Create an Alert for This Case on RECAP ACCO,(GJSx),APPEAL,CLOSED,DISCOVERY,PROTORD,REOPENED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:17-cv-01898-CJC-GJS

Nak Kim Chhoeun et al v. David Marin et al Assigned to: Judge Cormac J. Carney Referred to: Magistrate Judge Gail J. Standish Related Cases: 8:18-cv-00316-CJC-GJS
5:18-cv-00071-CJC-SK 8:18-cv-00336-CJC-RAO Case in other court: 9th Circuit, 18-55389
9th Circuit, 18-55673 9TH CCA, 20-55665 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 10/27/2017 Date Terminated: 04/27/2020 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

Petitioner
Nak Kim Chhoeun individually and on behalf of a class of similarly-situated individuals

represented by Michael L Mallow Sidley Austin LLP 1999 Avenue of the Stars 17th Floor Los Angeles, CA 90067 310-595-9500 Fax: 310-595-9501 Email: mmallow@shb.com TERMINATED: 04/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Fiona Dame-Boyle Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415-772-1200 Fax: 415-772-7400 Email: alisondb@gmail.com ATTORNEY TO BE NOTICED

Angela C. Makabali Sidley Austin LLP 555 California Street Suite 2000

San Francisco, CA 90012 415-772-1200 Fax: 415-772-7400 TERMINATED: 08/31/2018
Anoop Prasad Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: anoopp@advancingjusticealc.org ATTORNEY TO BE NOTICED
Christopher M Lapinig Asian Americans Advancing Justice Los Angeles 1145 Wilshire Boulevard Los Angeles, CA 90017 213-977-7500 Fax: 213-977-7595 Email: clapinig@advancingjusticela.org TERMINATED: 09/04/2019
Darlene M. Cho Shook, Hardy & Bacon LLP 2049 Century Park East, Suite 3000 Los Angeles, CA 90067 424-324-3423 Fax: 424-204-9093 Email: dcho@shb.com TERMINATED: 04/01/2019
Gerry Benjamin Hirschfeld Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013 213-896-6000 Fax: 213-896-6600 Email: ghirschfeld@sidley.com ATTORNEY TO BE NOTICED
Jingni Zhao

Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: jennyz@advancingjusticealc.org ATTORNEY TO BE NOTICED
Katelyn N Rowe Sidley Austin LLP 1999 Avenue of the Stars 17th Floor Los Angeles, CA 90067 310-595-9598 Fax: 310-595-9501 Email: krowe@sidley.com TERMINATED: 07/10/2019
Kevin Chun Hoi Lo Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: kevinl@advancingjusticealc.org ATTORNEY TO BE NOTICED
Laboni A. Hoq 1124 Hope Street South Pasadena, CA 91030 9097090599 Email: labonihoq@hotmail.com TERMINATED: 11/05/2019
Lauren Marie De Lilly Sidley Austin LLP 555 West 5th Street Suite 4000 Los Angeles, CA 90013 213-896-6000 Fax: 213-896-6600 Email: ldelilly@sidley.com ATTORNEY TO BE NOTICED

Lee Gelernt American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004-2400 212-549-2616 Fax: 212-549-2654 Email: lgelernt@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: melaniek@advancingjusticealc.org TERMINATED: 11/26/2019
Michelle Y Cho Asian Americans Advancing Justice - Los Angeles 1145 Wilshire Boulevard 2nd Floor Los Angeles, CA 90017 213-977-7500 Fax: 213-977-7595 Email: mcho@aclusocal.org TERMINATED: 10/10/2019
Mohindra Rupram Tittman Weix 350 South Grand Avenue, Suite 1630 Los Angeles, CA 90071 213-550-5287 Email: mrupram@tittmanweix.com TERMINATED: 11/06/2020
Naomi Ariel Igra Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415-772-1200

Fax: 415-772-7400 Email: naomi.igra@sidley.com ATTORNEY TO BE NOTICED
Nicole K Ochi Asian Americans Advancing Justice Los Angeles 1145 Wilshire Boulevard Los Angeles, CA 90017 213-977-7500 Fax: 213-977-7595 Email: nochi@advancingjusticela.org TERMINATED: 07/16/2019
Rara Kang Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013 213-896-6000 Fax: 213-896-6600 Email: rkang@sidley.com ATTORNEY TO BE NOTICED
Sean A. Commons Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-896-6000 Fax: 213-896-6600 Email: scommons@sidley.com ATTORNEY TO BE NOTICED
Sheri Porath Rockwell Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 213-896-6004 Email: sheri.rockwell@sidley.com ATTORNEY TO BE NOTICED
Stephen Chang Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415-772-7412

Petitioner
Mony Neth individually and on behalf of a class of similarly-situated individuals

Fax: 415-772-7400 Email: stephen.chang@sidley.com TERMINATED: 06/12/2019
Winifred V Kao Asian Americans Advancing Justice Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415-896-1701 Fax: 415-896-1702 Email: winifredk@advancingjusticealc.org ATTORNEY TO BE NOTICED
represented by Michael L Mallow (See above for address) TERMINATED: 04/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison Fiona Dame-Boyle (See above for address) ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Anoop Prasad (See above for address) ATTORNEY TO BE NOTICED
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Gerry Benjamin Hirschfeld (See above for address) ATTORNEY TO BE NOTICED

Jingni Zhao (See above for address) ATTORNEY TO BE NOTICED
Katelyn N Rowe (See above for address) TERMINATED: 07/10/2019
Kevin Chun Hoi Lo (See above for address) ATTORNEY TO BE NOTICED
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) TERMINATED: 07/16/2019
Rara Kang

Petitioner Tol Pech

(See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Sheri Porath Rockwell (See above for address) ATTORNEY TO BE NOTICED
Stephen Chang (See above for address) TERMINATED: 06/12/2019
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019

Petitioner Thy Chann

Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED

Petitioner Pech Kha

Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq

Petitioner Dala Loav

(See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi

Petitioner Bunchoeurn Hy

(See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED

Petitioner Kheang Lor

Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED

Petitioner Soka Dos

Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address)

Petitioner Norit Chin

TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address)

Petitioner Ang Thoeun

ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019

Petitioner Sokhan Khim

Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address)

TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED

Petitioner Tith Tang

Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address)

Petitioner Saloeun Chea

TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018

Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao

Petitioner Khun Sum

(See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019

Petitioner Thy Vann

Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig

(See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED

Petitioner Lok Lim

represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address)

Petitioner Nhoueth Nhim

TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019

Petitioner

Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED

Thelh Keth

represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho (See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020

Petitioner Samanang Yin

Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED
represented by Anoop Prasad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jingni Zhao (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Chun Hoi Lo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela C. Makabali (See above for address) TERMINATED: 08/31/2018
Christopher M Lapinig (See above for address) TERMINATED: 09/04/2019
Darlene M. Cho

V. Respondent

(See above for address) TERMINATED: 04/01/2019
Laboni A. Hoq (See above for address) ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
Melanie Chun-Yu Kim (See above for address) TERMINATED: 11/26/2019
Michelle Y Cho (See above for address) TERMINATED: 10/10/2019
Mohindra Rupram (See above for address) TERMINATED: 11/06/2020
Naomi Ariel Igra (See above for address) ATTORNEY TO BE NOTICED
Nicole K Ochi (See above for address) ATTORNEY TO BE NOTICED
Rara Kang (See above for address) ATTORNEY TO BE NOTICED
Sean A. Commons (See above for address) ATTORNEY TO BE NOTICED
Winifred V Kao (See above for address) ATTORNEY TO BE NOTICED

David Marin Field Office Director, Los Angeles Field Office, United States Immigration and Customs Enforcement

represented by Troy D Liggett US Department of Justice Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-532-4765 Fax: 202-305-7000 Email: troy.liggett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr US Department of Justice Civil Division - Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-616-4848 Fax: 202-305-7000 Email: joseph.f.carilli2@usdoj.gov ATTORNEY TO BE NOTICED
Julian Kurz US Department of Justice Civil Division - Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-616-4962 Fax: 202-305-7000 Email: julian.m.kurz@usdoj.gov ATTORNEY TO BE NOTICED
Lauren Marie De Lilly (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202-353-8806 Email: oil-dcs.cacd@usdoj.gov ATTORNEY TO BE NOTICED

Respondent David W. Jennings Field Office Director, San Francisco Field Office, United States Immigration and Customs Enforcement
Respondent Matthew T Albence Acting Director, United States Immigration and Customs Enforcement
Respondent Chad F Wolf Acting Secretary, United States Department of Homeland Security

represented by Troy D Liggett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr (See above for address) ATTORNEY TO BE NOTICED
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Troy D Liggett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr (See above for address) ATTORNEY TO BE NOTICED
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Troy D Liggett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr (See above for address) ATTORNEY TO BE NOTICED

Respondent William Barr U.S. Attorney General
Respondent Sandra Hutchens Sheriff of Orange County TERMINATED: 12/19/2017

Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Troy D Liggett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr (See above for address) ATTORNEY TO BE NOTICED
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Troy D Liggett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr (See above for address) ATTORNEY TO BE NOTICED
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED

Respondent Scott R. Jones Sheriff of Sacramento County TERMINATED: 12/19/2017
Mediator (ADR Panel) Shirish Gupta

represented by Troy D Liggett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F Carilli , Jr (See above for address) ATTORNEY TO BE NOTICED
Julian Kurz (See above for address) ATTORNEY TO BE NOTICED
OIL-DCS Trial Attorney (See above for address) ATTORNEY TO BE NOTICED
represented by Shirish Gupta JAMS 500 N State College Blvd # 600 Orange, CA 92868 United Sta 650-539-4019 Email: sgupta@jamsadr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/30/2017 10/30/2017 10/30/2017 10/30/2017

# Docket Text
11 NOTICE OF ASSIGNMENT to District Judge Cormac J. Carney and Magistrate Judge Gail J. Standish. (esa) (Entered: 10/30/2017)
12 60 DAY Summons issued re Complaint 1 as to defendant Elaine C. Duke. (esa) (Entered: 10/30/2017)
13 60 DAY Summons issued re Complaint 1 as to defendant Thomas D. Homan. (esa) (Entered: 10/30/2017)
14 21 DAY Summons issued re Complaint 1 as to defendant Sandra Hutchens. (esa) (Entered: 10/30/2017)

10/30/2017 10/30/2017 10/30/2017 10/30/2017 11/08/2017
11/09/2017
11/10/2017
11/16/2017

15 21 DAY Summons issued re Complaint 1 as to defendant Scott R. Jones. (esa) (Entered: 10/30/2017)
16 60 DAY Summons issued re Complaint 1 as to defendant David W. Jennings. (esa) (Entered: 10/30/2017)
17 60 DAY Summons issued re Complaint 1 as to defendant David Marin. (esa) (Main Document 17 replaced on 10/30/2017) (esa). (Entered: 10/30/2017)
18 60 DAY Summons issued re Complaint 1 as to defendant Jefferson B. Sessions, III. (esa) (Entered: 10/30/2017)
19 PROOF OF SERVICE filed by Petitioners Nak Kim Chhoeun, Mony Neth, re Civil Cover Sheet (CV-71) 2 , Summons Issued (Attorney Civil Case Opening) 16 , Summons Issued (Attorney Civil Case Opening) 13 , Notice of Assignment to United States Judges(CV-18) optional html form 11 , Summons Issued (Attorney Civil Case Opening) 18 , Summons Issued (Attorney Civil Case Opening) 17 , Certificate/Notice of Interested Parties 3 , Complaint (Attorney Civil Case Opening) 1 , Summons Issued (Attorney Civil Case Opening) 12 served on 11/07/2017. (Cho, Darlene) (Entered: 11/08/2017)
20 SERVICE UNDER FRCP 5(b)(2)(D) Executed by Plaintiff Nak Kim Chhoeun, Mony Neth, upon Sheriff of Sacramento County Scott R. Jones served on 11/9/2017, answer due 11/30/2017. Service of the Summons and Complaint were executed upon the Clerks Office in compliance with Federal Rules of Civil Procedure. (Cho, Darlene) (Entered: 11/09/2017)
21 SERVICE UNDER FRCP 5(b)(2)(D) Executed by Plaintiff Nak Kim Chhoeun, Mony Neth, upon Defendant Sandra Hutchens served on 11/7/2017, answer due 11/28/2017. Service of the Summons and Complaint were executed upon the Clerks Office in compliance with Federal Rules of Civil Procedure. Service by substitute service and by mail (Cho, Darlene) (Entered: 11/10/2017)
22 NOTICE of Appearance filed by attorney Troy D Liggett on behalf of Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III (Attorney Troy D Liggett added to party Elaine C. Duke(pty:res), Attorney Troy D Liggett added to party Thomas D. Homan(pty:res), Attorney Troy D Liggett added to party Sandra Hutchens(pty:res), Attorney Troy D Liggett added to party David W. Jennings(pty:res), Attorney Troy D Liggett added to party Scott R. Jones(pty:res), Attorney Troy D Liggett added to party David Marin(pty:res), Attorney

11/24/2017 11/27/2017 12/07/2017 12/11/2017
12/12/2017 12/12/2017

Troy D Liggett added to party Jefferson B. Sessions, III(pty:res))(Liggett, Troy) (Entered: 11/16/2017)
23 Joint STIPULATION for Extension of Time to File Answer to January 8, 2018 re Complaint (Attorney Civil Case Opening) 1 filed by defendants Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 11/24/2017)
24 ORDER by Judge Cormac J. Carney, Granting Stipulation to Extend Time to Answer (More than 30 days), 23 . The deadline for Respondents Sandra Hutchens, Sheriff of Orange County, and Scott R. Jones, Sheriff of Sacramento County, to respond to the Complaint is extended to January 8, 2018. (twdb) (Entered: 11/27/2017)
25 Joint STIPULATION to Vacate the L.R. 23-3 Automatic 90-day Deadline for Petitioners' Motion for Class Certification filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order Granting Joint Stipulation to Vacate the L.R. 23-3 Automatic 90day Deadline for Petitioners' Motion for Class Certification)(Cho, Darlene) (Entered: 12/07/2017)
26 ORDER Granting Joint Stipulation to Vacate the L.R. 23-3 Automatic 90-Day Deadline for Petitioner's Motion for Class Certification 25 by Judge Cormac J. Carney: Good cause having been shown, IT IS HEREBY ORDERED that: Petitioners' ninety (90) day deadline to file their Motion for Class Certification, as set forth in Rule 23-3 of the Local Rules of the United States District Court, for the the Central District of California, is vacated. The Parties shall address a class certification schedule as part of the Joint 26(f) Report.* (lwag) (Entered: 12/12/2017)
27 First AMENDED COMPLAINT against Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III amending Complaint (Attorney Civil Case Opening) 1 , filed by Petitioners Nak Kim Chhoeun, Mony Neth(Cho, Darlene) (Entered: 12/12/2017)
28 APPLICATION for Temporary Restraining Order as to Removal of Petitioners from United States to begin on Monday, December 18th, at approximately 12:30 p.m. and Memorandum of Points and Authorities in Support Thereof filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Jessica Castellanos, # 2 Declaration of Nak Kim Chhoeun, # 3 Declaration of Holly Cooper, # 4 Declaration of Kalvin Heng, # 5 Declaration of Bill Ong Hing, # 6 Declaration of Matthew Hoppock, # 7 Declaration of Phounsavath Khamvongsa, # 8

12/14/2017
12/14/2017 12/14/2017 12/14/2017 12/14/2017

Declaration of Rottanak Kong, # 9 Declaration of Mony Neth, # 10 Declaration of Sophea Om, # 11 Declaration of Selest Phlek, # 12 Declaration of Anoop Prasad, # 13 Exhibit A to Declaration of Anoop Prasad, # 14 Exhibit B to Declaration of Anoop Prasad, # 15 Declaration of Trina A. Realmuto, # 16 Declaration of Martha Ruch, # 17 Declaration of Rita Wages, # 18 Declaration of Sareang Ye, # 19 Redacted Declaration No. 1, # 20 Redacted Declaration No. 2, # 21 Proposed Order Temporary Restraining Order) (Cho, Darlene) (Entered: 12/12/2017)
29 MEMORANDUM of Points and Authorities in Opposition filed by respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. Re: APPLICATION for Temporary Restraining Order as to Removal of Petitioners from United States to begin on Monday, December 18th, at approximately 12:30 p.m. and Memorandum of Points and Authorities in Support Thereof 28 (Attachments: # 1 Exhibit Ex B - Chhoeun Removal Order, # 2 Exhibit Ex C - Neth Removal Order, # 3 Exhibit Ex D - Neth Motion to Reopen, # 4 Exhibit Ex E Neth Motion to Stay Removal, # 5 Exhibit Ex F - Memorandum of Understanding)(Liggett, Troy) (Entered: 12/14/2017)
30 NOTICE of Manual Filing filed by Petitioners Nak Kim Chhoeun, Mony Neth of REDACTED DECLARATION NO. 1 [ECF NO. 28-19] [UNREDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL]. (Cho, Darlene) (Entered: 12/14/2017)
31 NOTICE of Manual Filing filed by Petitioners Nak Kim Chhoeun, Mony Neth of REDACTED DECLARATION NO. 2 [ECF NO. 28-20] [UNREDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL]. (Cho, Darlene) (Entered: 12/14/2017)
32 ORDER by Judge Cormac J. Carney: granting 28 Petitioners' APPLICATION for TRO. A hearing on the Order to Show Cause shall proceed in the United States Courthouse located at 411 West Fourth Street, Santa Ana, California, 92701, Courtroom 9B, on Thursday, January 11, 2018, at 9:00 a.m. Respondents shall file and serve an opposition to the Courts Order on or before December 28, 2017. Petitioners shall file and serve any papers in reply on or before January 4, 2018. See Order for more information. (twdb) (Entered: 12/14/2017)
33 NOTICE of Filing Corrected Brief filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Corrected Brief, # 2 Declaration Ex A - Schultz Declaration, # 3 Exhibit Ex B - Chhoeun Removal Order, # 4 Exhibit Ex C - Neth

12/15/2017 12/18/2017 12/20/2017 12/21/2017
12/29/2017 01/03/2018

Removal Order, # 5 Exhibit Ex D - Neth Motion to Reopen, # 6 Exhibit Ex E - Neth Motion to Stay Removal, # 7 Exhibit Ex F - Memorandum of Understanding)(Liggett, Troy) (Entered: 12/14/2017)
34 APPLICATION to file document For Leave to File Redacted Declaration No. 1 [ECF No. 28-19] and Redacted Declaration No. 2 [ECF No. 28-20] under seal filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Darlene M. Cho, # 2 Proposed Order Granting Petitioners' Application for Leave to File Redacted Declaration No. 1 [ECF No. 28-19] and Redacted Declaration No. 2 [ECF No. 28-20] Under Seal)(Cho, Darlene) (Entered: 12/15/2017)
35 ORDER by Judge Cormac J. Carney: granting 34 Petitioner's APPLICATION to File Redacted Declaration No.1 [ECF No. 28-19] and Redacted Declaration No. 2 [ECF No. 28-20] Under Seal. (twdb) (Entered: 12/18/2017)
36 STIPULATION for Extension of Time to File Response as to Order on Motion for Temporary Restraining Order,, 32 , STIPULATION to Continue Hearing on Order to Show Cause from January 11, 2018 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration in Support of Stipulation, # 2 Proposed Order)(Liggett, Troy) (Entered: 12/20/2017)
37 ORDER by Judge Cormac J. Carney, The Court GRANTS the Stipulation for Order Extending Time to Respond to Order to Show Cause (ECF No. 36). The deadline for Respondents to respond to the Courts December 14, 2017 Order to Show Cause (ECF No. 32) is extended from December 28, 2017, to January 11, 2018. Petitioners shall file and serve any papers in reply on or before January 18, 2018. A hearing on the Order to show Cause shall proceed in the United States Courthouse located at 411 West Fourth Street, Santa Ana, California, 92701, Courtroom 9B, on Thursday, January 25, 2018, at 9:00 a.m. (es) (Entered: 12/21/2017)
38 STIPULATION to Dismiss respondents Scott R. Jones, Sandra Hutchens filed by respondents Elaine C. Duke, David Marin, Jefferson B. Sessions, III, Scott R. Jones, Sandra Hutchens, David W. Jennings, Thomas D. Homan.(Liggett, Troy) (Entered: 12/29/2017)
39 STIPULATION for Extension of Time to File Responsive Pleading to First Amended Complaint filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 01/03/2018)

01/05/2018
01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018

40 ORDER 39 by Judge Cormac J. Carney: Having considered the Stipulation to Extend Time to Respond to First Amended Complaint (ECF No. 39), the Court GRANTS the requested extension. The deadline for Respondents to file a response to the First Amended Complaint is extended to fourteen (14) days after the Court enters a decision on the order to show cause on preliminary junctive relief set out in the Courts December 14, 2017 Order (ECF No. 32). (lwag) (Entered: 01/05/2018)
42 MOTION to Withdraw From Civil Action filed by petitioner Thelh Keth. (es) (Entered: 01/10/2018)
43 MOTION to Withdraw From Civil Action filed by petitioner Lok Lim. (es) (Entered: 01/10/2018)
44 MOTION to Withdraw From Civil Action filed by petitioner Thy Vann. (es) (Entered: 01/10/2018)
45 MOTION to Withdraw From Civil Action filed by petitioner Khun Sum. (es) (Entered: 01/10/2018)
46 MOTION to Withdraw From Civil Action filed by petitioner Saloeun Chea. (es) (Entered: 01/10/2018)
47 MOTION to Withdraw From Civil Action filed by petitioner Tith Tang. (es) (Entered: 01/10/2018)
48 MOTION to Withdraw From Civil Action filed by petitioner Sokhan Khim. (es) (Entered: 01/10/2018)
49 MOTION to Withdraw From Civil Action filed by petitioner Ang Thoeun. (es) (Entered: 01/10/2018)
50 MOTION to Withdraw From Civil Action filed by petitioner Norit Chin. (es) (Entered: 01/10/2018)
51 MOTION to Withdraw From Civil Action filed by petitioner Soka Dos. (es) (Entered: 01/10/2018)
52 MOTION to Withdraw From Civil Action filed by petitioner Kheang Lor. (es) (Entered: 01/10/2018)
53 MOTION to Withdraw From Civil Action filed by petitioner Bunchoeurn Hy. (es) (Entered: 01/10/2018)
54 MOTION to Withdraw From Civil Action filed by petitioner Dala Loav. (es) (Entered: 01/10/2018)

01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/08/2018 01/09/2018 01/11/2018
01/12/2018

55 MOTION to Withdraw From Civil Action filed by petitioner Pech Kha. (es) (Entered: 01/10/2018)
56 MOTION to Withdraw From Civil Action filed by petitioner Thy Chann. (es) (Entered: 01/10/2018)
57 MOTION to Withdraw From Civil Action filed by petitioner Tol Pech. (es) (Entered: 01/10/2018)
58 MOTION to Withdraw From Civil Action filed by petitioner Nhoueth Nhim. (es) (Entered: 01/10/2018)
59 MOTION to Withdraw From Civil Action filed by petitioner Samanang Yin. (es) (Entered: 01/10/2018)
41 MINUTE ORDER IN CHAMBERS by Judge Cormac J. Carney: Order Regarding Letter Received by the Court. (twdb) (Entered: 01/09/2018)
60 MEMORANDUM of Points and Authorities in Opposition filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. Re: Order on Motion for Temporary Restraining Order,, 32 (Attachments: # 1 Declaration Schultz, # 2 Exhibit Chhoeun Removal Order and Decision, # 3 Exhibit Neth Removal Order and Decision, # 4 Declaration Maggard, # 5 Declaration Gearin, # 6 Declaration McDowell, # 7 Exhibit Judicial Order of Removal, # 8 Exhibit 4th Cir. Order Denying Stay I, # 9 Exhibit 4th Cir. Order Denying Stay II, # 10 Exhibit 4th Cir. Order Denying Stay III)(Liggett, Troy) (Entered: 01/11/2018)
61 STATEMENT of OF NON-OPPOSITION TO CERTAIN CLASS MEMBERS MOTIONS TO WITHDRAW AND RESPONSE AS TO THETH KETH (ECF NO. 42), LIM LOK (ECF NO. 43), KHUN SUM (ECF NO. 45), SALOEUN CHEA (ECF NO. 46), AND SOKHAN KHIM (ECF NO. 48) NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 42 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 44 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 58 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 46 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 59 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 47 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 52 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 45 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 56 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 49 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 53 ,

01/18/2018
01/19/2018 01/19/2018 01/22/2018 01/22/2018

NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 55 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 48 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 50 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 57 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 54 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 51 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 43 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Cho, Darlene) (Entered: 01/12/2018)
62 REPLY in support of APPLICATION for Temporary Restraining Order as to Removal of Petitioners from United States to begin on Monday, December 18th, at approximately 12:30 p.m. and Memorandum of Points and Authorities in Support Thereof 28 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A to Reply Brief (Redacted), # 2 Supplemental Declaration of Holly Cooper, # 3 Supplemental Declaration of Kalvin Sophea Hang, # 4 Supplemental Declaration of Rottanak Kong, # 5 Supplemental Declaration of Sophea Om, # 6 Supplemental Declaration of Anoop Prasad, # 7 Declaration of Soleang Chann, # 8 Redacted Declaration of Sopeant Chuop, # 9 Declaration of Chen Kong-Wick, # 10 Declaration of Lisa Kum, # 11 Declaration Pheng Bun Lay, # 12 Declaration Tin Nguyen, # 13 Declaration Pisith Phlek)(Cho, Darlene) (Entered: 01/18/2018)
63 NOTICE of Appearance filed by attorney Darlene M Cho on behalf of Petitioners Nak Kim Chhoeun, Mony Neth (Cho, Darlene) (Entered: 01/19/2018)
64 APPLICATION of Non-Resident Attorney Lee Gelernt to Appear Pro Hac Vice on behalf of Petitioners Nak Kim Chhoeun, Mony Neth (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-21127550) filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachment s: # 1 Proposed Order) (Cho, Darlene) (Entered: 01/19/2018)
65 EX PARTE APPLICATION to Continue Hearing on Order to Show Cause from January 25, 2018 to TBD Re: Order, 40 , Order on Motion for Temporary Restraining Order,, 32 , EX PARTE APPLICATION to Stay Case pending Lapse in Appropriation filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order) (Liggett, Troy) (Entered: 01/22/2018)
66 ORDER by Judge Cormac J. Carney: granting 64 Non-Resident Attorney Lee Gelernt APPLICATION to Appear Pro Hac Vice on

01/22/2018 01/23/2018
01/23/2018

behalf of Nak Kim Chhoeun and Mony Neth, designating Darlene Cho as local counsel. (dro) (Entered: 01/22/2018)
71 MOTION to Reinstate Party for Civil Action filed by petitioner Saloeun Chea. (es) (Entered: 01/24/2018)
67 STATEMENT of Respondents' Statement of Partial Opposition and Partial Non-Opposition to Certain Putative Class Members' Motions To Withdraw NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 42 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 44 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 58 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 46 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 59 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 47 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 52 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 45 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 56 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 49 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 53 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 55 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 48 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 50 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 57 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 54 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 51 , NOTICE OF MOTION AND MOTION to Withdraw From Civil Action 43 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 01/23/2018)
68 NOTICE of Appearance filed by attorney Julian Kurz on behalf of Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III (Attorney Julian Kurz added to party Elaine C. Duke(pty:res), Attorney Julian Kurz added to party Thomas D. Homan(pty:res), Attorney Julian Kurz added to party Sandra Hutchens(pty:res), Attorney Julian Kurz added to party David W. Jennings(pty:res), Attorney Julian Kurz added to party Scott R. Jones(pty:res), Attorney Julian Kurz added to party David Marin(pty:res), Attorney Julian Kurz added to party Jefferson B. Sessions, III(pty:res))(Kurz, Julian) (Entered: 01/23/2018)

01/23/2018 01/23/2018 01/24/2018
01/25/2018 01/25/2018 01/25/2018

69 NOTICE of Appearance filed by attorney Michael L Mallow on behalf of Petitioners Nak Kim Chhoeun, Mony Neth (Attorney Michael L Mallow added to party Nak Kim Chhoeun(pty:pet), Attorney Michael L Mallow added to party Mony Neth(pty:pet))(Mallow, Michael) (Entered: 01/23/2018)
70 Notice of Withdrawal of Motion to Continue,, Motion to Stay Case, 65 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 01/23/2018)
72 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance,, 68 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Notice of Appearance or Withdrawal G123. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ak) (Entered: 01/24/2018)
73 MINUTES OF STATUS CONFERENCE held before Judge Cormac J. Carney: Motion hearing held. The Court hears oral argument from the parties. The Court takes the Motion under submission. Order to issue. Court Reporter: Debbie Hino-Spaan. (es) (Entered: 01/25/2018)
74 ORDER GRANTING PRELIMINARY INJUNCTION by Judge Cormac J. Carney. For the foregoing reasons, Petitioners request for injunctive relief is GRANTED.A preliminary injunction will issue concurrent with this order. (see document for further details.) (es) (Entered: 01/25/2018)
75 PRELIMINARY INJUNCTION by Judge Cormac J. Carney. IT IS HEREBY ORDERED that the Government is preliminarily restrained and enjoined from executing Petitioners final orders of removal until February 5, 2018. This Order extends to Respondents and any other federal officials and personnel involved in the removal process. The Order applies to the removal of all Petitioners, who are 92 individuals within the putative class who have received travel papers or who are being considered for travel papers. The Order shall not apply to the seventeen individuals who have filed motions to withdraw in this case. (See Dkts. 42-45, 47-59.) IT IS FURTHER ORDERED that for those Petitioners who file a motion to reopen by February 5, 2018, the Governments execution of their final orders of removal shall be stayed through the adjudication of the administrative process and seven days after the Board of Immigration Appeals denies any motion to reopen.

01/29/2018 02/05/2018 02/08/2018
02/08/2018 02/08/2018
02/14/2018

After that seven day period, this Courts stay of removal shall expire. (es) (Entered: 01/25/2018)
76 TRANSCRIPT ORDER as to Petitioners Nak Kim Chhoeun, Mony Neth for Court Reporter. Court will contact Darlene Cho at dcho@sidley.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Cho, Darlene) (Entered: 01/29/2018)
77 NOTICE Regarding Implementation of Preliminary Injunction filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 02/05/2018)
78 TRANSCRIPT for proceedings held on 1/25/2018 at 9:04 a.m. ****Transcript may be viewed at the court public terminal or purchased through Court Reporter DEBBIE HINO-SPAAN at: WEBSITE www.debbiehinospaan.com; E-mail, dhinospaan@yahoo.com before the deadline for Release of Transcript restriction. After that date, it may be obtained from the Court Reporter or through PACER. Additional formats of the transcript (ASCII, Condensed, and Word Indexing/Concordance) are also available to be purchased at any time through the Court Reporter. Notice of Intent to Redact due within 7 days of this date.**Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/1/2018. Redacted Transcript Deadline set for 3/12/2018. Release of Transcript Restriction set for 5/9/2018. (dhs) (Entered: 02/08/2018)
79 NOTICE OF FILING TRANSCRIPT filed for proceedings 1/25/2018 at 9:04 a.m. re Transcript 78 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dhs) TEXT ONLY ENTRY (Entered: 02/08/2018)
80 NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. Motion set for hearing on 3/12/2018 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Exhibit Chhoeun Notice to Appear, # 2 Exhibit Chhoeun Documents, # 3 Declaration Schultz III, # 4 Declaration Burgus, # 5 Exhibit Neth Notice to Appear, # 6 Exhibit Neth Documents, # 7 Proposed Order) (Liggett, Troy) (Entered: 02/08/2018)
81 Joint STIPULATION for Extension of Time to File Opposition as to NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Darlene M. Cho, # 2 Proposed Order

02/15/2018
02/23/2018 02/28/2018 03/02/2018 03/02/2018 03/02/2018

Extending Time for Petitioners to File Opposition to Motion to Dismiss, Altering Remaining Briefing Schedule, and Continuing Hearing)(Cho, Darlene) (Entered: 02/14/2018)
82 ORDER Extending Time for Petitioners to File Opposition to Motion to Dismiss, Altering Remaining Briefing Schedule and Continuing Hearing 81 by Judge Cormac J. Carney: The Court HEREBY MAKES THE FOLLOWING ORDER: The following deadlines shall apply to the remaining briefs to be filed with respect to Respondents' Motion to Dismiss: Deadline for Petitioners to opposition to Motion to Dismiss is 3/2/18; Deadline for Respondents to file reply brief re: Motion to Dismiss is 3/12/18; The hearing on Respondents' Motion to Dismiss Petitioners' First Amended Complaint scheduled for March 12, 2018 is vacated; and A hearing on Respondents' Motion to Dismiss shall proceed in the United States Courthouse located at 411 West Fourth Street, Santa Ana, California, 92701, Courtroom 9B, on March 26, 2018 at 1:30 p.m. (lwag) (Entered: 02/15/2018)
83 NOTICE of Related Case(s) filed by Petitioners Nak Kim Chhoeun, Mony Neth. Related Case(s): 8:18-cv-00316 (Cho, Darlene) (Entered: 02/23/2018)
84 OBJECTIONS to Notice of Related Case(s) 83 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit)(Liggett, Troy) (Entered: 02/28/2018)
85 MINUTES (IN CHAMBERS) ORDER Directing Petitioners to File a Response to Respondents' Opposition by Judge Cormac J. Carney. On February 23, 2018, Petitioners filed a Notice of Related Case, indicating that this action is related to Trinh v. Homan, Case No. 1800316. (Dkt. 83 .) On February 28, 2018, Respondents filed an opposition to the Notice. (Dkt. 84 .) Petitioners are hereby DIRECTED to file a response to Respondents' opposition. Petitioners' response shall be filed by March 7, 2018. (dro) (Entered: 03/02/2018)
86 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A (Report and Recommendation), # 2 Declaration of Martha Ruch, # 3 Exhibit A to Declaration of Martha Ruch, # 4 Exhibit B to Declaration of Martha Ruch, # 5 Exhibit C to Declaration of Martha Ruch, # 6 Exhibit D to Declaration of Martha Ruch, # 7 Declaration of Nak Kim Chhoeun)(Cho, Darlene) (Entered: 03/02/2018)
87 PETITIONERS OBJECTIONS TO EXHIBITS AND DECLARATIONS SUBMITTED IN SUPPORT OF RESPONDENTS

03/07/2018 03/12/2018 03/13/2018
03/14/2018 03/19/2018

NOTICE OF MOTION AND MOTION TO DISMISS re: NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Cho, Darlene) (Entered: 03/02/2018)
88 RESPONSE filed by Petitioners Nak Kim Chhoeun, Mony Nethto Objection, 84 to Respondents' Objections to Notice of Related Case(s) (Cho, Darlene) (Entered: 03/07/2018)
89 REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 03/12/2018)
90 RESPONSE TO PETITIONERS' OBJECTIONS TO RESPONDENTS' EXHIBITS IN SUPPORT OF re: NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 03/13/2018)
91 ORDER Overruling Respondent's Objection to Notice of Related Case 84 by Judge Cormac J. Carney: For these reasons, the Court hereby OVERRULES Respondents' objection. See document for further information. (lwag) (Entered: 03/15/2018)
92 NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion filed by Petitioners Nak Kim Chhoeun, Mony Neth. Motion set for hearing on 4/16/2018 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Declaration of Boonmi Boonmy, # 2 Declaration of Jessica Castellanos (Supplemental), # 3 Declaration of Linus Chan, # 4 Declaration of Sreyrath Choeum, # 5 Declaration of Sok Chhay, # 6 Declaration of Corey Endo, # 7 Declaration of Jeremy Jong, # 8 Declaration of Melanie Kim, # 9 Redacted Exhibit A to Declaration of Melanie Kim, # 10 Redacted Exhibit B, Part 1 of 2, to Declaration of Melanie Kim, # 11 Redacted Exhibit B, Part 2 of 2, to Declaration of Melanie Kim, # 12 Redacted Exhibit C to Declaration of Melanie Kim, # 13 Redacted Exhibit D to Declaration of Melanie Kim, # 14 Redacted Exhibit E, Part 1 of 8, to Declaration of Melanie Kim, # 15 Redacted Exhibit E, Part 2 of 8, to Declaration of Melanie Kim, # 16 Redacted Exhibit E, Part 3 of 8, to Declaration of Melanie Kim, # 17 Redacted Exhibit E, Part 4 of 8, to Declaration of Melanie Kim, # 18 Redacted Exhibit E, Part 5 of 8, to Declaration of Melanie Kim, # 19 Redacted Exhibit E, Part 6 of 8, to Declaration of Melanie Kim, # 20 Redacted Exhibit E, Part 7 of 8, to Declaration of Melanie Kim, # 21 Redacted

03/19/2018 03/20/2018 03/21/2018 03/22/2018 03/22/2018

Exhibit E, Part 8 of 8, to Declaration of Melanie Kim, # 22 Declaration of Kevin Lo, # 23 Exhibit A to Declaration of Kevin Lo, # 24 Exhibit B to Declaration of Kevin Lo, # 25 Declaration of Katrina Mariategue, # 26 Declaration of Tin Nguyen (Supplemental), # 27 Declaration of Phann Pheach, # 28 Declaration of Reas Rong, # 29 Declaration of Phorn Tem, # 30 Declaration of Sowath Thong, # 31 Declaration of Sareang Ye (Supplemental), # 32 Proposed Preliminary Injunction) (Cho, Darlene) (Entered: 03/19/2018)
93 NOTICE OF MOTION AND MOTION to Certify Class Provisionally for Purposes of Implementing Preliminary Injunction filed by Petitioners Nak Kim Chhoeun, Mony Neth. Motion set for hearing on 4/16/2018 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Declaration of Nak Kim Chhoeun, # 2 Declaration of Mony Neth, # 3 Declaration of Jingni Zhao, # 4 Declaration of Laboni Hoq, # 5 Declaration of Lee Gelernt, # 6 Declaration of Michael Mallow, # 7 Exhibit A to Declaration of Michael Mallow, # 8 Proposed Order) (Cho, Darlene) (Entered: 03/19/2018)
94 REPLY filed by Petitioners Nak Kim Chhoeun, Mony Neth to Objection/Opposition (Motion related), 87 IN SUPPORT OF PETITIONERS' OBJECTIONS TO EXHIBITS AND DECLARATIONS SUBMITTED IN SUPPORT RESPONDENTS MOTION TO DISMISS (Cho, Darlene) (Entered: 03/20/2018)
95 ORDER Directing Respondents to Present Petitioner Chhoeun at Hearing by Judge Cormac J. Carney. Respondents are hereby DIRECTED to produce Petitioner Nak Kim Chhoeun for proceedings before the Honorable Judge Cormac J. Carney, United States District Court, Central District of California, 411 West Fourth Street, Courtroom 9-B, Santa Ana, California 92701, on Monday, March 26, 2018, at 1:30 p.m. Petitioner shall appear at the proceedings in civilian clothing and without shackles. (dro) (Entered: 03/21/2018)
96 Joint STIPULATION for Extension of Time to File Response as to NOTICE OF MOTION AND MOTION to Certify Class Provisionally for Purposes of Implementing Preliminary Injunction 93 , NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 92 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration of Troy D. Liggett, # 2 Proposed Order)(Liggett, Troy) (Entered: 03/22/2018)
97 NOTICE OF LODGING filed Exhibits in Support of Habeas Return re NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 (Attachments: # 1 Exhibit A - Revised, # 2 Exhibit C -

Revised, # 3 Exhibit D - Revised, # 4 Exhibit E - Revised, # 5 Exhibit G - Schultz Decl. V)(Liggett, Troy) (Entered: 03/22/2018)

03/23/2018

98 OBJECTIONS to Notice of Lodging, 97 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Declaration of Darlene M. Cho in Support of Petitioners' Objections to Notice of Lodging, # 4 Exhibit A to Cho Declaration, # 5 Exhibit B to Cho Declaration)(Cho, Darlene) (Entered: 03/23/2018)

03/23/2018

99 (Attorney Joseph Carilli, Jr added to party Elaine C. Duke(pty:res), Attorney Joseph Carilli, Jr added to party Thomas D. Homan(pty:res), Attorney Joseph Carilli, Jr added to party Sandra Hutchens(pty:res), Attorney Joseph Carilli, Jr added to party David W. Jennings(pty:res), Attorney Joseph Carilli, Jr added to party Scott R. Jones(pty:res), Attorney Joseph Carilli, Jr added to party David Marin(pty:res), Attorney Joseph Carilli, Jr added to party Jefferson B. Sessions, III(pty:res))(Carilli, Joseph) (Entered: 03/23/2018)

03/23/2018

100 NOTICE OF APPEAL to the 9th Circuit Court of Appeals Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. Appeal of Preliminary Injunction,,,, 75 , Preliminary Injunction, 74 . (Appeal Fee - Not Required for US Goverment.) (Carilli, Joseph) (Entered: 03/23/2018)

03/26/2018 101 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION to Dismiss Case and HABEAS RETURN 80 (Attachments: # 1 Exhibit H, # 2 Exhibit I)(Carilli, Joseph) (Entered: 03/26/2018)

03/26/2018

102 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance or Withdrawal of Counsel (G123),, 99 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Notice of Appearance. Incomplete docket text; missing name of event.. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ak) (Entered: 03/26/2018)

03/26/2018

103 MINUTES OF DEFENDANT'S MOTION TO DISMISS 80 Hearing held before Judge Cormac J. Carney: The Court hears oral argument from the parties. For the reasons stated on the record, the Court DENIES Defendant's Motion to Dismiss 80 . The Court further ORDERS Petitioner to be immediately released from the custody of Immigration and Custody Enforcement. Further Order to issue. Court Reporter: Debbie Hino-Spaan. (dv) (Entered: 03/26/2018)

03/26/2018

104 ORDER DENYING THE GOVERNMENT'S MOTION TO DISMISS AND GRANTING RELIEF ON UNLAWFUL DETENTION CLAIMS by Judge Cormac J. Carney, re 103 : For the foregoing reasons, the Government's motion to dismiss is DENIED. Chhoeun is GRANTED relief on Claims Three and Four of the First Amended Habeas Corpus Petition. It is hereby ORDERED that Chhoeun be immediately released from custody and placed on supervision under the same terms and conditions imposed on him prior to his unlawful detention. Chhoeun is ordered to report to ICE at 300 N. Los Angeles St, Room 2204, Los Angeles, CA 90012, within ten days of the date of this Order to receive an order of supervision. See document for further information. (dv) (Entered: 03/26/2018)

03/26/2018

105 ORDER TO SHOW CAUSE REGARDING CLASS CERTIFICATION AND PRELIMINARY INJUNCTION by Judge Cormac J. Carney. Respondents shall file and serve an opposition to this Order on or before April 2, 2018. Petitioners shall file and serve any papers in reply on or before April 9, 2018. Show Cause Hearing set for 4/16/2018 01:30 PM before Judge Cormac J. Carney. In light of this Order, the pending motion for a preliminary injunction, (Dkt. 92 ), motion for class certification, (Dkt. 93), and joint stipulation regarding the briefing schedule for those motions, (Dkt. 96 ), are DENIED AS MOOT. (mt) (Entered: 03/26/2018)

03/26/2018

106 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 18-55389 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 100 (shb) (Entered: 03/27/2018)

03/28/2018

107 TRANSCRIPT ORDER as to Petitioners Nak Kim Chhoeun, Mony Neth for Court Reporter. Court will contact Katelyn Rowe at krowe@sidley.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Rowe, Katelyn) (Entered: 03/28/2018)

03/28/2018 108 NOTICE of Appearance (Makabali, Angela) (Entered: 03/28/2018)

03/28/2018 109 NOTICE of Appearance (Rowe, Katelyn) (Entered: 03/28/2018)

03/29/2018

110 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance 108 , Notice of Appearance 109 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Notice of Appearance or Withdrawal G123. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any

action in response to this notice unless and until the Court directs you to do so. (ak) (Entered: 03/29/2018)

04/02/2018 111 NOTICE OF COMPLIANCE filed by Petitioners Nak Kim Chhoeun. (Attachments: # 1 Exhibit A)(Rowe, Katelyn) (Entered: 04/02/2018)

04/02/2018

112 MEMORANDUM of Points and Authorities in Opposition filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Scott R. Jones, David Marin, Jefferson B. Sessions, III. Re: Order to Show Cause,, 105 (Attachments: # 1 Declaration Schultz Decl. VI, # 2 Declaration McDowell Decl. II)(Liggett, Troy) (Entered: 04/02/2018)

04/04/2018 113 STIPULATION for Protective Order filed by Petitioners Nak Kim Chhoeun, Mony Neth.(Cho, Darlene) (Entered: 04/04/2018)

04/04/2018

114 NOTICE OF LODGING filed re Stipulation for Protective Order 113 (Attachments: # 1 Proposed Order)(Cho, Darlene) (Entered: 04/04/2018)

04/06/2018

115 MEMORANDUM of Points and Authorities in Opposition filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. CORRECTED; Re: Order to Show Cause,, 105 (Attachments: # 1 Declaration Corrected Schultz Dec. VI, # 2 Declaration McDowell Decl. II)(Liggett, Troy) (Entered: 04/06/2018)

04/09/2018 116 ANSWER to Amended Complaint/Petition, 27 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III.(Liggett, Troy) (Entered: 04/09/2018)

04/09/2018

117 REPLY filed by Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin to Order to Show Cause,, 105 (Attachments: # 1 Declaration Declaration of Paul Jung, # 2 Exhibit A, # 3 Exhibit B, # 4 Declaration Supplemental Declaration of Tin Thani Nguyen, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Declaration Declaration of Tania T. Pham, # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Declaration Declaration of Jingni Zhao, # 13 Exhibit A, # 14 Exhibit B)(Mallow, Michael) (Entered: 04/09/2018)

04/12/2018

118 ORDER Discharging Order to Show Cause 105 by Judge Cormac J. Carney. For the foregoing reasons, the Court hereby DISCHARGES its order to show cause and DENIES certification of the proposed class. (see document for details). (dro) (Entered: 04/12/2018)

04/20/2018

119 TRANSCRIPT for proceedings held on 3/26/2018 at 1:38 p.m. ****Transcript may be viewed at the court public terminal or purchased through Court Reporter DEBBIE HINO-SPAAN at: WEBSITE www.debbiehinospaan.com; E-mail, dhinospaan@yahoo.com before the deadline for Release of Transcript restriction. After that date, it may be obtained from the Court Reporter or through PACER. Additional formats of the transcript (ASCII, Condensed, and Word Indexing/Concordance) are also available to be purchased at any time through the Court Reporter. Notice of Intent to Redact due within 7 days of this date.** Redaction Request due 5/11/2018. Redacted Transcript Deadline set for 5/21/2018. Release of Transcript Restriction set for 7/19/2018. (dhs) (Entered: 04/20/2018)

04/20/2018

120 NOTICE OF FILING TRANSCRIPT filed for proceedings 3/26/2018 at 1:38 p.m. re Transcript 119 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dhs) TEXT ONLY ENTRY (Entered: 04/20/2018)

04/20/2018

121 STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 113 . (ec) (Entered: 04/20/2018)

04/24/2018

122 NOTICE OF LODGING filed Board of Immigration Appeals Decision Granting Petitioner Neth's Motion to Reopen re Preliminary Injunction,,,, 75 (Attachments: # 1 Exhibit Board of Immigration Appeals Decision)(Liggett, Troy) (Entered: 04/24/2018)

05/08/2018

123 NOTICE by Magistrate Judge Gail J. Standish scheduling a PreDiscovery Motion Telephone Conference regarding the parties' May 4, 2018 email for 5/15/2018 at 10:30 AM before Magistrate Judge Gail J. Standish. The call in information for the conference is: Conference Line 888-251-2909; Access Code 4043024. Additionally, counsel shall notify the Court Clerk via email at earlene_carson@cacd.uscourts.gov of the name of each counsel appearing on the call.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ec) TEXT ONLY ENTRY (Entered: 05/08/2018)

05/11/2018

124 NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. Motion set for hearing on 6/11/2018 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Proposed Order) (Liggett, Troy) (Entered: 05/11/2018)

05/15/2018

125 MINUTES OF Pre-Discovery Motion Telephone Conference held before Magistrate Judge Gail J. Standish regarding the parties' email of May 4, 2018 in which counsel dispute, among other things, whether

leave of Court is required before counsel are permitted to propound written discovery requests. The Court states that briefing in this instance is necessary. The Court directs counsel to meet and confer in an effort to resolve issues prior to scheduling a motion hearing date. After counsel have met and conferred, they shall send a joint email to the Court with an update as to the disputes at issue, and if necessary, propose a briefing schedule for a motion to be filed. Court Recorder: XTR. (ec) (Entered: 05/16/2018)

05/21/2018

126 STATUS REPORT on Board of Immigration Appeals Decision on Petitioner Chhoeun's Motion to Reopen filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit Board Decision)(Liggett, Troy) (Entered: 05/21/2018)

05/21/2018

127 OPPOSITION to NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 124 filed by Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. (Attachments: # 1 Declaration, # 2 Declaration)(Cho, Darlene) (Entered: 05/21/2018)

05/24/2018

128 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. Appeal of Order,, 104 . (Appeal Fee - Not Required for US Goverment.) (Liggett, Troy) (Entered: 05/24/2018)

05/25/2018

129 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 18-55673 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 128 as to Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (shb) (Entered: 05/25/2018)

05/25/2018

130 REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 124 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 05/25/2018)

06/04/2018

131 ORDER by Judge Cormac J. Carney: Denying Without Prejudice Respondents' MOTION to Dismiss 124 and Setting Deadline for Petitioners to File A Motion for Class Certification. Petitioners shall have until July 2, 2018, to file a motion for class certification. (mt) (Entered: 06/04/2018)

06/25/2018

132 Joint STIPULATION for Order To Set Briefing Schedule and Hearing Date re: Petitioners' Motion for Class Certification filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order)(Cho, Darlene) (Entered: 06/25/2018)

06/25/2018

133 NOTICE OF MOTION AND MOTION to Compel Discovery filed by Petitioner Nak Kim Chhoeun, Mony Neth. Motion set for hearing on 8/14/2018 at 10:00 AM before Magistrate Judge Gail J. Standish. (Attachments: # 1 Memorandum Memorandum of Points and Authorities in Support of Petitioners' Motion to Compel Discovery, # 2 Exhibit Exhibit A - Petitioners' First Set of Requests for Production, # 3 Exhibit Exhibit B - Petitioners' First Set of Requests for Admission, # 4 Exhibit Exhibit C - Petitioner Chhoeun's First Set of Interrogatories, # 5 Exhibit Exhibit D - Petitioner Neth's First Set of Interrogatories, # 6 Proposed Order Proposed Order Granting Petitioners' Motion to Compel Discovery)(Cho, Darlene) (Entered: 06/25/2018)

06/26/2018

134 ORDER by Judge Cormac J. Carney, Granting Stipulation to Set Briefing Schedule and Hearing Date Re: Petitioners' Motion for Class Certification 132 . The Court, having reviewed the Parties' Joint Stipulation for an Order to Set aBriefing Schedule and Hearing Date re: Petitioners' Motion for Class Certification, and good cause appearing therefor, HEREBY MAKES THE FOLLOWING ORDER: A. The deadlines for the filing of the opposition and reply brief re: Petitioners' Motion for Class Certification, which is due on July 2, 2018, and the hearing date that would otherwise apply under C.D. Cal. Local Rules 61, 7-19 and 7-10, are hereby altered as follows: (see document for details). (dro) (Entered: 06/26/2018)

06/27/2018

135 TRANSCRIPT ORDER as to Respondent David Marin for Court Smart (CS). Court will contact Troy Liggett at Troy.Liggett@usdoj.gov with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Liggett, Troy) (Entered: 06/27/2018)

06/27/2018

136 NOTICE of Change of address by Michael L Mallow attorney for Petitioners Nak Kim Chhoeun, Mony Neth. Changing attorneys address to Sidley Austin LLP, 1999 Avenue of the Stars, 17th Floor, Los Angeles, CA 90067, (310) 595-9500, fax (310) 595-9501. Filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Mallow, Michael) (Entered: 06/27/2018)

06/28/2018

137 TRANSCRIPT for proceedings held on 5/15/2018, 10:47 a.m.. Court Reporter/Electronic Court Recorder: JAMS CERTIFIED TRANSCRIPTION, phone number (661) 609-4528. Transcript may be viewed at the court public terminal or purchased through the Court

Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 7/19/2018. Redacted Transcript Deadline set for 7/30/2018. Release of Transcript Restriction set for 9/26/2018. (ls) (Entered: 07/02/2018)

06/28/2018

138 NOTICE OF FILING TRANSCRIPT filed for proceedings 5/15/2018, 10:47 a.m. re Transcript 137 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ls) TEXT ONLY ENTRY (Entered: 07/02/2018)

07/02/2018

139 NOTICE OF MOTION AND MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof filed by Petitioners Nak Kim Chhoeun, Mony Neth. Motion set for hearing on 8/13/2018 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Exhibit A, # 2 Declaration of Boroeun Chhin, # 3 Declaration of Jingni Zhao, # 4 Declaration of Laboni Hoq, # 5 Declaration of Lee Gelernt, # 6 Declaration of Michael Mallow, # 7 Exhibit A to Mallow Declaration, # 8 Declaration of Mony Neth, # 9 Declaration of Nak Kim Chhoeun, # 10 Proposed Order) (Cho, Darlene) (Entered: 07/02/2018)

07/09/2018

140 OPPOSITION to MOTION to Compel Discovery 133 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit)(Carilli, Joseph) (Entered: 07/09/2018)

07/16/2018

141 OPPOSITION to NOTICE OF MOTION AND MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof 139 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - Schultz Decl. VII)(Liggett, Troy) (Entered: 07/16/2018)

07/23/2018 142 REPLY In Support Of MOTION to Compel Discovery 133 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration)(Cho, Darlene) (Entered: 07/23/2018)

07/26/2018

143 NOTICE OF PENDING RELATED CASES IN SUPPORT OF RESPONDENTS' OPPOSITION TO PETITIONERS' MOTION FOR CLASS CERTIFICATION re NOTICE OF MOTION AND MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof 139 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - Greenbaum Decl., # 2 Exhibit B - L.A. Immigration Court Order, # 3 Exhibit C - W.D. Wash. Motion)(Liggett, Troy) (Entered: 07/26/2018)

07/27/2018

144 REVISED NOTICE OF PENDING RELATED CASES IN SUPPORT OF RESPONDENTS' OPPOSITION TO PETITIONERS' MOTION FOR CLASS CERTIFICATION re NOTICE OF MOTION AND MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof 139 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - Greenbaum Decl., # 2 Exhibit B - L.A. Immigration Court Order, # 3 Exhibit C - W.D. Wash. Motion)(Liggett, Troy) (Entered: 07/27/2018)

07/30/2018

145 REPLY in support NOTICE OF MOTION AND MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof 139 filed by Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. (Attachments: # 1 Declaration of Jingni Zhao, # 2 Exhibit A of Jingni Zhao Declaration)(Cho, Darlene) (Entered: 07/30/2018)

08/01/2018

146 NOTICE by Magistrate Judge Gail J. Standish rescheduling the hearing re: Petitioner's Motion to Compel Discovery 133 from 10:00 AM to 10:30 AM on 8/14/2018. The hearing will take place before Magistrate Judge Gail J. Standish in the Roybal Building, located at 255 E. Temple Street, Courtroom 690, 6th Floor THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ec) TEXT ONLY ENTRY (Entered: 08/01/2018)

08/06/2018

147 DECLARATION of John A. Schultz, Jr. in opposition to NOTICE OF MOTION AND MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof 139 (Corrected) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration Schultz Decl. VII (Corrected))(Liggett, Troy) (Entered: 08/06/2018)

08/13/2018

148 MINUTES OF Motion Hearing held before Judge Cormac J. Carney: taking under advisement 139 MOTION to Certify Class Action; Order to issue. Court Reporter: Debbie Hino-Spaan. (twdb) (Entered: 08/13/2018)

08/14/2018

149 ORDER by Judge Cormac J. Carney: RE Petitioners MOTION to Certify Class 139 . Accordingly, the Court GRANTS IN SUBSTANTIAL PART Petitioners motion for class certification and hereby CERTIFIES the following class: SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 08/14/2018)

08/14/2018 150 TRANSCRIPT ORDER as to Petitioners Nak Kim Chhoeun, Mony Neth for Court Reporter. Court will contact Darlene Cho at

dcho@sidley.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Cho, Darlene) (Entered: 08/14/2018)

08/14/2018

151 TRANSCRIPT ORDER as to Petitioners Nak Kim Chhoeun, Mony Neth for Court Smart (CS). Court will contact Katelyn Rowe at krowe@sidley.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Rowe, Katelyn) (Entered: 08/14/2018)

08/14/2018

152 MINUTES OF Discovery Hearing held before Magistrate Judge Gail J. Standish regarding Petitioner's Motion To Compel 133 . The Court orders the following supplemental briefing: opening brief is due by Thursday, August 30, 2018; the responsive brief is due by Thursday, September 13, 2018. Once the briefing is complete, Petitioners' Motion will stand submitted to the Court. Court Recorder: CS - Roybal Courtroom 690. (ec) (Entered: 08/15/2018)

08/28/2018 153 TRANSCRIPT ORDER as to Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III for Court Reporter. (Liggett, Troy) (Entered: 08/28/2018)

08/28/2018 154 TRANSCRIPT ORDER as to Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III for Court Smart (CS). (Liggett, Troy) (Entered: 08/28/2018)

08/29/2018

155 JOINT STIPULATION to MOTION to Compel Discovery 133 FOR ORDER TO AMEND BRIEFING SCHEDULE 152 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order)(Liggett, Troy) (Entered: 08/29/2018)

08/29/2018

156 ORDER by Magistrate Judge Gail J. Standish re Joint Stipulation re Discovery Motion 155 . Respondents' opening brief is due by Thursday, September 20, 2018, and Petitioners' responsive brief is due by Thursday, October 4, 2018. (ec) (Entered: 08/29/2018)

08/31/2018

157 Notice of Appearance or Withdrawal of Counsel: for attorney Angela C Makabali counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Angela C. Makabali is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Petitioner's Petitioner's. (Attorney Angela C Makabali added to party Thy Chann(pty:pet), Attorney Angela C Makabali added to party Saloeun Chea(pty:pet), Attorney Angela C

Makabali added to party Norit Chin(pty:pet), Attorney Angela C Makabali added to party Soka Dos(pty:pet), Attorney Angela C Makabali added to party Bunchoeurn Hy(pty:pet), Attorney Angela C Makabali added to party Thelh Keth(pty:pet), Attorney Angela C Makabali added to party Pech Kha(pty:pet), Attorney Angela C Makabali added to party Sokhan Khim(pty:pet), Attorney Angela C Makabali added to party Lok Lim(pty:pet), Attorney Angela C Makabali added to party Dala Loav(pty:pet), Attorney Angela C Makabali added to party Kheang Lor(pty:pet), Attorney Angela C Makabali added to party Nhoueth Nhim(pty:pet), Attorney Angela C Makabali added to party Tol Pech(pty:pet), Attorney Angela C Makabali added to party Khun Sum(pty:pet), Attorney Angela C Makabali added to party Tith Tang(pty:pet), Attorney Angela C Makabali added to party Ang Thoeun(pty:pet), Attorney Angela C Makabali added to party Thy Vann(pty:pet), Attorney Angela C Makabali added to party Samanang Yin(pty:pet))(Makabali, Angela) (Entered: 08/31/2018)

09/20/2018

158 JOINT STIPULATION to MOTION to Compel Discovery 133 FOR SECOND ORDER TO AMEND BRIEFING SCHEDULE 152 , 156 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order)(Liggett, Troy) (Entered: 09/20/2018)

09/20/2018

159 ORDER by Magistrate Judge Gail J. Standish re Joint Stipulation re Discovery Motion 158 . Respondents' supplemental brief is due by Thursday, October 18, 2018, and Petitioners' responsive brief is due by Thursday, November 1, 2018. (ec) (Entered: 09/20/2018)

09/24/2018

160 TEXT ONLY ENTRY: NOTICE TO PARTIES by District Cormac J. Carney. Effective October 9, 2018, Judge Cormac J. Carney will be located in the First Street U.S. Courthouse, Courtroom 7C, on the 7th floor, located at 350 W. 1st Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 7C of the First Street U.S. Courthouse unless otherwise ordered by the Court. All required mandatory chambers copies shall be delivered and placed in the drop box located outside the Clerk's Office on the 4th floor of the First Street Courthouse. Judge Carney's Courtroom Deputy Clerk, Melissa H. Kunig, may be reached at (714) 338-2849.

The location for filing civil and/or criminal documents in paper format exempted from electronic filing is at Edward R. Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Room 180, Los Angeles, California 90012. Documents under this exemption may also be filed in the Santa Ana or Riverside courthouses.

Please refer to Judge Carney's Procedures & Schedules Page on the Court's website **UPDATED AS OF SEPTEMBER 24, 2018** for updated procedures regarding mandatory chambers copies. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrey) TEXT ONLY ENTRY (Entered: 09/24/2018)

10/03/2018

161 TRANSCRIPT for proceedings held on 8/13/2018 at 1:34 p.m. ****Transcript may be viewed at the court public terminal or purchased through Court Reporter DEBBIE HINO-SPAAN at: WEBSITE www.debbiehinospaan.com; E-mail, dhinospaan@yahoo.com before the deadline for Release of Transcript restriction. After that date, it may be obtained from the Court Reporter or through PACER. Additional formats of the transcript (ASCII, Condensed, and Word Indexing/Concordance) are also available to be purchased at any time through the Court Reporter. Notice of Intent to Redact due within 7 days of this date.** Redaction Request due 10/24/2018. Redacted Transcript Deadline set for 11/5/2018. Release of Transcript Restriction set for 1/2/2019. (dhs) (Entered: 10/03/2018)

10/03/2018

162 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/13/2018 at 1:34 p.m. re Transcript 161 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dhs) TEXT ONLY ENTRY (Entered: 10/03/2018)

10/18/2018

163 JOINT STIPULATION to MOTION to Compel Discovery 133 FOR THIRD ORDER TO AMEND BRIEFING SCHEDULE filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order)(Liggett, Troy) (Entered: 10/18/2018)

10/19/2018

164 ORDER by Magistrate Judge Gail J. Standish re Joint Stipulation re Discovery Motion 163 . Having considered the Third Joint Stipulation for Order to Amend Briefing Schedule for Supplemental Briefing on Petitioners' Motion to Compel, Dkt. 160, the Court finds good cause to amend the briefing schedule and GRANTS the joint request. Respondents' supplemental brief is due by Thursday, October 25, 2018, and Petitioners' responsive brief is due by Thursday, November 8, 2018. (ec) (Entered: 10/19/2018)

10/22/2018 165 NOTICE OF INTENT upon filing of the complaint by Judge Cormac J. Carney. Scheduling order to be issued on January 10, 2019. (mku) (Entered: 10/22/2018)

10/25/2018

166 JOINT STIPULATION to MOTION to Compel Discovery 133 to Narrow Discovery Dispute and Enlarge the Number of Pages for Supplemental Briefs filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III.

(Attachments: # 1 Declaration, # 2 Proposed Order)(Liggett, Troy) (Entered: 10/25/2018)

10/25/2018

167 OPPOSITION to MOTION to Compel Discovery 133 Supplement filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Carilli, Joseph) (Entered: 10/25/2018)

10/30/2018

168 ORDER by Magistrate Judge Gail J. Standish re Joint Stipulation re Discovery Motion 166 . The Court finds good cause to enlarge the number of pages of the parties' supplemental briefs to Petitioners' Motion to Compel, Dkt. 133, to no more than 14 pages. (ec) (Entered: 10/30/2018)

10/31/2018

169 Joint STIPULATION for Extension of Time to File Response as to MOTION to Compel Discovery 133 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Darlene Cho, # 2 Proposed Order)(Cho, Darlene) (Entered: 10/31/2018)

10/31/2018

170 ORDER by Magistrate Judge Gail J. Standish re Stipulation for Extension of Time to File Response/Reply 169 . Petitioners' supplemental brief is due by Thursday, November 15, 2018. (ec) (Entered: 10/31/2018)

11/07/2018

171 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 128 filed by David Marin, Elaine C. Duke, Thomas D. Homan, David W. Jennings, Jefferson B. Sessions, III. CCA # 18-55673. The parties shall address the basis of this court's jurisdiction over this appeal in their briefing. (iv) (Entered: 11/08/2018)

11/09/2018

172 STATUS REPORT on Full Compliance with Preliminary Injunction 75 filed by Respondents Elaine C. Duke, Thomas D. Homan, Sandra Hutchens, David W. Jennings, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 11/09/2018)

11/15/2018

173 SUPPLEMENT to MOTION to Compel Discovery 133 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attorney Katelyn N Rowe added to party Mony Neth(pty:pet))(Rowe, Katelyn) (Entered: 11/15/2018)

11/21/2018

174 NOTICE of Recent Decision In Support of Petitioners' Supplemental Brief to Motion to Compel Discovery filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A)(Rowe, Katelyn) (Entered: 11/21/2018)

11/29/2018 175 NOTICE Response to Notice of Decision filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Carilli, Joseph) (Entered: 11/29/2018)

12/10/2018

176 NOTICE by Magistrate Judge Gail J. Standish scheduling a Discovery Status Conference for 12/13/2018 at 2:00 PM before Magistrate Judge Gail J. Standish. Counsel shall meet and confer to set up a bridge line and provide the call in information to the Court. Additionally, counsel shall notify the Court Clerk via email at GJS_chambers@cacd.uscourts.gov of the name of each counsel appearing on the call. NOTE: During the telephone hearing, counsel must identify themselves before they speak for the benefit of the court and the court recorder/reporter.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ec) TEXT ONLY ENTRY (Entered: 12/10/2018)

12/11/2018

177 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 100 filed by David Marin, Sandra Hutchens, Elaine C. Duke, Thomas D. Homan, Scott R. Jones, David W. Jennings, Jefferson B. Sessions, III. CCA # 18-55389. Appellants' motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. (iv) (Entered: 12/12/2018)

12/13/2018

178 MINUTES OF Discovery StatusTelephone Conference held before Magistrate Judge Gail J. Standish regarding the Petitioner's Motion to Compel Discovery 133 . The Court confers with counsel regarding their supplemental briefing related to Petitioners' Motion to Compel Discovery [Dkt. 133]. The Court rules as follows: 1.The Court holds that Respondents have waived their objections to the discovery in question for the reasons stated on the record at both the initial hearing on Petitioners' motion and today's hearing. 2.Although the Court finds Respondents' relevance objections to be waived, the Court nevertheless also carefully considered the parties' arguments regarding relevance of the remaining topics. The Court finds Petitioners' arguments persuasive, and therefore finds that the discovery requests seek relevant information. Respondents are ordered to fully respond to the remaining discovery requests. (See order for details) Court Recorder: XTR. (ec) (Entered: 12/14/2018)

12/17/2018 179 TRANSCRIPT ORDER as to Respondent Elaine C. Duke, Thomas D. Homan, Sandra Hutchens for Court Smart (CS). (Liggett, Troy) (Entered: 12/17/2018)

12/17/2018

180 TRANSCRIPT ORDER as to Petitioner Nak Kim Chhoeun for Court Smart (CS). Court will contact Vincent Cordi at vcordi@sidley.com with further instructions regarding this order. Transcript preparation

will not begin until payment has been satisfied with the transcription company. (Cho, Darlene) (Entered: 12/17/2018)

12/21/2018

181 TRANSCRIPT for proceedings held on 12/13/2018. Court Reporter/Electronic Court Recorder: Exceptional Reporting Services, Inc., phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 1/11/2019. Redacted Transcript Deadline set for 1/22/2019. Release of Transcript Restriction set for 3/21/2019. (at) (Entered: 12/26/2018)

12/21/2018

182 NOTICE OF FILING TRANSCRIPT filed for proceedings 12/13/2018 re Transcript 181 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (at) TEXT ONLY ENTRY (Entered: 12/26/2018)

12/26/2018

183 EX PARTE APPLICATION to Stay Case pending Lapse in Appropriation filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order) (Liggett, Troy) (Entered: 12/26/2018)

12/27/2018

184 ORDER GRANTING RESPONDENTS' REQUEST FOR STAY 183 by Judge Cormac J. Carney: The Court GRANTS request. Respondents are ORDERED to meet and confer with Petitioners immediately. (MD JS-6. Case Terminated) (iv) (Entered: 12/27/2018)

12/31/2018

185 APPLICATION for Temporary Restraining Order as to enjoining the re-detention of any Class Member without notice filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Darlene Cho, # 2 Exhibit A to Cho Decl., # 3 Exhibit B to Cho Decl., # 4 Exhibit C to Cho Decl., # 5 Declaration of Kevin Chun Hoi Lo, # 6 Exhibit A to Lo Decl., # 7 Exhibit B to Lo Decl., # 8 Declaration of Anoop Prasad, # 9 Declaration of Jingni Zhao, # 10 Declaration of Chhay Kim, # 11 Declaration of Sear Un, # 12 Declaration of Sene Sem (redacted), # 13 Declaration of Soeun Neat (redacted), # 14 [PROPOSED] TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION) (Cho, Darlene) (Entered: 12/31/2018)

01/02/2019

186 EX PARTE APPLICATION to Stay Case pending Lapse in Appropriation (Briefing on Application for Temporary Restraining Order 185 ) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III.

