Castellar v. Mayorkas
| Decision Date | 08 September 2021 |
| Docket Number | 17-cv-00491-BAS-AHG |
| Parties | JOSE ORLANDO CANCINO CASTELLAR, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION (ECF No. 125) AND CERTIFYING THE CLASS FOR DECLARATORY RELIEF
In this action, individuals who were held in the custody of Defendants Department of Homeland Security (“DHS”) and its agencies challenge Defendants for not providing prompt presentment to an immigration judge within 48 hours of arrest. Plaintiffs seek to certify a class of individuals, other than unaccompanied minors or individuals with administratively final removal orders, who are or will have been in the civil custody of the San Diego offices of Defendants for longer than 48 hours and have not had a hearing before an immigration judge for declaratory and injunctive relief.
The Court is asked to decide whether it has jurisdiction under Section 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252, to certify the class. The Court is also asked to decide whether the proposed class definition in the renewed motion for class certification improperly broadens the class, as compared to the class definition set forth in the Complaint. After resolving these preliminary issues, the Court must decide whether the proposed class satisfies the requirements of Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
The Court holds that it lacks jurisdiction under Section 1252(e)(1) to certify the class as to individuals screened for or subject to expedited removal proceedings under Section 1225(b)(1) because the statute requires that those individuals be held in mandatory detention. The Court separately holds that Section 1252(f)(1) strips it of jurisdiction to certify the class for injunctive relief. In addition, the Court finds that Plaintiffs impermissibly broaden the class by including individuals detained outside of the district in the class definition, who were not included in the initial proposed class definition set forth in the Complaint. The Court exercises its jurisdiction to redefine the class as follows:
All individuals in the Southern District of California-other than individuals subject to expedited removal under 8 U.S.C § 1225(b)(1), unaccompanied minors, or individuals with administratively final removal orders-who (1) are or will have been in the civil custody of the San Diego offices of Defendants for longer than 48 hours and (2) have not had a hearing before an immigration judge.
The Court concludes that it has jurisdiction to certify the class as redefined for declaratory relief and that the redefined class satisfies the requirements of Rule 23(a) and (b)(2). Accordingly, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' renewed motion for class certification. (ECF No. 125.)
Plaintiffs Jose Orlando Cancino Castellar, Ana Maria Hernandez Aguas, and Michael Gonzalez (“Named Plaintiffs”) filed the Complaint on March 9, 2017. (Compl., ECF No. 1.) At the time of the filing of the Complaint, Named plaintiffs had been in Defendants' custody for more than 48 hours following their initial arrests without having seen an immigration judge. (Compl. ¶¶ 9-11, 47-49, ECF No. 1.)
The Complaint describes Cancino Castellar as a noncitizen eligible for Deferred Action for Childhood Arrivals (DACA). (Compl. ¶ 47.) Cancino Castellar's Form I-213[2]indicates that he was a student with no criminal history and had lived in the United States from 2004, when he was five years old. (ECF No. 171-9 at 1, 3.) DHS took Cancino Castellar into custody on February 17, 2017, and detained him at the Otay Mesa Detention Center. (Compl. ¶ 47.) On February 21, 2017, ICE issued him a Notice to Appear (“NTA”) and a warrant for his arrest and determined that he should not be released from custody. (ECF 28-2, at 4-5, NTA.) The NTA was filed with the immigration court on February 24, 2017. (Id.) At the time of the filing of the Complaint, on March 9, 2017, Cancino Castellar had not seen an immigration judge nor had he been notified of a date for an initial appearance or a bond hearing. (Compl. ¶ 47; Cancino Castellar Decl. ¶ 8, ECF No. 125-4.) Cancino Castellar first saw an immigration judge on March 23, 2017. (ECF No. 28-2 at 9, Notice of Hearing.)
