Castellar v. Mayorkas
| Decision Date | 27 July 2022 |
| Docket Number | 17cv491-JO-AHG |
| Parties | JOSE ORLANDO CANCINO CASTELLAR, ANA MARIA HERNANDEZ AGUAS, MICHAEL GONZALEZ, Plaintiff-Petitioners, v. ALEJANDRO MAYORKAS, Secretary of Homeland Security; et al., Defendant-Respondents. |
| Court | U.S. District Court — Southern District of California |
ORDER IN RESPONSE TO THE PARTIES' MOTIONS FOR CLARIFICATION
After the Court granted in part Plaintiffs' renewed motion for class certification [Dkt. 179], the parties moved the Court to clarify its order with respect to how it defined the certified class. Dkts. 191, 192. The Court sua sponte construes these requests as motions to reconsider the Court's previous order and grants in part the relief requested by Plaintiffs and denies the relief requested by Defendants.
Plaintiffs brought this action to challenge Department of Homeland Security (“DHS”) and its agencies (“Defendants”) for its alleged practice of detaining individuals for longer than 48 hours without a hearing before an immigration judge. On October 16, 2020, Plaintiffs requested to certify a class of individuals held in the custody of Defendants for longer than 48 hours without a hearing before an immigration judge, excluding unaccompanied minors and individuals with administratively final removal orders. On September 8, 2021, the Court granted certification but defined 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. See Dkt. 179 (the “Order”).
The Court explicitly carved out from Plaintiffs' requested class definition “individuals subject to expedited removal under 8 U.S.C. § 1225(b)(1)” on the grounds that it lacked jurisdiction over these individuals.
On November 10, 2021, Plaintiffs and Defendants each separately moved to clarify the Court's order with respect to the category of individuals excluded from the class because they are “individuals subject to expedited removal.” Dkts. 191, 192. Defendants contend that any individual initially screened for expedited removal at the outset should remain excluded from the class because they are “individuals subject to expedited removal,” even if DHS ultimately places them in regular removal proceedings. Plaintiffs argue that the carve-out language above should not include individuals who have been transitioned to regular removal proceedings because they are no longer in expedited removal proceedings.
A. Relevant Statutory Framework
1. Regular Removal and Expedited Removal
Under the Immigration and Nationality Act (“INA”), non-United States citizens (referred to as aliens throughout the text of the INA) who do not meet the requirements for either entry at the border or continued presence in the United States may be subject to removal. Individuals subject to removal are placed into one of two types of removal proceedings: (1) regular removal under 8 U.S.C. § 1229a; or (2) expedited removal under 8 U.S.C. § 1225(b) for those who are apprehended at or near the border and lack valid entry documentation or misrepresent their identity. See 8 U.S.C. § 1229a(a)(2); 8 U.S.C. § 1225(b)(1)(A)(i). As discussed below, however, a person originally placed in expedited removal proceedings may be subsequently placed in regular removal proceedings if determined eligible to pursue asylum claims or at the discretion of DHS. 8 C.F.R. §§ 208.2(c)(1)-(3), 208.30(f); Order at 6; see also, e.g, Dkt. 171-5 at 23.
Regular removal proceedings are governed by § 1229a, which provides specific processes for the initiation of proceedings and final determinations of removability by an immigration judge. 8 U.S.C. § 1229a. After a non-citizen individual is apprehended as inadmissible or deportable, an immigration officer initiates regular removal proceedings by filing a Notice to Appear (“NTA”) against the individual with the immigration court, providing the time, place, and date of the initial hearing before an immigration judge. 8 C.F.R. § 1239.1(a); see also 8 C.F.R. §§ 1003.14,1003.18(b).[1] The first hearing in regular removal proceedings is the initial Master Calendar Hearing. Dkt. 1 ¶¶ 21, 29-30; Dkt. 281 at 6. At the initial Master Calendar Hearing, the immigration judge explains to the individual “the nature of the removal proceeding, the contents of the [NTA] ‘in nontechnical language,' an alien's right to representation at his or her own expense, and the availability of pro bono legal services.” Dkt. 1 ¶ 29 (citing 8 C.F.R. § 1240.10(a)). Following the initial Master Calendar Hearing, the individual receives a hearing at which the immigration judge decides admissibility or deportability. § 1229a.
In contrast, expedited removal proceedings under § 1225(b) provide a more streamlined route to removal without the judicial process available to those placed in regular removal proceedings. Individuals in expedited removal are removed from the United States “without further hearing or review unless [he or she] indicates either an intention to apply for asylum ... or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i).
For individuals who indicate that asylum proceedings may be appropriate as set forth above, the expedited removal process provides additional steps prior to removal. An asylum officer conducts an interview to determine whether the individual has a “credible fear,” defined as “a significant possibility,” taking credibility into account, “that the individual could establish eligibility for asylum.” §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B)(i), § 1225(b)(1)(B)(v). An individual is eligible for asylum under the INA when she is unable or unwilling to return to a country because of persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a social group, or political opinion. See 8 U.S.C. §§ 1158(b)(1)(A); 110l(a)(42)(A). After the interview, the asylum officer determines whether the individual has a credible fear as defined above.
If the asylum officer determines that the individual has a credible fear, he or she is detained and transferred to regular removal proceedings. The expedited removal statute requires an individual with a credible fear to be “detained for further consideration of the application for asylum.” § 1225(b)(1)(B)(ii). DHS refers such an individual to an immigration judge for regular removal proceedings under § 1229a, and an NTA is issued. See 8 C.F.R. § 208.30(f) (). Once an NTA issues, regular removal proceedings begin and § 1229a governs the proceedings. See 8 C.F.R. § 208.2(c)(1)-(3) (); 8 C.F.R. § 208.2(c)(3) ().[2] For individuals found not to have a “credible fear,” the expedited removal statute provides an opportunity for additional review of the asylum officer's determination before removal. Such individuals can request review of the determination by an immigration judge, which “shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the [asylum officer's credible fear] determination.” § 1225(b)(1)(B)(iii)(III). An individual in this category “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” § 1225(b)(1)(B)(iii)(IV).
Judicial review of the expedited removal process set forth in § 1225(b) is very limited. Only the United States District Court for the District of Columbia has jurisdiction to review challenges to the expedited removal scheme under certain limited circumstances. §§ 1252(e)(1)-(3). Furthermore, no court, not even the District of Columbia, can certify a class challenging the implementation of the expedited removal scheme. See id.
The Court's prior order excluded “individuals subject to expedited removal under 8 U.S.C. § 1225(b)(1)” from the certified class on the grounds that it lacked jurisdiction to issue orders regarding these individuals under the provisions of the INA.[3] This prior order noted that § 1252(e)(3)(A) awards the District of Columbia sole jurisdiction over challenges to the implementation of expedited removal procedures set forth in 8 U.S.C. § 1225(b). Order at 10. Because any challenge to the “implementation” of § 1225(b)'s expedited removal procedures would be jurisdictionally off-limits, the Court examined the meaning of the word “implement,” and considered whether Plaintiffs' claim regarding “when to present a detained individual to an immigration judge” concerned the “implementation” of § 1225(b). Id. at 10-11. After noting that § 1225(b) generally mandates detention of individuals screened for expedited removal, the Court determined that Plaintiffs' claims regarding presentment concerned the implementation of mandatory detention under § 1225(b), and thus could only be brought before the District of Columbia. Id. The Court, therefore, excluded from the certified class all individuals who had ever been screened as part of the § 1225(b) expedited removal process.
Upon reviewing the parties' motions for clarification, the Court finds that the prior order did not specifically address whether the above reasoning should...
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