(Attachments: # 1 Proposed Order) (Liggett, Troy) (Entered: 01/02/2019)

01/02/2019

187 OPPOSITION to EX PARTE APPLICATION to Stay Case pending Lapse in Appropriation (Briefing on Application for Temporary Restraining Order 185 ) 186 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A)(Cho, Darlene) (Entered: 01/02/2019)

01/02/2019

188 ORDER DIRECTING GOVERNMENT TO FILE A POSITION STATEMENT by Judge Cormac J. Carney. The Court defers its ruling on the Government's application until the Government advises the Court of its position regarding re-detention of any of the Petitioners during the Government shutdown. Accordingly, the Court hereby DIRECTS the Government to advise the Court no later than 12:00 noon on January 3, 2019, whether it will agree not to re-detain any of the Petitioners without notice until the Court, after receiving the Government's opposition, has an opportunity to issue a ruling on Petitioners' application for a temporary restraining order. (iv) (Entered: 01/02/2019)

01/03/2019

189 Position Statement filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III re: Order,, 188 (Attachments: # 1 Exhibit Form G-56)(Liggett, Troy) (Entered: 01/03/2019)

01/03/2019

190 ORDER GRANTING PETITIONERS' APPLICATION FOR A TEMPORARY RESTRAINING ORDER [Dkt. 185 ] by Judge Cormac J. Carney. IT IS HEREBY ORDERED that the Government shall show cause why a preliminary injunction should not issue pursuant to Federal Rule of Civil Procedure 65(a), restraining the Government from engaging in the activities that are the subject of the above restraining order. A hearing on the Order to Show Cause shall proceed in the United States Courthouse located at 350 West 1st Street, Los Angeles, California, Courtroom 7C, on Monday, January 28, 2019 at 1:30 p.m. The Government shall file and serve an opposition to the Courts Order on or before January 10, 2019. Petitioners shall file and serve any papers in reply on or before January 17, 2019. (iv) (Entered: 01/03/2019)

01/03/2019

191 MINUTES (IN CHAMBERS) ORDER DENYING GOVERNMENT'S EX PARTE APPLICATION AS MOOT 186 by Judge Cormac J. Carney. On January 2, 2019, the Government filed an ex parte application to stay briefing on Petitioners' application for a temporary restraining order. Because the Court granted Petitioners' application for

a temporary restraining order, the Government's ex parte application is DENIED AS MOOT. (iv) (Entered: 01/03/2019)

01/04/2019

192 Joint STIPULATION for Extension of Time to File Briefs on Order to Show Cause 190 , Joint STIPULATION to Vacate Hearing on Order to Show Cause Order on Motion for Temporary Restraining Order,,, 190 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 01/04/2019)

01/08/2019

193 ORDER GRANTING STIPULATED REQUEST FOR STAY AND VACATING HEARING 192 by Judge Cormac J. Carney. The request to stay briefing on the Court's Order to Show Cause is GRANTED. The January 28, 2018 hearing on the Order to Show Cause is VACATED. IT IS FURTHER ORDERED that the Temporary Restraining Order shall remain in effect up to and including the rescheduled hearing date on the Order to Show Cause, or until such further date as set by the Court or stipulated to by the parties. (iv) (Entered: 01/09/2019)

01/15/2019

194 Notice of Appearance or Withdrawal of Counsel: for attorney Michelle Y Cho counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Adding Michelle (Minju) Cho as counsel of record for Chhoeun, Neth, et al. for the reason indicated in the G-123 Notice. Filed by Plaintiff Chhoeun, Nak Kim. (Attorney Michelle Y Cho added to party Thy Chann(pty:pet), Attorney Michelle Y Cho added to party Saloeun Chea(pty:pet), Attorney Michelle Y Cho added to party Nak Kim Chhoeun(pty:pet), Attorney Michelle Y Cho added to party Norit Chin(pty:pet), Attorney Michelle Y Cho added to party Soka Dos(pty:pet), Attorney Michelle Y Cho added to party Bunchoeurn Hy(pty:pet), Attorney Michelle Y Cho added to party Thelh Keth(pty:pet), Attorney Michelle Y Cho added to party Pech Kha(pty:pet), Attorney Michelle Y Cho added to party Sokhan Khim(pty:pet), Attorney Michelle Y Cho added to party Lok Lim(pty:pet), Attorney Michelle Y Cho added to party Dala Loav(pty:pet), Attorney Michelle Y Cho added to party Kheang Lor(pty:pet), Attorney Michelle Y Cho added to party Mony Neth(pty:pet), Attorney Michelle Y Cho added to party Nhoueth Nhim(pty:pet), Attorney Michelle Y Cho added to party Tol Pech(pty:pet), Attorney Michelle Y Cho added to party Khun Sum(pty:pet), Attorney Michelle Y Cho added to party Tith Tang(pty:pet), Attorney Michelle Y Cho added to party Ang Thoeun(pty:pet), Attorney Michelle Y Cho added to party Thy

Vann(pty:pet), Attorney Michelle Y Cho added to party Samanang Yin(pty:pet))(Cho, Michelle) (Entered: 01/15/2019)

02/07/2019

195 STIPULATION for Order re Order to Show Cause Briefing and Deadlines for Filing Discovery Status Report, Objections to Magistrate Judge's Order and Rule 26(f) Report filed by Petitioners Nak Kim Chhoeun, Mony Neth.(Cho, Darlene) (Entered: 02/07/2019)

02/14/2019

196 ORDER RE: ORDER TO SHOW CAUSE BRIEFING AND DEADLINES FOR FILING DISCOVERY STATUS REPORT, OBJECTIONS TO MAGISTRATE JUDGES ORDER AND RULE 26(f) REPORT 195 by Judge Cormac J. Carney. The hearing on Petitioners' Order to Show Cause (Dkt. 193) is set for May 20, 2019 at 1:30 p.m. SEE ORDER FOR DETAILS. (iv) (Entered: 02/14/2019)

02/15/2019

197 JOINT REPORT Rule 26(f) Discovery Plan and Status Conference Statement ; estimated length of trial 11 days, filed by Petitioners Nak Kim Chhoeun, Mony Neth.. (Cho, Darlene) (Entered: 02/15/2019)

03/19/2019

198 MINUTES (IN CHAMBERS) ORDER LIFTING STAY by Judge Cormac J. Carney. On December 27, 2018, the Court granted the governments request to stay case due to the lapse of appropriations to the Department of Justice. Since funding to the Department of Justice has been restored, the stay that was in place is hereby LIFTED. MD JS5 Case Reopened. (iv) (Entered: 03/20/2019)

03/27/2019

199 SCHEDULING ORDER by Judge Cormac J. Carney. Discovery cutoff 1/2/2020. Motions due by 3/2/2020. Last date to conduct settlement conference is 2/4/2020. Pretrial Conference set for 4/6/2020 at 3:00 p.m. Bench Trial set for 4/14/2020 at 9:00 a.m. (gga) (Entered: 03/27/2019)

03/27/2019 200 ORDER REGARDING SETTLEMENT PROCEDURES, PRE-TRIAL CONFERENCE, AND TRIAL by Judge Cormac J. Carney. (gga) (Entered: 03/27/2019)

03/29/2019

203 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 128 filed by David Marin, Elaine C. Duke, Thomas D. Homan, David W. Jennings, Jefferson B. Sessions, III. CCA # 18-55673. Appellants' unopposed motion for voluntary dismissal is granted. This appeal is dismissed. (iv) (Entered: 04/02/2019)

04/01/2019

201 Notice of Appearance or Withdrawal of Counsel: for attorney Michael L Mallow counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Michael L. Mallow is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123

Notice. Filed by Petitioners Nak Kim Chhoeun and Mony Neth. (Mallow, Michael) (Entered: 04/01/2019)

04/01/2019

202 Notice of Appearance or Withdrawal of Counsel: for attorney Darlene M Cho counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Darlene M. Cho is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Petitioners Nak Kim Chhoeun and Mony Neth. (Cho, Darlene) (Entered: 04/01/2019)

04/03/2019 204 STIPULATION for Discovery as to ELECTRONICALLY STORED INFORMATION filed by Petitioner Nak Kim Chhoeun. (Attachments: # 1 Proposed Order)(Commons, Sean) (Entered: 04/03/2019)

04/04/2019 205 ORDER re Stipulation for Discovery 204 by Magistrate Judge Gail J. Standish. (ec) (Entered: 04/04/2019)

04/05/2019

206 STIPULATION to Vacate Order,, Set/Reset Deadlines/Hearings, 196 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Carilli, Joseph) (Entered: 04/05/2019)

04/10/2019

207 ORDER VACATING ORDER TO SHOW CAUSE, SETTING BRIEFING SCHEDULE, AND EXTENDING TEMPORARY RESTRAINING ORDER 206 by Judge Cormac J. Carney. The Order to Show Cause, Dkt. 190, and hearing scheduled for May 20, 2019, at 1:30 p.m., Dkt. 193, are VACATED. IT IS FURTHER ORDERED that the Temporary Restraining Order, Dkt. 190, shall remain in effect up to and including the hearing on the cross-motions for summary judgment, or until such further date as set by the Court or stipulated to by the parties. (iv) (Entered: 04/10/2019)

04/17/2019 208 STIPULATION for Protective Order filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III.(Carilli, Joseph) (Entered: 04/17/2019)

04/23/2019

209 Notice of Appearance or Withdrawal of Counsel: for attorney Sheri Porath Rockwell counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Adding Sheri Porath Rockwell as counsel of record for Nak Kim Chhoeun, Mony Neth for the reason indicated in the G-123 Notice. Filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attorney Sheri Porath Rockwell added to party Nak Kim Chhoeun(pty:pet), Attorney Sheri Porath Rockwell added to party Mony Neth(pty:pet))(Rockwell, Sheri) (Entered: 04/23/2019)

05/01/2019 210 Notice of Appearance or Withdrawal of Counsel: for attorney Alison Fiona Dame-Boyle counsel for Petitioners Nak Kim Chhoeun, Mony

Neth. Adding Alison F. Dame-Boyle as counsel of record for Nak Kim Chhoeun and Mony Neth for the reason indicated in the G-123 Notice. Filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attorney Alison Fiona Dame-Boyle added to party Nak Kim Chhoeun(pty:pet), Attorney Alison Fiona Dame-Boyle added to party Mony Neth(pty:pet))(Dame-Boyle, Alison) (Entered: 05/01/2019)

05/03/2019

211 STIPULATION REGARDING SELECTION of Panel Mediator filed. Parties request that the ADR Program assign a Panel Mediator from the following area of law: Class Actions. Filed by Petitioner Nak Kim Chhoeun(Rockwell, Sheri) (Entered: 05/03/2019)

05/06/2019

212 MINUTE ORDER IN CHAMBERS by Magistrate Judge Gail J. Standish regarding the Parties' May 4, 2019 email. Given the information contained in the e-mail, the Court sets the following schedule for Respondent's motion for leave to propound discovery on absent class members: Respondent's motion to be filed no later than Monday, May 13, 2019; Petitioners' opposition to be filed no later than Monday, May 20, 2019; Respondent's Reply to be filed no later than Monday, May 27, 2019; Hearing on the motion will be held on Wednesday, June 5, 2019, at 2:30 pm. (ec) (Entered: 05/06/2019)

05/13/2019

213 EX PARTE APPLICATION to Exceed Page Limitation Respondent's Motion to Serve Discovery on Eleven Absent Class Members (UNOPPOSED) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Motion for Leave to Serve Discovery on Eleven Absent Class Members, # 4 Motion Ex. A - Declarations, # 5 Motion Ex. B - Attorney Declaration, # 6 Motion Ex. C - Discovery Response Excerpts, # 7 Motion Ex. D Proposed Interrogatories, # 8 Motion Ex. E - Proposed Requests for Production)(Liggett, Troy) (Entered: 05/13/2019)

05/14/2019 214 ORDER by Magistrate Judge Gail J. Standish: granting 213 Ex Parte Application for Leave to File Excess Pages. Respondents may now file their Motion with Attachments. (ec) (Entered: 05/14/2019)

05/14/2019

215 NOTICE OF MOTION AND MOTION for Leave to to Serve Discovery on Eleven Absent Class Members filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. Motion set for hearing on 6/5/2019 at 02:30 PM before Magistrate Judge Gail J. Standish. (Attachments: # 1 Exhibit - Absent Class Member Declarations, # 2 Declaration of Attorney Liggett, # 3 Exhibit - Discovery Response Excerpts, # 4 Exhibit Proposed Interrogatories, # 5 Exhibit - Proposed Requests for Production, # 6 Proposed Order)(Liggett, Troy) (Entered: 05/14/2019)

05/17/2019

216 STIPULATION FOR ORDER TO EXTEND TIME FOR PARTIES TO FILE BRIEFS RE RESPONDENTS' MOTION FOR LEAVE TO SERVE DISCOVERY re MOTION for Leave to to Serve Discovery on Eleven Absent Class Members 215 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order Re Extension for Briefs on Discovery Motion)(Rockwell, Sheri) (Entered: 05/17/2019)

05/17/2019

217 ORDER by Magistrate Judge Gail J. Standish re Stipulation to Extend Time to Respond to Motion for Leave to Serve Discovery 216 . Briefs regarding Respondents' Motion for Leave to Serve Discovery on Eleven Absent Class Members (Dkt. 215) are extended as follows: (a) Petitioners opposition to be filed no later than Tuesday, May 21, 2019, and (b) Respondents reply to be filed no later than Tuesday, May 28, 2019. The hearing remains set for June 5, 2019. (ec) (Entered: 05/17/2019)

05/21/2019

218 Opposition re: MOTION for Leave to to Serve Discovery on Eleven Absent Class Members 215 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Jingni Zhao in Support of Petitioners' Opposition Motion)(Rowe, Katelyn) (Entered: 05/21/2019)

05/28/2019

219 REPLY in support of MOTION for Leave to to Serve Discovery on Eleven Absent Class Members 215 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 05/28/2019)

05/30/2019

220 Notice of Appearance or Withdrawal of Counsel: for attorney Stephen Chang counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Adding Stephen Chang as counsel of record for Nak Kim Chhoeun, Mony Neth for the reason indicated in the G-123 Notice. Filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attorney Stephen Chang added to party Nak Kim Chhoeun(pty:pet), Attorney Stephen Chang added to party Mony Neth(pty:pet))(Chang, Stephen) (Entered: 05/30/2019)

06/05/2019

221 MINUTES OF Motion Hearing held before Magistrate Judge Gail J. Standish: granting in part and denying in part 215 Motion for Leave. With respect to the service of limited discovery as to certain absent class members who have submitted declarations in earlier proceedings, the Court directs as follows: 1. Counsel are directed to meet and confer to identify specifically which absent class members submitted declarations in support of the TRO (the Court understands that one new declaration was submitted and a few additional declarations that were used in the original, pre-certification motion practice were re-submitted in support of this application); and further attempt to narrow the scope of interrogatories and documents requests that Respondent proposes as

discussed on the record. (See order for details) Court Recorder: CS Roybal Courtroom 640. (ec) (Entered: 06/06/2019)

06/12/2019

222 Notice of Appearance or Withdrawal of Counsel: for attorney Stephen Chang counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Stephen Chang is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Nak Kim Chhoeun, Mony Neth, et al.. (Chang, Stephen) (Entered: 06/12/2019)

06/17/2019

223 TRANSCRIPT ORDER as to Respondent Elaine C. Duke for Court Smart (CS). Court will contact Troy Liggett at Troy.Liggett@usdoj.gov with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Liggett, Troy) (Entered: 06/17/2019)

06/26/2019

224 TRANSCRIPT for proceedings held on 6/5/19 2:31 p.m.. Court Reporter/Electronic Court Recorder: EXCEPTIONAL REPORTING SERVICES, INC, phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 7/17/2019. Redacted Transcript Deadline set for 7/29/2019. Release of Transcript Restriction set for 9/24/2019. (ha) (Entered: 06/26/2019)

06/26/2019

225 NOTICE OF FILING TRANSCRIPT filed for proceedings 6/5/19 2:31 P.M. re Transcript 224 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ha) TEXT ONLY ENTRY (Entered: 06/26/2019)

06/27/2019

226 Notice of Appearance or Withdrawal of Counsel: for attorney Rara Kang counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Adding Rara Kang as counsel of record for Petitioners for the reason indicated in the G-123 Notice. Filed by Petitioners Nak Kim Chhoeun, et al.. (Attorney Rara Kang added to party Thy Chann(pty:pet), Attorney Rara Kang added to party Saloeun Chea(pty:pet), Attorney Rara Kang added to party Nak Kim Chhoeun(pty:pet), Attorney Rara Kang added to party Norit Chin(pty:pet), Attorney Rara Kang added to party Soka Dos(pty:pet), Attorney Rara Kang added to party Bunchoeurn Hy(pty:pet), Attorney Rara Kang added to party Thelh Keth(pty:pet), Attorney Rara Kang

added to party Pech Kha(pty:pet), Attorney Rara Kang added to party Sokhan Khim(pty:pet), Attorney Rara Kang added to party Lok Lim(pty:pet), Attorney Rara Kang added to party Dala Loav(pty:pet), Attorney Rara Kang added to party Kheang Lor(pty:pet), Attorney Rara Kang added to party Mony Neth(pty:pet), Attorney Rara Kang added to party Nhoueth Nhim(pty:pet), Attorney Rara Kang added to party Tol Pech(pty:pet), Attorney Rara Kang added to party Khun Sum(pty:pet), Attorney Rara Kang added to party Tith Tang(pty:pet), Attorney Rara Kang added to party Ang Thoeun(pty:pet), Attorney Rara Kang added to party Thy Vann(pty:pet), Attorney Rara Kang added to party Samanang Yin(pty:pet))(Kang, Rara) (Entered: 06/27/2019)

06/27/2019

227 Notice of Appearance or Withdrawal of Counsel: for attorney Lauren Marie De Lilly counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Adding Lauren M. De Lilly as counsel of record for Nak Kim Chhoeun, et al. for the reason indicated in the G123 Notice. Filed by Petitioners Nak Kim Chhoeun, et al.. (Attorney Lauren Marie De Lilly added to party Thy Chann(pty:pet), Attorney Lauren Marie De Lilly added to party Saloeun Chea(pty:pet), Attorney Lauren Marie De Lilly added to party Nak Kim Chhoeun(pty:pet), Attorney Lauren Marie De Lilly added to party Norit Chin(pty:pet), Attorney Lauren Marie De Lilly added to party Soka Dos(pty:pet), Attorney Lauren Marie De Lilly added to party Bunchoeurn Hy(pty:pet), Attorney Lauren Marie De Lilly added to party Thelh Keth(pty:pet), Attorney Lauren Marie De Lilly added to party Pech Kha(pty:pet), Attorney Lauren Marie De Lilly added to party Sokhan Khim(pty:pet), Attorney Lauren Marie De Lilly added to party Lok Lim(pty:pet), Attorney Lauren Marie De Lilly added to party Dala Loav(pty:pet), Attorney Lauren Marie De Lilly added to party Kheang Lor(pty:pet), Attorney Lauren Marie De Lilly added to party Mony Neth(pty:pet), Attorney Lauren Marie De Lilly added to party Nhoueth Nhim(pty:pet), Attorney Lauren Marie De Lilly added to party Tol Pech(pty:pet), Attorney Lauren Marie De Lilly added to party Khun Sum(pty:pet), Attorney Lauren Marie De Lilly added to party Tith Tang(pty:pet), Attorney Lauren Marie De Lilly added to party Ang Thoeun(pty:pet), Attorney Lauren Marie De Lilly added to party Thy Vann(pty:pet), Attorney Lauren Marie De Lilly added to party Samanang Yin(pty:pet))(De Lilly, Lauren) (Entered: 06/27/2019)

07/03/2019

228 STATUS REPORT Regarding Court-Ordered Mediation filed by Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech,

Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. (Rockwell, Sheri) (Entered: 07/03/2019)

07/10/2019

229 Notice of Appearance or Withdrawal of Counsel: for attorney Katelyn N Rowe counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Katelyn N. Rowe is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Nak Kim Chhoeun, Mony Neth. (Rowe, Katelyn) (Entered: 07/10/2019)

07/16/2019

230 Notice of Appearance or Withdrawal of Counsel: for attorney Nicole K Ochi counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Nicole Ochi is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G123 Notice. Filed by Petitioner Chhoeun, et al.. (Ochi, Nicole) (Entered: 07/16/2019)

07/17/2019

231 ORDER GRANTING, IN PART, RESPONDENTS' MOTION FOR LEAVE TO SERVE DISCOVERY ON ABSENT CLASS MEMBERS 215 by Magistrate Judge Gail J. Standish. (ec) (Entered: 07/17/2019)

07/29/2019

232 STIPULATION to Strike filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 07/29/2019)

07/30/2019

233 STIPULATED ORDER 232 by Judge Cormac J. Carney. The following declarations submitted by class counsel in this litigation shall be deemed stricken from the record and withdrawn from future use or consideration in any pleading or argument before this Court. SEE ORDER FOR DETAILS. (iv) (Entered: 07/31/2019)

08/30/2019

234 STIPULATION for Extension of Time to File CROSS-MOTIONS FOR SUMMARY JUDGMENT filed by PETITIONERS Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order)(Rockwell, Sheri) (Entered: 08/30/2019)

09/03/2019

237 ORDER RE DEADLINES FOR CROSS-MOTIONS FOR SUMMARY JUDGMENT 234 by Judge Cormac J. Carney. Petitioners' Motion for Summary Judgment: 10/23/19. Respondents' Cross Motion for Summary Judgment and Response to Petitioners' Motion: 11/18/19. Petitioners' Response and Reply: 12/6/19. Respondents' Reply: 12/20/19. IT IS FURTHER ORDERED that the hearing on the cross-

motions is set for January 13, 2020, at 1:30 p.m. (iv) (Entered: 09/05/2019)

09/04/2019

235 Notice of Appearance or Withdrawal of Counsel: for attorney Mohindra Rupram counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Adding Mohindra Rupram as counsel of record for Petitioners for the reason indicated in the G-123 Notice. Filed by Plaintiff Nak Kim Chhoeun, Mony Neth, et al.. (Attorney Mohindra Rupram added to party Thy Chann(pty:pet), Attorney Mohindra Rupram added to party Saloeun Chea(pty:pet), Attorney Mohindra Rupram added to party Nak Kim Chhoeun(pty:pet), Attorney Mohindra Rupram added to party Norit Chin(pty:pet), Attorney Mohindra Rupram added to party Soka Dos(pty:pet), Attorney Mohindra Rupram added to party Bunchoeurn Hy(pty:pet), Attorney Mohindra Rupram added to party Thelh Keth(pty:pet), Attorney Mohindra Rupram added to party Pech Kha(pty:pet), Attorney Mohindra Rupram added to party Sokhan Khim(pty:pet), Attorney Mohindra Rupram added to party Lok Lim(pty:pet), Attorney Mohindra Rupram added to party Dala Loav(pty:pet), Attorney Mohindra Rupram added to party Kheang Lor(pty:pet), Attorney Mohindra Rupram added to party Mony Neth(pty:pet), Attorney Mohindra Rupram added to party Nhoueth Nhim(pty:pet), Attorney Mohindra Rupram added to party Tol Pech(pty:pet), Attorney Mohindra Rupram added to party Khun Sum(pty:pet), Attorney Mohindra Rupram added to party Tith Tang(pty:pet), Attorney Mohindra Rupram added to party Ang Thoeun(pty:pet), Attorney Mohindra Rupram added to party Thy Vann(pty:pet), Attorney Mohindra Rupram added to party Samanang Yin(pty:pet))(Rupram, Mohindra) (Entered: 09/04/2019)

09/05/2019

236 NOTICE by Magistrate Judge Gail J. Standish scheduling a PreDiscovery Motion Telephone Conference regarding the parties' September 4, 2019 email for 9/9/2019 10:30 PM AM/PM before Magistrate Judge Gail J. Standish. Counsel shall meet and confer to set up a bridge line and provide the call in information to the Court. Additionally, counsel shall notify the Court Clerk via email at GJS_chambers@cacd.uscourts.gov of the name of each counsel appearing on the call. NOTE: During the telephone hearing, counsel must identify themselves before they speak for the benefit of the court and the court recorder/reporter.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ec) TEXT ONLY ENTRY (Entered: 09/05/2019)

09/05/2019

238 Notice of Appearance or Withdrawal of Counsel: for attorney Christopher M Lapinig counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Christopher M. Lapinig is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Chhoeun, et al.. (Lapinig, Christopher) (Entered: 09/05/2019)

09/05/2019

239 NOTICE OF ERRATA filed by Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. correcting Notice of Appearance or Withdrawal of Counsel (G-123),, 238 (Attachments: # 1 Exhibit)(Lapinig, Christopher) (Entered: 09/05/2019)

09/05/2019

240 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance or Withdrawal of Counsel (G123),, 238 . The following error(s) was/were found: Notice of Appearance or Withdrawal of Counsel is incomplete and not signed. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ak) (Entered: 09/05/2019)

09/26/2019

241 Joint STIPULATION to Strike filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 09/26/2019)

10/01/2019 243 STIPULATED ORDER 241 by Judge Cormac J. Carney. The Court finds good cause to grant the stipulated requests therein. SEE ORDER FOR DETAILS. (iv) (Entered: 10/02/2019)

10/02/2019

242 STIPULATION to Strike filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Carilli, Joseph) (Entered: 10/02/2019)

10/10/2019

244 Notice of Appearance or Withdrawal of Counsel: for attorney Michelle Y Cho counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy

Vann, Samanang Yin. Michelle (Minju) Cho is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Counsel of record Michelle (Minju) Cho. (Cho, Michelle) (Entered: 10/10/2019)

10/15/2019 245 NOTICE OF ASSIGNMENT of Panel Mediator. Mediator (ADR Panel) Shirish Gupta has been assigned to serve as Panel Mediator. (mb) (Entered: 10/15/2019)

10/15/2019

246 Notice of Electronic Filing re Notice of Assignment of Panel Mediator(ADR-11) 245 e-mailed to Michelle Cho bounced due to No longer with firm. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (lmh) TEXT ONLY ENTRY (Entered: 10/15/2019)

10/16/2019

247 NOTICE OF MOTION AND MOTION to Compel Production of Redacted Documents filed by Petitioners Nak Kim Chhoeun, Mony Neth. Motion set for hearing on 11/13/2019 at 10:00 AM before Magistrate Judge Gail J. Standish. (Attachments: # 1 Declaration of Rara Kang in Support of Petitioners' Motion to Compel Production of Redacted Documents, # 2 Exhibit A to Kang Declaration, # 3 Exhibit B to Kang Declaration, # 4 Exhibit C to Kang Declaration, # 5 Exhibit D to Kang Declaration, # 6 Exhibit E to Kang Declaration, # 7 Exhibit F to Kang Declaration, # 8 Exhibit G to Kang Declaration, # 9 Exhibit H to Kang Declaration, # 10 Proposed Order Granting Petitioners' Motion to Compel Production of Redacted Documents)(Kang, Rara) (Entered: 10/16/2019)

10/17/2019 248 STIPULATED ORDER 242 by Judge Cormac J. Carney. SEE ORDER FOR DETAILS. (iv) (Entered: 10/18/2019)

10/23/2019

249 EX PARTE APPLICATION to Exceed Page Limitation filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Memorandum, # 4 Declaration, # 5 Declaration) (Carilli, Joseph) (Entered: 10/23/2019)

10/23/2019

250 NOTICE OF MOTION AND MOTION for Summary Judgment as to Predetention Notice filed by Petitioners Nak Kim Chhoeun, Mony Neth. Motion set for hearing on 1/13/2020 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Statement of Uncontroverted Facts, # 2 Proposed Order) (Commons, Sean) (Entered: 10/23/2019)

10/23/2019

251 DECLARATION of Sean Commons in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to Predetention Notice 250 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit 1-40, # 2 Exhibit 41-71)(Commons, Sean) (Entered: 10/23/2019)

10/23/2019 252 APPLICATION to file document Designated by Respondents under seal filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order)(Kang, Rara) (Entered: 10/23/2019)

10/23/2019

253 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Designated by Respondents under seal 252 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A-L, # 2 Exhibit M-W)(Kang, Rara) (Entered: 10/23/2019)

10/25/2019

254 Notice of Appearance or Withdrawal of Counsel: for attorney Gerry Benjamin Hirschfeld counsel for Petitioners Nak Kim Chhoeun, Mony Neth. Adding Gerry B. Hirschfeld as counsel of record for Nak Kim Chhoeun, Mony Neth for the reason indicated in the G-123 Notice. Filed by Petitioner Nak Kim Chhoeun, Mony Neth. (Attorney Gerry Benjamin Hirschfeld added to party Nak Kim Chhoeun(pty:pet), Attorney Gerry Benjamin Hirschfeld added to party Mony Neth(pty:pet))(Hirschfeld, Gerry) (Entered: 10/25/2019)

10/25/2019 255 ORDER by Magistrate Judge Gail J. Standish: granting 249 Ex Parte Application for Leave to File Excess Pages. (ec) (Entered: 10/25/2019)

10/25/2019

256 OPPOSITION to MOTION to Compel Production of Redacted Documents 247 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit, # 2 Exhibit)(Carilli, Joseph) (Entered: 10/25/2019)

10/28/2019 257 NOTICE OF LODGING filed re Response in Opposition to Motion, 256 (Attachments: # 1 Exhibit)(Carilli, Joseph) (Entered: 10/28/2019)

10/30/2019

258 EX PARTE APPLICATION for Extension of Time to File Declaration under Local Rule 79-5.2.2(b)(i) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order) (Liggett, Troy) (Entered: 10/30/2019)

10/30/2019

259 EX PARTE APPLICATION to Exceed Page Limitation on Petitioners' Reply in Support of Petitioners' Motion to Compel Production of Redacted Documents filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Rara Kang in Support of Petitioners' Unopposed Ex Parte Application to Enlarge Page Limit on

Reply, # 2 Proposed Order Granting Petitioners' Unopposed Ex Parte Application to Enlarge Page Limit on Reply, # 3 Petitioners' proposed Reply in Support of Petitioners' Motion to Compel Production of Redacted Documents, # 4 Supplemental Declaration of Rara Kang in Support of Petitioners' Motion to Compel Production of Redacted Documents)(Kang, Rara) (Entered: 10/30/2019)

10/31/2019 260 ORDER by Magistrate Judge Gail J. Standish: granting 259 Ex Parte Application for Leave to File Excess Pages. (ec) (Entered: 10/31/2019)

10/31/2019

261 REPLY in support of MOTION to Compel Production of Redacted Documents 247 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Supplemental Declaration of Rara Kang in Support of Petitioners' Motion to Compel Production of Redacted Documents)(Kang, Rara) (Entered: 10/31/2019)

10/31/2019

262 ORDER GRANTING EX PARTE APPLICATION 258 by Judge Cormac J. Carney. Respondents shall file a declaration under Local Rule 79-5.2.2(b)(i) no later than November 18, 2019. (iv) (Entered: 10/31/2019)

10/31/2019

263 REQUEST TO WITHDRAW ATTORNEY Laboni A. Hoq as counsel of record filed by Plaintiff Nak Kim Chhoeun. Request set for hearing on 11/27/2019 at 01:00 PM before Judge Cormac J. Carney. (Attachments: # 1 Proposed Order) (Hoq, Laboni) (Entered: 10/31/2019)

11/05/2019

264 ORDER ON REQUEST FOR APPROVAL OF SUBSTITUTION OR WITHDRAWAL OF ATTORNEY 263 by Judge Cormac J. Carney. The request of Nak Kim Chhoeun to substitute Winifred Kao as attorney of record instead of Laboni Hoq is GRANTED. (iv) (Entered: 11/06/2019)

11/13/2019

267 MINUTES OF Discovery Hearing held before Magistrate Judge Gail J. Standish Re Petitioners' Motion to Compel 247 . The parties will follow the following procedure, as set forth more fully at the hearing. Defendant shall log the documents and may annotate those entries for which Defendant contends Plaintiffs have already received either duplicate documents or the substance of the information through third party subpoenas. The log will be provided to Petitioners counsel for review. The parties may thereafter file supplemental briefs of up to 15 pages concerning the documents at issue, and Defendant will provide the documents to the Court for in camera review (in the format discussed at the hearing). The parties are to provide a joint email to the Court with a proposed schedule for the supplemental briefing and provision of the documents to the Court by no later than Wednesday,

November 20, 2019. Court Recorder: CS Roybal Courtroom 640. (efc) (Entered: 11/15/2019)

11/14/2019

265 TRANSCRIPT ORDER as to Petitioners Nak Kim Chhoeun, Mony Neth for Court Smart (CS). Court will contact Claudia Espinoza at cvespinoza@sidley.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Kang, Rara) (Entered: 11/14/2019)

11/15/2019

266 Joint STIPULATION for Extension of Time to File Cross-Motion for Summary Judgment, Responses, and Replies filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 11/15/2019)

11/18/2019

268 Second EX PARTE APPLICATION for Extension of Time to File Declaration Under Local Rule 79-5.2.2(b)(i) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order) (Carilli, Joseph) (Entered: 11/18/2019)

11/18/2019

269 ORDER RESETTING DEADLINES FOR CROSS-MOTIONS FOR SUMMARY JUDGMENT AND EXTENDING TEMPORARY RESTRAINING ORDER 266 by Judge Cormac J. Carney. Respondents' Cross-Motion for Summary Judgment and Response to Petitoner's Motion 11/26/19. Petitioner's Response and Reply 12/19/19. Respondents' Reply 1/13/20. Hearing on Cross-Motions 1/27/20 at 1:30 p.m. (iv) (Entered: 11/19/2019)

11/19/2019

270 ORDER GRANTING EX PARTE APPLICATION 268 by Judge Cormac J. Carney. Respondents shall file a declaration under Local Rule 79-5.2.2(b)(i) no later than December 4, 2019. (iv) (Entered: 11/20/2019)

11/20/2019

271 TRANSCRIPT for proceedings held on 11/13/19 10:03 A.M.. Court Reporter/Electronic Court Recorder: JAMS CERTIFIED TRANSCRIPTION, phone number (661) 609-4528. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/11/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for 2/18/2020. (lca) (Entered: 11/21/2019)

11/20/2019 272 NOTICE OF FILING TRANSCRIPT filed for proceedings 10/13/19 10:03 A.M. re Transcript 271 THERE IS NO PDF DOCUMENT

ASSOCIATED WITH THIS ENTRY. (lca) TEXT ONLY ENTRY (Entered: 11/21/2019)

11/21/2019

273 MINUTE ORDER IN CHAMBERS by Magistrate Judge Gail J. Standish re Court's Discovery Hearing Order 267 and with the agreement of the parties sets the following schedule: On or before, Tuesday, November 25, 2019, Respondents shall provide the document index to Petitioners with Respondents' annotations. On or before, Tuesday, December 3, 2019, Petitioners shall provide comments regarding the index in response to Respondents' annotations. On or before, Tuesday, December 10, 2019, Respondents shall lodge the document index and documents with the Court. At that time, they may also file the supplemental briefing regarding log entries that were discussed at the hearing. (efc) (Entered: 11/21/2019)

11/26/2019

274 Notice of Appearance or Withdrawal of Counsel: for attorney Melanie Chun-Yu Kim counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Melanie Chun-Yu Kim is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Petitioners Nak Kim Chhoeun, Mony Neth, et al. (Kim, Melanie) (Entered: 11/26/2019)

11/26/2019

275 EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Exhibit Proposed Brief, # 3 Proposed Order) (Liggett, Troy) (Entered: 11/26/2019)

11/26/2019

276 STATEMENT of of Uncontroverted Facts and Conclusions of Law EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response 275 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 11/27/2019)

11/27/2019

277 STATEMENT of Genuine Disputes EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response 275 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 11/27/2019)

11/27/2019

278 DECLARATION of Joseph F. Carilli, Jr. in support of EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response 275 and Exhibits 1-49 filed by Respondents Elaine C. Duke,

Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 11/27/2019)

11/27/2019

279 PROPOSED ORDER re EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response 275 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 11/27/2019)

11/27/2019

280 Opposition in opposition to re: EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response 275 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Rara Kang in Support of Petitioners' Opposition to Respondents' Ex Parte Application, # 2 Exhibit A to Kang Declaration, # 3 Exhibit B to Kang Declaration, # 4 Exhibit C to Kang Declaration, # 5 Exhibit D to Kang Declaration, # 6 Exhibit E to Kang Declaration, # 7 Exhibit F to Kang Declaration, # 8 Exhibit G to Kang Declaration, # 9 Proposed Order re Respondents' Ex Parte Application)(Kang, Rara) (Entered: 11/27/2019)

11/29/2019

281 REPLY Support of EX PARTE APPLICATION to Exceed Page Limitation Cross-Motion and Response 275 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Declaration)(Liggett, Troy) (Entered: 11/29/2019)

12/02/2019

282 ORDER DENYING GOVERNMENT'S EX PARTE APPLICATION 275 AND STRIKING PORTIONS OF PROPOSED BRIEF by Judge Cormac J. Carney. The application is DENIED. (iv) (Entered: 12/02/2019)

12/04/2019

283 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Designated by Respondents under seal 252 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Carilli, Joseph) (Entered: 12/04/2019)

12/05/2019

284 Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. Motion set for hearing on 1/27/2020 at 01:30 PM before Judge Cormac J. Carney. (Liggett, Troy) (Entered: 12/05/2019)

12/10/2019 285 SUPPLEMENT to MOTION to Compel Production of Redacted Documents 247 Petitioners' Supplemental Brief in Support of Motion to

Compel Production of Redacted Documents filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Kang, Rara) (Entered: 12/10/2019)

12/10/2019

286 OPPOSITION to MOTION to Compel Production of Redacted Documents 247 Supplement filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, Jefferson B. Sessions, III. (Carilli, Joseph) (Entered: 12/10/2019)

12/12/2019

287 MEDIATION REPORT Filed by Mediator (ADR Panel) Shirish Gupta: Mediation held on 12/2/19. The parties are unable to reach an agreement at this time. Counsel: Please evaluate the effectiveness of the ADR Program by completing a survey on your mediation experience. To access the survey, click on the following link: MediationParticipantSurvey(Gupta, Shirish) (Entered: 12/12/2019)

12/13/2019 288 STIPULATION for Extension of Time to File filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order)(Rockwell, Sheri) (Entered: 12/13/2019)

12/16/2019

289 ORDER TO EXTEND DATES FOR HEARING ON AND RESPONSES TO CROSS-MOTIONS FOR SUMMARY JUDGMENT AND TO RESET TRIAL DATE 288 by Judge Cormac J. Carney. Petitioners' Response and Reply: 1/21/20; Respondents Reply: 2/17/20.IT IS FURTHER ORDERED that the hearing on the crossmotions is set for March 2, 2020, at 1:30 p.m. IT IS FURTHER ORDERED that the Temporary Restraining Order, Dkt. 190, shall remain in effect up to and including the hearing on the cross-motions for summary judgment, or until such further date as set by the Court or stipulated to by the parties. (iv) (Entered: 12/17/2019)

12/18/2019

290 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Motion for Summary Judgment 284 . The following error(s) was/were found: Proposed order not submitted pursuant to Local Rule 52-4.1. A Word or Wordperfect version of the proposed order should also be emailed to the chambers generic email address. See Local Rule 5-4.4.1- Electronic Lodging of Proposed Orders. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. (iv) (Entered: 12/18/2019)

12/20/2019

291 NOTICE OF ERRATA filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. correcting Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 284 , Statement (Motion related), 276 , Statement (Motion related), 277 ,

Declaration (Motion related), 278 (Attachments: # 1 Declaration)(Liggett, Troy) (Entered: 12/20/2019)

12/20/2019

292 Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. Motion set for hearing on 3/2/2020 at 01:30 PM before Judge Cormac J. Carney. (Liggett, Troy) (Entered: 12/20/2019)

12/20/2019

293 STATEMENT of of Uncontroverted Facts and Conclusions of Law Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 292 (Corrected) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 12/20/2019)

12/20/2019

294 STATEMENT of Genuine Disputes Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 292 (Corrected) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 12/20/2019)

12/20/2019

295 DECLARATION of Joseph F. Carilli, Jr. in support of Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 292 and Exhibits 1 through 49 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 12/20/2019)

01/08/2020

296 NOTICE by Magistrate Judge Gail J. Standish scheduling a Discovery Telephone Conference regarding Petitioners' Motion to Compel 247 for 1/10/2020 11:00 AM before Magistrate Judge Gail J. Standish. Counsel shall meet and confer to set up a bridge line and provide the call in information to the Court. Additionally, counsel shall notify the Court Clerk via email at GJS_chambers@cacd.uscourts.gov of the name of each counsel appearing on the call. NOTE: During the telephone hearing, counsel must identify themselves before they speak for the benefit of the court and the court recorder/reporter. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (efc) TEXT ONLY ENTRY (Entered: 01/08/2020)

01/09/2020

297 NOTICE OF ERRATA filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. correcting Declaration (Motion related), 295 , Statement (Motion related), 293 , Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to Question for which Class was Certified 149 and RESPONSE to Petitioners' Motion for Summary Judgment 250 292 (Attachments: # 1 Declaration)(Liggett, Troy) (Entered: 01/09/2020)

01/09/2020

298 Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. Motion set for hearing on 3/2/2020 at 01:30 PM before Judge Cormac J. Carney. (Liggett, Troy) (Entered: 01/09/2020)

01/09/2020

299 STATEMENT of of Uncontroverted Facts and Conclusions of Law Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 (Corrected) filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 01/09/2020)

01/09/2020

300 STATEMENT of Genuine Disputes Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 01/09/2020)

01/09/2020

301 DECLARATION of Joseph F. Carilli, Jr. in support of Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 and Exhibits 1 through 49 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 01/09/2020)

01/10/2020

302 NOTICE OF LODGING filed Proposed Order re Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 01/10/2020)

01/10/2020 303 MINUTES OF Telephone Conference before Magistrate Judge Gail J. Standish re document review in camera related to 247 Motion to

Compel. The Court confers with counsel regarding the in-camera documents received on December 10, 2019, pursuant to this Court's Order of November 21, 2019 (Dkt. 273). For the reasons set forth fully on the record, the Court finds and orders as follows: 1. The Court reiterates that it previously found that Respondents objections were waived, and that this in camera review was primarily for purposes of determining whether any of the withheld documents contained information that, if produced, would present a threat to national security (National Security Documents). None of the documents provided which were also described in the Privilege Log provided to the Court concurrently with the documents qualify as National Security Documents. (See order for full details) Court Recorder: XTR. (efc) (Entered: 01/10/2020)

01/13/2020 304 TRANSCRIPT ORDER re: Court of Appeals case number 18-55389, 18-55673, as to Respondent David Marin DCN number: 267 for Court Smart (CS). (Carilli, Joseph) (Entered: 01/13/2020)

01/13/2020

305 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Transcript Order Form (G-120) 304 . The following errors were found: THERE IS NO HEARING DATE, JUDGE, COURT REPORTER/ELECTRONIC RECORDER LISTED ON THE TRANSCRIPT ORDER FORM (G-120). You must electronically refile the above referenced Request for Transcript in this case to correct this deficiency. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ls) TEXT ONLY ENTRY (Entered: 01/13/2020)

01/21/2020

306 REPLY and Response Re: Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 , NOTICE OF MOTION AND MOTION for Summary Judgment as to Predetention Notice 250 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Commons, Sean) (Entered: 01/21/2020)

01/21/2020

307 STATEMENT of Genuine Disputes in Opposition to Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Commons, Sean) (Entered: 01/21/2020)

01/21/2020

308 STATEMENT of Reply to Respondents' Second Corrected Statement of Genuine Disputes in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to Predetention Notice 250 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Commons, Sean) (Entered: 01/21/2020)

01/21/2020

309 DECLARATION of Sean A. Commons (Supplemental) in Support of Response and Reply Re: Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 , NOTICE OF MOTION AND MOTION for Summary Judgment as to Predetention Notice 250 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit 1 40)(Commons, Sean) (Entered: 01/21/2020)

01/21/2020 310 APPLICATION to file document Designated by Respondents under seal filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order)(Kang, Rara) (Entered: 01/21/2020)

01/21/2020

311 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Designated by Respondents under seal 310 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Exhibit A - Q)(Kang, Rara) (Entered: 01/21/2020)

01/27/2020

312 EX PARTE APPLICATION for Extension of Time to File L.R. 79.5-22 Declaration filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Carilli, Joseph) (Entered: 01/27/2020)

01/28/2020 313 ORDER 312 by Judge Cormac J. Carney. Respondents shall file a declaration under Local Rule 79-5.2.2(b)(i) no later than January 31, 2020. (iv) (Entered: 01/28/2020)

01/29/2020

314 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Designated by Respondents under seal 310 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Carilli, Joseph) (Entered: 01/29/2020)

02/17/2020

315 STATEMENT of in Response to Petitioners' Statement of Genuine Disputes Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A)(Carilli, Joseph) (Entered: 02/17/2020)

02/17/2020

316 REPLY in support of Cross NOTICE OF MOTION AND MOTION for Summary Judgment as to as to Question for which Class was Certified and RESPONSE to Petitioners' Motion for Summary Judgment 250 298 filed by Respondents Elaine C. Duke, Thomas D. Homan, David W.

Jennings, David Marin, Jefferson B. Sessions, III. (Liggett, Troy) (Entered: 02/17/2020)

03/02/2020

317 MINUTES OF PETITIONER'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 250 ; RESPONDENTS CROSS MOTION FOR SUMMAR JUDGMENT AS TO QUESTION FOR WHICH CLASS WAS CERTIFIED 298 held before Judge Cormac J. Carney. Motions hearing held. The Court hears oral argument from the parties. The Court takes the Motions under submission. Order to issue. Court Reporter: Debbie Hino-Spaan. (iv) (Entered: 03/03/2020)

03/03/2020

318 TRANSCRIPT ORDER as to Petitioners Nak Kim Chhoeun, Mony Neth for Court Reporter. Court will contact Claudia Espinoza at cvespinoza@sidley.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Kang, Rara) (Entered: 03/03/2020)

03/04/2020

319 ORDER GRANTING PETITIONERS' MOTION FOR SUMMARY JUDGMENT 250 AND DENYING RESPONDENTS' CROSSMOTION FOR SUMMARY JUDGMENT 298 by Judge Cormac J. Carney. Petitioners' motion for summary judgment is GRANTED, and Respondents' cross-motion for summary judgment is DENIED. (iv) (Entered: 03/04/2020)

03/04/2020

320 MINUTES (IN CHAMBERS) ORDER GRANTING APPLICATIONS FOR LEAVE TO FILE UNDER SEAL 252 , 310 by Judge Cormac J. Carney. The applications for leave to file under seal are GRANTED. The associated documents shall be deemed PERMANENTLY SEALED. (iv) (Entered: 03/04/2020)

03/08/2020

321 TRANSCRIPT ORDER as to Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III DCN number: V1060 for Court Reporter. (Attachments: # 1 Form CIV240, Request and Authorization to Incur Litigation Expenses)(Liggett, Troy) (Entered: 03/08/2020)

03/18/2020

322 NOTICE of Decision: Third Circuit Opinion Denying in part and Dismissing in part Petitioner Chhoeun's Petition for Review filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A Third Circuit Opinion)(Liggett, Troy) (Entered: 03/18/2020)

03/18/2020 323 Joint STIPULATION for Extension of Time to File Proposed Permanent Injunction filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III.

(Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 03/18/2020)

03/20/2020

324 ORDER 323 by Judge Cormac J. Carney. The parties are ORDERED to file a joint proposed permanent injunction consistent with the Court's March 4, 2020 Order, Dkt. 319, no later than April 1, 2020. (iv) (Entered: 03/23/2020)

03/25/2020

325 TRANSCRIPT for proceedings held on 3/2/2020 at 1:50 p.m. ****Transcript may be viewed at the court public terminal or purchased through Court Reporter DEBBIE HINO-SPAAN at: WEBSITE www.debbiehinospaan.com; E-mail, dhinospaan@yahoo.com before the deadline for Release of Transcript restriction. After that date, it may be obtained from the Court Reporter or through PACER. Additional formats of the transcript (ASCII, Condensed, and Word Indexing/Concordance) are also available to be purchased at any time through the Court Reporter. Notice of Intent to Redact due within 7 days of this date.** Redaction Request due 4/15/2020. Redacted Transcript Deadline set for 4/27/2020. Release of Transcript Restriction set for 6/23/2020. (dhs) (Entered: 03/25/2020)

03/25/2020

326 NOTICE OF FILING TRANSCRIPT filed for proceedings 3/2/2020 at 1:50 p.m. re Transcript 325 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dhs) TEXT ONLY ENTRY (Entered: 03/25/2020)

04/01/2020

327 STIPULATION for Extension of Time to File Joint Report on Permanent Injunction Proposals filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 04/01/2020)

04/01/2020

328 ORDER 327 by Judge Cormac J. Carney. The parties shall file a joint report, not to exceed 20 pages, by Friday, April 10, 2020. (iv) (Entered: 04/02/2020)

04/10/2020

329 JOINT REPORT of Joint Report re Permanent Injunction filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Jingni (Jenny) Zhao, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Proposed Order)(Commons, Sean) (Entered: 04/10/2020)

04/13/2020

330 NOTICE OF MOTION AND MOTION to Substitute Respondent Matthew T. Albence; Respondent Chad F. Wolf; Respondent William Barr for Respondent Thomas D. Homan; Respondent Elaine C. Duke; Respondent Jefferson B. Sessions, III filed by Respondents Elaine C. Duke, Thomas D. Homan, David W. Jennings, David Marin, Jefferson

B. Sessions, III. Motion set for hearing on 5/11/2020 at 01:30 PM before Judge Cormac J. Carney. (Attachments: # 1 Proposed Order) (Carilli, Joseph) (Entered: 04/13/2020)

04/13/2020

331 JOINT REPORT of Re Proposed Permanent Injunction - Corrected filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Jinghi (Jenny) Zhao, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Commons, Sean) (Entered: 04/13/2020)

04/13/2020

332 NOTICE OF LODGING filed [Petitioners' Proposed] Order For Permanent Injunction re Report, 331 (Attachments: # 1 Proposed Order)(Commons, Sean) (Entered: 04/13/2020)

04/13/2020 333 NOTICE OF LODGING filed [Respondents' Proposed] Final Judgment and Permanent Injunction re Report, 331 (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 04/13/2020)

04/16/2020

334 ORDER GRANTING RESPONDENTS' UNOPPOSED MOTION TO ALTER CAPTION 330 by Judge Cormac J. Carney. Respondents' Unopposed Motion to Alter Caption is GRANTED. (iv) (Entered: 04/20/2020)

04/27/2020

335 ORDER REGARDING JOINT REPORT ON PROPOSED PERMANENT INJUNCTION 331 by Judge Cormac J. Carney. The Court is concurrently issuing a permanent injunction consistent with this order. See order for details. (lom) (Entered: 04/27/2020)

04/27/2020

336 JUDGMENT AND PERMANENT INJUNCTION by Judge Cormac J. Carney. On March 4, 2020, after considering the parties' briefs, evidence, and oral argument, the Court entered an order granting Petitioners' motion for summary judgment and denying Respondents' cross-motion for summary judgment. (Dkt. 319 .) In accordance with the Court's Order, IT IS HEREBY ORDERED that judgment is entered in favor of Petitioners. IT IS FURTHER ORDERED that U.S. Immigration and Customs Enforcement (ICE) is permanently restrained and enjoined from re-detaining for removal any Class Member, as defined below, unless ICE first serves written notice (Notice) on the Class Member at least 14 days before re-detention in accordance with the following terms of this Order. Refer to attached order for details. (MD JS-6. Case Terminated) (lom) (Entered: 04/27/2020)

05/12/2020

337 APPLICATION to the Clerk to Tax Costs against Defendants Matthew T Albence, William Barr, David W. Jennings, David Marin, Chad F Wolf filed by Petitioners Mony Neth, Nak Kim Chhoeun. (Kang, Rara) (Entered: 05/12/2020)

05/12/2020

338 INDEX TO PETITIONERS' APPLICATION TO TAX COSTS re APPLICATION to the Clerk to Tax Costs against Defendants Matthew T Albence, William Barr, David W. Jennings, David Marin, Chad F Wolf 337 filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Declaration of Rara Kang)(Kang, Rara) (Entered: 05/12/2020)

05/21/2020

339 STIPULATION for Extension of Time to File [Stipulation to Stay Deadlines Under Local Rules 54-2.2. and 54-2.3 Regarding Petitioners' Application to Tax Costs] filed by Petitioners Nak Kim Chhoeun, Mony Neth. (Attachments: # 1 Proposed Order)(Kang, Rara) (Entered: 05/21/2020)

05/26/2020

340 ORDER GRANTING STIPULATION TO STAY DEADLINES UNDER LOCAL RULES 54-2.2 AND 54-2.3 REGARDING PETITIONERS' APPLICATION TO TAX COSTS 339 by Judge Cormac J. Carney. SEE ORDER FOR DETAILS. (iv) (Entered: 05/26/2020)

06/25/2020

341 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Respondents Matthew T Albence, William Barr, David W. Jennings, David Marin, Chad F Wolf. Appeal of Judgment,,,, Permanent Injunction,,, 336 , Order on Motion for Summary Judgment,,, 319 . (Appeal Fee - Not Required for US Goverment.) (Liggett, Troy) (Entered: 06/25/2020)

06/30/2020

342 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 20-55665 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 341 as to respondents Matthew T Albence, William Barr, David W. Jennings, David Marin, Chad F Wolf. (mat) (Entered: 06/30/2020)

07/23/2020

343 TRANSCRIPT ORDER re: Court of Appeals case number 18-55389, 18-55673, 20-55665, as to Respondents William Barr for Court Smart (CS). Court will contact Crystal Greene at Crystal.Greene@usdoj.gov with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Liggett, Troy) (Entered: 07/23/2020)

07/23/2020

344 DESIGNATION of Record on Appeal by Respondents Matthew T Albence, William Barr, David W. Jennings, David Marin, Chad F Wolf re 341 (Liggett, Troy) (Entered: 07/23/2020)

07/24/2020

345 TRANSCRIPT for proceedings held on 1-10-2020. Court Reporter/Electronic Court Recorder: EXCEPTIONAL REPORTING SERVICES, phone number 361-949-2988. Transcript may be viewed at the court public terminal or purchased through the Court

Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/14/2020. Redacted Transcript Deadline set for 8/24/2020. Release of Transcript Restriction set for 10/22/2020. (jlo) (Entered: 07/24/2020)

07/24/2020

346 NOTICE OF FILING TRANSCRIPT filed for proceedings 1-10-2020 re Transcript 345 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jlo) TEXT ONLY ENTRY (Entered: 07/24/2020)

11/06/2020

347 Notice of Appearance or Withdrawal of Counsel: for attorney Mohindra Rupram counsel for Petitioners Thy Chann, Saloeun Chea, Nak Kim Chhoeun, Norit Chin, Soka Dos, Bunchoeurn Hy, Thelh Keth, Pech Kha, Sokhan Khim, Lok Lim, Dala Loav, Kheang Lor, Mony Neth, Nhoueth Nhim, Tol Pech, Khun Sum, Tith Tang, Ang Thoeun, Thy Vann, Samanang Yin. Mohindra Rupram is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Nak Kim Chhoeun, Mony Neth, individually and on behalf of a class of similarly situated individuals. (Rupram, Mohindra) (Entered: 11/06/2020)

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 Case 8:17-cv-01898 Document 1 Filed 10/27/17 Page 1 of 16 Page ID #:1

1 JINGNI (JENNY) ZHAO (#284684)

2

ANOOP PRASAD (#250681) KEVIN CHUN HOI LO (#278908)

3 MELANIE CHUN-YU KIM (#292588) WINIFRED KAO (#241473)

4 ASIAN AMERICANS ADVANCING JUSTICE –

ASIAN LAW CAUCUS 5 55 Columbus Avenue

6

San Francisco, California 94111 Telephone: (415) 896-1701

7 Fax: (415) 896-1702 Email: jennyz@advancingjustice-alc.org
8 Additional Counsel Listed On Next Page
9 Attorneys for Petitioners

10 UNITED STATES DISTRICT COURT

11 CENTRAL DISTRICT OF CALIFORNIA

12

NAK KIM CHHOEUN, MONY 13 NETH, individually and on behalf of
a class of similarly-situated 14 individuals,

15

Petitioners,

Case No. HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

16

v.

17 DAVID MARIN, Field Office Director, Los Angeles Field Office,
18 United States Immigration and Customs Enforcement; DAVID W.
19 JENNINGS, Field Office Director, San Francisco Field Office, United
20 States Immigration and Customs Enforcement; THOMAS D.
21 HOMAN, Acting Director, United States Immigration and Customs
22 Enforcement; ELAINE C. DUKE, Acting Secretary, United States
23 Department of Homeland Security; JEFFERSON B. SESSIONS III,
24 United States Attorney General; SANDRA HUTCHENS, Sheriff of
25 Orange County; and SCOTT R. JONES, Sheriff of Sacramento
26 County,

27

Respondents.

28

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Case 8:17-cv-01898 Document 1 Filed 10/27/17 Page 2 of 16 Page ID #:2

1 LABONI HOQ (SBN 224140) NICOLE GON OCHI (SBN 268678)
2 CHRISTOPHER LAPINIG (SBN 802525) ASIAN AMERICANS ADVANCING JUSTICE - LA
3 1145 Wilshire Blvd., 2nd Floor Los Angeles, CA 90017
4 Telephone: (213) 977-7500 Fax: (213) 977-7595
5 Email: lhoq@advancingjustice-la.org Email: nochi@advancingjustice-la.org
6 Email: clapinig@advancingjustice-la.org

7 SEAN A. COMMONS (SBN 217603)

8

SIDLEY AUSTIN LLP 555 W. Fifth Street, Suite 4000

9 Los Angeles, CA 90013 Telephone: (213) 896-6000

10 Fax: (213) 896-6600

Email: scommons@sidley.com 11

DARLENE CHO (SBN 251167) 12 SIDLEY AUSTIN LLP
1999 Avenue of the Stars, 17th Floor 13 Los Angeles, CA 90067
Telephone: (310) 595-9500 14 Fax: (310) 595-9501
Email: dcho@sidley.com 15

NAOMI IGRA (SBN 269095) 16 SIDLEY AUSTIN LLP

555 California Street, Ste. 2000 17 San Francisco, CA 94104
Telephone: (415) 772-1200 18 Fax: (415) 772-7400
Email: naomi.igra@sidley.com 19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

1. Petitioners Nak Kim Chhoeun and Mony Neth bring this lawsuit

3 because, beginning in October 2017, they have been arbitrarily and unlawfully

4 detained by U.S. Immigration and Customs Enforcement (“ICE”). Petitioners’ and

5 class members’ families fled Cambodia in the 1970s to escape the Khmer Rouge’s

6 campaign of mass murder and torture. They arrived in the United States as small

7 children after their families secured refugee status. Petitioners and class members

8 have lived in the United States ever since. Almost all are lawful permanent

9 residents. Many have never set foot in Cambodia. In every possible sense, the

10 United States is their only home.

11

2. Petitioners and class members were ordered removed based on

12 criminal convictions—in many cases, decades-old convictions for offenses they

13 committed as teenagers. They were released from ICE custody because Cambodia

14 would not accept their repatriation. They returned to their communities under

15 orders of supervision, reporting regularly to ICE and complying with the conditions

16 of their release. Many have U.S. citizen spouses, children, siblings, and relatives

17 who rely on them for support. For years, they have cared for their families and led

18 peaceful and productive lives in their communities.

19

3. Nonetheless, beginning on approximately October 1, 2017, ICE

20 abruptly commenced a series of raids and other enforcement actions across

21 California and other states to detain Petitioners and class members without cause

22 and without providing procedural protections required by law. ICE detained

23 Petitioners and class members without any evidence that Cambodia would now

24 accept their repatriation. ICE also conducted raids in disregard of basic procedural

25 rights. On information and belief, Petitioners and class members have received no

26 adequate explanation of the reasons for detention, no opportunity to be heard

27 regarding any purported reasons for detention, and no individualized consideration

28
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1 before a neutral decisionmaker regarding whether they pose a danger or flight risk

2 that could warrant detention.

3

4. Petitioners bring this action on behalf of themselves and approximately

4 1,900 other similarly-situated persons to prevent and challenge arbitrary and

5 indefinite detentions that violate statutory and regulatory law as well as the

6 Constitution. On information and belief, over 100 Cambodian refugees already

7 have been unlawfully detained in the October 2017 raids, and ICE continues to

8 undertake unlawful actions to arbitrarily detain Cambodians. Many of those

9 targeted live in California, with large numbers residing in Long Beach, Modesto,

10 and Stockton, California.

11

FACTUAL BACKGROUND

12

5. Petitioners and class members came to the U.S. after fleeing as

13 children from the horrors of the Khmer Rouge in Cambodia or being born abroad to

14 parents fleeing Cambodia. They grew up in communities in crisis. Cambodian

15 refugee families struggled with unaddressed trauma, poverty, and violence-ridden

16 neighborhoods, with almost no culturally competent resources to address their

17 needs. Petitioners and class members made mistakes in their youth, which led to

18 involvement with the criminal justice system, and ultimately removal proceedings.

19

6. Petitioners were previously detained by ICE and ordered removed, but

20 were released from ICE custody years ago because Cambodia declined to permit

21 repatriation. ICE recognizes that Cambodia rarely permits repatriation and does so

22 only after conducting interviews and ascertaining the propriety of repatriation on a

23 case-by-case basis. Indeed, for many years, the United States lacked any

24 repatriation agreement with Cambodia, resulting in no realistic possibility that

25 Cambodia would accept Petitioners or class members for repatriation. Even after

26 the United States and Cambodia signed a repatriation agreement in March 2002,

27 Cambodia has accepted only a limited number of persons for repatriation each year

28 (an average of 35), and still regularly refuses to issue travel documents.
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1

7. In 2016, Cambodia’s Prime Minister convened a taskforce to study

2 repatriation in response to public outcry regarding the harm caused to individuals,

3 families, and communities when a child refugee is repatriated to a country they do

4 not know and is not their home. Like Petitioners and class members, those deported

5 had never lived in Cambodia or left as children, had U.S. citizen family members

6 who depended upon them for affection, care, and support, lacked any personal or

7 business ties in Cambodia, and had made the U.S. their home for decades.

8 Deportation meant leaving behind U.S. citizen spouses, children, siblings, and

9 elderly parents, many of whom lost children to war, only to be separated from

10 another child by the very government that promised to protect their families. In

11 October 2016, Cambodia notified the United States that the 2002 repatriation

12 agreement would be suspended until appropriate revisions could be negotiated,

13 including to account for humanitarian, compassionate, and human rights

14 considerations.

15

8. On September 13, 2017, the United States announced that it was

16 placing visa sanctions on Cambodia, denying tourist visas to certain government

17 officials and their families until Cambodia agreed to facilitate U.S. removal efforts.

18 Within weeks, ICE began conducting raids that targeted Cambodian refugees on a

19 scale never seen before. Armed ICE officers raided homes and workplaces. Some

20 class members were detained at ICE offices during regularly-scheduled reporting

21 dates. Some received phone calls or letters from ICE asking without explanation for

22 them to report early and were detained upon appearing. On information and belief,

23 ICE continues to engage in such activities that target child refugees from

24 Cambodia.

25

9. The individuals detained to date have been given little, if any,

26 information about why their orders of supervision were revoked even though they

27 have been fully complying with the orders. Petitioners and class members have not

28 been provided with any reliable grounds to believe that Cambodia will agree that
3
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1 repatriation would be humane, appropriate, or warranted in their cases. On

2 information and belief, ICE has no particularized evidence that Petitioners and class

3 members can be repatriated to Cambodia. In addition, Petitioners and class

4 members have not received an individualized hearing before a neutral

5 decisionmaker to assess whether detention is warranted due to danger or flight risk.

6

10. ICE has transferred Petitioners and class members from one end of the

7 country to another, in some instances multiple times, placing greater financial and

8 emotional strain on Petitioners and their families, and impairing their ability to

9 obtain counsel or exercise legal and constitutional rights. On information and belief,

10 ICE often has provided inaccurate or incomplete information, or outright refused to

11 provide information, to family, friends, and attorneys about transfers, exacerbating

12 fear and uncertainty for Petitioners and class members, as well as their spouses,

13 children, relatives, and communities.

14

JURISDICTION

15

11. This Court has subject matter jurisdiction under 28 U.S.C. § 2241

16 (habeas corpus), the Suspension Clause of Article I of the U.S. Constitution, 28

17 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361 (mandamus), and 5 U.S.C. §§

18 701 et seq. (Administrative Procedures Act). The Court may also grant relief under

19 28 U.S.C. §§ 2201-02 (Declaratory Judgment Act) and 28 U.S.C. § 1651 (All Writs

20 Act).

21

VENUE

22

12. Venue is proper in the Central District of California under 28 U.S.C. §

23 1391(e) because Respondents are federal officers sued in their official capacity,

24 Respondent Marin is based in this district, Petitioner Chhoeun and numerous class

25 members reside in this district, and a substantial part of the events or omissions

26 giving rise to these claims occurred in this district. Venue is also proper under 28

27 U.S.C. § 2241 because Petitioner Chhoeun and numerous class members are

28
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1 confined in this district, and because Respondents have the authority to detain and

2 release Petitioners and class members.

3

PARTIES

4

13. Petitioner Nak Kim Chhoeun is a 42-year-old citizen of Cambodia

5 who entered the United States in 1981 as a refugee when he was six years old. Mr.

6 Chhoeun became a lawful permanent resident when he was a child. In 1999, he

7 pleaded to simple assault and unlawful possession of a firearm. Based on these

8 convictions, he was ordered removed to Cambodia in 2003. Cambodia, however,

9 declined to accept repatriation. After filing a petition for writ of habeas corpus

10 challenging his indefinite detention, Mr. Chhoeun was released from custody in

11 2003. Since his release from custody, Mr. Chhoeun has had no further convictions

12 or arrests and has complied with the terms of his order of supervision with ICE. Mr.

13 Chhoeun is employed as a technician with AT&T, a job that he has held for

14 fourteen years. His mother and six siblings are all U.S. citizens. On October 20,

15 2017, ICE unexpectedly asked Mr. Chhoeun to report. When he reported as

16 requested, ICE officers arrested him and transported him to the Theo Lacy Facility

17 in Orange, California. On information and belief, ICE has no individualized basis to

18 believe that Mr. Chhoeun can be repatriated to Cambodia. ICE did not provide Mr.

19 Chhoeun with notice of the reason for his arrest or an opportunity to respond. Nor

20 has Mr. Chhoeun received individualized consideration before a neutral

21 decisionmaker of whether he poses a danger or flight risk.

22

14. Petitioner Mony Neth is a 42-year-old citizen of Cambodia who

23 entered the United States in 1985 as a refugee fleeing the Khmer Rouge when he

24 was ten years old. Mr. Neth became a lawful permanent resident. He lives with his

25 wife, 16-year-old daughter, and parents, all U.S. citizens, in Modesto, California. In

26 1995, Mr. Neth was convicted of unlawful possession of a weapon and receipt of

27 stolen property. In 1997, Mr. Neth completed his sentence and was transferred to

28 ICE custody, but was released on bond because he did not pose a danger or flight
5
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1 risk. In 2010, Mr. Neth received a final order of removal to Cambodia and

2 surrendered himself to ICE for removal. After repatriation efforts failed, Mr. Neth

3 was released on an order of supervision and has fully complied with the terms of

4 that order. Mr. Neth works as a foreman installing solar panels. He is an active

5 member in his local church community, and he regularly serves meals to the

6 homeless. Mr. Neth has had no convictions since 1995 and has received a certificate

7 of rehabilitation for the 1995 convictions from Stanislaus County Superior Court,

8 the first step to receiving a governor’s pardon. On October 20, 2017, without

9 warning, ICE arrested Mr. Neth while he was driving to work. ICE is detaining Mr.

10 Neth in the Rio Cosumnes Correctional Center in Elk Grove, California. On

11 information and belief, ICE has no individualized basis to believe that Mr. Neth can

12 be repatriated to Cambodia. ICE did not inform Mr. Neth why he was being

13 detained or give him an opportunity to respond. Moreover, ICE has detained Mr.

14 Neth without regard to whether he poses a danger or flight risk, and he has not

15 received individualized consideration of danger or flight risk before a neutral

16 decisionmaker.

17

15. Respondent David Marin is the Field Office Director for the Los

18 Angeles Field Office of ICE, which has detention authority over noncitizens in the

19 Los Angeles metropolitan area and California’s central coast. Respondent Marin is

20 a legal custodian of Petitioner Chhoeun, and of all members of the proposed class

21 who are detained in the Los Angeles Field Office’s area of responsibility.

22

16. Respondent David W. Jennings is the Field Office Director for the San

23 Francisco Field Office of ICE, which has detention authority over noncitizens in

24 northern California, Hawaii, Guam, and Saipan. Respondent Jennings is a legal

25 custodian of Petitioner Neth, and of all members of the proposed class who are

26 detained in the San Francisco Field Office’s area of responsibility.

27

17. Respondent Thomas D. Homan is the Acting Director of ICE. As the

28 head of ICE, an agency within the United States Department of Homeland Security
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1 that detains and removes noncitizens, Respondent Homan is a legal custodian of

2 Petitioners and all class members.

3

18. Respondent Elaine C. Duke is the Acting Secretary of the United

4 States Department of Homeland Security. She is responsible for the implementation

5 and enforcement of the immigration laws and oversees ICE. Respondent Duke has

6 ultimate custodial authority over Petitioners and all class members.

7

19. Respondent Jefferson B. Sessions III is the Attorney General of the

8 United States. As the head of the United States Department of Justice, which

9 oversees the immigration courts, Respondent Sessions shares responsibility for

10 enforcement of the immigration laws with Respondent Duke.

11

20. Respondent Sandra Hutchens is the Sheriff of Orange County, which

12 holds a contract with ICE to detain noncitizens. Respondent Hutchens is

13 responsible for the operation of the Theo Lacy Facility in Orange, California, where

14 Petitioner Chhoeun is detained.

15

21. Respondent Scott R. Jones is the Sheriff of Sacramento County, which

16 holds a contract with ICE to detain noncitizens. Respondent Jones is responsible for

17 the operation of the Rio Cosumnes Correctional Center in Elk Grove, California,

18 where Petitioner Neth is detained.

19

22. All Respondents are sued in their official capacity.

20

LEGAL BACKGROUND

21

23. 8 U.S.C. § 1231(a) governs the detention of persons like Petitioners

22 and class members who have been ordered removed. The statute directs ICE to

23 detain individuals for 90 days while carrying out a removal order. § 1231(a) 2). The

24 90-day “removal period” generally begins when a removal order becomes final.

25 Absent an applicable exception, a person who is not removed within the 90-day

26 removal period is supposed to be released subject to supervision. § 1231(a)(3).

27

24. Section 1231(a)(6) permits detentions beyond 90 days in limited

28 circumstances. But even when § 1231(a)(6) applies, the Supreme Court in
7
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1 Zadvydas v. Davis has held that § 1231(a)(6) does not permit indefinite detentions.

2 533 U.S. 678, 689 (2001). ICE’s detention authority is limited to a period

3 “reasonably necessary” to carry out removal and only when necessary to assure a

4 person’s presence for removal. Detention is not permissible when removal is not

5 “reasonably foreseeable.”

6

25. To provide guidance to lower courts, the Supreme Court in Zadvydas

7 recognized six months as a “presumptively reasonable period of detention.” The

8 six-month period, however, is a presumption, not a rule. A person must be released

9 before six months if repatriation is not reasonably foreseeable, and ICE’s

10 regulations authorize release anytime after the 90-day removal period if removal is

11 not reasonably foreseeable. 8 C.F.R. § 241.13.

12

26. Even when removal appears reasonably foreseeable, detention must

13 serve a legitimate government interest, namely to prevent danger or flight risk. Due

14 process requires a meaningful, individualized hearing before a neutral

15 decisionmaker to assess danger and flight risk. The government’s own regulations

16 permit the release of a person who does not pose a danger or flight risk pending

17 removal—“without regard to the likelihood of the alien’s removal in the reasonably

18 foreseeable future.” 8 C.F.R. § 241.13(b)(1). The regulations require ICE to

19 conduct a post-order custody review (“POCR”) by the end of the 90-day removal

20 period to assess the need for further detention. 8 C.F.R. § 241.4(h)(1).

