respectively).

13

Moreover, Defendants’ pre-OPPM policy is relevant for the Court to consider in adjudicating this motion.

28 The OPPM was issued after the commencement of this litigation. As such, many class members, whose one-year

deadlines lapsed prior to the OPPM’s issuance, already lost the opportunity to timely file for asylum.

PLS.’ MOT. FOR SUMM. J.

NORTHWEST IMMIGRANT RIGHTS PROJECT

Case No. 2:16-cv-01024-RSM - 22

615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 24 of 27

1 be heard ‘at a meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333

2 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The proper procedure to be afforded

3 in a particular case depends on the interests at stake. Id. at 334.

4

In this case, the Mathews balancing test weighs heavily in class members’ favor. As

5 previously established, class members’ interest could hardly be graver: Defendants’ current
6 procedures impact an interest that, in some cases, literally involves life or death. Class
7
members have fled their home countries and seek protection from persecution. USCIS already
8
has found some to have a credible fear of persecution. Class members’ ability to properly file
9
an asylum application is of utmost importance, as asylum is the only remedy that can protect
10
many of them from being returned to a country where they have been harmed and/or are at risk
11
of being harmed or even killed. See supra § III.A.2.b.i.
12
As discussed in Section III.A.2, supra, Defendants’ current procedures violate due
13
process because Defendant DHS fails to provide notice of the one-year deadline. They also
14
15 violate due process because class members cannot count on either USCIS or the immigration
16 courts to provide an opportunity to comply with the deadline. On the one hand, USCIS will not

17 accept their applications if DHS has issued an NTA (despite a regulatory mandate to do so),

18 and, on the other hand, because of delays by both DHS and EOIR, see supra § III.B.1,

19 immigration courts will not accept their applications until the NTA is received and entered into

20 their system, which often does not happen until they have been in the United States for more

21 than a year. The risk of erroneous deprivation is thus impermissibly high.

22

Finally, Defendants could remedy these statutory and constitutional violations by

23 providing class members with a guaranteed mechanism for timely filing their asylum

24 applications. As just one of a number of possible solutions, Defendants could establish a central
25 mail lockbox for accepting and processing asylum applications filed by class members, as they
26
do with other application processes. See, e.g., Ex. EE, Instructions for Submitting Certain
27
Applications (requiring applicants for relief in removal proceedings, including asylum
28

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1 applicants, to send their application and applicable fees to a USCIS service center). DHS could

2 provide class members, upon issuance of an NTA, with notice of the deadline and instructions

3 for filing an asylum application with that lockbox. Upon receipt, both DHS and EOIR could
4 consider the application filed for purposes of the one-year deadline.14 This would provide class
5 members the right that they have under the statute: the ability to prepare and file their asylum
6 applications during their first year in the country. The establishment of such a lockbox would
7
entail minimal burden to Defendants as USCIS and EOIR already work jointly to accept and
8
process many different kinds of applications for people in removal proceedings. See, e.g., id.;
9
see also Ex. S, Affirmative Asylum Proc. Manual, at USA-2-000002; Ex. Q, Lafferty Memo, at
10
USA2-000053 (USCIS already receives asylum applications filed by class members and other
11
people who are seeking asylum but have been issued an NTA). As this illustrates, the burden to
12
Defendants of establishing such a procedure would be minimal.
13
In any event, any burden on Defendants caused by establishing a guaranteed mechanism
14
15 does not outweigh the private interest at stake in this case. When considering the Mathews
16 factors, the balance tips sharply in favor of class members as a procedural safeguard is
17 necessary to protect their statutory right to apply for asylum.

18

IV. CONCLUSION

19

Class members respectfully request that the Court grant this motion and enter the

20 enclosed proposed order requiring DHS Defendants to provide notice of the one-year deadline

21 and decreeing that both DHS and EOIR Defendants must implement a system that ensures class
22
members the opportunity to timely comply with the deadline.
23
Dated this 30th day of October, 2017.
24
Respectfully submitted,
25

26

27

14

At that point, the administrators of the lockbox would simply route it to the proper agency for further

28 processing. If an NTA has not been filed with an immigration court, DHS would process the application; if an

NTA has been filed, the application should be forwarded to the immigration court with jurisdiction over the case.

PLS.’ MOT. FOR SUMM. J. Case No. 2:16-cv-01024-RSM - 24

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400

Seattle, WA 98104

Telephone (206) 957-8611

Case 2:16-cv-01024-RSM Document 57 Filed 10/30/17 Page 26 of 27

1

2

s/Matt Adams

Matt Adams, WSBA No. 28287

s/Vicky Dobrin Vicky Dobrin, WSBA No. 28554

3

s/Glenda Aldana

s/Hilary Han

4

Glenda M. Aldana Madrid, WSBA No. 46987 Hilary Han, WSBA No. 33754

5
Northwest Immigrant Rights Project

6

615 Second Avenue, Suite 400

Seattle, WA 98104

7

(206) 957-8611

8

(206) 587-4025 (fax)

Dobrin & Han, PC 705 Second Avenue, Suite 610 Seattle, WA 98104 (206) 448-3440 (206) 448-3466 (fax)

9

s/Trina Realmuto

10

Trina Realmuto, pro hac vice

11

s/ Kristin Macleod-Ball

Kristin Macleod-Ball, pro hac vice

12

13

American Immigration Council

100 Summer Street, 23rd Floor

14

Boston, MA 02110

(857) 305-3600
15

16

s/Mary Kenney Mary Kenney, pro hac vice
s/Karolina Walters Karolina Walters, pro hac vice
American Immigration Council 1331 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 507-7512 (202) 742-5619 (fax)

17

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23

24

25

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CERTIFICATE OF SERVICE
1

2

I, Glenda M. Aldana Madrid, hereby certify that on October 30th, 2017, I electronically

3 filed the foregoing motion and proposed order with the Clerk of the Court using the CM/ECF
4 system, which will send notification of such filing to all parties of record.
5

6
Executed in Seattle, Washington, on October 30, 2017.
7
8 s/ Glenda M. Aldana Madrid Glenda M. Aldana Madrid, WSBA No. 46987
9 NORTHWEST IMMIGRANT RIGHTS PROJECT 10 615 2nd Avenue, Suite 400
Seattle, WA 98104
11

12

13

14

15

16

17

18

19

20

21

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23

24

25

26

27

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 Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 1 of 18

1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

CONCELY del CARMEN MENDEZ 7 ROJAS, et al.,
8
Plaintiffs,

) ) CASE NO. C16-1024 RSM ) )

9

) ORDER GRANTING MOTION FOR

v.
10

) SUMMARY JUDGMENT )

11 JEH JOHNSON, Secretary of the

)

Department of Homeland Security, in his )

12 official capacity, et al.,

)

)

13

Defendants.

)

14

15

I. INTRODUCTION

16

This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment. Dkt.

17 #57. Plaintiffs assert that Defendants’ failure to provide all class members with notice of the 18 one-year asylum application deadline and failure to create and implement procedural
19
mechanisms that guarantee class members the opportunity to timely submit their asylum
20
21 applications violate the Immigration and Nationality Act (“INA”), Administrative Procedure Act
22 (“APA”), governing regulations and due process. Id. Plaintiffs assert that based on the record

23 before this Court summary judgment in their favor is appropriate. Id. Defendants oppose the
24
motion, arguing that Plaintiffs seek to impute notice requirements that neither Congress nor the
25
U.S. Constitution mandates, and the Court lacks jurisdiction over Plaintiffs’ claim for new
26
27 procedural mechanisms. Dkt. #61. For the reasons set forth below, the Court disagrees with

28 Defendants and now GRANTS Plaintiffs’ motion.

ORDER PAGE - 1

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 2 of 18

II. BACKGROUND
1

2

The Plaintiff class members are asylum seekers who challenge Defendants’ alleged

3 failure to provide them with notice of the statutory requirement that an asylum seeker must apply

4 for asylum within one year of arrival in the United States, 8 U.S.C. § 1158(a)(2)(B), as well as
5
Defendants’ alleged failure to provide a mechanism that ensures that an asylum seeker is able to
6
comply with that deadline. Dkt. #1. The Court has certified the following classes and subclasses
7
8 in this matter:

9

CLASS A (“Credible Fear Class”): All individuals who have been released

or will be released from DHS custody after they have been found to have a

10

credible fear of persecution within the meaning of 8 U.S.C. §

11

1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year

deadline to file an asylum application as set forth in 8 U.S.C. § 1158(a)(2)(B).

12

13

A.I.: All individuals in Class A who are not in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one

14

year of their last arrival.

15

A.II.: All individuals in Class A who are in removal proceedings and who

16

either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.

17

CLASS B (“Other Entrants Class”): All individuals who have been or will

18

be detained upon entry; express a fear of return to their country of origin; are

19

released or will be released from DHS custody without a credible fear

determination; are issued a Notice to Appear (NTA); and did not receive

20

notice from DHS of the one-year deadline to file an asylum application set

forth in 8 U.S.C. § 1158(a)(2)(B).

21

22

B.I.: All individuals in Class B who are not in removal proceedings and who

either (a) have not yet applied for asylum or (b) applied for asylum after one

23

year of their last arrival.

24

B.II.: All individuals in Class B who are in removal proceedings and who

25

either (a) have not yet applied for asylum or (b) applied for asylum after one

year of their last arrival.