The Complaint describes Hernandez Aguas as a mother of two U.S. citizen children eligible to apply for cancellation of removal. (Compl. ¶ 48.) DHS took Hernandez Aguas into custody on February 7, 2017. (ECF No. 28-2 at 9.) She was processed at a Border Patrol station in San Clemente and was sent to another station in Chula Vista, where she stayed until February 12, 2017. (Hernandez Aguas Decl. ¶¶ 5-6, ECF No. 125-5.) Hernandez Aguas was detained first at the San Luis Regional Detention Center for two days and then after at the Otay Mesa Detention Center. (Compl. ¶ 48.) ICE filed Hernandez's NTA with the immigration court on February 21, 2021. (Hernandez Aguas NTA, ECF No. 171-7.) At the time of the filing of the Complaint, she had not seen an immigration judge nor been scheduled for an initial master calendar hearing. Hernandez Aguas was presented to an immigration judge for the first time at a bond hearing on March 13, 2017. (Compl. ¶ 48; Hernandez Aguas Decl. ¶¶ 9-11, ECF No. 125-6.)
Michael Gonzalez was taken into custody on November 17, 2016, at the San Ysidro Port of Entry, where he expressed a fear of persecution in Mexico. (Gonzalez Decl. ¶¶ 4- 5, ECF No. 125-7.) Gonzalez told a CBP official that he is a United States Citizen and that he was fearful of being forced to live in Mexico.[3] (Id. ¶ 5.) He was transferred to the Otay Mesa Detention Center a week later. (Id.) An asylum officer conducted a credible fear interview and determined that Gonzalez had a credible fear of persecution. (Id. ¶ 7.) DHS served Gonzalez with an NTA on January 5, 2017, and his first hearing in immigration court was scheduled for April 5, 2017. (Id. ¶¶ 8, 9.) At the time of the filing of the Complaint, Gonzalez had been detained at the Otay Mesa Detention Center without seeing an immigration judge. (Compl. ¶ 49.)
The statutory and regulatory framework relevant to this action is set forth in the Court's prior orders. (ECF Nos. 49, 56, 63.) The Court briefly summarizes some significant parts here.
An immigration officer may arrest a noncitizen individual with or without a warrant. 8 U.S.C. §§ 1226(a) (), 1357(a)(2) (). A warrant is required unless the immigration officer apprehends a noncitizen individual while the individual is entering, attempting to enter, or is present in the United States in violation of the immigration laws. See 8 U.S.C. § 1357(a)(2).
If an arrest is made with a warrant, ICE “may” detain or release the arrested noncitizen individual pending the formal removal proceedings before an immigration judge. 8 U.S.C. § 1226(a). If an arrest is made without a warrant, the government must “without unnecessary delay” have an officer examine the arrested individual “as to [the individual's] right to enter or remain in the United States.” 8 U.S.C. § 1357(a)(2); see also 8 C.F.R. § 287.3(a) (). Upon finding “prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws, ” the examining officer must: refer the case to an immigration judge; order the individual removed on an expedited basis, pursuant to 8 U.S.C. § 1225(b)(1) and 8 C.F.R. § 235.3(b); or take other action as authorized by relevant law and regulations. 8 C.F.R. § 287.3(b). Within 48 hours of the arrest without a warrant, the officer must determine “whether the individual will be continued in custody or released” and whether to issue an NTA and an arrest warrant. 8 C.F.R. § 287.3(d).
Noncitizen individuals that the CBP determines inadmissible are ordinarily placed in a removal proceeding set forth in Section 240 of the INA unless a statutory exception applies. 8 U.S.C. § 1229a(a)(3). One such exception applies to arriving aliens and “certain other aliens” who recently entered the United States without inspection and lack valid entry documents or have tried to gain their admission by fraud. See 8 U.S.C. § 1225(b)(1). Those noncitizen individuals are placed in expedited removal proceedings under Section 235(b)(1) of the INA. Id.
A Section 240 removal proceeding is initiated when an immigration officer files an NTA against an alien with the immigration court, an entity within the Executive Office for Immigration Review (“EOIR”). 8 C.F.R. § 1239.1(a); see also 8 C.F.R. § 1003.14. By statute, the INA requires that “in order that an alien be permitted the opportunity to secure counsel before the first hearing date in [Section 240 removal proceedings], the hearing date shall not be scheduled earlier than 10 days after service of the [NTA], unless the alien requests in writing an earlier hearing date.” 8 U.S.C. § 1229(b)(1).
If a noncitizen individual “meets the requirements for expedited removal pursuant to 8 U.S.C. § 1225(b), DHS has the discretion to place them in the...
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