21

27. A person with a removal order who is released from custody generally

22 is subject to an order of supervision. 8 C.F.R. § 241.4(j); 241.13(h). Such an order

23 typically requires, among other things, that the person report to ICE periodically

24 and continue cooperating with ICE’s efforts to carry out removal. 8 C.F.R. §

25 241.5(a).

26

28. Regulations outline when ICE can revoke orders of supervision and re-

27 detain individuals. A person who was released because removal was not reasonably

28 foreseeable can be re-detained only for violating a condition of release (§
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1 241.13(i)(1)), or if removal has become reasonably foreseeable in light of changed

2 circumstances (§ 241.13(i)(2)). A person whose order of supervision is being

3 revoked is entitled to notice and an opportunity to be heard. ICE is required by

4 regulation to inform the person of the reasons for revocation and allow the person

5 to respond. § 241.13(i)(3). ICE must evaluate any contested facts and determine

6 whether the facts “warrant revocation and further denial of release.” Id.

7

CLASS ALLEGATIONS

8

29. Subject to their right to amend at the time of class certification,

9 Petitioners bring this action on behalf of themselves and all other similarly-situated

10 individuals pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) and as

11 a representative habeas class action.

12

30. Subject to their right to amend at the time of class certification,

13 including to allege subclasses (if any), the proposed class is defined as: All

14 Cambodian citizens in the United States who received final orders of deportation or

15 removal to Cambodia, and were subsequently released from ICE custody, who have

16 been or may be re-detained for removal by ICE.

17

31. Petitioners seek injunctive and declaratory relief on grounds that apply

18 to the class as a whole.

19

32. Members of the proposed class are so numerous that joinder is

20 impracticable. Upon information and belief, there are approximately 1,900 class

21 members, and more than 100 class members have been detained by ICE since

22 October 2017.

23

33. There are multiple questions of law and fact common to members of

24 the proposed class, including:

25

a. Whether Respondents complied with regulations requiring them to

26 provide class members notice and an interview upon revocation of release;

27

28
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1

b. Whether Respondents had and have sufficient evidence that class

2 members’ removal is reasonably foreseeable to justify revocation of release and

3 continued detention; and

4

c. Whether Respondents afforded class members individualized

5 determinations of the need for detention that satisfy due process.

6

34. Petitioners’ claims are typical of the claims of the proposed class. In

7 addition, Petitioners will fairly and adequately represent the interests of all

8 members of the proposed class. Petitioners seek relief that is identical to the relief

9 sought by all class members, and they have no interests that are adverse to other

10 class members. Petitioners have retained pro bono counsel who have experience in

11 immigration law and class action litigation and will adequately represent the

12 interests of the class.

13

CLAIMS FOR RELIEF

14

COUNT ONE

15

Unlawful Revocation of Release

16

35. The foregoing allegations are realleged and incorporated herein.

17

36. Petitioners and class members were previously detained by

18 Respondents and released only because their removal could not be effectuated.

19

37. As long as Petitioners and class members comply with the conditions

20 of their release, Respondents have authority to revoke release only if circumstances

21 have changed to permit Petitioners’ and class members’ removal in the reasonably

22 foreseeable future. 8 C.F.R. § 241.13(i)(2); 8 U.S.C. § 1231(a)(6).

23

38. Respondents revoked Petitioners’ and class members’ release without

24 evidence that any particular person can now be repatriated, where previous

25 repatriation efforts failed, and without regard to the person’s likelihood of removal.

26 Respondents know based on past experience and recent public statements that

27 Cambodia intends to restrict the criteria it applies when considering whether to

28 accept a person for repatriation.
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1

39. Respondents’ actions are arbitrary, capricious, an abuse of discretion,

2 and contrary to law. 5 U.S.C. § 706(a)(2)(A). Petitioners are entitled to immediate

3 release on orders of supervision.

4

COUNT TWO

5

Violation of Procedures for Revocation of Release

6

40. The foregoing allegations are realleged and incorporated herein.

7

41. The government’s own regulations require Respondents to notify

8 Petitioners of the reasons for their re-detention. 8 C.F.R. § 241.13(i)(3). The

9 regulations also require Respondents to afford Petitioners an initial interview

10 promptly after their re-detention at which Petitioners can respond to the purported

11 reasons for revocation. Id.

12

42. Respondents have not provided Petitioners and class members

13 adequate and timely notice of the reasons for revocation. Respondents also have not

14 timely provided Petitioners and class members with an initial interview or an

15 opportunity to respond.

16

43. Petitioners and class members are entitled to immediate release on

17 orders of supervision until ICE can provide at least the minimal process required by

18 regulation.

19

44. In the alternative, Respondents should be ordered to promptly provide

20 Petitioners and class members with the minimal process required by regulation.

21

45. Petitioners also seek an injunction against ICE from detaining any

22 additional class member, at least until it ensures that it will provide the minimal

23 process required by regulation.

24

COUNT THREE

25

Unlawful Detention Where Removal Is Not Reasonably Foreseeable

26

46. The foregoing allegations are realleged and incorporated herein.

27

28
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1

47. Post-removal order detention violates 8 U.S.C. § 1231(a)(6) where

2 removal is not significantly likely to occur in the reasonably foreseeable future.

3 Zadvydas v. Davis, 533 U.S. 678 (2001).

4

48. Detention where removal is not reasonably foreseeable also violates

5 due process.

6

49. Petitioners and class members already have endured months or years

7 of post-removal order detention before being released prior to October 2017

8 because they could not be repatriated. They have made their initial showing under

9 Zadvydas of “good reason to believe” that their removal is not significantly likely.

10 Id. at 701.

11

50. Respondents cannot rebut this showing, as they lack any

12 individualized evidence to believe that removal of Petitioners or class members is

13 reasonably foreseeable.

14

51. ICE’s practice of initiating a new six-month period of detention for

15 each detention frustrates and defeats the constitutional limits on detention

16 recognized by the Supreme Court in Zadvydas and results in detentions that serve

17 no legitimate governmental interest.

18

52. Petitioners’ and class members’ detention under these circumstances

19 violates Section 1231 and due process under the U.S. Constitution.

20

53. Petitioners and class members are entitled to immediate release on

21 orders of supervision.

22

COUNT FOUR

23 Unlawful Detention Without Individualized Determinations of Danger and

24

Flight Risk

25

54. The foregoing allegations are realleged and incorporated herein.

26

55. Detention violates Section 1231 and due process under the U.S.

27 Constitution unless it is reasonably related to the government’s purposes of

28 preventing flight and protecting the community. Zadvydas, 533 U.S. at 690-91.
12
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1

56. Before being re-detained, Petitioners and class members lived in their

2 communities for months or years without absconding or harming the community.

3 Petitioners and class members have received no process whatsoever to determine

4 whether their detention is warranted.

5

57. Petitioners and class members are entitled to individualized

6 determinations by impartial adjudicators of whether detention is justified based on

7 danger or flight risk.

8

PRAYER FOR RELIEF

9 WHEREFORE, Petitioners respectfully request that the Court grant the following

10 relief:

11

a. Assume jurisdiction over this matter;

12

b. Certify this matter as a class action, name Petitioners as class

13 representatives, and appoint Petitioners’ counsel as class counsel;

14

c. Declare that Respondents have violated the rights of the class;

15

d. Order Respondents to notify Petitioners and class members of the

16 reasons for revocation of their release and provide Petitioners and class members a

17 prompt interview as required by regulation;

18

e. Order Respondents to release from detention Petitioners and all class

19 members for whom Respondents lack individualized evidence that removal is not

20 significantly likely to occur in the reasonably foreseeable future;

21

f. Order Respondents to release Petitioners and all class members from

22 detention absent an individualized determination by an impartial adjudicator that

23 their detention is justified based on danger or flight risk, which cannot be

24 sufficiently addressed by alternative conditions of release and/or supervision;

25

g. Enjoin Respondents from revoking any class member’s release unless

26 Respondents have individualized evidence that the class member’s removal is

27 reasonably foreseeable;

28
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1

h. Enjoin Respondents from revoking any class member’s release, at least

2 until they can ensure that class members will be provided minimum procedural

3 protections required by regulation;

4

i. Award Petitioners reasonable attorneys’ fees and costs under the Equal

5 Access to Justice Act, 28 U.S.C. § 2412, and on any other basis justified under law;

6 and

7

j. Grant any other and further relief as the Court deems just and proper.

8

9 Dated: October 27, 2017

Respectfully submitted,

10

11

12

Jingni (Jenny) Zhao

Anoop Prasad

13

Kevin Chun Hoi Lo

14

Melanie Chun-Yu Kim

Winifred Kao

15

ASIAN AMERICANS ADVANCING JUSTICE –

16

ASIAN LAW CAUCUS

17

18

/s/ Laboni Hoq

19

Laboni Hoq

Nicole Gon Ochi

20

Christopher Lapinig

21

ASIAN AMERICANS ADVANCING JUSTICE – LA

22 /s/ Sean A. Commons

23

Sean A. Commons

24

Darlene Cho

Naomi Igra

25

SIDLEY AUSTIN LLP

26 Attorneys for Petitioners
27

28
14
HABEAS CORPUS CLASS ACTION PETITION AND CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 Case 8:17-cv-01898-CJC-GJS Document 32 Filed 12/14/17 Page 1 of 4 Page ID #:389

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

11

)

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) Case No.: SACV 17-01898-CJC(GJSx)

)

13 14

NAK KIM CHHOEUN AND MONY NETH, individually and on behalf of a

) ) )

class of similarly-situated individuals, )

15

) ORDER GRANTING PETITIONERS’

) APPLICATION FOR A TEMPORARY

16

Petitioners,

) RESTRAINING ORDER )

17

v.

)

)

18

)

DAVID MARIN, DAVID JENNINGS, )

19 20

THOMAS HOMAN, ELAINE DUKE, JEFFERSON SESSIONS III, SANDRA

) ) )

HUTCHENS, AND SCOTT JONES, )

21

)

)

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Respondents.

)

)

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)

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25 //

26 //

27 //

28 //

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Case 8:17-cv-01898-CJC-GJS Document 32 Filed 12/14/17 Page 2 of 4 Page ID #:390

1

Petitioners are a proposed class of approximately 1,900 Cambodian nationals who

2 have been living in the United States for many years. Many Petitioners fled Cambodia as

3 small children in the 1970s during the Khmer Rouge regime. (Dkt. 27 [First Amended

4 Complaint] ¶ 1.) Petitioners have been living in the United States for many years, but

5 they are subject to final orders of removal based on criminal convictions. (Id. ¶¶ 1–2.)

6 Petitioners were previously detained by U.S. Immigration and Customs Enforcement

7 (“ICE”) and ordered removed, but they were released from ICE custody because

8 Cambodia declined to permit repatriation. (Id. ¶ 7.)

9

10

Beginning in October 2017, U.S. Immigration and Customs Enforcement (“ICE”),

11 began detaining Petitioners, thereby revoking their release. (Id. ¶ 3.) According to

12 Petitioners, approximately 100 individuals have been detained since October 2017, and

13 ICE intends to detain additional individuals. (Id. ¶ 4.) On October 27, 2017, Petitioners

14 filed a habeas corpus class action, contending that their detention and impending

15 removals violate Due Process. (Dkt. 1 [Complaint].)

16

17

On December 12, 2017, Petitioners filed an application for a temporary restraining

18 order seeking a stay of removal until Petitioners are given an opportunity to reopen and

19 challenge their orders of removal. (Dkt. 28.) Petitioners apparently learned on December

20 7, 2017 that the Government intends to begin removal proceedings on December 18,

21 2017. (Id. at 1.) Petitioners claim that they will face irreparable harm absent a stay of the

22 removal proceedings. The Government opposes Petitioners’ application, arguing, among

23 other issues, that the Court lacks jurisdiction over Petitioners’ claims. (Dkt. 29.)

24

25

Given the speed with which the Government intends to remove Petitioners, the

26 Court finds that a temporary restraining order is necessary to stay removal until the Court

27 can give proper consideration to the complex issues presented in this action. Hamama v.

28 Adducci, No. 17-CV-11910, 2017 WL 2684477, at *3 (E.D. Mich. June 22, 2017). To

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Case 8:17-cv-01898-CJC-GJS Document 32 Filed 12/14/17 Page 3 of 4 Page ID #:391

1 adequately give proper consideration, the Court ORDERS Respondents to show cause 2 why a preliminary injunction should not issue. The temporary restraining order will

3 preserve the status quo pending the Court’s Order to Show Cause.

4

It is hereby ORDERED that Petitioners’ application for a temporary restraining

5 order is GRANTED, according to the terms set forth below:

6

7

TEMPORARY RESTRAINING ORDER

8

9

IT IS HEREBY ORDERED that the Government is temporarily restrained and

10 enjoined from executing Petitioners’ final orders of removal. This Order extends to

11 Respondents and any other federal officials and personnel involved in the removal 12 process. The Order applies to the removal of Petitioners and all members of the proposed 13 class, defined as: All Cambodian citizens in the United States who received final orders

14 of deportation or removal to Cambodia, and were subsequently released from ICE

15 custody, who have been or may be re-detained for removal by ICE.

16

17

IT IS FURTHER ORDERED that this temporary restraining order shall remain in

18 effect until the date for the hearing on the Order to Show Cause set forth below, or until

19 such further date as set by the Court or stipulated to by the parties.

20

21 // 22 // 23 //

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25 //

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27 //

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Case 8:17-cv-01898-CJC-GJS Document 32 Filed 12/14/17 Page 4 of 4 Page ID #:392

1 ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD

2

NOT ISSUE AND ORDER OF NOTICE

3

4

IT IS HEREBY ORDERED that Respondents shall show cause why a preliminary

5 injunction should not issue pursuant to Federal Rule of Civil Procedure 65(a), restraining

6 Respondents from engaging in the activities that are the subject of the above temporary

7 restraining order. A hearing on the Order to Show Cause shall proceed in the United

8 States Courthouse located at 411 West Fourth Street, Santa Ana, California, 92701,

9 Courtroom 9B, on Thursday, January 11, 2018, at 9:00 a.m. Respondents shall file

10 and serve an opposition to the Court’s Order on or before December 28, 2017.

11 Petitioners shall file and serve any papers in reply on or before January 4, 2018. The

12 above dates may be revised upon stipulation by all parties and approval of this Court.

13

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16

DATED: December 14, 2017

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__________________________________

18

CORMAC J. CARNEY

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UNITED STATES DISTRICT JUDGE

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 Case 8:17-cv-01898-CJC-GJS Document 74 Filed 01/25/18 Page 1 of 28 Page ID #:854

1

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3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

)

12

) Case No.: SACV 17-01898-CJC(GJSx)

)

13 NAK KIM CHHOEUN AND MONY )

14

NETH, individually and on behalf of a

) )

class of similarly situated individuals, )

15

) ORDER GRANTING PRELIMINARY

) INJUNCTION

16

Petitioners,

)

)

17

v.

)

)

18

)

DAVID MARIN, DAVID JENNINGS, )

19 20

THOMAS HOMAN, ELAINE DUKE, JEFFERSON SESSIONS III, SANDRA

) ) )

HUTCHENS, AND SCOTT JONES, )

21

)

)

22

Respondents.

)

)

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)

)

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25

26 //

27 //

28 //

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Case 8:17-cv-01898-CJC-GJS Document 74 Filed 01/25/18 Page 2 of 28 Page ID #:855

1 I. INTRODUCTION

2

3

Our Constitution demands that all persons, both citizens and noncitizens, be given

4 due process before the Government takes away a person’s right to work and live in the

5 United States. Sadly, for Petitioners here, they were denied due process by the

6 Government when it detained them and threatened to deport them without adequate

7 notice and an opportunity to be heard.

8

9

Petitioners are 92 Cambodian citizens who are living in the United States.1 Many

10 fled Cambodia in the 1970s as small children to escape the brutal Khmer Rouge regime.

11 Although Petitioners have been living in the United States for many years, they were all

12 subject to orders of removal to Cambodia based on criminal convictions that they

13 suffered years ago. When the orders of removal were issued, which in many cases

14 occurred over a decade ago, Petitioners were not deported because Cambodia refused to

15 accept their repatriation. Instead, U.S. Immigration and Customs Enforcement (“ICE”)

16 determined that Petitioners were not flight risks and did not pose a danger to society.

17 Accordingly, Petitioners were released from custody and returned to their families and

18 communities. Since then, Petitioners have served as peaceable and productive members

19 of our society, and their removal orders laid dormant.

20

21

In October 2017, ICE took Petitioners away from their communities and families

22 when it suddenly commenced a series of raids to detain them. Without warning, armed

23 ICE officers raided Petitioners’ homes and workplaces. Some Petitioners were detained

24

25 1 This putative class action was brought on behalf of approximately 1,900 individuals who received orders of removal to Cambodia but were subsequently released from custody and have since been living
26 in the United States. (Dkt. 27 ¶ 48.) The instant request for a preliminary injunction does not apply to 27 the entire class, but only to a subset of the class. When the Court employs the term “Petitioners” in this
Order, the Court is referring to that subset, composed of 92 individuals who were detained by U.S. 28 Immigration and Customs Enforcement beginning on October 1, 2017 and for whom travel documents
have been or are expected to be issued.
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1 at ICE offices when they reported for what they assumed were perfunctory meetings.

2 Approximately 100 Petitioners were detained in the October 2017 raids and 92 remain in

3 ICE custody. ICE still has not afforded Petitioners an adequate opportunity to challenge 4 their current detention or the underlying orders of removal. Instead, ICE continues to 5 detain most of them and plans to deport most of them to Cambodia at any time.

6

7

Petitioners ask this Court for limited relief—a brief stay of deportations during

8 which Petitioners may reopen their immigration proceedings and challenge their removal

9 orders. Specifically, Petitioners request that their removals be enjoined until February 5,

10 2018, in order to file motions to reopen. For those who file a motion to reopen, 11 Petitioners request that the stay be extended through the adjudication of the 12 administrative proceedings and, if necessary, until they have submitted motions to stay in

13 the appropriate court of appeals.

14

15

The removal orders Petitioners seek to reopen have lain dormant, in many cases for

16 over a decade. Circumstances have changed in the interim that may allow Petitioners to

17 raise serious questions regarding the validity of their underlying convictions and removal 18 orders. Denying Petitioners the right to do so amounts to a denial of due process. 19 Accordingly, the Court GRANTS Petitioners’ request for injunctive relief.

20
21 II. BACKGROUND

22

23

A. Procedural History

24

25

Named Petitioners Nak Kim Chhoeun and Mony Neth brought this action on

26 October 27, 2017, soon after ICE began to round up and detain Petitioners without notice.

27 (Dkt. 1 [Complaint]; see also Dkt. 27 [First Amended Habeas Corpus Petition and

28

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Case 8:17-cv-01898-CJC-GJS Document 74 Filed 01/25/18 Page 4 of 28 Page ID #:857

1 Complaint, hereinafter “FAC”].) In this lawsuit, Petitioners contend that their detention

2 and impending removals violate due process. (See generally id.)

3

4

In early December 2017, after Petitioners had been detained for approximately two

5 months, they learned that the first flight to Cambodia was scheduled for the morning of

6 December 18, 2017, and that the Government planned to complete removals by the end 7 of that month. (Dkt. 28 [“TRO App.”] at 1.) In light of the imminent removals, 8 Petitioners filed an application for a temporary restraining order on December 12, 2017,

9 asking the Court to stay deportations for approximately 60 days until February 5, 2018.

10 (See generally TRO App.) Petitioners explained that this additional, limited time was 11 necessary to give those who wanted to file motions to reopen their removal orders an 12 opportunity to do so. (Id.) On December 14, 2017, the Court granted the temporary

13 restraining order and stayed the deportations for a period of 28 days. (Dkt. 32.) The 14 Court also ordered the parties to show cause why a preliminary injunction should not 15 issue and set the preliminary injunction hearing for January 11, 2018. (Id.) The parties

16 then stipulated, at the Government’s request, to extend the term of the temporary

17 restraining order and to continue the preliminary injunction hearing to January 25, 2018. 18 (Dkts. 39, 40.)

19

20

Since the Court granted the temporary restraining order, Petitioners’ counsel have

21 worked to identify, locate, and interview the 92 Petitioners who have been issued travel

22 papers or who are being considered for travel papers. (Dkt. 62 at 4.) This has not been

23 an easy task, as Petitioners are being held in and transferred between various detention

24 facilities, and the Government has refused to identify and release key documents related 25 to them. (Id.; Dkt. 62-6 [Supplemental Declaration of Anoop Prasad, hereinafter “Supp. 26 Prasad Decl.”] ¶¶ 13–14, 18.) Notwithstanding these obstacles, Petitioners’ counsel have

27 been able to provide or facilitate legal consultations for 42 Petitioners. (Supp. Prasad 28 Decl. ¶ 14.) Of the 42 Petitioners who received legal consultations, eleven Petitioners

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1 have secured counsel to file motions to reopen. (Id.) Petitioners represent that additional

2 motions to reopen will be filed within the next few days, and reiterate their request that

3 deportations be stayed so that these additional motions can be filed and litigated. (Dkt. 4 62 at 5.)

5

6

B. Petitioners’ Background

7

8

Many Petitioners are refugees who fled Cambodia in the 1970s as small children to

9 escape the Khmer Rouge’s campaign of mass murder and torture. (FAC ¶ 1.) Since then,

10 Petitioners have made their homes in the United States and serve as integral members of 11 their families and communities. (Id.) Almost all are lawful permanent residents and have 12 parents, spouses, and children who are U.S. citizens. (Id. ¶¶ 1–2.)

13

14

1. Nak Kim Chhoeun

15

16

Petitioner Nak Kim Chhoeun was born in Cambodia in 1975. (Dkt. 28-2

17 [Declaration of Nak Kim Chhoeun, hereinafter “Chhoeun Decl.”] ¶ 2.) He fled 18 Cambodia with his parents and siblings when he was three years old. (Id.) Chhoeun’s 19 family spent time in a refugee camp in Thailand and in the Philippines before entering the

20 United States in June 1981. (Id.) Upon entering the United States they lived in Fort 21 Worth, Texas, and one or two years later they settled in Long Beach, California. (Id. ¶ 22 3.) Chhoeun’s parents and six siblings are U.S. citizens. (Id. ¶ 2.)

23

24

Sometime around 1999, when Chhoeun was in his early 20s, he found himself

25 involved in a gang-related incident. (Id. ¶ 4; TRO App. at 3.) The incident occurred

26 when Chhoeun agreed to drive his friend’s brother to run an errand. (Chhoeun Decl. ¶ 4.)

27 Although Chhoeun did not know it at the time, the neighborhood they drove into had a 28 reputation for being dangerous and when they arrived, people approached his car and

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1 threw bottles at it. (Id.) Chhoeun tried to drive away, but his friend’s brother pulled out

2 a gun and shot at a parked car. (Id.) No one was injured and police were not called to the

3 scene. (Id.)

4

5

Chhoeun later learned that the individuals who approached his car were members

6 of a gang. (Id. ¶ 4.) Police subsequently questioned the gang members and learned of 7 Chhoeun’s involvement. (Id.) Based on the information gathered by the police, the 8 District Attorney pressed charges against Chhoeun. (Id.) It is not clear from the record

9 precisely what Chhoeun was charged with and the disposition of these charges. Chhoeun

10 states in his declaration that he went to trial for at least some of the charges—though he 11 does not clarify which ones—and that a jury convicted him but he was ultimately 12 acquitted on appeal. (Id.) Chhoeun further claims that while his appeal was pending, he

13 learned that there were additional charges filed against him for possession of a firearm 14 and simple assault. (Id. ¶ 5.) Chhoeun claims that he knew nothing about these charges 15 until the District Attorney offered him a plea deal. (Id.) He claims that there were no

16 hearings regarding these charges and that he did not know any of the facts alleged,

17 including the purported victim. (Id.) Chhoeun nevertheless accepted a plea agreement 18 and was sentenced to a term of imprisonment for two years. (Id.; Dkt. 29 [“TRO Opp.”] 19 at 3.) On the other hand, and contrary to Chhoeun’s contentions, the Government claims

20 that a jury convicted Chhoeun for the two crimes that he claims he knew nothing about. 21 (TRO Opp. at 3.) The Government makes no reference to any appeal or ultimate 22 acquittal.

23

24

In 2003, after Chhoeun served his sentence of imprisonment, he received an order

25 of removal from an immigration judge. (Chhoeun Decl. ¶ 7.) Chhoeun was placed in

26 ICE custody pending deportation, but was released after six months because Cambodia

27 would not accept his repatriation. (Id.) When ICE released Chhoeun, in November 2003,

28

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1 ICE determined that Chhoeun presented no danger or flight risk such that his release was

2 warranted. (TRO App. at 3.)

3

4

Since November 2003, Chhoeun has had no convictions or arrests and has

5 complied with the conditions of his release. (Chhoeun Decl. ¶¶ 8–9.) For over 14 years,

6 Chhoeun has served as a productive member of his workplace, family, and community. 7 (Id.) He has been gainfully employed since 2004, and for the past three years he has 8 worked as a technician for AT&T. (Id. ¶ 9.) In 2016, he received the highest accolade

9 available to the 275 technicians employed by AT&T—technician of the year. (Id.)

10 Chhoeun is also a key decisionmaker in his family and in 2004 was called on to decide 11 whether to remove his father from life support. (Id. ¶ 10.) Since his father passed away 12 in 2004, Chhoeun has visited his mother every day. (Id. ¶ 11.) These visits are necessary

13 because his mother, whose own parents and other family members were killed by the 14 Khmer Rouge regime, suffers from several medical conditions and disabilities. (Id.) 15 Chhoeun’s hospitality extends not only to his customers and family, but also to other

16 members of the community. He recently learned that a former colleague had become

17 homeless. (Id. ¶ 12.) Although Chhoeun was living in a studio apartment, he housed and 18 helped his former colleague to obtain a job. (Id.) Through Chhoeun’s help, he was able 19 to regain employment and his own place to live. (Id.)

20

21

On October 14, 2017, Chhoeun received a letter stating that he should report to the

22 local ICE office. (Id. ¶ 13.) The letter did not explain why he was required to report or

23 whether his release would be revoked. (Id.) When Chhoeun reported to ICE, he was

24 detained without any explanation or notice. (Id.) Since his detention, Chhoeun has been 25 working with counsel to file a motion to reopen and challenge his deportation. (Dkt. 62 26 at 5 n.7.)

27
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1

2. Mony Neth

2

3

Mony Neth was born in Cambodia in 1975 and fled the Khmer Rouge with his

4 family when he was a child. (Dkt. 28-9 [Declaration of Mony Neth, hereinafter “Neth

5 Decl.”] ¶ 2.) Neth’s family arrived in the United States in 1985, and settled in Modesto,

6 California. (Id. ¶¶ 2–4.) Neth thereafter became a lawful permanent resident. Neth 7 continues to live in Modesto today with his wife, sixteen-year-old daughter, and parents, 8 all of whom are U.S. citizens. (Id. ¶ 3.)

9

10

In 1995, Neth was convicted of unlawful possession of a weapon and receipt of

11 stolen property. (Id. ¶ 4.) Neth was sentenced to four years imprisonment, but was

12 released after two and a half years. (Id.) In 1997, after Neth was released from prison,

13 ICE detained Neth for removal proceedings. (Id. ¶ 5.) Shortly after, ICE determined that 14 Neth did not pose a danger or a flight risk and released him on bond. (Id.) Neth then 15 returned to Modesto, and in the past twenty years has not been charged with any

16 additional crime. (Id.) Instead, Neth has built a family, is gainfully employed by a solar

17 energy company, and is an active member of his local church. (Id. ¶¶ 5, 12.) Through 18 his church, Neth regularly serves meals to the homeless. (Id. ¶ 12.)

19

20

On July 28, 2017, the Stanislaus County Superior Court granted Neth a Certificate

21 of Rehabilitation for his 1995 conviction. (Id. ¶ 13; Dkt. 28-12 [Declaration of Anoop

22 Prasad, hereinafter “Prasad Decl.”] Ex. B.) To support the finding of rehabilitation with

23 satisfactory proof, the Court and the District Attorney’s office completed a full

24 investigation and hearing. (Id.) The Court found that Neth “has demonstrated by the 25 course of conduct [his] rehabilitation and fitness to exercise all the civil and political 26 rights of citizenship.” (Prasad Decl. Ex. B.)

27

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1

On October 19, 2017, ICE officers unexpectedly visited Neth’s home and spoke to

2 his mother while he was at work. (Neth Decl. ¶ 8.) The next morning, ICE officers

3 stopped and arrested Neth while he was driving to work. (Id. ¶ 9.) Neth received no 4 notice or explanation why he was being detained. (Id. ¶ 10.) Neth’s family learned he 5 was being detained only after the fact, when an ICE officer drove Neth’s car to his home

6 and handed his wife the keys. (Dkt. 28-7 [Declaration of Phounsavath Khamvongsa, 7 hereinafter “Khamvongsa Decl.”] ¶ 13.)

8

9

On December 6, 2017, while Neth was being detained by ICE, the Governor of

10 California granted Neth a full and unconditional pardon. (Prasad Decl. Ex. A.) In his 11 pardon, the Governor stated that since his conviction, Neth “has lived an honest and 12 upright life, exhibited good moral character, and conducted himself as a law-abiding

13 citizen.” (Id.) The pardon nullified the immigration consequences of his conviction, and 14 formed the basis of a motion to reopen and a motion for stay of removal, which Neth 15 filed on December 13, 2017. (Supp. Prasad Decl. ¶ 6.)

16

17

Neth was one of the Petitioners who were scheduled to be deported on December

18 18, 2017, before the Court entered the temporary restraining order. (Id. ¶ 6.) In light of

19 Neth’s impending removal, his counsel requested that the Board of Immigration Appeals

20 (“BIA”) expedite the processing of the motion for a stay. (Id. ¶ 7.) After persistent 21 efforts by counsel to expedite the process, he received notice on December 21, 2017, that 22 the BIA had granted the stay. (Id. ¶¶ 7–11.) On December 22, 2017, ICE released Neth

23 from detention on an order of supervision pending the outcome of his removal

24 proceedings. (Dkt. 60 at 4–5.)

25

26

Neth’s counsel represents that Neth’s experience is extremely uncommon, and that

27 he was able to obtain a stay of removal by “sheer chance” because he knew about Neth’s 28 scheduled deportation date. (Supp. Prasad Decl. ¶ 12.) Neth’s counsel also believes that

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1 the BIA may have prioritized Neth’s motion because of his role as class representative in

2 this case. (Id.) In other words, the process of filing motions to reopen and motions for a

3 stay for other Petitioners, who also have meritorious bases to challenge their removals, 4 has not been nearly as expeditious. (Id. ¶¶ 13–18.)

5

6

3. Other Petitioners

7

8

Petitioners Chhoeun and Neth exemplify the experiences of the approximately 100

9 individuals who were detained in the October 2017 raids. Most Petitioners fled

10 Cambodia when they were small children, and the United States is the only home they 11 have ever known. (See, e.g., Dkt. 28-8 [Declaration of Rottanak Kong, hereinafter “Kong 12 Decl.”] ¶ 2.) They are subject to removal orders based on crimes they committed over a

13 decade ago, when they were in their teens and twenties. (Id. ¶ 5.) Since the removal 14 orders were issued, Petitioners were released from custody and seized upon the 15 opportunity to become productive members of their communities.

16

17

Many Petitioners have parents, siblings, spouses, and young children who are U.S.

18 citizens. (Id. ¶¶ 5, 12.) These family members rely on Petitioners for financial and

19 emotional support. (Id. ¶ 12; Khamvongsa Decl. ¶ 5; Dkt. 28-18 [Declaration of Sareang

20 Ye] ¶ 8.) To highlight just one example, an individual named Rottanak Kong who was 21 subject to the October 2017 raids cites the difficulty that his detention caused his family. 22 (See generally Kong Decl.) Kong has seven siblings who are all U.S. citizens. (Id. ¶ 3.)

23 Kong’s parents have passed away, and he is very close to his siblings. (Id. ¶¶ 3, 12.)

24 One of Kong’s sisters works with children in public schools in Oakland, California. (Id. 25 ¶ 12.) One of Kong’s brothers is an active U.S. Marine who is training to serve in 26 Afghanistan. (Id.) Another of Kong’s brothers suffers from mental health issues and

27 relies on Kong for emotional support. (Id.)

28

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1

After three months of detention, Kong’s removal proceedings were reopened and

2 then terminated. (Dkt. 62-9 [Supplemental Declaration of Rottanak Kong] ¶ 3.) He was

3 able to file a motion to reopen only through the help of his sister, and understands that 4 without his family’s assistance it would have been almost impossible to contact an 5 attorney while in detention. (Id. ¶ 6.) Although Kong has now been released from

6 detention, his absence caused significant emotional, mental, and physical stress to his 7 family. (Dkt. 62-9 [Declaration of Chen Kong-Wick] ¶¶ 6, 9.) His sister cites having to 8 miss work to take over the roles Kong had assumed in his family, including taking care of

9 their brother who suffers from mental health issues and requires significant care and

10 support. (Id.)

11

12

C. Legal Developments

13

14

According to Petitioners, fundamental changes in immigration law and Petitioners’

15 personal circumstances have transpired since the original removal orders were issued.

16 (TRO App. at 9, 11–14.) These changes have created grounds to preclude removal in

17 many of Petitioners’ cases. (Id.)

18

19

One relevant change is the Supreme Court’s decision in Judulang v. Holder, 565

20 U.S. 42 (2011). The Court there considered the BIA’s practice of granting relief from 21 removal orders under Section 212(c) of the Immigration and Nationality Act. Id. at 52. 22 The Court determined that the then-existing practice that determined whether an

23 individual would be eligible for Section 212(c) relief was “arbitrary and capricious”

24 under the Administrative Procedure Act. Id. The Court found that “[b]y hinging a 25 deportable alien’s eligibility for discretionary relief on the chance correspondence 26 between statutory categories—a matter irrelevant to the alien’s fitness to reside in this

27 country—the BIA has failed to exercise its discretion in a reasoned manner.” Id. at 53.

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1 The Court’s holding in Judulang effectively expanded the eligibility of Section 212(c)

2 waivers and has afforded some aliens a previously unavailable basis to reopen their

3 immigration proceedings. See, e.g., Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016).

4

5

Petitioners also point to recent Supreme Court jurisprudence that would give many

6 Petitioners grounds to vacate their decades-old guilty pleas and the underlying removal 7 orders. One such case is Padilla v. Kentucky, 559 U.S. 356 (2010). There, the Supreme 8 Court held that the Sixth Amendment requires attorneys to advise criminal defendants of

9 the deportation consequences of guilty pleas. Id. at 360. Petitioners urge that these

10 decisions, along with other recent developments in both state and federal law, provide 11 viable avenues to reopen and challenge their removal orders. (See, e.g., Dkt. 62 at 9.)

12

13

D. Conditions in Detention

14

15

While changed circumstances in Petitioners’ lives and the law may provide

16 meritorious grounds to challenge their removal orders, and while a few Petitioners have

17 been able to quickly file motions to reopen once they were detained, many Petitioners 18 have not been afforded this opportunity. In fact, the complex process of filing such a 19 motion, coupled with the prohibitive conditions of detention, has made it very difficult

20 for Petitioners to promptly file motions to reopen.

21

22

Filing a motion to reopen is a complicated and often prolonged process. The BIA

23 may grant a motion to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(c). The

24 motion “must be accompanied by the appropriate application for relief and all supporting 25 documentation.” 8 C.F.R. § 1003.2(c)(1). Filing motions to reopen therefore requires 26 substantial time, resources, and expertise. (Dkt. 28-16 [Declaration of Martha Ruch,

27 hereinafter “Ruch Decl.”] ¶ 17.) Attorneys working to file these motions must have 28 access to their clients and to various documents. (Id. ¶ 18.) These documents include, at

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1 a minimum, the A-File, a comprehensive immigration file maintained by the Department

2 of Homeland Security, and the Record of Proceedings, the immigration court file

3 maintained by the Executive Office for Immigration Review. (Dkt. 28-15 [Declaration of 4 Trina A. Realmuto] ¶ 9.) In some cases, attorneys can only obtain these necessary files 5 through a Freedom of Information Act request, which may not produce results for

6 months. (Id.)

7

8

It has been prohibitively difficult for many Petitioners to file motions to reopen

9 while in detention. (Prasad Decl. ¶ 11.) Because Petitioners were detained abruptly and

10 without notice, they do not have with them the critical documents to support their 11 motions. (Id.; Ruch Decl. ¶ 18.) Attorneys attempting to work with Petitioners have 12 faced an uphill battle. ICE officials initially denied attorneys access to visit Petitioners

13 who had been detained in the October 2017 raids. (Ruch Decl. ¶ 12.) The officials 14 would not provide information about who was being detained, why they were being 15 detained, and when they would be available to consult with attorneys. (Id.) When

16 attorneys have ultimately been able to meet with detained individuals, the attorneys were

17 made to wait two to three hours before doing so. (Id. ¶ 14.)

18

19

Attorneys’ attempts to maintain communication with their clients have been further

20 frustrated by the constant relocation of Petitioners to different detention centers. (Prasad 21 Decl. ¶ 13.) Many of the Petitioners detained in the October 2017 raids were first taken 22 to detention centers in California. (Ruch Decl. ¶ 11.) Soon after, they were moved to

23 detention centers in Louisiana, Arizona, Texas, and Seattle, before ultimately being sent

24 back to California. (Prasad Decl. ¶ 13; Dkt. 28-3 [Declaration of Holly Cooper, 25 hereinafter “Cooper Decl.”] ¶¶ 4–11.) During these transfers, Petitioners have been 26 forced to endure day-long bus rides and cross-country flights while shackled together like

27 a chain gang. (Chhoeun Decl. ¶ 16.) These transfers have made it difficult for attorneys 28 to contact, or even locate, their clients. (Cooper Decl. ¶¶ 4–11.)

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1

Petitioners also claim that they have been subjected to inhumane and degrading

2 conditions during their detention, including strip searches, meager meals, and denial of

3 bathroom breaks. (Chhoeun Decl. ¶¶ 14, 17.) Petitioners apparently have been forced to 4 stay in a freezing holding tank for eight hours and to sit outside on a cold night with their 5 faces against a wall. (Id. ¶ 18.) Petitioners purportedly are not allowed to speak during

6 meals, and violators of this rule have been forced to strip down to their underwear and sit 7 outside during meals. (Id.)

8

9

Petitioners also report that Cambodian government officials have attempted to

10 extort money and “gifts” from them and their families. After being detained, many 11 Petitioners were transported to Louisiana to conduct interviews with the Cambodian 12 consulate. (Dkt. 28-1 [Declaration of Jessica Castellanos, “Castellanos Decl.”] ¶¶ 11–

13 12.) During and after the interviews, Cambodian officials have promised to help prevent 14 deportation if they gave the officials certain “gifts,” including Rolex watches, designer 15 perfume, cash, and iPhones. (Castellanos Decl. ¶¶ 12–13; Ruch Decl. ¶ 15; Dkt. 28-19

16 [Redacted Declaration No. 1] ¶¶ 12–14; Dkt. 28-20 [Redacted Declaration No. 2,

17 hereinafter “Redacted Decl. 2”] ¶¶ 14–15.) The Cambodian officials have asked 18 detainees for their family members’ contact information to facilitate the bribes, and have 19 in fact contacted family members to demand the “gifts.” (Id.) The officials have also

20 warned Petitioners that if they report these extortionate demands, they will face 21 consequences when they are deported to Cambodia. (Redacted Decl. 2 ¶ 15.)

22

23

Many Petitioners have been foreclosed from filing motions to reopen in light of the

24 administrative complexity of such motions, the inability to access counsel while being 25 shuttled between various detention facilities, and the physical, emotional, and mental toll 26 that detention has inevitably taken on them. In light of these obstacles, Petitioners

27 request a brief stay of deportations until February 5, 2018, to give the individuals who

28

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1 want to file motions to reopen that opportunity. Due process requires they be given this

2 opportunity.

3
4 III. LEGAL STANDARD

5

6

A “plaintiff seeking a preliminary injunction must establish that he is likely to

7 succeed on the merits, that he is likely to suffer irreparable harm in the absence of

8 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

9 the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);

10 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 11 “[S]erious questions going to the merits and a balance of hardships that tips sharply 12 towards the plaintiff can support issuance of a preliminary injunction, so long as the

13 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction 14 is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 15 Cir. 2011) (quotations omitted).

16

17 IV. DISCUSSION

18

19

A. Jurisdiction

20

21

The Government urges the Court to deny Petitioners injunctive relief and insists

22 the Court lacks jurisdiction to decide whether due process entitles Petitioners to a stay of

23 removal. The Court will address this threshold question of jurisdiction before addressing

24 the merits of the preliminary injunction. “The requirement that jurisdiction be 25 established as a threshold matter springs from the nature and limits of the judicial power 26 of the United States and is inflexible and without exception.” Steel Co. v. Citizens for a

27 Better Env’t, 523 U.S. 83, 94–95 (1998) (citation and quotations omitted). “Without 28 jurisdiction the court cannot proceed at all in any cause.” Id. (quoting Ex parte

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1 McCardle, 7 Wall. 506, 514 (1868)). Where jurisdictions exists, however, “a federal

2 court’s obligation to hear and decide a case is virtually unflagging.” Sprint Commc’ns,

3 Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (citation and quotations omitted).

4

5

The Government claims that Congress unambiguously stripped this Court of

6 jurisdiction over Petitioners’ request when it enacted the 2005 REAL ID Act, 8 U.S.C. § 7 1252. The Government cites to specific provisions of the Act, namely sections 8 1252(a)(5), 1252(b)(9), and 1252(g), and argues that the statutory scheme clearly bars the

9 Court from exercising jurisdiction in this case. Section 1252(a)(5) provides that, “a

10 petition for review filed with an appropriate court of appeals . . . shall be the sole and 11 exclusive means for judicial review of an order of removal.” Section 1252(b)(9) provides 12 that, “[j]udicial review of all questions of law and fact, including interpretation and

13 application of constitutional and statutory provisions, arising from any action taken or 14 proceeding brought to remove an alien from the United States under this subchapter shall 15 be available only in judicial review of a final order under this section.” Finally, Section

16 1252(g) provides that, “[e]xcept as provided in this section . . . no court shall have

17 jurisdiction to hear any cause or claim by or on behalf of any alien arising from the 18 decision or action by the Attorney General to commence proceedings, adjudicate cases, 19 or execute removal orders against any alien under this chapter.”

20

21

The Government’s argument is not persuasive and is in clear contravention of

22 controlling Ninth Circuit authority. The Ninth Circuit has, on a number of occasions,

23 construed the provisions cited by the Government and has consistently held that district

24 courts have jurisdiction when, as in this case, petitioners do not directly challenge their 25 orders of removal, but rather assert a due process right to challenge the orders in the 26 appropriate court. See, e.g., United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir.

27 2004) (the REAL ID Act was directed to impose judicial constraints upon prosecutorial 28 discretion, and does not bar jurisdiction where the gravamen of the claim does not

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1 challenge the Attorney General’s discretionary authority to commence proceedings,

2 adjudicate cases, or execute removal orders).

3

4

For example, in Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), the Court held

5 that Sections 1252(a)(5) and 1252(b)(9) of the REAL ID Act did not strip district court

6 jurisdiction over petitioner’s ineffective assistance of counsel claim in a habeas petition. 7 The petitioner brought the petition after his counsel missed the thirty-day deadline to 8 appeal an immigration judge’s decision in the Ninth Circuit. Id. at 973. The petitioner

9 was not challenging the merits of the immigration judge’s decision in the district court,

10 but merely sought to restart the thirty-day period to file a petition for review. Id. at 979. 11 Given the nature of the requested relief, the Court held that the petition “cannot be 12 construed as seeking judicial review of his final order of removal, notwithstanding his

13 ultimate goal or desire to overturn that final order of removal.” Id. Accordingly, the 14 petition fell outside of the statutory provisions’ jurisdictional bar, and the district court 15 had jurisdiction to consider it. Id.

16

17

The Ninth Circuit has also rejected the argument that Section 1252(g) of the Act

18 bars Petitioners from bringing due process claims to reopen their immigration

19 proceedings. In Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), plaintiffs were

20 immigrants who were accused of committing civil document fraud and were 21 subsequently ordered removed. Plaintiffs alleged that the forms they received in 22 connection with the document fraud charges did not adequately advise them of their

23 rights, in violation of the due process clause, and sought, inter alia, injunctive relief to

24 reopen their removal proceedings. Id. at 1037. The Ninth Circuit held that Section 25 1252(g) did not bar the district court’s jurisdiction because the “claims do not arise from 26 a decision or action by the Attorney General to commence proceedings, adjudicate cases,

27 or execute removal orders against any alien, but instead constitute general collateral 28 challenges to unconstitutional practices and policies used by the agency.” Id. at 1052

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1 (citations and quotations omitted). The court explained that plaintiffs’ “objective was not 2 to obtain judicial review of the merits of their [immigration] proceedings, but rather to 3 enforce their constitutional rights to due process in the context of those proceedings.” Id. 4 “Moreover, if the plaintiffs prevail on their claims, they will not be entitled to any 5 substantive benefits; rather, they will only be entitled to reopen their proceedings.” Id.

6

7

Contrary to the Government’s assertion, the Court has jurisdiction to hear

8 Petitioners’ claims regarding due process violations and to order adequate injunctive

9 relief. As in Singh and Walters, Petitioners do not seek review of the viability of their

10 removal orders in the district court. In other words, Petitioners do not directly challenge

11 the bases for their orders of removal. Instead, Petitioners seek an opportunity to

12 challenge the removal orders. Petitioners merely request that their deportations be

13 delayed until they can file motions to reopen and until they can avail themselves of the

14 administrative system that exists to litigate meritorious motions to reopen. The relief

15 Petitioners request will not entitle them to any substantive benefits; it is limited to “a day

16 in court” to comport with due process. See Singh, 499 F.3d at 979.2

17

18

B. Likelihood of Success on the Merits

19

20

Petitioners are likely to succeed on the merits of their claim that due process

21 guarantees a meaningful opportunity to file and litigate motions to reopen before they are

22 deported. (FAC ¶¶ 76–79.) It is “well established that aliens facing deportation from this

23 country are entitled to due process rights under the Fifth Amendment.” Walters, 145 F.

24 3d at 1037. “Procedural due process imposes constraints on governmental decisions

25 which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the

26

27
2 Because the Court finds that the REAL ID Act does not bar jurisdiction, the Court declines to address 28 the parties’ dispute as to whether the REAL ID Act violates the Suspension Clause of the Constitution.
See Singh v. Gonzales, 499 F.3d 969, 980 (9th Cir. 2007).
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1 Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424

2 U.S. 319, 332 (1976). “The fundamental requirement of due process is the opportunity to

3 be heard at a meaningful time and in a meaningful manner.” Id. at 333 (citations and 4 quotations omitted). “Due process, unlike some legal rules, is not a technical conception 5 with a fixed content unrelated to time, place and circumstances. Due process is flexible

6 and calls for such procedural protections as the particular situation demands.” Id. at 334 7 (citations and quotations omitted). To determine the procedural protections, the Court 8 balances three factors: “(1) the private interest affected; (2) the risk of erroneous

9 deprivation through the procedures used, and the value of additional safeguards; and (3)

10 the government’s interest, including the burdens of additional procedural requirements.” 11 Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (citing Mathews, 424 U.S. at 12 335).

13

14

1. The Private Interest Affected

15

16

The liberty of Petitioners is undoubtedly at stake, and this interest cannot be

17 trivialized. Bridges v. Wixon, 326 U.S. 135, 154 (1945) (deportation “visits a great 18 hardship on the individual and deprives him of the right to stay and live and work in this 19 land of freedom”). Many Petitioners have been living in the United States since they

20 were small children, and have remained in this country for decades after they were 21 ordered removed to Cambodia. They have grown up in our communities, obtained 22 gainful and productive employment, and raised families of their own. For these

23 Petitioners, being deported to Cambodia means starting their lives over in a foreign

24 country and apart from their loved ones. Petitioners clearly have a strong liberty interest 25 in remaining in this country. Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 26 1045, 1068–69 (9th Cir. 1995) (“Aliens who have resided for more than a decade in this

27 country . . . have a strong liberty interest in remaining in their homes.”).

28

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1

The Government asserts that Petitioners’ liberty interest is weak, because

2 Petitioners knew they were subject to removal orders and should have expected to be

3 deported at any instant. The Government’s argument is insensitive and ignores the strong 4 ties that Petitioners have developed over the years in this country. When Petitioners were 5 initially ordered removed to Cambodia, the Government was unable to carry out the

6 deportations, determined that Petitioners did not pose a danger to society, and released 7 them from custody to live at large in their communities for decades. It is disingenuous 8 for the Government to claim that throughout the many years that Petitioners were

9 permitted to live and work on supervised release, they should not have built up any

10 expectation that they would be permitted to remain in the country. Petitioners should 11 instead be commended for investing in and becoming productive members of our 12 communities notwithstanding their removal orders. Because Petitioners did so, instead of

13 wallowing in limbo while waiting to be deported, they have deepened their interest in 14 remaining in this country. For the Government now to ignore Petitioners’ strong ties and 15 commitment to this country is deeply troubling.

16

17

2. The Risk of Erroneous Deprivation and Value of Safeguards

18

19

The exceptional circumstances at issue in this case create a high risk of erroneous

20 deprivation absent a stay of deportations. The manner in which Petitioners were detained 21 and the conditions of detention have made it prohibitively difficult for Petitioners with 22 meritorious challenges to file motions to reopen. First, ICE officers rounded up

23 Petitioners without any notice; Petitioners were detained without any explanation while

24 in their homes, on their way to work, or during impromptu meetings with ICE. 25 Petitioners were therefore unable to gather the necessary documents relating to their 26 immigration and conviction histories to file motions to reopen. Once in detention,

27 Petitioners have had very restricted access to attorneys. Attorneys have been made to 28 wait hours before gaining any information about Petitioners or meeting with Petitioners,

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1 and have not been able to access Petitioners while they are being transported to and from

2 detention facilities around the country.

3

4

Notwithstanding these many obstacles, some Petitioners have been successful in

5 consulting with attorneys and filing motions to reopen. For example, Petitioner Neth,

6 with the help of his family, was able to contact counsel and vacate his removal order 7 while in custody. But the record shows that, absent the Court’s entry of a temporary 8 restraining order, Neth may very well have been erroneously removed to Cambodia.

9 According to Neth’s counsel, Neth was scheduled to be deported on a flight scheduled for

10 December 18, 2017, and he would have been on the flight but for the temporary 11 restraining order. Even though Neth’s counsel acted expeditiously to request a stay of 12 Neth’s deportation, he did not receive notice of the stay until December 21, 2017. The

13 experience of Petitioner Neth reveals that even in the limited circumstances when 14 Petitioners are able to expeditiously file motions to reopen, the haste with which the 15 Government seeks to deport Petitioners creates a high risk of erroneous deprivations of

16 liberty absent the Court’s entry of injunctive relief.

17

18

The Government argues that the administrative procedures generally available to

19 any individual seeking to challenge his or her removeability make it unlikely that

20 Petitioners would be removed erroneously. The Government claims that these 21 administrative procedures were available to Petitioners while Petitioners were on 22 supervised release, and that Petitioners should have taken advantage of these procedures

23 before they were re-detained by ICE. The Government further claims that because

24 Petitioners essentially sat on their rights and did not avail themselves of the 25 administrative procedures, any erroneous removals are self-inflicted.

26

27

The Government’s argument is based on a number of unrealistic assumptions and

28 evades the pertinent issue. Petitioners had been living undisturbed under supervised

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1 release for decades, and reasonably concluded that removal, particularly imminent

2 removal, was unlikely. Moreover, until their recent re-detention, many Petitioners were

3 not aware of the legal developments that could potentially nullify their removal orders. 4 Petitioners therefore had no compelling or urgent reasons, prior to their re-detention, to 5 incur the significant time and expense of retaining counsel to file a motion to reopen.

6 Hamama v. Adducci, 261 F. Supp. 3d 820, 837–38 (E.D. Mich. 2017) (Petitioners, Iraqi 7 nationals who had been living peaceably in their communities subject to removal orders 8 for over a decade, “had little reason to suspect that the effort and cost of preparing a

9 motion to reopen—up to $80,000 in a case of this nature—was necessary.”).

10

11

At issue is not whether Petitioners were afforded sufficient procedural safeguards

12 prior to their re-detention, when Petitioners had no notice that filing motions to reopen

13 was necessary. The relevant question is whether Petitioners are at risk of an erroneous 14 deprivation of liberty now, if they are not afforded additional time to file and litigate 15 motions to reopen. The Court concludes that such a risk is likely and due process

16 requires that Petitioners be given an opportunity to file their motions now that they are on

17 notice and have compelling reasons to do so.

18

19

3. The Governmental Interest

20

21

The relief that Petitioners seek does not materially impinge on the Government’s

22 interests. The Government claims that the grant of an injunction here would incentivize

23 every alien to file eleventh hour motions to stay and disrupt the removal system. The

24 Government also claims that granting stays of removal may cause travel documents to 25 expire and require the Government to restart the removal process.

26

27

The Government’s claims are overstated. The Court’s grant of injunctive relief

28 here can hardly be construed as providing “every alien” an additional opportunity to file a

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1 motion to stay. The Court’s decision is based on the unusual circumstances Petitioners

2 have faced since their removal orders were issued, including the significant passage of

3 time and the abrupt manner in which ICE decided to re-detain Petitioners en masse. 4 Moreover, the Government has provided no evidence that travel papers will actually 5 expire if the relief Petitioners request is granted in this case. The Government has

6 represented that the travel papers that have been issued to Petitioners are valid for 180 7 days, so the stay of deportations until February 5, 2018, will not cause any of the papers 8 to expire. For those Petitioners whose motions to reopen are successful and whose

9 immigration proceedings last longer than 180 days, it appears in all likelihood that those

10 Petitioners’ removal orders will be vacated and the Government will not have to restart 11 removal proceedings for them. Simply put, the Government’s concern about the 12 expiration of travel papers is unfounded.

13

14

In reality, the Governmental interest at stake is minimal and amounts to a delay of

15 a few weeks before it can begin deporting Petitioners. This minimal interest does not

16 warrant a denial of Petitioners’ due process rights.

17

18

4. The Procedural Protections

19

20

The scope of the injunctive relief that Petitioners seek is necessary to protect

21 Petitioners’ due process rights here. The extraordinary circumstances of this case—the

22 long dormant removal orders, the changes in the law and in Petitioners’ lives, the sudden

23 and unexpected threat of deportation, and the barriers to accessing attorneys while in

24 detention—have undermined Petitioners’ ability to avail themselves of the administrative 25 procedures to protect them from erroneous removals. To ensure that erroneous removals 26 do not occur, Petitioners must be afforded sufficient time to file motions to reopen, and

27 must be afforded judicial review of those motions before they are removed from this 28 country. Hamama, 261 F. Supp. 3d at 839 (“Because an injunction pending adjudication

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1 of the motions and the filing of petitions for review in the courts of appeals would allow

2 for the requisite judicial review, its issuance is necessary to vindicate Petitioners’ habeas

3 rights.”). The requested injunction will ensure that Petitioners have adequate time and 4 opportunity to access the system that has been constructed to prevent erroneous removals; 5 it is a system that includes the thorough exhaustion of an administrative process and

6 judicial review by the appropriate court of appeals. The Court finds that the requested 7 procedural protections are necessary to comport with due process.

8

9

C. Irreparable Harm, Balance of Equities, and Public Interest

10

11

In addition to a likelihood of success on the merits, Petitioners must establish that

12 they are likely to suffer irreparable harm in the absence of preliminary relief, the balance

13 of equities tip in their favor, and the public interest favors granting the injunction. 14 Hernandez v. Sessions, 872 F.3d 976, 994–95 (9th Cir. 2017) (citing Winter, 555 U.S. at 15 20).

16

17

The Court has found that Petitioners are likely to succeed on their claim that

18 removal without an opportunity to file and litigate motions to reopen constitutes a

19 deprivation of Petitioners’ due process rights. Further, “[i]t is well established that the

20 deprivation of constitutional rights unquestionably constitutes irreparable injury.” Id. at 21 994. It logically follows that Petitioners have met their burden to establish a likelihood of 22 irreparable injury. Id.

23

24

The equities also tip in Petitioners’ favor. The Court has already determined that

25 the Governmental interest at stake is minimal, and amounts to a brief delay of the

26 deportations. The Government will not be required to restart the process of issuing travel

27 papers for Petitioners, nor does the Government face any other risk to the integrity of the 28 removal process. The minimal administrative costs to the Government are far

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1 outweighed by the considerable harm to Petitioners’ constitutional rights in the absence 2 of the injunction. The injunction will also potentially prevent the unnecessary harm that 3 would inevitably arise in the case of an erroneous removal, including Petitioners being 4 forced to rebuild their lives in an unfamiliar country, far away from the ones they love 5 and support.

6

7

The public interest also undoubtedly favors entry of a preliminary injunction. The

8 injunction will serve the interests of the general public by ensuring that Petitioners’ due

9 process rights are not violated. Hernandez, 872 F.3d at 996 (“Generally, public interest

10 concerns are implicated when a constitutional right has been violated, because all citizens

11 have a stake in upholding the Constitution.”). The preliminary injunction is also in the

12 interest of Petitioners’ families and communities. The record contains substantial

13 evidence indicating that removal of Petitioners would result in a significant emotional,

14 psychological, and physical strain on their families and children, and that churches and

15 workplaces would be deprived of Petitioners’ support and active engagement.3

16

17

For these reasons, the Court finds that Petitioners face a likelihood of irreparable

18 harm and the balance of equities and the public interest weigh in favor of granting the

19 requested preliminary injunction.

20
21 // 22 // 23 // 24 //

25

26 3 The Government’s argument that the public’s interest in the prompt execution of removal orders would 27 be compromised by a preliminary injunction is belied by the Government’s own conduct in this case.
The Government has acted all but promptly to enforce the removal orders, and has instead permitted 28 Petitioners to live at large in the United States for decades. The Government cannot now in good faith
claim any interest in acting quickly to remove Petitioners to Cambodia.
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1 V. MOTIONS TO WITHDRAW

2

3

After the Court entered its temporary restraining order on December 14, 2017,

4 seventeen individuals filed motions to withdraw, which are pending in this case.4 (See

5 Dkts. 42–45, 47–59.) The motions were filed on January 8, 2018, and are identical. (Id.)

6 The motions state that each movant seeks to withdraw from the suit “where this court had

7 grant [sic] an Injunctive Order preventing Immigration Customs and Enforcement

8 (“ICE”) from executing the plaintiff’s order of removal to the country of Cambodia.”

9 (See id.) The motions further state that “[t]he plaintiff wish to be deported immediately

10 and waive any rights he may have in re-opening his immigration case for relief.” (Id.) It

11 appears these motions were filed by individuals who believe they are class members in

12 this case and who are currently being detained in a detention center in Sierra Blanca,

13 Texas. It also appears that these individuals wish to be excluded from the preliminary

14 injunction at issue.

15

16

Subsequently, Petitioners filed a statement of non-opposition to the motions to

17 withdraw, (Dkt. 61), and the Government filed a statement of partial opposition, (Dkt.

18 67). Petitioners indicate that Petitioners’ counsel endeavored to contact each of the

19 movants to determine whether they consulted with attorneys before filing their motions.

20 Petitioners represent that two of the movants, Theth Keth, (Dkt. 42), and Sokhan Khim,

21 (Dkt. 48), are not class members because their current detention is the first time they have

22 been in ICE custody. Petitioners also state that Petitioners’ counsel have not been able to

23 contact two of the movants, namely Lim Lok (Dkt. 43) and Khun Dum (Dkt. 45). As to

24 the remaining thirteen movants, Petitioners’ counsel have been informed that they

25 consulted with an attorney and Petitioners have no opposition to their exclusion.

26

27
4 An eighteenth motion to withdraw was filed by Saloeun Chea, (Dkt. 46), but Mr. Chea subsequently 28 filed a motion to reinstate himself as a party in this case, (Dkt. 71). Mr. Chea’s motion to reinstate is
hereby GRANTED and his motion to withdraw is DENIED AS MOOT.
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1

The Government indicates that it does not oppose the movants’ request to be

2 excluded from the preliminary injunction and to be removed to Cambodia. The

3 Government opposes the motions, however, to the extent that they imply the Court has 4 the authority to determine the rights of movants and to issue an injunction that covers 5 putative class members. The Government suggests that the Court may grant an

6 injunction that affects the rights of putative class members only after the Court certifies 7 the class.

8

9

As an initial matter, the Court rejects the Government’s contention that putative

10 class members are not entitled to enjoy the benefits of a preliminary injunction before the 11 class is certified. By their very nature, preliminary injunctions are properly entered in 12 emergency situations to enjoin imminent, irreparable harm. The impending irreparable

13 harm at issue may very well require entry of a preliminary injunction before the parties 14 can engage in the lengthy process of gathering evidence and submitting arguments in 15 support of a motion for class certification. There is no authority that suggests putative

16 class members are not entitled to any injunctive relief while they await class certification.

17

18

The only authority the Government cites in support, Zepeda v. U.S. I.N.S., 753

19 F.2d 719 (9th Cir. 1983), is inapposite. Zepeda only stands for the proposition that after a

20 motion to certify a class was expressly denied, the court was limited to entering an 21 injunction only as to the individual plaintiffs. Id. at 727. Zepeda does not apply where, 22 as here, an injunction is necessary to forestall harm to putative class members that is

23 likely to transpire before the parties can litigate a motion for class certification. Just

24 Film, Inc. v. Merch. Servs., Inc., 474 F. App’x 493, 495 (9th Cir. 2012) (“We do not read 25 Zepeda to preclude our result because in Zepeda the trial court had denied class 26 certification and here the trial court has not yet decided the class certification issue.”).

27

28

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1

The Court therefore holds that the preliminary injunction shall extend to the subset

2 of 92 putative class members who are subject to travel orders or are expected to receive

3 travel orders. If any of the seventeen movants belong in this subset, the movant’s motion 4 to withdraw is GRANTED and the movant shall be excluded from the preliminary 5 injunction.

6
7 VI. CONCLUSION

8

9

For the foregoing reasons, Petitioners’ request for injunctive relief is GRANTED.

10 A preliminary injunction will issue concurrent with this order.

11

12

13

14

DATED: January 25, 2018

15

__________________________________

16

CORMAC J. CARNEY

17

UNITED STATES DISTRICT JUDGE

18

19

20

21

22

23

24

25

26

27

28

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 Case 8:17-cv-01898-CJC-GJS Document 91 Filed 03/14/18 Page 1 of 5 Page ID #:1223

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

)

12

) Case No.: SACV 17-01898-CJC(GJSx)

)

13 14

NAK KIM CHHOEUN AND MONY NETH, individually and on behalf of a

) ) )

class of similarly situated individuals, )

15

) ORDER OVERRULING

) RESPONDENTS’ OBJECTION TO

16

Petitioners,

) NOTICE OF RELATED CASE )

17

v.

) )

18

)

DAVID MARIN, DAVID JENNINGS, )

19 20

THOMAS HOMAN, ELAINE DUKE, JEFFERSON SESSIONS III, SANDRA

) ) )

HUTCHENS, AND SCOTT JONES, )

21

)

)

22

Respondents.

) )

23

)

)

24

25
26 // 27 //

28

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Case 8:17-cv-01898-CJC-GJS Document 91 Filed 03/14/18 Page 2 of 5 Page ID #:1224

1

Currently before the Court are two cases that arise out of an alleged aggressive

2 campaign by United States Immigration and Customs Enforcement (“ICE”), beginning in

3 2017, to arrest and detain groups of individuals from specific immigrant communities.

4 The first case, Nak Kim Chhoeun, et al. v. David Marin, et al., Case No. 17-cv-01898-

5 CJC-GJS (“Chhoeun”), was filed on October 27, 2017, and was brought on behalf of a

6 putative class of Cambodian citizens. (See Chhoeun Dkts. 1, 27.) The second case,

7 Hoang Trinh, et al. v. Thomas Homan, et al., Case No. 18-cv-00316-CJC-GJS (“Trinh”),

8 was filed on February 22, 2018, and was brought on behalf of two putative classes of

9 Vietnamese citizens. (Trinh Dkt. 1.)

10

11

Many of the allegations in these two cases are identical or similar. The Chhoeun

12 Petitioners allege that they fled Cambodia as small children in the 1970s and 1980s to

13 escape the Khmer Rouge’s violent regime. They were then ordered removed to

14 Cambodia because they were convicted of crimes, generally when they were in their

15 teens or early twenties. When the removal orders were issued, Cambodia refused to

16 accept their repatriation, so the Chhoeun Petitioners were released from ICE custody and

17 returned to their homes. Since their release, which in many instances occurred decades

18 ago, they have lived and worked peaceably in their communities. Then, beginning in

19 October 2017, ICE abruptly began re-detaining the Chhoeun Petitioners allegedly without

20 any evidence that Cambodia would accept their repatriation. Based on these allegations,

21 the Chhoeun Petitioners bring the following claims: (1) unlawful revocation of release,

22 (2) violation of procedures for revocation of release, (3) unlawful detention where

23 removal is not reasonably foreseeable, (4) unlawful detention without individualized

24 determinations of danger and flight risk, and (5) unlawful removal without due process.

25
26 // 27 // 28 //

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Case 8:17-cv-01898-CJC-GJS Document 91 Filed 03/14/18 Page 3 of 5 Page ID #:1225

1

The Trinh Petitioners allege that they fled war-torn Vietnam sometime before

2 1995, when they were young children or teenagers, and have resided in the United States

3 ever since. The Trinh Petitioners were at one point lawful permanent residents of the

4 United States, but they lost their green cards and were ordered removed to Vietnam

5 because they were convicted of crimes. Some of the Trinh Petitioners, like the Chhoeun

6 Petitioners, were ordered removed many years ago but were released from ICE custody

7 and lived peaceably in their communities. Then, like in Chhoeun, ICE abruptly began re-

8 detaining them in October 2017 without explanation. Other Trinh Petitioners were

9 recently detained after being arrested on criminal charges. The Trinh Petitioners allege

10 that a 2008 repatriation agreement between Vietnam and the United States expressly

11 prohibits the removal of any immigrant who entered the United States before July 12,

12 1995. Because they entered the United States before this date, their removals are not

13 reasonably foreseeable and, in turn, their detentions are unlawful. Based on these

14 allegations, the Trinh Petitioners bring the following claims: (1) unlawful detention

15 where removal is not reasonably foreseeable, and (2) unlawful detention without

16 individualized determinations of danger and flight risk.

17

18

On February 23, 2018, one day after Trinh was filed, the Chhoeun Petitioners filed

19 a Notice of Related Case indicating that Trinh and Chhoeun involve various factual and

20 legal similarities. (Chhoeun Dkt. 83.) On February 28, 2018, Respondents in Chhoeun

21 filed an objection to the Notice of Related Case. (Chhoeun Dkt. 84.) Respondents argue

22 that the cases are not related because the only similarity between the two actions is the

23 allegation of illegal detention. (Id. at 2.) On March 7, 2018, the Chhoeun Petitioners

24 filed a response to Respondents’ objection. (Chhoeun Dkt. 88.) Petitioners assert that

25 while the actions are not identical, they are related because they both involve the same

26 allegations of ICE’s conduct, call for consideration of similar constitutional and statutory

27 issues, and name as Respondents the United States Secretary of Homeland Security, the

28

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Case 8:17-cv-01898-CJC-GJS Document 91 Filed 03/14/18 Page 4 of 5 Page ID #:1226

1 United States Attorney General, and ICE officials. (Id. at 1–2.) The Court agrees with 2 Petitioners.

3

4

Pursuant to this Court’s Local Rule 83-1, a Notice of Related Case shall be filed

5 when two or more civil cases filed in this District:

6

7

(a) arise from the same or a closely related transaction, happening, or event;

8

(b) call for determination of the same or substantially related or similar

9

questions of law and fact; or

10

(c) for other reasons would entail substantial duplication of labor if heard by

11

different judges.

12
13 When a party files a Notice of Related Case, the judge assigned to the earlier filed case 14 may accept a transfer of the later filed case. See General Order No. 16-05. A district 15 court’s decision to accept transfer of a related case is discretionary. See Escandon v. Cty. 16 of Los Angeles, 700 F. App’x 586, 587 (9th Cir. 2017) (citing Hinton v. Pac. Enters., 5 F. 17 3d 391, 395 (9th Cir. 1993)).

18

19

The Court finds that Chhoeun and Trinh are related for all of the reasons

20 enumerated in the Local Rule. First, the cases arise out of closely related events—ICE’s

21 decision in the fall of 2017 to abruptly round up and re-detain groups of immigrants from

22 certain countries that have historically restricted repatriation. Both Chhoeun and Trinh

23 are brought on behalf of these immigrants who have been detained or are at risk of

24 detention, and challenge the detention as a violation of specific immigration statutes and

25 of due process. Petitioners in both cases allege their detention is unlawful because there

26 is no evidence that removal to Cambodia or Vietnam is likely in the reasonably

27 foreseeable future.

28

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Case 8:17-cv-01898-CJC-GJS Document 91 Filed 03/14/18 Page 5 of 5 Page ID #:1227

1

Consequently, the claims for relief in both actions will call for the determination of

2 similar, if not identical, statutory and constitutional issues. One of the key statutes

3 relevant to both cases is 8 U.S.C. § 1231. According to Petitioners in both cases, Section

4 1231 makes it unlawful for ICE to detain individuals for more than 90 days or, in certain

5 limited circumstances, 180 days.

6

7

Requiring two separate judges to make these complex statutory and constitutional

8 determinations will result in substantial duplication of efforts and risk inconsistent

9 judgments. Respondents are correct that the class definitions proposed in each action

10 differ, and there are distinguishing facts relevant to each putative class that may bear on

11 the outcome of these actions. Respondents point out that removals to Cambodia are

12 arranged under a 2002 Memorandum of Understanding, while removals to Vietnam are

13 subject to a 2008 agreement with the United States. Nevertheless, significant factual and

14 legal similarities remain. Both actions arise out of the abrupt re-detention of specific

15 immigrant communities around the same time, both actions allege the detention is

16 unlawful as removal is not likely to occur, and both actions invoke the same statutory and

17 constitutional authorities. Therefore, requiring the actions to proceed independently will

18 result in substantial duplication of efforts and risk disparate constructions of the same

19 legal authorities.

20

21

For these reasons, the Court hereby OVERRULES Respondents’ objection.

22

23

24

25

DATED: March 14, 2018

26

27

28

__________________________________ CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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Nak Kim Chhoeun et al v. David Marin et al, Docket No. 8:17-cv-01898 (C.D. Cal. Oct 27, 2017), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Central District of California; United States District Court for the Central District of California
Other Immigration Actions[465]
8:17-cv-01898

© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 6

Nak Kim Chhoeun et al v. David Marin et al, Docket No. 8:17-cv-01898 (C.D. Cal. Oct 27, 2017), Court Docket
Notes
No Notepad Content Found
© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 7

 
 Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 1 of 15 Page ID #:1851

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

)

12

) Case No.: SACV 17-01898-CJC(GJSx)

)

13 14

NAK KIM CHHOEUN AND MONY NETH, individually and on behalf of a

) ) )

class of similarly situated individuals, )

15

) ORDER DENYING THE

) GOVERNMENT’S MOTION TO

16

Petitioners,

) DISMISS AND GRANTING RELIEF ) ON UNLAWFUL DETENTION

17

v.