26

Dkt. #37.
27

28

ORDER PAGE - 2

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 3 of 18

For context, Plaintiffs have provided a brief background of the class representatives,
1
2 which is undisputed by Defendants:

3

Plaintiff Rodriguez is a 37-year-old asylum seeker from Honduras. Mr.

Rodriguez entered the United States in July 2014 and established a credible

4

fear of persecution in an interview with USCIS. Subsequently, DHS released

5

him from custody with an NTA, the charging document in removal

proceedings, but did not inform him of the one-year deadline. DHS has not

6

placed Mr. Rodriguez in removal proceedings yet. He only learned of the

deadline when he sought counsel for his immigration case. His attempts to

7

comply with the one-year deadline have been unsuccessful, however, as both

8

USCIS and EOIR have rejected his asylum application – USCIS rejected it

on the assumption that Mr. Rodriguez was in removal proceedings, so the

9

application had to be filed with EOIR; EOIR rejected the application Mr.

Rodriguez attempted to lodge because he is not actually in removal

10

proceedings. As a result, he has been unable to file, or even lodge, his asylum

11

application. See Dkt. 1 ¶ ¶ 60-66.

12

Plaintiff Mendez is a 30-year-old asylum seeker from the Dominican

Republic. Ms. Mendez entered the United States in September 2013 and

13

established a credible fear of persecution in an interview with USCIS.

14

Subsequently, DHS released her from custody with an NTA, but did not

inform her of the one-year deadline. She only learned of the deadline when

15

she sought counsel for her immigration case – after one year had already

16

passed. As she had not yet been placed in removal proceedings, Ms. Mendez attempted to file an asylum application with USCIS, but USCIS rejected it on

17

the assumption that she already was in removal proceedings. Only after this

rejection – and more than one year after she entered the country – did DHS

18

file the NTA with the immigration court, allowing Ms. Mendez to finally

19

lodge her asylum application with the San Antonio Immigration Court. Her

first immigration court hearing will be in August 2016. See Dkt. 1 ¶ ¶ 67-74.

20

Plaintiff Lopez is a 37-year-old asylum seeker from Guatemala. In February

21

2014, she arrived at a Texas port of entry with two of her children and told

22

the inspecting officers that she was afraid to return to Guatemala. DHS

served Ms. Lopez and her children with NTAs and released them from

23

custody with the requirement that they check in with DHS on a regular basis.

DHS did not inform her of the one-year deadline. Ms. Lopez checked in with

24

DHS on four occasions between March 2014 and September 2015, yet at no

25

point did DHS inform her of the one-year deadline. In October 2015, she was

issued a notice of hearing for November 2015 in the San Antonio

26

Immigration Court. Ms. Lopez did not learn of the one-year deadline until

she consulted an immigration attorney in December 2015. She lodged her

27

asylum application with the court in January 2016, nearly two years after she

28

arrived in the United States. The immigration judge subsequently terminated

ORDER PAGE - 3

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 4 of 18

her removal proceedings, and she filed an asylum application affirmatively

1

with USCIS in February 2016. USCIS has not yet scheduled an interview

2

regarding her asylum application. See Dkt. 1 ¶ ¶ 75-81.

3

Plaintiff Suarez is a 29-year-old asylum seeker from Mexico. She and her

five young children arrived at a California port of entry in November 2013.

4

Upon her arrival, Ms. Suarez informed DHS that she was afraid to return to

5

Mexico and that she was seeking asylum in the United States. She provided

DHS with a sworn statement regarding her fear of returning to Mexico.

6

Shortly afterwards, DHS released her and her children from custody with

NTAs, and paroled them into the country to await a removal hearing. At no

7

point did DHS inform Ms. Suarez of the one-year deadline. She first learned

8

of this requirement more than a year later, when she sought counsel. She then

promptly lodged her application with the San Francisco Immigration Court.

9

Ms. Suarez is scheduled for an individual hearing in May 2017. See Dkt. 1 ¶

¶ 82-87.
10

11 Dkt. #7 at 8-10.

12

Plaintiffs allege that Defendants’ policies and practices infringe on their statutory and

13 regulatory rights to apply for asylum, often depriving them of those rights altogether, and also

14
violate their right to due process under the Fifth Amendment to the United States Constitution.
15

16

III. DISCUSSION

17

A. Legal Standard

18

Summary judgment is appropriate where “the movant shows that there is no genuine

19
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
20
R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are
21

22 those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at

23 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of

24 the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco,
25
Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers,
26
969 F.2d 744, 747 (9th Cir. 1992)).
27

28

ORDER PAGE - 4

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 5 of 18

On a motion for summary judgment, the Court views the evidence and draws inferences
1
2 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S.
3 Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). However, the nonmoving party must make
4 a “sufficient showing on an essential element of her case with respect to which she has the burden
5
of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
6
Further, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will
7
8 be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

9 Anderson, 477 U.S. at 251.

10

B. Notice of One-Year Asylum Application Deadline

11
1. Alleged Violation of the INA and APA
12

Under 8 U.S.C. § 1158(a)(1), “[a]ny alien who is physically present in the United States
13

14 or who arrives in the United States (whether or not at a designated port of arrival and including

15 an alien who is brought to the United States after having been interdicted in international or 16 United States waters), irrespective of such alien’s status, may apply for asylum in accordance
17
with this section. . . .” “The Secretary of Homeland Security or the Attorney General may grant
18
19 asylum to an alien who has applied for asylum in accordance with the requirements and
20 procedures established by the Secretary of Homeland Security or the Attorney General under”

21 that statute. 8 U.S.C. § 1158(b)(1)(A). However, the foregoing “shall not apply to an alien unless
22
the alien demonstrates by clear and convincing evidence that the application has been filed within
23
1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). If an
24
25 alien does not apply within one year after arrival in the United States, “the application for asylum

26 may be considered if the alien demonstrates to the satisfaction of the Attorney General either the
27 existence of changed circumstances which materially affect the applicant’s eligibility for asylum
28

ORDER PAGE - 5

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 6 of 18

or extraordinary circumstances relating to the delay in filing an application” within the one-year
1
2 period. 8 U.S.C. § 1158(a)(2)(D).

3

Plaintiffs first argue that because the ability to exercise the right to apply for asylum is

4 contingent upon filing in a timely manner, when Defendants1 fail to provide notice of the one-
5
year deadline or delay providing notice, they violate congressional intent, and as a result violate
6
both the INA and the APA. Dkt. #57 at 8. Defendants acknowledge that they do not provide
7
8 blanket notice to all asylum seekers at the time they are apprehended, during the credible fear

9 determination, or upon release, but respond that no such statutory notice requirement exists. Dkt.
10 #61 at 4-5. As a result, Defendants assert that they have not violated the law and summary
11
judgment on this basis must be denied.
12
Plaintiffs have relied on certain congressional history in support of their argument.
13
14 Specifically, Plaintiffs point to Senator Orrin Hatch’s comments on the Omnibus Consolidated

15 Appropriations Act, 1997, which he made on September 30, 1996. Dkt. #57 at 8 (citing 142

16 CONG. Rec. S11,840 (daily ed. Sept. 20, 1996)(statement of Sen. Hatch)). Senator Hatch stated:

17

Like my distinguished colleague from Michigan, I too supported the Senate

18

provision, which received overwhelming, bipartisan support in the Senate. In

19

fact, that provision was adopted by an amendment in the Judiciary Committee

that passed by unanimous consent. The Senate provisions had established a

20

1-year time limit only on defensive claims of asylum, that is, those raised for

the first time in deportation proceedings, and provided for a good cause

21

exception.

22
Let me say that I share the Senator’s concern that we continue to ensure that

23

asylum is available for those with legitimate claims of asylum. The way in

which the time limit was rewritten in the conference report--with the two

24

exceptions specified--was intended to provide adequate protections to those

25

with legitimate claims of asylum. I expect that circumstances covered by the

26 1 The Court acknowledges that not every legal argument raised by Plaintiffs applies to each separate Defendant, and that some arguments are directed toward the Agency Defendants, while
27 some are directed at the Individual Defendants. However, for ease of reference, the Court simply 28 refers in its discussion to “Defendants” in the plural, and will differentiate a particular Defendant
or group of Defendants if and when it becomes necessary in making specific rulings.

ORDER PAGE - 6

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 7 of 18

Senate’s good cause exception will likely be covered by either the changed

1

circumstances exception or the extraordinary circumstances exception

2

contained in the conference report language. The conference report provision

represents a compromise in that, unlike the Senate provision, it applies to all

3

claims of asylum, whether raised affirmatively or defensively.

4

[Question by] Mr. ABRAHAM. Would you say that the intent in the changed

5

circumstances exception is to cover a broad range of circumstances that may

have changed and that affect the applicant’s ability to obtain asylum?

6

Mr. HATCH. Yes. That exception is intended to deal with circumstances

7

that changed after the applicant entered the United States and that are relevant

8

to the applicant’s eligibility for asylum. The changed circumstances

provision will deal with situations like those in which the situation in the

9

alien’s home country may have changed, the applicant obtains more

information about likely retribution he or she might face if the applicant

10

returned home, and other situations that we in Congress may not be able to

11

anticipate at this time.

12

[Question by] Mr. ABRAHAM. It is my understanding that the second

exception, for extraordinary circumstances, relates to legitimate reasons

13

excusing the alien’s failure to meet the 1-year deadline. Is that the case?

