Doe v. McAleenan

• Decision Date: 12 November 2019
• Docket Number: Case No.: 3:19-cv-2119-DMS-AGS
• Parties: Cristian DOE; Diana Doe, Petitioners-Plaintiffs, v. Kevin K. MCALEENAN, Acting Secretary of the Department of Homeland Security; et al., Respondents-Defendants.
• Court: U.S. District Court — Southern District of California

415 F.Supp.3d 971

Cristian DOE; Diana Doe, Petitioners-Plaintiffs,

v.Kevin K. MCALEENAN, Acting Secretary of the Department of Homeland Security; et al., Respondents-Defendants.

Case No.: 3:19-cv-2119-DMS-AGS

United States District Court, S.D. California.

Signed November 12, 2019

Monika Yvette Langarica, ACLU Foundation of San Diego & Imperial Counties, Bardis Vakili, John David Loy, Jonathan Paul Markovitz, San Diego, CA, for Petitioners-Plaintiffs.

US Attorney CV, US Attorneys Office Southern District of California, Rebecca Grace Church, San Diego, CA, Archith Ramkumar, Department of Justice Office of Immigration L., Washington, DC, for Respondents-Defendants.

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

Hon. Dana M. Sabraw, United States District Judge

This matter comes before the Court on Petitioners' motion for temporary restraining order ("TRO") to allow Petitioners access to their retained counsel prior to and during Petitioners' non-refoulement interviews under the Government's recently implemented Migrant Protection Protocols Program ("MPP" or "Remain in Mexico"). Under the MPP, asylum seekers like Petitioners who enter or seek admission to the United States by land from Mexico may be returned to Mexico where they must await the outcome of their immigration proceedings. An exception to the MPP exists where an asylum seeker can show he or she faces persecution or torture in Mexico, a showing they attempt to make during their non-refoulement interview. If successful, the individual is taken out of MPP and paroled or detained in the United States for the duration of their removal proceedings.

Petitioners await their non-refoulement interview but allege Respondents are wrongfully denying them their right of access to retained counsel, both prior to and during their interview, in violation of their statutory rights under the Administrative Procedure Act ("APA") and their rights under the First and Fifth Amendments to the United States Constitution. Respondents have agreed not to conduct Petitioners' non-refoulement interviews pending the Court's determination of the present motion. Respondents argue the Court should deny the motion as the Court lacks jurisdiction to hear the matter, and in any event, there is no right of access to retained counsel prior to or during a non-refoulement interview.

The matter has been fully briefed and argued. For the reasons set forth below, the Court concludes Petitioners have met their burden and are entitled to a TRO allowing them access to their retained counsel before and during their non-refoulement interviews. The APA, specifically 5 U.S.C. § 555(b), provides a right of access to retained counsel for such interviews.

I.BACKGROUND

Petitioners' declarations in support of their motion provide the following background facts. Petitioners are the parents of a family of five children that fled their home country of Guatemala after suffering extortion, death threats, and rape. (Mot. for TRO at 14). Like many families, they traveled through Mexico to seek asylum in the United States. (Id. ) While in Mexico, Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped of their clothing. (Id. ) Their attackers, masked men seemingly clothed in Mexican government uniforms, threatened to kill Petitioners if they reported the incident. (Id. ) These threats have left Petitioners and their children terrified. (Id. )

Upon entering the United States, Petitioners immediately requested asylum. (Id. ) Prior to December 2018, asylum seekers like Petitioners were placed in expedited removal ("ER") proceedings. 8 U.S.C. § 1225(b)(1). If they expressed a fear of persecution or torture upon removal to their country of origin, the asylum seekers were given a credible fear interview ("CFI") to determine whether there was a significant possibility they were eligible for asylum. 8 U.S.C. § 1225(b)(1)(A)(i). If they passed the CFI, they were placed in full removal proceedings before an immigration judge ("IJ") to present their asylum case. 8 U.S.C. §§ 1229a(c)(4), 1225(b)(1)(B)(ii). After December 2018, however, the MPP was instituted and the process changed.