) CLAIMS )

18

)

DAVID MARIN, DAVID JENNINGS, )

19 20

THOMAS HOMAN, ELAINE DUKE, JEFFERSON SESSIONS III, SANDRA

) ) )

HUTCHENS, AND SCOTT JONES, )

21

)

)

22

Respondents.

) )

23

)

)

24

25
26 // 27 // 28 //

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 2 of 15 Page ID #:1852

1 I. INTRODUCTION

2

3

Petitioners Nak Kim Chhoeun and Mony Neth bring this habeas petition on behalf

4 of themselves and a putative class of Cambodian nationals who were abruptly rounded up

5 by immigration officials, detained, and threatened with imminent deportation.1

6 Petitioners were living and working peaceably in their communities for many years

7 before immigration officials suddenly took them from their homes in October 2017.

8 Petitioners were not given any notice of their detention or an opportunity to contest their

9 deportation to Cambodia.

10

11

Petitioners challenge the Government’s conduct as a violation of due process and

12 seek relief from detention.2 Petitioners bring the following claims for relief in their

13 habeas petition: (1) unlawful revocation of release, (2) violation of procedures for

14 revocation of release, (3) unlawful detention where removal is not reasonably

15 foreseeable, (4) unlawful detention without individualized determinations of danger and

16 flight risk, and (5) unlawful removal without due process guaranteed by the Constitution.

17 (See generally Dkt. 27 [First Amended Habeas Corpus Petition and Complaint,

18 hereinafter “FAC”].)

19

20

The Government has moved to dismiss Claims One, Two, and Five, primarily for

21 lack of jurisdiction. The Government’s motion is DENIED, as the Court has jurisdiction

22 over Petitioners’ habeas petition and can properly consider whether their due process

23 rights have been violated.

24

25 1 For purposes of this Order, “Petitioners” refers only to the two named Petitioners, Nak Kim Chhoeun

26

and Mony Neth. 2 “The Government” refers to Respondents David Marin, Field Office Director, Los Angeles Field

27 Office, United States Immigration and Customs Enforcement; David Jennings, Field Office Director, San Francisco Field Office, United States Immigration and Customs Enforcement; Kirstjen Nielsen,

28 Secretary of the Department of Homeland Security; and Jefferson Sessions III, United States Attorney

General.

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 3 of 15 Page ID #:1853

1

The Government has also filed a return on Claims Three and Four, and Petitioners

2 have traversed. The Government seeks a dismissal of these habeas claims, while

3 Petitioners seek an order declaring their detention unlawful and an order of release for

4 Chhoeun. The Court finds, based on the record before it, that Chhoeun’s abrupt arrest,

5 detention and threatened deportation were unlawful. Accordingly, Chhoeun’s request for

6 habeas relief is GRANTED.

7
8 II. BACKGROUND

9

10

Petitioners Nak Kim Chhoeun and Mony Neth filed this action seeking a writ of

11 habeas corpus on behalf of themselves and a putative class of Cambodian nationals who

12 have been detained in raids conducted by United States Immigration and Customs

13 Enforcement (“ICE”). Petitioners were on supervised release and living peaceably in

14 their communities when they were abruptly detained, without any notice, in October

15 2017. Petitioners are among approximately 100 Cambodian nationals who were rounded

16 up and detained around the same time.

17

18

Petitioners then learned in December 2017 that ICE intended to deport them within

19 days. Petitioners believe that ICE detained and seeks to deport them with unprecedented

20 speed, not because anything has changed in their personal circumstances, but because the

21 Government wishes to put pressure on Cambodia to facilitate U.S. removal efforts.

22 Petitioners contend this conduct deprived them the right to contest their removal orders in

23 the appropriate courts and amounts to a denial of due process.

24

25

A. Procedural History

26

27

Petitioners brought this action on October 27, 2017, soon after ICE arrested and

28 detained them without notice. (Dkt. 1 [Complaint]; see also FAC.) In early December

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 4 of 15 Page ID #:1854

1 2017, after Petitioners had been detained for approximately two months, they learned that 2 the first flight to Cambodia was scheduled for the morning of December 18, 2017, and 3 that the Government planned to complete removals by the end of that month. (Dkt. 28 at 4 1.) In light of the imminent removals, Petitioners filed an application for a temporary 5 restraining order on December 12, 2017, asking the Court to stay deportations for 6 approximately 60 days until February 5, 2018. (See generally id.) Petitioners explained 7 that this additional, limited time was necessary to give those who wanted to file motions 8 to reopen their removal orders an opportunity to do so. (Id.)

9

10

The Court granted the temporary restraining order on December 14, 2017, and

11 ordered the Government to show cause why a preliminary injunction should not be

12 issued. (Dkt. 32.) After additional briefing and evidence submitted by the parties, the

13 Court entered a preliminary injunction on January 25, 2018, enjoining deportations until

14 February 5, 2018, to afford detainees an opportunity to file motions to reopen. (Dkt. 75.)

15 For detainees who filed a motion to reopen by February 5, 2018, their removals were

16 enjoined for an additional, limited period to adjudicate motions to stay their removals

17 before the appropriate courts. (Id.)

18

19

B. Nak Kim Chhoeun

20

21

Petitioner Chhoeun was born in Cambodia in 1975 and entered the United States

22 with his family in 1981. (Dkt. 28–2 [Declaration of Nak Kim Chhoeun, hereinafter

23 “Chhoeun Decl.”] ¶ 2.) Chhoeun’s family was sponsored as refugees fleeing the Khmer

24 Rouge regime. (Id.) Today, all of his living family members, his mother and six

25 siblings, are U.S. citizens. (Id.) In 1999, Chhoeun was convicted in Pennsylvania state

26 court of crimes involving firearms and simple assault. (Id. ¶ 5.) In 2002, an immigration

27 judge issued an order of removal for Chhoeun based on his criminal convictions. (Id. ¶

28 7.) From January 2003 to November 2003, Chhoeun was detained while ICE waited for

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 5 of 15 Page ID #:1855

1 Cambodia to issue travel documents. (Id.) The travel documents were never issued, so 2 ICE was unable to deport him. (Id.) Chhoeun ultimately filed a habeas petition to be 3 released from detention, and on November 25, 2003, he was ordered released by the 4 United States District Court of the Eastern District of Louisiana. (Id. ¶¶ 7–8; Dkt. 86-1.)

5

6

For fourteen years following his release, Chhoeun duly complied with the

7 conditions of his release and has had no convictions or arrests. (Chhoeun Decl. ¶ 8.)

8 Also in that time, Chhoeun has been gainfully employed, most recently at AT&T, and has

9 been an integral member of his family and community. (Id. ¶¶ 9–11.) Since Chhoeun’s

10 father passed away in 2004, he would visit his mother, who suffers from several medical

11 conditions and disabilities, on a daily basis. (Id. ¶ 11.) His mother describes Chhoeun as

12 a son who is “always here for me when I need help with anything,” and who can “always

13 make everyone laugh and happy.” (Dkt. 86-2 [Declaration of Martha Ruch] Ex. B

14 [Compendium of Twenty-Three Letters of Support from Chhoeun’s Friends and

15 Family].) Chhoeun’s siblings describe him as “a changed person,” “a hard worker

16 always striving to succeed in life,” “family oriented,” a “role model,” and “having a

17 strong demeanor to keep the family close.” (Id.) Chhoeun’s friends describe him as “a

18 sweet and caring person,” “the kind of person who would give the shirt off his back to

19 anyone who was in need,” “loving and compassionate,” “a brother to me and an uncle to

20 my children,” and “a man of great integrity.” (Id.)

21

22

On October 14, 2017, after fourteen years of being on release, Chhoeun received a

23 letter indicating that he should report to the local ICE office. (Chhoeun Decl. ¶ 13.) The

24 letter did not explain why he was required to report or whether his release would be

25 revoked. (Id.) When Chhoeun reported to ICE, he was detained without any explanation

26 or notice. (Id.) Chhoeun remains in detention to this day, five months later.

27

28

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 6 of 15 Page ID #:1856

1

Since being detained, Chhoeun has become severely depressed and has

2 experienced a loss of appetite and feelings of hopelessness. (Dkt. 86-7 [Supplemental

3 Declaration of Nak Kim Chhoeun] ¶ 6.) He describes the conditions of his detention as

4 bleak, as there is little to occupy his time and he feels like a prisoner. (Id.) On February

5 5, 2018, while in detention, Chhoeun filed a motion to reopen his immigration case

6 before the Board of Immigration Appeals. (Id. ¶ 3.) He continues to inquire into the

7 status of his immigration case and whether Cambodia has issued his travel papers, but has

8 received no updates. (Id. ¶ 11.)

9

10

C. Mony Neth

11

12

Petitioner Neth was born in Cambodia in 1975 and entered the United States with

13 his family in 1985, fleeing the Khmer Rouge regime. (Dkt. 28-9 [Declaration of Mony

14 Neth, hereinafter “Neth Decl.”] ¶¶ 2–4.) Neth lives in Modesto, California with his wife,

15 sixteen-year-old daughter, and parents, all of whom are U.S. citizens. (Id. ¶ 3.) In 1995,

16 Neth was convicted of unlawful possession of a weapon and receipt of stolen property.

17 (Id. ¶ 4.) In 1997, ICE detained Neth for removal proceedings based on his criminal

18 convictions. (Id. ¶ 5.) Shortly after, ICE determined that Neth did not pose a danger or a

19 flight risk and released him on supervised release. (Id.)

20

21

In the past twenty years, Neth has complied with the conditions of his release and

22 has not been charged with any additional crime. (Id.) Instead, Neth has built a family, is

23 gainfully employed by a solar energy company, and is an active member of his local

24 church. (Id. ¶¶ 5, 12.) Through his church, Neth regularly serves meals to the homeless.

25 (Id. ¶ 12.)

26
27 // 28 //

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 7 of 15 Page ID #:1857

1

On July 28, 2017, the Stanislaus County Superior Court granted Neth a Certificate

2 of Rehabilitation for his 1995 convictions. (Id. ¶ 13; Dkt. 28-12 [Declaration of Anoop

3 Prasad, hereinafter “Prasad Decl.”] Ex. B.) To support the finding of rehabilitation with

4 satisfactory proof, the Superior Court and the District Attorney’s office completed a full

5 investigation and hearing. (Id.) The Superior Court found that Neth “has demonstrated

6 by the course of conduct [his] rehabilitation and fitness to exercise all the civil and

7 political rights of citizenship.” (Id.)

8

9

On October 20, 2017, ICE officers stopped and arrested Neth while he was driving

10 to work. (Neth Decl. ¶ 9.) Neth received no notice or explanation why he was being

11 detained. (Id. ¶ 10.) Neth’s family learned he was being detained only after the fact,

12 when an ICE officer drove Neth’s car to his home and handed his wife the keys. (Dkt.

13 28-7 ¶ 13.)

14

15

On December 6, 2017, while Neth was in custody, the Governor of California

16 granted Neth a full and unconditional pardon. (Prasad Decl. Ex. A.) In his pardon, the

17 Governor stated that since his convictions, Neth “has lived an honest and upright life,

18 exhibited good moral character, and conducted himself as a law-abiding citizen.” (Id.)

19 The pardon allowed Neth to reopen his immigration proceedings and file a motion for

20 stay of removal, which he filed on December 13, 2017. (Dkt. 62-6 ¶ 6.) On December

21 21, 2017, Neth learned that the Board of Immigration Appeals had granted the stay. (Id.

22 ¶¶ 7–11.) On December 22, 2017, ICE released Neth from detention on an order of

23 supervision pending the outcome of his removal proceedings. (Dkt. 60 at 4–5.)

24
25 // 26 // 27 // 28 //

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 8 of 15 Page ID #:1858

1 III. ANALYSIS

2

3

The Government moves to dismiss Claims One, Two, and Five under Federal Rule

4 of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Dkt. 80 [“Mot.”].)

5 The Government also argues that Claim One should be dismissed under Rule 12(b)(6) for

6 failure to state a claim. (Id.) In addition, the Government filed a habeas return on Claims

7 Three and Four, (id.), and Petitioners filed a traverse in response, (Dkt. 86 [“Opp.”]).

8

9

A. Subject Matter Jurisdiction

10

11

The Government moves to dismiss the following claims for lack of subject matter

12 jurisdiction: Claim One for unlawful revocation of release, Claim Two for violation of

13 procedures for revocation of release, and Claim Five for unlawful removal without due

14 process guaranteed by the Constitution. (Mot. at 11.) Petitioners urge the Court to deny

15 the Government’s motion and assert that the Court has traditional habeas jurisdiction over

16 these claims. (Opp. at 7–8.) The Court agrees with Petitioners.

17

18

As an initial matter, the Court already ruled that it has jurisdiction over Petitioners’

19 claims when it issued the preliminary injunction. (See Dkt. 74 at 15–18.) Yet, the

20 Government raises the same arguments it raised then to challenge the Court’s jurisdiction

21 here. The Government’s main contention is that the 2005 REAL ID Act, 8 U.S.C. §

22 1252, which Congress enacted to restrict judicial review of certain immigration decisions,

23 strips the district courts of jurisdiction over Petitioners’ claims.

24

25

The Government invokes certain provisions of the Act, including Sections

26 1252(a)(5), 1252(b)(9), and 1252(g). Section 1252(a)(5) provides that, “a petition for

27 review filed with an appropriate court of appeals . . . shall be the sole and exclusive

28 means for judicial review of an order of removal.” Section 1252(b)(9) provides that,

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 9 of 15 Page ID #:1859

1 “[j]udicial review of all questions of law and fact, including interpretation and application 2 of constitutional and statutory provisions, arising from any action taken or proceeding 3 brought to remove an alien from the United States under this subchapter shall be 4 available only in judicial review of a final order under this section.” Finally, Section 5 1252(g) provides that, “[e]xcept as provided in this section . . . no court shall have 6 jurisdiction to hear any cause or claim by or on behalf of any alien arising from the 7 decision or action by the Attorney General to commence proceedings, adjudicate cases, 8 or execute removal orders against any alien under this chapter.”

9

10

The Government argues that these provisions, taken together, bar the district courts

11 from considering any issue related to Petitioners’ removal, including due process

12 challenges to their re-detention. (Mot. at 14.) The REAL ID Act does not sweep so

13 broadly, however. Instead, the Supreme Court and the Ninth Circuit have consistently

14 construed the Act narrowly to preclude district courts’ jurisdiction only where the claim

15 challenges “the Attorney General’s discrete acts of commencing proceedings,

16 adjudicating cases, and executing removal orders—which represent the initiation or

17 prosecution of various stages in the deportation process.” Reno v. Am.-Arab Anti-

18 Discrimination Comm., 525 U.S. 471, 487 (1999) (quotation marks omitted); see also

19 Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (the Act restricts judicial review of

20 only the three specific actions to commence proceedings, adjudicate cases, or execute

21 removal orders). In other words, the jurisdiction stripping provisions are “directed

22 against a particular evil: attempts to impose judicial constraints upon prosecutorial

23 discretion.” Am.-Arab Anti-Discrimination Comm., 525 U.S. at 485 n.9. The Act

24 therefore restricts district court review over claims contesting the merits or validity of a

25 removal order. See Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (“By virtue of

26 their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims

27 seeking judicial review of orders of removal.”).

28

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1

The REAL ID Act does not strip district court jurisdiction over Petitioners’ claims

2 because they do not challenge the Attorney General’s discretionary authority over

3 removal proceedings. Instead, Petitioners challenge the manner in which they were re-

4 detained—without any notice or changed circumstances warranting their detention—and

5 the subsequent threat of imminent removal as violations of their constitutional due

6 process rights. This Court undoubtedly has jurisdiction over such claims, which do not

7 challenge any final order of removal, but rather challenge ICE’s conduct in rounding up

8 Petitioners and attempting to deport them before they could challenge their removal

9 orders in the appropriate courts. See Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th

10 Cir. 2008) (the jurisdiction stripping provisions of the REAL ID Act do not apply to a

11 habeas petition that does not challenge any final order of removal but challenges

12 detention prior to the issuance of a final order).

13

14

It is clear that “post-[REAL ID Act], aliens may continue to bring collateral legal

15 challenges to the Attorney General’s detention authority—such as in this case—through a

16 petition for habeas corpus.” Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942,

17 946 (9th Cir. 2008); see also Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006)

18 (“By its terms, the jurisdiction-stripping provision does not apply to federal habeas

19 corpus petitions that do not involve final orders of removal.”) As the Supreme Court

20 recently found, “cramming judicial review” of individuals’ injuries arising out of

21 detention “into the review of final removal orders would be absurd.” Jennings, 138 S. Ct.

22 at 840. To avoid such an absurd result, the Court finds that it has jurisdiction over

23 Petitioners claims under the federal habeas corpus statute, 28 U.S.C. § 2241. Zadvydas v.

24 Davis, 533 U.S. 678, 687 (2001) (habeas remains “the basic method for obtaining review

25 of continued custody” after a removal order is final).3

26

27 3 The Government also argues that the Court lacks jurisdiction based on 8 U.S.C. § 1231(h). This 28 argument is without merit. Section 1231(h) merely bars courts from construing Section 1231 as creating
any enforceable right or benefit. Zadvydas, 533 U.S. at 688. Section 1231 does not apply because
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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 11 of 15 Page ID #:1861

1

B. Failure to State a Claim

2

3

With respect to only Claim One, the Government moves to dismiss under Federal

4 Rule of Civil Procedure 12(b)(6) for failure to state a claim. In Claim One, Petitioners

5 seek relief for the unlawful revocation of their release. (See FAC ¶¶ 53–57.) In support

6 of their claim, Petitioners allege that they were originally detained many years ago when

7 their removal orders were issued, but were subsequently released when Cambodia would

8 not accept their repatriation. (Id. ¶ 54.) Petitioners further allege that while they were on

9 release they were subject to certain conditions, and the Government could only revoke

10 their release under certain changed circumstances. (Id. ¶ 55.) According to Petitioners,

11 they consistently complied with the conditions of their release, yet the Government

12 arbitrarily and without notice revoked their release and re-detained them in October 2017.

13 (Id. ¶ 56.) Petitioners claim that the revocation of their release and re-detention violated

14 their constitutional right to due process and, accordingly, seek immediate release from

15 custody. (Id. ¶ 57.)

16

17

Petitioners have sufficiently stated a habeas claim that their release was unlawfully

18 revoked in violation of their constitutional right to due process. The factual allegations

19 detail how they were abruptly re-detained by the Government without notice and an

20 opportunity to challenge their removal orders in the appropriate courts. The allegations

21 therefore state a viable action for a writ habeas corpus, which “traditionally has been

22 accepted as the specific instrument to obtain release from unlawful confinement.”

23 Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (citation and quotation marks omitted).

24
25 // 26 //

27

28 Petitioners do not bring any claims under that section. Consequently, Section 1231(h)’s bar is irrelevant to this case.
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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 12 of 15 Page ID #:1862

1

C. Habeas Return on Petitioners’ Unlawful Detention Claims

2

3

In Claims Three and Four, Petitioners allege their re-detention was unlawful as a

4 violation of due process. (FAC ¶¶ 64–75.) Petitioners allege that they were ordered

5 removed many years ago, but were released from ICE custody because they could not be

6 repatriated. (Id. ¶ 67.) Petitioners further allege that their release was suddenly revoked

7 without any opportunity to challenge their detention or their removal orders in the

8 appropriate court. (Id. ¶ 74.) Petitioners claim these actions violated their constitutional

9 due process rights and seek immediate release from detention. (Id. ¶¶ 70, 71, 73.)

10

11

The Government does not raise jurisdictional challenges or pleading defects

12 against these unlawful detention claims, but has filed a “habeas return” and argues for the

13 claims’ dismissal on the merits. (Mot. at 21–25.) In response, Petitioners filed a traverse

14 on the habeas return and urge the Court to grant their request for relief and order

15 Chhoeun released. (Opp. at 14.)4

16

17

The Government’s abrupt arrest and detention of Chhoeun without notice violated

18 his right to due process. Chhoeun has been living in the United States since 1981, when

19 he fled Cambodia as a child refugee. All of Chhoeun’s living relatives, his mother and

20 six siblings, are U.S. citizens. Almost two decades ago, Chhoeun was convicted of state

21 crimes and ordered removed based on those convictions. His removal could not be

22 executed, however, and in November 2003 he was ordered released from detention.

23

24

Since his release, for fourteen years, Chhoeun was permitted to carry on with his

25 life, become gainfully employed, and build strong ties to his family and community. The

26

27 4 It is not necessary for the Court to consider whether Petitioner Neth is also entitled to relief on these 28 claims and order him released, as he was already released on December 22, 2017, and is not currently in
custody.
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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 13 of 15 Page ID #:1863

1 many letters submitted in support of Chhoeun describe him as a pillar of his family, an 2 upstanding and productive worker, and a valued friend. Also in the past fourteen years 3 there has been no evidence that Chhoeun is a danger or flight risk. Chhoeun has not been 4 arrested for or convicted of any additional crime, and he has consistently complied with 5 ICE’s orders and the conditions of his release. Chhoeun has, and would again, appear for 6 removal proceedings when called to do so.

7

8

Yet, on October 14, 2017, ICE suddenly revoked Chhoeun’s release, separated him

9 from his family and community, and placed him in detention without any notice or

10 explanation. ICE had planned to deport Chhoeun to Cambodia without giving him any

11 opportunity to challenge his removal order before the Board of Immigration Appeals. As

12 the Court noted previously in its order preliminarily enjoining ICE from deporting

13 Petitioners, however, Chhoeun must be given an opportunity to raise meritorious grounds

14 to challenge his removal order. Inexplicably, the Government gave Chhoeun no process,

15 let alone due process, when it abruptly detained him to deport him to Cambodia. Indeed,

16 Chhoeun was not even provided the minimal safeguard of notice and a chance to say

17 goodbye to his family, to notify his employer, or to contact an attorney. Sadly, ICE’s

18 actions deprived Chhoeun of his liberty in blatant violation of his constitutional right to

19 due process.

20

21

It is “well established that aliens facing deportation from this country are entitled

22 to due process rights under the Fifth Amendment.” Walters v. Reno, 145 F.3d 1032, 1037

23 (9th Cir. 1998). The Supreme Court has “emphasized time and again that the touchstone

24 of due process is protection of the individual against arbitrary action of government,

25 whether the fault lies in a denial of fundamental procedural fairness, or in the exercise of

26 power without any reasonable justification in the service of a legitimate governmental

27 objective.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998) (citations and

28 quotations omitted). “[T]he Due Process Clause was intended to prevent government

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 14 of 15 Page ID #:1864

1 officials from abusing their power, or employing it as an instrument of oppression.” Id. 2 at 846 (citations and quotations omitted).

3

4

The Court already found, when it granted the preliminary injunction, that due

5 process requires Chhoeun be given an opportunity to reopen his removal proceedings

6 before deportation. (See Dkt. 74 at 19–24.) And that same due process now demands

7 that Chhoeun be released pending the resolution of his motion to reopen. Chhoeun poses

8 no danger to the community. Prior to ICE’s wrongful re-detention of him, he was living

9 peaceably in the community for the past fourteen years. He was gainfully employed. He

10 had built strong ties to his family and his community. The Government simply had no

11 justification to take away, without due process, Chhoeun’s liberty to carry out his life.

12 See Zadvydas, 533 U.S. at 690 (freedom from government custody lies at the heart of the

13 due process liberty interest). And the Government also has no justification for continuing

14 to detain him pending his motion to reopen before the Board of Immigration Appeals.

15

16

The Government somehow argues that due process does not require any “orderly

17 process” before Chhoeun is detained and removed. (Mot. at 10.) The Government’s

18 position is that once an individual is subject to an order of removal, the Government may

19 detain and deport that individual without any process—regardless of the passage of time

20 since the order was issued, the individual’s ties to the community, and the significant

21 liberty interests at issue. (Id. at 10–12.) The Government’s argument trivializes, indeed

22 ignores, fundamental principles of liberty and due process embedded in our Constitution.

23 Liberty—not merely freedom from physical restraint, but the right to work, establish a

24 home, and surround ourselves with friends and family—encompasses all of the privileges

25 “essential to the orderly pursuit of happiness.” Meyer v. Nebraska, 262 U.S. 390, 399

26 (1923). And due process demands that the Government consider the totality of an

27 individual’s circumstances before taking away his or her liberty. Ragbir v. Sessions,

28 2018 WL 623557, at *2 (S.D.N.Y. Jan. 29, 2018) (“[I]f due process means anything at

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Case 8:17-cv-01898-CJC-GJS Document 104 Filed 03/26/18 Page 15 of 15 Page ID #:1865

1 all, it means that we must look at the totality of circumstances and determine whether we 2 have dealt fairly when we are depriving a person of the most essential aspects of life, 3 liberty, and family.”) Due process “is not a technical conception with a fixed content 4 unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319, 334 5 (1976) (citation and quotations omitted). The Government’s position, which would do 6 away with any individualized consideration before taking away someone’s liberty, is 7 repugnant to due process.

8

9

For fourteen years after his removal order was issued, Chhoeun was permitted to

10 live and work without incident in the community. The Government must permit him to

11 continue doing so pending his challenge to his removal order.

12
13 IV. CONCLUSION

14

15

For the foregoing reasons, the Government’s motion to dismiss is DENIED.

16 Chhoeun is GRANTED relief on Claims Three and Four of the First Amended Habeas

17 Corpus Petition. It is hereby ORDERED that Chhoeun be immediately released from

18 custody and placed on supervision under the same terms and conditions imposed on him

19 prior to his unlawful detention. Chhoeun is ordered to report to ICE at 300 N. Los

20 Angeles St, Room 2204, Los Angeles, CA 90012, within ten days of the date of this

21 Order to receive an order of supervision.

22

23

24

25

DATED: March 26, 2018

26

27

28

__________________________________ CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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 Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 1 of 8 Page ID #:2112

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

)

12

) Case No.: SACV 17-01898-CJC(GJSx)

)

13 14

NAK KIM CHHOEUN AND MONY NETH, individually and on behalf of a

) ) )

class of similarly situated individuals, )

15

) ORDER DISCHARGING ORDER TO

) SHOW CAUSE

16

Petitioners,

)

)

17

v.

)

)

18

)

DAVID MARIN, DAVID JENNINGS, )

19 20

THOMAS HOMAN, ELAINE DUKE, JEFFERSON SESSIONS III, SANDRA

) ) )

HUTCHENS, AND SCOTT JONES, )

21

)

)

22

Respondents.

)

)

23

)

)

24

25

26 //

27 //

28 //

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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 2 of 8 Page ID #:2113

1 I. INTRODUCTION

2

3

Petitioners Nak Kim Chhoeun and Mony Neth bring this habeas petition on behalf

4 of themselves and a putative class of Cambodian citizens who were once detained and

5 ordered removed from the United States, but subsequently released from immigration

6 custody when Cambodia would not accept their repatriation. Petitioners allege that,

7 beginning in October 2017, they were abruptly and arbitrarily re-detained by U.S.

8 Immigration and Customs Enforcement (“ICE”) in immigration raids targeting

9 Cambodian citizens. Petitioners allege that approximately 100 additional putative class

10 members were also re-detained, and that 1,900 Cambodian nationals residing in the

11 United States face possible re-detention. Petitioners claim that ICE’s practice of arbitrary

12 re-detention violates constitutional, statutory, and regulatory law.

13

14

On March 26, 2018, the Court ordered the parties to show cause why the following

15 proposed class should not be certified:

16

All Cambodian citizens in the United States who received final orders of
17
deportation or removal to Cambodia, who were subsequently released from

18

ICE custody, who then years later were re-detained for removal by ICE, and

who now have filed motions to reopen their removal proceedings.
19

20 (Dkt. 105.)1 The Court also ordered the parties to show cause why the proposed class

21 members should not be released from detention. The Court now finds that certification of

22 this class would not be appropriate because it fails to meet the numerosity requirement.

23 According, the Court hereby DISCHARGES its order to show cause.2

24

25

26 1 This class definition was proposed by the Court and is not the class definition proposed in Petitioners’ 27 Complaint.
2 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set
for April 16, 2018, at 1:30 p.m. is hereby vacated and off calendar.
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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 3 of 8 Page ID #:2114

1 II. BACKGROUND

2

3

On October 27, 2017, Petitioners Nak Kim Chhoeun and Mony Neth filed this

4 habeas petition on behalf of themselves and a putative class of 1,900 Cambodian citizens

5 who were ordered removed from the United States based on criminal convictions. (Dkts.

6 1 [Complaint], 27 [First Amended Complaint, hereinafter “FAC”].) Petitioners allege

7 that when their removal orders were issued over a decade ago, Cambodia would not

8 accept their repatriation and they were released from immigration custody. (FAC ¶ 2.)

9 Since their release, Petitioners lived peaceably and productively in their communities.

10 (Id.) Then, in October 2017, they were abruptly and arbitrarily re-detained by ICE. (Id. ¶

11 3.) According to Petitioners, approximately 100 Cambodian citizens were re-detained

12 around the same time, and approximately 1,900 Cambodian citizens are threatened with

13 re-detention. (Id. ¶ 4.) Petitioners claim that the Government’s conduct violates

14 constitutional, statutory, and regulatory law.3

15

16

In January 2018, the Court issued a preliminary injunction enjoining ICE from

17 deporting putative class members who have been re-detained until February 5, 2018, to

18 afford them an opportunity to file motions to reopen their immigration proceedings.

19 (Dkt. 75.) For detainees who filed a motion to reopen by February 5, 2018, their

20 removals were enjoined for an additional, limited period to adjudicate motions to stay

21 their removals before the appropriate courts. (Id.)

22
23 // 24 //

25

26 3 “The Government” refers to Respondents David Marin, Field Office Director, Los Angeles Field 27 Office, United States Immigration and Customs Enforcement; David Jennings, Field Office Director,
San Francisco Field Office, United States Immigration and Customs Enforcement; Kirstjen Nielsen, 28 Secretary of the Department of Homeland Security; and Jefferson Sessions III, United States Attorney
General.
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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 4 of 8 Page ID #:2115

1

On March 26, 2018, the Court issued an order granting the habeas petition as to

2 Petitioner Chhoeun. (Dkt. 104.) The Court found that ICE had no justification for

3 abruptly detaining Chhoeun and threatening to deport him, when he had been living and

4 working peaceably in his community for fourteen years, and all the while complying with

5 ICE’s orders. (Id. at 12–15.) The Court accordingly held that the Government had

6 violated Chhoeun’s due process rights and ordered him immediately released from

7 immigration custody pending his motion to reopen his immigration proceedings. (Id.)

8 The Court did not consider whether Petitioner Neth was also entitled to relief as Neth had

9 already been released from custody in December 2017. (Id. at 12 n.4.)

10

11

Also on March 26, 2018, the Court issued an order to show cause why the Court

12 should not certify the following proposed class:

13

All Cambodian citizens in the United States who received final orders of
14
deportation or removal to Cambodia, who were subsequently released from

15

ICE custody, who then years later were re-detained for removal by ICE, and

who now have filed motions to reopen their removal proceedings.
16

17 (Dkt. 105.) In addition, the Court ordered the parties to show cause why it should not

18 release members of the proposed class from immigration detention pending their motions

19 to reopen their removal proceedings. (Id.)

20

21 III. ANALYSIS
22

23

Under Federal Rule of Civil Procedure 23, district courts have broad discretion to

24 determine whether a class should be certified. Armstrong v. Davis, 275 F.3d 849, 871 25 n.28 (9th Cir. 2001) (abrogated on other grounds). The plaintiff bears the burden of 26 showing that each of the four requirements of Rule 23(a) and at least one of the 27 requirements of Rule 23(b) are met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 28 1180, 1186 (9th Cir. 2001). Rule 23 is not merely a pleading standard—a party seeking

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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 5 of 8 Page ID #:2116

class certification must affirmatively demonstrate compliance with the Rule by proving
1
the requirements in fact. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
2

3
Rule 23(a) provides that a case is appropriate for certification as a class action if:
4
5 “(1) the class is so numerous that joinder of all members is impracticable; (2) there are 6 questions of law or fact common to the class; (3) the claims or defenses of the 7 representative parties are typical of the claims or defenses of the class; and (4) the 8 representative parties will fairly and adequately protect the interests of the class.” These 9 four requirements are often referred to as numerosity, commonality, typicality, and 10 adequacy. See General Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982).

11

12

A putative class satisfies the numerosity requirement if it is impracticable to

13 litigate each putative class member’s claims separately. Harris v. Palm Springs Alpine

14 Estates, Inc., 329 F.2d 909, 913 (9th Cir. 1964). “‘[I]mpracticability’ does not mean

15 ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the

16 class.” Id. at 913–14 (citation omitted). There is no threshold number of class members

17 that satisfies the numerosity requirement. But as a general matter, “courts have found

18 that the numerosity factor is satisfied if the class comprises 40 or more members and will

19 find that it has not been satisfied when the class comprises 21 or fewer.” Wamboldt v.

20 Safety-Kleen Sys., Inc., 2007 WL 2409200, at *11 (N.D. Cal. Aug. 21, 2007). The

21 Supreme Court has indicated that a putative class of 15 members would be too small to

22 meet the numerosity requirement. Gen. Tel. Co. of the Nw. v. Equal Employment

23 Opportunity Comm’n, 446 U.S. 318, 330 (1980).

24

25 //

26 //

27 //

28 //

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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 6 of 8 Page ID #:2117

1

The Government asserts that class certification is not appropriate because the

2 proposed class would consist of 13 members, and therefore does not satisfy the

3 numerosity requirement. (Dkt. 115 at 6.) According to the Government, the proposed

4 class would consist of the following individuals:

5

6

 7 Cambodian citizens who were re-detained and who filed motions to reopen by

7

February 5, 2018, including Petitioner Chhoeun and Neth.4

8

 6 Cambodian citizens who were re-detained and who have filed motions to

9

reopen since February 5, 2018.

10

11 (Id. at 6–7.) The Government also represents that only 7 of the 13 potential class

12 members are currently in detention as the others have been released. (See id. at 11.) In 13 addition at least one of the 13 potential class members recently commenced an individual

14 habeas petition. (Id. at 17 n.12.)

15

16

Petitioners do not dispute that the putative class consists of 13 members, and do

17 not provide any evidence indicating that the Government’s representations are incorrect

18 or under-inclusive. (Dkt. 117 at 7–10.) But, Petitioners argue that the numerosity

19 requirement is nonetheless satisfied because the Government is continuing to re-detain 20 Cambodian citizens who will be added to the proposed class, and the number of future

21 class members remains “fluid” and unascertainable. (Id. at 9–10.) Petitioners claim that

22 because class members will be added in the future, joinder of the proposed class members 23 is impracticable. (Id. at 9.)

24

25 //

26 //

27
28 4 Because these individuals filed motions before February 5, 2018, they are covered by the Court’s preliminary injunction staying their removal.
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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 7 of 8 Page ID #:2118

1

Petitioners note that courts in this Circuit have found that the numerosity

2 requirement is met where the number of future class members is uncertain. (Id. at 8–10.)

3 Importantly, in those cases, the plaintiffs produced evidence demonstrating a significant

4 likelihood that a large number of class members would be added in the future. For

5 example, in Inland Empire-Immigrant Youth Collective v. Nielsen, 2018 WL 1061408

6 (C.D. Cal. Feb. 26, 2018), a district court considered whether the numerosity requirement

7 had been met in a class action challenging the Executive Department’s termination of the

8 Deferred Action for Childhood Arrivals (“DACA”) program. Id. at 7. The district court

9 found that, although the parties had identified only 22 class members, the numerosity

10 requirement was satisfied because hundreds of thousands of individuals were covered by

11 DACA and the defendants admitted that DACA was subject to automatic termination. Id.

12 The district court found that this evidence demonstrated that “an inference of future class

13 members is reasonable,” such that joinder is “inherently impractical.” Id.

14

15

Those cases are not applicable here, however, because the parties have presented

16 no evidence demonstrating that future class members would render joinder impracticable.

17 Petitioners claim that future re-detentions are likely, and point to the Government’s

18 admission that it has re-detained over a dozen Cambodian citizens since November 2017.

19 (See Dkt. 117 at 4.) However, future class members would not include all Cambodian

20 citizens who are re-detained, but only those who file motions to reopen. And, the

21 Government indicates that only one Cambodian citizen who was re-detained after

22 November 2017 has filed a motion to reopen and would fall within the proposed class

23 definition. This evidence does not demonstrate that the number of future class members

24 would be so large as to render joinder impracticable. Cf. Franco-Gonzales v. Napolitano,

25 2011 WL 11705815, at *9 (C.D. Cal. Nov. 21, 2011) (“Where the exact size of the class

26 is unknown but general knowledge and common sense indicate that it is large, the

27 numerosity requirement is satisfied.”).

28

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Case 8:17-cv-01898-CJC-GJS Document 118 Filed 04/12/18 Page 8 of 8 Page ID #:2119

1

In short, the evidence indicates that there are only 13 members of the proposed

2 class and a limited number of future members. Based on this evidence, joinder of the

3 cases is not impracticable. Consideration of each proposed class member’s habeas

4 petition on an individual basis is also not impracticable. Accordingly, the Court finds

5 that certification of the proposed class is not warranted, but this finding is without

6 prejudice to each member’s ability to bring individual habeas petitions to challenge his or

7 her detention as unlawful.

8
9 IV. CONCLUSION

10

11

For the foregoing reasons, the Court hereby DISCHARGES its order to show

12 cause and DENIES certification of the proposed class.

13

14

15

16

DATED: April 12, 2018

17

18

19

__________________________________ CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

28

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 Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 1 of 16 Page ID #:2756

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

)

12

) Case No.: SACV 17-01898-CJC(GJSx)

)

13 14

NAK KIM CHHOEUN AND MONY NETH, individually and on behalf of a

) ) )

class of similarly situated individuals, )

15

) ORDER GRANTING IN

) SUBSTANTIAL PART PETITIONERS’

16

Petitioners,

) MOTION FOR CLASS ) CERTIFICATION

17

v.

) )

18

)

DAVID MARIN, DAVID JENNINGS, )

19 20

THOMAS HOMAN, ELAINE DUKE, JEFFERSON SESSIONS III, SANDRA

) ) )

HUTCHENS, AND SCOTT JONES, )

21

)

)

22

Respondents.

) )

23

)

)

24

25
26 // 27 // 28 //

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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 2 of 16 Page ID #:2757

1 I. INTRODUCTION

2

3

This action challenges the Government’s policy of arbitrarily rounding up and

4 placing in immigration detention individuals who have been living peaceably in our

5 communities for years.1 Petitioners Nak Kim Chhoeun and Mony Neth claim that they,

6 along with approximately 1,900 individuals, are subject to this policy. Chhoeun and Neth

7 bring this putative class action on behalf of these 1,900 individuals to challenge the

8 Government’s policy as contrary to constitutional, statutory, and regulatory law.

9

10

The proposed class members are all citizens of Cambodia living in the United

11 States. Many fled Cambodia in the 1970s as small children to escape the brutal Khmer

12 Rouge regime. Although they have been living in the United States for many years, they

13 are subject to orders of removal to Cambodia based on criminal convictions that they

14 suffered years ago. When the orders of removal were issued, which in many cases

15 occurred over a decade ago, the proposed class members were not deported because

16 Cambodia refused to accept their repatriation. Instead, U.S. Immigration and Customs

17 Enforcement (“ICE”) determined that they were not flight risks and did not pose a danger

18 to society, and released them from custody.

19

20

Then, in October 2017, ICE began rounding up and re-detaining the proposed class

21 members without warning or explanation. Approximately 100 proposed class members

22 were abruptly re-detained in the fall of 2017. They were arrested on their way to work or

23 during routine meetings with ICE. Among those re-detained were Petitioners Chhoeun

24 and Neth. Prior to their re-detention, Chhoeun and Neth had been carrying out their lives

25

26 1 “The Government” refers to Respondents David Marin, Field Office Director, Los Angeles Field 27 Office, United States Immigration and Customs Enforcement; David Jennings, Field Office Director,
San Francisco Field Office, United States Immigration and Customs Enforcement; Thomas Homan, 28 Acting Director, United States Immigration and Customs Enforcement; Kirstjen Nielsen, Secretary of
the Department of Homeland Security; and Jefferson Sessions III, United States Attorney General.
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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 3 of 16 Page ID #:2758

1 without incident for over a decade. Nevertheless, they were detained because the 2 Government’s policy allows ICE to re-detain and deport any individual subject to a 3 removal order without any process. The Government’s policy allows ICE to re-detain 4 such individuals without notice, without an opportunity to challenge their removal, and 5 without a chance to say goodbye to their employers, coworkers, family, and loved ones.

6

7

Petitioners now seek to certify the proposed class of 1,900 Cambodian citizens

8 who, like them, received removal orders, were subsequently released from immigration

9 detention, and now have been or may be re-detained by ICE. (Dkt. 139 [Motion for Class

10 Certification, hereinafter “Mot.”].) Petitioners claim that each proposed class member is

11 subject to the Government’s unlawful policy of re-detaining removeable individuals

12 without any prior notice or opportunity to be heard. For the following reasons, the Court

13 GRANTS IN SUBSTANTIAL PART Petitioners’ motion for class certification.

14
15 II. BACKGROUND

16

17

A. Petitioners’ Background

18

19

Petitioner Chhoeun is a 42-year-old citizen of Cambodia, who has been living in

20 the United States since he was six years old. (Dkt. 27 [First Amended Complaint,

21 hereinafter “FAC”] ¶ 26.) When Chhoeun and his family entered this country, they were

22 sponsored as refugees fleeing the Khmer Rouge regime. (Dkt. 28-2 [Declaration of Nak

23 Kim Chhoeun, hereinafter “Chhoeun Decl.”] ¶ 2.) In 1999, when Chhoeun was in his

24 twenties, he pleaded guilty to crimes of simple assault and unlawful possession of a

25 firearm. (FAC ¶ 26.) Based on these convictions, Chhoeun received an order of removal

26 to Cambodia in 2002, and was detained by ICE. (Chhoeun Decl. ¶ 7.) Cambodia would

27 not accept Chhoeun’s repatriation, however, and he was released from custody in

28 November 2003. (Id. ¶¶ 7–8.) Since his release over fourteen years ago, Chhoeun rebuilt

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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 4 of 16 Page ID #:2759

1 his life, complied with all conditions of his release, and had no further convictions or 2 arrests. (Id. ¶ 8.) By many accounts, Chhoeun is a changed person and a compassionate 3 son, brother, and friend. (See Dkt. 86-2 [Declaration of Martha Ruch] Ex. B 4 [Compendium of Twenty-Three Letters of Support from Chhoeun’s Friends and 5 Family].)

6

7

Petitioner Neth is also a 42-year-old citizen of Cambodia, who entered the United

8 States when he was ten years old. (FAC ¶ 27.) Neth’s family also fled Cambodia as

9 refugees. (Dkt. 28-9 [Declaration of Mony Neth, hereinafter “Neth Decl.”] ¶¶ 2–4.) In

10 1995, when Neth was in his twenties, he was convicted of unlawful possession of a

11 weapon and receipt of stolen property. (Id. ¶ 4.) In 1997, Neth was ordered removed

12 based on his convictions and detained by ICE, but was released from custody shortly

13 after. (Id. ¶ 5.) Since his release twenty years ago, Neth built a family, complied with all

14 conditions of his release, and had no further convictions or arrests. (Id.) Neth is a

15 member of his local church and regularly serves meals to the homeless. (Id. ¶ 12.) He

16 lives in Modesto, California with his wife, 16-year-old daughter, and parents, all U.S.

17 citizens. (Id. ¶ 3.)

18

19

Many of the proposed class members have followed paths similar to Chhoeun and

20 Neth. They fled Cambodia as small children, and the United States is the only home they

21 know. (See, e.g., Dkt. 28-8 [Declaration of Rottanak Kong, hereinafter “Kong Decl.”] ¶

22 2.) They are subject to removal orders for crimes they committed over a decade ago,

23 when they were in their teens and twenties. (Id. ¶ 5.) Since the removal orders were

24 issued, proposed class members were released from custody and became productive

25 members of their communities. (Id. ¶¶ 9, 11; see also Dkt. 139-2 [Declaration of

26 Boroeun Chhin, hereinafter “Chhin Decl.”] ¶¶ 4–5.) They support and care for their

27 family members who are U.S. citizens and who, in some instances, are even members of

28 the U.S. Armed Forces. (Kong Decl. ¶ 12 [proposed class member’s brother is a U.S.

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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 5 of 16 Page ID #:2760

1 Marine training to go to Afghanistan]; see also Chhin Decl. ¶ 8 [after proposed class 2 member was detained, his young sons and wife were forced to move out of their 3 residence because they could not afford rent].) The proposed class members in large part 4 have turned their lives around since their criminal convictions.

5

6

B. The Government’s Policy

7

8

Beginning in October 2017, the Government began re-detaining Petitioners and

9 proposed class members, who had been living on supervised release for many years.

10 Chhoeun was re-detained in mid-October 2017, when he reported to his local ICE office

11 for a meeting. (Chhoeun Decl. ¶ 13.) He was given no notice or explanation for his re-

12 detention. (Id.) Neth was also re-detained in mid-October 2017. (Neth Decl. ¶ 8.) ICE

13 officers arrested him while he was driving to work and he was given no notice or

14 explanation for his re-detention. (Id. ¶¶ 9, 10.) Along with Chhoeun and Neth, 89 other

15 proposed class members were abruptly re-detained in the fall of 2017. (Dkt. 60-1

16 [Declaration of John Schultz, hereinafter “Schultz Decl.”] ¶ 15.) The Government claims

17 these individuals were re-detained to allow Cambodian government officials to interview

18 them and decide whether to accept their repatriation. (Id. ¶¶ 14–16.) While in detention,

19 Petitioners and proposed class members faced degrading conditions—they were shackled

20 together and forced to endure day-long bus rides, denied bathroom breaks and adequate

21 meals, and faced extortion from the Cambodian officials who conducted the interviews.

22 (Chhoeun Decl. ¶¶ 14, 16, 17; Dkt. 28-1 [Declaration of Jessica Castellanos] ¶¶ 12–13.)

23
24 // 25 // 26 // 27 //

28

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1

The Government admits that it gave no notice to Petitioners and proposed class

2 members prior to their re-detention, and that it conducted no individualized analysis to

3 determine whether re-detention was necessary. (See Dkt. 89 at 8.) The Government’s

4 position is that individuals subject to removal orders, even those who were released from

5 custody many years ago, are not entitled to any procedural protections before they are re-

6 detained. (Id. at 11 [arguing that “the Due Process Clause did not require that Petitioners

7 receive any process before ICE revoked their release”].) The Government employed this

8 policy against the approximately 100 proposed class members that were re-detained in

9 the fall of 2017, and continues to do so against additional proposed class members.

10 (Chhin Decl. ¶ 6 [proposed class member was arrested and re-detained without

11 procedural protections in April 2018].) In other words, before an individual is plucked

12 from his life and family and forced to endure detention, the Government conducts no

13 analysis of whether that individual is dangerous, a flight risk, or has done anything else

14 warranting his or her re-detention. This policy threatens all 1,900 proposed class

15 members with the possibility of re-detention at any time, without any notice or

16 opportunity to be heard.

17

18

C. Procedural History

19

20

Petitioners brought this action on October 27, 2017, soon after ICE re-detained

21 them without explanation. (Dkt. 1.) Petitioners claim that the Government violated the

22 due process clause of the Constitution, along with several immigration regulations and

23 statutes, when it re-detained them. (See generally FAC.) Petitioners seek injunctive and 24 declaratory relief to enjoin the Government’s conduct. (Id. at Prayer for Relief.)

25

26

In early December 2017, Petitioners learned that they and other detainees were

27 scheduled to be deported to Cambodia as soon as December 18, 2017. (Dkt. 28 at 1.) In

28 light of the imminent removals, Petitioners filed an application for a temporary

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1 restraining order on December 12, 2017, asking the Court to stay deportations for

2 approximately 60 days until February 5, 2018. (See generally id.) Petitioners explained 3 that this additional, limited time was necessary to give those who wanted to file motions 4 to reopen their removal orders an opportunity to do so. (Id.)

5

6

The Court granted the temporary restraining order on December 14, 2017, and

7 ordered the Government to show cause why a preliminary injunction should not be

8 issued. (Dkt. 32.) After additional briefing and evidence submitted by the parties, the

9 Court entered a preliminary injunction on January 25, 2018, enjoining deportations until

10 February 5, 2018, to afford detainees an opportunity to file motions to reopen. (Dkt. 75.)

11 For detainees who filed a motion to reopen by February 5, 2018, their removals were

12 enjoined for an additional, limited period to adjudicate motions to stay their removals

13 before the appropriate courts. (Id.)

14

15

Since this lawsuit was filed, Petitioners and many proposed class members have

16 concurrently pursued individual avenues of relief, including by filing motions to reopen

17 their removal orders and habeas petitions. Chhoeun filed a motion to reopen on February

18 5, 2018. (Dkt. 141 [Opposition, hereinafter “Opp.”] at 3.) While his motion was pending

19 the Court granted him habeas relief on March 26, 2018, and ordered him released from

20 detention. (See Dkt. 104.) The Board of Immigration Appeals denied Chhoeun’s motion 21 to reopen on May 16, 2018, but Chhoeun is appealing the decision to the Third Circuit

22 and his deportation has been stayed pending the appeal. (Opp. at 3.) As for Neth, the

23 Governor of California granted him a full and unconditional pardon for his crimes on 24 December 6, 2017. (Dkt. 28-12 Ex. A.) Based on the pardon, Neth filed his motion to 25 reopen on December 13, 2017, and ICE released Neth from detention on December 22, 26 2017, pending the outcome of his motion. (Id. at 4.)

27
28 //

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1 III. LEGAL STANDARD

2

3

Under Federal Rule of Civil Procedure 23, district courts have broad discretion to

4 determine whether a class should be certified. Armstrong v. Davis, 275 F.3d 849, 871

5 n.28 (9th Cir. 2001) (abrogated on other grounds). The party seeking class certification

6 bears the burden of showing that each of the four requirements of Rule 23(a) and at least

7 one of the requirements of Rule 23(b) are met. Zinser v. Accufix Research Inst., Inc., 253

8 F.3d 1180, 1186 (9th Cir. 2001); Fed. R. Civ. P. 23. Rule 23(a) provides that class

9 certification is appropriate if: (1) the class is so numerous that joinder of all members is

10 impracticable, (2) there are questions of law or fact common to the class, (3) the claims or

11 defenses of the representative parties are typical of the claims or defenses of the class,

12 and (4) the representative parties will fairly and adequately protect the interests of the

13 class. Fed. R. Civ. P. 23(a). These four requirements are often referred to as numerosity,

14 commonality, typicality, and adequacy. See General Tel. Co. v. Falcon, 457 U.S. 147,

15 156 (1982).

16

17

Rule 23(b) defines different types of classes. Leyva v. Medline Indus. Inc., 716

18 F.3d 510, 512 (9th Cir. 2012). Petitioners seek to certify the proposed class under Rule

19 23(b)(2). Rule 23(b)(2) requires that the party opposing the class “has acted or refused to

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

21 corresponding declaratory relief is appropriate respecting the class as a whole.”

22
23 // 24 // 25 // 26 // 27 // 28 //

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1 IV. DISCUSSION

2

3

Petitioners seek to certify a class of “all Cambodian nationals in the United States

4 who received final orders of deportation or removal, and were subsequently released

5 from ICE custody, and have been or may be re-detained for removal by ICE.” (See Mot.

6 at 3.) The Court addresses each Rule 23 requirement in turn.

7

8

A. Numerosity

9

10

A putative class satisfies the numerosity requirement if it is impracticable to

11 litigate each putative class member’s claims separately. Harris v. Palm Springs Alpine

12 Estates, Inc., 329 F.2d 909, 913 (9th Cir. 1964). “‘[I]mpracticability’ does not mean

13 ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the

14 class.” Id. at 913–14 (citation omitted). There is no threshold number of class members

15 that satisfies the numerosity requirement. But as a general matter, “courts have found

16 that the numerosity factor is satisfied if the class comprises 40 or more members and will

17 find that it has not been satisfied when the class comprises 21 or fewer.” Wamboldt v.

18 Safety-Kleen Sys., Inc., 2007 WL 2409200, at *11 (N.D. Cal. Aug. 21, 2007).

19

20

Petitioners and the Government agree that the proposed class consists of 1,900

21 individuals across the United States. (FAC ¶ 50; Schultz Decl. ¶ 7.) A class of this size

22 clearly meets the numerosity requirement.2 del Campo v. Am. Corrective Counseling

23 Servs., Inc., 254 F.R.D. 585, 592 (N.D. Cal. 2008) (“A class of one thousand members

24

25

26 2 The Government argues that the numerosity requirement has not been met because only 31 individuals 27 who meet the class definition are currently detained. (Opp. at 8–13.) The Government’s argument is
irrelevant. Petitioners seek to certify a class of individuals who are or may be detained under the 28 Government’s policy, not only those who are currently in detention. All parties agree that the class as
defined by Petitioners consists of 1,900 members.
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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 10 of 16 Page ID #:2765

1 ‘clearly satisfies the numerosity requirement.’”) (quoting Sullivan v. Chase Inv. Servs., 2 Inc., 79 F.R.D. 246, 257 (N.D. Cal. 1978)).

3

4

B. Commonality

5

6

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

7 class.” Commonality requires the plaintiff to “demonstrate that the class members ‘have

8 suffered the same injury,’” which “does not mean merely that they have all suffered a

9 violation of the same provision of law.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

10 350 (2011) (quoting General Tel. Co., 457 U.S. at 157). The “claims must depend upon a

11 common contention” and “[t]hat common contention . . . must be of such a nature that it

12 is capable of classwide resolution—which means that determination of its truth or falsity

13 will resolve an issue that is central to the validity of each one of the claims in one stroke.”

14 Id. “[A]ll that Rule 23(a)(2) requires is ‘a single significant question of law or fact.’”

15 Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Mazza v.

16 Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)). Commonality is satisfied

17 where the plaintiff shows that all proposed class members have been subjected to a

18 uniform policy or practice. Hernandez v. Lynch, 2016 WL 7116611, at *17 (C.D. Cal.

19 Nov. 10, 2016), aff’d sub nom. Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017); see

20 also Inland Empire-Immigrant Youth Collective v. Nielsen, 2018 WL 1061408, at *8

21 (C.D. Cal. Feb. 26, 2018) (“The Ninth Circuit has held that in a civil-rights suit,

22 commonality is satisfied where the lawsuit challenges a system-wide practice or policy

23 that affects all of the putative class members.”).

24

25

The Court finds that commonality is satisfied here. The central question in this

26 case is whether the Government’s policy of revoking proposed class members’ release

27 and re-detaining them without any procedural protections is unlawful. The Government

28 admits that this policy applies to each of the proposed class members, whose release can

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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 11 of 16 Page ID #:2766

1 be revoked without any notice or opportunity to be heard. Petitioners claim the policy is 2 unlawful, under various constitutional, statutory, and regulatory laws. The Government 3 claims the policy is warranted under the same laws. Regardless of which party is correct, 4 the answer to this central question will resolve the claims in this litigation.

5

6

The Government argues that commonality is not satisfied because the individual

7 circumstances of each proposed class member govern the scope of procedural protections

8 to which he or she is entitled. (Opp. at 13–20.) The Government claims that some

9 proposed class members may not be entitled to any notice before re-detention because

10 they committed recent, new crimes, or they will attempt to abscond. (Id. at 18.) In

11 support of its argument, the Government has identified five individuals who would meet

12 Petitioners’ proposed class definition but who, because of safety concerns, should not be

13 granted the procedural protections Petitioners seek. (Dkt. 115-1 [Declaration of John

14 Schultz] ¶¶ 7, 8, 9, 11, 12.) These individuals have violated the conditions of their

15 release either by fleeing from ICE and absconding, or by committing new crimes while

16 on release. (Id.)

17

18

The Court agrees with the Government that individuals who have violated the

19 terms and conditions of their release, whether it be by absconding or committing new

20 crimes, should not be given any procedural protections before re-detention. Such

21 individuals risk the public safety and have evidenced a disregard for the criminal laws

22 and the conditions of their release. However, the Court does not find that these

23 individuals warrant the denial of class certification altogether. Instead, the Court finds it

24 appropriate to carve out from the class definition this limited number of individuals—

25 which by the Government’s own count consists of only a handful of individuals. Wang v.

26 Chinese Daily News, Inc., 737 F.3d 538, 546 (9th Cir. 2013) (“Rule 23 provides district

27 courts with broad authority . . . to redefine or decertify classes as appropriate.”).

28 Accordingly, the Court will redefine Petitioners’ proposed class and except from the class

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Case 8:17-cv-01898-CJC-GJS Document 149 Filed 08/14/18 Page 12 of 16 Page ID #:2767

1 definition any individual who has violated the conditions of his or her supervised release 2 or committed new crimes while on release.

3

4

Each member of the redefined class share a common question: whether they should

5 be given notice and an opportunity to be heard before they are re-detained. Resolving

6 this question will not require the Court to make individualized inquiries of the class

7 members. Rather, the Court will only be required to determine whether the

8 Government’s uniform policy of re-detaining class members without any procedural

9 protections is unlawful. The Court therefore finds that the proposed class as redefined

10 satisfies the commonality requirement. See Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir.

11 2014) (finding commonality requirement was met where class action brought by Arizona

12 inmates challenged certain statewide policies and practices relating to their medical care

13 and conditions of confinement as unlawful).

14

15

C. Typicality

16

17

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are

18 typical of the claims or defenses of the class.” “The test of typicality is ‘whether other

19 members have the same or similar injury, whether the action is based on conduct which is

20 not unique to the named plaintiffs, and whether other class members have been injured by

21 the same course of conduct.’” Parsons, 754 F.3d 685 (quoting Hanon v. Dataproducts 22 Corp., 976 F.2d 497, 508 (9th Cir. 1992)). The purpose of the typicality requirement is to 23 “assure that the interest of the named representative aligns with the interests of the class.” 24 Hanon, 976 F.2d at 508.

25

26

Petitioners’ alleged injury is the deprivation of notice and an opportunity to be

27 heard before the Government revoked their release and re-detained them. This injury is

28 the result of a uniform policy that is applied to all class members, and is not unique to

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1 Petitioners. The approximately 100 class members who were re-detained with Petitioners 2 in the fall of 2017 experienced the same injury. The Government has no intention of 3 changing their policy towards the approximately 1,800 other class members who have not 4 yet been re-detained, so those members risk the same injury. Petitioners and all class 5 members have an interest in resolving the central question raised in this action—whether 6 they are entitled to procedural protections before the Government can re-arrest and re7 detain them. The typicality requirement is therefore satisfied.

8

9

The Government disputes that the typicality requirement is met by raising the same

10 objections it raised against commonality. (Opp. at 21–23.) In short, the Government

11 claims that typicality is not met because the class members’ varying individual

12 circumstances govern whether they are entitled to individual habeas relief. For example,

13 the Government points out that some class members have filed motions to reopen and 14 challenge their removal orders, while others have not. (Id. at 22.)

15

16

Again, the Court will not be required to make any individualized determinations to

17 resolve Petitioners’ claims. Petitioners’ injury is the denial of procedural safeguards

18 before they were re-detained. This injury is the result of a uniform policy the

19 Government applies to all class members. Whether some class members may ultimately

20 be entitled to habeas relief after they are re-detained does not matter—this factual

21 difference does not diminish the injury caused by the deprivation of due process before

22 re-detention. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987 n.9 (9th Cir. 2011) 23 (“Differing factual scenarios resulting in a claim of the same nature as other class 24 members does not defeat typicality.”).

25
26 // 27 // 28 //

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1

D. Adequacy

2

3

To satisfy the adequacy requirement, Petitioners must show that they and their

4 counsel will fairly and adequately represent the class. Hanlon v. Chrysler Corp., 150

5 F.3d 1011, 1020 (9th Cir. 1998). This requirement ensures that the constitutional

6 protections of due process and full faith and credit are afforded to absent class members.

7 Hansberry v. Lee, 311 U.S. 32, 43 (1940). “Resolution of two questions determines legal

8 adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with

9 other class members and (2) will the named plaintiffs and their counsel prosecute the

10 action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020.

11

12

The Government does not dispute the adequacy requirement has been met. (See

13 generally Opp.) There is no indication of any conflicts of interest that would render

14 Petitioners or their counsel inadequate. Petitioners Chhoeun and Neth have participated

15 at every stage of this litigation and they represent they will continue to do so on behalf of

16 themselves and the proposed class members. (Dkts. 139-8, 139-9.) Petitioners are

17 represented by Asian Americans Advancing Justice – Asian Law Caucus (“ALC”), a civil

18 rights organization with decades of experience providing legal services to immigrants,

19 including representing them in class actions. (Dkt. 139-3 [Declaration of Jingni Zhao] ¶¶

20 3–4.) Petitioners are also represented by the law firm of Sidley Austin LLP, a global law

21 firm with significant experience in class actions and in pro bono immigration cases.

22 (Dkt. 139-6 [Declaration of Michael Mallow] ¶ 3.) ALC and Sidley Austin’s extensive

23 litigation experience, expertise in immigration law, and representation of Petitioners in

24 this action demonstrate that they can and will prosecute the action vigorously on behalf of

25 the class.3

26
27 3 Although the Government does not dispute the adequacy of Petitioners’ counsel, the Government asks the Court to monitor their bills to preemptively limit any future request for attorneys’ fees and costs.
28 (Dkt. 141 at 23–25.) The Court denies this request. Restricting counsel’s work at this stage is premature, as Petitioners have not moved to recover any fees or costs. Further, this is not a case where
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1

E. Rule 23(b)(2)

2

3

Federal Rule of Civil Procedure 23(b)(2) authorizes class actions where “the party

4 opposing the class has acted or refused to act on grounds that apply generally to the class,

5 so that final injunctive relief or corresponding declaratory relief is appropriate respecting

6 the class as a whole.” “Rule 23(b)(2) applies only when a single injunction or declaratory

7 judgment would provide relief to each member of the class. It does not authorize class

8 certification when each individual class member would be entitled to a different

9 injunction or declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 360.

10

11

The Government readily admits that it has acted and continues to act under the

12 policy that class members are not entitled to any procedural protections before they are

13 re-detained. In challenging this policy, Petitioners seek injunctive and declaratory relief.

14 A single injunction requiring the Government to provide notice and an opportunity to be

15 heard before re-detention would provide relief for each class member. The Court

16 therefore finds that class certification under Rule 23(b)(2) is appropriate. See Preap v.

17 Johnson, 303 F.R.D. 566, 587 (N.D. Cal. 2014), aff’d, 831 F.3d 1193 (9th Cir. 2016)

18 (“Because Petitioners seek only injunctive and declaratory relief and a single remedy

19 would provide relief for each class member, the proposed class is appropriate for 23(b)(2)

20 certification.”).

21
22 // 23 // 24 // 25 // 26 //

27

28 any award of fees to class counsel will diminish the relief available to class members. Monitoring counsel’s bills would therefore serve no interest.
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1 V. CONCLUSION

2

3

Petitioners challenge the Government’s policy of indiscriminately and abruptly re-

4 detaining individuals who have been living peaceably in our country based on the sole

5 fact that they were once ordered removed. The Government contends it is not required to

6 determine whether any of these individuals should be given procedural protections before

7 they are re-detained, whether it be notice, time to wrap up their affairs, or an opportunity

8 to challenge their detentions.

9

10

The Court finds that Petitioners’ claims, which challenge the Government’s

11 uniform policy as unlawful, may proceed as a class action. Accordingly, the Court

12 GRANTS IN SUBSTANTIAL PART Petitioners’ motion for class certification and

13 hereby CERTIFIES the following class:

14

15

All Cambodian nationals in the United States who received final orders of deportation or removal, and were subsequently released from ICE custody,

16

and have not subsequently violated any criminal laws or conditions of their

17

release, and have been or may be re-detained for removal by ICE.

18
19 Petitioners are appointed as Class Representatives and Petitioners’ counsel, ALC and 20 Sidley Austin LLP, are appointed as Class Counsel.

21

22

23

DATED: August 14, 2018

24

__________________________________

25

CORMAC J. CARNEY

26

UNITED STATES DISTRICT JUDGE

27

28

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 Case 8:17-cv-01898-CJC-GJS Document 319 Filed 03/04/20 Page 1 of 27 Page ID #:8407

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

SOUTHERN DIVISION

11

12

NAK KIM CHHOEUN AND MONY NETH, individually and on behalf of a

) ) Case No.: SACV 17-01898-CJC(GJSx) )

13 class of similarly situated individuals, )

)

14

)

Petitioners,
15

) ORDER GRANTING PETITIONERS’ ) MOTION FOR SUMMARY

v.
16

) JUDGMENT [Dkt. 250] AND ) DENYING RESPONDENTS’ CROSS-

) MOTION FOR SUMMARY

17 DAVID MARIN, Field Office Director, ) JUDGMENT [Dkt. 298]

18

Los Angeles Field Office, United States Immigration and Customs Enforcement;

) ) )

19 DAVID W. JENNINGS, Field Office )

20

Director, San United States

Francisco Field Office, Immigration and Customs

) ) )

21 Enforcement; MATTHEW ALBENCE, )

22

Acting Director, United States Immigration and Customs Enforcement;

) ) )

23 KEVIN MCALEENAN, Acting

)

24

Secretary, United States Department of

) )

Homeland Security; WILLIAM BARR, )

25 United States Attorney General,

)

)

26

)

27

Respondents.

) )

)

28

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Case 8:17-cv-01898-CJC-GJS Document 319 Filed 03/04/20 Page 2 of 27 Page ID #:8408

1 I. INTRODUCTION

2

3

The United States Constitution protects all persons present in this country—

4 whether lawfully or unlawfully, temporarily or permanently—from governmental abuse

5 of power. One right it guarantees is the right to due process of law before the

6 government takes away a person’s right to live, work, and raise a family in the United

7 States. Petitioners here seek to enforce that right. As they phrase it, they “seek the most

8 basic form of due process prior to loss of the most fundamental liberty interest: written

9 notice prior to detention for the purpose of removal from their homes, lives, and

10 families.” (Dkt. 250 at 1.)

11

12

Petitioners Nak Kim Chhoeun and Mony Neth represent a certified class of around

13 900 Cambodian nationals living in the United States. (See Dkt. 149 at 16 [class

14 definition]; Dkt. 315 ¶ 1.) Many class members fled Cambodia in the 1970s as small

15 children to escape the brutal Khmer Rouge regime. Although they have been living in

16 the United States for many years, most class members are subject to orders of removal to

17 Cambodia based on criminal convictions that are years or decades old. The government

18 did not deport them when the orders of removal were issued because Cambodia refused

19 to accept their repatriation. Instead, ICE released them from custody and returned them

20 to their families and communities. In the decades since their release, class members have

21 remained in this country and served as peaceable and productive members of our society,

22 not committing any additional crimes or violating any conditions of release, and their

23 removal orders laid dormant.

24

25

In October 2017, ICE suddenly commenced a series of raids to detain Petitioners.

26 Without warning, armed ICE officers raided Petitioners’ homes and workplaces, taking

27 them away from their communities, families, and responsibilities. Some Petitioners were

28 detained at ICE offices when they reported for what they assumed were perfunctory

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1 meetings. Others were detained after being pulled over while driving to work. The 2 government conducted similar raids without notice in spring and fall 2018. Until this 3 Court issued orders requiring notice, the government conducted raids without giving 4 Petitioners any notice at all that they would be suddenly detained after years of release. 5 Absent this litigation, the government would have removed them without any notice and 6 opportunity to be heard beyond what they received decades ago (in some cases, before 7 critical changes in the law) in connection with the issuance of their removal orders. 8 Indeed, the government did not even give them the opportunity to say goodbye to their 9 families and loved ones.

10

11

Now before the Court are cross motions for summary judgment on the issue of

12 whether procedural due process requires the government to provide written notice to

13 Petitioners before re-detaining them for removal procedures. (See Dkt. 250 [Petitioners’

14 Motion for Summary Judgment, hereinafter “Mot.”]; Dkt. 2981 [Respondents’ Cross-

15 Motion and Opposition, hereinafter “Cross Mot.”].) For the following reasons, the Court

16 finds that the Constitution mandates notice under these circumstances. Accordingly,

17 Petitioners’ motion is GRANTED and Respondents’ cross-motion is DENIED.

18
19 II. BACKGROUND

20
A. The Named Petitioners’ and Other Class Members’ Background
21

22

1. Nak Kim Chhoeun

23

24

Petitioner Nak Kim Chhoeun was born in Cambodia in 1975. (Dkt. 28-2

25 [December 2017 Declaration of Nak Kim Chhoeun, hereinafter “2017 Chhoeun Decl.”]

26

27
1 The government filed three versions of the same motion, to account for factual errors in old versions 28 and this Court’s order denying their request to file a 50-page motion (Dkt. 282). Accordingly, this order
also resolves the motions at Docket Numbers 284 and 292.
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Case 8:17-cv-01898-CJC-GJS Document 319 Filed 03/04/20 Page 4 of 27 Page ID #:8410

1 ¶ 2.) His mother survived the Khmer Rouge, though many in her family were killed, 2 including both her parents. (Id. ¶ 11.) Mr. Chhoeun fled Cambodia with his parents and 3 siblings when he was just three years old, and spent time in refugee camps in Thailand 4 and in the Philippines. (Id. ¶ 2.) The family entered the United States in June 1981, 5 when Mr. Chhoeun was about six years old. (Id. ¶ 3.) Mr. Chhoeun is now 44 years old, 6 and his parents and six siblings are now all U.S. citizens. (Id. ¶ 2.)

7

8

Sometime around 1999, when Mr. Chhoeun was in his early 20s, he was involved

9 in a gang-related incident. (Id. ¶ 4.) The incident occurred when Mr. Chhoeun agreed to

10 drive his friend’s brother to run an errand. (Id.) Although Mr. Chhoeun did not know it

11 at the time, the neighborhood they drove into had a reputation for being dangerous. (Id.)

12 When they arrived, people approached his car and threw bottles at it. (Id.) Mr. Chhoeun

13 tried to drive away, but his friend’s brother pulled out a gun and shot at a parked car.

14 (Id.) No one was injured and police were not called to the scene. (Id.)

15

16

Mr. Chhoeun later learned that the individuals who approached his car were gang

17 members. (Id.) When police questioned the gang members, they learned of Mr.