14

Mr. HATCH. Yes, the extraordinary circumstances exception applies to

15

reasons that are, quite literally, out of the ordinary and that explain the alien’s

16

inability to meet the 1-year deadline. Extraordinary circumstances excusing the delay could include, for instance, physical or mental disability,

17

unsuccessful efforts to seek asylum that failed due to technical defects or

errors for which the alien was not responsible, and other extenuating

18

circumstances.

19
[Question by] Mr. ABRAHAM. If the time limit and the exceptions you have

20

discussed do not provide sufficient protection to aliens with bona fide claims

of asylum, I will be prepared to work with my colleagues to address that

21

problem. Is my understanding correct that you too will pay close attention to

22

how this provision is interpreted?

23

Mr. HATCH. Yes. Like you, I am committed to ensuring that those with

legitimate claims of asylum are not returned to persecution, particularly for

24

technical deficiencies. If the time limit is not implemented fairly, or cannot

25

be implemented fairly, I will be prepared to revisit this issue in a later

Congress. I would also like to let the Senator from Michigan know how much

26

I appreciate his commitment and dedication on this issue.

27

28

ORDER PAGE - 7

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 8 of 18
142 CONG. Rec. S11,839-840. Plaintiffs argue that by failing to give notice of the one-year
1
2 filing period, Defendants effectively reduce that filing period, even though Congress did not
3 intend for the one-year time period to foreclose legitimate claims. Dkt. #57 at 8. The Court
4 agrees.
5
In adopting the one-year application period, Senators Hatch and Abraham were
6
concerned about potential limitations on the rights of applicants with legitimate claims. Indeed,
7
8 Senator Hatch recognized that the Senate had initially adopted a provision with an application
9 time limit for only those applicants raising a defensive claim of asylum – that is, for applicants 10 raising asylum as a defense to removal, rather than those applicants affirmatively seeking asylum
11
upon entry into this country. See supra. Senator Hatch then explained that the two exceptions
12
later added were intended to cover a range of changed or extraordinary circumstances to assist
13
14 those applicants with legitimate claims of asylum with making their applications. Id. However,
15 to address congressional concerns, Senator Hatch specifically stated that he would be watching 16 how the one-year time limit was being implemented to make sure it was “implemented fairly.”
17
Id. As demonstrated by Plaintiffs, and more fully discussed below in the context of due process,
18
19 the failure to provide all class members with notice of the one-year application period violates
20 the intent to ensure that asylum is available for those with legitimate claims of asylum. This is
21 particularly true where unsuccessful efforts to seek asylum have failed due to technical defects,
22
which the adopted exceptions were specifically designed to prevent. Accordingly, the Court
23
agrees that the failure to provide notice of the one-year application period violates congressional
24
25 intent.
26 /// 27 ///
28
ORDER PAGE - 8

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 9 of 18

2. Alleged Violation of 5th Amendment Due Process Clause
1

2

Plaintiffs next argue that Defendants’ failure to provide adequate notice of the one-year

3 application time limit violates the due process clause of the Fifth Amendment. Dkt. #57 at 8-15.

4 Specifically, Plaintiffs assert that Defendants do not provide notice that is reasonably calculated
5
to timely convey information about the deadline, and that the failure to provide notice violates
6
procedural due process rights. Id. Defendants respond that they do provide notice of the time
7
8 limit and that Plaintiffs do not use the correct standard with respect to the procedural due process

9 claim. Dkt. #61 at 6-15. Defendants also believe that Mullane rather than Mathews v. Eldridge
10 governs all parts of Plaintiffs’ due process claim.
11
In Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 336, 70 S. Ct. 652, 95 L. Ed.
12
865 (1950), the United States Supreme Court examined the constitutional sufficiency of notice.
13
14 The Court explained:

15

An elementary and fundamental requirement of due process in any

16

proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of

17

the action and afford them an opportunity to present their objections.

Milliken v. Meyer, 311 U.S. 457; Grannis v. Ordean, 234 U.S. 385; Priest v.

18

Las Vegas, 232 U.S. 604; Roller v. Holly, 176 U.S. 398. The notice must be

19

of such nature as reasonably to convey the required information, Grannis v.

Ordean, supra, and it must afford a reasonable time for those interested to

20

make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris,

214 U.S. 71. But if with due regard for the practicalities and peculiarities of

21

the case these conditions are reasonably met, the constitutional requirements

22

are satisfied. “The criterion is not the possibility of conceivable injury but

the just and reasonable character of the requirements, having reference to the

23

subject with which the statute deals.” American Land Co. v. Zeiss, 219 U.S.

47, 67; and see Blinn v. Nelson, 222 U.S. 1, 7.
24

25

But when notice is a person’s due, process which is a mere gesture is not due

process. The means employed must be such as one desirous of actually

26

informing the absentee might reasonably adopt to accomplish it. The

reasonableness and hence the constitutional validity of any chosen method

27

may be defended on the ground that it is in itself reasonably certain to inform

28

those affected, compare Hess v. Pawloski, 274 U.S. 352, with Wuchter v.

ORDER PAGE - 9

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 10 of 18

Pizzutti, 276 U.S. 13, or, where conditions do not reasonably permit such

1

notice, that the form chosen is not substantially less likely to bring home

2

notice than other of the feasible and customary substitutes.

3 Mullane, 339 U.S. at 314-15. Relying on Mullane, Plaintiffs argue that Defendants’ failure to

4 affirmatively require officials to provide any notice of the one-year deadline is a policy that is
5
not “reasonably calculated” to provide notice to the class members. Dkt. #57 at 9.
6
Defendants respond that while they are admittedly not required to provide any notice to
7
8 class members, they actually do provide notice. Dkt. #61 at 6. They point to the Information

9 Guide for Prospective Asylum Applicants, Form I-589 and its Instructions, self-help materials

10 provided by officials to detainees and the Know Your Rights video shown to many detainees.
11
Dkt. #61 at 6-7. Defendants note that the Ninth Circuit Court of Appeals has held that publicly
12
13 available documents can provide sufficient notice. Id. at 7-10.

14

However, Defendants fail to address Plaintiffs’ argument that while courts make such

15 recognition, public notice is not always sufficient. Both the Ninth Circuit and other circuits have 16 recognized that whether affirmative notice beyond publicly-available documents is necessary is
17
dependent on the circumstances of the case. See, e.g., Martinez-De Bjorquez v. Ashcroft, 365
18
19 F.3d 800 (9th Cir. 2004). Under the Mullane standard, notice must be “reasonably calculated,
20 under all the circumstances, to apprise interested parties of the pendency of the action and afford

21 them an opportunity to present their objections.” 393 U.S. at 314, 70 S. Ct. at 657. “The right
22
to be heard has little reality or worth unless one . . . can choose for himself whether to appear or
23
default, acquiesce or contest.” Id.; see also City of West Covina v. Perkins, 525 U.S. 234, 240,
24
25 119 S. Ct. 674, 142 L. Ed.2d636 (1999) (citing Mullane for this proposition). In determining

26 whether the asylum statute apprises the class members of their right to file an asylum application
27 so long as it is within one year of their arrival in the United States, the Court recognizes that the
28

ORDER PAGE - 10

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 11 of 18

class members lose the right to make such an application outside of that time period unless, at
1
2 the sole discretion of an administrative law or other judge, an exception is made. Thus, for a
3 notice to be reasonably calculated to apprise class members of the time limit, as Mullane requires,
4 the notice must be reasonably calculated to apprise Class A members of this right upon a credible
5
fear determination, and Class B members when they express a fear of returning to their country,
6
but are released or will be released without a credible fear determination and are instead issued
7
8 a Notice to Appear. Moreover, as demonstrated by the record in this matter, given the lengthy

9 delays inherent in this country’s immigration system, the Court assumes that if the class members
10 are unaware of the one-year time limit, there is a substantial likelihood that they will not file their
11
applications on time. Thus, under the Mullane standard, the Court must consider whether the
12
documents relied upon by Defendants are reasonably calculated, under all of the circumstances
13
14 of this case, to provide class members of the one-year deadline. The Court finds that they do not.

15

First, the Court concludes that the statute alone is not reasonably calculated to apprise the

16 tenants of the one-year time period. In considering all of the circumstances of this case, it is
17
important to recognize the limitations of the persons seeking asylum. As Plaintiffs note, many
18
19 class members have suffered severe trauma, do not speak English, are unfamiliar with the United

20 States’ complicated immigration legal system, and do not have access to counsel. See Dkt. #57

21 at 11. The Court agrees that these vulnerabilities are compounded by the notices that are provided
22
to class members, that notify them they are able to seek relief from removal by appearing before
23
an Immigration Judge, but do not mention the one-year deadline for filing an application for
24
25 asylum. Id.

26

27

28

ORDER PAGE - 11

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 12 of 18

In Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003), the Eleventh Circuit Court of
1
2 Appeals addressed an analogous situation. In that case, the Court examined whether evicted 3 tenants had adequate notice of remedies available to them under City code. The Court explained:

4

Although the Orlando City Code is a publicly available document and the law

5

presumptively charged the evicted tenants of Lafayette Square with

knowledge of its provisions, the law does not presume that the tenants

6

actually knew of their right to challenge the condemnation when they

received the notice to vacate on June 29 and 30. The law does not entertain

7

the legal fiction that every individual has achieved a state of legal

8

omniscience; in other words, there is no presumption that all of the citizens

actually know all of the law all of the time. Practically speaking, citizens

9

must educate themselves about the law before they can wield the rights

dedicated to them under it, and the Supreme Court’s approach to statutory

10

notice takes account of this reality. See West Covina, 525 U.S. at 241, 119 S.