As noted, asylum seekers arriving on land from Mexico are now required under the MPP to remain in Mexico while their immigration proceedings are pending. (Res. to Mot. for TRO, Exs. 1, 4). If an asylum seeker expresses fear of returning to Mexico, then he or she is detained by Customs and Border Protection ("CBP") pending a non-refoulement interview with a U.S. Citizenship and Immigration Services ("USCIS") asylum officer to determine whether they are more likely than not to face persecution or torture in Mexico. (Mot. for TRO at 16.) While awaiting a non-refoulement interview, an asylum seeker does not have the ability to communicate confidentially with retained counsel. (Id. at 17–18.) Furthermore, retained counsel may not be present during non-refoulement interviews, which are conducted telephonically and can last up to several hours. (Id. at 16, 17–18.) See Compl., ¶ 144 (Respondent Department of Homeland Security "has a written policy mandating a blanket denial of access to counsel to individuals subject to MPP who are in its custody while awaiting and during non-refoulement interviews.") If an individual passes the non-refoulement interview, they are removed from MPP and either released on parole or detained in the United States, pending removal proceedings. Mot. for TRO at 17. If the individual does not pass, they must await the outcome of their removal proceedings in Mexico. (Id. )

In accordance with the MPP, Petitioners were returned to Mexico to await the outcome of their removal proceedings. (Id. ) While in Tijuana, Petitioners survived a shoot-out that occurred outside their temporary shelter. (Id. at 15.) Because of this violence and the trauma Petitioners experienced while traveling through Mexico, Petitioners expressed a fear of returning to Mexico during an immigration proceeding on November 5, 2019. (Id. at 19.) Bound by the duty of non-refoulement , the United States placed Petitioners and their children in CBP detention to await their non-refoulement interviews. (Id. ) During their detention, Petitioners have not been allowed to confidentially communicate with their retained counsel. (Id. ) The same day on which they expressed a fear of returning to Mexico, Petitioners commenced the present action and filed the subject motion.

II.DISCUSSION

Petitioners seek a TRO allowing them access to their retained counsel while in CBP custody and during their non-refoulement interviews. Before turning to the merits and other injunctive relief factors, the Court addresses Respondents' various jurisdictional arguments, including that there is no case or controversy under Article III, § 2 of the United States Constitution as the case is moot and that Petitioners are not "in custody" for purposes of habeas review under 28 U.S.C. § 2241.

Under Ninth Circuit law, the completion of activity is not the hallmark of mootness. See, e.g. , Neighbors of Cuddy Mountain v. Alexander , 303 F.3d 1059, 1065 (9th Cir. 2002) (holding plaintiffs' challenge to a timber sale is not moot, despite the completion of the sale). A case is moot "only where no effective relief for the alleged violation can be given." Id. (citing Cantrell v. City of Long Beach , 241 F.3d 674, 678 (9th Cir. 2001) ). Here, the relief Respondents offered was both incomplete and inadequate. The day after Petitioners filed their motion for TRO, Respondents offered Petitioners the opportunity to speak with their counsel over the phone for 45 minutes and the telephonic presence of counsel during their non-refoulement interview. (Res. to Mot. for TRO at 13; Rep. to Respondents Res. at 3). Petitioners' counsel requested confidential communication with their clients consistent with Petitioners' asserted statutory and constitutional rights to counsel, and Respondents refused. (Res. to Mot. for TRO at 13). Consequently, Petitioners' counsel declined the offer. ( Id. ) Petitioners remain in CBP detention and Respondents' policy prohibiting access to retained counsel remains in effect. Therefore, effective relief for the alleged violation may still be given and the issue is not moot.

Respondents' argument that Petitioners are not "in custody" for purposes of 28 U.S.C. § 2241 also fails. " Section 2241 requires a petitioner to be "in custody" at the time of filing for the federal courts to have jurisdiction over a habeas petition." Smith v. U.S. Customs & Border Patrol Prot. , 741 F.3d 1016, 1019 (9th Cir. 2014). A petitioner is "in custody" if he is subject to conditions that "significantly confine and restrain his freedom." Jones v. Cunningham , 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). Petitioners are currently being held in CPB detention facilities. (Mot. for TRO at 18). Their freedom is clearly confined and restrained: they cannot come and go as they please, they have little room to walk, and they allege they are subjected to cold temperatures and lack access to basic necessities, including toothpaste, hygiene products, and changes of clothing. (Id. at 18–19.) Respondents argue this kind of detention does not constitute "custody" because it is brief and incidental to Petitioners' removal proceedings.¹ Neither of these reasons, however, confronts whether Petitioners are subject to conditions that significantly confine and restrain their freedom. Given the allegations at issue, Petitioners are "in custody" for purposes of § 2241.²

With these findings, the Court turns to the TRO. The purpose of a TRO is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers , 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). The standard for issuing a temporary...