18 Chhoeun’s involvement. (Id.) Based on the information gathered by the police, the

19 District Attorney pressed charges against Mr. Chhoeun, although the record does not

20 make clear the precise nature of the charges or their disposition. (See id.) Mr. Chhoeun

21 states in his declaration that he went to trial for at least some of the charges, and that

22 although a jury convicted him, he was ultimately acquitted on appeal. (Id.) Mr. Chhoeun

23 further claims that while his appeal was pending, he learned that there were additional

24 charges filed against him for possession of a firearm and simple assault—charges he

25 knew nothing about until the District Attorney offered him a plea deal. (Id.) He claims

26 that there were no hearings regarding these charges and that he did not know any of the

27 facts alleged, including the identity of the purported victim. (Id.) Mr. Chhoeun

28 nevertheless accepted a plea agreement of a concurrent two-year sentence. (Id.) He later

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1 received an order of removal from an immigration judge. (Id. ¶ 7.) He was placed in 2 ICE custody pending deportation, but was released after six months because Cambodia 3 would not accept his repatriation. (Id.)

4

5

Mr. Chhoeun lived on an ICE order of supervision from December 2003 through

6 October 2017. (See id. ¶ 8.) In those nearly 14 years, he had no convictions or arrests,

7 complied with the conditions of his release, and served as a productive member of his

8 workplace, family, and community. (See id. ¶¶ 8–9.) He became gainfully employed in

9 2004 and remained so until his detention. (Id. ¶ 9.) In 2014, he became a service

10 technician for AT&T, and in 2016, he received the highest accolade available to the 275

11 such technicians A&T employs—technician of the year. (Id.) Mr. Chhoeun is also a key

12 decisionmaker in his family, and in 2004 was called on to decide whether to remove his

13 father from life support. (Id. ¶ 10.) After his father passed away in 2004, Mr. Chhoeun

14 visited his mother every day. (Id. ¶ 11.) These visits were necessary because his mother,

15 whose own parents and other family members were killed by the Khmer Rouge regime,

16 suffers from several medical conditions and disabilities. (Id.) Mr. Chhoeun also

17 extended hospitality to other members of the community. For example, when he learned

18 that a former colleague had become homeless, Mr. Chhoeun housed him (despite the fact

19 that Mr. Chhoeun lived in a studio apartment) and helped him get a job. (Id. ¶ 12.) With

20 Mr. Chhoeun’s help, the colleague was able to regain employment and his own place to

21 live. (Id.)

22

23

On October 14, 2017, after nearly 14 years of supervision, Mr. Chhoeun received a

24 letter stating that he should report to the local ICE office. (Id. ¶ 13.) The letter did not

25 explain why he was required to report, but because the date ICE asked Chhoeun to report

26 was three days away from his regular check-in date, Chhoeun believed he was reporting

27 for a regular check-in and thought little of the letter. (Dkt. 251-1, Ex. 1 [hereinafter

28 “Chhoeun Depo.”] at 42–43.) Indeed, on the date in the letter, Mr. Chhoeun checked in

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1 and followed the same procedure he followed for ordinary check-ins. (Id. at 44.) He put 2 a form in a box, his name was called, he went through a door, and an officer met him 3 there. (Id. at 45.) But where usually the officer would give him a new date to report, this 4 time the officer told Mr. Chhoeun to “sit tight.” (Id.) Mr. Chhoeun waited thirty 5 minutes. (Id.) Then, someone else came in the room, told Mr. Chhoeun to put his hands 6 behind his back, and handcuffed him. (Id.) He was put in a holding tank for eight to ten 7 hours, shackled, and taken away to a maximum-security jail complex. (Id. at 46.)

8

9

On March 26, 2018, the Court granted Mr. Chhoeun habeas relief on his unlawful

10 detention claim, finding that the government’s abrupt arrest and detention of him without

11 notice violated his right to due process, and ordered that he be immediately released from

12 custody and placed on supervision under the same terms and conditions imposed on him

13 prior to his unlawful detention. (Dkt. 104 at 12, 15.) He is currently pursuing judicial

14 review of his motion to reopen in the Third Circuit, and is also seeking a pardon in the

15 state of Pennsylvania. (See Dkt. 301, Ex. 34.)

16

17

2. Mony Neth

18

19

Mony Neth was born in Cambodia in 1975 and fled the Khmer Rouge with his

20 family when he was a child. (Dkt. 28-9 [2017 Declaration of Mony Neth, hereinafter

21 “Neth Decl.”] ¶ 2.) The family arrived in the United States in 1985, and settled in

22 Modesto, California. (Id. ¶¶ 2–4.) Mr. Neth became a lawful permanent resident, and

23 continues to live in Modesto today with his wife, eighteen-year-old daughter, and parents,

24 all of whom are U.S. citizens. (Id. ¶ 3.)

25

26

By his own account, Mr. Neth “got involved with the wrong crowd when [he] was

27 younger.” (Id. ¶ 4.) In 1995, he was convicted of unlawful possession of a weapon and

28 receipt of stolen property. (Id.) Mr. Neth was sentenced to four years’ imprisonment, but

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1 was released after two and a half years. (Id.) After his release, ICE detained Mr. Neth 2 for removal proceedings. (Id. ¶ 5.) Shortly after, ICE released Mr. Neth on bond. (Id.) 3 Mr. Neth then returned to Modesto, and in the last twenty-plus years has not been 4 charged with any additional crime. (Id.) Instead, Mr. Neth has built a family, is gainfully 5 employed by a solar energy company, and is an active member of his local church, where 6 he regularly serves meals to the homeless. (Id. ¶¶ 5, 12.)

7

8

In 2010, Mr. Neth got a letter asking him to turn himself in for deportation. (Id.

9 ¶ 6.) In his words, although he had “fought [his] deportation case for over a decade,”

10 after he lost, he “knew that [he] had to respect the final decision in [his] case, so [he]

11 turned [himself] in.” (Id.) He was detained for several months, but ICE released Mr.

12 Neth again after it was unable to get a travel document for him. (Id.)

13

14

On July 28, 2017, the Stanislaus County Superior Court granted Mr. Neth a

15 Certificate of Rehabilitation for his 1995 conviction. (Id. ¶ 13; Dkt. 28-12 [Declaration

16 of Anoop Prasad, hereinafter “Prasad Decl.”] Ex. B.) To support the finding of

17 rehabilitation with satisfactory proof, the court and the District Attorney’s office

18 completed a full investigation and hearing. (Id.) The court found that Mr. Neth “has

19 demonstrated by the course of conduct [his] rehabilitation and fitness to exercise all the

20 civil and political rights of citizenship.” (Id.)

21

22

On October 19, 2017, ICE officers unexpectedly visited Mr. Neth’s home and

23 spoke to his mother while he was at work. (Neth Decl. ¶ 8.) The next morning, ICE

24 officers stopped and arrested Mr. Neth while he was driving to work. (Id. ¶ 9.) Mr. Neth

25 received no notice or explanation of why he was being detained. (Id. ¶ 10.) Mr. Neth’s

26 family learned he was being detained only after the fact, when an ICE officer drove Mr.

27 Neth’s car to his home and handed his wife the keys. (Dkt. 28-7 [Declaration of

28 Phounsavath Khamvongsa (Mr. Neth’s wife), hereinafter “Khamvongsa Decl.”] ¶ 13.)

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1

On December 6, 2017, while Mr. Neth was in ICE detention, the Governor of

2 California granted him a full and unconditional pardon, stating that since his conviction,

3 Mr. Neth “has lived an honest and upright life, exhibited good moral character, and

4 conducted himself as a law-abiding citizen.” (Prasad Decl. Ex. A.) The pardon nullified

5 the immigration consequences of Mr. Neth’s conviction, and formed the basis of a

6 motion to reopen and a motion for stay of removal, which Mr. Neth filed through counsel

7 in the Board of Immigration Appeals (“BIA”) on December 13, 2017. (Dkt 62-6

8 [Supplemental Declaration of Anoop Prasad, hereinafter “Supp. Prasad Decl.”] ¶ 6.)

9

10

Mr. Neth was among a group of Petitioners scheduled to be deported on December

11 18, 2017, before the Court entered a temporary restraining order enjoining execution of

12 Petitioners’ removal orders. (Id.) Given the scheduled removal, Mr. Neth’s counsel

13 asked the BIA to process his motion for a stay on an expedited basis. (Id. ¶ 7.) After

14 persistent efforts including contact with ICE and the BIA, counsel received notice on

15 December 21, 2017 that the BIA granted a stay. (Id. ¶¶ 7–11.) On December 22, 2017,

16 ICE released Mr. Neth from detention on an order of supervision pending the outcome of

17 his removal proceedings. (Dkt. 93-2 ¶ 3.) The BIA granted Mr. Neth’s motion to reopen

18 on April 17, 2018, and an immigration judge terminated his removal proceedings on

19 August 28, 2018. (Shultz Decl. ¶ 19; Dkt. 316 at 17.)

20

21

3. Other Class Members

22

23

Petitioners Chhoeun and Neth exemplify the experiences of many other class

24 members. They, like most class members, fled Cambodia when they were small children

25 to escape the Khmer Rouge’s campaign of mass murder and torture, and the United

26 States is the only home they have ever known.2 They are subject to removal orders based

27
28 2 (See, e.g., Dkt. 28-8 [Declaration of Rottanak Kong, hereinafter “Kong Decl.”] ¶ 2 [“My family fled Cambodia because of all the killings when I was just a few months old.”]; Dkt. 92-30 [Declaration of
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1 on crimes they committed over a decade ago, when they were in their teens and twenties.3 2 Since their removal orders were issued, Petitioners were released from custody and have 3 seized the opportunity to become productive members of their communities.4 Almost all 4 are lawful permanent residents and have parents, siblings, spouses, and children who are 5 U.S. citizens.5 These family members rely on class members for financial and emotional 6 support.6

7

8

B. Procedural History

9

10

In 2017, after years of difficulty repatriating people from the U.S. to Cambodia, the

11 Cambodian government told ICE that it would consider relaxing previous requirements

12 that had caused some of the difficulty. (See Dkt. 60-1 [Declaration of John A. Schultz,

13 Jr., Deputy Assistant Director for ICE’s Removal Management Division] ¶ 13.)

14
15 Sowath Thong, hereinafter “Thong Decl.”] ¶¶ 2–3, 6 [“I have no memories of living (in Cambodia).”]; Dkt. 92-5 [Declaration of Sok Chhay, hereinafter “Chhay Decl.”] ¶¶ 2–4 [describing how his father died
16 of starvation during the Khmer Rouge regime while his mother was pregnant with him, and how his family went to a Thai refugee camp when he was four years old; Dkt. 185-12 [Declaration of Sene Sem,
17 hereinafter “Sem Decl.”] ¶ 2 [“My first memories are from the refugee camp in Thailand.”]; Dkt. 251-1, Ex. 31 [Declaration of Sear Un, hereinafter “Un Decl.”] ¶ 3 [describing how his parents fled the Khmer
18 Rouge and almost had to leave him behind because he was crying from hunger, but a woman gave him a 19 little rice so that he would stop crying for long enough to sneak by soldiers]); see Dkt. 185-10
[Declaration of Chhay Kim, hereinafter “Kim Decl.”] ¶¶ 1, 13 [describing how he was born in a refugee 20 camp in Thailand because his family fled the Khmer Rouge before he was born and has never even been
to Cambodia].) 21 3 (See, e.g., Kong Decl. ¶ 5 [crimes in 2003 and 2004 as a teen]; Thong Decl. ¶¶ 7–10 [crime in 1998 at
age 18]; Dkt. 28-18 [Declaration of Sareang Ye, hereinafter “Ye Decl.”] ¶ 4 [crime in early 1990’s as a 22 teen]; Chhay Decl. ¶¶ 5–6 [crime in 1993 as a teen]; Sem Decl. ¶ 6 [crime in 1990 at age 18]; Kim Decl. 23 ¶¶ 5–7 [crime in 1999 at age 24]; Un Decl. ¶ 13 [conviction in 1998 at age 20.)
4 (See, e.g., Thong Decl. ¶ 15; Ye Decl. ¶¶ 5, 7; Chhay Decl. ¶¶ 10–12; Kim Decl. ¶ 8; Un Decl. ¶ 22.) 24 5 (See, e.g., Kong Decl. ¶¶ 5, 12; Thong Decl. ¶¶ 4, 13, 16; Ye Decl. ¶¶ 2, 5; Chhay Decl. ¶ 11; Kim
Decl. ¶ 9; Un Decl. ¶ 5.) 25 6 (See, e.g., Kong Decl. ¶ 12; Khamvongsa Decl. ¶¶ 5, 14 [describing how Mr. Neth helps pay the bills
and helps his daughter with his homework]; Ye Decl. ¶¶ 3, 8; Thong Decl. ¶ 31 [describing how he takes 26 his elderly mother to doctors’ appointments and does housework for her]; Chhay Decl. ¶ 17 [describing 27 how he pays child support]; Kim Decl. ¶¶ 9–10 [describing how he takes his children to school, sports
practices and games, and doctor appointments]; Un Decl. ¶¶ 22–25 [explaining how his wife is 28 expecting their third child sometime this year, and how his wife has various health issues that preclude
her from working, meaning Un’s detention makes it hard for the family to make ends meet].)
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1 Accordingly, ICE began conducting raids to re-detain Cambodian nationals who had been 2 released so Cambodian authorities could interview them for possible removal to

3 Cambodia. (Id. ¶¶ 14–15.) In October 2017, ICE revoked the release of 89 individuals

4 with final removal orders, including Mr. Chhoeun and Mr. Neth, to consider them for

5 removal. (Id. ¶ 15; see 2017 Chhoeun Decl. ¶ 13; Neth Decl. ¶¶ 8–10.) Some were

6 detained during regularly scheduled ICE check-ins, while others received phone calls or

7 letters from ICE ordering them to report early without explanation and were detained

8 upon complying, and still others were detained after being pulled over while they drove

9 to work. (See 2017 Chhoeun Decl. ¶ 13; Chhoeun Depo. at 42–43; Neth Decl. ¶ 8; Thong

10 Decl. ¶ 19; Ye Decl. ¶ 6.)

11

12

On October 27, 2017, Petitioners Nak Kim Chhoeun and Mony Neth filed this

13 class action challenging the government’s policy of rounding up and placing in

14 immigration detention Cambodian nationals who had been released and living peaceably

15 for years or decades without notice and without an opportunity to challenge their

16 removal. (Dkt. 1 [Complaint]; Dkt. 27 [First Amended Habeas Corpus Petition and

17 Complaint].) On December 14, 2017, the Court granted a temporary restraining order

18 enjoining the government from executing Petitioners’ final removal orders. (Dkt. 32.)

19 On January 25, 2018, the Court granted a preliminary injunction enjoining the

20 government from executing those orders until February 5, 2018, and for any Petitioner

21 who filed a motion to reopen before that date, enjoining the government from executing 22 the removal order until seven days after BIA denial of the motion to reopen. (Dkt. 75.)

23

24

The government conducted a second set of raids in spring 2018, detaining—again

25 without notice—another 30 Cambodians, many of whom are class members. (Mot. at 7.)

26 On August 14, 2018, the Court certified a class in this case consisting of:

27

28

All Cambodian nationals in the United States who

received final orders of deportation or removal, and were

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1

subsequently released from ICE custody, and have not

subsequently violated any criminal laws or conditions of

2

their release, and have been or may be re-detained for

3

removal by ICE.

4
(Dkt. 149 at 16.)
5

6
In fall 2018, the government conducted another set of raids, detaining without
7
notice approximately 50 Cambodians for interviews that would help determine whether
8
they would be deported. (Dkt. 185-8 [Declaration of Anoop Prasad] ¶ 3.) Those detained
9
included Chhay Kim, who had reported to ICE consistently for 18 years and whose wife
10
was less than 2 months away from giving birth to their fifth child, (Kim Decl. ¶¶ 9, 11,
11
12), and Sene Sem, who was re-detained without warning in his own home, and in front
12
of his 10-year-old daughter and mother-in-law, (Sem Decl. ¶ 25.).
13

14
On December 17, 2018, a Cambodian government official told Petitioners’ counsel
15
about a U.S. diplomatic note inviting Cambodian officials to conduct interviews of 100
16
Cambodian nationals from January 28, 2019 to February 8, 2019. (Dkt. 185 at 6; Dkt.
17
185-5 [Declaration of Kevin Chun Hoi Lo] ¶¶ 3–5.) Petitioners’ counsel understood this
18
to mean that the government was planning to carry out more large-scale raids to re-detain
19
up to 100 class members beginning in early January 2019, since raids are conducted
20
before interviews so detainees can be transported to their interview location. (Id.)
21

22
Concerned about the possibility of yet another raid, Petitioners contacted the
23
government on December 19, 2018 to determine whether the government would provide
24
notice to class members before re-detaining them. (Dkt. 185-9 [Declaration of Jingni
25
Zhao] ¶ 2.) When the government responded that it would not provide notice without a
26
court order, Petitioners stated they would seek emergency relief in this Court. (Id. ¶ 3.)
27
On January 3, 2019, the Court issued a temporary restraining order enjoining the
28

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1 government from re-detaining any class member unless the government first provided 2 written notice at least 14 days before detention. (Dkt. 190.) The Court also issued an 3 order to show cause why a preliminary injunction should not issue (id.), but the parties 4 instead stipulated to filing these cross-motions for summary judgment on the issue raised 5 in the order to show cause: whether the Constitution requires the government to provide 6 written notice to class members before detention. (Dkts. 206–207.) The parties further 7 stipulated that the temporary restraining order regarding notice would remain in effect up 8 to and including the hearing on those cross-motions. (Id.)

9

10

C. Legal Developments Since Petitioners Were Released

11

12

According to Petitioners, there have been fundamental changes in immigration law

13 and Petitioners’ personal circumstances since the original removal orders were issued.

14 (Mot. at 5–6; Dkt. 306 at 4.) Petitioners contend that these changes provide viable

15 avenues to reopen Petitioners’ cases and challenge their removal orders. (Id.)

16

17

One relevant change is the Supreme Court’s decision in Judulang v. Holder, 565

18 U.S. 42 (2011). In that case, the Court determined that the BIA’s then-existing practice

19 for determining whether an alien was eligible to seek relief from deportation from the

20 Attorney General was “arbitrary and capricious” under the Administrative Procedure Act.

21 Id. at 52–53. The BIA’s approach, known as the “comparable-grounds” rule, examined

22 whether the charged deportation ground had a close analogue in the Immigration and

23 Nationality Act’s list of exclusion grounds. If it did, the alien could seek discretionary

24 relief. But if the deportation ground covered different, more, or fewer offenses than any

25 exclusion ground, the alien was ineligible for relief, even if the alien’s particular offense

26 fell within an exclusion ground. For example, Judulang’s deportation ground was that he

27 committed an “aggravated felony” involving a “crime of violence,” but the “crime of

28 violence” deportation ground included offenses (including simple assault, minor

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1 burglary, and unauthorized use of a vehicle) not found in the exclusion ground for a 2 “crime involving moral turpitude,” meaning there was not a sufficient match, and 3 Judulang was not eligible for relief. The Court explained that the BIA “failed to exercise 4 its discretion in a reasoned manner” because it “hing[ed] a deportable alien’s eligibility 5 for discretionary relief on the chance correspondence between statutory categories—a 6 matter irrelevant to the alien’s fitness to reside in this country” or the purposes of the 7 immigration laws. Id. Judulang has afforded some aliens a previously-unavailable basis 8 to reopen their immigration proceedings. (Mot. at 5); see, e.g., Bonilla v. Lynch, 840 9 F.3d 575, 581 (9th Cir. 2016) (regarding a supplement to a motion to reopen filed based 10 on “the change of law announced in Judulang”).

11

12

Another change is Johnson v. United States, where the Supreme Court held that the

13 “residual clause” of the Armed Career Criminal Act is unconstitutionally vague under the

14 Fifth Amendment. 135 S. Ct. 2551, 2557 (2015). The “residual clause” defined a

15 “violent felony” to include any felony that “involves conduct that presents a serious

16 potential risk of physical injury to another.” Id. at 2555 (citing 18 U.S.C. §

17 924(e)(2)(B)); (Mot. at 5–6). The Court reasoned that two aspects of this definition,

18 taken together, made it unconstitutionally vague: there was “grave uncertainty” as to (1)

19 how to estimate the risk posed by a crime because the Court’s test required courts to

20 assess the risk using a “judicially imagined ‘ordinary case’” of a crime rather than the

21 real-world facts or statutory elements, and (2) how much risk it takes for a crime to

22 qualify as a violent felony, especially when the test involved applying the “serious

23 potential risk” standard to the “judge-imagined abstraction” of the “ordinary case.” Id. at

24 2557. The Court found that these uncertainties “produce[d] more unpredictability and

25 arbitrariness than the Due Process Clause tolerates.” Id. at 2558. If a class member was

26 convicted under this clause, Johnson may provide grounds for relief from his or her

27 removal order.

28

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1

A similar legal change occurred in Sessions v. Dimaya, where the Supreme Court

2 applied Johnson to invalidate as unconstitutionally vague the residual clause of the

3 federal criminal code’s definition of “crime of violence.” 138 S. Ct. 1204, 1210 (2018).

4 Dimaya may be particularly important to Petitioners here because the “crime of violence”

5 definition that case invalidated is often used as a cross-reference to find that an alien has

6 been convicted of an “aggravated felony” under the Immigration and Nationality Act,

7 making the alien deportable and ineligible for cancellation of removal. If a class member

8 was found to have been convicted of an “aggravated felony” using the residual clause of

9 the federal criminal code’s crime of violence definition, Dimaya may provide the class

10 member grounds for relief. (See, e.g., Un Decl. ¶ 13 [class member who may no longer

11 be deportable under Dimaya].)

12

13

Still other Petitioners may have grounds to vacate their decades-old guilty pleas

14 and the underlying removal orders based on Padilla v. Kentucky, where the Supreme

15 Court held that the Sixth Amendment requires attorneys to advise criminal defendants of

16 the deportation consequences of guilty pleas. 559 U.S. 356, 360 (2010).

17
18 III. LEGAL STANDARD

19

20

The Court may grant summary judgment on “each claim or defense—or the part of

21 each claim or defense—on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

22 Summary judgment is proper where the pleadings, the discovery and disclosure materials

23 on file, and any affidavits show that “there is no genuine dispute as to any material fact

24 and the movant is entitled to judgment as a matter of law.” Id.; see also Celotex Corp. v.

25 Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment bears the initial

26 burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477

27 U.S. at 325. A factual issue is “genuine” when there is sufficient evidence such that a

28 reasonable trier of fact could resolve the issue in the nonmovant’s favor. Anderson v.

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1 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” when its resolution 2 might affect the outcome of the suit under the governing law, and is determined by 3 looking to the substantive law. Id. “Factual disputes that are irrelevant or unnecessary 4 will not be counted.” Id. at 249.

5

6

In considering a motion for summary judgment, the court must examine all the

7 evidence in the light most favorable to the nonmoving party, and draw all justifiable

8 inferences in its favor. Id.; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); T.W.

9 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987).

10 The court does not make credibility determinations, nor does it weigh conflicting

11 evidence. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992).

12 But conclusory and speculative testimony in affidavits and moving papers is insufficient

13 to raise triable issues of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE

14 Corp., 594 F.2d 730, 738 (9th Cir. 1979). The material the parties present must be the

15 type that would be admissible in evidence. Fed. R. Civ. P. 56(c).

16
17 IV. DISCUSSION

18

19

The question presented in these motions is whether the Constitution requires notice

20 before an immigrant who is subject to a final removal order, but has been released despite

21 that removal order (often for years or decades) and committed no further crimes, may be

22 re-detained for purposes of removal. “[T]he Due Process Clause was intended to prevent

23 government officials from abusing their power, or employing it as an instrument of

24 oppression.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citations and

25 quotations omitted). The “touchstone” of due process is protecting people against

26 arbitrary government action, whether from “denial of fundamental procedural fairness, or

27 in the exercise of power without any reasonable justification in the service of a legitimate

28 governmental objective.” Id. at 845–46. The Due Process Clause “protect[s] every

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1 person within the nation’s borders”—including those “whose presence in this country is 2 unlawful, involuntary, or transitory.” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 3 (9th Cir. 2014) (en banc); Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due 4 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 5 their presence here is lawful, unlawful, temporary, or permanent.”). It is “well 6 established that aliens facing deportation from this country are entitled to due process 7 rights.” Walters v. Reno, 145 F.3d 1032, 1037 (9th Cir. 1998).

8

9

“Procedural due process imposes constraints on governmental decisions which

10 deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due

11 Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.

12 319, 332 (1976). “The fundamental requirement of due process is the opportunity to be

13 heard at a meaningful time and in a meaningful manner.” Id. at 333 (citations and

14 quotations omitted). “Due process, unlike some legal rules, is not a technical conception

15 with a fixed content unrelated to time, place and circumstances. Due process is flexible

16 and calls for such procedural protections as the particular situation demands.” Id. at 334

17 (citations and quotations omitted).

18

19

To determine what procedural protections due process requires, courts balance

20 three factors: “(1) the private interest affected; (2) the risk of erroneous deprivation

21 through the procedures used, and the value of additional safeguards; and (3) the

22 government’s interest, including the burdens of additional procedural requirements.”

23 Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir. 2015) (citing Mathews, 424 U.S. at

24 335). Here, then, the Court weighs Petitioners’ liberty interest in remaining in the United

25 States against the risk of erroneous deprivation of that liberty interest without notice, the

26 value of notice, and the government’s interest in removing Petitioners without notice,

27 including the burdens of that notice. See id.

28

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1

A. The Private Interest Affected

2

3

The private interest affected here cannot be overstated: it is the liberty interest that

4 the Constitution guarantees will not be deprived without due process of law. Though the

5 Supreme Court “has not attempted to define with exactness the liberty . . . guaranteed” in

6 the Fifth and Fourteenth Amendments, it means “[w]ithout doubt” not merely freedom

7 from physical restraint, but also the right to work, learn, marry, establish a home, raise 8 children, and all of the privileges “essential to the orderly pursuit of happiness.” Meyer v. 9 Nebraska, 262 U.S. 390, 399 (1923) (citing fourteen cases). The Supreme Court has 10 further long recognized that removal places “the liberty of an individual . . . at stake”

11 because it “visits a great hardship on the individual and deprives him of the right to stay

12 and live and work in this land of freedom.” Bridges v. Wixon, 326 U.S. 135, 154 (1945).

13 “Meticulous care must be exercised lest the procedure by which he is deprived of that

14 liberty not meet the essential standards of fairness.” Id.

15

16

Petitioners have a strong liberty interest in remaining in this country to live, work,

17 and raise families.7 Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1068–

18 69 (9th Cir. 1995) (“Aliens who have resided for more than a decade in this country . . .

19 have a strong liberty interest in remaining in their homes.”); see Bridges, 326 U.S. at 154

20 (removal “visits a great hardship on the individual and deprives him of the right to stay

21 and live and work in this land of freedom”). Many Petitioners have been living in the

22
23 7 The government has argued that the Court lacks jurisdiction because it cannot review the decision to execute a removal order. (See, e.g., Dkt. 275-2 [seeking leave to file overlong cross-motion to assert
24 this argument].) However, as the Court has explained, Petitioners do not challenge here the government’s decision to remove them, but rather assert a due process right to notice before re-detention
25 so they may, among other things, challenge the underlying validity of their removal orders. (See Dkt. 74 at 18.) Re-detention and removal here are inextricably intertwined because the purpose of re-detention
26 is to interview Petitioners and prepare them for removal. (See Dkt. 119 [March 26, 2018 Hrg. Tr.] at 9.) 27 For similar reasons, the Court finds unpersuasive the government’s arguments that Petitioners are
“essentially seeking that their final orders of removal be cancelled and that they be allowed to remain 28 indefinitely in the United States” or “covertly asserting a substantive due process challenge to the
execution of their removal orders.” (Cross Mot. at 28; Dkt. 316 at 6.)
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1 United States since they were small children, and have remained in this country for 2 decades after they were ordered removed to Cambodia. They have been raised in our 3 communities, contributed to those same communities through gainful and productive 4 employment, and raised families of their own. For Petitioners, being removed to 5 Cambodia means starting their lives over in a country they have never really known, 6 separated from their loved ones.

7

8

The government responds that Petitioners’ liberty interest is weak, because

9 Petitioners “have been allowed to remain in the United States” only “on borrowed time,”

10 and “[t]he simple fact that the United States was unable to enforce their removal orders

11 for any period” was only “as a result of the Cambodian government’s intransigence in

12 allowing their timely repatriation” and “does not create a private interest significant

13 enough to warrant extra time to prepare motions to reopen or wrap up their affairs.”

14 (Cross Mot. at 26, 29.) But this argument flatly ignores the indisputably strong ties to

15 this country Petitioners have developed, and the meaningful investments they have made.

16 Petitioners were initially ordered removed to Cambodia years, sometimes decades ago.

17 Years ago, the government was unable to carry out the removals, and released them from

18 custody to live at large in their communities. Petitioners have caused no problems in the

19 intervening years, and indeed have remained in the United States and contributed

20 productively. That Petitioners invested in and became productive members of United

21 States communities notwithstanding their removal orders is to be commended. Because

22 they did so, instead of wallowing in limbo while waiting to be removed, they made our

23 country better—and deepened their interest in remaining here. For the government to

24 now deny Petitioners’ strong ties and commitment to this country is not only

25 unpersuasive, but also deeply troubling.

26

27

The government further argues that “Petitioners have had an opportunity to

28 personally prepare their affairs” and challenge their removal orders or underlying

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1 convictions “every day since their removal orders became final, and certainly every day 2 since this case was filed two years ago.” (Cross Mot. at 27; Dkt. 316 at 11.) Again, the 3 government ignores reality. To expect Petitioners to—every day for decades—say 4 goodbye to their families as they leave the house for work with the idea in mind that 5 today could be the day they never return home, is unthinkable. To expect Petitioners 6 to—every day for decades— tell their bosses that that day may be their last day working, 7 is absurd. To expect Petitioners to—every day for decades—arrange alternate 8 arrangements for their children to be picked up from school, for their cars and other 9 personal effects to be picked up from wherever they are detained, and for their bills to be 10 paid going forward, in case they are detained for removal that day, is heartless. Even to 11 expect Petitioners to incur the substantial burdens involved in finding and hiring counsel 12 to consistently monitor new law (which could not have been raised in earlier removal 13 proceedings) and file continuous motions to reopen, is unreasonable.8

14

15

The government further argues that although Petitioners had due process rights

16 during removal proceedings, they have now “exhausted all due process” rights they had

17 since they “are now subject to valid, enforceable final removal orders.” (Cross Mot. at

18 28; Dkt. 316 at 10–11.) Accepting the government’s position would mean that due

19 process does not apply after issuance of a final removal order. This is not the law. For

20 example, the Ninth Circuit has found a due process violation where the BIA summarily

21 denied an alien’s request that it reconsider its previous refusal to reopen removal

22 proceedings. See Yeghiazaryan v. Gonzales, 439 F.3d 994, 998 (9th Cir. 2006). It

23
24 8 (See, e.g., Supp. Prasad Decl. ¶ 17 [explaining that class-members are largely low-income and unable to afford private counsel, and that access to legal services for immigrants in detention is “limited to non-
25 existent in large parts of the country”]; Thong Decl. ¶ 33 [“I had never heard of a motion to reopen. Money has always been tight, and there are not many immigration lawyers that serve my community.”];
26 Kim Decl. ¶ 14 [“I have never had enough money saved up to hire a lawyer to look into my immigration 27 case . . . I have always been completely focused on my biggest responsibility: paying the bills and
supporting my family.”]; Dkt. 251-1, Ex. 8 [Transcript of Deposition of Tin Thanh Nguyen] at 144 28 [estimating the cost of a motion to reopen to be $10,000-$15,000]; Khamvongsa Decl. ¶ 9 [estimating
that she and Mr. Neth have spent about $25,000 on immigration lawyers].)
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1 follows that immigrants have due process rights after final removal orders issue, and 2 indeed even after a motion to reopen is denied. See also United States v. Raya-Vaca, 771 3 F.3d 1195, 1198, 1202–03 (9th Cir. 2014) (concluding that even during expedited 4 removal proceedings after the defendant reentered after prior removal, a defendant had a 5 due process right to notice of the charge and an opportunity to respond).

6

7

In sum, the Court finds that the private liberty interest Petitioners seek to protect is

8 compelling.

9

10

B. The Risk of Erroneous Deprivation and Value of Safeguards

11

12

The Court next considers the risk of erroneously depriving Petitioners of their

13 weighty liberty interest through the procedures currently used (no notice at all), and the

14 value of additional safeguards (notice). Mathews, 424 U.S. at 335. As the Court

15 explained in granting the January 2018 preliminary injunction, exceptional circumstances

16 here, including that Petitioners’ removal orders were dormant for years or decades, that

17 Petitioners have been detained without notice, and the conditions of detention, create a

18 high risk of erroneous deprivation, and the value of additional safeguards is high. (Dkt.

19 74 at 20–22.)

20

21

Before the Court issued its January 2018 preliminary injunction, the government

22 detained Petitioners without notice. Petitioners therefore had no opportunity to contact

23 counsel, evaluate the latest legal developments, or gather documents relating to their

24 immigration and conviction histories necessary to file motions to reopen. (See, e.g.,

25 Prasad Decl. ¶ 5 [“None of the class members in detention had access to immigration or

26 criminal court records. Most did not remember critical details about their immigration

27 court or criminal proceedings often from decades ago.”]; id. ¶¶ 4–11 [describing how

28 difficult it is for attorneys to reconstruct files, how filing motions to reopen without such

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1 records can result in ineffective assistance of counsel, and how FOIA requests are not 2 sufficient to get the records].) Once in detention, Petitioners had very restricted access to 3 attorneys and documents. (See Dkt. 251-1, Ex. 6 [Transcript of Deposition of Kevin 4 Chun Hoi Lo]; Prasad Decl. ¶¶ 4–5.) Petitioners were also moved between detention 5 facilities around the country frequently, making it difficult to keep in contact with their 6 attorneys. (Supp. Prasad Decl. ¶ 13.) Without pre-detention notice, then, the risk of 7 erroneous deprivation, including by decreasing the possibility of obtaining full and 8 accurate information for use in a motion to reopen, increases significantly.

9

10

The results of the motions to reopen that some Petitioners were able to file despite

11 these many obstacles highlight this risk. For example, Mr. Neth, who was detained

12 without notice in October 2017 on his drive to work, was able with the help of his family

13 to contact counsel and vacate his removal order while in custody. But he came

14 dangerously close to erroneous removal. (Mot. at 18–19.) According to Mr. Neth’s

15 counsel, Mr. Neth was scheduled to be deported on a December 18, 2017 flight, and he

16 may have been on the flight but for the Court’s December 14, 2017 temporary restraining

17 order. (See Supp. Prasad Decl. ¶ 7.) Even though Mr. Neth’s counsel acted expeditiously

18 to request a stay of Neth’s removal—a request founded on the extremely persuasive

19 evidence of a gubernatorial pardon—he did not receive notice of a stay until December

20 21, 2017, after the scheduled deportation. (Id. ¶ 11.) The BIA then granted his motion to

21 reopen on April 17, 2018, and an immigration judge terminated his removal proceedings

22 on August 28, 2018.9 (Shultz Decl. ¶ 19; Dkt. 316 at 16.) Mr. Neth’s experience reveals

23 that even where Petitioners are able to quickly file motions to reopen and request

24 discretionary stays of removal, the haste with which the government seeks to remove

25 them creates a high risk of erroneous liberty deprivations.

26

27
28 9 Mr. Neth is not the only class member whose motion to reopen was granted. (See, e.g., Dkt. 147-1 [describing two successful motions to reopen by putative class members].)
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1

The government argues that existing administrative procedures available to those

2 seeking to challenge their removability “are more than sufficient to guard against the risk

3 of erroneous deportation.” (Cross Mot. at 14–16.) The government is wrong. The

4 existing procedures on which the government relies permit discretionary stays of removal

5 where “immediate removal is not practicable or proper” or where the alien is needed to

6 testify in a criminal prosecution. 8 U.S.C. § 1231(c)(2). These procedures do not

7 consider the possibility that an alien may have valid grounds for a motion to reopen. (See

8 Dkt. 306 at 9–10.) Mr. Neth’s experience shows why existing procedures are not enough.

9 Even though Mr. Neth had been pardoned, the process of obtaining an administrative stay

10 required “an enormous amount of effort” from counsel, and even then, it is not clear from

11 the record whether the stay he secured was in effect at the time Mr. Neth was scheduled

12 to be deported. (See Supp. Prasad Decl. ¶ 12.) Even assuming Mr. Neth successfully

13 obtained a stay in time to prevent his scheduled December 18, 2017 deportation, which it

14 does not appear he did (see Dkt. 316 at 17), his “situation is extremely uncommon”—he

15 “was able to obtain a stay of removal by sheer chance that counsel was aware of his

16 deportation date and possibly because of closer scrutiny to the process because of Mr.

17 Neth’s role as a class representative.” (Supp. Prasad Decl. ¶ 12.) At bottom, the existing

18 procedures are discretionary, and the dictates of procedural due process cannot be left to

19 the discretion of the executive branch.

20

21

At the hearing, the government focused on its authority to re-detain class members

22 where there is a significant likelihood of removal in the reasonably foreseeable future.

23 See 8 C.F.R. § 241.13; Zadvydas, 533 U.S. at 701. It argued that giving notice will not

24 change the government’s decision to re-detain a class member for removal because by the

25 time the government gives notice, it has already determined that there is a significant

26 likelihood of removal in the reasonably foreseeable future, and re-detention is thus nearly

27 certain. But even if notice does not change the decision to re-detain the class member,

28 notice still provides great value, including because it provides the class member an

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1 opportunity to contact an attorney, gather any documents they have, make FOIA requests 2 for other documents, say goodbye to their families and loved ones, and wrap up their 3 affairs, including ensuring adequate childcare and notifying their employers.

4

5

The Court concludes that the risk of erroneous removal and the value of the

6 additional safeguard of notice are both high.

7

8

C. The Burden on the Government and the Public Interest

9

10

Finally, the fiscal and administrative burdens to the government of providing

11 notice before re-detaining Petitioners is minimal, and the public interest against giving

12 notice is also low. See Mathews, 424 U.S. at 335, 348 (“the Government’s interest, and

13 hence that of the public, in conserving scarce fiscal and administrative resources is a

14 factor that must be weighed”).

15

16

The government argues that three interests outweigh the benefit of notice before

17 re-detention. None is persuasive. First, the government points to the public interest in

18 the “prompt execution of removal orders.” (Cross Mot. at 30–31.) That train has left.

19 The government waited years or decades to execute these removal orders, allowing

20 Petitioners to develop deep ties to this country by raising families and working. To now

21 argue that the government cannot wait fourteen additional days to execute those removal

22 orders is laughable, and certainly does not weigh in favor of denying Petitioners their due

23 process rights.

24

25

Second, the government argues notice “create[s] a burden on the ICE deportation

26 officers who ha[ve] to gather the information and prepare the notices,” taking “officers

27 away from managing their other responsibilities.” (Id. at 31.) However, there is no

28 evidence that notice, which the government has been providing since the Court’s January

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1 2019 temporary restraining order, creates more than a minimal burden on the 2 government. (See Dkt. 191 at 4.) The mandated notice is a one-page form that includes a 3 date, time, and location to appear, which the government sends with the class member’s 4 underlying criminal conviction records, notice to appear in immigration court, and order 5 of removal. (E.g., Dkt. 301, Ex. 24; see Mot. at 22.) The government does not genuinely 6 dispute that the process of compiling notice is relatively simple, especially since all of the 7 documents attached to the notice are in the immigrant’s A-File, and by the time notice is 8 given, the government has already gathered the documents for other purposes, including 9 to give to the Cambodian government for interviews. (See Dkt. 250-1 ¶ 5 [describing the 10 tasks required]; Dkt. 300 [arguing that “the addition of any task, regardless of whether the 11 task is ministerial, does not mean that the task does not impose a material administrative 12 or fiscal burden” and focusing on the fact that any time ICE officers spend giving notice 13 is time they could have spent on their other duties]; Dkt. 306 at 16.)

14

15

Finally, the government argues that giving notice before re-detention creates a

16 “very high rate of absconsions.” (Cross Mot. at 32.) Specifically, the government states

17 that of the 56 class members who were served with notice under this Court’s temporary

18 restraining order, 30 reported for revocation of release, and 26 did not. (Cross Mot. at

19 32.) Accordingly, the government calculates a 46% absconscion rate. (Id.) The Court

20 takes this contention seriously. The Court has no tolerance or sympathy for class

21 members who abscond after years of regularly checking in with ICE once they receive

22 notice that they must appear for travel document interviews.

23

24

However, the government has not provided reliable evidence to support its claimed

25 46% absconscion rate. Indeed, as Petitioners point out, for some people who the

26 government claims absconded, the government has no evidence that it mailed notice in

27 the first place. (Dkt. 306 at 19–20.) For example, Petitioners asked the government to

28 produce all documents showing the government’s effort to provide notice to the people

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1 the government asserts absconded. (Dkt. 309-1 [Supplemental Declaration of Sean 2 Commons, hereinafter “Commons Decl.”], Ex. 21 [Respondents’ Objections and 3 Responses to Petitioners’ Requests for Production Number 43 and 44] at 3.) The 4 government responded that it searched, but found no documents evidencing notice for six 5 of the alleged absconders. (Id. at 4; Commons Decl. Ex. 22 at 4.)

6

7

Compounding the unreliability of the government’s statistics is the fact that there is

8 evidence that some notices went to out-of-date addresses where the class member had

9 given the government a new address. (Dkt. 306 at 19 [collecting evidence].) There is

10 also evidence that some people the government says absconded are not class members at

11 all, because they were convicted of new crimes or violated their orders of supervision.

12 (Dkt. 306 at 20–21.)

13

14

As icing on the cake, some people the government states absconded actually

15 reached out to the government themselves. For example, one class member was served

16 with a notice stating his release was revoked and he was instructed to report to ICE. The

17 notice stated, “If you are unable to [keep this appointment], state your reason, sign below,

18 and return this letter to the office at once.” (Dkt 311-1, Ex. 30.) The class member

19 wrote: “I deeply apologize, I am unable to report on 3-20-2019, due to personal reason,

20 taking care of a dying extremely critically ill family member. Please delay and postpone

21 my check in and thank you.” (Id.) The class member then reported voluntarily at a later

22 date, was detained, filed a successful motion to reopen, and accordingly released again.

23 Yet this class member is on the list of people who absconded. (Id.; Dkt. 306 at 20.)

24

25

Although the Court does not believe the government’s 46% absconscion rate is

26 reliable, the Court is troubled that some number of class members may have absconded.

27 Particularly upsetting is a letter the government received from one person in response to

28 the notice stating, “I am not showing up and i am not going back to Cambodia. Fuck you

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Case 8:17-cv-01898-CJC-GJS Document 319 Filed 03/04/20 Page 26 of 27 Page ID #:8432

1 U.S. immigration and customs and enforcement. While this letter arriving at your office i 2 am thousands miles away from you.” (Dkt. 301, Ex. 26.) This response is totally 3 unacceptable. This person should be re-detained and removed without any notice. 4 Indeed, she has now violated the conditions of her release and is excluded from the class. 5 But the disappointing behavior of one person or a handful of others does not justify the 6 government withholding notice that is constitutionally due to hundreds of class members 7 who for decades have been peaceful, productive, and law-abiding members of their 8 communities.

9

10

Given the significance of the liberty interest affected, the serious risk of erroneous

11 deprivation of that extremely important interest, and the low administrative and fiscal

12 burden of giving notice, the Court finds that even some increase in absconscions is

13 tolerable under the Mathews balancing test. Overall, the fiscal and administrative

14 burdens that notice imposes on the government—including the small burden of putting

15 together the notice documents, the short delay before the government may remove

16 Petitioners, and the occasional burdens associated with absconsion—are minimal, and do

17 not warrant a denial of Petitioners’ procedural due process rights.

18

19

D. Whether Notice is Necessary to Comport with Due Process

20

21

For all of these reasons, the Court concludes that to protect Petitioners’ due process

22 rights, the government must give them notice before re-detaining them for purposes of

23 removal. The extraordinary circumstances of this case—including the long-dormant

24 removal orders, changes in the law and in Petitioners’ lives, the sudden and unexpected

25 threat of removal, and the barriers to accessing attorneys and documents while in

26 detention—have undermined Petitioners’ ability to avail themselves of the administrative

27 procedures in place to protect them from erroneous removals. Petitioners must be given

28 notice so that they may have adequate time and opportunity to contact attorneys and

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1 access the system that has been constructed to prevent erroneous removals—a system that 2 includes the thorough exhaustion of an administrative process and judicial review by the 3 appropriate court of appeals. The added safeguard of notice also provides the additional 4 value of allowing Petitioners to say goodbye to their families, and wrap up their affairs, 5 including ensuring adequate care for their loved ones and notifying their employers.

6

7

In contrast, the administrative and fiscal governmental burdens associated with

8 notice are slight, and do not warrant denying Petitioners notice. Although the

9 government’s contentions regarding absconscion are concerning, the evidence before the

10 Court does not indicate that this serious issue outweighs the compelling private interest

11 and the significant risk of erroneous deprivation of liberty.

12

13

Accordingly, IT IS HEREBY ORDERED that the Government is enjoined from

14 re-detaining any class member unless the Government first provides written notice

15 consistent with this Court’s January 3, 2019 temporary restraining order. The parties are

16 ORDERED to file within fourteen days a proposed permanent injunction consistent with

17 this order.

18
19 V.

CONCLUSION

20

21

For the foregoing reasons, Petitioners’ motion for summary judgment is

22 GRANTED, and Respondents’ cross-motion for summary judgment is DENIED.

23

24

DATED: March 4, 2020

25

26

27

__________________________________ CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

28

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 Case 8:17-cv-01898-CJC-GJS Document 336 Filed 04/27/20 Page 1 of 3 Page ID #:8619

1

JS-6

2

3

4

5

6

7

8

9

10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12 SOUTHERN DIVISION
13

14

15

NAK KIM CHHOEUN, MONY NETH, individually and on behalf of a class of

Case No. 8:17-cv-01898-CJC (GJSx)

similarly-situated individuals,

16 Petitioners,
17

JUDGMENT AND PERMANENT INJUNCTION

v.

18

DAVID MARIN, Field Office Director,

19 Los Angeles Field Office, United States

Immigration and Customs Enforcement;

20 DAVID W. JENNINGS, Field Office

Director, San Francisco Field Office,

21 United States Immigration and Customs

Enforcement; MATTHEW T.

22 ALBENCE, Deputy Director and Senior

Official Performing the Duties of the

23 Director, United States Immigration and

Customs Enforcement; CHAD WOLF,

24 Acting Secretary, United States

Department of Homeland Security;

25 WILLIAM BARR, United States

Attorney General,

26

Respondents.

27

28

JUDGMENT AND PERMANENT INJUNCTION

Case 8:17-cv-01898-CJC-GJS Document 336 Filed 04/27/20 Page 2 of 3 Page ID #:8620

1

On March 4, 2020, after considering the parties’ briefs, evidence, and oral

2 argument, the Court entered an order granting Petitioners’ motion for summary

3 judgment and denying Respondents’ cross-motion for summary judgment. (Dkt. 319.)

4 In accordance with the Court’s Order, IT IS HEREBY ORDERED that judgment is

5 entered in favor of Petitioners.

6

7

IT IS FURTHER ORDERED that U.S. Immigration and Customs

8 Enforcement (“ICE”) is permanently restrained and enjoined from re-detaining for

9 removal any Class Member, as defined below, unless ICE first serves written notice

10 (“Notice”) on the Class Member at least 14 days before re-detention in accordance

11 with the following terms of this Order:

12

13

1. The class consists of all Cambodian nationals in the United States who

14 are subject to final orders of deportation or removal, and were subsequently released

15 from ICE custody, and have not subsequently violated any criminal laws or conditions

16 of their release, and have been or may be re-detained for removal by ICE. Each

17 person in the class is a “Class Member.” (Dkt. 149.)

18

19

2. Notice must be served on each Class Member at least 14 days before re-

20 detention. The Notice shall state the following or words substantially to the same

21 effect: “You are subject to a final removal order. U.S. Immigration and Customs

22 Enforcement (ICE) intends to re-detain you for the execution of your final removal

23 order and removal to Cambodia no earlier than 14 days from the date of this Notice.”

24 Notice must include copies of (1) the class member’s charging documents in

25 immigration court, (2) the removal order, and (3) to the extent such documents are in

26 the possession of ICE and were relied upon by ICE in connection with a removal

27 order, the criminal conviction records upon which the removal order rests.

28

1 JUDGMENT AND PERMANENT INJUNCTION

Case 8:17-cv-01898-CJC-GJS Document 336 Filed 04/27/20 Page 3 of 3 Page ID #:8621

1

3. Notice, including accompanying documents, shall be served on the class

2 member and—through the final disposition of this case, including during the

3 pendency of all appeals—simultaneously served on class counsel at the following

4 address:

5

Chhoeun v. Marin Class Counsel

6

c/o Asian Americans Advancing Justice - Asian Law Caucus

7

55 Columbus Avenue

8

San Francisco, CA 94111

9

10

IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this

11 matter for the purpose of enforcing the terms of this Order.

12

13

IT IS SO ORDERED.

14 15 Date: April 27, 2020
16

_____________________________ HON. CORMAC J. CARNEY United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28
2 JUDGMENT AND PERMANENT INJUNCTION

 
 952 F.3d 999 (2020)
AL OTRO LADO, a California corporation; Abigail Doe; Beatrice Doe; Carolina Doe; Dinora Doe; Ingrid Doe; Jose Doe; Ursula Doe; Victoria
Doe; Bianca Doe; Juan Doe; Roberto Doe; Cesar Doe; Maria Doe; Emiliana Doe, individually and on behalf of all others similarly situated,
Plaintiffs-Appellees, v.
Chad F. WOLF, Acting Secretary, U.S. Department of Homeland Security; Mark A. Morgan, Acting Commissioner of U.S. Customs and Border
Protection; Todd C. Owen, Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his
official capacity, Defendants-Appellants.
No. 19-56417.
United States Court of Appeals, Ninth Circuit.
FILED March 5, 2020.
Appeal from the Southern District of California, San Diego, D.C. No. 3:17-cv-02366-BAS-KSC.
Scott G. Stewart (argued), Deputy Assistant Attorney General; Alexander J. Halaska, Trial Attorney; Katherine J. Shinners, Senior Litigation Counsel; Erez Reuveni, Assistant Director; William C. Peachey, Director, District Court Section; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Ori Lev (argued), Stephen M. Medlock, and Eric Brooks, Mayer Brown LLP, Washington, D.C.; Melissa E. Crow (argued), Southern Povery Law Center, Washington, D.C.; Baher Azmy and Angelo Guisado, Center for Constitutional Rights, New York, New York; Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, California; Sarah Rich and Rebecca Cassler, Southern Poverty Law Center, Decatur, Georgia; Karolina Walters, American Immigration Council, Washington, D.C.; for Plaintiffs-Appellees.
Xavier Becerra, Attorney General; Michael L. Newman, Senior Assistant Attorney General; Susan Slager, Supervising Deputy Attorney General; Vilma Palma-Solana, James F. Zahradka II, R. Erandi Zamora-Graziano, and Marissa Malouff, Deputy Attorneys General; Office of the Attorney General, Los Angeles, California; William Tong, Attorney General, Hartford, Connecticut; Kathleen Jennings, Attorney General, Wilmington, Delaware; Clare E. Connors, Attorney General, Honolulu, Hawaii; Kwame Raoul, Attorney General, Chicago, Illinois; Aaron M. Frey, Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General, Baltimore, Maryland; Mauar Healey, Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Attorney General, St. Paul, Minnesota; Aaron D. Ford, Attorney General, Carson City, Nevada; Gurbir S. Grewal, Trenton, New Jersey; Hector Balderas, Attorney General, Santa Fe, New Mexico; Letitia James, Attorney General, New York, New York; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Josh Shapiro, Attorney General, Harrisburg, Pennsylvania; Peter F. Neronha, Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Olympia, Washington; Karl A. Racine, Attorney General, Washington, D.C.; for Amici Curiae

California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
Susan Baker Manning, Morgan Lewis & Bockius LLP, Washington, D.C.; Sabin Willett, Morgan Lewis & Bockius LLP, Boston, Massachusetts; for Amici Curiae Immigration Law Professors.
Dimitri D. Portnoi, O'Melveny & Myers LLP, Los Angeles, California, for Amici Curiae Law Professors.
Harrison J. Frahn, Simpson Thacher & Bartlett LLP, Palo Alto, California, for Amici Curiae Eighteen Organizations Representing Asylum Seekers.
Before: SYDNEY R. THOMAS, Chief Judge, and MARSHA S. BERZON and DANIEL A. BRESS, Circuit Judges.
Order by Judge BERZON; Dissent by Judge BRESS
1002*1002 ORDER
BERZON, Circuit Judge:
Plaintiff Al Otro Lado is an organization dedicated to helping individuals seek asylum in the United States. Along with thirteen Individual Plaintiffs (collectively, "Al 1003*1003 Otro Lado"), Al Otro Lado originally challenged in this case the government's policy of turning back asylum seekers at ports of entry on the southern border and telling them to return later to file for asylum, a policy the government refers to as "metering." Al Otro Lado's complaint alleges that asylum seekers are turned back to deter and discourage individuals from seeking access to the asylum process, and not, as the government maintains, because each port of entry lacks capacity to process additional asylum seekers.
The current motion does not directly concern the validity of the policy requiring asylum seekers to wait at or near the border for some time before their asylum applications can be filed and processed. Rather, this motion stems from the impact of a separate regulation, promulgated while this litigation was pending, on a subgroup of metered asylum seekers. That regulation, known variously as the "Third Country Transit Rule," "transit rule," and "asylum ban," ("the Rule"), provides, subject to narrow exceptions, that a noncitizen who "enters, attempts to enter, or arrives in the United States" at the southern border on or after July 16, 2019 is not eligible for asylum in the United States unless they applied for asylum in another country, such as Mexico, that they passed through on their way to the southern border. 8 C.F.R. § 208.13(c)(4).
The district court granted a preliminary injunction enjoining enforcement of the Rule against a provisionally certified class of plaintiffs who arrived at the southern border seeking asylum before July 16, 2019 but were denied entry and prevented from making an asylum claim under the metering policy. The government appealed and moved this court for a stay of the injunction pending appeal. Because the government has not carried its burden of showing that a stay is warranted, we deny the motion.
I.

Al Otro Lado's putative class action complaint alleges that Customs and Border Protection ("CBP") uses various unlawful tactics systematically to deny asylum seekers access to the asylum process at Ports of Entry ("POEs") on the southern border. The complaint challenges the Government's socalled "Turnback Policy," which includes a "metering" or "waitlist" system. Under that system, the complaint alleges, asylum seekers who arrive at or near the southern border of the United States are instructed "to wait on the bridge, in the pre-inspection area, or at a shelter," or are simply told that "they [could not] be processed because the POE is `full' or `at capacity.'" According to the complaint and Al Otro Lado's expert, under the government's current metering practices, "[w]hen a pedestrian approaches the U.S.-Mexico dividing line" without valid entry documents, CBP officers standing on the international line "often physically block their passage into U.S. territory by standing in the center of the pedestrian walkway."
Al Otro Lado introduced declarations in which asylum seekers from a diverse set of countries and circumstances reported that they were turned away from the border under this metering policy and told to wait for an opportunity to submit their applications for asylum. Members of the provisionally certified class include Roberto Doe, who fled Nicaragua after the police threatened to kill him and burn down his business for participating in a strike against the government; M.G., a Cuban citizen seeking asylum because he was threatened and punched in the mouth by a political official for calling his government corrupt; and Jordan Doe, who fled Cameroon after his father was burned to death and he was imprisoned and tortured by military officers who accused him of being 1004*1004 a separatist. They and the approximately 26,000 other members of the provisionally certified class approached the border to present themselves before July 16, 2019 because they "wanted to do things the right way," but were turned away.
The government does not now keep records of the people CPB officers turn back.[1] But other groups, with the United States government's knowledge and cooperation, have created waitlists. The district court determined that "[d]efendants do not . . . challenge[ ] that Grupo Beta, a service run by the Mexican Government's National Institute of Migration, maintains a formalized list of asylumseekers, communicates with CBP regarding POE capacity, and transports asylum-seekers from the top of the list to CBP." The record also shows that non-profit groups, shelters, and small groups of asylum seekers maintain informal waitlists in different locations. At each POE, CBP asks the listkeeper in the area for a certain number of people each day based on the POE's alleged capacity, and the group then calls the appropriate number of people from the top of its list. The district court concluded that "CBP relied on these lists to facilitate the process of metering," and the record supports that conclusion.
On July 16, 2019, the Department of Homeland Security and the Department of Justice issued a joint interim final rule entitled "Asylum Eligibility and Procedural Modifications." 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. § 208.13(c)(4). In relevant part, the Rule provides:
(c) Mandatory denials— (4) Additional limitation on eligibility for asylum. Notwithstanding the provisions of § 208.15, any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum unless: (i) The alien demonstrates that he or she applied for protection from persecution or torture in at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country.
8 C.F.R. § 208.13(c)(4).[2]

Al Otro Lado moved for a preliminary injunction to prevent enforcement of the 1005*1005 Rule against provisional class members. It argued that if the Rule is applied to non-Mexican asylum seekers metered at the border before July 16, 2019, the Rule will long delay their ability to apply for asylum in the United States and, for a large proportion of the class members, could preclude them from accessing any asylum process altogether. This assertion has support in the record. As the district court recognized, "Mexico's Commission to Assist Refugees, the administrative agency responsible for processing asylum claims, requires that applicants for asylum submit their petitions within 30 days of entering Mexico." The district court then summarized the bleak result for plaintiffs:
[B]ecause the [Rule] was not promulgated until after the time these individuals were subject to metering, none of the members of the putative class attempted to exhaust Mexico's asylum procedures within the 30-day window. In short, should the [Rule] apply to these individuals, the situation would effectively be this: Based on representations of the Government they need only "wait in line" to access the asylum process in the United States, the members of the putative class may have not filed an asylum petition in Mexico within 30 days of entry, thus unintentionally and irrevocably relinquishing their right to claim asylum in Mexico and, due to the [Rule], their right to claim asylum in the United States.[3]
Although it is possible to seek a waiver of Mexico's 30-day bar, Al Otro Lado maintains that "it is nearly impossible to do so without legal counsel," which most asylum seekers cannot afford. Additionally, even if a waiver is granted, according to evidence submitted by Al Otro Lado, it often takes two years for a Mexican asylum claim to be fully adjudicated.
On November 19, 2019, the district court provisionally certified for purposes of a preliminary injunction a class consisting of "all non-Mexican asylum-seekers who were unable to make a direct asylum claim at a U.S. POE before July 16, 2019 because of the Government's metering policy, and who continue to seek access to the U.S. asylum process."[4] It granted a preliminary injunction, ordering that "Defendants are hereby enjoined from applying the Asylum Ban to members of the aforementioned provisionally certified class and ordered to return to the pre-Asylum Ban practices for processing the asylum applications of members of the certified class."
On December 4, 2019, the government appealed the order granting the injunction, and asked the district court to stay the preliminary injunction pending appeal. The 1006*1006 government simultaneously moved to expedite briefing on its stay motion. The district court denied the motion to expedite briefing and set a hearing on the briefing schedule for the stay motion for January 3, 2020, so the motion would not be decided before then.
Rather than wait for the district court's ruling on the stay motion, the government moved this court for a stay pending appeal on December 12, 2019, three weeks after the injunction issued.[5] This panel granted a temporary stay on December 20, 2019, in an order that was "only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits." The panel specified that the temporary stay "does not constitute in any way a decision as to the merits of the motion for stay pending appeal."
The appeal of the preliminary injunction has been expedited. The briefing was completed on February 20, 2020. The case will be assigned to the next available oral argument panel for a decision on the merits of the appeal.
II.

"A stay is not a matter of right, even if irreparable injury might otherwise result." Virginian Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926). "It is instead `an exercise of judicial discretion,' and `the propriety of its issue is dependent upon the circumstances of the particular case.'"[6] Nken v. Holder, 556 U.S. 418, 433, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Virginian Ry. Co., 272 U. S. at 672-73, 47 S.Ct. 222) (alteration adopted). "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 433-34, 129 S.Ct. 1749.
In deciding a motion to stay an order pending appeal, we consider: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant 1007*1007 will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken, 556 U.S. at 434, 129 S.Ct. 1749 (citation omitted). "The first two factors . . . are the most critical"; the last two are reached only "[o]nce an applicant satisfies the first two factors." Id. at 43435, 129 S.Ct. 1749.
Under the "sliding scale" approach we use, "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The same sliding scale approach applies to the consideration of stays pending appeal. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per curiam). "If anything, a flexible approach is even more appropriate in the stay context." Id.
We first consider the government's showing on irreparable harm, then discuss the likelihood of success on the merits under the sliding scale approach, and finally, address the third and fourth elements together.
A.
An applicant for a stay pending appeal must show that a stay is necessary to avoid likely irreparable injury to the applicant while the appeal is pending. Nken, 556 U.S. at 434, 129 S.Ct. 1749. "[S]imply showing some possibility of irreparable injury" is insufficient. Id. (internal quotation marks omitted). The minimum threshold showing for a stay pending appeal requires that irreparable injury is likely to occur during the period before the appeal is likely to be decided. Leiva-Perez v. Holder, 640 F.3d at 968. Thus, under the sliding scale approach, a stay applicant's "burden with regard to irreparable harm is higher than it is on the likelihood of success prong, as she must show that an irreparable injury is the more probable or likely outcome." Id.
The government has made a weak showing that it will suffer harm over the requisite interim period. See Nken, 556 U.S. at 434, 129 S.Ct. 1749. The injunction was in place for over three weeks before the government sought a stay pending appeal. It thus had available to it the best evidence of harms likely to occur because of the injunction: evidence of harms that did occur because of the injunction. Rather than submitting evidence of actual burdens and delays it has experienced since the injunction issued, the government's declarations contain only estimates, assumptions, and projections.
The government estimates that identifying class members—that is, noncitizens who arrived at the border before July 16, 2019 and whose entry into the United States was refused by immigration officials—will burden the efficiency of the asylum interview process overall. It submitted a declaration by the Deputy Chief of the Asylum Division, Ashley Caudill-Mirillo, which projects that because DHS itself does not maintain lists of noncitizens who were metered, the only way to identify class

members is for USCIS "to spend an additional estimated 15 to 30 minutes per person asking as many as 30 additional questions during each credible fear screening interview." The government asserts that the cumulative effect of an additional fifteen to thirty minutes per interview "would have a significant negative impact on credible fear processing times overall." The government does not represent that in any actual interview 15 to 30 minutes or 30 additional questions were devoted to whether the individual asylum applicant sought entry at a POE before July 16, 2019. Nor does it indicate what the "30 additional questions" might be.
1008*1008 We are dubious that taking the time necessary to make fairly simple factual determinations for a few months constitutes the sort of irreparable harm that can support the grant of a stay pending appeal. "The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended . . . are not enough." Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quoting Virginia Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958)). Applying this principle, we recently held that "diversion of the [government] agencies' time, resources, and personnel from other pressing immigration adjudication and enforcement priorities" due to the need to ask additional questions and possibly review documentary evidence at bond hearings was "minimal" evidence of harm to the government. Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (alterations adopted). The diversion of resources projected here is no more persuasive as significant irreparable harm than it was in Hernandez.
Even assuming that short term additional administrative delays can in some circumstances constitute irreparable harm, the record here does not show cognizable irreparable harm to the government over the relatively short period before the appeal of the preliminary injunction is resolved.[7] Any harm suffered is largely the result of the government's own failure to keep records of asylum seekers who have been metered or to provide the asylum seekers with documentation of their attempt to seek asylum. See n.1, supra. That the government's asserted harm is largely selfinflicted "severely undermines" its claim for equitable relief. See Hirschfeld v. Bd. of Elections in City of New York, 984 F.2d 35, 39 (2d Cir. 1993). "[S]elf-inflicted wounds are not irreparable injury." Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 850 (7th Cir. 2003); Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir. 1995).
Al Otro Lado's second amended complaint challenging the government's metering policy was filed in November 2018, nine months before the Rule was issued in July 2019. The complaint alleged that the applicants arriving at the border seeking to enter the POEs to file asylum applications had a statutory right to do so. The government called in asylum seekers from the waitlists maintained by the Mexican government and others. In doing so, the government recognized—as its terms for the process, "metering" and "queue management," imply—the practical need to identify which applicants had appeared at the border and in what order rather than choosing each day from amassed crowds which individuals to permit to file asylum applications. But the government chose to implement the metering policy in a way that, it maintains, could now cause administrative burdens, because the government did not itself create or administer the waitlists and so cannot rely on them definitively to identify class members. That deficiency was problematic even before the new Rule, and was avoidable and so self-inflicted. Any delay caused is therefore not irreparable harm that supports equitable relief.
In any event, the government's guesses concerning the likely burden of ascertaining class membership lack support in the 1009*1009 record for several reasons. For one thing, the government could use the waitlists maintained by the Mexican government and others—waitlists it relied on to facilitate the metering policy—as a starting point in determining whether a noncitizen is part of the provisional class, even if the lists are "underinclusive." See Dissent at 1040-41. Yet the government has declined to request copies of the waitlists or to use them. Those lists are, Al Otro Lado acknowledges, not entirely reliable. But the record establishes that the government has been

using them in determining the order in which applicants for asylum are allowed to enter, submit their asylum applications, and undergo credible fear interviews. No reason appears why the lists are adequate for those purposes but must be entirely disregarded in identifying who came to the border when for purposes of complying with the district court's injunction.
Further, even apart from the availability of existing lists, the additional time it is likely to take during interviews to identify class members is almost surely considerably less than the government supposes. The government provides no basis, other than the supposition of some officials, for its estimation that such interviews will take an additional fifteen to thirty minutes and require as many as 30 additional questions. Only Al Otro Lado submitted records from an actual credible fear interview that occurred while the injunction was in place. During that interview, USCIS determined that applicant was not a member of the provisional class by asking two questions.[8] More time may be needed to establish that someone who claims to be a member of the class actually is. But it is far from clear the degree to which that is so, and the total number of interviews likely to be affected before the appeal is decided is circumscribed.
The injunction is also unlikely to cause major additional delays because, once class members make it to the front of the line, they must be interviewed by an asylum officer regardless of whether the Rule is applied. The Rule affects only an applicant's eligibility for asylum. See 8 C.F.R. § 208.13(c)(4). Because class members fear persecution, they may still apply for withholding of removal or relief under the Convention Against Torture ("CAT"). 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(c); see also 8 C.F.R. § 208.30 (if the applicant is ineligible for asylum under the Rule, asylum officers must still refer the case to an IJ for consideration of withholding and CAT relief "if the alien establishes, respectively, a reasonable fear of persecution or torture"). The standards differ for asylum, withholding, and CAT relief, but they involve largely the same set of facts.[9]
Finally, the government offers only speculation that plaintiffs will cause further delays by requesting to reschedule their interviews. It offers no support for the statement in Caudill-Mirillo's declaration that "individuals are likely to seek to reschedule their credible fear interviews to obtain documentary evidence or to consult 1010*1010 with an attorney to draft a declaration to submit in support of their assertion that they . . . are a member of the provisional class." As class members could gather this evidence in advance while they wait in Mexico if informed by public announcements of the need for such evidence, this delay is avoidable.
In sum, the government offered at best weak evidence that it will suffer significant overall delay in processing asylum applications at the border during the short period of time at issue. The government could significantly mitigate the harm created by its own recordkeeping practices by obtaining copies of the waitlists but has declined to do so. Thus, any administrative burdens the government faces in implementing the injunction are either not irreparable harm of the kind that could justify a stay pending appeal, or, "minimal" harm as in Hernandez. See 872 F.3d at 995. That the government's irreparable harm showing is at best marginal affects the level of likelihood of success on the merits it must demonstrate, as we next discuss.
B.
Whether the government has failed to show any irreparable harm during the pendency of the appeal or has made only a minimal showing, it has not carried its burden to establish a sufficient likelihood of success on the merits.
An applicant for a stay pending appeal must make "a strong showing that he is likely to succeed on the merits." Nken, 556 U.S. at 434, 129 S.Ct. 1749. Where, as here, the showing of irreparable harm

is weak at best, the government must make a commensurately strong showing of a likelihood of success on the merits to prevail under the sliding scale approach. Only "a stronger showing of one element may offset a weaker showing of another." Wild Rockies, 632 F.3d at 1131; Leiva-Perez, 640 F.3d at 966 (applying sliding scale approach in the stay context).
The issue on appeal concerns the following statutory framework. Section 1158 creates a right to apply for asylum: "Any alien who is physically present in the Unites States or who arrives in the United States . . . irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title." 8 U.S.C. § 1158(a)(1). Section 1225 imposes two key mandatory duties on immigration officers with respect to potential asylum seekers. First, immigration officers have a duty to inspect: "All aliens . . . who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers." 8 U.S.C. § 1225(a)(3) (emphasis added). Second, immigration officers have a duty to refer arriving migrants seeking asylum to asylum officers for assessment of their asylum applications:
If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).
8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).
In its order denying the government's motion to dismiss the metering complaint, the district court observed that "arriv[ing] in the United States" triggers a noncitizen's right to be inspected, apply for asylum, and be referred to an asylum officer. Al Otro Lado v. McAleenan, 394 F. Supp. 3d 1168, 1199-1205 (S.D. Cal. 2019). The district court concluded that "aliens in the 1011*1011 process of arriving," such as class members —who approached the border, sought entry, but were turned away from a POE—are covered by the statutory asylum referral obligation. Id.
In its order granting a preliminary injunction, the district court incorporated its earlier legal ruling regarding the reach of the asylum referral obligation in section 1225. On that basis, the court held that the provisional class of plaintiffs did "arrive in the United States" before the effective date of the Rule, so the Rule does not apply to the adjudication of rights triggered by that arrival. The district court reached this conclusion without deciding the legality of the government's metering policy, which causes a delay between class members' arrival and the submission and determination of their asylum claim. Even if the asylum claim is processed after July 16, 2019, the court concluded, its consideration is governed by the law at the time the class member was originally "arriving in the United States."
The government argues that because class members were in Mexico on the effective date of the Rule, they will necessarily arrive in the United States after July 16, 2019, and the Rule by its plain terms will then apply. For the government to succeed on this argument, one of two things must be true: either the district court must be wrong that class members were "arriving in the United States" when they first attempted to enter and were turned back, or, if they were "arriving," the first arrival must no longer have any legal significance, so any second arrival— governed by the Rule—will be the only one that matters.
The government has not made a strong showing—let alone the especially strong showing required here in light of the weak irreparable harm demonstration—that it is likely to succeed on either available theory. The district court's underlying statutory analysis is sufficiently sound and persuasive as to both the meaning of "arriving in the United States" and the legal significance of an arrival.

