Hernandez Culajay v. McAleenan, Case No. 5:19-cv-03204-JDW

• Decision Date: 19 August 2019
• Docket Number: Case No. 5:19-cv-03204-JDW
• Citation: 396 F.Supp.3d 477
• Parties: Emerson Obed HERNANDEZ CULAJAY, and M.S.H.S., a minor child, Plaintiffs, v. Kevin K. MCALEENAN, Acting Secretary, United States Department of Homeland Security, et al. Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

396 F.Supp.3d 477

Emerson Obed HERNANDEZ CULAJAY, and M.S.H.S., a minor child, Plaintiffs,

v.Kevin K. MCALEENAN, Acting Secretary, United States Department of Homeland Security, et al. Defendants.

Case No. 5:19-cv-03204-JDW

United States District Court, E.D. Pennsylvania.

August 19, 2019

Bridget Cambria, Cambria & Kline PC, Reading, PA, Amy Maldonado, Law Office of Amy Maldonado, East Lansing, MI, Anthony Vale, Logan Anderson, Pepper Hamilton LLP, Matthew J. Archambeault, Law Office of Matthew J. Archambeault, Philadelphia, PA, for Plaintiffs.

Anthony St. Joseph, Paul J. Koob, U.S. Attorney's Office, Veronica Jane Finkelstein, U.S. Attorneys Office EDPA, Philadelphia, PA, for Defendants.

Hon. Joshua D. Wolson, United States District Judge

OPINION

A Guatemalan father and his six-year old daughter ask this Court for a preliminary injunction to prevent the Government from transferring them from a detention facility in Berks County, Pennsylvania, to Mexico pursuant to the Government's Migrant Protection Protocols ("MPP"), a policy in which the Government sends aliens who have crossed the United States-Mexico border back to Mexico during the pendency of their removal proceedings. Against this politically fraught backdrop, the Court must navigate several statutory provisions in which Congress has stripped district courts of subject matter jurisdiction to hear immigration-related claims. The Court must conduct this inquiry regardless of the parties' arguments, as part of its independent duty to ensure its subject matter jurisdiction. After conducting that inquiry, the Court concludes that it lacks subject matter jurisdiction to hear any of the claims on which Plaintiffs base their preliminary injunction motion. Accordingly, the Court will deny the motion and dismiss the claims over which it has determined it lacks subject matter jurisdiction.

I. FACTUAL BACKGROUND

A. MPP

In December 2018, the Department of Homeland Security ("DHS") announced MPP, which provides that certain aliens entering or seeking admission to the United States, who enter the United States by crossing through Mexico, may be returned to Mexico to await their immigration proceedings. Under MPP, the DHS issues to inadmissible aliens who cross into the United States from Mexico a Notice to Appear at a removal proceeding and then transfers them to Mexico to await their proceedings. (ECF No. 14-9.) The Government exempts a number of categories of aliens from MPP, including unaccompanied children, Mexican citizens, aliens processed for "expedited removal," and aliens who are more likely than not to face persecution or torture in Mexico. The Government requires aliens who are subject to removal to "affirmatively state[ ]" that they have a fear of torture or persecution in Mexico; it does not notify them of the fact that such a fear might stay their transfer. (Id. at 1-2.)

Aliens sent to Mexico under MPP are transferred to the custody of Mexican authorities at a point of entry. They then must return to that point of entry for their hearing, and DHS transports them to the hearing location. DHS's policy is to give aliens one hour prior to their removal proceedings to meet with counsel and prepare for those hearings. If an alien receives a final order of removal from an immigration judge, he or she is then processed in accordance with DHS's regulations.

B. Plaintiffs' Removal Proceedings And Placement In MPP

Plaintiffs are a 31-year-old Guatemalan citizen and his six-year-old daughter. (ECF No. 14-1 ¶ 2.) Plaintiffs entered the United States without inspection on April 23, 2019 and turned themselves in to Customs and Border Protection ("CBP") Officers. (Id. ¶ 3.) On April 28, 2019, each Plaintiff received a Notice to Appear, which required each of them to appear on June 25, 2019, in San Diego before an immigration judge. (ECF Nos. 14-2, 14-3.) The Notices to Appear indicate that the government placed Plaintiffs in "standard removal proceedings" under INA Section 240, 8 U.S.C. Section 1229. (Id. ) Plaintiffs' Notices to Appear were stamped "MPP."

