Garcia v. Johnson
| Decision Date | 21 November 2014 |
| Docket Number | Case No. 14-cv-01775-YGR |
| Court | U.S. District Court — Northern District of California |
| Parties | MARCO ANTONIO ALFARO GARCIA, ET AL., Plaintiffs, v. JEH JOHNSON, ET AL., Defendants. |
Plaintiffs Marco Antonio Alfaro Garcia ("Alfaro"), Credy Madrid Calderon ("Madrid"), Gustavo Ortega ("Ortega"), and Claudia Rodriguez de la Torre ("Rodriguez") (collectively, "plaintiffs")1 bring this putative class action against Defendants Jeh Johnson, et al. ("defendants") seeking review of processes employed by the Asylum Division of the United States Citizenship and Immigration Services ("USCIS"). The gravamen of the complaint alleges a failure to conduct in a timely manner "reasonable fear" determinations under 8 C.F.R. section 208.31(b) ("Section 208.31(b)"). Plaintiffs contend that USCIS is required to complete such determinations within 10 days of referral to an asylum officer, but that the government has essentially abdicated its duty to comply with this mandate. As a result, plaintiffs allege that individuals are held for months in detention while they await hearings on their claims. Plaintiffs seek declaratory and mandamus relief on the following two causes of action: (1) violation of the Administrative Procedure Act("APA"), 5 U.S.C. sections 555(b) () and 706(1) (providing that a reviewing court shall . . . "compel agency action unlawfully withheld or unreasonably delayed"); and (2) violation of Section 208.31, which requires that the USCIS complete these reasonable fear determinations within 10 days of referral to an asylum officer. (Dkt. No. 1 ("Complaint") at ¶¶ 71-79.)
Now before the Court are two motions: defendants' motion to dismiss on the grounds that this Court lacks jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and that plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 43), and plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(b)(2) (Dkt. No. 12). On September 30, 2014, the Court heard argument on both motions.
Having carefully considered the papers submitted and the pleadings in this action, the arguments of counsel presented at the hearing, and for the reasons set forth below, the Court hereby DENIES the motion to dismiss, and GRANTS plaintiffs' motion for class certification.
As a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), the United States has agreed not to "expel, return, ("refouler") or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture." Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. 105-227, 112 Stat. 2681, 2681-821; see also Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8,478-01. By statute, an individual may seek withholding of removal if his or her "life or freedom would be threatened in that country because of [his/her] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. section 1231(b)(3)(A). If an individual qualifies for protection, "withholding of removal is mandatory under the [CAT] implementing regulations." Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).
On February 19, 1999, the Immigration and Naturalization Service ("INS")2 adopted interim regulations in an effort to comply with the United States' international obligations under the CAT. See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8,478 (Feb. 19, 1999). These regulations sought to provide fair and efficient procedures by which the United States would ensure that individuals who have a reasonable fear of torture and persecution are not returned to their countries of origin "within the overall regulatory framework for the issuance of removal orders and decisions about the execution of such order." 64 Fed. Reg. at 8,479. Id.
Section 208.31 of the regulations applies to two types of individuals subject to removal: those who are subject to reinstatement of removal orders and those who are subject to final administrative orders of removal. If a person falling into either of those categories expresses a fear of return, he or she is subject to a two-part review process to determine if he or she qualifies for withholding of removal or relief. 8 C.F.R. § 208.31(a). The first step (at issue here) occurs "upon issuance" of the final administrative order or the notice of reinstatement of removal. An individual who expresses such fear is referred to an asylum officer for a reasonable fear determination. See 8 C.F.R. § 208.31(b). Of particular relevance to this case is the final sentence in Section 208.31(b):
(b) Initiation of reasonable fear determination process. Upon issuance of a Final Administrative Removal Order under §238.1 of this chapter, or notice under §241.8(b) of this chapter that an alien is subject to removal, an alien described in paragraph (a) of this section shall be referred to an asylum officer for a reasonable fear determination. In the absence of exceptional circumstances, this determination will be conducted within 10 days of the referral.