First, the district court's interpretation of "arrives in the United States" is likely correct. As the court observed, "[u]nder Section 1158(a)(1)'s plain language, two classes of aliens may apply for asylum: (1) any alien `who is physically present in the United States' and (2) any alien `who arrives in the United States.'" 394 F. Supp. 3d at 1199. "Applying the rule against surplusage," the court reasoned, we "must presume that the phrases `mean different things.'" Id. (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). The district court also applied the Dictionary Act's provision that "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise—words used in the present tense include the future as well as the present." Id. at 1200 (quoting 1 U.S.C. § 1). The court went on to reason that "accounting for the rule against surplusage, application of the Dictionary Act readily leads to the conclusion that Section 1158(a)(1)'s use of the present tense of `arrives' plainly covers an alien who may not yet be in the United States, but who is in the process of arriving in the United States through a POE." Id.
This conclusion is reinforced, the district court observed, by the language of section 1225(b), the provision referenced in section 1158(a)(1). See id. Section 1225(b) requires an immigration officer to refer for an asylum interview any inadmissible noncitizen "who is arriving in the United States" and expresses a fear of persecution or the intention to apply for asylum. 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added). The district court recognized that "[t]he use of the present progressive, like use of the present participle, denotes an ongoing process." 1012*1012 394 F. Supp. 3d at 1200 (citing United States v. Balint, 201 F.3d 928, 933 (7th Cir. 2000)).
The district court also noted that the legislative history is consistent with its interpretation of "arrives in" as denoting an ongoing process.
Representative Lamar Smith, Chairman of the House Judiciary Committee's Subcommittee on Immigration and Claims . . . observed that the term "was selected specifically by Congress in order to provide a flexible concept that would include all aliens who are in the process of physical entry past our borders[.]. . . `Arrival' in this context should not be considered ephemeral or instantaneous but, consistent with common usage, as a process. An alien apprehended at any stage of this process, whether attempting to enter, at the point of entry, or just having made entry, should be considered an `arriving alien' for the various purposes in which that term is used in the newly revised provisions of the INA."
394 F. Supp. 3d at 1201 (quoting Implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. 17-18 (1997)).[10]
Historical changes to the statutory language further support the distinction between "physically present in" and "arrives in" the United States in section 1158. The Refugee Act of 1980 originally provided that any alien who is "physically present in the United States or at a land border or port of entry, irrespective of such alien's status," could apply for asylum. See 8 U.S.C. § 1158(a) (1980) (emphasis added). In 1996, Congress replaced "at a land border or port of entry" with "who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters)." 8 U.S.C. § 1158(a); Pub. L. No. 104-208, 110 Stat. 3009 (1996). As the Dissent recognizes, these "1996 amendments did not somehow work a major change in the law," Dissent at 1028-29; both versions draw a distinction between an alien who is already "physically present in the United States" on the one hand and arriving aliens on the other, including, in the earlier version, aliens "at a land border," in the process of arriving.
A person standing at the border is not necessarily across it, so the original statutory phrase, like the newer one, includes the penultimate stage in the process of arriving in the United States. Under the

metering policy, CBP officers stationed just behind the limit line between Mexico and the United States interacted with individuals standing at the border; travelers with documentation were permitted to cross into the United States, while others without documentation—including provisional class members—were turned back. Provisional class members were both "at a land border" and "arriving" before being turned back.
1013*1013 The government's central contention as to why the district court's statutory interpretation is wrong is that the "statute confers a right to apply for asylum only on those who are within the United States." "A present-tense phrase like `arrives in' speaks to the present moment of arrival, not some potential arrival in the future," the government argues. In support of its interpretation of "arrives in," the government relies principally on the presumption against extraterritoriality as reason to disregard the rule against surplusage, the Dictionary Act, section 1225's "arriving in" language, and the legislative history, which collectively led the district court to the opposite conclusion. The district court rejected application of the presumption against extraterritoriality here, noting that "[i]t is natural to expect that Congress intends for laws that regulate conduct that occurs near international borders to apply to some activity that takes place on the foreign side of those borders," 394 F. Supp. 3d at 1202 (quoting United States v. Villanueva, 408 F.3d 193, 199 (5th Cir. 2005)), and that the text of sections 1158 and 1225 and the legislative history show that Congress "intended the statute to apply to asylum seekers in the process of arriving," even if they are not yet quite within our borders, id.
Notably, the district court's analysis does not authorize asylum seekers to submit an asylum application from outside the United States; it recognizes only that the statutory right to apply attaches once the asylum seeker is on the doorstep—"at a land border," in the words of the earlier iteration of the statute—in the process of arriving. Despite the Dissent's protestations, see Dissent at 1027-28, this reading is fully consistent with the Supreme Court's observation that section 1158 "sets out the process by which refugees currently in the United States may be granted asylum," I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 433, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); aliens do not actually submit an asylum application until after they have completed the process of arriving in the United States.
The district court's linguistic and contextual analysis has considerable force. Although it is likely correct, we need not decide at this juncture whether it is. We need only determine whether, given the minimal—at best—showing of irreparable harm, the government has made a particularly strong showing that the district court's statutory interpretation will be disapproved on review of the preliminary injunction. That the government has most definitely failed to do.
As to the second government argument, the question is whether there is a particularly strong likelihood that the government will succeed in establishing on appeal that even if the class members did arrive and so had a statutory right to be considered for asylum under section 1158(a)(1), and although they were "arriving in the United States" and so should have been "refer[ed]. . . for an interview by an asylum officer," 8 U.S.C. § 1225(b)(1)(A)(ii), their right to asylum must be determined not as of the time they met the statutory requirements for consideration for asylum but as of the time they are ultimately allowed to enter.[11]
1014*1014 Under the statute as construed by the district court, each arrival triggers a right to apply for asylum and be interviewed by an asylum officer. The government does not maintain otherwise— that is, it does not dispute that the INA guarantees a right to apply for asylum to any noncitizen who arrives in the United States. Rather, aside from its disagreement with the district court's conclusion that class members did "arrive," the government's argument is that "[n]othing in the Rule suggests that only an alien's first attempt at entry counts, and nothing makes prior attempts at entry relevant."

The government does not have a strong chance of succeeding on this point. It is the INA, not the Rule, that makes an alien's first arrival legally significant. Under the district court's statutory interpretation, a class member's first arrival triggered a statutory right to apply for asylum and have that application considered. See 8 U.S.C. §§ 1158, 1225(a)(3), 1225(b)(1)(A)(ii); 394 F. Supp. 3d at 1203-05. Nothing in the INA or regulations suggests that a class member loses her statutory right to apply for asylum as of her arrival because there is a government-imposed delay between when she arrives and when her application is accepted and processed.[12] As the Rule was not in place at the time each class member's right to apply for asylum attached, it makes sense that it would not apply.
The government's premise—assuming acceptance of the district court's statutory interpretation of "arrives" and "arriving in the United States"—must be that any second arrival cancels out the statutory obligation that arose at the time of the original arrival to receive and process the class member's asylum application. No reasoning is provided to substantiate this cancellation theory. It is more likely that the first arrival is governed by the eligibility requirements at the time the right to be considered for asylum arose than that regulations imposed after the fact will cancel out the earlier eligibility. Put another way, class members will be governed by the Rule if they seek asylum based on a second arrival, but they also arrived earlier and, under the statute, were quite likely entitled to asylum consideration triggered by that arrival, even if that consideration was delayed. At least, the government has not made a showing that this statutory understanding is incorrect strong enough to counterbalance its weak irreparable harm evidence.
In sum, the government has not met its burden to make a sufficiently strong showing of a likelihood of success on the merits. Even if its weak showing of harm met the minimum threshold, the government has not made a sufficient showing of likelihood of success on the merits strong enough to warrant a stay pending appeal under the sliding scale approach. See Nken, 556 U.S. at 434, 129 S.Ct. 1749; Wild Rockies, 632 F.3d at 1131.
C.
"Because the Government has not `satisfie[d] the first two factors,' we need not dwell on the final two factors—`harm to the opposing party' and `the public interest.'" E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 778 (9th Cir. 2018) (quoting Nken, 556 U.S. at 435, 129 S.Ct. 1015*1015 1749). Even so, the balance of equities and public interest tip sharply in Al Otro Lado's favor.
The third factor, "whether issuance of the stay will substantially injure the other parties interested in the proceeding," Nken, 556 U.S. at 434, 129 S.Ct. 1749, weighs heavily against granting the stay. In contrast to the showing of harm by the government, Al Otro Lado has offered ample evidence that enforcement of the Rule against the provisionally certified class would cause not only substantial but irreparable injury to them. See id. The class relied to their detriment on the government's representations. As the district court observed, "[t]hey returned to Mexico reasonably believing that if they followed these procedures, they would eventually have an opportunity to make a claim for asylum in the United States." The Rule would now make them ineligible for asylum in the United States, and they cannot in all probability pursue asylum in Mexico "because they did as the Government initially required and waited" for their number to be called.[13] We agree with the district court that "[t]his situation, at its core, is quintessentially inequitable," and likely will substantially injure class members.
As to the fourth factor, aspects of the public interest favor both sides. The public has a "weighty" interest "in efficient administration of the immigration laws at the border." Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). "But the public also has an interest in ensuring

that `statutes enacted by [their] representatives' are not imperiled by executive fiat." E. Bay Sanctuary, 932 F.3d at 779 (quoting Maryland v. King, 567 U.S. 1301, 1301, 133 S.Ct. 1, 183 L.Ed.2d 667 (2012) (Roberts, C.J., in chambers)). "We need go no further than this; when considered alongside the Government's failure to show irreparable harm, the final two factors do not weigh in favor of a stay." Id.
III.
We emphasize that the question whether the injunction should be overturned —the merits of the ultimate appeal —is not before this motions panel. We are ruling only on the motion to stay the injunction pending appeal. "The decision whether to grant a stay is a `probabilistic' endeavor. We discuss the merits of a stay request in `likelihood terms,' and exercise a `restrained approach to assessing the merits.'" E. Bay Sanctuary Covenant v. Trump, 18-17274, 950 F.3d 1242, 2020 WL 962336 (9th Cir. 2020) (quoting Sierra Club v. Trump, 929 F.3d 670, 688 (9th Cir. 2019)).
Judge Bress criticizes this restrained approach. See Dissent at 1022, 1027. But the "pre-adjudication adjudication" he advocates "would defeat the purpose of a stay, which is to give the reviewing court the time to `act responsibly,' rather than doling out `justice on the fly.'" Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011) (quoting Nken v. Holder, 556 U.S. 418, 427, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)). Respecting the role of stay motions requires that we decline to usurp the role of the preliminary injunction merits panel—which, it bears noting, is itself engaged in a probabilistic analysis preliminary to the eventual consideration of any request for a permanent injunction. Although seeking the collapse of these sequential 1016*1016 steps into one has become increasingly common, see Barr v. E. Bay Sanctuary Covenant, ___ U.S. ___, 140 S. Ct. 3, 6, 204 L.Ed.2d 1189 (2019) (Sotomayor, J., dissenting); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019), premature determination of complex legal and factual issues will not in the long run produce well-considered and dependable judicial decisionmaking.
The government has not carried its burden of showing that a stay is warranted. Accordingly, we deny the motion.
BRESS, Circuit Judge, dissenting:
In a case that does not challenge it, the district court below partially enjoined an asylum rule that the Supreme Court just months ago ordered could go into effect pending appeal. See Barr v. East Bay Sanctuary Covenant, ___ U.S. ___, 140 S. Ct. 3, 204 L.Ed.2d 1189 (2019). How could this even happen?
This case, which was brought in 2017, is a challenge to certain U.S. Customs and Border Protection "metering" practices. Due to a massive influx of immigrants and severe resource constraints at the southern border, CBP through "metering" limits the number of aliens who can gain access to U.S. ports of entry at a given time. The plaintiffs are asylum seekers waiting in Mexico or other countries who claim that metering violates our asylum laws.
In July 2019, and years after this metering case was filed, the Attorney General and Acting Secretary of Homeland Security promulgated the "Third Country Transit Rule," which generally bars asylum for persons who did not previously seek protection in a third country through which they journeyed on their way to the United States. See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (2019), codified at 8 C.F.R. § 208.13(c)(4). This Rule was challenged in a separate lawsuit. After a district court in this circuit re-imposed a nationwide injunction blocking its implementation, the

Supreme Court stayed the injunction, and allowed the Rule to go into effect pending appeal. East Bay, 140 S. Ct. at 3.
Shortly after the Supreme Court's ruling in East Bay, the plaintiffs in this "metering" case—including Al Otro Lado, an advocacy group that was also a plaintiff in East Bay—asked the district court to enjoin the Third Country Transit Rule as to persons who were metered. The district court agreed and enjoined application of the Rule as to a 26,000-person subclass who were metered prior to July 16, 2019, the date that the Rule by its terms takes effect. Under the district court's injunction, the government may not apply the Third Country Transit Rule to these persons, even though under East Bay the Rule may otherwise be applied.
We originally granted a temporary stay of the district court's injunction, but my fine colleagues in the majority now unfortunately reverse course and deny a stay pending appeal. I would have granted the stay and so respectfully dissent. The majority's refusal to grant a stay is wrong on many levels and forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border with Mexico. Particularly where the Supreme Court has recently stayed an injunction of the very same asylum Rule, one would expect the district court's subsequent injunction of that Rule to be airtight. Instead, and regrettably, both the district court's injunction and today's decision reflect cascading legal error, wreaking further havoc on a southern border already in crisis.
There was no basis for the district court to enjoin the Third Country Transit Rule in this metering case. This case is not 1017*1017 about the Third Country Transit Rule, the validity of which is not at issue. And the plaintiffs have not shown a likelihood of success that metering is unlawful. Indeed, a central premise of both the district court and the majority opinion is that metering may well be legitimate. Lawsuits, even putative class actions, are not an opportunity to declare open season on the implementation of every new government policy that comes along that bears some tangential relationship to the subject matter of a case. And courts cannot go around enjoining immigration rules in cases that do not challenge them, particularly where the Supreme Court has just allowed the rule to go into effect. The district court below greatly exceeded its powers.
Even so, the Third Country Transit Rule plainly applies to the plaintiffs in this case, so that enjoining it as to them was legal error. The Third Country Transit Rule applies to "any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019." 8 C.F.R. § 208.13(c)(4). When plaintiffs reach this country, they will be entering or arriving in the United States after that date; the Rule thus plainly covers them. That should have been the end of this case or, more accurately, this issue, since this case is not about the Rule anyway. The district court's decision holding otherwise, which the majority effectively endorses, is based on the theory that our asylum laws apply not only to persons physically "in" the United States, but to persons outside the United States who are "in the processing of" arriving into it. That holding is unprecedented, contradicts the statutory text and settled law, and will create untold confusion in the interpretation of our asylum laws.
The immense problems of administration that the district court's injunction will create are entirely predictable. Even though neither the metering practices nor the Third Country Transit Rule have been invalidated—and both are presently in effect, the latter by order of the Supreme Court—some 26,000 persons who sought to enter the United States prior to July 16, 2019 and were unable to do so due to metering are now exempt from the Supreme Court's order in East Bay. Requiring the government to now apply different rules to this subclass, and even figuring out who such persons are, will be an enormous and arduous task, made only more difficult by the lack of documentation and the incredible strain under which our immigration system already labors. Today's decision will unfortunately cause only greater difficulty and confusion at a border that desperately needs neither.

The problems at our border with Mexico are among the most difficult of the day. Fair debates may be had about how to prioritize safety, humanitarian concerns, and costs. But the questions before us are legal ones. Under the factors that govern our review, we should have stayed the district court's injunction. I therefore respectfully dissent.
I
A
This putative class action lawsuit, filed in 2017, challenges CBP's practice of regulating the intake of aliens arriving at U.S. ports of entry from Mexico. In response to record numbers of aliens seeking entry into the United States and substantial overcrowding at southern ports of entry, CBP instituted a policy known as "metering" or "queue management." Metering policies limit the number of persons who can gain access to the ports of entry at a given time. When metering is in effect, CBP officers stand at the boundary line between our country and Mexico to limit 1018*1018 the persons who may cross into the United States. Persons with valid documents are allowed into the port of entry, but persons who lack adequate documentation are not allowed in until the port of entry has capacity to accommodate them. Plaintiffs—a legal services organization named Al Otro Lado and a group of asylum seekers— claim that metering unlawfully denies access to the asylum process.
The allegations in plaintiffs' operative complaint and supporting materials reflect a far-reaching challenge to metering practices across our country's southern border. The formal metering policies at issue were implemented and enforced between 2016 and the present, though plaintiffs appear to challenge metering practices that may date back even farther. Plaintiffs challenge these policies at "Class A" United States ports of entry at the United States-Mexico border, which include the following locations from California to Texas: San Ysidro, California; Otay Mesa, California; Calexico, California; San Luis, Arizona; Nogales, Arizona; El Paso, Texas; Del Rio, Texas; Eagle Pass, Texas; Laredo, Texas; Roma, Texas; Hidalgo, Texas; Los Indios, Texas; and Brownsville, Texas. Some of these ports of entry, such as El Paso and Laredo, Texas are in more urban areas. Others, such as Los Indios and Roma, Texas are in more remote areas of the vast expanse that makes up our country's border with Mexico.
Based on plaintiffs' allegations and supporting materials, persons from Mexico, Central and South America, and "all across the world," have journeyed to our southern border with the goal of gaining entry into the United States. The record contains evidence that metering was applied to persons from a wide range of countries, including Haiti, Cuba, Venezuela, Iraq, Guatemala, Honduras, El Salvador, Russia, Angola, Cameroon, and the Congo. Many of these persons do not have proper documentation.
Plaintiffs further allege that aliens have often approached the United States in large groups numbering in the hundreds and thousands. For example, plaintiffs allege that from June 2016 to December 2016, "more than 15,000 Haitians migrated to Tijuana with the intent to seek protection in the United States." Plaintiffs also allege that some formal metering policies were issued in response to an approaching group of roughly 1,500 immigrants from Central America and Mexico in the spring of 2018.
When not allowed into the United States due to metering, plaintiffs allege that putative class members either leave the border area or remain in the vicinity of the border in the hope of being allowed to pursue entry into this country. For example, materials that plaintiffs submitted in connection with their instant request for a preliminary injunction indicate that in November 2018, there were 4,700 persons from Central America, and perhaps many more, waiting in the Tijuana

area alone. A central point of disagreement between the majority and this dissent centers on the reliability of certain "waitlists" that have been created by various groups in Mexico. I will have more to say about the waitlists later.
While plaintiffs contend that metering unlawfully denies them access to the asylum process in the United States, the government maintains that metering is a necessary response to an overwhelming situation at the border. According to the government, in April 2019 alone, CBP encountered approximately 100,000 individuals seeking entry into the United States, often without documents. Randy Howe, CBP's Executive Director for Operations in the Office of Field Operations, described this surge in migration as "unprecedented" 1019*1019 and as representing "the highest monthly total in well over a decade." It is the government's position that ports of entry were often stretched to the limits, with ever-increasing numbers of aliens "surpass[ing] the physical capacity" of various ports and "result[ing] in a tremendous strain on all available local resources," including personnel. The government claims it authorized metering practices to manage the large inflow of persons safely and properly.
The government moved to dismiss plaintiffs' metering case, arguing that because asylum is only available to aliens "who [are] physically present in the United States or who arrive[ ] in the United States," 8 U.S.C. § 1158(a)(1), persons who had been metered—and who thus had not entered the United States—had no right to apply for asylum. For this reason, the government argued that plaintiffs could not challenge metering as a violation of the asylum laws.
The district court denied the government's motion. As discussed in greater detail below, the district court reasoned that our asylum laws extended not only to persons who were physically in the United States, but also aliens who were "in the process of arriving in the United States." Al Otro Lado, Inc. v. McAleenan, 394 F. Supp. 3d 1168, 1199-1203 (S.D. Cal. 2019). The district court thus held that plaintiffs had stated a claim and allowed their metering lawsuit to proceed.
Importantly, the district court has not determined whether metering is unlawful, either at any particular port of entry or across all ports of entry. Instead, the district court has "acknowledge[d] that it is entirely possible that there may exist potentially legitimate factors that prevent CBP officers from immediately discharging the mandatory duties" in the asylum laws. Id. at 1212. Plaintiffs' challenge to CBP's metering practices remains ongoing in the district court.
B
Meanwhile, on July 16, 2019, and approximately two years into this metering case, the Attorney General and Acting Secretary of Homeland Security issued the Third Country Transit Rule. See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (2019), codified at 8 C.F.R. § 208.13(c)(4). The Rule provides that
any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence in route to the United States, shall be found ineligible for asylum.
Id. The Rule does not apply to aliens who show that they applied for and were denied protection in a third country through which they traveled en route to the United States. Id. § 208.13(c)(4)(i). Nor does the Rule apply to asylum seekers who are "victim[s] of a severe form of trafficking" or if "[t]he only countries through which the alien transited en route to the United States were, at the time of transit, not parties to" certain international agreements. Id. § 208.13(c)(4)(ii)-(iii). The Rule also does

not bar asylum seekers from applying for withholding of removal or for relief under the Convention Against Torture. Id. § 208.13(c)(1).[1]
In a wholly separate lawsuit captioned East Bay Sanctuary Covenant v. Barr, 1020*1020 several organizations, including Al Otro Lado, challenged the Third Country Transit Rule on various grounds. See 385 F. Supp. 3d 922 (N.D. Cal. 2019). Eight days after the Third Country Transit Rule was issued, a district court in our circuit entered a nationwide injunction blocking the Rule's implementation. Id. Notably, the issue of metering factored into the district court's injunction. As the district court explained:
The Court notes one additional equitable consideration suggested by the administrative record. The administrative record contains evidence that the government has implemented a metering policy that "force[s] migrants to wait weeks or months before they can step onto US soil and exercise their right to claim asylum." At the same time, the record also indicates that Mexico requires refugees seeking protection to file claims within 30 days of entering the country. For asylum seekers that forfeited their ability to seek protection in Mexico but fell victim to the government's metering policy, the equities weigh particularly strongly in favor of enjoining a rule that would now disqualify them from asylum on a potentially unlawful basis.
Id. at 959 (record citations omitted).
The government sought a stay of the district court's injunction pending appeal. Our court rejected the injunction's national reach and limited its scope to the Ninth Circuit only. East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th Cir. 2019). Shortly thereafter, the district court reissued its nationwide injunction. See East Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974 (N.D. Cal. 2019). At that point, and although the majority relegates it to a footnote, see Maj. Op. 1004-05 n.2, the Supreme Court stepped in and by a 7-2 vote stayed the district court's orders "in full." Barr v. East Bay Sanctuary Covenant, ___ U.S. ___, 140 S. Ct. 3, 204 L.Ed.2d 1189 (2019).
The Supreme Court thus allowed the Third Country Transit Rule to take effect over the objection of Al Otro Lado and others. The Supreme Court stayed the district court's injunction "in full pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for writ of certiorari, if such writ is sought." Id. The government's appeal in East Bay remains pending in this court.
C
Just fifteen days after the Supreme Court issued its order in East Bay, the plaintiffs in this metering case—including Al Otro Lado—sought a partial injunction of the very same Third Country Transit Rule that the Supreme Court had just recently allowed to go into effect pending appeal. The plaintiffs sought this injunction on behalf of a subclass of some 26,000 non-Mexican aliens seeking asylum, who were allegedly denied access to U.S. ports of entry prior to July 16, 2019 because of CBP's metering policies.
The plaintiffs did not purport to challenge the Third Country Transit Rule per se. Instead, the plaintiffs claimed the Third Country Transit Rule should not apply to them. As noted, that Rule applies to "any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019." 8 C.F.R. § 208.13(c)(4). The plaintiffs claimed the Rule should not apply to them because they had previously attempted to enter the United States prior to July 16, 2019, but were prevented from doing so due to metering.

In seeking an injunction, the plaintiffs likewise sought to certify a subclass of "approximately 26,000 asylum seekers," who are "scattered in encampments and shelters in Mexican border cities." Consistent 1021*1021 with their underlying challenge to metering policies across the southern border, the proposed 26,000-person subclass consists of aliens from all over the world who sought entry over a period of years at numerous points of entries at the United States-Mexico border. This graphic from plaintiffs' class motion shows the breadth of the proposed subclass and U.S.-Mexico entry points that are implicated:
On November 19, 2019, the district court granted plaintiffs' motion and certified a subclass consisting of "all non-Mexican noncitizens who sought unsuccessfully to make a direct asylum claim at a U.S. [port of entry] before July 16, 2019, were instead required to wait in Mexico due to the U.S. Government's metering policy, and who continue to seek access to the U.S. asylum process." Al Otro Lado, Inc. v. McAleenan, 2019 WL 6134601, at *16 (S.D. Cal. Nov. 19, 2019). The district court also enjoined the Third Country Transit Rule as to this subclass. Id. at *16-20.
The district court reasoned that, although plaintiffs did not challenge the Third Country Transit Rule in their operative complaint, the court could nonetheless enjoin the Rule as to asylum seekers metered before July 16, 2019. Id. at *10. The district court held that the Rule "by its express terms, does not apply to those non-Mexican foreign nationals in the subclass who attempted to enter or arrived at the southern border before July 16, 2019 to seek asylum but were prevented from making a direct claim at a [port of entry] pursuant to the metering policy." Id. at *17 (emphasis in original). The district court also relied on its earlier ruling on the government's motion to dismiss, in which it had held that the persons who had not yet entered the United States, but who were "`in the process of arriving in the United States through a [port of entry],'" were covered under the asylum statutes. Id. at *17 (quoting Al Otro Lado, 394 F. Supp. 3d at 1200).
On December 4, 2019, the government filed a motion in the district court for an emergency stay of the injunction pending appeal, requesting a ruling by December 11, 2019. After the district court signaled that it would not rule on the stay motion by the requested date, the government filed in this court a motion for stay pending appeal, along with an emergency motion for an administrative stay. Accompanying its motion, the government submitted declarations from Randy Howe, Executive Director for Operations, Office of Field Operations, U.S. Customs and Border Protection; Ashley Caudill-Mirillo, Deputy Chief of the Asylum Division 1022*1022 with the U.S. Citizenship and Immigration Services (USCIS), U.S. Department of Homeland Security; and Sirce Owen, an Assistant Chief Immigration Judge in the Executive Office for Immigration Review. As described later, these declarations attested to the government's hardship in complying with the district court's injunction and the irreparable harm that the injunction causes.
On December 20, 2019, we granted the government's motion for a temporary stay, noting, among other things that "[p]rohibiting the government from applying the Rule to the proposed class members could cause complications at the border." Al Otro Lado v. Wolf, 945 F.3d 1223, 1224 (9th Cir. 2019). The court now goes in a different direction and allows the district court's injunction to go back into effect. Because this decision is wrong as a matter of law, I respectfully dissent.
II
The following familiar factors govern the government's request for a stay of the district court's injunction pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay

will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
City & Cty. of S.F. v. USCIS, 944 F.3d 773, 789 (9th Cir. 2019) (quoting Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)).
Usually—and nearly without fail—we analyze those factors in order. See, e.g., id. at 790-807; FTC v. Qualcomm Inc., 935 F.3d 752, 755-57 (9th Cir. 2019); Sierra Club v. Trump, 929 F.3d 670, 687-707 (9th Cir. 2019); Innovation Law Lab v. McAleenan, 924 F.3d 503, 506-10 (9th Cir. 2019) (per curiam); Lair v. Bullock, 697 F.3d 1200, 1203-15 (9th Cir. 2012); Golden Gate Restaurant Ass'n v. City & Cty. of S.F., 512 F.3d 1112, 1119-27 (9th Cir. 2008). In the classic recitation of the factors governing a request for a stay, likelihood of success on the merits is listed first. That is how the majority itself lays out the standard. See Maj. Op. 1006-07.
One will notice that the majority opinion inverts the traditional stay analysis, beginning with irreparable harm and demoting the merits to secondary status. This is not accidental, but tactical. We are told that because "[t]he government has made a weak showing that it will suffer harm" pending appeal, Maj. Op. 1007, it must not make merely "a strong showing that [it] is likely to succeed on the merits," Nken, 556 U.S. at 434, 129 S.Ct. 1749, but rather a showing that is "strong enough to counterbalance its weak irreparable harm evidence." Maj. Op. 1014. By seemingly inflating the government's required showing, the majority trends toward a new, undefined standard that waters down the merits analysis. And it is unclear how strong is "strong enough" in a case like this one, where the government's merits arguments are purely legal in nature, turning on the interpretation of statutes and regulations.
The sequencing of today's opinion can only reflect the majority's implicit acknowledgement that the government's case is strongest where it most matters, namely, the likelihood of success on the merits. That explains the majority's tepid endorsement of the district court's merits analysis, which the majority only describes as "likely correct," "sufficiently sound," and having "considerable force." Maj. Op. 1011, 1013. The strength of the government's merits arguments likely explains why the majority feels the apparent need to elevate the government's burden on likelihood of success on the merits before addressing 1023*1023 them. Hence the decision to lead with irreparable harm first.
The issuance of a stay "is to be guided by sound legal principles," and "those legal principles have been distilled into" the traditional four-factor test I quoted above, Nken, 556 U.S. at 434, 129 S.Ct. 1749 (quotations omitted), not factors with new modifiers around them. In this case, and under the governing standards, the government has made both "a strong showing that [it] is likely to succeed on the merits" and that it "will be irreparably injured absent a stay." City & Cty. of S.F., 944 F.3d at 789.
III
A
I begin, as we usually do, with the merits. But the merits of what exactly? Not the merits of CBP's metering policies, which is what this lawsuit is actually about. The legality of metering remains a live issue in the district court, with the district court acknowledging "it is entirely possible" that metering could be founded on "legitimate factors." Al Otro Lado, Inc., 394 F. Supp. 3d at 1212. Indeed, the district court issued its injunction "assuming the Government's metering practice was legal." Al Otro Lado, 2019 WL 6134601, at *13. The majority opinion rests on the same assumption: "because the district court has not yet decided whether the delay in processing the class member[s'] asylum

requests and requiring them to stay in Mexico in the meanwhile is itself violative of their statutory or constitutional rights, we assume for present purposes that it was not." Maj. Op. 1013 n.11.
But if metering is potentially lawful and not even at issue in this preliminary injunction proceeding, on what basis could the district court partially enjoin the wholly separate and later-enacted Third Country Transit Rule, whose legality is not questioned here either? Somehow a motion for preliminary injunction that challenges neither metering nor the Third Country Transit Rule has used the prospect of a challenge to the former as a justification for partially enjoining the latter.
The majority never explains why this is at all appropriate. This metering case plodded along for years until the government enacted the Third Country Transit Rule. Then, and not long after the ink had dried on an unsuccessful effort to obtain a preliminary injunction of that Rule, see East Bay, 140 S. Ct. at 3, the plaintiffs—including Al Otro Lado, a plaintiff from East Bay itself—tried to use this metering case to accomplish, in part, what East Bay thus far has not. Under the circumstances and our case law, the district court's partial injunction of the Third Country Transit Rule exceeded the equitable powers of the federal courts.
We have made clear that "[a] court's equitable power lies only over the merits of the case or controversy before it," so that "[w]hen a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an injunction." Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 632 (9th Cir. 2015). That principle of law is wellaccepted. See, e.g., Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1134 (11th Cir. 2005) ("To secure preliminary injunctive relief, a petitioner must demonstrate a substantial likelihood of prevailing on at least one of the causes of action he has asserted."); Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) ("[A] preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action."); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) ("[A] party moving for a preliminary injunction must 1024*1024 necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint."). The district court's injunction easily fails this test, both because the Third Country Transit Rule was not otherwise at issue in this case, and because the district court's partial injunction of that Rule does not turn on the merits of plaintiffs' metering claims.
The district court apparently believed that our decision in Pacific Radiation was no obstacle to enjoining the Third Country Transit Rule because, in its view, "Plaintiffs' claims regarding the [the Rule] and Plaintiffs' underlying claims in their [Second Amended Complaint] are so intertwined that denying Plaintiffs' Motion for Preliminary Injunction could effectively eviscerate the asylum claims Plaintiffs seek to preserve in their underlying lawsuit." Al Otro Lado, 2019 WL 6134601, at *10. That is not correct.
For a federal court to issue an injunction, there must be "a sufficient nexus between the claims raised in a motion for injunctive relief and the claims set forth in the underlying complaint itself." Pac. Radiation, 810 F.3d at 636. Here there is no claim in the operative complaint concerning the Third Country Transit Rule, which did not come along until years into this case. Under our precedent, moreover, "[t]he relationship between the preliminary injunction and the underlying complaint is sufficiently strong where the preliminary injunction would grant `relief of the same character as that which may be granted finally.'" Id. (quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 220, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945)). In this case, the character of the relief sought in the motion for preliminary injunction is entirely different from that sought in the complaint: the complaint concerns delays in processing asylum seekers, whereas the Third Country Transit Rule concerns eligibility requirements for asylum itself.

The majority opinion asserts that the operative complaint and injunction both "sought to preserve class members' access to the asylum process." Maj. Op. 1006 n.6. But the injunction is not about "access to the asylum process," but claimed entitlement to asylum itself, which is not at issue in this metering case. And even if it was, casting the complaint and injunction at such a high level of generality would undermine the limitations that Pacific Radiation imposes. Indeed, Pacific Radiation expressly rejected an effort to secure an injunction by "merely asserting that the claims are related or incorporated into [the] complaint." 810 F.3d at 637.
The approach taken by the district court and majority opinion is therefore dramatic in its potential: in a case that does not challenge them, it would authorize injunctions of any current or future asylumrelated rule, the application of which likewise "could" just as easily "eviscerate" plaintiffs' eventual asylum claims. Al Otro Lado, 2019 WL 6134601, at *10. And it would allow such injunctions on the assumption that the governmental conduct at issue in the case—here, metering—is lawful. Id. at *11, 13. The result is a mission creep nowhere authorized in our precedents, where an expansive and long-running lawsuit like this one can become the forum for challenging any future governmental action in the general subject area. That the majority implicitly blesses this vast expansion of the federal courts' injunctive powers in a footnote, Maj. Op. 1006 n.6, is deeply troubling.
The majority and district court also justify the injunction under the All Writs Act, 28 U.S.C. § 1651, on the theory that the Third Country Transit Rule "would effectively moot Plaintiffs' request for relief in the underlying action by extinguishing 1025*1025 their asylum claims." Al Otro Lado, 2019 WL 6134601, at *11; Maj. Op. 1006 n.6. This is even farther afield and clearly incorrect. This metering case does not concern plaintiffs' underlying asylum claims, which are not at issue here. And the Third Country Transit Rule obviously does not moot this metering case because it has no effect on Mexican asylum seekers to whom the Rule does not apply. Such Mexican asylum seekers are both named plaintiffs and part of the putative class challenging CBP's metering practices.
The majority does not dispute this. Instead, it claims that the Third Country Transit Rule "would extinguish some provisional class members' asylum claims." Maj. Op. 1006 n.6 (emphasis added). But neither the majority opinion nor the district court provide any authority for the remarkable proposition that the All Writs Act can be used as an all-purpose bulwark against mootness. If a party's claims become moot, a court lacks jurisdiction to decide them. See, e.g., Center for Biological Diversity v. Lohn, 511 F.3d 960, 963 (9th Cir. 2007). And the All Writs Act only allows a court "to issu[e] process `in aid of' its existing jurisdiction; the Act does not enlarge that jurisdiction." Clinton v. Goldsmith, 526 U.S. 529, 534-35, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999).
The notion that the All Writs Act could be used to enjoin anything that would make even one of 26,000 provisional class members' claims moot reflects a sweeping theory of judicial power with no basis in principle or precedent. As the Supreme Court has explained in the context of similar statutory language in the Anti-Injunction Act, "[n]o case of this Court has ever held that an injunction to `preserve' a case or controversy fits within the `necessary in aid of its jurisdiction' exception." Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977) (plurality opinion); see also Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988) (interpreting All Writs Act in light of Anti-Injunction Act precedent). The All Writs Act "is not a grant of plenary power to federal courts." Doe v. I.N.S., 120 F.3d 200, 205 (9th Cir. 1997) (quotations omitted). Yet by today's decision, it is.
Because the district court could not enter this injunction in this case, that should be the end of the matter and the injunction should have been stayed for this reason alone.
B

But even assuming, as the majority does, that the likelihood of success on the merits should focus instead on whether the Third Country Transit Rule applies to the plaintiff subclass, the government has shown a strong likelihood of success on that front as well.
As I set forth above, the Third Country Transit Rule provides that any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence in route to the United States, shall be found ineligible for asylum.
8 C.F.R. § 208.13(c)(4) (emphasis added). The district court held that this Rule did not apply to persons who had been metered prior to July 16, 2019. Al Otro Lado, 2019 WL 6134601, at *17. Its central reasoning was that the Rule "by its express terms, does not apply to those non-Mexican foreign nationals in the subclass who attempted to enter or arrived at the southern border before July 16, 2019 to seek asylum but were prevented from making a direct claim at a [port of entry] pursuant 1026*1026 to the metering policy." Id. (emphasis in original). In the district court's view, "[t]he Government's position that the Asylum Ban applies to those who attempted to enter or arrived at the southern border seeking asylum before July 16, 2019 contradicts the plain text of their own regulation." Id.
The majority and I at least appear to agree on one thing: this reasoning is definitely wrong. The Third Country Transit Rule applies to "any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019." 8 C.F.R. § 208.13(c)(4). It includes anyone, including the plaintiffs in this case, who will be attempting to enter the United States after July 16, 2019. There is no exception for persons who previously tried to enter the United States and who were unable to do so, whether due to metering or any other reason. The district court was thus mistaken to believe that the Third Country Transit Rule "by its express" terms contains a carve-out for metered persons. It does not. As the majority thus concedes, "the government may be right that, because the class members were `metered,' they will arrive a second time when they get to the top of the waitlist and are finally admitted and processed." Maj. Op. 1016 n.11.
C
The majority nevertheless refuses to stay the district court's injunction. Why? Notwithstanding the language of the Third Country Transit Rule, the majority holds that the government still has not shown a strong likelihood of success based on the district court's earlier motion to dismiss ruling. Maj. Op. 1011-13. In that ruling, the district court held that the asylum laws apply not only to persons physically present inside the United States, but also to persons "who [are] in the process of arriving in the United States through a [port of entry]." Al Otro Lado, 394 F. Supp. 3d at 1200. Extending this logic to plaintiffs' request to enjoin the Third Country Transit Rule, the district court held that persons who were metered had arrived in the United States prior to July 16, 2019, such that the Rule does not apply to them. Al Otro Lado, 2019 WL 6134601, at *17.
As I will now explain, the majority's effective endorsement of the district court's unprecedented motion to dismiss ruling works a revolution in immigration law. And the majority's related holding that our country's immigration laws are effectively frozen as of the time of metering, so that no new immigration eligibility requirement could apply to persons who had been metered, works an entirely new revolution beyond that. The majority's twin determinations on this score contravene settled law, contradict our precedents, and wrongly allow a partial injunction of the very Third Country Transit Rule that the Supreme Court recently allowed to go into effect pending appeal. See East Bay, 140 S. Ct. at 3.

1
An alien "who is physically present in the United States or who arrives in the United States" may apply for asylum. 8 U.S.C. § 1158(a)(1). Another provision of the statute provides that aliens may receive asylum screening if they are "arriving in the United States." Id. § 1225(b)(1)(A)(i)-(ii). Back when this case was about metering, the threshold legal issue before the district court at the motion to dismiss stage was whether metered persons could even claim a violation of the asylum laws, given that they had never physically entered the United States.
The district court held that they could. According to the district court, persons "`who may not yet be in the United States, but who [are] in the process of arriving in 1027*1027 the United States through a [port of entry,]' were `arriving in the United States' such that the statutory and regulatory provisions at issue applied to them." Al Otro Lado, 2019 WL 6134601, at *17 (quoting Al Otro Lado, 394 F. Supp. 3d at 1199-1205). To reach that conclusion, the district court reasoned that under the canon against surplusage, § 1158(a)(1)'s reference to a person "who arrives in the United States" must have a different meaning than someone "who is physically present in the United States." Al Otro Lado, 394 F. Supp. 3d at 1199-1200. Focusing then on the phrase "arrives in the United States," and while noting that "neither side raises th[e] point," the district court held that under the Dictionary Act, "`words used in the present tense include the future as well as the present.'" Id. at 1200 (quoting 1 U.S.C. § 1). From this the district court held that "Section 1158(a)(1)'s use of the present tense of `arrives' plainly covers an alien who may not yet be in the United States, but who is the process of arriving in the United States through a [port of entry]." Id.
In its order partially enjoining the Third Country Transit Rule, the district court relied on this earlier motion to dismiss ruling to hold that the Rule did not apply to persons who were metered prior to July 16, 2019. Al Otro Lado, 2019 WL 6134601, at *17. It is important to see at the outset that whether or not the district court's motion to dismiss ruling is correct, its conclusion at the preliminary injunction stage did not follow: even if the plaintiffs had previously attempted to enter the United States prior to July 16, 2019, they are now attempting to enter it again after July 16, 2019. 8 C.F.R. § 208.13(c)(4). As such, the Third Country Transit Rule clearly applies to them, whether or not they previously "arrived in" or were in the "process of arriving in" the United States at some earlier point. I take up this issue further below when addressing the majority's apparent view that the immigration laws should be considered frozen as of the time plaintiffs were metered.
Regrettably, however, and with little independent reasoning of its own, the majority endorses the district court's motion to dismiss ruling. Maj. Op. 1011-13. After describing the district court's reasoning, the majority with limited analysis states that "[t]he district court's linguistic and contextual analysis has considerable force" and "is likely correct." Maj. Op. 1013.
In fact, however, the district court's reasoning at the motion to dismiss stage was not correct, and the majority errs in giving it any credit. At the very least, the government has made a strong showing that the district court's motion to dismiss ruling was not sound. This point should be very clear: neither the majority, the district court, nor the plaintiffs cite any authority for the proposition that our country's asylum laws apply to persons who are not physically located in the United States, but who are outside our borders yet "in the process of arriving in" the United States. The district court's holding in this regard is unprecedented and runs counter to both the statutory text and established case law.
Before 1980, "there was no statutory basis for granting asylum to aliens who applied from within the United States." I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 433, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In 1980, and as part of amendments to the Immigration and Nationality Act (INA), Congress separately addressed refugees applying for admission from outside the United States, as

distinguished from asylum seekers asking for protection from within our borders. Id. As the Supreme Court has explained in describing these reforms, "Section 207, 8 U.S.C. § 1157, governs the admission of refugees who seek admission from foreign countries. 1028*1028 Section 208, 8 U.S.C. § 1158, sets out the process by which refugees currently in the United States may be granted asylum." Id. (emphasis added).
It has thus long been understood that unlike admission for refugees, see 8 U.S.C. § 1157 (imposing certain population caps for resettling refugees), asylum under § 1158 requires application from within the United States. As we have explained, "Section 207 [8 U.S.C. § 1157] establishes the procedure by which an alien not present in the United States may apply for entry as a refugee. . . . Section 208 [8 U.S.C. § 1158], on the other hand, sets out the procedures for granting asylum to refugees within the United States." Yang v. I.N.S., 79 F.3d 932, 938 (9th Cir. 1996) (emphasis in original); see also Singh v. Holder, 649 F.3d 1161, 1167 (9th Cir. 2011) (en banc) ("Th[e] definition of a refugee contains no cross-reference to the procedural requirements for asylum, such as being physically present in the United States. . . ."); Halaim v. I.N.S., 358 F.3d 1128, 1133 (9th Cir. 2004) ("Because they are physically present in the United States, however, Petitioners are applying for asylum and withholding of deportation only under Section 208 of the INA, 8 U.S.C. § 1158."); Sadhvani v. Holder, 596 F.3d 180, 183 (4th Cir. 2009) ("[T]he BIA did not abuse its discretion in denying relief based on the statutory requirement that one must be present in the United States to eligible for asylum."); Kiyemba v. Obama, 555 F.3d 1022, 1030 (D.C. Cir. 2009), vacated by 559 U.S. 131, 130 S.Ct. 1235, 175 L.Ed.2d 1070 (2010), and judgment reinstated as amended, 605 F.3d 1046 (D.C. Cir. 2010) ("[R]efugees apply from abroad; asylum applicants apply when already here[.]").
Consistent with the foregoing, the text, structure, and history of the INA all confirm that an alien who approaches a port of entry, but who does not enter the United States, is not covered by the asylum laws. The INA's asylum provisions are limited to aliens who are "physically present in the United States or who arrive[ ] in the United States" or "who [are] arriving in the United States." See 8 U.S.C. §§ 1158(a)(1), 1225(b)(1)(B)(i)-(ii) (emphases added). This language unambiguously requires an alien to be in the United States to apply for asylum. The statute does not apply by its terms to someone who is "in the process of arriving" in the United States, but who is not yet here. One who "arrives in the United States," 8 U.S.C. § 1158(a)(1) is one who, at the very least, has crossed into the United States. See, e.g., THE AMERICAN HERITAGE DICTIONARY 102 (3d ed. 1992) (defining "arrive" as "[t]o reach a destination"); THE OXFORD ENGLISH DICTIONARY 651 (2d ed. 1989) (defining "arrive" as "to come to land at, reach (a shore, port, etc.)" and "[t]o come to the end of a journey, to a destination, or to some definitive place"). When we say that a person "arrives" in a location, we mean he reaches that location, not that he is somewhere on his travels toward it. An alien thus "arrives in" the United States or he does not; there is no in-between.
The majority nevertheless relies on the district court's use of the canon against surplusage, which the district court held requires that "arrives in the United States" must mean something different than "physically present in the United States." Maj. Op. 1011 (citing 8 U.S.C. § 1158(a)). The district court's surplusage analysis fails upon closer scrutiny. The Refugee Act of 1980 originally ordered the Attorney General to accept asylum applications from any alien "physically present in the United States or at a land border or port of entry, irrespective of such alien's status." 8 U.S.C. § 1158(a) (1980). The majority suggests without citation that this earlier language covered "[a] person standing at the border," but who was "not necessarily across it." Maj. Op. 1013 (emphasis 1029*1029 in original). The majority identifies no court that has accepted this interpretation of the 1980 Act, nor does it address the fact that both the Supreme Court and this court have described the 1980 provision as applying to "refugees currently in the United States," Cardoza-Fonseca, 480 U.S. at 433, 107 S.Ct. 1207, and "refugees within the United States," Yang, 79 F.3d at 938 (emphasis in original).

In the landmark Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, Congress revised the statutory language in § 1158(a)(1), so that it now provides that "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum." 8 U.S.C. § 1158(a); see generally East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 757-58 (2018) (describing the IIRIRA changes to the statutory scheme). The 1996 amendments did not somehow work a major change in the law to enable persons who were outside the United States, but "in the process" of arriving into it, to apply for asylum.
Prior to 1996, our immigration laws set forth two types of expulsion proceedings: deportation and exclusion. See Vartelas v. Holder, 566 U.S. 257, 261, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012); Jama v. ICE, 543 U.S. 335, 349, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005); Lezama-Garcia v. Holder, 666 F.3d 518, 526 (9th Cir. 2011). In the 1996 immigration reforms, Congress "abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as `removal.'" Vartelas, 566 U.S. at 262, 132 S.Ct. 1479. Congress also created expedited removal proceedings for aliens "arriving in" the United States who seek to procure entry through fraudulent means or who lack proper documentation. 8 U.S.C. § 1225(b)(1)(A)(i). Congress further authorized the Attorney General to place in expedited removal proceedings certain persons who had been physically present in the United States for less than two years. Id. § 1225(b)(1)(iii). Nevertheless, most persons subject to expedited removal can request asylum and be referred for a credible fear interview "either at a port of entry or at such other place designated by the Attorney General." Id. § 1225(b)(1)(A)(ii), (B)(i).
Properly considered, the phrases "arrives in the United States," 8 U.S.C. §§ 1158(a)(1), 1225(a)(1), or "arriving in the United States," id. § 1225(b)(1)(A)(i), did not extend our asylum laws to persons outside the physical boundaries of the United States. Instead, the point was to identify certain persons who could be subject to expedited removal, while ensuring that they could still pursue asylum. Id. § 1225(b)(1)(A)-(B); see also Succar v. Ashcroft, 394 F.3d 8, 13 (1st Cir. 2005) ("Congress established expedited removal proceedings for arriving non-citizens who are charged as inadmissible due to lack of proper documents or material misrepresentations at entry. Expedited removal proceedings provide little opportunity for relief; however, aliens in this situation can seek asylum.") (quotations omitted).
Nothing in these changes suggested that from the perspective of whether the asylum applicant had to be located in the United States, there was a difference between a person "present in the United States" and one "who arrives in the United States." 8 U.S.C. § 1225(a)(1); see also id. § 1158(a)(1). A change of that magnitude, and particularly one made through the 1996 immigration reforms— widely regarded as placing important new limits on immigration, 1030*1030 see Morales-Izquierdo v. Gonzales, 486 F.3d 484, 494 (9th Cir. 2007) (en banc); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 819-20 (9th Cir. 2004)—would surely have been made quite explicitly. The district court's invocation of the canon against surplusage was therefore misplaced.
Not only was the district court incorrect to apply the canon against surplusage, its effort to do so led it to misapply the Dictionary Act, an error the majority unfortunately credits. Maj. Op. 1011. The district court relied upon a provision in the Dictionary Act which states that "unless the context indicates otherwise," "words used in the present tense include the future as well as the present." 1 U.S.C. § 1. From this it concluded that "arrives in"— which it believed must have a different meaning than "physically present in"—had to include "an alien who may not yet be in the United States, but who is the process of arriving in the United States through a [port of entry]." Al Otro Lado, 394 F. Supp. 3d at 1200.

The conclusion does not follow. Courts cannot "invoke[ ] the Dictionary Act in an effort to convert an unambiguous verb tense into claimed ambiguity," and then use "that manufactured ambiguity as a stepping stone to altering the plain sense of a statute." Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767, 775 (9th Cir. 2008). Here, the district court used the Dictionary Act not to read "arrives" in both the present and future tense, but to change the entire definition of "arrives" to include the "process of arriving." And if the phrase "arrives in" does refer to something in the future, there is no reason to limit that interpretation, as the district court did, to someone "in the process of arriving in" the United States, as opposed to someone who took some other antecedent step toward arriving in this country. The uncertainty of what it means to be "in the process of arriving" raises a host of interpretative and practical issues that the majority does not address.
In all events, if the district court had been consistent in its application of the Dictionary Act, it would have read "is physically present in the United States"— also framed in the present tense—to refer to the future as well. 8 U.S.C. § 1158(a)(1). But that would have erased the very distinction that the surplusage canon supposedly required. There too, of course, the statute in the future tense would merely reflect the unremarkable proposition that one who will be physically present in the United States will be able to apply for asylum once they are here. It would not mean that one who is in the process of becoming physically present would have that same statutory right. This same logic applies to the phrase "arrives in" as well.
The district court believed, and the majority apparently agrees, that 8 U.S.C. § 1225(b) supported the district court's "in the process of" theory. Maj. Op. 1011-12. As described above, § 1225(b)(1) references aliens "arriving in the United States." The district court held that this phrase supported its interpretation of § 1158(a)(1), because § 1225(b)'s "use of the present progressive, like use of the present participle, denotes an ongoing process." Al Otro Lado, 394 F. Supp. 3d at 1200.
The district court's (and majority's) reading collapses when § 1225 is read as a whole. See, e.g., Sturgeon v. Frost, ___ U.S. ___, 136 S. Ct. 1061, 1070, 194 L.Ed.2d 108 (2016) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.") (quotations omitted). In this case, the very provision the district court relied upon states that "[i]f an immigration officer determines 1031*1031 that an alien . . . who is arriving in the United States . . . is inadmissible, the officer shall order the alien removed from the United States without further hearing or review." 8 U.S.C. § 1225(b)(1)(A)(i) (emphasis added). For an alien to be "removed from the United States," the alien must of course have been in the United States in the first place.
There are various other aspects of § 1225 and § 1158 that likewise do not make sense if "arriving in" means something short of setting foot in the United States. Section 1225(b), for example, concerns the "inspection" of aliens "arriving in the United States." Aliens must be screened in inspections, 8 U.S.C. § 1225(b)(1)(A), before proceeding to asylum interviews, id. § 1225(b)(1)(B). These inspections apply to any person "present in the United States" or "who arrives in the United States." Id. § 1225(a)(1). There is no suggestion in § 1225 that CBP officers could inspect persons who did not enter the United States. Under § 1158(a)(2)(B), to give another example, an alien must generally apply for asylum "within 1 year after the date of the alien's arrival in the United States." It is unclear how this and other provisions would apply if arrival were an "ongoing process" that includes periods prior to entering the United States. Maj. Op. 1011-12. The majority's endorsement of the district court's reasoning thus injects confusion in our immigration laws, with no basis in the statutory text.
Finally, relying upon the district court, the majority states that "the legislative history is consistent with its interpretation of `arrives in' as denoting an ongoing process." Maj. Op. 1012 & n.10. By "legislative history," the majority means the written statement of a single congressman,

Representative Lamar Smith of Texas. Al Otro Lado, 394 F. Supp. 3d at 1201. It is difficult to call this statement legislative history. The statement is in fact a letter sent by Rep. Smith to the Director of the Immigration and Naturalization Service (INS) about a proposed INS rulemaking (the letter was later placed in the congressional record). See Implementation of Title III of the Illegal Immigration Reform and Immigration Responsibility Act of 1996: Hearing Before the Subcomm. On Immigration and Claims of the H. Comm. On the Judiciary, 105th Cong. (1997), at 13-28 (letter from Rep. Smith to INS). The letter also post-dates the enactment of the IIRIRA. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011) ("Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.").
Even assuming this is true legislative history, the usual warnings about its use would apply. See Conroy v. Aniskoff, 507 U.S. 511, 518-28, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring). In this case, however, there is a more fundamental problem, which is that the majority block-quotes the district court's opinion discussing this "legislative history," Maj. 1011-12, but the district court in quoting that material used an ellipsis to omit critical context from the quoted passage. The following is the full quote from Rep. Smith's letter. I have bolded the text that the district court (and majority) omit with an ellipsis; notably, most of that same material was italicized for emphasis in Rep. Smith's letter:
The term `arriving alien' was specifically selected by Congress in order to provide a flexible concept that would include all aliens who are in the process of physical entry past our borders, regardless of whether they are at a designated port of entry, on a seacoast, or at a land border. Thus, an `arriving alien' will in many cases include an alien' who, under the current interpretation of section 101(a)(13) of the INA definition 1032*1032 of `entry', would have been found to have made an `entry.' In specific terms, an alien who has entered U.S. territory between ports of entry on our land borders, or who has come ashore on a smuggling boat, should be considered an `arriving alien' even if that alien has penetrated several hundred yards or even farther into United States territory and has been in that territory for several hours. `Arrival' in this context should not be considered ephemeral or instantaneous, but, consistent with common usage, as a process. An alien apprehended at any stage of this process, whether attempting to enter, at the point of entry, or just having made entry, should be considered an `arriving alien' for the various purposes in which that term is used in the newly revised portions of the INA.
1997 IIRIRA Subcomm. Hrg. at 17-18 (bold added; italics in original).
Rep. Smith was certainly not advocating for an interpretation of "arriving" that would accord asylum protection to persons who had not crossed into the United States. Instead, and consistent with what he later describes as "the pro-enforcement philosophy of" the INA, Rep. Smith sought to ensure that aliens who had "entered U.S. territory" and proceeded some ways past the border should still be treated as "arriving" in the United States and subject to the expedited procedures applicable to such persons. Id. at 17-19. That is the stated "context" of Rep. Smith's comments about the word "arrival"—"context" that the ellipsis eliminated. And that is why Rep. Smith elsewhere referred to "physical entry past our borders" and persons "having crossed the border." Id. at 17-18 (emphasis in original).
The majority opinion acknowledges (but does not re-produce) the "language elided from the district court's block quotation and ours," but maintains that my reading of Rep. Smith's letter is "inconsistent with [his] comments themselves." Maj. Op. 1012 n.10. That is not correct. As explained above, Rep. Smith was referring to "arrival" as a "process" that begins and continues after an alien has crossed the border. Statements Rep. Smith made at the congressional hearing in which he submitted his letter only confirm what his letter plainly says. See, e.g., 1997 IIRIRA Subcomm. Hrg. at 70 ("The problem that I hope you all will address when we get to that definition of arriving alien is the situation

where you have someone crossing a land border perhaps in a vehicle, and as soon as they travel, they're going north or south or east or west; 2 hours later they're 120 miles in the interior. Clearly, they're still an arriving alien, and you somehow need to have a broad enough net to catch those individuals and apply that definition to them.").
Rep. Smith's statement thus provides no support for the district court's unprecedented holding that persons who are not in the United States may invoke our asylum laws. Because that holding was wrong, the injunction of the Third Country Transit Rule upon which it was based should have been stayed.
2
Of course, one does not need to agree with anything in the preceding section to conclude that the district court's injunction of the Third Country Transit Rule was improper. As I have explained, the government correctly argues (and the majority seemingly agrees, Maj. Op. 1013 n.11) that regardless of whether plaintiffs attempted to enter the United States prior to July 16, 2019, they would now be arriving again after that date, so that the Third Country Transit Rule on its face applies to them. The majority therefore acknowledges that even if the district court's "arriving in" 1033*1033 analysis were correct, the government would still succeed on the merits if plaintiffs' "first arrival" was not the proper focus, so that "any second arrival . . . governed by the Rule" is the "one that matters." Maj. Op. 1011.
The majority holds that the government has not made a sufficient showing in this respect either, on the theory that "[i]t is more likely that the first arrival is governed by the eligibility requirements at the time the right to be considered for asylum arose than that regulations imposed after the fact will cancel out the earlier eligibility." Maj. Op. 1014. That is the direct effect of the district court's injunction as well, which ordered the government "to return to the pre-Asylum Ban practices for processing the asylum applications of members of the certified class." Al Otro Lado, 2019 WL 6134601, at *20. This, according to the majority, "makes sense." Maj. Op. 1014.
This reasoning will drastically destabilize the law at the border. What the majority is apparently saying is that asylum eligibility rules should be frozen in time as of the point that the plaintiffs were first arriving at a port of entry (or, more accurately, in the process of arriving there). The theory would extend to any change in the law after the plaintiffs were first metered. The implications of this rule of law are significant. By the logic of the majority's opinion, persons could be metered, deported from Mexico, and then return to a United States port of entry many years later, demanding that any new developments in immigration law not apply to them. Indeed, any person who is "in the processing of arriving in" the United States would seemingly have a vested right to the eligibility requirements in place as of that time. This would atomize the process for applying immigration rules of supposed general applicability, with the law in constant flux depending upon the person being considered for admission. This would cause obvious and enormous problems of administration at the border.
The majority's determination that the Third Country Transit Rule should not apply because it was not "in place" "at the time each class member's right to apply for asylum attached" (the "first arrival"), Maj. Op. 1013-14, also meets serious resistance from our cases. We have repeatedly held that a change in immigration law may apply to persons much farther along in immigration proceedings than the plaintiffs are here. As we explained long ago, where a "Petitioner had been eligible for the relief sought when he first applied for it" but "became ineligible by virtue of [a] change in the law," "[i]t is settled that when the law is changed before a decision is handed down by an administrative agency, the agency must apply the new law." Talanoa v. INS, 397 F.2d 196, 200 (9th Cir. 1968); see also Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108 (9th Cir. 2003) (rejecting petitioners'

arguments based on allegedly "settled expectations" and applying change in law that was made after petitioners filed their asylum application); Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999) (holding that new definition of "aggravated felony" that took effect after petitioners had filed an asylum application applied, and "[t]he fact that the [petitioners'] petition for asylum was filed prior to the effective date of the IIRIRA does not help them"). In these cases, the new law was "not in place" at the relevant time either, Maj. Op. 1014, but that did not change the court's analysis.
To the extent the majority would allow new changes in the law to apply to ongoing asylum proceedings, as our precedent confirms can occur, the broader statements in the majority's opinion must give way to a more limited holding: that when an alien was previously "in the process of arriving" 1034*1034 in the United States, the Third Country Transit Rule does not apply to that person. But that returns us to the beginning, namely, that the Third Country Transit Rule does not exempt persons who previously attempted to enter the country. And nothing in the INA says that when there are multiple "arrivals" over time, it is the first one, and not the later arrival in front of us (and immigration officials), that matters.
The majority would presumably agree that if an alien entered the United States prior to July 16, 2019, freely left the United States on her own accord, and then returned after July 16, 2019, the Third Country Transit Rule could apply to her. That would be so notwithstanding her earlier pre-July 16, 2019 "arrival." The majority would likewise seemingly agree that if an alien entered the United States prior to July 16, 2019, was lawfully removed, and then attempted to arrive again after July 16, 2019, the Third Country Transit Rule could apply to that person too.
Then why is this case different? The only possible reason could be that there is something wrong about the combination of the government's metering policies and the Third Country Transit Rule, namely, that the government turned people away through metering only to then subject them to a new asylum eligibility requirement. The district court was explicit on this point: it thought the government's metering policies had created a "legal bind" that was "at best, misleading, and at worst, duplicitous." Al Otro Lado, 2019 WL 6134601, at *1, 11. The majority makes the same point, "agree[ing] with the district court that `[t]his situation, at its core, is quintessentially inequitable.'" Maj. Op. 1015-16.
The problem with these statements is that this entire injunction—and the majority's opinion refusing to stay it—is premised on the assumption that metering is not unlawful. Maj. Op. 1002-03, 1013 n.11; Al Otro Lado, 2019 WL 6134601, at *11, 13. And if metering is lawful, as the district court conceded may be the case, then the supposed "legal bind" and "quintessentially inequitable" government behavior are nothing of the sort, but rather a natural consequence of the government's valid enforcement of the immigration laws. This really has now brought us back completely full circle: the injunction does not turn on whether metering is lawful. The majority and district court therefore cannot then smuggle into the analysis an implicit and unproven judgment that metering is wrong. And they certainly cannot do so on a classwide basis for all ports of entry at all times.
For all these reasons, the government has shown an overwhelming likelihood of success on the merits and the first stay factor thus tips decidedly in its favor. I am unsure why the majority opinion suggests that I am criticizing what the majority views as its "restrained approach." Maj. Op. 1015. The majority opinion is restrained only insofar as it fails to confront the obvious legal deficiencies in the district court's injunction. The majority's citation of a law review article and the dissenting opinion in East Bay notwithstanding, see Maj. Op. 1015-16 (citing East Bay, 140 S. Ct. at 6) (Sotomayor, J., joined by Ginsburg, J., dissenting), at this stage of the process, we not only may consider the likelihood of success on the merits, but are required to do so. Nken, 556 U.S. at 433-34, 129 S.Ct. 1749. We often do so extensively, whether a stay is granted or denied. See, e.g., City & Cty. of

S.F., 944 F.3d at 790-805; Sierra Club v. Trump, 929 F.3d 670, 688-704 (9th Cir. 2019). That the inquiry at this stage is probabilistic, Maj. Op. 1015, does not mean we can shy away from it.
IV
The second stay factor—irreparable harm—also weighs strongly in favor of the 1035*1035 government. See Nken, 556 U.S. at 424, 129 S.Ct. 1749. We have previously explained that the harm analysis "focuses on irreparability, irrespective of the magnitude of the injury." City & Cty. of S.F., 944 F.3d at 806 (quoting California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018)). The majority opinion is thus incorrect to insist on a showing of "significant irreparable harm." Maj. Op. 1008. That is not the governing standard. Here, however, the harm of complying with the district court's injunction is both irreparable and significant, requiring a stay of the injunction.
Although the majority does not mention it, the initial harm here is the government's inability to apply the Third Country Transit Rule to persons that the Rule covers, where the Supreme Court has already held that this Rule may be implemented pending appeal. See East Bay, 140 S. Ct. at 3. Citing an exponential increase in persons approaching our border and the fact that many asylum claims are later found to be "meritless," the Third Country Transit Rule sought to focus the country's immigration resources on those applicants who are more likely to present meritorious asylum claims. See 84 Fed. Reg. at 33,839. The district court's injunction thus disallows the government from denying asylum on a presently permitted ground. This constitutes an irreparable harm. See City & Cty. of S.F., 944 F.3d at 806. But in all events, it is not for us to debate whether the government's inability to enforce the Third Country Transit Rule creates such harm. The Supreme Court—in staying an injunction of that very Rule—has already found that the government met its burden on the stay factors. East Bay, 140 S. Ct. at 3.
The irreparable harm here, however, runs deeper. Under the district court's injunction, the government is obligated to identify and treat differently an estimated 26,000 persons who were metered during a several-year period at various points of entry across our southern border. Many of these persons will lack proper documentation. While the Third Country Transit Rule may now be applied to everyone else entering this country, see East Bay, 140 S. Ct. at 3, officials at our already overburdened border will now face the additional task of exempting a 26,000-person subclass from the Rule.
To hear the majority tell it, this will be straightforward. All that is needed are "fairly simple factual determinations." Maj. Op. 1007-08. The record refutes that characterization. The majority opinion turns on the government's supposed ability to rely upon certain lists of metered persons prepared by different groups in Mexico, lists the majority says border officials could use to identify those persons who had been metered prior to July 16, 2019. Id. at 1008-09. The majority goes so far as to assert that the government has in fact relied on these lists in the past, and that the government's failure to create its own lists of metered aliens is the government's own fault. Id. at 1008.
The record does not support these assertions. What the record instead reveals is that based on materials that plaintiffs themselves have put forward in this litigation—including expert opinion—the various lists are highly unreliable and underinclusive. The government represents that it does not view the lists as reliable. Given plaintiffs' own positions on the lists in this litigation, it cannot be that the government should be expected to rely upon them in complying with the district court's order.
The district court's injunction does not require "fairly simple factual determinations." Maj. Op. 100708. It instead creates an administrative dilemma of the highest order, across every port of entry at the United States-Mexico border. Although the majority dismisses it as "the supposition 1036*1036 of

some officials," Maj. Op. 1008-09, the government has come forward with the declarations of highranking immigration personnel attesting to the serious problems of administration and delays that the district court's injunction will cause. The majority therefore errs in concluding that the government's showing of irreparable harm is "weak." Id. at 1010. The record shows that the government has made a more than sufficient showing of irreparable harm, warranting a stay.
A
I must first address the majority's claim that the irreparable harm here is "self-inflicted" based on "the government's own failure to keep records of asylum seekers who have been metered." Maj. Op. 1008. In the majority's view, "[t]hat the government's asserted harm is largely self-inflicted `severely undermines' its claim for equitable relief." Id. at 1008. This position is not justified and improperly substitutes the court's judgment for that of immigration officials.
As an initial matter, nothing required the government to maintain lists of persons who approached the United States border but could not enter due to metering. Neither plaintiffs nor the majority cite any statute, regulation, or other requirement imposing such a record-keeping obligation. When rejecting the argument that plaintiffs' harm was self-inflicted because class members did not pursue asylum in Mexico, the majority holds that "the class members were not required to do so." Maj. Op. 1015 n.13. It is unclear why this same rationale would not apply to the government's alleged failure to create lists of metered persons, which it was not required to do either.
Equally unavailing is the majority's claim that the government's harm is self-inflicted because it was foreseeable. Maj. Op. 1008. The chain of events that would make this true is far too unlikely. The government would have had to presume that its metering practices, dating back many years, would be challenged and result in a novel decision holding that persons outside the United States could claim a violation of our asylum statutes. The government would then have had to predict the enactment of the Third Country Transit Rule two years into this case. And it would then have to envision that the Supreme Court would allow this Rule to go into effect pending appeal, see East Bay, 140 S. Ct. at 3, but that the Rule could then be partially enjoined in a metering lawsuit that does not directly challenge it. It is hard to see how this unusual sequence could be regarded as foreseeable such that the government must now be faulted for failing to prepare lists that it was not required to prepare in the first place.
Finally, the majority ignores evidence in the record as to the government's reasons for not creating such lists. As Randy Howe, Executive Director for Operations, Office of Field Operations, U.S. Customs and Border Protection, has explained, CBP officers' interactions with persons at the border line are "not intended to be a detailed encounter; memorializing a great deal of information at this time would be not only impracticable but potentially dangerous to the personnel and the port." As Mr. Howe explains in greater detail,
Personnel at the limit line are in a constant or near-constant cycle of encountering dozens or hundreds of travelers a day, some of whom may be seeking to cause harm or evade the law. For these reasons, forcing limit line personnel to halt their present duties and memorialize the counter, when those travelers may or may not need interpretative assistance to engage in thorough dialogue, including collecting biographical information about that individual or family unit (along with at least some measure 1037*1037 of verification), would weaken the operational posture of the remainder of the limit line and could pose a threat to safety.
The majority opinion tries to shift responsibility back to the government by referencing the fact that at "one [port of entry]" "around the end of 2016," CBP officials were instructed to provide aliens with

pieces of paper identifying appointment times "if possible." Maj. Op. 1007-08; id. at 1004 n.1. The record shows that the government ultimately concluded that "giving out tickets would just lead to a lot of fake tickets and a lot of misuse of [the] system." The government's official metering guidance thus prohibited the provision of any "tickets or appointments" or other means of scheduling persons for entry.
The difficulty the government would face in creating records of persons approaching the border during periods of metering was also exacerbated by evidence in the record of large groups of immigrants approaching U.S. ports of entry. Plaintiffs' expert witness claims, for example, that certain formal metering guidance was issued in response to "surge events," such as a large group of approximately 1,500 asylum seekers traveling through Mexico toward the United States in 2018. The majority opinion fails to appreciate the reality on the ground, which is that documenting large volumes of persons during periods of metering would raise significant logistical and other issues.
These safety and logistical issues easily distinguish this case from the cases the majority cites involving self-inflicted harms. In Hirschfeld v. Board of Elections in City of New York, 984 F.2d 35 (2d Cir. 1993), the court denied a stay because of the applicant's "inexcusable delay" in seeking it, which reflected a "misuse of the judicial process." Id. at 37-39. In Second City Music, Inc. v. City of Chicago, 333 F.3d 846 (7th Cir. 2003), the court denied a stay of a licensing requirement because the applicant had not even sought the "readily available license" and "would incur no detriment by the act of applying" for it. Id. at 849-50. And in Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828 (3d Cir. 1995), the court held that the defendant law firm seeking an injunction could not show irreparable injury from its insurer settling a claim, because the law firm had contracted with the insurer to do just that. Id. at 839. These cases all involved easily foreseeable or readily avoidable harms. And none involved situations remotely as dynamic or difficult as the United States' border with Mexico.
B
The majority asserts that because the government supposedly "relied on [the waitlists] to facilitate the metering policy," "[n]o reason appears why the lists are adequate for those purposes but must be entirely disregarded in identifying who came to the border when for purposes of complying with the district court's injunction." Maj. Op. 1009. The record does not support either conclusion.
It is not accurate to claim, as the majority does, that "the record establishes that the government has been using [the waitlists] in determining the order in which applicants for asylum are allowed to enter, submit their asylum applications, and undergo credible fear interviews." Maj. Op. 1009 (emphasis added). For this proposition the majority cites the report of plaintiffs' expert witness, Stephanie Leutert. But the relevant portions of that report, which may be found at pages ER 9961001 of plaintiffs' excerpts of record, do not support the majority's statement.
After discussing metering practices generally and the creation of certain lists in Mexico, Ms. Leutert states that
1038*1038 Once asylum seekers get on a waitlist, they have to wait until their number is called. Every day, a CBP official communicates the number of people that they will receive that day to an individual in Mexico. This exact process depends on the port of entry and the waitlist structure in each Mexican city. According to list managers in cities such as Ciudad Juárez, Ciudad Acuña, and Piedras Negras, CBP officers directly call the Mexican individuals who manage the lists.

