Casa Libre Freedom House v. Mayorkas

• Docket Number: 2:22-cv-01510-ODW (JPRx)
• Decision Date: 25 May 2023
• Parties: CASA LIBRE/FREEDOM HOUSE et al., Plaintiffs, v. ALEJANDRO MAYORKAS et al., Defendants.
• Court: U.S. District Court — Central District of California

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CASA LIBRE/FREEDOM HOUSE et al., Plaintiffs, v. ALEJANDRO MAYORKAS et al., Defendants.

No. 2:22-cv-01510-ODW (JPRx)

United States District Court, C.D. California

May 25, 2023

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION [58]

OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This is a putative class action challenging how the U.S. Department of Homeland Security (“DHS”) and U.S. Citizenship and Immigration Services (“USCIS”) handle and process Special Immigrant Juvenile (“SIJ”) petitions. The Plaintiffs are six individuals who submitted petitions for SIJ status and six organizations who provide legal and other assistance to such individuals. The Defendants are Alejandro Mayorkas, Secretary of DHS; Ur M Jaddou, Director of USCIS; and USCIS itself. Plaintiffs now move to certify a class of SIJ petitioners. (Mot. Certify Class (“Motion” or “Mot.”), ECF No 58.) For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion.

II. BACKGROUND

A. The SIJ Petition Process

In 1990, Congress created the SIJ classification to aid noncitizen children physically present in the United States who were declared dependent on state courts and were eligible for long-term foster care. Immigration Act of 1990, Pub. L. No. 101-649, § 153, 104 Stat. 4978 (1990). The purpose of the SIJ classification is to help alleviate “hardships experienced by some dependents of United States juvenile courts by providing qualified aliens with the opportunity to apply for special immigrant classification and lawful permanent resident status, with possibility of becoming citizens of the United States in the future.” 58 Fed.Reg. 42843-01, 42844, 1993 WL 304167 (Aug. 12, 1993).

In 1998, Congress revised the SIJ definition to include juveniles eligible for long-term foster care “due to abuse, neglect, or abandonment.” Dep'ts of Commerce, Justice, & State, the Judiciary, & Related Agencies Appropriations Act of 1998, H.R. 2267, Pub. L. 105-119, 105th Cong., at 22 (Nov. 26, 1997). More recently, in 2008, Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”). Pub. L. No. 110-457, § 235(d), 112 Stat. 5044 (2008). The TVPRA replaced the foster care requirement with more expansive language permitting young immigrants to apply for SIJ status based on a state court's finding that “reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” TVPRA § 235(d)(1)(A); Immigration & Nationality Act (“INA”) § 101(a)(27)(J)(i), 8 U.S.C. § 1101(a)(27)(J)(i); see J.L. v. Cissna, 341 F.Supp.3d 1048, 1055 (N.D. Cal. 2018). The TVPRA also amended the SIJ statute to require USCIS to adjudicate SIJ petitions within 180 days of filing. TVPRA § 235, 8 U.S.C. § 1232(d)(2). This provision governing timing is the key statutory provision at issue in this matter.

SIJ status is available if (1) the juvenile immigrant has been declared dependent on a juvenile court or legally committed to the custody of an individual or entity; (2) reunification with one or both of the juvenile immigrant's parents is not viable due to abuse, neglect, or abandonment; (3) it has been determined in administrative or judicial proceedings that it would not be in the juvenile immigrant's best interest to be returned to the juvenile immigrant's or parent's previous country of nationality or country of last habitual residence; and (4) the Secretary of Homeland Security consents to the grant of special immigrant juvenile status. See 8 U.S.C. § 1101(a)(27)(J). The petitioner must be under the age of twenty-one at the time they file their SIJ petition. 8 C.F.R. § 204.11(b)(1).

SIJ status provides a pathway to lawful permanent residency: once a juvenile immigrant's SIJ petition is approved, the juvenile immigrant may then apply to adjust their status to lawful permanent resident. 8 U.S.C. § 1255(a), (h).

B. The Proposed Class Representatives

Plaintiffs propose that two individual Plaintiffs serve as class representatives. The first is Carlos Abel Hernandez Arevalo. Arevalo filed his SIJ petition on December 8, 2021, and was twenty years old when this case was filed. (Compl. ¶¶ 61, 65, ECF No. 1; First Am. Compl. (“FAC”) ¶¶ 64, 68, ECF No. 34.) His petition remained pending when Plaintiffs filed their First Amended Complaint (April 22, 2022) and their initial, now-mooted class certification motion (April 25, 2022). Arevalo's petition was approved on December 3, 2022, almost a year after he originally filed it. (Decl. Peter Schey ISO Mot. (“Schey Decl.”) ¶ 8 Ex. C (“Arevalo Notice of Action”), ECF No. 58-1.)^[1]

The second proposed class representative is Rene Isai Serrano Montes. Montes filed his SIJ petition on August 30, 2021, and was twenty-one years old when this case was filed. (Compl. ¶¶ 68, 70; FAC ¶¶ 71, 73.) His petition also remained pending when Plaintiffs filed their First Amended Complaint and their initial class certification motion. Montes's SIJ petition was approved on June 2, 2022, about eleven months after he originally filed it. (Schey Decl. ¶ 12, Ex. G (“Montes Notice of Action”).)