11

Ct. at 682 (noting that an individual “can turn to these public sources to learn

about the remedial procedures available to him”); id. at 242, 119 S. Ct. at 682

12

(noting that a citizen “could not reasonably be expected to educate himself

13

about the procedures available to protect his interests”); United States v. Locke, 471 U.S. 84, 108, 105 S. Ct. 1785, 1799-1800, 85 L. Ed. 2d 64 (1985)

14

(noting that citizens need “a reasonable opportunity . . . to familiarize

themselves with the general requirements imposed” by a new law); Atkins v.

15

Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 2529, 86 L. Ed. 2d 81 (1985)

16

(noting that the presumption that all citizens are charged with knowledge of the law arguably may be overcome in cases in which the statute “does not

17

allow a sufficient ‘grace period’ to provide the persons affected by a change

in the law with an adequate opportunity to become familiar with their

18

obligations under it”); Texaco, Inc. v. Short, 454 U.S. 516, 532, 102 S. Ct.

19

781, 793, 70 L. Ed. 2d 738 (1982) (“Generally, a legislature need do nothing

more than enact and publish the law, and afford the citizenry a reasonable

20

opportunity to familiarize itself with its terms and to comply.”). We

conclude, in the circumstances of this case, that § 30A.11 of the Orlando City

21

Code was not reasonably calculated to inform the tenants of Lafayette Square,

22

who faced the burdens associated with an eviction and had less than thirty-

six hours to vacate their homes, of their right to choose between acquiescing

23

in or contesting Rhodes’ condemnation order.

24 Grayden, 345 F.3d at 1242-43. Central to the Court’s analysis was the fact that the evicted
25
tenants had little time to accomplish numerous complicated tasks. Id. The Court finds this
26
reasoning persuasive in this case.
27

28

ORDER PAGE - 12

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 13 of 18
Moreover, the Ninth Circuit recognizes that notice which is “confusing” and
1
2 “affirmatively misleading” is not sufficient to satisfy due process. Walters v. Reno, 145 F.3d
3 1032, 1043 (9th Cir. 1998) (holding that a form lacking relevant information “lulls the
4 [noncitizen] into a false sense of procedural security”); see also United States v. Charleswell,
5
456 F.3d 347, 356-57 (3rd Cir. 2006) (in a situation involving a misleading form, finding that “it
6
is simply unrealistic to expect [a noncitizen] to recognize, understand and pursue his statutory
7
8 right” to judicial review absent additional notice); United States v. Montero, No. CR-12-0095
9 EMC, 2012 U.S. Dist. LEXIS 134941 (N.D. Cal. Sep. 20, 2012) (“When ‘the combined effect of 10 all the forms together is confusion,’ notice to the immigrant is constitutionally deficient.”)
11
(quoting Walters).
12
The Court agrees with Plaintiffs that class members face just such a situation in this case.
13
14 See Dkt. #62 at 5-6. By definition, they have all asserted the desire to apply for asylum, but were
15 not provided asylum applications or notice of the one-year deadline. Instead, Defendants provide 16 class members with a variety of documents, some stating that once they appear in court they will
17
be provided with any necessary information about and/or the opportunity to seek relief from
18
19 removal. See, e.g., Dkt. #58-1, Exs. N and O. In addition, Class A members may reasonably
20 believe they have already applied for asylum in their credible fear interviews. See, e.g., Dkts.
21 #15 at ¶ 8 (“[S]everal of my clients have told me that they believed they had applied for asylum
22
by passing the credible fear interview because during that process they told an asylum officer in
23
detail about their asylum claim. . . . They are surprised when I tell them that they need to
24
25 complete another application for asylum in writing.”); #16 at ¶ 7 (“[S]ome of these individuals
26 think that because they have a received a positive credible fear determination, they have been 27 granted asylum.”); and #19 at ¶ 9 (“Many of the individuals released from DHS custody are under
28
ORDER PAGE - 13

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 14 of 18

the assumption that they have already applied for asylum”). The Court agrees with Plaintiffs
1
2 that such confusion is further compounded because class members are especially vulnerable. See 3 Dkt. #57 at 10-12. Thus, class members are reasonably unaware that they should seek out

4 information about any possible deadline.
5
The Court further agrees that other types of notice which Defendants provide to class
6
members does not meet their obligations under the due process clause. As noted above,
7
8 Defendants must provide notice that “afford[s] a reasonable time for those interested to make

9 their appearance.” Mullane, 339 U.S. at 314 (citations omitted). Notice provided through
10 immigration court hearings, which may be scheduled only after the one-year deadline has already
11
elapsed, is not provided at a reasonable time. See Dkt. #57 at 19 (discussing cases in which a
12
Notice to Appear (NTA) is not filed with an immigration court until more than a year after entry).
13
14 Likewise, other forms of notice that Defendants may provide earlier in the process are insufficient

15 because they are not provided to all class members. See Walters, 145 F.3d at 1045 (requiring
16 provision of additional notice even though some individuals “may have received adequate notice
17
in spite of the constitutionally deficient official procedures”). Defendants admit that they have
18
19 no policy requiring uniform provision of such notice.

20

For all of these reasons, the Court concludes that Agency Defendants do not provide

21 sufficient notice of the one-year deadline to satisfy the Due Process clause. Because Defendant
22
agrees that the applicable standard is set forth under Mullane, supra, there is no need for this
23
Court to address similar arguments set forth by Plaintiffs under Mathews v. Eldridge. See Dkt.
24
25 #57 at 12-15.

26 ///
27 ///
28

ORDER PAGE - 14

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 15 of 18

C. Meaningful Application Mechanisms
1

2

The Court next turns to Plaintiffs’ arguments that Defendants’ failure to provide a

3 uniform mechanism to timely file their asylum applications violates the asylum statute and the

4 APA, and that it violates due process. Dkt. #57 at 15-24. Plaintiffs first assert that even if class
5
members become aware of the one-year filing period, Defendants have created a system that
6
makes it virtually impossible to timely file for asylum. Dkt. #57 at 15-22. Plaintiffs further assert
7
8 that the Department of Homeland Security refuses to accept asylum applications filed by class

9 members on the basis that jurisdiction to adjudicate those applications is going to, at some point

10 in the future, vest with the immigration court; but, at the same time, an immigration court will
11
not accept an application until, at a very minimum, an NTA has been filed with that court. Dkt.
12
#57 at 15. Plaintiffs note that in some cases, an NTA is not filed until the class member has been
13
14 in the United States for more than a year. Id. “Where the immigration court does not promptly

15 process the NTA, and the filing deadline passes, there is no venue for class members to file their

16 asylum applications and, thus, Defendants violate class members’ statutory right to apply for

17
asylum.” Id. at 16.
18

19

Defendants respond in a footnote, that this Court lacks jurisdiction over this claim. Dkt.

20 #61 at 16, fn. 17. The Court has already twice rejected this argument, and will not further address

21 it here. See Dkts. #37 at 9 and #41 at 3-4.
22
Defendants next argue that the data upon which Plaintiffs rely is outdated and/or does not
23
demonstrate that class members are denied a mechanism to timely file their applications. Dkt.
24
25 #61 at 16-21. Defendants further argue that this Court must give deference to the procedures in

26 place. Id. at 17-18. The Court is not persuaded. First, the undisputed facts demonstrate delays
27 of more than a year. Indeed, the record evidences more than isolated delays in immigration courts
28

ORDER PAGE - 15

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 16 of 18

from Los Angeles to Boston to San Francisco and Cleveland. Dkts. #31 at ¶ ¶ 4-5, #32 at ¶ ¶ 4
1
2 and 7, #33 at ¶ ¶ 6 and 13 and #34 at ¶ 5. Defendants argue that evidence of delays in the Los 3 Angeles Immigration Court in 2015 and 2016 is “dated,” Dkt. #61 at 17; however, these delays

4 occurred only a few months before this lawsuit was filed. Other evidence demonstrates that
5
similar delays have continued into this year. Dkt. #58, Exs. P, U, W, X, Y and Z. See also Dkts.
6
#14 at ¶ 11 and #15 at ¶ 11. Furthermore, Defendants admit that there is no “temporal deadline
7
8 on ICE’s filing of an NTA with the immigration court or EOIR’s entry of a filed NTA into its

9 systems.” Dkt. #61 at 20.

10

Defendants next argue that “the Court must afford deference to that procedure.” Dkt.

11
#61. However, no deference is owed to procedures that violate a statute or the Constitution. See
12

13 Schneider v. Chertoff, 450 F.3d 944, 952 (9th Cir. 2006) (“[W]e must reject those [agency]

14 constructions that are contrary to clear congressional intent or that frustrate the policy that

15 Congress sought to implement.”) (citing Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843 16 n.9 (1984)). As noted above, denying class members the opportunity to timely file their asylum
17
application violates their statutory right to apply for asylum under the INA. Likewise, the refusal
18
19 to accept Class B asylum applications is inconsistent with the plain language of 8 C.F.R. §
20 208.2(a), stating that the USCIS “shall have initial jurisdiction” over such applications. The

21 Court agrees with Plaintiffs that Defendants’ efforts to contract their own jurisdiction violates
22
“[t]he general rule” that “administrative agencies directed by Congress to adjudicate particular
23
controversies” “may not decline to exercise” this authority. See Union Pacific R.R. v.
24
25 Brotherhood of Locomotive Engineers, 558 U.S. 67, 71 (2009).