As this passage shows, Ms. Leutert's report does not say that the government is relying upon the waitlists themselves (and certainly not all of them), but rather that when capacity frees up at a port of entry, CBP will contact some of the persons who allegedly manage the lists to let them know. The Leutert report also does not suggest, as the majority claims, that the government has been using the waitlists "in determining the order in which applications for asylum are allowed to enter." Maj. Op. 1008-09 (emphasis added). Ms. Leutert offers no opinion as to whether CBP is relying upon persons managing the waitlists to provide names in a particular order. And there would be obvious questions whether Ms. Leutert would even have a basis to offer such an opinion, particularly across the many different ports of entry.
The majority also states that "[t]he district court concluded that `CBP relied on these lists to facilitate the process of metering,' and the record supports this conclusion." Maj. Op. 1003-04 (quoting Al Otro Lado, 2019 WL 6134601, at *15). What the district court relied upon for this statement, and what the majority relies upon as well, are the declarations of Nicole Ramos of Al Otro Lado and J.R., an asylum-seeker from Cuba. Id. The majority provides no explanation as to why an employee of Al Otro Lado or a person seeking entry into this country can be the authority on what CBP does or does not rely upon. But even so, these declarations on their face do not support the notion that CBP has broadly relied on lists of metered persons that various outside groups have generated, or that it has relied on these lists to sequence entry of persons in any particular order.
Ms. Ramos, Al Otro Lado's Border Rights Project Director, states only that Grupo Beta maintains a list and that "CBP communicates its daily capacity to Grupo Beta, which uses that information to call the appropriate numbers from the top of the list." Ms. Ramos is here referring to only one group (Grupo Beta, a Mexican governmental entity) for one port of entry (Tijuana). Her declaration thus does not support the majority's description of what CBP supposedly does "[a]t each" port of entry. Maj. Op. 1003-04. Nor does it support the majority's suggestion that CBP's purpose in contacting Grupo Beta was to receive asylum seekers in a certain order. Once again, that CBP would contact Grupo Beta to let it know about capacity at a border station is not the same as CBP relying upon the accuracy or ordering of Grupo Beta's list—a list that Ms. Ramos herself says was subject to "corruption," a point I will discuss further below.
J.R.'s declaration likewise does not support the majority. J.R. is a Cuban citizen who sought to enter the United States at Brownsville, Texas and was put on a waitlist. According to J.R., "[t]he list was controlled by Mexican immigration officials, and they were in touch with U.S. officials who would ask every day for a certain number of people to present themselves at the U.S. offices." J.R.'s declaration is limited to one port of entry and also does not support the majority's position that CBP "has been using [the waitlists] in determining the order in which applicants for asylum are allowed to enter." Maj. Op. 1009.
1039*1039 Nor is it correct, as the majority opinion states, that through the use of the "terms" "metering and queue management," the "government recognized" and "impl[ied]" "the practical need to identify which applicants had appeared at the border and in what order." Maj. Op. 1008. This point has little to do with whether the government previously relied upon waitlists that others generated. But even so, the terms "metering" and "queue management" do not have the implication that the majority suggests. To the contrary, government witnesses have explained that metering was not a "scheduling system," but a means of "controlling the flow based on our operation."
The upshot is that the government's ability to comply with the injunction without irreparable harm cannot depend upon what the government has already done (supposed reliance on the lists) or not done (alleged self-inflicted failure to create its own lists). Instead, it must turn on whether the lists are themselves capable of being used to comply with the district court's order. I turn now to that issue.

C
Can waitlists that various groups in Mexico prepared be used to separate out the 26,000 class members from all other asylum seekers who would otherwise be subject to the Third Country Transit Rule? On this critical point, the majority says very little. It acknowledges that the lists are "not entirely reliable," but says there is no reason why the lists "must be entirely disregarded in identifying who came to the border when for purposes of complying with the district court's injunction." Maj. Op. 1009. But the question is not whether the lists should be "entirely disregarded." It is whether the lists can be relied upon to any meaningful extent, so that the government would not be put to a significant burden of determining whether each asylum applicant is a class member. The record does not support the majority's apparent theory that the government can easily comply with the district court's injunction by relying upon the waitlists.
I conclude this based on materials that plaintiffs themselves have put forward, in an evident effort to support their underlying claims about metering. This includes, but is not limited to, the expert report of Stephanie Leutert, the Director of the Central America & Mexico Policy Initiative at the Strauss Center for International Security and Law at the University of Texas. The point here is not to credit any particular evidence, but to show that the government should not be expected to rely upon the various lists when plaintiffs in this case have sharply impugned the integrity of those very lists.
At the outset, it is important to recognize that there is no single waitlist, but many different waitlists in many different locations along the Mexico border. This begins to show some of the serious problems with using the lists to comply with the district court's injunction. According to plaintiffs' expert, Ms. Leutert, waitlists are "in place in every city with waiting asylum seekers." Ms. Leutert formally identifies as of November 2019 twenty-two such waitlists, which were in place in eleven different border locations. According to her report, some areas have more than one list. Nuevo Laredo, opposite Laredo, Texas, has six different lists. Brownsville has three.
According to Ms. Leutert, lists are maintained by a variety of different groups, such as "the asylum seekers themselves, Mexican government officials, or humanitarian workers." The details vary in every location. For example, a Strauss Center report upon which plaintiffs and Ms. Leutert rely indicates that in Nuevo Laredo, six different shelters each operate their own list, with "[t]he shelters select[ing] which asylum seekers will cross" into the 1040*1040 United States. In Tijuana, the list operating as of July 16, 2019 was a physical notebook containing tens of thousands of names, with asylum seekers themselves serving as "list managers." In Reynosa, Mexico, and again based on the same report, approximately 3,600 asylum seekers are organized into different lists for single men, single women, families, and pregnant women.
As a result, and contrary to the apparent assumption in the majority's opinion, according to Ms. Leutert, the "asylum waitlists have no standardized procedure or structure," and "there is no standardized Mexican or U.S. regulation of the asylum waitlists nor their managers." That is the case even as to lists that the Mexican government maintains. Ms. Leutert reports that "[d]espite Mexican government entities managing the lists in certain cities, there does not appear to be any standardized guidance," which "is evidenced by the different list formats and processes in different cities even when the same federal government agency is running the asylum waitlist." The majority does not explain whether any or all of the different waitlists would indicate when a person was metered, much less reliably so across every border location.
Equally problematic, plaintiffs maintain that for many different reasons the waitlists are underinclusive of persons who were metered. A December 2018 Strauss Center report—which lists Ms. Leutert as the lead author—notes that various lists were not enacted until the summer of 2018,

and so would evidently not capture persons metered before then. In addition, according to Ms. Leutert, "the lack of regulations means that some cities can stop asylum seekers from joining waitlists altogether." In a border town opposite Del Rio, Texas, for example, "the asylum waitlists for both individuals and families have been `closed' since March 2019." There are other reasons the lists are underinclusive as well. An August 2019 Strauss Center report (upon which Ms. Leutert also relies) describes that in Matamoros, Mexico, "there have been reports that asylum seekers who lack documentation and legal status in Mexico are being barred from signing up on the list, and are instead being deported." There are other similar examples in the record involving other border locations.
Plaintiffs further put forward evidence that the lists are underinclusive for more malign reasons. Ms. Leutert reports that there are "no controls to guarantee that these waitlists are being run transparently or without corruption," and that corruption is an issue. Ms. Leutert recounts that "some list managers charge asylum seekers to get on the asylum waitlist, including in Piedras Negras, Reynosa, and Matamoros." Ms. Leutert also relies upon a news article reporting that when an individual in Tijuana misses his number being called, the individual may be reassigned a new number at the end of the line. Her expert report also recounts allegations in Tijuana "that black asylum seekers were at times excluded from waitlists, and as such would not be counted."
A declaration from Nicole Ramos, Al Otro Lado's Border Rights Director, gives deeper insight into some of these issues in Tijuana, where Grupo Beta runs the list. As with Ms. Leutert's expert report, the plaintiffs relied upon Ms. Ramos' declaration in seeking the injunction at issue. The majority also specifically references Grupo Beta's "`formalized list,'" thereby suggesting it is reliable. Maj. Op. 1003-04. But Ms. Ramos' declaration tells a different story.
An entire heading in Ms. Ramos' declaration is that "The Waitlist in Tijuana, Mexico is Underinclusive." Grupo Beta's rules "require that each asylum seeker 1041*1041 present identification, which has prevented asylum seekers who lack identification from being added to the list." Ms. Ramos reports that these requirements "disproportionately affect Black migrants," who are less likely to possess identifying documents. Like Ms. Leutert, Ms. Ramos cites "numerous reports of corruption of the list administered by Grupo Beta," including "several asylum seekers who paid to have their names added to the list while still in South America."
Given everything plaintiffs have said about the various lists, it is difficult to understand why the government should now be expected to rely upon them, particularly for purposes of complying with a court order. A declaration from Ashley Caudill-Mirillo, the Deputy Chief of the Asylum Division with U.S. Citizenship and Immigration Services (USCIS) who "oversee[s] all Asylum Offices nationwide," explains that "[e]ven if USCIS had access to any lists[ ] purportedly maintained by shelters or otherwise," "USCIS has no definitive way to verify the accuracy or authenticity of any such lists." As a result, Ms. Caudill-Mirillo attests, "asylum officers would still need to question the interviewees to assess the veracity of any documentation provided and determine whether or not they are class members."
The Supreme Court has reminded us that "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." United States v. FloresMontano, 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004). The government personnel in charge of managing our borders and maintaining their safety are surely due some degree of deference on the operational issue of whether certain lists are reliable for determining if asylum seekers were metered prior to July 16, 2019. See, e.g., Tabbaa v. Chertoff, 509 F.3d 89, 106 (2d Cir. 2007) ("[S]ome measure of deference is owed to CBP due to its considered expertise in carrying out its mission of protecting the border.").

The lists may be the product of well-meaning efforts to help those in need, or the unfortunate result of persons taking advantage of the downtrodden. But given plaintiffs' own positions on the various lists, I am hard-pressed to understand how the majority can conclude that the government can be expected to use them, so that its burden in complying with the district court's injunction would be minimal.
D
With the lists unable to ease the government's burden, the enormity of the government's task in complying with the district court's injunction pending appeal reveals itself in stark relief. Just this Term, the Supreme Court reiterated that patrolling our border with Mexico is "a daunting task." Hernandez v. Mesa, ___ U.S. ___, 140 S.Ct. 735, 746, 206 L.Ed.2d 29 (2020). Today's decision makes this work only more daunting.
Immigration officials at an already overburdened border must now somehow identify the 26,000 persons among the easily hundreds of thousands more who, per a court order, cannot be subject to the Third Country Transit Rule. CBP officers must determine those asylum seekers who previously approached a port of entry and were turned away due to metering, a practice that took place over a period of years and at many different entry locations. Immigration officers will have to make these determinations without reliable records of who previously approached border limit lines or when they may have done so. And officials must undertake this effort at every United States port of entry across the southern border, as to persons who frequently lack proper documentation and who speak a diversity of languages. As 1042*1042 CBP's Randy Howe explains, "[w]ere any individual to come forward and assert that they had been encountered at the limit line, CBP would have no way to either confirm or refute that individual's own statements."
The result is that as immigration officials inspect people every day in locations from San Diego to Brownsville, they will have to undertake an entirely new and unfamiliar inquiry to determine if persons were previously metered. The government has submitted declarations from high-ranking immigration personnel attesting to the serious problems this will create at the border. This includes CBP's Mr. Howe, who oversees 23,000 immigration employees at 20 major field offices and 328 U.S. ports of entry. Based on his three decades of service in our country's immigration system, Mr. Howe explains that based on the lack of documentation, "there is no way for CBP to determine who may or may not have been encountered at the limit line historically. Indeed, there is no way to even calculate, with any degree of accuracy, how many individuals have been encountered in the limit line."
A declaration from Ashley Caudill-Mirillo, the USCIS official who oversees all Asylum Offices across the country, gives color to what immigration officers on the ground will need to do to even attempt to comply with the injunction. CBP officers at the border will be required to question asylum applicants to determine if they are members of the 26,000-person subclass. Ms. Caudill-Mirillo explains that this additional questioning will lengthen credible fear interviews, which in turn reduces the number of interviews that can be conducted, prolonging wait times at the border. Some applicants are likely to reschedule their interviews to obtain proof of past metering, and their interview slots may go then go unfilled. Because "[m]ost individuals are detained throughout the credible fear process," longer processing times will lead to longer periods of detention in Immigration and Customs Enforcement (ICE) or CBP custody.
Ms. Caudill-Mirillo further explains how additional problems arise when it comes to persons who already went through credible fear screening interviews, where the Third Country Transit Rule was applied but where the person has not yet been removed from the United States. In coordination with

ICE, detained persons would need to be identified and then re-interviewed to determine if they are class members. If persons turn out to be class members, the credible fear interview process would need to be conducted anew. Ms. Caudill-Mirillo reports that USCIS in 2019 received over 100,000 credible fear referrals. Complying with the district court's injunction as to persons who had already gone through this process would only add to the irreparable harm.
The irreparable harm would extend to proceedings before immigration judges. As a separate declaration from Assistant Chief Immigration Judge Sirce Owen explains, if USCIS goes through the above-described process and issues a new negative credible fear determination, the applicant "will again be entitled to immigration judge review." Immigration judges will then be tasked with evaluating the applicant's membership in the subclass and conducting further reviews of credible fear determinations. The bottom line is that as the government's declarations amply demonstrate, the district court's injunction will have a domino effect at the border, imposing new and difficult requirements on an immigration system that is constantly struggling to keep up.
I disagree with the majority's refusal to recognize the irreparable harms that the government's declarations make plain, and which resonate based on any reasonable 1043*1043 understanding of how our immigration process works. To cast off the declarations as the mere "supposition of some officials," as the majority does, Maj. Op. 1022, fails to acknowledge that the government's declarants are high-ranking persons with a collective decades of experience dealing with some of the most intractable problems at our border. "[G]overnance of immigration and alien status is extensive and complex," and trained immigration officials play a "major role" in "determining the admissibility of aliens and securing the country's borders." Arizona v. United States, 567 U.S. 387, 395, 397, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). I therefore believe the views of the government declarants in this case should not be so lightly cast aside. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 27, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Nor is there anything wrong or insufficient in this context with declarations that set forth the anticipated effect of an injunction. See id. at 28, 129 S.Ct. 365 ("The lower courts failed properly to defer to senior Navy officers' specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy's SOCAL training exercises."). To minimize the government's declarations as setting forth only "guesses concerning the likely burden of ascertaining class membership," as the majority does, does not seem at all fair. Maj. Op. 1008-09. The majority does not question the declarants' qualifications or their explanation for how the district court's injunction will generally affect processes at the border. The declarations are not based on guesswork, but the informed views of experienced personnel who set forth a valid and detailed basis for their stated concerns.
I also do not find persuasive the majority's quibbles with the government declarants' time estimates for the additional questioning of asylum applicants that the district court's injunction will necessitate. See Maj. Op. 1007-08, 1008-09. I find it difficult to substitute our judgment on such operational issues for that of immigration officials who have a greater on-the-ground understanding of how much time particular lines of questioning in asylum interviews will take. But the debate over minutes is not a helpful one, because it cannot be denied that the district court's injunction will require immigration officials to conduct an entirely new line of inquiry to reach an entirely new type of determination about past metering.
The majority notes that in one asylum interview, USCIS was able quickly to determine that the applicant was not a subclass member. Maj. Op. 1008-09 & n.8. But in that case, the applicant clearly stated that he had not tried to enter the United States prior to October 2019, and so by his own admission was not a member of the class. Id. As the majority acknowledges with considerable understatement, "[m]ore time may be needed to establish that someone who claims to be a member

of the class actually is." Id. at 1009. Once it becomes widely known that persons can avoid the Third Country Transit Rule if they can claim they were metered prior to July 16, 2019, one can expect many people to claim class membership during their asylum interviews. Whether or not these assertions would be bona fide, the point is that they will take time for immigration officials to review and verify, at a substantial cost to the overall system.
The majority does not dispute that frustrating the government's ability to process persons at the border can create irreparable harm. See, e.g., Innovation Law Lab, 924 F.3d at 510. Indeed, we previously granted an administrative stay in this case because "[p]rohibiting the government from applying [the Third Country Transit Rule] to the proposed class members could 1044*1044 cause complications at the border." Al Otro Lado v. Wolf, 945 F.3d at 1224. Now, the majority claims that this case is akin to Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017). Maj. Op. 1008. The comparison to Hernandez, however, is inapt.
In Hernandez, we held that a district court did not abuse its discretion in entering an injunction that required immigration officials to consider a non-citizen's financial circumstances in setting the amount of bond. Hernandez, 872 F.3d at 982-83. We determined that the government had not demonstrated irreparable harm because the government already had discretion to consider a noncitizen's financial circumstances, and therefore "the district court's injunction imposes only a minor change on the preexisting bond determination process." Id. at 995. Considering these financial circumstances was also "not overly complicated or complex." Id. (quotations omitted).
As this description of the case shows, the majority is not correct that the asserted diversion of resources in this case "is no more persuasive as significant irreparable harm than it was in Hernandez." Maj. Op. 1008. Suffice to say, requiring the government to identify 26,000 persons at the southern border who were previously metered at numerous ports of entry over a period of years is considerably more complicated and burdensome than requiring the government to consider a noncitizen's financial circumstances during bond hearings. Hernandez, unlike here, also did not involve an injunction that imposed collateral consequences on other aspects of the immigration system.
There is a recognized immigration crisis at our southern border. City & Cty. of S.F., 944 F.3d at 808 (Bybee, J., concurring); East Bay Sanctuary Covenant, 932 F.3d at 774. Hernandez did not implicate it; this case does. The government has demonstrated that complying with the district court's injunction will create irreparable harm.
V
The final stay factors are "whether issuance of the stay will substantially injure the other parties interested in the proceeding" and "where the public interest lies." Nken, 556 U.S. at 434, 129 S.Ct. 1749. For the same reasons I have already set forth above, these factors favor the government. See also Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("The government's interest in efficient administration of the immigration laws at the border is also weighty.").
The majority concludes otherwise based on harms plaintiffs claim they will experience from the Third Country Transit Rule and metering. Maj. Op. 1014-15. But the validity of the Third Country Transit Rule is not at issue here, and the same arguments plaintiffs now make about the harm this Rule allegedly causes were also made in East Bay, where the Supreme Court stayed the injunction and allowed the Rule to go into effect. With respect to metering, the majority repeats the point that the combination of metering and the Third Country Transit Rule creates a "`quintessentially inequitable'"

situation. Maj. Op. 1003-04. But the problem once again is that there has been no determination that metering is unlawful.
In a similar vein, the majority endorses the district court's view that class members "relied to their detriment on the government's representations," because class members "`returned to Mexico reasonably believing that if they followed these procedures, they would eventually have the opportunity to make a claim for asylum in the United States.'" Maj. Op. at 1015 (quoting Al Otro Lado, 2019 WL 6134601, at *19). But there is no indication that the government informed persons who 1045*1045 were metered that their asylum applications would be adjudged under the law that existed at the time of metering. The district court's analysis on this point again assumes that metering is invalid. The injunction cannot be justified on that basis.
* * *
When the Supreme Court allows an immigration rule to go into effect nationwide pending appeal, it is not for litigants or lower courts to find creative and legally unjustified ways to circumvent that ruling. The problems at our border are undeniable, but the policy issues they raise are committed to other branches of our government. Our review is limited to evaluating immigration rules under law. And in this case, the district court's injunction was wrong as a matter of law. Because the injunction works a radical and improper expansion of our asylum laws and will create irreparable harm at a border that is already under great strain, the injunction should have been stayed pending appeal. I respectfully dissent.
[1] Under the initial metering practices instituted around the end of 2016, CBP officials at one POE were instructed "to provide the alien with a piece of paper identifying a date and time for an appointment" "if possible." Although there were several documented instances of migrants being turned back at that time, "[n]one of the asylum seekers turned back from these ports of entry were provided with appointments."
[2] In separate litigation challenging the validity of the Rule, the Supreme Court on September 11, 2019 stayed a district court's preliminary injunction precluding application of the Rule "pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such a writ is sought." Barr v. E. Bay Sanctuary Covenant, ___ U.S. ___, 140 S. Ct. 3, 204 L.Ed.2d 1189 (2019) (mem.). This court heard argument on December 2, 2019 on the government's appeal of the injunction; the case is presently pending in this court. E. Bay Sanctuary Covenant v. Barr, No. 19-16487. We note that the outcome of the East Bay appeal could affect whether the issue before us remains a live dispute.
Contrary to the Dissent's suggestion, see Dissent at 1023-25, the district court's injunction in this case is not precluded by the Supreme Court's stay of the injunction pending appeal in East Bay. That stay order, like any other, is not a definitive resolution of the merits, and it involved the substantive validity of the Rule, not application of the Rule, if substantively valid, to the provisionally certified class in the particular circumstances of this case.
[3] Al Otro Lado asserts that "nearly all provisional class members are barred from even applying for asylum in Mexico." The government argued in the district court that class members could present evidence of Mexico's rejection of their asylum application, but made no representation that such a rejection would in its view satisfy the Rule, which requires a "final judgment" denying protection in another country. 8 C.F.R. § 2018.13(c)(4)(i). We do not decide whether Mexico's rejection of an asylum application under its 30-day bar would be a "final judgment" satisfying the Rule.
[4] The government does not challenge the district court's provisional certification of the class for purposes of the preliminary injunction. We have approved provisional class certification for purposes of preliminary injunction proceedings. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041-43 (9th Cir. 2012) (affirming provisional class certification for purposes of a preliminary injunction).
[5] A party may move this court for a stay pending appeal if it first sought a stay in the district court, and the court "denied the motion or failed to afford the relief requested." Fed. R. App. P. 8(a)(2)(A)(ii). We entertain the stay motion here even though the district court has not yet ruled on it, because the delay in the district court was sufficiently long to fall under Rule 8(a)(2)(A)(ii).

[6] The Dissent questions the district court's authority to grant the injunction in this case because the Rule is not challenged in Al Otro Lado's operative complaint. See Dissent at 1022-25. But it then acknowledges the answer. Id. at 1024-25. Having concluded that it would interfere with the court's jurisdiction for the Rule to extinguish some provisional class members' asylum claims while they sought access to the asylum process through their metering challenge (even if other metered asylum seekers' claims would survive), the district court properly issued an injunction under the All Writs Act. See 28 U.S.C. § 1651(a) (injunction may issue when "necessary or appropriate in aid of [the court's] jurisdiction"); F.T.C. v. Dean Foods Co., 384 U.S. 597, 604, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966) (a court has "express authority under the All Writs Act to issue such temporary injunctions as may be necessary to protect its own jurisdiction"); Michael v. I.N.S., 48 F.3d 657, 659 (2d Cir. 1995) (All Writs Act injunction of a prisoner's deportation proper to preserve the court's jurisdiction over the pending appeal). The district court also properly concluded that the operative complaint alleged an "unlawful, widespread pattern and practice of denying asylum seekers access to the asylum process." Because the injunction sought to preserve class members' access to the asylum process, there was a sufficient "relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint," Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015), that a preliminary injunction was a proper exercise of the court's equitable powers.
[7] We deny Al Otro Lado's motion to strike the Caudill-Mirillo and other declarations, Dkt. 23. Even including the challenged declarations, the government either does not show irreparable harm or makes a marginal showing, insufficient in light of the failure to make a particularly strong showing of likelihood of success on the merits. See section I.B., infra.
[8] Q: "What day did you cross the border from Mexico into the US?"
A: "10/27/2019."
Q: "Did you ever seek to enter the United States before that time? When?"
A: "No sir.".
[9] Because class members who have already had credible fear interviews should have been considered for withholding even if the Rule was applied to them, the government is unlikely to face an outsized additional burden in determining whether they are eligible for asylum with the preliminary injunction in place. These class members may still be in the process of having their claims reviewed, as an asylum officer's negative fear determination is reviewable by an IJ, 8 C.F.R. § 1208.30(g), and the IJ's determination is reviewable by the Ninth Circuit. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016).
[10] The Dissent asserts that because Representative Smith, in language elided from the district court's block quotation and ours, described a person who "penetrated several hundred yards or even further into United States territory" as an example of an "arriving alien," the term must include only aliens within the United States. See Dissent at 1031-32. But this reading is inconsistent with the comments themselves, which expressly recognize several "stage[s] of [the arriving] process," and that one such stage includes aliens "attempting to enter." See Implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. 17-18 (1997).
[11] We note that the government may be right that, because the class members were "metered," they will arrive a second time when they get to the top of the waitlist and are finally admitted and processed. And because the district court has not yet decided whether the delay in processing the class member's asylum requests and requiring them to stay in Mexico in the meanwhile is itself violative of their statutory or constitutional rights, we assume for present purposes that it was not. Neither of these considerations, however, affects whether the first arrival triggered a statutory right to be considered for asylum even if that consideration was not immediate.
[12] The provisionally certified class is defined to include only those asylum seekers who were involuntarily turned away "and who continue to seek access to the U.S. asylum process." Thus, there can be no argument that class members abandoned their statutory right to submit an asylum claim. In contrast, the Dissent's hypothetical asylum seeker who is metered "and then returns to a United States port of entry many years later," see Dissent at 1032-33, would likely have voluntarily abandoned their right to submit an asylum claim by waiting many years to return.
[13] The government argues that this harm is self-inflicted because class members chose not to pursue asylum in Mexico. But the class members were not required to do so when they approached the POE to apply for asylum, and some class members face Mexico's time bar because they relied on the government's representations that they could apply for asylum in the United States if they waited in line.

[1] The district court and plaintiffs refer to the Rule as the "Asylum Ban." But the Rule does not ban asylum. I will therefore refer to the Rule as the Third Country Transit Rule, except when quoting to the district court or plaintiffs' submissions.

 
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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

8

AL OTRO LADO, INC., et al.,
9

Case No.: 17-cv-02366-BAS-KSC

Plaintiffs, ORDER:
10

v.
11
CHAD F. WOLF, et al.,
12

(1) GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [ECF No. 390];

Defendants. (2) DENYING AS MOOT DEFENDANTS’

13

MOTIONS TO STRIKE

[ECF No. 411, 425];
14

AND
15

(3) TERMINATING AS MOOT THE

16

PARTIES’ MOTION TO SEAL

[ECF No. 432]
17

18

Before the Court is Plaintiffs’ Motion for Class Certification (“Motion”). (ECF No.

19 390.) Plaintiffs request that the Court certify a class of all noncitizens who seek or will

20 seek to access the U.S. asylum process by presenting themselves at a Class A port of entry

21 (“POE”) on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum

22 process by or at the instruction of U.S. Customs and Border Protection (“CBP”) officials

23 on or after January 1, 2016. Plaintiffs further request that the Court certify a subclass of

24 all noncitizens who were or will be denied access to the asylum process at a Class A POE

25 on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January

26 1, 2016. For the reasons explained below, the Court GRANTS Plaintiffs’ Motion,

27 DENIES AS MOOT Defendants’ Motions to Strike, and TERMINATES AS MOOT

28 the related Motion to seal.

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1 I. RELEVANT BACKGROUND

2

On November 13, 2018, Plaintiffs filed the operative Second Amended Complaint

3 (“SAC”) in this action seeking class-wide injunctive and declaratory relief regarding

4 CBP’s purported pattern and practice of systematically denying asylum seekers access to

5 the asylum process along the U.S.-Mexico border. (See ECF No. 189.) Specifically,

6 Plaintiffs claim that “CBP refused to inspect and process” asylum-seekers in accordance

7 with the governing statute, which requires CBP officers to refer for an interview by an

8 asylum officer any noncitizens who arrive at POEs and “indicate an intention to apply for

9 asylum.” (Mem. of P. & A. in supp. of Mot. (“Mem. of P. & A.”) at 6–7, ECF No. 390-1

10 (citing 8 U.S.C. § 1225(b)).) Instead, Plaintiffs allege, CBP prevents asylum-seekers from

11 accessing the asylum process on the pretext that the POEs are at capacity, when its true

12 intent is to deter individuals from seeking asylum in the United States at all. (Id. at 13.)

13

First, Plaintiffs claim that in 2016, CBP officers engaged in “various means to turn

14 back asylum seekers arriving at Class A POEs on the U.S.-Mexico border”—including

15 lies, threats, intimidation and coercion, verbal abuse, physical force or obstruction, delays

16 and denials, and racial discrimination. (Mem. of P. & A. at 7; see also SAC ¶ 2.) Second,

17 Plaintiffs contend that as early as May 2016, Defendants began implementing a policy to

18 restrict the flow of asylum seekers at the San Ysidro POE. (SAC ¶ 51.) Pursuant to this

19 policy, CBP coordinates with the Government of Mexico to “control the flow” of asylum

20 applicants by limiting the number of intakes performed daily at POEs. (Id. ¶ 52.)

21 Noncitizens who attempt to seek asylum at POEs outside certain “intake periods” are given

22 “numbers with intake dates” and told to “remain in-line in Mexico” until their number is 23 called—a practice referred to as “metering.”1 (Id. ¶¶ 52–53.) Plaintiffs allege that CBP

24 has been metering asylum-seekers border-wide since November 2016. (Id. ¶¶ 55–57.)

25

Ultimately, according to Plaintiffs, Defendants announced the existence of a

26 “Turnback Policy” in spring 2018 “mandating that lower-level officials directly or

27

28

1 This process is also referred to as “queue management.” (Defs.’ Opp’n to Mot. (“Opp’n”) at 8, ECF No. 406.)

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1 constructively turn back asylum seekers at the border,” including through pretextual

2 assertions that POEs lack capacity to process asylum seekers. (SAC ¶¶ 3, 61–62, 65; see

3 also Metering Guidance, Ex. 1 to Defs.’ Opp’n to Mot., ECF No. 406-2.) Per this Metering

4 Guidance, CBP officers instruct asylum-seekers “to wait on the bridge, in the preinspection

5 area, or at a shelter until there is adequate space at the POE” or inform them that they

6 cannot be processed because the POE is “full” or “at capacity.” (SAC ¶ 3; Metering

7 Guidance at 1.)

8

Plaintiffs claim that CBP “continued to buttress the Turnback Policy” with the other

9 unlawful tactics, some of which were implemented independently of the Turnback Policy,

10 while others were “part of or incident to the Turnback Policy.” (SAC ¶¶ 62, 84.) In sum,

11 Plaintiffs’ allege that CBP officials commit the following acts to further their goal of

12 restricting access to the asylum process:

13

1) Misrepresent the state of the law, asylum-seekers’ eligibility, prerequisites for

14

asylum claims, or POE capacity (id. ¶ 85)2;

15

2) Threaten to detain, deport, arrest, ban, bring criminal charges against, or

16

physically harm asylum-seekers, or threaten to separate them from their

17

children, if they continue to pursue their asylum claims (id. ¶ 87)3;

18

3) Verbally and physically abuse asylum seekers (id. ¶ 89)4;

19

4) Coerce asylum seekers into recanting their alleged credible fear on video or

20

21 2 (See Decl. of Abigail Doe ¶¶ 13, 15, Ex. 9 to Decl. of Stephen Medlock (“Medlock Decl.”), ECF No.
22 390-11; Decl. of Beatrice Doe ¶¶ 10–12, 24, Ex. 10 to Medlock Decl., ECF No. 390-12; Decl. of Carolina Doe ¶¶ 18, 20, Ex. 11 to Medlock Decl., ECF No. 390-13; Decl. of Dinora Doe ¶¶ 9, 12, Ex. 12 to Medlock
23 Decl., ECF No. 390-14; Decl. of Ingrid Doe ¶¶ 15, 17, Ex. 13 to Medlock Decl., ECF No. 390-15; Decl. of Jose Doe ¶¶ 9, 18–19, Ex. 14 to Medlock Decl., ECF No 390-16; Decl. of Maria Doe ¶¶ 4, 9, Ex. 97
24 to Medlock Decl., ECF No. 390-99; see also Expert Report of Stephanie Leutert (“Leutert Rep.”) ¶ 45, Ex. 7 to Medlock Decl., ECF No. 389-9 (attesting that turnbacks from POEs are often accompanied by
25 messages that the U.S. was “not accepting any more people” and CBP was not “receiving people from Honduras”).)
26 3 (See Decl. of Abigail Doe ¶¶ 14–16; Decl. of Beatrice Doe ¶¶ 16, 21, 24; Decl. of Carolina Doe ¶¶ 19– 27 21; Decl. of Dinora Doe ¶¶ 16–17; Decl. of Jose Doe ¶ 11.)
4 (See CBP Report of Investigation, Ex. 5 to Medlock Decl., ECF No. 389-7; Decl. of Dinora Doe ¶¶ 16– 28 17; Decl. of Jose Doe ¶ 11.)

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1

withdrawing their applications for admission (id. ¶ 91)5;

2

5) Deny access to POEs without any explanation (id. ¶ 93)6;

3

6) Obstruct access to POEs by setting up “pre-checkpoints” that prevent asylum-

4

seekers from entering the POE building (id. ¶ 95)7;

5

7) “Meter” asylum seekers by limiting the number of individuals they process per

6

day, “routinely tell[ing] asylum seekers approaching POEs that in order to

7

apply for asylum, they must get on a list or get a number,” and preventing

8

asylum-seekers from coming to the POE “until their number is called which

9

can take days, weeks or longer” (id. ¶ 100)8;

10

8) Discriminate against certain asylum-seekers by denying access to those with

11

darker complexion or those from certain countries (id. ¶¶ 103–04).9,10

12

Plaintiffs argue that Defendants, through the above conduct, “single out asylum

13 seekers for treatment that applies to no other group of individuals seeking admission to the

14 U.S.” and that no statutory authorization or other lawful justification exists for the

15 underlying policy to turn away asylum-seekers from POEs. (Mem. of P. & A. at 1, 4, 7

16 (noting that it is undisputed that CBP officers must refer individuals seeking asylum for

17 an interview with an asylum officer or place them into removal proceedings where they

18 can raise an asylum claim before an immigration judge).)

19

20 5 (See Decl. of Abigail Doe ¶¶ 16–18; Decl. of Beatrice Doe ¶ 21; Decl. of Carolina Doe ¶¶ 23–27.)
21 6 (See Decl. of César Doe ¶ 11, Ex. 99 to Medlock Decl., ECF No. 390-11; Decl. of Victoria Doe ¶ 11, 22 Ex. 100 to Medlock Decl., ECF No. 390-102.)
7 (See Decl. of Roberto Doe ¶¶ 4–5, Ex. 73 to Medlock Decl., ECF No. 390-75; Decl. of Maria Doe ¶¶ 4, 23 9; Decl. of Juan Doe ¶¶ 6, 9, Ex. 101 to Medlock Decl., ECF No. 390-103; Decl. of Úrsula Doe ¶¶ 6, 9,
Ex. 102 to Medlock Decl., ECF No. 390-104; see also Dep. of Todd Owens 155:10–156:17, 274:7–8, Ex. 24 2 to Medlock Decl., ECF No. 389-4 (testifying that CBP officers were posted at the limit line or in the
middle of POE bridges); March 19, 2019 email, Ex. 15 to Medlock Decl., ECF No. 390-17 (concerning 25 dangers to CBP officers standing at bridge midpoint); Leutert Rep. ¶¶ 51, 60.)

26

8 (See Decl. of Roberto Doe ¶¶ 4–5; Decl. of Maria Doe ¶ 4; Decl. of Bianca Doe ¶¶ 8–9, Ex. 98 to Medlock Decl., ECF No. 390-100; Decl. of Victoria Doe ¶ 11; Decl. of Juan Doe ¶¶ 6, 9; Decl. of Úrsula Doe ¶¶ 6,

27 9; Decl. of Emiliana Doe ¶¶ 9–12, Ex 103 to Medlock Decl., ECF No. 390-105.)

9 (See Leutert Rep. ¶ 45; Decl. of Dinora Doe ¶ 12.)

28 10 The Court refers to these practices collectively as “turnbacks.”

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1

Based on these assertions, Plaintiffs now bring this Motion to certify: (1) a class of

2 asylum-seekers who were or will be denied inspection and access to the U.S. asylum

3 process at certain POEs due to these practices; and (2) a subclass of asylum-seekers

4 specifically denied access due to CBP’s metering practices. (Id. at 4.) Five of the Named

5 Plaintiffs—Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, and Ingrid

6 Doe—claim they were subjected to coercion or lies when CBP officials denied them access

7 to the asylum process at various POEs. The other eight Named Plaintiffs—Roberto Doe,

8 Maria Doe, Juan Doe, Úrsula Doe, Victoria Doe, Bianca Doe, Emiliana Doe, and César

9 Doe—allege that they were subjected to CBP’s metering policy.

10 II. LEGAL STANDARD

11

Federal Rule of Civil Procedure 23 governs the certification and maintenance of

12 class actions. Plaintiffs bear the burden of demonstrating that their proposed class and

13 subclass comport with both Rule 23(a) and (b). Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

14 338, 350 (2011); Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). A

15 plaintiff whose lawsuit meets the requirements of Rule 23 has a “categorical” right “to

16 pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.,

17 559 U.S. 393, 398 (2010).

18

Federal courts possess broad discretion over class certification under this Rule.

19 Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010) (“The decision to

20 grant or deny class certification is within the trial court’s discretion.”). A district court

21 must take the substantive allegations of the complaint as true but is also “required to

22 consider the nature and range of proof necessary to establish [the] allegations” of the

23 complaint. In re Coordinated Pretrial Proceedings in Petroleum Prod. Antitrust Litig.,

24 691 F.2d 1335, 1342 (9th Cir. 1982) (citing Blackie v. Barrack, 524 F.2d 891, 901 n.17

25 (9th Cir. 1975)). A court may therefore consider evidentiary submissions as part of its

26 Rule 23 analysis. United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. &

27

28

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1 Serv. Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 810 (9th

2 Cir. 2010).

3

However, a court has “no license to engage in free-ranging merits inquiries at the

4 certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466

5 (2013). “Merits questions may be considered to the extent—but only to the extent—that

6 they are relevant to determining whether Rule 23 prerequisites for class certification are

7 satisfied.” Id. at 466 (internal quotation marks omitted). Ultimately, “[t]he district court’s

8 class certification order, while important, is also preliminary” because “‘[a]n order that

9 grants or denies class certification may be altered or amended before final judgment.’”

10 Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1004 (9th Cir. 2018) (quoting Fed. R. Civ.

11 P. 23(c)(1)(C)).

12 III. ANALYSIS

13

Plaintiffs request that the Court certify a class consisting of:

14

all noncitizens who seek or will seek to access the U.S. asylum process by

15

presenting themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the

16

instruction of [CBP] officials on or after January 1, 2016.

17 (Mem. of P. & A. at 1.) Plaintiffs also request that the Court certify a subclass of “all

18 noncitizens who were or will be denied access to the U.S. asylum process at a Class A

19 POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after

20 January 1, 2016.” (Id.) The Court briefly addresses evidentiary issues before turning to

21 the class certification analysis.

22

A. Evidentiary Objections

23

Preliminarily, the Court addresses Defendants’ two Motions to Strike the

24 anonymous and pseudonymous declarations submitted in support of Plaintiffs’ Motion and

25 Reply briefs. (See ECF Nos. 411, 425.) Defendants filed these motions after the parties

26 failed to reach an agreement about how to limit the disclosure of the declarants’ identifying

27

28

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1 information.11 Defendants now move to strike 23 declarations submitted in support of

2 Plaintiffs’ Motion for Class Certification and 44 declarations submitted in support of the

3 Reply on the basis that Plaintiffs never requested or received permission for these 4 unidentified declarants to proceed anonymously or pseudonymously.12 Because the Court

5 did not rely on the declarations to resolve the issues raised on class certification, the Court 6 DENIES AS MOOT Defendants’ Motions to Strike.13

7

B. Fed. R. Civ. P. 23(a)

8

Rule 23(a) provides that a class may be certified only if:

9

(1) the class is so numerous that joinder of members is impracticable; (2)

there are questions of law or fact common to the class; (3) the claims or

10

defenses of the representative parties are typical of the claims or defenses of

the class; and (4) the representative parties will fairly and adequately protect

11

the interests of the class.

12 Fed. R. Civ. P. 23(a); see also Shady Grove, 559 U.S. at 398. Courts refer to the Rule

13 23(a) factors as “numerosity, commonality, typicality, and adequacy of representation.”

14 Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). Plaintiffs generally

15 bear the burden to show that their proposed subclass “independently meet[s] the

16 requirements for the maintenance of a class action.” Officers for Justice v. Civil Serv.

17 Comm’n, 688 F.2d 615, 630 (9th Cir. 1982). The Court addresses each factor below and

18 finds that Plaintiffs have satisfied the Rule 23(a) requirements.

19

1. Numerosity

20

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

21 impracticable.” Fed. R. Civ. P. 23(a)(1). When a class action seeks only equitable relief,

22

23

11 Plaintiffs’ counsel twice offered to share the information with Defendants on the condition that Defendants agree to limit disclosure to only certain members of the defense team, but Defendants did not

24

agree to Plaintiffs’ terms. (See Decl. of Alexander Halaska in supp. of Mot. to Strike Mot. Decls. ¶¶ 4, 5, ECF No. 411-2; Decl. of Stephen Medlock in supp. of Opp’n ¶ 6, ECF No. 434-1.)

25 12 The Court previously allowed the Named Plaintiffs to proceed pseudonymously or anonymously in this

case without prejudice to future challenges by Defendants at later stages of the proceedings. (See ECF

26 No. 138.) Defendants do not seek to strike Named Plaintiffs’ declarations in their instant Motions to

Strike.

27 13 Because the Court did not consider any supporting documentation in conjunction with the Motions to

28

Strike, the parties’ Motion to Seal certain exhibits to and portions of Plaintiffs’ Opposition to Defendants’ Motions to Strike (ECF No. 432) is TERMINATED AS MOOT.

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1 as here, “the numerosity requirement is relaxed and plaintiffs may rely on the reasonable

2 inference arising from plaintiffs’ other evidence that the number of unknown and future

3 members” of a proposed class is sufficient to make joinder impracticable. Sueoka v.

4 United States, 101 F. App’x 649, 653 (9th Cir. 2004).

5

The numerosity requirement is generally satisfied when the class contains 40 or

6 more members. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.

7 1995); Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007). Plaintiffs

8 claim that this threshold is far exceeded in this case, noting that in Ciudad Juarez and

9 Tijuana alone, a total of 57,460 people placed their names on waitlist in 2018 and 2019.

10 (Mem. of P. & A. at 23.) Defendants concede that this satisfies the numerosity

11 requirements for the subclass, i.e., people who have been subjected or will be subjected to

12 CBP’s metering policy since April 2018. (Defs.’ Opp’n to Mot. (“Opp’n”) at 17–18, ECF

13 No. 406.)

14

However, Defendants argue that Plaintiffs’ class/subclass distinction is flawed

15 because “[m]etering is so distinct from the allegations of other ‘turnbacks’ that the 16 metering sub-class cannot properly be considered” derivative of the larger class.14 (Id. at

17 18.) Instead, Defendants contend, the two groups should be considered separate classes.

18 (Id.) Defendants claim that under this formulation, the proposed class covering turnbacks

19 other than metering does not meet the numerosity requirement. (Id.)

20

The Court finds no issue with the class/subclass structure. Metering, like the other

21 conduct alleged, is one way in which CBP officers turn asylum-seekers away from POEs

22 instead of referring them to asylum officers for credible fear interviews under 8 U.S.C. §

23 1225(b). The proposed class and subclass capture all individuals allegedly subject to some

24 form of CBP conduct—metering or otherwise—that denied them access to this statutory

25 process. The subclass of metered asylum-seekers, therefore, does not encompass anyone

26 who is not also in the class; every individual who was or will be denied access to a POE

27

28

14 Defendants’ challenge to numerosity overlaps considerably with their argument regarding commonality and typicality. The Court addresses these issues in Sections III.B.2 and III.B.3, infra.

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1 necessarily includes any individual subject to metering at a POE. C.f. Ashker v. Gov. of

2 State of Calif., No. C 09-5796 CW, 2014 WL 2465191, at *3 n.1 (N.D. Cal. June 2, 2014)

3 (treating a proposed subclass as a separate class where plaintiff’s definition of the subclass

4 “conceivably could encompass inmates who are not members of the proposed . . . class”).

5 Where a subclass is subsumed within larger class, as here, plaintiffs are required to show

6 only that the subclass was sufficiently numerous to satisfy numerosity requirement. See

7 McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 168 (S.D. Cal. 2019); see also

8 Langley v. Coughlin, 715 F. Supp. 522, 553 (S.D.N.Y. 1989) (finding allegations that

9 subclasses each encompassed anywhere between 30 and 250 class members were

10 sufficient to meet numerosity requirement for class and subclass certification). Plaintiffs

11 have done so. Thus, the Court finds numerosity is satisfied.

12

2. Commonality

13

The commonality requirement requires that there be “questions of law or fact

14 common to the class.” Fed. R. Civ. P. 23(a)(2). “What matters to class certification . . .

15 is not the raising of common questions—even in droves—but rather, the capacity of a

16 class-wide proceeding to generate common answers apt to drive the resolution of the

17 litigation.” Dukes, 564 U.S. at 350 (quotations omitted). “All questions of fact and law

18 need not be common to satisfy the [commonality requirement]. The existence of shared

19 legal issues with divergent factual predicates is sufficient.” Meyer v. Portfolio Recovery

20 Assocs., 707 F.3d 1036, 1041 (9th Cir. 2012) (quotations omitted). “The common

21 contention ‘must be of such a nature that it is capable of classwide resolution—which

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

23 validity of each one of the claims in one stroke.’” Id. at 1041–42 (quoting Dukes, 564 U.S.

24 at 350).

25

In this case, Plaintiffs argue that the commonality requirement is met because

26 Plaintiffs have shown that “that the existence and effects of turnbacks, including metering,

27 are systemic and capable of common proof.” (Mem. of P. & A. at 27.) With respect to

28 metering specifically, Plaintiffs state that it is undisputed that this practice applied to all

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1 POEs on the U.S.-Mexico border, regardless of capacity. (Id. at 26–27.) Plaintiff thus

2 identify the following common questions of law and fact in this action:

3

(1) whether Defendants are misinterpreting 8 U.S.C. §§ 1158(a)(1) and

1225(a)(1), (a)(3), and (b)(1)(A)(ii) to apply only to individuals who are

4

physically present in the U.S.; (2) whether Defendants denied noncitizens

arriving at Class A POEs on the U.S.-Mexico border access to the U.S.

5

asylum process; (3) whether class members have been “adversely affected or

aggrieved” by agency action taken by Defendants, 5 U.S.C. § 701; (4)

6

whether Defendants “unlawfully withheld or unreasonably delayed”

mandatory agency action; (5) whether Defendants denied class members due

7

process in violation of the Fifth Amendment; (6) whether Defendants’

conduct violated the universal and obligatory international norm of

8

nonrefoulement; (7) whether Defendants’ turnbacks are ultra vires; and (8)

whether the Turnback Policy was adopted and implemented based on pretext

9

and an unlawful desire to deter asylum seekers.

10 (Id. at 28.)

11

Defendants argue that Plaintiffs’ commonality argument fails for a number of

12 reasons. First, Defendants contend that Plaintiffs fail to “identify any common policy

13 beyond metering” regarding the broader class because the eight individuals allegedly

14 subjected to “turnbacks” other than metering describe conduct too disparate for purposes

15 of commonality. (Opp’n at 20–21.) Second, Defendants state that there are no questions

16 common to the metering subclass because Plaintiffs’ claims “turn on the highly-variable

17 factual circumstances unique to each port of entry,” some of which provide legitimate

18 reasons for turnbacks and thus require “an individual assessment of the officer’s use of

19 discretion.” (Id. at 22–23, 28–29.)

20

The Court is not persuaded. While Plaintiffs include eight discrete practices as the

21 factual bases for their claims,15 this does not defeat commonality where the claims

22 themselves are still capable of class-wide resolution. In this regard, Plaintiffs identify

23

24 15 There is evidence that the reason for these varied practices was due to the fact that despite turning

25

asylum-seekers away since 2016, CBP had no standard practice governing the way in which officers were to carry out that objective before the issuance of the Metering Guidance in 2018. (See CBP Report of

26

Investigation at 8–9 (noting that at the beginning of 2017, CBP’s instructions at the San Ysidro POE about stopping undocumented individuals were “conflicting and constantly changing” and while written policy

27

was to allow those claiming asylum into the U.S., “management instructed the [CBP officers] to direct [undocumented aliens] to the Beta group in Tijuana”); see also Leutert Rep. ¶¶ 45–47 (noting that “CBP

28

officials were not using a uniform explanation for why [turnbacks] were taking place” and that metering was not standardized in 2017–2018).)

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1 sufficient commonalities between all eight practices to generate common answers in this

2 case, including the following: (1) each practice is carried out by a single agency, CBP; (2)

3 each furthers the administration’s objective of restricting asylum access; (3) all members

4 of the class are subject to at least one of these practices; and (4) each practice is unlawful

5 as to every asylum-seeker, regardless of the unique circumstances at each POE. (See Mem.

6 of Ps. & As. at 27 (“[T]urnbacks, including metering, are illegal regardless of Defendants’

7 proffered justification for them.”).) Thus, Defendants’ argument that “potentially 8 legitimate factors” exist to justify individual instances of metering is inapposite.16 See

9 Parsons, 754 F.3d at 678 (holding that commonality existed where the inquiry into class

10 claims did not require a determination as to “the effect of those policies and practices upon

11 any individual class member (or class members) or to undertake any other kind of

12 individualized determination”).

13

What remains for the Court to resolve on the merits is whether these practices

14 constitute “agency actions unlawfully withheld”—namely, a refusal to inspect or process

15 asylum-seekers by referring them for credible fear interviews under 8 U.S.C. § 1225(b).

16 (Pls.’ Reply in. supp. of Mot. (“Reply”) at 5, ECF No. 413.) This is sufficient for

17 commonality. The different factual circumstances between each class member’s particular

18 experience does not destroy commonality because there is still a common underlying legal

19 question regarding whether each and every class member was illegally denied access to

20 the asylum system because of Defendants’ overarching policy. See Parsons v. Ryan, 754

21 F.3d 657, 678 (9th Cir. 2014) (finding commonality where putative class sought to

22 challenge 17 statewide policies governing “the overall conditions of health care services

23

24 16 In any event, Plaintiffs have provided evidence to support that Defendants’ capacity-related justifications for turnbacks are pretextual. (See, e.g., “Prioritization Queue Management Strategy,” Ex.
25 35 to Medlock Decl., ECF No. 389-37 (shifting from “detention capacity” to “operational capacity” and prioritizing other tasks over asylum processing); Exs. 43–47 to Medlock Decl., ECF Nos. 389-45, 389-
26 46, 389-47, 389-48, 390-49 (noting processing capacities at POEs and CBP’s “funneling” of asylumseekers from smaller POEs to larger POEs with long wait times); Exs. 52–56 to Medlock Decl., ECF No.
27 389-54 through 389-58 (citing to statements by CBP and DHS officials implying intended deterrent effect of turnbacks); see also Dep. of Whistleblower 99:15–100:2, 111:18–25, 112:23–113:6, Ex. 3 to Medlock
28 Decl., ECF No. 389-5 (testifying that capacity claims were false).)

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1 and confinement” because “either each of the policies and practices [was] unlawful as to

2 every inmate or it [was] not”); Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th

3 Cir. 2013) (“[Commonality] does not . . . mean that every question of law or fact must be

4 common to the class; all that Rule 23(a)(2) requires is a single significant question of law

5 or fact.”) (quotations and citation omitted); see also Armstrong v. Davis, 275 F.3d 849,

6 868 (9th Cir. 2001) (finding commonality satisfied “where the lawsuit challenges a system-

7 wide practice or policy that affects all of the putative class members”), abrogated on other

8 grounds by Johnson v. California, 543 U.S. 499 (2005). The fact that “precise practices”

9 among POEs or CBP officials differ does not mean that a constitutional or statutory floor

10 does not apply equally to all asylum claims raised at a POE. See Lyon v. U.S. Immigration

11 & Customs Enf’t, 300 F.R.D. 628, 642 (N.D. Cal. 2014) (finding commonality existed

12 where plaintiffs alleged that they were denied effective access to telephones at detention

13 facilities, despite the variation in phone policies and practices at each facility).

14

Thus, the Court finds commonality satisfied for purposes of certification.

15

3. Typicality

16

In general, the claims of the representative plaintiffs “need not be substantially

17 identical” to those of all absent class members and need only be “reasonably co-extensive”

18 to qualify as typical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998),

19 overruled on other grounds by Dukes, 464 U.S. 338. “The test of typicality is ‘whether

20 other members [of the class] have the same or similar injury, whether the action is based

21 on conduct which is not unique to the named plaintiffs, and whether other class members

22 have been injured by the same course of conduct.’” Parsons, 754 F.3d at 685 (citation

23 omitted).

24

According to Plaintiffs, the claims of the 14 Named Plaintiffs illustrate the myriad

25 ways in which denials of access to the asylum process are carried out at the southern

26 border. While some Named Plaintiffs were able to reach the entrance to the POE building

27

28

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1 or even the building itself before being turned away by CBP,17 others were prevented from 2 approaching the POE building by CBP or officials from the Government of Mexico,18 3 often at the midpoint of the bridge that divides the United States and Mexico.19 Some were 4 told by CBP officials that the POE was full or closed,20 while others were told to wait in

5 Mexico, referred to Mexican authorities, or simply told that they could not apply for 6 asylum.21 Further, five Named Plaintiffs allege that they experienced coercion, threats, 7 misrepresentations, and abuse as part of CBP’s denial of access to the asylum process.22

8

The Court finds that the Named Plaintiffs’ claims are all “reasonably co-extensive”

9 of the claims of the broader class of asylum-seekers who were or will be denied access to

10 a Class A POE “by or at the instruction of” CBP officials, and of the claims of the metered

11 subclass. Although the mechanics and locations of the Named Plaintiffs’ claims vary, they

12 all involve the same injury—denial of access to the asylum process. The Named Plaintiffs

13 also raise the same legal arguments as those of the class and subclass; namely, that CBP’s

14 refusal to inspect and process them violates the Immigration and Nationality Act (“INA”),

15 the Administrative Procedures Act (“APA”), the Due Process Clause of the Fifth

16 Amendment, and the Alien Tort Statute. (Mem. of P. & A. at 29–30.) Identical factual

17 circumstances are not necessary where, as here, the claims of the Named Plaintiffs, class,

18 and subclass are based on the same legal theories arising from the same alleged unlawful

19 practice. See Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (finding typicality

20 where the petitioner and proposed class “raise[d] similar constitutionally-based arguments

21 and [were] alleged victims of the same practice of prolonged detention while in

22

23

17 (See Decl. of Abigail Doe ¶¶ 9–10; Decl. of Beatrice Doe ¶ 9; Decl. of Carolina Doe ¶¶ 14; Decl. of Dinora Doe ¶¶ 8, 11, 16; Decl. of Ingrid Doe ¶¶ 13, 16; Decl. of Bianca Doe ¶¶ 8, 11–14; Decl. of Victoria

24

Doe ¶ 11; Decl. of Emiliana Doe ¶ 12.) 18 (See Decl. of César Doe ¶ 4; Decl. of Maria Doe ¶¶ 4, 9–12.)

25

19 (See Decl. of Roberto Doe ¶¶ 2–4; Decl. of Maria Doe ¶ 7; Decl. of Juan Doe ¶¶ 6, 9; Decl. of Úrsula Doe ¶¶ 6, 9.)

26

20 (See Decl. of Beatrice Doe ¶ 10, 12; Decl. of Jose Doe ¶ 18; Decl. of Roberto Doe ¶ 5; Decl. of Bianca Doe ¶ 8; Decl. of Juan Doe ¶ 6; Decl. of Úrsula Doe ¶ 6; Decl. of Emiliana Doe ¶ 12.)

27

21 (See Decl. of Abigail Doe ¶ 15; Decl. of Ingrid Doe ¶¶ 15, 16; Decl. of Jose Doe ¶¶ 9, 18–19; Decl. of Maria Doe ¶ 4; Decl. of Bianca Doe ¶¶ 11–14; Decl. of Victoria Doe ¶ 11.)

28

22 (See Decl. of Abigail Doe ¶¶ 13–18; Decl. of Beatrice Doe ¶¶ 9, 12, 20–21, 24; Decl. of Carolina Doe ¶¶ 16, 18–21, 23–24, 26; Decl. of Dinora Doe ¶¶ 9, 12, 16–17; Decl. of Jose Doe ¶ 12.)

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1 immigration proceedings”). Further, there is no indication that these denials were unique

2 to Named Plaintiffs; indeed, given the undisputed number of people on waitlists, it is clear

3 that others have been subjected to this same course of conduct.

4

Defendants raise several challenges to typicality. First, Defendants contend that the

5 claims of Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, and Ingrid Doe

6 are not typical of the putative subclass members’ claims because they allege they were

7 turned back by CBP officers before the Metering Guidance was issued in 2018. (Opp’n at

8 31–32.) However, the Court is not persuaded by any suggestion that these claims are

9 atypical simply because of their timing. Plaintiffs have alleged, with citation to supporting

10 evidence, that Defendants began metering asylum seekers at the San Ysidro POE in 2016 11 and that the metering policy adopted in 2018 was merely a formalization of this process.23

12 As such, the Court does not find that the chronology of these Plaintiffs’ claims means they

13 are not reasonably co-extensive of the subclass’s metering claims.

14

Second, echoing their challenge to the commonality requirement, Defendants state

15 they “can raise unique factual defenses” as to each Named Plaintiff’s individual turnback

16 at a POE that defeats typicality for both the class and subclass. (Opp’n at 32–33.) By way

17 of example, they state that the unlawfulness of Roberto Doe’s turnback, given the timing,

18 “depends on whether the government’s delay in processing him was unreasonable in light

19 of other congressionally-mandated activities occurring at the port that day[.]” (Id. at 32.)

20 This appears to be another iteration of Defendants’ argument that other “potentially

21 legitimate factors” could provide legal justification for the decision to turn back asylum-

22 seekers at POEs. Again, this argument misunderstands Plaintiffs’ core legal claim that all

23 turnbacks are illegal regardless of the proffered justification. See Section III.B.2., supra.

24

Lastly, Defendants contend that in some Plaintiffs’ cases, they were “intercepted by

25 Mexican officials” or otherwise did not encounter CBP officials and were therefore not

26

27 23 See Rule 30(b)(6) Dep. of U.S. CBP 241:9–242:6, Ex. 1 to Medlock Decl., ECF No. 389-3 (noting that metering began in 2016 with influx of Haitian migrants); Dep. of Todd Owens 38:9–16, 100:2–6
28 (testifying that metering has been in place from 2016 to present).

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1 subject to the enumerated turnback practices. (Opp’n at 32–33.) However, Plaintiffs have

2 sufficiently supported their arguments at this stage that Mexican officials acted at the 3 direction of CBP officials as part of the metering policy.24 Moreover, to the extent some

4 asylum-seekers placed themselves on waitlists without approaching a POE at all pursuant

5 to the understanding that metering was in effect at the U.S.-Mexico border, these claims

6 are also reasonably-coextensive of the Named Plaintiffs’ claims. The Court sees no

7 meaningful difference between asylum-seekers who metered directly by CBP at or near a

8 POE and those who placed their names on waitlists after receiving information about the 9 practice from third parties, such as Mexican officials or other asylum-seekers.25

10

Thus, the Court therefore finds typicality has been met.

11

4. Adequacy of Representation

12

For the class representatives to adequately and fairly protect the interests of the

13 class, two criteria must be satisfied. “First, the named representatives must appear able to

14 prosecute the action vigorously through qualified counsel, and second, the representatives

15 must not have antagonistic or conflicting interests with the unnamed members of the

16 class.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978).

17 Defendants do not contest the adequacy of the representation in this case.

18

The Court finds no evidence that the proposed class representatives have any

19

20 24 See, e.g., Sept. 4, 2016 Email, Ex. 40 to Medlock Decl., ECF No. 389-42 (“Yesterday was the first day we have coordinated with [G]rupo [B]eta to slowdown the intake process.”); Queue Management Brief
21 (AOL-DEF-00517231), Ex. 41 to Medlock Decl., ECF No. 389-43 (“CBP has established a collaborative bi-national effort with The Government of Mexico (GoM) . . . to assist in slowing the flow of individuals
22 to the border.”); Nov. 22, 2016 Email, Ex. 54 to Medlock Decl., ECF No. 389-56 (“Mexican Immigration/Grupo Beta are handling the metering for San Ysidro and Calexico.”); see also Decl. of
23 Roberto Doe ¶ 6 (stating that a CBP official called Mexican immigration officials to “come and pick up” asylum-seekers from POE); Decl. of César Doe ¶¶ 4–6 (attesting that Grupo Beta told him that he “would
24 need to go through them to apply for asylum”); Decl. of Juan Doe ¶ 9 (stating that Mexican officials were “standing on the sidewalk checking people’s documents before they could reach the American officials
25 standing in the middle of the bridge); “FW: General Update on Migrant Caravan,” Ex. 29 to Mot., ECF No. 389-31 (summarizing updates from and coordination with Mexican Government and Grupo Beta
26 regarding migrant caravan).

27

25 Two Named Plaintiffs did not initially approach POEs on the advice of third parties that they would first need to put their names on waitlists. (See Decl. of Cesar Doe ¶ 4 (told by Grupo Beta that “they

28

would put [him] on a list and give [him] a number”); Decl. of Emiliana Doe ¶¶ 9–11 (learned about waitlist from another asylum-seeker and placed herself on the list in the parking lot next to the Chaparral POE.)

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1 antagonistic or conflicting interests with the unnamed members of the class, and counsel

2 has shown that they are qualified and willing to prosecute this action vigorously. (See

3 Medlock Decl. ¶¶ 4–5, ECF No. 390-2.) Thus, the requirements of Rule 23(a)(4) have

4 been met.

5

C. Fed. R. Civ. P. 23(b)(2)

6

If a proposed class satisfies Rule 23(a)’s requirements, then the proposed class must

7 also qualify as one of the types of class actions Rule 23(b) identifies. Fed. R. Civ. P. 23(b);

8 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir. 2011). Plaintiffs seek

9 certification of the class and subclass pursuant to Rule 23(b)(2). (Mem. of P. & A. at 6.)

10

Rule 23(b)(2) permits class certification when “the party opposing the class has

11 acted or refused to act on grounds that apply generally to the class, so that final injunctive

12 relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

13 Fed. R. Civ. P. 23(b)(2). The Ninth Circuit has held that “‘it is sufficient’ to meet the

14 requirements of Rule 23(b)(2) [when] ‘class members complain of a pattern or practice

15 that is generally applicable to the class as a whole.’” Rodriguez, 591 F.3d at 1125 (quoting

16 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). “The rule does not require [the

17 Court] to examine the viability or bases of class members’ claims for declaratory and

18 injunctive relief, but only to look at whether class members seek uniform relief from a

19 practice applicable to all of them.” Id. at 1125; see also Dukes, 564 U.S. at 360 (“The key

20 to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy

21 warranted—the notion that the conduct is such that it can be enjoined or declared unlawful

22 only as to all of the class members or as to none of them.”) (internal quotation marks

23 omitted).

24

The Court finds that Rule 23(b)(2)’s requirements are plainly met. Plaintiffs Prayer

25 for Relief requests that this Court: (1) declare that Defendants’ Turnback Policy violates

26 the INA, APA, the Due Process Clause of the Fifth Amendment, and/or principles of non-

27 refoulement; and (2) issue injunctive relief prohibiting Defendants from continuing to

28 implement the Policy and requiring Defendants to implement oversight and accountability

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1 procedures related to inspecting and processing asylum-seekers at POEs along the

2 southern border. (SAC ¶ 304.) This relief would benefit the Named Plaintiffs as well as

3 all members of the proposed class and subclass in the same manner in a single stroke. See

4 Parsons, 754 F.3d at 689 (“[E]very [member] in the proposed class is allegedly suffering

5 the same (or at least a similar) injury and that injury can be alleviated for every class

6 member by uniform changes in . . . policy and practice.”); see also Inland Empire-

7 Immigrant Youth Collective v. Nielsen, No. EDCV 17-2048 PSG (SHKx), 2018 WL

8 1061408, at *12 (C.D. Cal. Feb. 26, 2018).

9

Defendants claim that because the evidence does not support that CBP officers acted

10 generally to implement each of the eight distinct practices alleged by Plaintiffs, there is no

11 evidence a “Turnback Policy” is applicable to the broader class and therefore no basis for

12 finding that CBP officials “acted or refused to act on grounds that apply generally to the

13 class” as required under Rule 23(b)(2). (Opp’n at 34 (“[T]here is no evidence that

14 Defendants have acted generally to . . . take[] any of the other myriad actions that Plaintiffs 15 claim is part of the same general course of conduct.”).)26

16

This argument is without merit. Factual differences among class member claims is

17 not a focus of the Rule 23(b)(2) inquiry. See Walters, 145 F.3d at 1047 (noting that “the

18 government’s dogged focus on the factual differences among the class members appears

19 to demonstrate a fundamental misunderstanding” of Rule 23(b)(2)). Plaintiffs allege that

20 CBP officers refused to process asylum-seekers, an act which they claim is unlawful

21 regardless of the grounds for the refusal. (See Mem. of P. & A. at 9 (arguing alternatively

22 that all turnbacks “are categorically unlawful because they exceed CBP’s authority” or that

23 turnbacks in this case are unlawful because “they are based on pretext and an unlawful

24 deterrence motive”).) The officers’ refusal to process asylum-seekers, therefore, is the

25 generally applicable ground for class-wide relief under Rule 23(b)(2). See Walters, 145

26

27

26 Defendants also note that if Rule 23(b)(2) requirements are met, “there are important limits on the relief available to a 23(b)(2) class.” (Opp’n at 35.) Because these contentions concern the scope of the requested

28

injunctive relief, which falls outside the class certification inquiry, the Court does not address these arguments in this Order.

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1 F.3d at 1047 (“It is sufficient [for Rule 23(b)(2)] if class members complain of a pattern

2 or practice that is generally applicable to the class as a whole.”); Rodriguez, 591 F.3d at

3 1126 (certifying class of immigrant detainees under Rule 23(b)(2) where “relief from a

4 single practice is requested by all class members”).

5

Hence, Plaintiffs have shown that the requirements of Rule 23(b)(2) have been met.

6 IV. CONCLUSION

7

Accordingly, the Court ORDERS as follows:

8

(1) Plaintiffs’ Motion for Class Certification (ECF No. 390) is GRANTED.

9

The Court certifies a class consisting of

10

all noncitizens who seek or will seek to access the U.S. asylum

process by presenting themselves at a Class A [POE] on the U.S.-

11

Mexico border, and were or will be denied access to the U.S.

asylum process by or at the instruction of [CBP] officials on or

12

after January 1, 2016.

13

The Court also certifies a subclass of

14

“all noncitizens who were or will be denied access to the U.S.

asylum process at a Class A POE on the U.S.-Mexico border as a

15

result of Defendants’ metering policy on or after January 1, 2016.”

16

(2) Defendants’ Motions to Strike (ECF No. 411, 425) are DENIED AS MOOT;

17

(3) The related Motion to Seal (ECF No. 432) is TERMINATED AS MOOT.

18

IT IS SO ORDERED.

19

20 Dated: August 6, 2020

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10
AL OTRO LADO, et al.,

Case No. 17-cv-02366-BAS-KSC

11
Plaintiffs, ORDER:

12

v.

(1) GRANTING PLAINTIFFS’

13 CHAD F. WOLF, Acting Secretary of

MOTION FOR CLARIFICATION OF THE PRELIMINARY

14 Homeland Security, et al.,

INJUNCTION (ECF No. 494);

15

Defendants. (2) GRANTING IN PART AND DENYING IN PART

16

PLAINTIFFS’ MOTION TO SEAL (ECF No. 495);

17

AND

18

(3) DENYING AS MOOT

PLAINTIFFS’ EX PARTE

19

MOTION FOR ORAL

ARGUMENT (ECF No. 509)

20

21

Before the Court is Plaintiffs’ Motion for Clarification of this Court’s November 19,

22 2019 Preliminary Injunction (“Motion”). (ECF No. 494.) Defendants oppose, and

23 Plaintiffs reply. (ECF Nos. 508, 516.) After considering the parties’ arguments, the Court

24 GRANTS Plaintiffs’ Motion and CLARIFIES the parameters of the Preliminary

25 Injunction below. The Court further GRANTS IN PART and DENIES IN PART

26 Plaintiffs’ Motion to Seal filed in connection with the Motion (ECF No. 495) and DENIES

27 AS MOOT Plaintiffs’ Ex Parte Motion for Oral Argument on the Motion (ECF No. 509).

28

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1 I. BACKGROUND

2

A. Procedural History

3

Plaintiffs’ underlying claims in this case concern Defendants’ purported “Turnback

4 Policy,” which included a “metering” or “waitlist” system in which asylum seekers were

5 instructed “to wait on the bridge, in the pre-inspection area, or at a shelter”—or were simply

6 told that “they [could not] be processed because the ports of entry is ‘full’ or ‘at

7 capacity[.]’” (Second Am. Compl. ¶ 3, ECF No. 189.) Plaintiffs allege that this policy is

8 intended to deter individuals from seeking asylum in the United States and violates

9 constitutional, statutory, and international law. (Id. ¶¶ 3, 5, 72–83.)

10

While this lawsuit was pending, Defendants promulgated a regulation on July 16,

11 2019 entitled “Asylum Eligibility and Procedural Modifications”—also known as the

12 “Asylum Ban” or the “Asylum Transit Rule.” 84 Fed. Reg. 33,829 (July 16, 2019), codified

13 at 8 C.F.R. § 208.13(c)(4). Among other things, the rule renders asylum seekers who enter,

14 attempt to enter, or arrive at the United States-Mexico border after July 16, 2019 ineligible

15 for asylum if they transit through at least one country other than their country of origin and

16 fail to apply for humanitarian protection in that country.

17

Plaintiffs filed Motions for a Preliminary Injunction and Provisional Class

18 Certification to partially enjoin the application of the Asylum Ban to asylum seekers from

19 countries other than Mexico who were metered before its effective date. (ECF Nos. 293,

20 294.) They argued the Asylum Ban would, if applied to these asylum seekers who were

21 metered at the border before July 16, 2019, permanently bar these individuals from

22 accessing any asylum process altogether, since they their 30-day window to apply for

23 asylum in Mexico—a country they transited through—had already expired.