C. Tolling Provisions

As part of the TVPRA, Congress amended the SIJ provision by adding an adjudication deadline mandating that “all applications for [SIJ classification] shall be adjudicated by the Secretary of Homeland Security not later than 180 days after the date on which the application is filed.” 8 U.S.C. § 1232(d)(2). In response to this legislative change, USCIS issued a notice of proposed rulemaking which included its interpretation of this 180-day rule. 76 Fed.Reg. 54978, 54983 (Sept. 6, 2011).

On March 7, 2022, USCIS announced that it would publish a final SIJ rule establishing its interpretation of the 180-day statutory timeframe for adjudication of SIJ petitions. USCIS Policy Alert (March 7, 2022) (“Policy Alert”).^[2] According to the final rule, USCIS follows two procedures with respect to the 180-day timeframe:

• When an SIJ petition lacks required initial evidence, USCIS may issue the petitioner a Request for Further Evidence (“RFE”) informing the petitioner what evidence was required and providing a deadline for submitting the additional evidence. See 8 C.F.R. § 103.2(b)(8)(ii). The 180-day time period starts over on the date USCIS receives the required initial evidence. Id. § 103.2(b)(10)(i).

• If USCIS requests that the SIJ petitioner submit additional evidence, USCIS may send the petitioner a RFE or a Notice of Intent to Deny (“NOID”). See 8 C.F.R. § 103.2(b)(8)(iii). The 180-day limitation is suspended as of the date the RFE or NOID is issued and resumes when USCIS receives the requested additional evidence. Id. § 103.2(b)(10)(i).

Herein, the Court refers to these rules as the “Tolling Provisions.” USCIS published the Tolling Provisions on March 8, 2022. SIJ Petitions, 87 Fed.Reg. 13066-01, 13112, 2022 WL 671891 (Mar. 8, 2022).

To clarify, USCIS is not statutorily required to issue a RFE or a NOID. Instead, when a SIJ petition is deficient, USCIS retains the discretion to choose, in each individual case, whether to (1) issue a RFE or a NOID, or (2) deny the petition altogether. 8 C.F.R. §§ 103.2(b)(8)(ii), (iii).

D. Procedural History

On March 7, 2022, the same day USCIS announced the final version of the Tolling Provisions, Plaintiffs filed their initial Complaint in this matter, setting forth two claims. (Compl., ECF No. 1.) Plaintiffs' first claim is an equal protection claim. (Id. ¶¶ 102-03.) Plaintiffs' second claim is for violation of the 180-day adjudication timeframe under 8 U.S.C. § 1232(d)(2), brought by way of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. (Id. ¶¶ 104-06.) On April 22, 2022, Plaintiffs filed the operative First Amended Complaint, setting forth the same two claims and amending the second claim in light of the newly announced Tolling Provisions. (See FAC.)

Plaintiffs made two early attempts to certify a class in this matter. (First Mot. Certify Class, ECF No. 35; Second Mot. Certify Class, ECF No. 37.) The Court struck the first motion for failure to meet and confer pursuant to Central District of California Local Rule 7-3, and the Court denied the second motion without prejudice pursuant to the parties' stipulation to stay the class certification issue pending the Court's disposition of any motions to dismiss. (Min. Order Strike, ECF No. 36; Min. Order Class Certification & Mot. Dismiss, ECF No. 40.)

Defendants subsequently moved to dismiss both claims. (Mot. Dismiss FAC, ECF No. 41.) The Court dismissed the equal protection claim in its entirety, leaving only the second claim at issue. (Order Mot. Dismiss FAC, ECF No. 48.)

Plaintiffs' second claim is styled as a claim for “routine[] violat[ions]” of 8 U.S.C. § 1232(d)(2). (FAC at 29.) The claim comprises two distinct subparts, and each subpart has its own distinct basis. First, Plaintiffs challenge “Defendants' policy and practice of routinely delaying the adjudication of SIJ petitions for longer than 180 days.” (FAC ¶ 109.) The Court refers to this subpart of the claim as “the missed deadline claim.” Second, Plaintiffs challenge the Tolling Provisions themselves. (Id.) The Court refers to this subpart of the claim as “the Tolling Provisions claim.”

On February 16, 2023, Plaintiffs again moved for class certification, and the Motion is fully briefed. (Mot.; Opp'n, ECF No. 63; Reply, ECF No. 65.) On May 22, 2023, the Court held a hearing on the Motion, with Peter Schey of the Center for Human Rights and Constitutional Law appearing for Plaintiffs and Alexa White of the U.S. Department of Justice appearing for Defendants. (Hr'g Mins., ECF No. 89.)

E. Galvez;...