Doe v. Wolf, Case No.: 19-cv-2119-DMS (AGS)

• Decision Date: 14 January 2020
• Docket Number: Case No.: 19-cv-2119-DMS (AGS)
• Court: U.S. District Court — Southern District of California
• Parties: Cristian DOE, Diana Doe, Petitioners-Plaintiffs, v. Chad F. WOLF, Acting Secretary of Homeland Security; et al., Respondents-Defendants.

432 F.Supp.3d 1200

Cristian DOE, Diana Doe, Petitioners-Plaintiffs,

v.Chad F. WOLF, Acting Secretary of Homeland Security; et al., Respondents-Defendants.

Case No.: 19-cv-2119-DMS (AGS)

United States District Court, S.D. California.

Signed January 14, 2020

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

U.S. Attorney CV, Rebecca Grace Church, United States Attorney's Office, San Diego, CA, Archith Ramkumar, Department of Justice Office of Immigration L, Washington, DC, for Respondents-Defendants.

ORDER GRANTING MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

Hon. Dana M. Sabraw, United States District Judge

On November 5, 2019, Petitioners filed a motion for class certification and a 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 Migrant Protection Protocols Program ("MPP" or "Remain in Mexico"). Pursuant to the MPP, asylum seekers arriving at the United States Border by land from Mexico are returned to Mexico to await the outcome of their immigration proceedings. Bound by the duty of non-refoulement , however, Respondents may not return an asylum seeker to Mexico if the individual can show he or she faces persecution or torture in Mexico. Instead, the asylum seeker is taken out of the MPP and paroled or detained in the United States to await their removal proceedings.

On November 12, 2019, the Court granted Petitioners' motion for TRO and ordered Respondents to allow Petitioners access to their retained counsel prior to and during their non-refoulement interviews. Doe v. McAleenan , 415 F. Supp. 3d 971, 979-80 (S.D. Cal. 2019). Petitioner Cristian Doe was interviewed two days later by an U.S. Citizenship and Immigration Services ("USCIS") Asylum Officer. Three attorneys for Doe were present telephonically. The Asylum Officer found it is more likely than not that Petitioners will be persecuted or tortured if they are returned to Mexico. Consequently, the Doe family was taken out of the MPP and released from Customs and Border Patrol ("CBP") custody. They are still awaiting the remainder of their immigration case.

The Court has certified a class action to include similarly situated asylum seekers. Petitioners now request classwide injunctive relief to allow for access to retained counsel prior to and during their non-refoulement interviews. The matter has been fully briefed and argued. For the reasons set forth below, the Court reaffirms its conclusion that Petitioners have met their burden and that the Administrative Procedures Act ("APA"), specifically 5 U.S.C. § 555(b), provides a right to retained counsel in these circumstances.

I. BACKGROUND

Petitioners' and Respondents' declarations 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, Declaration of Cristian Doe ("Cristian Doe Decl."), at ¶¶ 2, 4). Like many families, Petitioners traveled through Mexico to seek asylum in the United States. (Id. at ¶ 7). While in Mexico, Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped of their clothing. (Mot. for TRO at 14). Their attackers, masked men clothed in what appeared to be Mexican government uniforms, threatened to kill Petitioners if they reported the incident. (Id. ). Petitioners and their children were left terrified. (Id. ). Upon reaching the United States, Petitioners immediately requested asylum. (Id. ).

Prior to the MPP, asylum seekers arriving at the Southern border were usually placed in expedited removal 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 would establish eligibility for asylum. 8 U.S.C. § 1225(b)(1)(A)(i). Before such interviews, asylum seekers had a right to consult with counsel. 8 C.F.R. §§ 208.30(d), 208.31(c). If the asylum seekers passed their CFIs, they were placed in full removal proceedings before an Immigration Judge ("IJ") to present their asylum claims. 8 U.S.C. §§ 1229a(c)(4), 1225(b)(1)(B)(ii) ; 8 C.F.R. §§ 208.30, 235.3. While awaiting their removal proceedings, the asylum seekers were often paroled into the United States.