26

For these reasons, the Court finds that Defendants have left class members without an

27 adequate mechanism to timely file their asylum applications, thereby denying them the
28

ORDER PAGE - 16

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 17 of 18

opportunity to exercise their statutory right to apply for asylum. Thus, they are afforded relief
1
2 under the APA. Because the Court finds relief appropriate on this basis, it declines to address

3 Plaintiffs’ argument pertaining to due process. See Dkt. #57 at 22-24.

4

IV. CONCLUSION

5
Having reviewed Plaintiffs’ motion for summary judgment, the opposition thereto and
6
reply in support thereof, along with the Declarations and Exhibits submitted by the parties and
7

8 the remainder of the record, the Court hereby finds and ORDERS:

9

1. Plaintiffs’ Motion for Summary Judgment (Dkt. #57) is GRANTED as set forth

10

above.

11
2. Within 90 days of this Order, DHS Defendants SHALL ADOPT a notice of the one-
12

year filing deadline, in consultation with class members, and to thereafter provide this
13

14

notice to all class members who have already been released. For all future class

15

members who have not been released, DHS Defendants SHALL provide this notice

16

prior to or at the time that these individuals are released from custody.

17
3. Defendants are ordered to accept as timely filed any asylum application from a class
18

19

member that is filed within one year of the date of adoption of the notice described in

20

paragraph 2.

21

4. Within 120 days of this Order, all Defendants SHALL ADOPT and publicize, in

22
consultation with class members, uniform procedural mechanisms that will ensure
23
that class members are able to file their asylum applications in a timely manner, and
24

25

to thereafter immediately implement this procedure.

26
27 ///
28

5. This case is now CLOSED.

ORDER PAGE - 17

Case 2:16-cv-01024-RSM Document 64 Filed 03/29/18 Page 18 of 18

DATED this 29th day of March 2018.
1

2 3

A

RICARDO S. MARTINEZ

4

CHIEF UNITED STATES DISTRICT JUDGE

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ORDER PAGE - 18

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 18-35443 Nature of Suit: 2465 Other Immigration Actions Concely Mendez Rojas, et al v. Kirstjen Nielsen, et al Appeal From: U.S. District Court for Western Washington, Seattle Fee Status: USA - No Fee Req

Docketed: 05/25/2018

Case Type Information: 1) civil 2) united states 3) null

Originating Court Information:

District: 0981-2 : 2:16-cv-01024-RSM

Trial Judge: Ricardo S. Martinez, Chief District Judge

Date Filed: 06/30/2016

Date

Date Order/Judgment Date NOA

Order/Judgment:

EOD:

Filed:

03/29/2018

03/29/2018

05/25/2018

Date Rec'd COA:
05/25/2018

Prior Cases: None

Current Cases: None

CONCELY DEL CARMEN MENDEZ ROJAS
Plaintiff - Appellee,

Matt Adams, Attorney [COR NTC Retained] Northwest Immigrant Rights Project 615 Second Avenue Suite 400 Seattle, WA 98104
Vicky Dobrin, Esquire Direct: 206-448-3440 [COR NTC Retained] Dobrin & Han, PC 705 Second Avenue Suite 905 Seattle, WA 98104
Hilary Han, Attorney Direct: 206-448-3440 [COR NTC Retained]

ELMER GEOVANNI RODRIGUEZ ESCOBAR
Plaintiff - Appellee,

Dobrin & Han, PC 705 Second Avenue Suite 905 Seattle, WA 98104
Mary A. Kenney [COR NTC Retained] American Immigration Council 1331 "G" Street, NW Washington, DC 20005
Kristin Macleod-Ball Direct: 857-305-3722 [COR NTC Retained] American Immigration Council 1318 Beacon Street Suite 18 Brookline, MA 02446
Trina A. Realmuto Direct: 857-305-3600 [COR NTC Retained] American Immigration Council 1318 Beacon Street Suite 18 Brookline, MA 02446
Karolina Joanna Walters Direct: 202-507-7520 [COR NTC Retained] American Immigration Council Suite 200 1331 "G" Street, NW Washington, DC 20005
Matt Adams, Attorney [COR NTC Retained] (see above)
Vicky Dobrin, Esquire Direct: 206-448-3440 [COR NTC Retained] (see above)
Hilary Han, Attorney

Direct: 206-448-3440 [COR NTC Retained] (see above)
Mary A. Kenney [COR NTC Retained] (see above)

Kristin Macleod-Ball Direct: 857-305-3722 [COR NTC Retained] (see above)

Trina A. Realmuto Direct: 857-305-3600 [COR NTC Retained] (see above)

Karolina Joanna Walters Direct: 202-507-7520 [COR NTC Retained] (see above)

LIDIA MARGARITA LOPEZ ORELLANA Matt Adams, Attorney

Plaintiff - Appellee,

[COR NTC Retained]

(see above)

Vicky Dobrin, Esquire Direct: 206-448-3440 [COR NTC Retained] (see above)

Hilary Han, Attorney Direct: 206-448-3440 [COR NTC Retained] (see above)

Mary A. Kenney [COR NTC Retained] (see above)

Kristin Macleod-Ball Direct: 857-305-3722 [COR NTC Retained] (see above)

Trina A. Realmuto Direct: 857-305-3600 [COR NTC Retained] (see above)
Karolina Joanna Walters Direct: 202-507-7520 [COR NTC Retained] (see above)

MARIBEL SUAREZ GARCIA, on behalf of themselves as individuals and on behalf of others similarly situated
Plaintiff - Appellee,

Matt Adams, Attorney [COR NTC Retained] (see above)
Vicky Dobrin, Esquire Direct: 206-448-3440 [COR NTC Retained] (see above)

Hilary Han, Attorney Direct: 206-448-3440 [COR NTC Retained] (see above)

Mary A. Kenney [COR NTC Retained] (see above)

Kristin Macleod-Ball Direct: 857-305-3722 [COR NTC Retained] (see above)

Trina A. Realmuto Direct: 857-305-3600 [COR NTC Retained] (see above)

Karolina Joanna Walters Direct: 202-507-7520 [COR NTC Retained] (see above)
v.

KIRSTJEN NIELSEN, Secretary of Department of Homeland Security, in her official capacity
Defendant - Appellant,

Gladys Marta Steffens Guzman, Esquire, Trial Attorney [COR NTC Assist US Attorney] DOJ - U.S. Department of Justice Civil Division/Office of Immigration Litigation P.O. Box 878, Benjamin Franklin Station Washington, DC 20044
J. Max Weintraub, Trial Attorney Direct: 202-305-7551 [COR NTC Assist US Attorney] DOJ - U.S. Department of Justice Civil Division/Office of Immigration Litigation P.O. Box 878, Benjamin Franklin Station Washington, DC 20044

JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States, in his official capacity
Defendant - Appellant,

Gladys Marta Steffens Guzman, Esquire, Trial Attorney [COR NTC Assist US Attorney] (see above)
J. Max Weintraub, Trial Attorney Direct: 202-305-7551 [COR NTC Assist US Attorney] (see above)

THOMAS D. HOMAN, Acting Director for the United States Immigration and Customs Enforcement, in his official capacity
Defendant - Appellant,

Gladys Marta Steffens Guzman, Esquire, Trial Attorney [COR NTC Assist US Attorney] (see above)

J. Max Weintraub, Trial Attorney Direct: 202-305-7551 [COR NTC Assist US Attorney] (see above)

L. FRANCIS CISSNA, Director of United States Customs and Immigration Services, in his official capacity
Defendant - Appellant,

Gladys Marta Steffens Guzman, Esquire, Trial Attorney [COR NTC Assist US Attorney] (see above)

J. Max Weintraub, Trial Attorney Direct: 202-305-7551

[COR NTC Assist US Attorney] (see above)

KEVIN K. MCALEENAN, Commissioner of U.S. Customs and Border Protection, in his official capacity
Defendant - Appellant,

Gladys Marta Steffens Guzman, Esquire, Trial Attorney [COR NTC Assist US Attorney] (see above)

J. Max Weintraub, Trial Attorney Direct: 202-305-7551 [COR NTC Assist US Attorney] (see above)

JAMES MCHENRY, Director of the Executive Office for Immigration Review, in his official capacity
Defendant - Appellant,

Gladys Marta Steffens Guzman, Esquire, Trial Attorney [COR NTC Assist US Attorney] (see above)

J. Max Weintraub, Trial Attorney Direct: 202-305-7551 [COR NTC Assist US Attorney] (see above)

CONCELY DEL CARMEN MENDEZ ROJAS; ELMER GEOVANNI RODRIGUEZ ESCOBAR; LIDIA MARGARITA LOPEZ ORELLANA; MARIBEL SUAREZ GARCIA, on behalf of themselves as individuals and on behalf of others similarly situated,
Plaintiffs - Appellees,
v.
KIRSTJEN NIELSEN, Secretary of Department of Homeland Security, in her official capacity; JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States, in his official capacity; THOMAS D. HOMAN, Acting Director for the United States Immigration and Customs Enforcement, in his official capacity; L. FRANCIS CISSNA, Director of United States Customs and Immigration Services, in his official capacity; KEVIN K. MCALEENAN, Commissioner of U.S. Customs and Border Protection, in his official capacity; JAMES MCHENRY, Director of the Executive Office for Immigration Review, in his official capacity,
Defendants - Appellants.