On April 29, 2019, CBP Officers took Plaintiffs to the San Ysidro border and turned them over to Mexican immigration authorities in Tijuana. (ECF No. 14-1 ¶ 8.) While in Mexico, Plaintiffs claim that they were not safe because there were no shelters and they had nowhere to go. (Id. ¶¶ 9-11.) However, a woman in Mexico gave them shelter for the next two months. (Id. ¶ 11.) During that time, Plaintiffs did not have access to medical care, and M.S.H.S. had no opportunity to go to school. (Id. )

On June 25, 2019, Plaintiffs presented at the San Ysidro Port of Entry and were transported to a removal hearing in San Diego. (Id. ¶ 13.) Plaintiffs participated in that hearing pro se and told the immigration judge that they had no fear of returning to Guatemala. (Id. ¶ 14.) Plaintiffs claim that Mr. Hernandez Culajay made that statement based on coaching he received from a CBP Officer, in order to avoid going back to Mexico. Plaintiffs also waived their appellate rights during that hearing. The immigration judge ordered Plaintiffs' removal, and the government then transferred Plaintiffs to the Berks County Residential Center in Leesport, Pennsylvania. (Id. ¶ 17.)

Once there, Plaintiffs retained counsel. After retaining counsel, Plaintiffs appealed to the Board of Immigration Appeals ("BIA"), alleging that the abandonment of their asylum claims was made under duress and therefore not knowing, intelligent, or voluntary. (Id. ¶¶ 18-19.) Filing the appeal triggered an automatic stay of Plaintiffs' removal pursuant to 8 CFR § 1003.6(a). In addition, Plaintiffs filed a motion asking the for an emergency stay of removal. (ECF No. 5-1.) On July 23, 2019, the BIA granted their request and stayed the removal of Plaintiffs from the United States pending the outcome of their appeal before the BIA. (ECF No. 5.)

On August 9, 2019, a DHS asylum officer conducted an assessment of Plaintiffs' claims regarding their fear of return to Mexico as part of MPP. The asylum officer concluded that Plaintiffs did not establish a clear probability of torture or persecution on account of a protected ground or of torture in Mexico. (ECF No. 18-1.)

C. Procedural History Of This Action

The same day that the BIA issued its stay, Plaintiffs were sent from the Berks County facility to San Diego, so that they could be returned to Mexico to await the outcome of their appeal before the BIA. (ECF No. 14-1 ¶ 20.) That same day, Plaintiffs' counsel filed an Emergency Petition for Writ of Mandamus. (ECF No. 1.) The Petition includes six counts under the heading "Claims For Relief." In Count I, M.S.H.S. seeks to enforce rights that she claims pursuant to a consent decree entered in Flores v. Sessions , CV-85-4544-RJK(Px) (C.D.Cal.) (the "Flores Settlement"). In Count II, Plaintiffs allege violations of substantive and procedural due process. In Count III, Plaintiffs assert that DHS violates the Administrative Procedures Act, 5 U.S.C. § 500 et seq. (the "APA"), because it improperly classifies them (and others like them) as eligible for MPP because they are not from Mexico and because sending them to Mexico would violate the United States' obligations under domestic and international law. In Count IV, Plaintiffs contend that MPP is invalid under the APA because it should have been subject to notice and comment. In Count V, Plaintiffs contend that the adoption of MPP violates the APA because it is arbitrary and capricious, at least in part because it requires individuals designated for return to Mexico under MPP affirmatively to voice a fear of persecution in Mexico affirmatively, rather than notifying them that if they have such a fear, they might not be returned to Mexico.

In their Petition, Plaintiffs asked the Court for a Temporary Restraining Order to maintain the status quo by prohibiting Plaintiffs' removal to Mexico. The Court held a hearing on July 24, 2019. During that hearing, the Government committed to keep the Plaintiffs in the United States pending briefing and resolution of a motion for a preliminary injunction.

Plaintiffs filed a Memorandum in support of a Motion for a preliminary injunction on August 5, 2019. (ECF No. 14.) (As a technical matter, Plaintiffs have never filed a formal motion for a preliminary injunction. However, their Petition asks for all relief that is just and proper. In any event, the Court will construe the on-the-record proceedings at both the hearing on the application for the temporary restraining order and the hearing on the request for a preliminary injunction as an oral motion in open court for a preliminary injunction pursuant to Fed. R. Civ. P. 7.) In their Memorandum, Plaintiffs "advance four claims in support of their motion for a preliminary injunction," which is that the government's threat to send Plaintiffs to Mexico during the pendency of their appeal to the BIA:

• violates M.S.H.S.'s rights as a class member under Flores ;

• violates the stay order that the BIA entered on July 23, 2019;

• violates their due process rights by interfering with an existing attorney-client relationship; and

• violates their statutory and constitutional rights because the Government is not authorized to apply MPP to arriving aliens such as Plaintiffs.

(ECF No. 14 at 12.) The Government filed a Brief in Opposition to Plaintiffs' Motions for Preliminary Injunctive Relief and Writ of Mandamus on August 14, 2019. (ECF No. 18.) The Court held a hearing on Plaintiffs' request for a preliminary injunction on August 16, 2019.

II. LEGAL STANDARD

A plaintiff seeking a preliminary injunction must establish: (1) a likelihood of success on the merits; (2) that he will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. See Lane v. New Jersey , 725 Fed. App'x 185, 187 (3d Cir. 2018). The movant bears the burden of showing...