24

On November 19, 2019, the Court granted Plaintiffs’ Motions. (Prelim. Inj., ECF

25 No. 330.) Specifically, the Court ordered the following:

26

The Court provisionally certifies a class consisting of “all non-Mexican

asylum seekers who were unable to make a direct asylum claim at a U.S. POE

27

before July 16, 2019 because of the U.S. Government’s metering policy, and

who continue to seek access to the U.S. asylum process.”

28

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…
1

Defendants are hereby ENJOINED from applying the Asylum Ban to

2

members of the aforementioned provisionally certified class and ORDERED

to return to the pre-Asylum Ban practices for processing the asylum

3

applications of members of the certified class.

4 (Prelim. Inj. at 36.)

5

Defendants appealed and concurrently filed an emergency motion to stay the

6 Preliminary Injunction pending the appeal’s resolution. (ECF Nos. 335, 354.) The Ninth

7 Circuit issued an administrative stay of the order on December 20, 2019 pending resolution

8 of the motion to stay on the merits. (ECF No. 369.) After oral argument, the court lifted

9 the stay on March 5, 2020. (ECF No. 418.) Oral argument on the underlying appeal was

10 held on July 10, 2020 and a determination remains pending. (See Al Otro Lado et al. v.

11 Chad Wolf, et al., No. 19-56417 (9th Cir. Dec. 5, 2019), Dkt. Nos. 97, 105.)

12

B. Effect of Preliminary Injunction on Immigration Proceedings

13

In the aftermath of the Preliminary Injunction, Defendants have made piecemeal

14 efforts at various stages of immigration proceedings to identify class members. Below, the

15 Court summarizes the steps Defendants allege they have taken after the Order issued on

16 November 19, 2019, after the Ninth Circuit granted an administrative stay of the Order on

17 December 20, 2019, and after the stay was lifted on March 5, 2020.

18

1. United States Citizenship and Immigration Services (“USCIS”)

19

Five days after the Preliminary Injunction issued, USCIS directed asylum officers to

20 ask screening questions during credible fear interviews to determine if individuals were

21 more likely than not members of the class; if so, they were instructed to apply the more

22 generous pre-Asylum Ban standard to class members’ asylum claims. (Opp’n to Mot.

23 (“Opp’n”) at 5, 16, ECF No. 508; Updated Guidance on Credible Fear Processing Pursuant

24 to Al Otro Lado Litigation (“USCIS Updated Guidance”) at 7–9, Ex. 1 to Decl. of

25 Alexander J. Halaska (“Halaska Decl.”), ECF No. 508-2.) USCIS also paused credible

26 fear decisions for those who had been interviewed between November 20, 2019 and

27 November 26, 2019 and conducted follow-up interviews to determine class member status

28

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1 for those previously believed to be subject to the Asylum Ban. (Opp’n at 5, 16; Decl. of

2 Ashley B. Caudill-Mirillo (“Caudill-Mirillo Decl.”) ¶ 4, Ex. 2 to Halaska Decl., ECF No.

3 508-3.)

4

On December 29, 2020, nine days after the Ninth Circuit imposed the stay, USCIS

5 directed asylum officers to stop asking class member screening questions in credible fear

6 interviews, “but to note in the record if the interviewee affirmatively asserted that they

7 were metered or were an Al Otro Lado class member.” (USCIS Updated Guidance at 4–

8 5; Decl. of Ori Lev (“Lev Decl.”) ¶ 9a, ECF No. 494-2.) However, the screening practice

9 was reinstituted once the administrative stay was lifted on March 5, 2020. (USCIS Updated

10 Guidance at 2–4.)

11

2. Immigration and Customs Enforcement (“ICE”)

12

On December 8, 2019, ICE suspended the removal of all individuals in custody who

13 had received negative credible fear determinations between July 16, 2019 (the date the

14 Asylum Ban took effect) and November 19, 2019 (the date the Preliminary Injunction

15 issued) and who had no case pending before Executive Office of Immigration Review.

16 (Opp’n at 17; Email from Joseph P. Laws, Ex. 5 to Halaska Decl., ECF No. 508-6.) They

17 were referred to USCIS to be screened for class membership at this time. (Id.)

18

It appears ICE stopped referring these individuals to USCIS once the administrative

19 stay took effect on December 20, 2019, but returned to this practice on March 16, 2020,

20 after the stay was lifted. (Opp’n at 6; USCIS Updated Guidance at 2; Email from Peter B.

21 Berg, Ex. 6 to Halaska Decl., ECF No. 508-7.) ICE then began referring to USCIS for

22 class membership screening the cases of potential class members who were still in ICE

23 custody or who had been released or paroled from ICE custody. (Lev Decl. ¶ 10d.) This

24 was later limited to only class members in ICE custody and excluded those released or

25 paroled because, Defendants contend, asylum seekers not in custody “likely are still in

26 removal proceedings and remain eligible for relief under the preliminary injunction through

27 the administrative review process.” (Id. ¶¶ 10d, 11.) ICE’s screening procedures were

28

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1 followed only once after the dissolution of the stay, and ICE has confirmed that it will not

2 continue to screen for class members. (Id.)

3

3. Customs and Border Protection (“CBP”)

4

Also following the issuance of the Court’s Order, CBP issued guidance instructing

5 CBP officers and Border Patrol agents to annotate the Form I-213 with “Potential AOL

6 Class Member” if they encountered an individual who affirmatively stated that they were

7 metered, provided information from which an agent could infer they have been subject to

8 metering, or affirmatively claimed to be a class member. (Lev Decl. ¶ 8a–b; Decl. of Jay

9 Visconti (“Visconti Decl.”) ¶ 5, Ex. 7 to Halaska Decl., ECF No. 508-8.) The instruction

10 was issued to all Border Patrol agents and other CBP officers and was applicable to all

11 ports of entry along the U.S.-Mexico border. (Lev. Decl. ¶ 8a–b.) This guidance was never

12 rescinded, but as of June 12, 2020, CBP represented that it “was not relying on this

13 information or taking any other steps to identify potential class members.” (Id. ¶ 11.)

14

4. Executive Office for Immigration Review (“EOIR”)

15

Lastly, as to EOIR, Defendants state that the office “has voluntarily agreed to act

16 consistently with the preliminary injunction” and has issued guidance to this effect at the

17 time it was issued, shortly after the imposition of the administrative stay, and shortly after

18 the stay was lifted. (Decl. of Jill W. Anderson (“Anderson Decl.”) ¶¶ 4–6, Ex. 3 to Halaska

19 Decl., ECF No. 508-4.) Supplemental guidance was also disseminated through the

20 immigration court systems in the months following. (Id. ¶¶ 7–9.)

21

Defendants represented to Plaintiffs, as late as April 20, 2020, that EOIR’s position

22 was that immigration judges and members of the Board of Immigration Appeals “are not

23 to apply the third-country transit rule to provisional class members.” (Lev Decl. ¶ 4.)

24 However, in June 2020, Defendants made clear that they did not consider EOIR bound by

25 the Preliminary Injunction and that they did not consider any non-final application of the

26 Asylum Ban to class members a violation of the Preliminary Injunction “while

27 administrative proceedings remain ongoing.” (Id. ¶ 7b.)

28

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1

Plaintiffs identify several cases in which they claim class members with final orders

2 denying asylum raised their entitlement to the Preliminary Injunction’s protection and were

3 improperly rejected by immigration judges. (Mem. of P. & A. at 2, 6–7, ECF No. 494-1.)

4 In two instances, after the stay was lifted, immigration judges denied motions to reopen

5 because they considered the state of law “unsettled” due to the pending appeal on the

6 merits, meaning there was no “material change in the law” warranting reconsideration of

7 their orders of removal. (See In re E.T.M., Ex. 1 to Lev Decl., ECF No. 494-3; In re A.N.A.,

8 Ex. 2 to Lev Decl., ECF No. 494-4.) These cases were ultimately reopened sua sponte

9 upon “further consideration.” (Id.) In another case, DHS affirmatively opposed a class

10 member’s motion to reopen on the basis that the copy of the waitlist provided to prove

11 class membership was not sufficiently reliable. (In re M.T.A., Ex. 3 to Lev Decl., ECF No.

12 494-5.) While initially the immigration judge found in favor of the Government and denied

13 the motion to reopen, the judge later granted the applicant’s motion to reconsider and

14 granted asylum pursuant to East Bay Sanctuary Covenant v. Barr, 964 F.3d 382 (9th Cir.

15 2020). (Id.; Order of the Immigration Judge, Ex. 23 to Halaska Decl., ECF No. 508-24.)

16

Defendants also cite a case where, while the preliminary injunction was stayed, an

17 applicant was denied asylum pursuant to the Asylum Ban but granted withholding of

18 removal. (In re F.S.S., Ex. 15 to Halaska Decl., ECF No. 508-16.) The applicant moved

19 to reconsider the asylum denial before the immigration judge the day after the Ninth Circuit

20 lifted its administrative stay and appealed the asylum denial to the Board of Immigration

21 Appeals one week later. (Order of the Immigration Judge on Mot. to Reconsider at 1, Ex.

22 16 to Halaska Decl., ECF No. 508-17; Notice of Appeal, Ex. 17 to Halaska Decl., ECF No.

23 508-18.) The immigration judge later denied the motion to reconsider, which the applicant

24 also appealed. (Order of the Immigration Judge at 3; Ex. 18 to Halaska Decl., ECF No.

25 508-19.) Both this appeal and the direct appeal remain pending before the BIA. (Opp’n at

26 10.)

27

28

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1

C. Parties’ Arguments on Motion for Clarification1

2

On July 17, 2020, Plaintiffs filed the instant Motion seeking an order clarifying that

3 the Government must: (1) take “immediate affirmative steps to reopen or reconsider” past

4 asylum denials for potential class members, “regardless of what stage of removal

5 proceedings such potential class members are in”; and (2) “make all reasonable efforts to

6 identify class members and inform identified class members of their potential class

7 membership” and “the existence and import of the preliminary injunction.” (Mem. of P.

8 & A. at 17–18.) The first of these requests additionally requires that the Court clarify that

9 EOIR is bound by the Preliminary Injunction. (Id.)

10

Defendants oppose, arguing that the terms of the Preliminary Injunction do not

11 require them to reopen or reconsider any asylum denials issued pursuant to the Asylum

12 Ban that became administratively final before the Preliminary Injunction was issued or

13 while it was stayed. (Opp’n at 1.) First, they contend that the Preliminary Injunction is

14 prospective only, meaning that it requires Defendants to return to pre-Asylum Ban

15 practices from the date of the order (November 19, 2019) forward. (Id. at 13–15.) Second,

16 they contend that because the administrative stay divested the Preliminary Injunction of

17 enforceability between December 20, 2019 and March 5, 2020, they are also not required

18 to affirmatively reopen and readjudicate asylum denials that became final for class

19 members during this period. (Id. at 13.) Regarding EOIR, Defendants claim that while the

20 agency is complying with the Preliminary Injunction, it is not bound by the order because

21 it is not in active concert or participation with DHS in removal proceedings. (Id. at 19–

22 20.) Lastly, Defendants argues it should not be required to develop a comprehensive list

23 of class members because it is already making reasonable efforts to identify them and the

24 only lists available are over- or under-inclusive of class membership. (Id. at 23–25.)

25

26 1 Plaintiffs moved ex parte for oral argument on the Motion. (ECF No. 509.) A hearing on a related
27 dispute in this case included argument directly relevant to the instant Motion. (See ECF No. 595.) The
Court did not find further argument necessary to decide the Motion and therefore denies as moot Plaintiff’s 28 ex parte request.

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1 II. LEGAL STANDARD

2

“It is undoubtedly proper for a district court to issue an order clarifying the scope of

3 an injunction in order to facilitate compliance with the order and to prevent ‘unwitting

4 contempt.’” Paramount Pictures Corp. v. Carol Publ’g Grp., 25 F. Supp. 2d 372, 374

5 (S.D.N.Y. 1998) (citing Regal Knitwear Co. v. Nat’l Labor Relations Bd., 324 U.S. 9, 15

6 (1945)); Sunburst Prod., Inc. v. Derrick Law Co., 922 F.2d 845 (9th Cir. 1991) (“The

7 modification or clarification of an injunction lies within the ‘sound discretion of the district

8 court[.]”) (citing same). Rule 65 requires that injunctions be specific “so that those who

9 must obey them will know what the court intends to require and what it intends to forbid.”

10 Int’l Longshoremen Ass'n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64,

11 76 (1968). “By clarifying the scope of a previously issued preliminary injunction, a court

12 ‘add[s] certainty to an implicated party’s effort to comply with the order and provide[s]

13 fair warning as to what future conduct may be found contemptuous.’” Robinson v.

14 Delicious Vinyl Records Inc., No. CV 13-411-CAS (PLAx), 2013 WL 12119735, at *1

15 (C.D. Cal. Sept. 24, 2013) (quoting N.A. Sales Co. v. Chapman Indus. Corp., 736 F.2d 854,

16 858 (2d Cir. 1984)).

17 III. DISCUSSION

18

A. Scope of the Preliminary Injunction

19

First, the Court addresses whether its Preliminary Injunction applies to orders

20 denying class members’ asylum claims based on the Asylum Ban that became final before

21 the Preliminary Injunction issued on November 19, 2019 and during the Ninth Circuit’s

22 administrative stay of the order from December 20, 2019 to March 5, 2020.

23

1. Asylum denials that became final before November 19, 2019

24

Plaintiffs argue that the Preliminary Injunction’s effect is not conditioned on a class

25 member’s current stage of removal proceedings. (Mem. of P. & A. at 12.) Therefore, they

26 argue, Defendants should be required to reopen or reconsider the eligibility of all class

27 members previously denied asylum due to the Asylum Ban, even those with final orders of

28 removal that predate the Court’s order or that were issued during the administrative stay.

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1 (Mem. of P. & A. at 12.) The thrust of Defendants’ position is that because asylum seekers

2 with final orders of removal have had the Asylum Ban “applied” to them in the past, the

3 Government cannot continue to apply the Asylum Ban to them in the future, which it

4 understands to be the Preliminary Injunction’s only prohibition. (Opp’n at 13 (“The order

5 covers ‘all’ class members, but the government cannot refrain ‘from applying’ a rule to a

6 class member who is not before it.”).) Defendants thus contend that they are only required

7 to refrain from applying the Asylum Ban, going forward, at four stages of the immigration

8 process: (1) the credible-fear screening; (2) reviews of credible fear determinations; (3) full

9 removal proceedings before immigration judges; and (4) on appeal to the BIA. (Id. at 12.)

10

Defendants focus their arguments on the purported “retroactivity” of the Court’s

11 Preliminary Injunction, relying on case law regarding the retroactive effect of the Supreme

12 Court’s application of a rule of federal law. (Opp’n at 15, 19 (citing Harper v. Va. Dep’t

13 of Taxation, 509 U.S. 86 (1993), and Teague v. Lane, 489 U.S. 288 (1989)).) The Court

14 finds this framing inapposite in the context of equitable relief. Defendants do not cite—

15 and the Court does not find—“any authority establishing any bright line rule or precedent

16 limiting the Court’s broad equitable discretion to decide whether to extend an injunction”

17 to actions approved or pending before the relief issued. People of State of California ex

18 rel. Lockyer v. U.S. Dep’t of Agric., No. C05-03508 EDL, 2006 WL 2827903, at *2 (N.D.

19 Cal. Oct. 3, 2006) (rejecting defendants’ claim of “retroactive” application of an injunction

20 on logging practices to previously approved project and finding instead that the court must

21 “examine the specific facts of each case to determine the proper scope of injunctive relief”).

22

“‘District courts have broad latitude in fashioning equitable relief when necessary to

23 remedy an established wrong.’” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1024

24 (9th Cir. 2016) (quoting Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010)).

25 The Supreme Court has made clear that “the scope of injunctive relief is dictated by the

26 extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979);

27 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971) (“As with any equity

28 case, the nature of the violation determines the scope of the remedy.”).

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1

“A preliminary injunction . . . is not a preliminary adjudication on the merits but

2 rather a device for preserving the status quo and preventing the irreparable loss of rights

3 before judgment.” Sierra On-Line, Inc. v. Phx. Software, Inc., 739 F.2d 1415, 1422 (9th

4 Cir. 1984). Therefore, “[t]he ‘purpose of a preliminary injunction is to preserve the status

5 quo ante litem pending a determination of the action on the merits.’” Id. (quoting Sierra

6 Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009)). “The status quo ante litem

7 refers not simply to any situation before the filing of a lawsuit, but instead to the last

8 uncontested status which preceded the pending controversy.” GoTo.com, Inc. v. Walt

9 Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (internal quotation marks omitted).

10

The pending controversy in this proceeding for injunctive relief concerns the

11 applicability of the Asylum Ban’s eligibility bar to members of the provisionally certified

12 class. Therefore, the last uncontested status of class members in this case exists at the point

13 before the Asylum Ban went into effect on July 16, 2019, when DHS was still processing

14 asylum seekers according to its previous and longstanding asylum eligibility requirements.

15 See, e.g., Regents of the Univ. of Calif. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d

16 1011, 1046, 1048 n.20 (N.D. Cal. 2018), aff’d, 908 F.3d 476 (9th Cir. 2018) (enjoining

17 DHS from rescinding the Deferred Action for Childhood Arrivals (“DACA”) program and

18 ordering it “to maintain the DACA program on a nationwide basis on the same terms and

19 conditions as were in effect before the rescission,” because that was “the status quo before

20 which was that DACA was fully implemented”), rev’d in part, vacated in part, __ U.S. __,

21 140 S.Ct. 1891 (2020); S.A. v. Trump, No. 18-CV-03539-LB, 2019 WL 990680, at *13

22 (N.D. Cal. Mar. 1, 2019) (finding, where plaintiffs sought a preliminary injunction

23 requiring DHS to continue to process conditionally approved beneficiaries under the

24 recently rescinded Central American Minors program, that the status quo ad litem was the

25 point before DHS stopped processing those applications).

26

This is consistent with the equitable purpose of the Preliminary Injunction. The

27 violation requiring a remedy is Defendants’ decision to apply the Asylum Ban to divest all

28 class members of access to the asylum process because they were unable, due to

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1 Defendants’ metering practices, to cross the border before the rule’s effective date.

2 Accordingly, the Court’s order was structured to restore class members to the status quo

3 by preventing the application of the Asylum Ban to class members who, but for metering,

4 would have had the opportunity to enter the United States before the regulation imposed

5 additional asylum eligibility requirements. (See Prelim. Inj. at 34 (finding that but for the

6 metering policy, asylum seekers “would have entered the United States and started the

7 asylum process without delay . . . under the law in place at the time of their metering, which 8 did not include the requirement that they first exhaust asylum procedures in Mexico”).)2

9

For this reason, Defendants were instructed to “return to the pre-Asylum Ban

10 practices for processing the asylum applications of members of the certified class.”

11 (Prelim. Inj. at 36 (emphasis added).) Class members were not limited to only those non-

12 Mexican asylum seekers with non-final removal orders. Rather, class membership was

13 contingent on whether an asylum seeker had been metered and thereby prevented from

14 making a direct asylum claim at a port of entry before July 16, 2019. If the Court were to

15 narrow this application of injunctive relief only to those without final removal orders, it

16 would vitiate the equitable nature of its remedy. The scope of the remedy, therefore, must

17 provide redress to all those metered in order to restore equity.

18

To the extent Defendants contend that requiring them to take affirmative action to

19 comply with the Court’s order impermissibly changes the nature of the injunctive relief

20 from prohibitive to mandatory—which is subject to a higher standard—the Court similarly

21 finds this position untenable. Preliminary injunctions “that prohibit enforcement of a new

22 law or policy . . . [are] prohibitory,” not mandatory. Ariz. Dream Act Coalition v. Brewer,

23 757 F.3d 1053, 1061 (9th Cir. 2014). Here, the Preliminary Injunction prohibited

24
25 2 The Court adopted its analysis from its earlier order denying Defendants’ motion to dismiss establishing that those who had been metered had “arrived” or “attempted to enter” POEs before the effective date of
26 the Asylum Ban and thus were not subject to the plain language of the regulation. (Order Re: Mot. to Dismiss at 35–40, ECF No. 280.) In its order denying Defendants’ motion to stay, the Ninth Circuit noted
27 that this Court’s interpretation of the regulation had “considerable force” and was “likely correct,” although it did not decide the issue. (Order Denying Mot. to Stay at 31, Al Otro Lado, et al. v. Chad F.
28 Wolf, et al. (9th Cir.), No. 19-56417, Dkt. No. 84.)

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1 application of the Asylum Ban to class members in order to preserve the status quo ante

2 litem, or the class members’ last uncontested status. Actions required to reinstate the status

3 quo ante litem do not convert prohibitive orders into mandatory relief. See, e.g., S.A., 2019

4 WL 990680, at *14 (requiring DHS to process the applications of conditionally-approved

5 beneficiaries of the CAM program “in good faith” by prohibiting DHS from “adopt[ing]

6 any policy, procedure, or practice of not processing the beneficiaries or placing their

7 processing on hold en masse”); Regents, 279 F. Supp. 3d at 1025–26, 1048 n.20 (where

8 plaintiffs did not file their complaint for three months after DHS terminated the DACA

9 program, court nonetheless held that its injunction vacating DHS’s rescission of DACA

10 and ordering DHS to continue processing DACA renewal applications was prohibitory, not

11 mandatory, as it simply preserved the status quo ante litem); Angotti v. Rexam, Inc., No. C

12 05-5264 CW, 2006 WL 1646135, at *6–*7 (N.D. Cal. June 14, 2006) (citing GoTo.com,

13 202 F.3d at 1210) (rejecting defendant’s argument that requiring it to resume payment and

14 administration of benefits requires the court’s injunction to be treated as mandatory

15 because the proposed injunctive relief “would simply preserve the last uncontested status

16 preceding the current litigation”).3

17

The Preliminary Injunction provides equitable relief to restore class members to the

18 appropriate status quo ante litem in this case—the period before July 16, 2019 when asylum

19 eligibility requirements preceding the Asylum Ban were still in effect. It therefore applies

20

21 3 The Ninth Circuit has also made clear the following:

22 [A]fter a defendant has been notified of the pendency of a suit seeking an injunction against

23

him, even though a temporary injunction be not granted, he acts at his peril and subject to

the power of the court to restore the status, wholly irrespective of the merits as they may

24

be ultimately decided . . . .

25 Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1187 (9th Cir. 2000) (quoting Nat’l Forest
26 Preservation Group v. Butz, 485 F.2d 408 (9th Cir.1973)). Defendants were aware of Plaintiffs’ motions for injunctive relief and provisional class certification regarding the Asylum Ban, at the latest, by the date
27 of filing on September 26, 2019. Thus, Defendants acted at their peril if they decided to proceed with
intended removals of class members after receiving notice of these motions. See Angotti, 2006 WL 28 1646135, at *6–*7.

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1 to all class members, including those with asylum denial orders that became final before

2 the Preliminary Injunction issued on November 19, 2019.

3

2. Asylum denials that became final during the administrative stay

4

An administrative stay “is only intended to preserve the status quo until the

5 substantive motion for a stay pending appeal can be considered on the merits, and does not

6 constitute in any way a decision as to the merits of the motion for stay pending appeal.”

7 Doe #1 v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2019). Defendants argue that because the

8 Ninth Circuit’s administrative stay suspended the Court’s “alteration of the status quo” and

9 “temporarily divest[ed] [the] order of enforceability,” the Preliminary Injunction does not

10 apply to removal orders based on the Asylum Ban that became final during the stay.

11 (Opp’n at 13–14 (quoting Nken v. Holder, 556 U.S. 418, 428–29 (2009).) Further,

12 Defendants contend that even once this order was lifted, it did not require reopening or

13 reconsidering past determinations regarding asylum eligibility. (Id. at 14.)

14

First, the Court notes that Nken concerns a traditional motion to stay pending appeal.

15 556 U.S. at 422. However, the Ninth Circuit has expressly stated that it is improper to

16 consider the Nken factors when considering an administrative stay. Nat’l Urban League v.

17 Ross, ___ F.3d ___, No. 20-16868, 2020 WL 5815054, at *3 (9th Cir. Sept. 30, 2020)

18 (citing Doe #1, 944 F.3d at 1223) (holding that applying the factors for a motion for stay

19 pending appeal to an administrative stay “erroneously collapses the distinct legal analyses”

20 for the two motions and that the “touchstone” for administrative stays is “the need to

21 preserve the status quo”).

22

In this case, the Ninth Circuit stated that its stay was intended to “preserve the status

23 quo” by allowing the Government to continue applying the Asylum Ban to proposed class

24 members until the motion to stay was decided on the merits. (Order at 3, Al Otro Lado, et

25 al. v. Chad Wolf, et al. (9th Cir.), No. 19-56417, Dkt. No. 24.) Thus, between December

26 20, 2019 and March 5, 2020, Defendants were permitted to lawfully continue applying the

27 Asylum Ban to class members. However, once the motion to stay was denied on its merits,

28 the Preliminary Injunction took full effect.

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1

Defendants’ position that they are not required to reopen or reconsider removal

2 orders for class members that became final during the stay assumes, again, that the

3 Preliminary Injunction can only be enforced against those cases that are not final.

4 However, as stated above, the terms of the Preliminary Injunction are not so limited. In

5 fact, in order to remedy the harm identified by the Court, its Order must restore to the status

6 quo ante litem all those metered who did not receive a determination on the merits of their

7 asylum claim due to the application of the Asylum Ban to their case. See GoTo.com, 202

8 F.3d at 1210; see also Califano, 442 U.S. at 702.

9

While the administrative stay allowed Defendants to stay the course regarding the

10 application of the Asylum Ban at the time of the stay, it does not deprive the Preliminary

11 Injunction of its full effect once the stay was lifted. Defendants are correct that their

12 application of the Asylum Ban during the stay was lawful and not in contempt of the Order.

13 Now that the Preliminary Injunction is fully in effect, however, refusing to reopen or

14 reconsider orders of removal based on the Asylum Ban that became final during the stay is

15 antithetical to the aforementioned purpose and intent of the order.

16

B. Effect of Preliminary Injunction on EOIR Proceedings

17

Defendants’ argument regarding EOIR is twofold. First, they contend that there is

18 no need for clarification because EOIR is complying with the Preliminary Injunction.

19 (Opp’n at 18–19.) Second, they claim that EOIR, as a non-party, is not bound by the terms

20 of the Preliminary Injunction. (Id. at 20–22.)

21

EOIR’s voluntary compliance with this Court’s Order does not obviate the need for

22 clarification of that Order’s terms. Indeed, the Supreme Court has indicated that

23 enforcement orders are important preemptive measures against potential contempt. See

24 Regal, 324 U.S. at 15 (encouraging clarification “in the light of a concrete situation that

25 left parties or ‘successors and assigns’ in the dark as to their duty toward the court . . . to

26 avoid unwitting contempts as well as to punish deliberate ones”) (emphasis added); see

27 also Matter of Hendrix, 986 F.2d 195, 200 (7th Cir. 1993) (holding that requests to clarify

28 whether injunction “applies to conduct in which the person proposes to engage,” even if it

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1 “looks like a request for an ‘advisory opinion,’ . . . is one that even a federal court can

2 grant, in order to prevent unwitting contempts”); Wright & Miller, 11A Fed. Prac. & Proc.

3 Civ. § 2956 (3d ed.) (“It should be noted that an interested individual who is confused as

4 to the applicability of an injunction to him or whether the scope of an order applies to

5 certain conduct may request the granting court to construe or modify the decree.”). In any

6 event, the aforementioned immigration cases where the Asylum Ban has served as the basis

7 for denying class members’ asylum claims, even if ultimately resolved in their favor,

8 evince some degree of uncertainty about the scope of the order, which necessitates

9 clarification. Indeed, the instant dispute itself reveals that certain ambiguities exist

10 necessitating clarification of the Preliminary Injunction. As such, the Court turns to

11 whether EOIR is bound by the Preliminary Injunction.

12

1. Whether EOIR is Bound Under Rule 65(d)(2)

13

Rule 65(d)(2) provides that an injunction or restraining order “binds only the

14 following who receive actual notice of it by personal service or otherwise: (A) the parties;

15 (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons

16 who are in active concert or participation with anyone described” in paragraphs (A) or (B).

17 The Supreme Court has summarized the scope of the rule as follows:

18

This [rule] is derived from the common law doctrine that a decree of

19

injunction not only binds the parties defendant but also those identified with them in interest, in “privity” with them, represented by them or subject to their

20

control. In essence it is that defendants may not nullify a decree by carrying

out prohibited acts through aiders and abettors, although they were not parties

21

to the original proceeding.

22
Regal, 324 U.S. at 14. Thus, “[a]n injunction binds a non-party only if it has actual notice
23
and either ‘abets the enjoined party’ in violating the injunction or is ‘legally identified’
24
with the enjoined party.” CFPB v. Howard Law, P.C., 671 F. App’x 954, 955 (9th Cir.
25
2016) (citing United States v. Baker, 641 F.2d 1311, 1313 (9th Cir. 1981), and NLRB v.
26
Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1977)); see
27
also Saga Int’l, Inc. v. John D. Brush & Co., 984 F. Supp. 1283, 1286 (C.D. Cal. 1997)
28

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1 (“An injunction applies only to a party, those who aid and abet a party, and those in privity

2 with a party.”).

3

Subsection C’s “active concert or participation” criterion “is directed to the actuality

4 of concert or participation, without regard to the motives that prompt the concert or

5 participation.” New York State Nat’l Org. for Women v. Terry, 961 F.2d 390, 397 (2nd Cir.

6 1992), vacated on other grounds, 506 U.S. 901 (1993); see also Estate of Kyle Thomas

7 Brennan v. Church of Scientology Flag Serv. Org., Inc., No. 809-CV-264-T-23EAJ, 2010

8 WL 4007591, at *2 (M.D. Fla. Oct. 12, 2010) (holding that “‘in active concert or

9 participation’ . . . in no respect implies any conspiratorial, devious, or insidious intent or

10 design” but instead “means a purposeful acting of two or more persons together or toward

11 the same end, a purposeful acting of one in accord with the ends of the other, or the

12 purposeful act or omission of one in a manner or by a means that furthers or advances the

13 other.”). In considering whether a non-party engaged in “active concert and participation”

14 for purposes of Rule 65(d), the Court must conduct “[a] fact-sensitive inquiry . . . to

15 determine whether persons not named in an injunction can be bound by its terms because

16 they are acting in concert with an enjoined party.” In re Zyprexa Injunction, 474 F. Supp.

17 2d 385, 419 (E.D.N.Y. 2007) (citing 11A Wright & Miller at § 2956).

18

Here, the Department of Homeland Security and its component parts—including

19 CBP and OFO—have been enjoined from enforcing the Asylum Ban regulation against

20 members of the class. The Court finds, based on the role and function of EOIR in enforcing

21 immigration regulations, that it generally works “in active concert and participation” with

22 Defendants such that it is bound by the Preliminary Injunction.

23

Although housed under the U.S. Department of Justice, EOIR is responsible for the

24 adjudication, interpretation, and administration of immigration laws. See About the Office,

25 United States Department of Justice, https://www.justice.gov/eoir/about-office (last

26 updated Aug. 14, 2018). To this end, EOIR contains the immigration court system within

27 the Office of the Chief Immigration Judge (OCIJ) and the Board of Immigration Appeals

28 (BIA). 8 C.F.R. § 1003.0(a). Immigration judges are inextricably linked to the credible

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1 fear process for asylum claims, as they are responsible for adjudicating asylum applications

2 in regular removal proceedings and reviewing USCIS’s negative credible-fear

3 determinations in expedited removal proceedings. 8 U.S.C. §§ 1225(b)(1)(B)(iii)(III),

4 1229a(a)(1); 8 C.F.R. §§ 1003.1(b)(9), 1003.10(c), 1003.42, 1240.1(a)(ii), 1208.30(g).

5 The BIA, the administrative body that sits in review of immigration judge decisions in full

6 removal proceedings, reviews immigration judge decisions in regular removal

7 proceedings. 8 C.F.R. §§ 1003.1(a)(1), (b), 1003.10(c). EOIR’s function is therefore an

8 extension of immigration enforcement efforts initiated by CBP or USCIS officers; it does

9 not represent a separate or distinct enforcement mechanism, but merely a secondary step

10 of the enforcement process.

11

This is further reflected in the regulatory scheme governing DHS and EOIR. Both

12 are governed by the same set of regulations concerning asylum and withholding of

13 removal. Compare 8 C.F.R §§ 208.1–208.31, with 8 C.F.R. §§ 1208.1–1208.31. Indeed,

14 DHS and the Department of Justice jointly published the Asylum Ban and required both

15 asylum officers and immigration judges to apply this new bar on asylum eligibility when

16 administering the credible fear screening process. 84 Fed. Reg. at 33,830; see also M.M.V.

17 v. Barr, 456 F. Supp. 3d 193, 202 (D.D.C. 2020). And as Defendants have conceded, EOIR

18 personnel have several occasions to apply the Asylum Ban during expedited or regular

19 removal proceedings initiated by either USCIS or CBP officers: (1) when immigration

20 judges conduct a de novo review of a USCIS asylum officer’s negative credible-fear

21 determination; (2) when immigration judges adjudicate asylum claims in full removal

22 proceedings; and (3) when the BIA adjudicates an appeal from an immigration judge’s

23 order denying asylum. (Opp’n at 3–4.)

24

DHS and EOIR are not coordinating or cooperating to share information, nor are

25 they separately pursuing administrative enforcement of immigration laws. But c.f. Vance

26 v. Block, 881 F.2d 1085 (9th Cir. 1989) (unpublished) (finding preparation of a “biological

27 assessment” to constitute “[i]nteragency coordination and cooperation” insufficient for

28 “active concert” for purposes of Rule 65(d)); U.S. Commodity Futures Trading Comm’n v.

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1 Amaranth Advisors, LLC, 523 F. Supp. 2d 328, 335 (S.D.N.Y. 2007) (“Rule 65(d) does not

2 apply to collaboration between two agencies pursuing enforcement actions pursuant to

3 different statutes.”). Much to the contrary, the statutory and regulatory scheme make clear 4 that DHS and EOIR are essential parts of the same enforcement mechanism.4 Thus, the

5 Court finds that EOIR is, for purposes of general immigration enforcement, “in active

6 concert or participation” with Defendants and is therefore bound by the Preliminary

7 Injunction.

8

2. All Writs Act (“AWA”)

9

Under the AWA, federal courts have authority to “issue all writs necessary or

10 appropriate in aid of their respective jurisdictions and agreeable to the usages and principles

11 of law.” 28 U.S.C. § 1651. The AWA provides this Court with the ability to construct a

12 remedy to right a “wrong [which] may [otherwise] stand uncorrected.” United States v.

13 Morgan, 346 U.S. 502, 512 (1954). In the context of administrative law, the AWA allows

14 the court “to preserve [its] jurisdiction or maintain the status quo by injunction pending

15 review of an agency’s action through the prescribed statutory channels.” F.T.C. v. Dean

16 Foods Co., 384 U.S. 597, 604 (1966).

17

“The power conferred by the [All Writs] Act extends, under appropriate

18 circumstances, to persons who, though not parties to the original action or engaged in

19 wrongdoing, are in a position to frustrate the implementation of a court order or the proper

20 administration of justice.” United States v. New York Telephone Co., 434 U.S. 159, 174

21 (1977); see also In re Baldwin–United Corp., 770 F.2d 328, 339 (2d Cir. 1985)

22 (“Preliminary injunctions under Rule 65 are designed to preserve the status quo between

23

24 4 Defendants contend that “EOIR adjudicators do not work ‘in active concert or participation’ with DHS
25 any more than appellate courts work with trial courts or judges work with prosecutors.” (Opp’n at 22.) Defendants’ analogy appears to misinterpret the phrase “in active concert or participation.” The phrase
26 implies purposeful acts done toward the same end; it does not suggest improper motive or conduct otherwise unbecoming of judicial officers or officers of the court. See Estate of Kyle Thomas Brennan,
27 2010 WL 4007591, at *2 (noting Rule 65(d)(2)(C) does not imply “a partisan act or an act lacking in
judicial impartiality”). Thus, just as courts and advocates work toward applying and enforcing the law, 28 so too do DHS and EOIR work toward applying and enforcing immigration statutes and regulations.

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1 the parties before the court pending a decision on the merits of the case at hand. In contrast,

2 injunctions [under the AWA] are needed to prevent third parties from thwarting the court’s

3 ability to reach and resolve the merits of the federal suit before it.”); Stratton v. Glacier

4 Ins. Adm’rs, Inc., No. 1:02-cv-06213 OWW DLB, 2007 WL 274423, at *16 (E.D. Cal. Jan.

5 29, 2007) (“Injunctions under the All Writs Act are not subject to the standards for

6 preliminary injunction under Fed. R. Civ. P. 65.”) (citing Baldwin).

7

EOIR’s compliance with the Court’s Preliminary Injunction is necessary to

8 effectuate its terms. First, this Court previously established that it has independent

9 jurisdiction over the underlying suit and therefore invokes the AWA only in aid of

10 jurisdiction already established. (See Prelim. Inj. at 8–19.) Second, based on the

11 explanation above, the Court’s Preliminary Injunction is intended to protect all members

12 of the class, i.e., those who were metered at ports of entry before July 16, 2019. EOIR

13 officials, namely immigration judges and the BIA, have the authority to reopen and

14 reconsider final removal orders, as well as pass upon credible fear findings that may include

15 testimony about metering, at critical stages in class members’ removal proceeding. To be

16 clear, the Preliminary Injunction does not override the ability of immigration judges to

17 make independent determinations about the merits of the class members’ asylum claims;

18 rather, it requires only that class members receive consideration of their claim instead of

19 having it foreclosed by the Asylum Ban’s automatic eligibility bar.

20

Because courts can determine the lawfulness of immigration regulations, it follows

21 that these findings will necessarily have an impact on all actors in the immigration system

22 tasked with implementing such regulations. The Court therefore finds that, under the

23 AWA, binding EOIR to the terms of the Preliminary Injunction is necessary to preserve

24 this Court’s jurisdiction.

25

3. 8 U.S.C. § 1252(f)(1)

26

Finally, Defendants argue that Plaintiffs’ interpretation of the Preliminary

27 Injunction, if granted, would run afoul of a jurisdiction-stripping provision of the

28 Immigration and Nationality Act (“INA”). (Opp’n at 22.) Specifically, the INA states that

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1 this Court has no jurisdiction or authority “to enjoin or restrain the operation of the

2 provisions of part IV of this subchapter, . . . other than with respect to the application of

3 such provisions to an individual alien against whom proceedings under such part have been

4 initiated.” 8 U.S.C. § 1252(f)(1). “Part IV” is a reference to the provisions of the INA

5 titled “Inspection, Apprehension, Examination, Exclusion, and Removal,” which currently

6 include 8 U.S.C. §§ 1221–1232. In other words, § 1252(f)(1) “limits the district court’s

7 authority to enjoin [immigration authorities] from carrying out legitimate removal orders.”

8 Ali v. Gonzales, 421 F.3d 795, 886 (9th Cir. 2005).

9

However, “[b]y its terms, § 1252(f)(1) does not . . . categorically insulate

10 immigration enforcement from ‘judicial classwide injunctions.’” Gonzalez v. United States

11 Immigration & Customs Enf’t, 975 F.3d 788 (9th Cir. 2020). For example, the Ninth

12 Circuit has held that where a court enjoins “conduct that allegedly is not even authorized

13 by the statute, the court is not enjoining the operation of part IV of subchapter II, and §

14 1252(f)(1) therefore is not implicated.” Id.; see also Rodriguez v. Hayes, 591 F.3d 1105,

15 1120 (9th Cir. 2010) (finding § 1252(f)(1) not applicable where the petitioner did “not seek

16 to enjoin the operation of the immigration detention statutes, but to enjoin conduct it asserts

17 is not authorized by the statutes”).

18

Similarly, here, the Preliminary Injunction does not enjoin operation of expedited or

19 regular removal proceedings authorized by Part IV of the INA; rather, it enjoined the

20 application of the Asylum Ban to class members on the basis that the regulation, “by its

21 express terms, does not apply to those non-Mexican foreign nationals . . . who attempted

22 to enter or arrived at the southern border before July 16, 2019.” (Prelim. Inj. at 31.) Again,

23 the Court does not intend by its Order to interfere with the “independent judgment and

24 discretion” afforded to immigration judges in deciding the individual cases before them.

25 See 8 C.F.R. § 1003.10(b). Immigration judges are still tasked with addressing whether

26 individual asylum seekers have sufficiently demonstrated class membership and are thus

27 subject to the Preliminary Injunction’s mandate, and these judges maintain the authority to

28 make other findings on the merits. Thus, applying the Preliminary Injunction to prevent

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1 removals of class members based on the Asylum Ban, and instead requiring a merits-based

2 determination of their asylum claims, is not precluded by § 1252(f)(1).

3

C. Class Member Identification

4

Plaintiffs also move this Court to clarify the requirement that Defendants make “all

5 reasonable efforts to identify all potential class members, including those already removed

6 from the United States, and inform them of their potential class membership and of the

7 injunction.” (Mem. of P. & A. at 3.) Under Rule 23(c)(2), “the court shall direct” notice

8 to class members, which is commonly understood to mean that the court “should order one

9 of the parties to perform the necessary tasks.” Oppenheimer Fund, Inc. v. Sanders, 437

10 U.S. 340, 354 n.21 (1978). In instances where defendants “may be able to perform a

11 necessary task with less difficulty or expense than could the representative plaintiff,” a

12 district court “properly may exercise its discretion under Rule 23(d) to order the defendant

13 to perform the task in question.” Id. at 355–56; see also Barahona-Gomez v. Reno, 167

14 F.3d 1228, 1236–37 (9th Cir. 1999).

15

First, the parties disagree on the ability of the class members to independently raise

16 their entitlement to relief under the Preliminary Injunction during administrative

17 proceedings. Defendants take the position that only class members with final removal

18 orders should be identified and screened for class membership, because those with ongoing

19 cases can affirmatively raise their claims at later stages of the administrative proceedings.

20 (Lev Decl. ¶¶ 7b, 11.) Plaintiffs challenge the effectiveness of requiring class members to

21 recognize their entitlement to relief and raise these claims on their own, and note that

22 Defendants are not screening those with final removal orders in ICE custody as a failsafe

23 if class members are unsuccessful in doing so. (Mem. of P. & A. at 16.)

24

As the Court notes above, the Preliminary Injunction applies to a class defined by

25 whether purported members were metered at ports of entry before July 16, 2019, not by

26 the class members’ current stage of removal proceedings. Further, the Court agrees, given

27 the general complexity of immigration law and its recently changing landscape, that

28 requiring class members to identify their right to relief under the Preliminary Injunction is

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1 an unreasonable allocation of the notice burdens under Rule 23(d). See Castro-O’Ryan v.

2 U.S. Dep’t of Immigration & Naturalization, 821 F.2d 1415, 1419 (9th Cir. 1987),

3 superseded, 847 F.2d 1307 (9th Cir. 1987) (“[T]he immigration laws have been termed

4 second only to the Internal Revenue Code in complexity. A lawyer is often the only person

5 who could thread the labyrinth.”) (citations and quotations omitted). Thus, the Court finds

6 it appropriate for Defendants to make reasonable efforts to aid in identifying potential class

7 members at all stages of removal proceedings.5 See Barahona-Gomez v. Reno, 167 F.3d

8 at 1237 (finding district court did not err in requiring the government to provide notice

9 where “notice was required to inform class members that equitable relief may be

10 available,” “to ensure that the INS did not mistakenly deport a class member,” and where

11 “the INS [was] unique positioned to ascertain class membership”).

12

In light of this and the Court’s finding below regarding information sharing, the

13 Court finds that it is not necessarily easier for Defendants to notify individuals who are not

14 in expedited removal proceedings, regular removal proceedings, or otherwise in DHS

15 custody (such as ICE or CBP custody) of their potential class membership. For these

16 individuals, Plaintiffs and their counsel will have access to the same contact details of class

17 members and can facilitate the notification process for those who were removed and remain

18 outside the United States or for those who otherwise are not in pending administrative

19 proceedings or in the custody of the government.

20

Second, there is an issue regarding supporting documentation. Plaintiffs seek

21 clarification that Defendants are required to review their own documentation to help

22 identify class members because they have already made efforts to do so and because they

23 have access to these and other relevant documents, such as immigration files of potential

24 class members. (Mem. of P. & A. at 15–16.) Defendants concede that they have “twice

25 generated a list of aliens in ICE’s custody who received negative credible-fear

26
27 5 This would not shift the burdens during removability proceedings. As Plaintiffs readily concede, individuals would still bear the burden of demonstrating their class membership, and therefore their
28 eligibility for relief, to immigration officials. (Reply at 8.)

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1 determinations from USCIS pursuant to the [Asylum Ban], and those whose cases were

2 not pending before EOIR.” (Opp’n at 24.) However, they argue that because these lists

3 were both over- and under-inclusive, they should not be required to produce them. (Id.)6

4 Considering the administrative complexity of the instant case—as attested to by

5 Defendants themselves— the Court sees no reason for this information, however imperfect,

6 to be withheld. Deficient lists can be cross-referenced with immigration files, annotated I-

7 213s, and other documentation—all within Defendants’ custody—through which class 8 members can be identified and corroborated. See Oppenheimer, 437 U.S. at 355–56.7

9 Thus, Defendants must review their own records to aid in the identification of class

10 members and must share the information in their custody regarding the identities of class

11 members with Plaintiffs.

12

D. Motion to Seal

13

Plaintiffs request to redact and seal the names of asylum seekers and A-file numbers

14 contained in Exhibits 1–3 to their Motion and to seal excerpts from the transcript of the

15 June 2, 2020 deposition of Rodney Harris attached as Exhibit 4. (Pls.’ Mot to Seal, ECF

16 No. 495.) Defendants filed a Response in support of the motion. (Defs.’ Resp., ECF No.

17 531.)

18

As to the identifying information of asylum seekers, both parties request sealing

19 these details for privacy and confidentiality reasons. The Court has previously allowed

20

21 6 Defendants also rehash their ascertainability arguments from their class certification and preliminary
22 injunction opposition briefs—“that there is no reliable, comprehensive way to identify class members and 23 that attempts to do so would be substantially burdensome.” (Opp’n at 23.) Defendants cite to various
deficiencies in their own recordkeeping—e.g., that the annotated I-213s cover only certain time periods 24 and EOIR’s records do not track who was metered—to support their argument. The Court again rejects
these arguments on the basis that the class is based on a metering system established by Defendants and 25 that Defendants relied on lists managed by the Mexican Government to facilitate metering. (See Prelim.
Inj. at 28–29.) It therefore does not follow that determining who was subject to metering for purposes of 26 complying with the Preliminary Injunction now presents an insurmountable task.
27 7 The situation prompting Plaintiffs to recently file an Emergency Motion (ECF No. 494) in this case reflect the challenges associated with identifying and corroborating class membership claims in this case.
28 (See ECF Nos. 574, 588, 595.)

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1 targeted redactions for this purpose and adopts the same reasoning to allow the parties to

2 do so here.

3

As to the Deposition of Rodney Harris (“Harris Deposition”), attached as Exhibit 4

4 to Plaintiffs’ Motion, Defendants explain that it should be sealed in its entirety because his

5 testimony relating to the lists of migrants waiting in shelters to enter the United States

6 includes communications between CBP and the State Department and between the U.S.

7 Government and non-governmental organizations working in Mexico. (Defs.’ Resp. at 4.)

8 According to Defendants, disclosure of these communications could chill communications

9 with officials in the Mexican Government or NGO personnel and reveal “the manner in

10 which Mexico operates shelter systems along the border and specific actions taken by the

11 Mexican.” (Id.)

12

The Court does not find compelling reasons to seal this testimony. First, the fact

13 that information-sharing occurs between U.S. and Mexican officials regarding the list of

14 asylum seekers has already been publicly disclosed as a part of the metering policy. (See

15 Prelim. Inj. at 27–28.) Further, the testimony does not describe wide-ranging discussions

16 between CBP, the State Department, and /or the Mexican Government regarding border

17 infrastructure or security measures; rather, it is limited to questions about Defendants’

18 access to the waitlists, which is at the core the parties’ dispute over class member

19 determination. There is one vague reference to the utility of the lists; the remainder of the

20 testimony excerpts confirms, in general terms, that lists were exchanged between shelters,

21 the INM, and CBP, to which Harris played a peripheral role in facilitating. Thus, the Court

22 denies the Motion to Seal. However, the Court will allow Defendants to redact the names

23 of State Department and other non-party contacts to maintain their privacy.

24 V. CONCLUSION

25

Accordingly, Plaintiffs’ Motion for Clarification of the Preliminary Injunction (ECF

26 No. 494) is GRANTED. The Court CLARIFIES the Preliminary Injunction as follows:

27

(1) EOIR is bound by the terms of the preliminary injunction;

28

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1

(2) DHS and EOIR must take immediate affirmative steps to reopen or reconsider

2 past determinations that potential class members were ineligible for asylum based on the

3 Asylum Ban, for all potential class members in expedited or regular removal proceedings.

4 Such steps include identifying affected class members and either directing immigration

5 judges or the BIA to reopen or reconsider their cases or directing DHS attorneys

6 representing the government in such proceedings to affirmatively seek, and not oppose,

7 such reopening or reconsideration;

8

(3) Defendants must inform identified class members in administrative

9 proceedings before USCIS or EOIR, or in DHS custody, of their potential class

10 membership and the existence and import of the preliminary injunction; and

11

(4) Defendants must make all reasonable efforts to identify class members,

12 including but not limited to reviewing their records for notations regarding class

13 membership made pursuant to the guidance issued on November 25, 2019, and December

14 2, 2019, to CBP and OFO, respectively, and sharing information regarding class members’

15 identities with Plaintiffs.

16

***

17

Further, the Court GRANTS IN PART the Motion to Seal (ECF No. 495). The

18 Clerk shall accept and file under seal Exhibit 1 (ECF No. 496-1), Exhibit 2 (ECF No. 496-

19 2), and Exhibit 3 (ECF No. 496-3) to Plaintiffs’ Motion. However, the Court DENIES

20 WITHOUT PREJUDICE the request to seal Exhibit 4 to Plaintiffs’ Motion (Deposition

21 of Rodney Harris). Defendants shall file a redacted version of this exhibit, in accordance

22 with the Court’s aforementioned instructions, by November 13, 2020, which shall be

23 accepted and filed by the Clerk upon receipt. The exhibit shall remain sealed in the interim.

24

Lastly, for the reasons stated above, Plaintiffs’ Ex Parte Motion for Oral Argument

25 is DENIED AS MOOT (ECF No. 509).

26

IT IS SO ORDERED.

27

28 DATED: October 30, 2020

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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

8

9 AL OTRO LADO, et al.,

Case No. 17-cv-02366-BAS-KSC

10
v.
11

Petitioners, TEMPORARY RESTRAINING ORDER

PETER T. GAYNOR, Acting Secretary 12 of Homeland Security, et al.,

13

Respondents.

14

15

Before the Court is Plaintiffs’ Motion for a Temporary Restraining Order (“Motion”)

16 requesting that the Court prohibit Defendants from applying yet another regulation— titled

17 Asylum Eligibility and Procedural Modification, 85 Fed. Reg. 82,260 (Dec. 17, 2020)

18 (“Final Transit Rule”)—to members of the provisional class previously certified by this

19 Court. (ECF No. 658.) Defendants oppose the Motion and Plaintiffs reply. (ECF Nos.

20 667, 670.) For the reasons stated below, the Court GRANTS Plaintiffs’ Motion and

21 temporarily restrains Defendants from applying this regulation to provisional class

22 members.

23 I. BACKGROUND

24

Plaintiffs’ underlying claims in this case concern Defendants’ purported “Turnback

25 Policy,” which included a “metering” or “waitlist” system in which asylum-seekers at the

26 southern border were instructed “to wait on the bridge [at a port of entry], in the pre-

27 inspection area, or at a shelter”—or were simply told that “they [could not] be processed

28 because the ports of entry [were] ‘full’ or ‘at capacity[.]’” (Second Am. Compl. ¶ 3, ECF

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1 No. 189.) Plaintiffs allege that this policy was intended to deter individuals from seeking

2 asylum in the United States, in violation of constitutional, statutory, and international law.

3 (Id. ¶¶ 3, 5, 72–83.) The Court has certified the class in this underlying dispute. (ECF No.

4 513.) The parties have also filed and briefed cross motions for summary judgment that

5 await resolution. (ECF Nos. 535, 563.)

6

During the pendency of this action, Defendants have promulgated new asylum

7 eligibility regulations—including the Final Transit Rule—that have threatened the

8 preservation of the underlying class of metered asylum-seekers. This has led to a morass

9 of litigation ancillary to the primary case regarding the lawfulness of Defendants’ metering

10 practices. The Court summarizes this byzantine procedural history below.

11

A. Asylum Ban

12

On July 16, 2019, Defendants promulgated a regulation entitled “Asylum Eligibility

13 and Procedural Modifications”—also known as the “Asylum Ban” or the “Interim Final 14 Rule” (“IFR”).1 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. §§ 208.13(c)(4),

15 1208.13(c)(4). Among other things, the rule renders asylum seekers who enter, attempt to

16 enter, or arrive at the United States-Mexico border after July 16, 2019 ineligible for asylum

17 if they transit through at least one country, other than their country of origin, and fail to

18 apply for any available humanitarian protection in that country.

19

Plaintiffs moved for a preliminary injunction and provisional class certification to

20 partially enjoin the application of the IFR to asylum-seekers from countries other than

21 Mexico who were metered before its effective date. (ECF Nos. 293, 294.) They argued

22 that: (1) the provisional class was prevented from accessing the asylum process before the

23 effective date of the IFR only because they were subject to Defendants’ unlawful metering

24 practices; and (2) the IFR, if applied to this class, would preclude these individuals from

25 obtaining any form of humanitarian protection, since they their 30-day window to apply for

26 asylum in Mexico—a country through which they transited—had already expired.

27 1 Because the Final Transit Rule refers to this initial regulation as the IFR, the Court does the same in this
28 Order for the sake of clarity.

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1

On November 19, 2019, the Court granted Plaintiffs’ Motions. (Prelim. Inj., ECF

2 No. 330.) The Court’s order was partly based on its previous finding that Plaintiffs located

3 on Mexican soil at the time they were metered were “arriving in” the United States for

4 purposes of asylum under the plain language of the Immigration and Nationality Act

5 (“INA”). (See id. at 4–5 (citing Al Otro Lado v. McAleenan, 394 F. Supp. 3d 1168, 1199–

6 1201 (S.D. Cal. 2019)).) In its concluding paragraph, the Court issued the following order:

7

The Court provisionally certifies a class consisting of “all non-Mexican

asylum seekers who were unable to make a direct asylum claim at a U.S. POE

8

before July 16, 2019 because of the U.S. Government’s metering policy, and

who continue to seek access to the U.S. asylum process.”

9

…

10

Defendants are hereby ENJOINED from applying the Asylum Ban to

11

members of the aforementioned provisionally certified class and ORDERED to return to the pre-Asylum Ban practices for processing the asylum

12

applications of members of the certified class.

13 (Id. at 36.)

14

Defendants appealed the Preliminary Injunction to the Ninth Circuit. (ECF No. 335.)

15 After granting an administrative stay on December 20, 2019, the Ninth Circuit denied

16 Defendants’ motion to stay the Preliminary Injunction on March 5, 2020. (ECF Nos. 369,

17 418.) The court heard oral argument on July 10, 2020 on the merits of the appeal but issued

18 an order on December 2, 2020 holding the proceedings in abeyance pending issuance of

19 the mandates in two related cases. (ECF No. 636.)

20

B. Subsequent Litigation

21

While this underlying appeal of the Preliminary Injunction has been pending, several

22 disputes related to the Preliminary Injunction or the provisionally certified class have arisen

23 between the parties.

24

First, Plaintiffs moved for a temporary restraining order similar to the instant motion

25 but concerning a different regulation, “Implementing Bilateral and Multilateral Asylum

26 Cooperative Agreements Under the Immigration and Nationality Act” (the “ACA Rule”).

27 (ECF Nos. 344, 352.) Plaintiffs claimed Defendants intended to impose the ACA Rule on

28 members of the provisional class to extinguish their underlying metering claims and bar

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1 them from accessing the asylum process. (Id.) The Court denied the motion without

2 prejudice, finding that Plaintiffs had not established a likelihood that Defendants would

3 apply the new regulation to class members. (ECF No. 382.) The Court also based its

4 decision on the fact that the terms of the Preliminary Injunction, if affirmed on appeal,

5 would require Defendants to “return to the pre-Asylum Ban practices” for asylum-seekers

6 metered before July 16, 2019 and therefore “necessarily prohibit[ed]” the application of the

7 more recently promulgated ACA Rule. (Id. at 5–6.) The Court stated that it assumed

8 Defendants would act in good faith by “avoid[ing] taking steps that could complicate or

9 preclude its compliance with a court order.” (Id. at 6.)

10

Second, on July 17, 2020, Plaintiffs filed a Motion for Clarification of the

11 Preliminary Injunction after the parties failed to resolve disputes about the scope of the

12 order and Defendants’ attendant obligations. (ECF No. 494.) The Court then issued an

13 order on October 30, 2020 (the “Clarification Order”) clarifying that the Preliminary

14 Injunction: (1) applied to individuals denied asylum before the order issued and during the

15 administrative stay; (2) bound the Executive Office of Immigration Review to the terms of

16 the order; and (3) required Defendants to take affirmative steps to reopen or reconsider past

17 asylum denials for class members, make reasonable efforts to identify class members and

18 inform them of their class membership, and share identifying information with Plaintiffs.

19 (ECF No. 605.)

20

Defendants appealed the Clarification Order and moved to stay the order in this

21 Court. (ECF Nos. 636, 637.) The briefing on the motion to stay is ongoing. (ECF No.

22 641.) On December 18, 2020, the Ninth Circuit granted in part and denied in part

23 Defendants’ request for an administrative stay. (ECF No. 652.) The stay applies to the

24 Clarification Order’s requirement that Defendants take affirmative steps to find and reopen

25 or reconsider the asylum denials of provisional class members that became final before the

26 Preliminary Injunction was entered or during the period of the administrative stay, but was

27 denied in all other respects. (Id.)

28

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1

Lastly, Plaintiffs have filed another Motion to Enforce the Preliminary Injunction on

2 December 15, 2020, citing continued conflicts over the implementation measures required

3 by the Clarification Order. (See ECF Nos. 644, 657, 665.)

4

C. New Regulation

5

The regulation that is the subject of the instant Motion, referred to by Defendants as

6 the “Final Transit Rule,” purports to “respond[] to comments received on the [IFR],”

7 “make[] minor changes to regulations implemented or affected by the IFR for clarity and

8 correction of typographical errors,” and “adopt[] ‘as final’ certain of the IFR’s amendments

9 to the Code of Federal Regulations.” (Defs.’ Opp’n to Pls.’ Mot. (“Opp’n”) at 6 (citing

10 Asylum Eligibility and Procedural Modification, 85 Fed. Reg. 82,260, 82,289 (Dec. 17,

11 2020)).)

12

Relevant here is the Final Transit Rule’s response to a comment that the IFR conflicts

13 with the language of the INA establishing that “[a]ny alien who . . . arrives in the United

14 States (whether or not at a designated port of arrival . . . ) . . . may apply for asylum.” 8

15 U.S.C. § 1158(a)(1). In response, the rule clarifies that the IFR

16

applies to all aliens who enter, attempt to enter, or arrive in the United States

17

across the southern land border on or after July 16, 2019. These three terms .

. . require physical presence in the United States, and, as a result, any aliens

18

who did not physically enter the United States before July 16, 2019, are

19

subject to this rule. This includes, for example, aliens who may have

approached the U.S. border but were subject to metering by DHS at a land

20

border port of entry and did not physically cross the border into the United

21

States before July 16, 2019.

22 (85 Fed. Reg. at 82,268 (emphasis added).) In a footnote immediately following this

23 paragraph, the rule further explains:

24

The Departments note that this result is different from the district court’s

25

reasoning in granting a preliminary injunction in Al Otro Lado, Inc. v.

McAleenan, 423 F. Supp. 3d 848, 875–76 (S.D. Cal. 2019), which included

26

aliens who approached a U.S. port of entry but were not immediately

27

permitted to cross the border as within the class of aliens who had “attempted

to enter or arrived in” the United States. See Al Otro Lado v. McAleenan, 394

28

F. Supp. 3d 1168, 1199–1205 (S.D. Cal. 2019). The district court’s

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1

interpretation is contrary to the Departments’ intent, as explained below. The

Departments also note that, even if aliens subject to metering prior to July 16,

2

2019, were exempt from this rule, they would nevertheless become subject to

3

the rule upon any subsequent entry into the United States.

4 (Id. n.22.) The Final Transit Rule then explains that agencies intend the terms “entry,”

5 “attempted entry,” and “arrival” to require physical presence in the United States, excluding

6 asylum-seekers whom CBP “encounter[s] at the physical border line of the United States

7 and Mexico, who have not crossed the border line at the time of that encounter[.]” Id. at

8 82,269. The rule takes effect on January 19, 2021. 9 II. LEGAL STANDARD2

10

The purpose of a temporary restraining order is to “preserv[e] the status quo and

11 prevent[] irreparable harm just so long as is necessary to hold a hearing, and no longer.”

12 Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S.

13 423, 439 (1974) (footnote omitted). If the nonmovant has received notice of a motion for

14 a temporary restraining order, the standard for issuing such order is the same as that for

15 issuing a preliminary injunction. See Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc.,

16 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes

17 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). Here, Defendants have received

18 notice of the Motion and have had the opportunity to be heard in opposition. Therefore,

19 the preliminary injunction standard applies.

20

To obtain preliminary injunctive relief, a movant must “meet one of two variants of

21 the same standard.” All for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).

22 Under the first standard, the movant must show “that he is likely to succeed on the merits,

23

24 2 The parties dispute whether this Court must issue another injunction to enjoin the Final Transit Rule or

25

whether prohibiting the application of this rule requires only that the Court enforce its initial Preliminary Injunction. Defendants claim that the Final Transit Rule is a “new agency action” requiring a new

26 injunction. (Opp’n at 12–13.) Plaintiffs argue nothing prevents the Court from modifying or enforcing its earlier Preliminary Injunction against the Final Transit Rule. (Mot. at 7–12; Reply at 3.) The parties

27 provide little by way of citation to supporting authorities for their arguments. In any event, solely for

purposes of this Order, the Court assumes without deciding that separate injunctive relief is required to 28 provide a remedy in this instance, and therefore applies the preliminary injunction standard to its analysis.

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1 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

2 balance of equities tips in his favor, and that an injunction is in the public interest.” Id.

3 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Under the

4 second standard, the movant must show “that there are serious questions going to the

5 merits—a lesser showing than likelihood of success on the merits,” that the “balance of

6 hardships tips sharply in the Plaintiff’s favor,” and that “the other two Winter factors are

7 satisfied.” Id. (quotation omitted). “Serious questions are substantial, difficult and

8 doubtful, as to make them a fair ground for litigation and thus for more deliberative

9 investigation.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)

10 (quotations and citation omitted). The balance of equities and public interest factors merge

11 “[w]hen the government is a party.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092

12 (9th Cir. 2014) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).

13 III. ANALYSIS

14

The Court finds that Plaintiffs have sufficiently shown that serious questions exist as

15 to the merits of this challenge, that class members are likely to suffer irreparable harm in

16 the absence of the requested relief, and that the balance of equities and public interest tip

17 strongly in their favor.

18

First, Defendants allege that it is lawful under the Executive’s rulemaking authority

19 to proceed with the issuance of a final rule despite the existence of the Preliminary

20 Injunction on the same topic. (Opp’n at 11–12.) However, this is an incomplete

21 characterization of the facts of this case. The Court previously interpreted the asylum

22 provisions of a statute, the INA, to apply to asylum-seekers metered at ports of entry, thus

23 concluding that these individuals could have requested asylum but for Defendants’

24 metering practices. Defendants now claim that their rulemaking authority can be used to

25 craft definitions in a regulation that run contrary to the Court’s interpretation of the same

26 language in the enabling statute, all for the explicit purpose of circumventing the Court’s

27 Preliminary Injunction. It is at least questionable, if not altogether doubtful, that

28 Defendants can redefine statutory terms in a regulation in direct contradiction to the Court’s

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1 plain language interpretation, especially when their intention in doing so is to evade the 2 import of the Court’s previous rulings.3 See California Cosmetology Coal. v. Riley, 871

3 F. Supp. 1263, 1270 (C.D. Cal. 1994) (citing Koshland v. Helvering, 298 U.S. 441, 447

4 (1936)) (“A regulation may not serve to amend a statute or to add to the statute something

5 which is not there.” ), aff’d, 110 F.3d 1454 (9th Cir. 1997); see also Brown v. Gardner, 513

6 U.S. 115, 122 (1994) (“[T]he fact . . . that [a regulation] flies against the plain language of

7 the statutory text exempts courts from any obligation to defer to it.”). The Final Transit

8 Rule’s lengthy interpretive arguments to the contrary cannot preemptively resolve these

9 serious questions arising from this rather blatant evasive maneuvering around the Court’s

10 interpretation of the INA.

11

This action is especially legally dubious because the Court’s interpretation has not

12 been overturned or otherwise invalidated on appeal, which is still pending resolution.

13 Indeed, the Ninth Circuit expressed in its order denying Defendants’ motion for stay that

14 this Court’s “linguistic and contextual analysis has considerable force” and affirmed that

15 pursuant to this statutory interpretation, “a class member’s first arrival triggered a statutory

16 right to apply for asylum and have that application considered . . . . As the [IFR] was not in

17 place at the time each class member’s right to apply for asylum attached, it makes sense

18 that it would not apply.” Al Otro Lado, Inc. v. Wolf, 952 F.3d 999, 1013–14 (9th Cir. 2020).

19 This Court sees no reason why this rationale would not apply equally to the Final Transit

20 Rule, which will take effect 18 months after the IFR.

21

The remaining prongs of the preliminary injunctive standard are easily met,

22 considering the similarities between the Final Transit Rule and the IFR. It is clear that

23 irreparable injury would occur if this relief were not issued. Defendants are unambiguous,

24 both in the regulatory language of the Final Transit Rule and in their briefings, that one

25
26 3 Further, as aforementioned, the Court previously denied Plaintiffs’ request for a temporary restraining order regarding the ACA Rule on the basis that Defendants would comply in good faith with the
27 instructions in the Preliminary Injunction, which implicitly barred the ACA Rule’s implementation as to the class. It follows that the Final Transit Rule—which simply modifies the previously enjoined IFR—
28 would be subject to the same prohibition.

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1 purpose of the rule is to ensure that the asylum eligibility limitation applies to the asylum-

2 seekers metered at the border who form the specific provisional class certified in this case.

3 It is thus beyond doubt that Defendants seek to enforce the regulation against the class, and

4 that without injunctive relief, Plaintiffs will be permanently barred from seeking asylum in

5 the United States and could face physical danger if forced to return to their countries of

6 origin. Lastly, given that the Final Transit Rule is an extension of the IFR previously

7 enjoined, the Court finds that the balance of equities and public interest analysis stated in

8 its Preliminary Injunction applies here with the same force. (See Prelim. Inj. at 34–35.)

9 These factors favor Plaintiffs because Defendants’ metering practices were the root cause

10 of their inability to access the asylum process prior to the promulgation of the IFR. This

11 remains true for any regulation that seeks to limit asylum eligibility, including the Final

12 Transit Rule.

13

Lastly, Defendants raise several challenges to this Court’s jurisdiction to hear this

14 Motion under various jurisdiction-stripping provisions of the INA and under the All Writs

15 Act. (See Opp’n at 9–11.) It is well-settled that a court may issue the orders necessary to

16 determine its own jurisdiction. See United States v. United Mine Workers of Am., 330 U.S.

17 258, 290 (1947) (“[T]he District Court unquestionably had the power to issue a restraining

18 order for the purpose of preserving existing conditions pending a decision upon its own

19 jurisdiction.”); see also Derminer v. Kramer, 386 F. Supp. 2d 905, 906 (E.D. Mich. 2005)

20 (“A court always has jurisdiction to determine its jurisdiction.”).4

21 4 The Court also notes that the way in which the Rule was authorized also raises questions as to its validity.
22 The Rule states:

23

The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved

this document, is delegating the authority to electronically sign this document to Chad R.

24

Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS,

25

for purposes of publication in the Federal Register.

26 85 Fed. Reg. at 82,289. Recently, the Northern District of California issued a preliminary injunction regarding other regulations signed in a similar manner, finding that the plaintiffs had shown a likelihood
27 that DHS lacked authority through Wolf for the proposed rulemaking because he was not nominated by
the President and confirmed by the Senate. Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., No. 2028 CV-09253-JD, 2021 WL 75756, at *3 (N.D. Cal. Jan. 8, 2021). Several other courts have also invalidated

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1

Because of complex issues raised in this Motion, the Court finds that it is necessary

2 to enjoin the application of the Final Transit Rule to the provisional class pending the

3 Court’s determination regarding the merits.

4 IV. CONCLUSION

5

Accordingly, the Court GRANTS Plaintiffs’ Motion for a TRO (ECF No. 658).

6 Defendants are TEMPORARILY ENJOINED from applying 85 Fed. Reg. 82,260 (Dec.

7 17, 2020) to all non-Mexican asylum seekers who were unable to make a direct asylum

8 claim at a U.S. Port of Entry (“POE”) before July 16, 2019 because of the U.S.

9 government’s metering policy, and who continue to seek access to the U.S. asylum process.

10 This Order extends to Defendants and any other federal officials and personnel involved in

11 the asylum and/or removal process.

12

IT IS FURTHER ORDERED that a telephonic oral argument on the issues raised

13 in the Motion is set for February 3, 2021 at 1:30 p.m. This temporary restraining order

14 shall remain in effect until this date.

15

Information for calling into the teleconference is listed below. The parties and the

16 public may access the hearing by calling the Court’s teleconference number before 1:30

17 p.m. When prompted, enter the access code followed by the pound sign (#).

18

Teleconference number: (888) 557-8511

19

Access code: 6968297

20 Any members of the public that join the teleconference must mute their lines after joining.

21

IT IS SO ORDERED.

22

23 DATED: January 18, 2021

24

25

Wolf’s action on the basis that he was not a duly authorized Acting Secretary. See Batalla Vidal v. Wolf, No. 16-CV-4756 (NGG) (VMS), ––– F. Supp. 3d ––––, ––––, 2020 WL 6695076, at *9 (E.D.N.Y. Nov.

26 14, 2020); Nw. Immigrant Rights Project v. United States Citizenship & Immigration Servs., No. CV 193283 (RDM), ––– F. Supp. 3d ––––, ––––, 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020); Immigrant

27 Legal Res. Ctr. v. Wolf, No. 20-CV-05883-JSW, ––– F. Supp. 3d ––––, ––––, 2020 WL 5798269, at *7

(N.D. Cal. Sept. 29, 2020); Casa de Maryland, Inc. v. Chad F. Wolf, Case No. 8:20-cv-02118-PX, ––– 28 F.Supp.3d ––––, ––––, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).

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