05/25/2018 1
0 pg, 0 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 06/01/2018. Appellants L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, James McHenry, Kirstjen Nielsen and Jefferson B. Sessions III, Attorney General opening brief due 07/24/2018. Appellees Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni

Rodriguez Escobar and Maribel Suarez Garcia answering brief due 08/23/2018. Appellant's optional reply brief is due 21 days after service of the answering brief. [10886496] (KM) [Entered: 05/25/2018 02:54 PM]

05/29/2018 2
0 pg, 0 KB

Filed (ECF) Appellees Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar and Maribel Suarez Garcia Mediation Questionnaire. Date of service: 05/29/2018. [10887833] [18-35443] (Adams, Matt) [Entered: 05/29/2018 12:27 PM]

05/30/2018 3
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Filed (ECF) notice of appearance of Jacob Max Weintraub for Appellants L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, James McHenry, Kirstjen Nielsen and Jefferson B. Sessions, III. Date of service: 05/30/2018. [10888888] [18-35443] (Weintraub, J. Max) [Entered: 05/30/2018 08:27 AM]

05/30/2018 4
0 pg, 0 KB

Filed (ECF) Appellants Thomas D. Homan, Kevin K. McAleenan, James McHenry, Kirstjen Nielsen and Jefferson B. Sessions, III Mediation Questionnaire. Date of service: 05/30/2018. [10889026] [18-35443] (Weintraub, J. Max) [Entered: 05/30/2018 09:24 AM]

06/01/2018 5

MEDIATION ORDER FILED: The Mediation Program of the 9th

2 pg, 201.54 KB Circuit Court of Appeals facilitates settlement while appeals are

pending. By 06/15/2018, counsel for all parties intending to file

briefs in this matter are requested to inform the Circuit Mediator by

email of their clients' views on whether the issues on appeal or the

underlying dispute might be amenable to settlement presently or in

the foreseeable future. This communication will be kept

confidential, if requested... This communication should not be filed

with the court... The existing briefing schedule remains in effect...

[10893456] (LW) [Entered: 06/01/2018 01:03 PM]

07/05/2018 6

MEDIATION STATUS REPORT DUE - 07/12/2018. See order for

1 pg, 182.69 KB details. [10932101] (LW) [Entered: 07/05/2018 12:18 PM]

07/26/2018 7

Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellants L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, James McHenry, Kirstjen Nielsen and Jefferson B. Sessions, III. New requested due date is 08/27/2018. [10955872] [18-35443] (Weintraub, J. Max) [Entered: 07/26/2018 09:36 AM]

07/26/2018 8

Streamlined request [7] by Appellants L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, James McHenry, Kirstjen Nielsen and Jefferson B. Sessions, III to extend time to file the brief is approved in part (Streamlined requests are not

to exceed 30 days). Amended briefing schedule: Appellants L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, James McHenry, Kirstjen Nielsen and Jefferson B. Sessions III, Attorney General opening brief due 08/23/2018. Appellees Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar and Maribel Suarez Garcia answering brief due 09/24/2018. The optional reply brief is due 21 days from the date of service of the answering brief. [10956359] (Witt, Dusty) [Entered: 07/26/2018 01:44 PM]

08/16/2018 9

MEDIATION STATUS REPORT DUE - 08/24/2018. The briefing

1 pg, 183.29 KB schedule previously set by the court is vacated. See order for

details. [10979175] (LW) [Entered: 08/16/2018 11:58 AM]

08/27/2018 10
2 pg, 36.86 KB

Filed order MEDIATION (CG)The court will initiate a conference by telephone with counsel on October 10, 2018, at 11:00 a.m. Pacific Time. There will be an in-person settlement conference in this matter on October 17, 2018, at 9:00 a.m. Pacific Time at Ninth Circuit Mediation Office, William K. Nakamura United States Courthouse, 1010 Fifth Avenue, Seattle. [SEE COMPLETE ORDER] [10991068] (KM) [Entered: 08/27/2018 02:42 PM]

10/02/2018 11
0 pg, 0 KB

Filed Jose Ruben Juarez Ortiz motion to intervene. Deficiencies: None. Served on 09/28/2018. [11034323] (JFF) [Entered: 10/03/2018 02:57 PM]

10/19/2018 12

MEDIATION STATUS REPORT DUE - 11/02/2018. See order for

1 pg, 183.12 KB details. [11053603] (LW) [Entered: 10/19/2018 11:58 AM]

11/07/2018 13

MEDIATION STATUS REPORT DUE - 11/21/2018. See order for

1 pg, 183.53 KB details. [11075554] (LW) [Entered: 11/07/2018 02:58 PM]

11/27/2018 14

MEDIATION STATUS REPORT DUE - 12/13/2018. See order for

1 pg, 183.52 KB details. [11100359] (LW) [Entered: 11/27/2018 12:25 PM]

12/17/2018 15

MEDIATION STATUS REPORT DUE - 01/09/2019. See order for

1 pg, 183.38 KB details. [11122659] (LW) [Entered: 12/17/2018 01:17 PM]

01/08/2019 16

MEDIATION STATUS REPORT DUE - 02/04/2019. See order for

1 pg, 183.12 KB details. [11144720] (LW) [Entered: 01/08/2019 10:05 AM]

01/14/2019 17

Terminated Glenda Melinda Aldana Madrid for Maribel Suarez Garcia, Elmer Geovanni Rodriguez Escobar, Concely Del Carmen Mendez Rojas and Lidia Margarita Lopez Orellana in 18-35443 (Due to incorrect ECF account information). [11151200] (SLM) [Entered: 01/14/2019 09:35 AM]

02/06/2019 18

MEDIATION STATUS REPORT DUE - 03/04/2019. See order for

1 pg, 185.08 KB details. [11181259] (LW) [Entered: 02/06/2019 01:26 PM]

02/13/2019 19

Filed order (Appellate Commissioner): The court has received the

1 pg, 195.01 KB request filed by Jose Ruben Juarez Ortiz to be a class member of a

subclass certified by the district court. Mr. Juarez Ortiz’s class

member status is an issue for the district court to decide in the first

instance. Mr. Juarez Ortiz’s request (Docket Entry No. [11]) is

denied without prejudice to renewal before the district court.

Briefing remains suspended. (MOATT) [11189556] (OC) [Entered:

02/13/2019 04:11 PM]

03/05/2019 20

MEDIATION STATUS REPORT DUE - 03/28/2019. See order for

1 pg, 184.49 KB details. [11217038] (LW) [Entered: 03/05/2019 03:21 PM]

03/29/2019 21

MEDIATION STATUS REPORT DUE - 04/19/2019. See order for

1 pg, 87.95 KB details. [11246618] (LW) [Entered: 03/29/2019 12:00 PM]

05/07/2019 22

MEDIATION STATUS REPORT DUE - 05/22/2019. See order for

1 pg, 88.34 KB details. [11288789] (LW) [Entered: 05/07/2019 09:33 AM]

06/14/2019 23

MEDIATION STATUS REPORT DUE - 07/10/2019. See order for

1 pg, 87.95 KB details. [11331310] (LW) [Entered: 06/14/2019 09:33 AM]

07/23/2019 24

MEDIATION STATUS REPORT DUE - 07/31/2019. See order for

1 pg, 92.64 KB details. [11373580] (LW) [Entered: 07/23/2019 12:43 PM]

07/31/2019 25

MEDIATION STATUS REPORT DUE - 08/21/2019. See order for

1 pg, 91.92 KB details. [11383299] (MS) [Entered: 07/31/2019 04:17 PM]

08/28/2019 26

MEDIATION STATUS REPORT DUE - 10/30/2019. See order for

1 pg, 93.09 KB details. [11413166] (LW) [Entered: 08/28/2019 10:06 AM]

10/31/2019 27
1 pg, 92.75 KB

MEDIATION ORDER FILED: By 12/04/2019, Appellants to file a motion or stipulation to dismiss, or contact the circuit mediator. See order for details. [11484643] (LW) [Entered: 10/31/2019 10:51 AM]

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:16-cv-01024-RSM

Mendez Rojas et al v. Johnson et al Assigned to: Judge Ricardo S. Martinez Case in other court: 9th Circuit Court of Appeals, 18-
35443 Cause: 05:551 Administrative Procedure Act

Date Filed: 06/30/2016 Date Terminated: 03/29/2018 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

Plaintiff
Concely Del Carmen Mendez Rojas

represented by Aaron Reichlin-Melnick AMERICAN IMMIGRATION COUNCIL 1441 G STREET NW, SUITE 200 WASHINGTON, DC 20005 202-507-505 Email: AReichlinMelnick@immcouncil.org TERMINATED: 07/13/2018 LEAD ATTORNEY PRO HAC VICE