8 C.F.R. § 208.31(b) (emphasis supplied); see also Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478-01. The second step concerns what occurs after that initial determination has been rendered. Persons who are found to have a reasonable fear of persecution or torture are referred to an Immigration Judge for full consideration of their claims for withholding of removal under 8 U.S.C. section 1231(b)(3), or withholding or deferral of removal under 8 C.F.R. sections 208.16 and 208.17. 8 C.F.R. § 208.31(e). A person whom USCIS determines not to have a reasonable fear of persecution may request that an Immigration Judge review USCIS's determination. If the Immigration Judge disagrees with USCIS, the person may pursue full consideration of his or her reasonable fear claim before the Immigration Judge. 8 C.F.R. § 208.31(f)-(g).
Plaintiffs allege that the above regulatory process is designed to ensure that reasonable fear claims are heard in a fair and timely manner. (See Compl. ¶¶ 19- 22.) According to plaintiffs, Section 208.31 requires timely resolution of reasonable fear claims because plaintiffs and other similarly situated individuals are subject to imprisonment while they await reasonable fear determinations. (Compl. ¶ 23.) Despite Section 208.31's mandate, plaintiffs allege that defendants have "rarely" complied with the 10-day deadline, leaving plaintiffs and others similarly situated to "languish in detention for months and, in some cases, over a year" at great emotional, physical, and financial cost to these individuals and their families. (See Compl. ¶¶ 7, 31-59 ().) According to the complaint, defendants have wholly abandoned any effort to comply with Section 208.31. Instead, defendants have developed a new, less demanding timeframe, effectively supplanting the timeframe set forth in Section 208.31.
Plaintiffs thus seek relief under the Administrative Procedure Act ("APA") and the Mandamus and Venue Act to compel defendants to comply with their mandatory legal obligations, and to cease their unreasonable delays in processing plaintiffs' claims for relief.
Plaintiff Alfaro Garcia is a native and citizen of El Salvador. (Compl. ¶ 9.) Mr. Alfaro Garcia first entered the United States on September 12, 2005, at or near Lukeville, Arizona. (Defs.' Mot. Ex. 1-B, Form I-205, Warrant of Removal/Deportation.) On September 28, 2005, the Immigration Judge ordered that Mr. Alfaro Garcia be removed to El Salvador and he was removed from the United States on September 29, 2005. (Id. Ex. 1-B.) On or about March 2007, Mr. Alfaro Garcia returned to the United States. On January 14, 2014, he was arrested in Los Angeles, California, for driving under the influence, and on January 16, 2014, ICE took him into custody. (Id. Ex. 1-A.) That same day, an ICE officer issued an order reinstating Mr. Alfaro Garcia's order of removal to El Salvador. (Id. Ex. 1-D, I-871, Notice of Intent/Decision to Reinstate Prior Order.) Mr. Alfaro Garcia promptly expressed his fear of returning to El Salvador shortly after being taken into immigration custody, and on January 28, 2014, Mr. Alfaro Garcia was referred to USCIS for a reasonable fear determination. (Id. Ex. 1-C, Record of Sworn Statement in Administrative Proceedings; Ex. 1-E, Email from Michael McDaniel.) USCIS interviewed Mr. Alfaro Garcia on or about February 11, 2014. (Id. Ex. 1-F, Form I-899, Record of Determination/Reasonable Fear Worksheet.) USCIS issued a decision on April 25, 2014, concluding that Mr. Alfaro Garcia did not have a reasonable fear of persecution in El Salvador. (Id. Ex. 1-F, Form I-898, Record of Negative Reasonable Finding and Request for Review by Immigration Judge.)
Mr. Alfaro Garcia alleges that defendants' failure to provide him a reasonable fear determination within the prescribed 10-day period, instead delaying such determination for almost three months, has harmed him by prolonging his detention...
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