The process changed in January of 2019 when the Department of Homeland Security ("DHS") instituted the MPP: "an unprecedented action" meant to "address the urgent humanitarian and security crisis at the Southern border." (Resp. in Opp'n to TRO, Ex. 2 at 4). Pursuant to the MPP, "individuals arriving in or entering the United States from Mexico—illegally or without proper documentation—may be returned to Mexico for the duration of their immigration proceedings." (Id. , Ex. 1 at 1). Asylum seekers within the MPP are given "Notice[s] to Appear" for their immigration court hearings and await such hearings in Mexico. (Id. at 2). In effect, the MPP replaces expedited removal proceedings and CFIs for certain asylum seekers. (Id. , Ex. 2 at 7). The MPP is authorized by the Immigration and Nationality Act ("INA"), which provides that asylum seekers "arriving on land ... from a foreign territory contiguous to the United States" may be returned "to that territory pending [their immigration] proceeding[s.]" 8 U.S.C. § 1225(b)(2)(C).

In implementing the MPP, DHS officials must act consistent with the principle of non-refoulement. (Resp. in Opp'n to TRO, Ex. 3 at 11). This principle, contained in both Article 33 of the 1951 Convention Relating to the Status of Refugees¹ and Article 3 of the Convention Against Torture,² prohibits the return of an individual to a country in which he or she would more likely than not be persecuted or tortured. (Id. at 10–11). As applied to the MPP, asylum seekers must first express a fear of returning to Mexico, and those that do are then detained by CBP pending a non-refoulement interview with USCIS Asylum Officers. (Id. at 11 n.4). During this interview, the Asylum Officer "elicit[s] all relevant and useful information" regarding the likelihood the asylum seeker will face persecution and torture upon his or her return to Mexico. (Id. , Ex. 4 at 15). The interview "can last up to several hours, during which time the [asylum seeker] is often handcuffed." (Mot. for TRO at 16; Cristian Doe Decl. at ¶¶ 25–26). If the asylum seeker passes the non-refoulement interview, he or she is removed from the MPP and is either released on parole or detained in the United States pending removal proceedings. (Mot. for TRO at 17). If the asylum seeker does not pass, he or she must await the outcome of their removal proceedings in Mexico. (Id. ).

Pursuant to DHS policy, asylum seekers cannot communicate with retained counsel prior to or during non-refoulement interviews.³ In practice, asylum seekers are given sporadic access to counsel—prior to their interviews, asylum seekers may have monitored calls with their attorneys if the phones are working, and during their interviews, asylum seekers are "sometimes" given access to counsel "on an ad hoc basis." (Id. at 18; Resp. in Opp'n to Prelim. Inj., Declaration of Ashley B. Caudill-Mirillo ("Caudill-Mirillo Decl."), at ¶ 3). DHS maintains, however, that providing asylum seekers with access to retained counsel is not required by law. (Resp. in Opp'n to Prelim. Inj. at 18–19).

In accordance with the MPP, Petitioners and their children were returned to Mexico to await their immigration proceedings. (Mot. for TRO at 14). At their first immigration court hearing, Petitioners articulated a fear of return to Mexico and were given separate non-refoulement interviews. They did not have counsel present. (Caudill-Mirillo Decl. at ¶ 5; Cristian Doe Decl. at ¶ 26; Rep. in Supp. of Mot. for Prelim. Inj. at 9). Petitioners did not pass their interviews and were returned to Mexico. (Caudill-Mirillo Decl. at ¶ 5). Petitioners again articulated their fear of returning to Mexico at their third immigration court hearing, in which retained counsel was present. (Mot. for TRO at 19). The family was then detained by CBP to await a second non-refoulement interview. (Id. ). Petitioners were not given confidential access to retained counsel. (Id. )

Petitioners filed suit the same day on which they expressed a fear of returning to Mexico in immigration court. Petitioners sought a temporary restraining order to enjoin Respondents from prohibiting access to retained counsel and moved for class certification. The Court granted Petitioners' motion for a temporary restraining order and thereafter certified the class. The Court now determines whether Petitioners are entitled to a classwide preliminary injunction that requires Respondents to provide asylum seekers access to retained counsel prior to and during non-refoulement interviews.

II. DISCUSSION

Before addressing the merits of injunctive relief, the Court considers Respondents' jurisdictional arguments, including that the INA forecloses judicial review of Petitioners' claims and that the rule of non-inquiry bars judicial review of non-refoulement procedures. The INA prohibits judicial review of a "decision or action" that is "in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). Respondents assert this jurisdictional bar extends not only to decisions to return asylum seekers to Mexico pending removal proceedings—which this case does not concern—but also extends to "the procedures used to arrive at those decisions." (Resp. in Opp'n to Prelim. Inj. at 13). In support, Respondents cite Gebhardt v. Nielsen , in which the Ninth Circuit held it did not have jurisdiction to review the plaintiff's...