Glenda Melinda Aldana Madrid NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8646 Email: glenda@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hilary Han DOBRIN & HAN 705 2ND AVENUE, STE 905 SEATTLE, WA 98104 206-448-3440 Email: hilary@dobrin-han.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karolina J. Walters AMERICAN IMMIGRATION COUNCIL 1331 G STREET, NW WASHINGTON, DC 20005 202-507-7520 Email: kwalters@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball AMERICAN IMMIGRATION COUNCIL 100 SUMMER ST. 23RD FLOOR BOSTON, MA 02110 857-305-3722 Email: kmacleodball@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW, SUITE 200 WASHINGTON, DC 20005 202-507-7512 Email: mkenney@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto

Plaintiff
Elmer Geovanni Rodriguez Escobar

AMERICAN IMMIGRATION COUNCIL 100 SUMMER ST. 23RD FLOOR BOSTON, MA 02110 857-305-3600 Email: trealmuto@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Victoria Dobrin DOBRIN & HAN 705 SECOND AVE STE 901 SEATTLE, WA 98104 206-448-3440 Fax: 206-448-3440 Email: vicky@dobrin-han.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Reichlin-Melnick (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY PRO HAC VICE
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hilary Han (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address)

Plaintiff Lidia Margarita Lopez Orellana

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Victoria Dobrin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Reichlin-Melnick (See above for address) TERMINATED: 07/13/2018 LEAD ATTORNEY PRO HAC VICE
Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hilary Han (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) LEAD ATTORNEY

Plaintiff
Maribel Suarez Garcia on behalf of themselves as individuals and on behalf of others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Victoria Dobrin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenda Melinda Aldana Madrid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hilary Han (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karolina J. Walters (See above for address) LEAD ATTORNEY PRO HAC VICE

V.
Defendant
Jeh Johnson Secretary of Department of Homeland Security, in his official capacity

ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Victoria Dobrin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gladys M. Steffens Guzman DEPARTMENT OF JUSTICE CIVIL DIVISION 450 5TH STREET NW PO BOX 898, BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7181 Email: Gladys.SteffensGuzman@usdoj.gov ATTORNEY TO BE NOTICED
J. Max Weintraub

Defendant Loretta E. Lynch Attorney General of the United States, in her official capacity
Defendant Thomas S Winkowski Principal Deputy Assistant Secretary for United States Immigration and Customs Enforcement, in his official capacity
Defendant Leon Rodriguez Director of United States Customs and Immigration Services, in his official capacity
Defendant R. Gil Kerlikowske Commissioner of U.S. Customs and Border Protection, in his official capacity
Defendant

US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7551 Email: jacob.weintraub@usdoj.gov ATTORNEY TO BE NOTICED
represented by Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
represented by Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
represented by Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
represented by Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Juan P. Osuna Director of the Executive Office for Immigration Review, in his official capacity

represented by Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/30/2016 07/01/2016 07/01/2016 07/01/2016
07/01/2016

# Docket Text
1 COMPLAINT against All Defendants (Receipt # 0981-4509901), filed by Elmer Geovanni Rodriguez Escobar, Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Maribel Suarez Garcia. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(Adams, Matt) (Entered: 06/30/2016)
2 APPLICATION OF ATTORNEY Trina Realmuto FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia (Fee Paid) Receipt No. 0981-4510182 (Adams, Matt) (Entered: 07/01/2016)
3 APPLICATION OF ATTORNEY Mary Kenney FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia (Fee Paid) Receipt No. 0981-4510194 (Adams, Matt) (Entered: 07/01/2016)
4 ORDER re 2 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Trina Realmuto for Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, and Maribel Suarez Garcia, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 07/01/2016)
5 ORDER re 3 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Mary Kenney for Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, and Maribel Suarez Garcia, by Clerk William M McCool. No document associated with this docket entry, text only.

07/01/2016 07/01/2016 07/21/2016
07/21/2016 07/21/2016 07/21/2016 07/21/2016 07/21/2016 07/21/2016

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 07/01/2016)
Judge Ricardo S. Martinez added. (DJ) (Entered: 07/01/2016)
6 Summons(es) electronically issued as to defendant(s) Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S. Winkowski. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5Summons)(DJ) (Entered: 07/01/2016)
7 MOTION to Certify Class by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. Oral Argument Requested. (Attachments: # 1 Proposed Order, # 2Corporate Disclosure Statement) Noting Date 8/19/2016, (Aldana Madrid, Glenda) (Entered: 07/21/2016)
8 DECLARATION of Matt Adams filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
9 DECLARATION of Vicky Dobrin filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
10 DECLARATION of Hilary Han filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
11 DECLARATION of Mary A. Kenney filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
12 DECLARATION of Trina Realmuto filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
13 DECLARATION of Genevra W. Alberti filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)

07/21/2016 07/21/2016 07/21/2016 07/21/2016 07/21/2016 07/21/2016 07/25/2016 08/02/2016 08/12/2016 08/15/2016

14 DECLARATION of Vanessa Allyn filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
15 DECLARATION of Patricia Freshwater filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
16 DECLARATION of Ilana E. Greenstein filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
17 DECLARATION of Elise Harriger filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
18 DECLARATION of Jennifer Rotman filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
19 DECLARATION of Yuk Man Maggie Cheng filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 07/21/2016)
20 NOTICE of Appearance by attorney J. Max Weintraub on behalf of Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski. (Weintraub, J.) (Entered: 07/25/2016)
21 NOTICE of Appearance by attorney Gladys M. Steffens Guzman on behalf of Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski. (Steffens Guzman, Gladys) (Entered: 08/02/2016)
22 Joint Stipulated MOTION to Stay Proceedings by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 8/12/2016, (Weintraub, J.) (Entered: 08/12/2016)
23 ORDER granting 22 Stipulated Motion to stay until 11/4/16; removing plaintiffs' 7 Motion to Certify Class while matter is stayed by Judge Ricardo S Martinez.(RS) (Entered: 08/15/2016)

08/16/2016 09/12/2016 09/12/2016

24 AFFIDAVIT of Mailing of Summons and Complaint to Defendants on 7/21/2016, filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. (Aldana Madrid, Glenda) (Entered: 08/16/2016)
25 APPLICATION OF ATTORNEY Kristin Macleod-Ball FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia (Fee Paid) Receipt No. 09814597227 (Adams, Matt) (Entered: 09/12/2016)
26 ORDER re 25 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kristin Mcleod-Ball Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia by Clerk William M McCool. No document associated with this docket entry, text only.

11/04/2016 11/07/2016
12/07/2016 12/21/2016

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/12/2016)
27 JOINT STATUS REPORT signed by all parties (Attachments: # 1 Proposed Order)(Weintraub, J.) (Entered: 11/04/2016)
28 MINUTE ORDER by Chief Judge Ricardo S. Martinez re: 7 MOTION to Certify Class . The following MINUTE ORDER is made by direction of the Court, the Honorable Ricardo S. Martinez, Chief United States District Judge: Pursuant to the parties' Joint Status Report filed on 11/04/2016, this case is no longer stayed and is restored to the active docket. Defendants response to Plaintiffs' class certification motion (Dkt. #7) is due no later than 30 days after the entry of this Order . Plaintiffs reply is due two weeks after Defendants response . Further, Defendants Answer or other response to the Complaint is due within 60 days of the entry of this Order, or by January 11, 2017, whichever comes later . Plaintiffs' Motion to Certify Class is RE-NOTED for consideration on the Court's calendar on Friday, 12/23/2016. (SSM) (Entered: 11/07/2016)
29 RESPONSE, by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski, to 7 MOTION to Certify Class . (Attachments: # 1 Exhibit Lyon Pretrial Order)(Weintraub, J.) (Entered: 12/07/2016)
30 REPLY, filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia, TO RESPONSE to 7 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 12/21/2016)

12/21/2016 12/21/2016 12/21/2016 12/21/2016 01/10/2017 01/10/2017

31 DECLARATION of Richard Bailey filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Attachments: # 1Certificate of Service)(Aldana Madrid, Glenda) (Entered: 12/21/2016)
32 DECLARATION of Ashley Huebner filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Attachments: # 1Certificate of Service)(Aldana Madrid, Glenda) (Entered: 12/21/2016)
33 DECLARATION of Vanessa Arno filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Attachments: # 1Certificate of Service)(Aldana Madrid, Glenda) (Entered: 12/21/2016)
34 DECLARATION of Mirta Laura Contreras filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 7 MOTION to Certify Class (Attachments: # 1 Certificate of Service)(Aldana Madrid, Glenda) (Entered: 12/21/2016)
35 APPLICATION OF ATTORNEY Aaron Reichlin-Melnick FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia (Fee Paid) Receipt No. 09814729255 (Adams, Matt) (Entered: 01/10/2017)
36 ORDER re 35 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Aaron Reichlin-Melnick for Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, and for Elmer Geovanni Rodriguez Escobar, by Clerk William M McCool. No document associated with this docket entry, text only.

01/10/2017 01/11/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/10/2017)
37 ORDER granting plaintiffs' 7 Motion to Certify Class by Judge Ricardo S Martinez.(RS) (Entered: 01/10/2017)
38 MOTION to Dismiss , filed by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski. (Attachments: # 1 Proposed Order) Noting Date 1/13/2017, (Weintraub, J.) (Entered: 01/11/2017)

01/18/2017
01/30/2017 02/03/2017 03/28/2017 04/11/2017 04/18/2017 05/22/2017 05/30/2017
05/30/2017 05/30/2017

Noting Date Reset re: 38 MOTION to Dismiss filed by Defendants : Noting Date 2/3/2017. Under the Court's Local Rules, motions to Dismiss are fourth Friday motions and can be noted no earlier than the fourth Friday after filing and service of the motion. LCR 7(d)(3). Accordingly, the Court has RE-NOTED Defendants' motion for the appropriate noting date and Plaintiffs shall respond in accordance with the Court's Local Rules. (SSM) (Entered: 01/18/2017)
39 RESPONSE, by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia, to 38 MOTION to Dismiss . Oral Argument Requested. (Han, Hilary) (Entered: 01/30/2017)
40 REPLY, filed by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, TO RESPONSE to 38 MOTION to Dismiss (Weintraub, J.) (Entered: 02/03/2017)
41 ORDER denying defendants' 38 Motion to Dismiss by Judge Ricardo S Martinez.(RS) (Entered: 03/28/2017)
42 ANSWER to 1 Complaint, by Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski.(Weintraub, J.) (Entered: 04/11/2017)
43 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT by Judge Ricardo S Martinez. Joint Status Report due by 5/30/2017, FRCP 26f Conference Deadline is 5/16/2017, Initial Disclosure Deadline is 5/23/2017. (LC) (Entered: 04/18/2017)
44 STIPULATION AND PROPOSED ORDER Extending Time to Submit Initial Disclosures by parties re 43 Joint Status Report Order Form for District Judges (Attachments: # 1 Proposed Order)(Steffens Guzman, Gladys) (Entered: 05/22/2017)
45 APPLICATION OF ATTORNEY Karolina J. Walters FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia (Fee Paid) Receipt No. 0981-4892316 (Adams, Matt) (Entered: 05/30/2017)
46 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5. Filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia.(Adams, Matt) (Entered: 05/30/2017)
47 ORDER re 45 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Karolina j. Walters for Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni

Rodriguez Escobar, and Maribel Suarez Garcia, by Clerk William M McCool. No document associated with this docket entry, text only.

05/30/2017 06/01/2017
06/06/2017 08/10/2017 08/14/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/30/2017)
48 ORDER granting 44 stipulated motion to extend time in which to serve initial disclosure until 6/6/2017. Signed by Judge Ricardo S Martinez. (PM) (Entered: 05/30/2017)
49 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *5 days*. Bench Trial is set for 3/5/2018 at 9:00 AM before Judge Ricardo S. Martinez. Joinder of Parties due by 6/5/2017, Amended Pleadings due by 11/6/2017, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 7/28/2017, Motions due by 8/29/2017, Discovery completed by 9/29/2017, Dispositive motions due by 10/30/2017, 39.1 mediation to be completed by 1/19/2018, Motions in Limine due by 2/5/2018, Pretrial Order due by 2/21/2018, Trial briefs to be submitted by 2/28/2018, Proposed Findings of Fact and Conclusions of Law to be submitted by 2/28/2018, by Judge Ricardo S. Martinez. (LW) (Entered: 06/01/2017)
50 INITIAL DISCLOSURES Filed by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez.(Weintraub, J.) (Entered: 06/06/2017)
51 STIPULATION AND PROPOSED ORDER for Protective Order by parties (Attachments: # 1 Proposed Order)(Weintraub, J.) (Entered: 08/10/2017)
52 MINUTE ORDER by Chief Judge Ricardo S. Martinez re: 51 Stipulation for Protective Order filed by Juan P. Osuna, Jeh Johnson, Leon Rodriguez, Loretta E. Lynch, R. Gil Kerlikowske, Thomas S Winkowski. The following MINUTE ORDER is made by direction of the Court, the Honorable Ricardo S. Martinez, Chief United States District Judge: The parties have submitted a proposed protective order for the Court's review. The Court DECLINES TO ACCEPT the order as proposed. First, the parties have failed to comport with the Court's Local Rules requiring that they submit a redline version highlighting the changes made between the Court's form protective order and the one submitted by the parties. More importantly, the parties appear to have omitted any reference to the Court's Local Rule 5(g) regarding documents filed under seal and the standard set forth therein. Instead the proposed order references a "lodging" system for proposed sealed documents, which this Court does not utilize or support. Accordingly, the Court will not accept the proposed

08/28/2017 08/31/2017 09/21/2017 09/21/2017 10/30/2017 10/30/2017 11/08/2017 11/08/2017

protective order. Nothing in this Order prevents the parties from submitting another stipulated protective order in compliance with the Local Rules and curing any deficiencies discussed above. The Court reminds all counsel that they are expected to be familiar with the Court's Local Rules and the procedures and practices of this Court. (SSM) (Entered: 08/14/2017)
53 Stipulated MOTION for Protective Order , filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. (Attachments: # 1 Exhibit, # 2 Proposed Order) Noting Date 8/28/2017, (Aldana Madrid, Glenda) (Entered: 08/28/2017)
54 STIPULATED PROTECTIVE ORDER re parties' 53 Stipulated MOTION for Protective Order by Judge Ricardo S Martinez. (TH) (Entered: 08/31/2017)
55 NOTICE of Change of Address/Change of Name of Attorney Trina Realmuto. Filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. (Realmuto, Trina) Modified address and firm association on 9/21/2017 (DS). (Entered: 09/21/2017)
56 NOTICE of Change of Address/Change of Name of Attorney Kristin Macleod-Ball. Filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. (Macleod-Ball, Kristin) Modified address and firm association on 9/21/2017 (DS). (Entered: 09/21/2017)
57 MOTION for Summary Judgment , filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. Oral Argument Requested. (Attachments: # 1Proposed Order) Noting Date 11/24/2017, (Aldana Madrid, Glenda) (Entered: 10/30/2017)
58 DECLARATION of Glenda M. Aldana Madrid filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia re 57 MOTION for Summary Judgment(Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 10/30/2017)
59 Stipulated MOTION To Extend Noting Date on Plaintiffs' Motion for Summary Judgment, filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. (Adams, Matt) (Entered: 11/08/2017)
60 ORDER granting 59 Stipulated Motion to extend noting date of Plaintiffs' Motion for Summary Judgment. The noting date of Plaintiffs' 57 Motion

11/27/2017
12/01/2017 02/12/2018 03/29/2018 03/29/2018 05/25/2018 05/25/2018 07/13/2018 08/02/2018
08/02/2018

for Summary Judgment is extended to 12/1/2017. Opposition due 11/27/2017; Reply due 12/1/2017. Signed by Chief Judge Ricardo S Martinez. (PM) (Entered: 11/08/2017)
61 RESPONSE, by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, to 57MOTION for Summary Judgment . (Attachments: # 1 Declaration of J. Max Weintraub, # 2 Exhibit Excerpts of deposition of Steven C. Lang)(Weintraub, J.) (Entered: 11/27/2017)
62 REPLY, filed by Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia, TO RESPONSE to 57 MOTION for Summary Judgment (Adams, Matt) (Entered: 12/01/2017)
63 MINUTE ORDER at the direction of Judge Ricardo S Martinez striking trial date and remaining pretrial deadlines, pending ruling on motion for summary judgment. (LC) Modified on 2/13/2018 to correct typo(MET). (Entered: 02/12/2018)
64 ORDER granting Plaintiffs' 57 Motion for Summary Judgment. Signed by Judge Ricardo S Martinez. (PM) (Entered: 03/29/2018)
65 JUDGMENT BY COURT: Plaintiffs' Motion for Summary Judgment (Dkt. # 57 ) isGRANTED as set forth in the Court's Order Granting Motion for Summary Judgment. (PM) (Entered: 03/29/2018)
66 NOTICE OF APPEAL to Ninth Circuit (18-35443) by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski. (Weintraub, J.) Modified on 5/29/2018 to add CCA # (CDA). (Entered: 05/25/2018)
67 TIME SCHEDULE ORDER (18-35443) as to 66 Notice of Appeal filed by Juan P. Osuna, Jeh Johnson, Leon Rodriguez, Loretta E. Lynch, R. Gil Kerlikowske, Thomas S Winkowski : (CDA) (Entered: 05/29/2018)
68 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Aaron ReichlinMelnick for Plaintiffs Lidia Margarita Lopez Orellana, Concely Del Carmen Mendez Rojas, Elmer Geovanni Rodriguez Escobar, Maribel Suarez Garcia. (Reichlin-Melnick, Aaron) (Entered: 07/13/2018)
69 Joint MOTION to Stay , filed by Defendants Jeh Johnson, R. Gil Kerlikowske, Loretta E. Lynch, Juan P. Osuna, Leon Rodriguez, Thomas S Winkowski. (Attachments: # 1 Exhibit Interim Agreement, # 2 Proposed Order) Noting Date 8/3/2018, (Weintraub, J.) (Entered: 08/02/2018)
70 ORDER granting parties' 69 Joint Stipulated Motion to Stay Proceedings. Joint Status Report due by 11/2/2018 if parties have not filed a stipulation

10/05/2018 11/02/2018

of dismissal by that date. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 08/02/2018)
71 AMENDED Bar Membership of Application for Leave to Appear Pro Hac Vice for Attorney Karolina Walters, 45 Order on Application for Leave to Appear Pro Hac Vice. (DS) (Entered: 10/05/2018)
72 JOINT STATUS REPORT signed by all parties estimated Trial Days: N/A. (Adams, Matt) (Entered: 11/02/2018)