Jane Doe 1 v. Nielsen, Case No. 18-cv-02349-BLF

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtBETH LABSON FREEMAN, United States District Judge
Citation357 F.Supp.3d 972
Parties JANE DOE 1, et al., Plaintiffs, v. Kirstjen NIELSEN, et al., Defendants.
Decision Date10 July 2018
Docket NumberCase No. 18-cv-02349-BLF

357 F.Supp.3d 972

JANE DOE 1, et al., Plaintiffs,
v.
Kirstjen NIELSEN, et al., Defendants.

Case No. 18-cv-02349-BLF

United States District Court, N.D. California, San Jose Division.

Signed July 10, 2018


357 F.Supp.3d 980

Ariel E. Rogers, Belinda S. Lee, Latham & Watkins LLP, San Francisco, CA, Kathryn Claire Meyer, Pro Hac Vice, International Refugee Assistance Project, Mariko Hirose, Pro Hac Vice, New York, NY, Oliver Rocos, Thomas E. Golding, Latham and Watkins, Los Angeles, CA, for Plaintiffs.

Stacey Ilene Young, Christopher W. Hollis, Daniel Paul Chung, David W. White, Frank P. Menna, United States Department of Justice, Washington, DC, for Defendants.

ORDER (1) GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION; AND (2) GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Re: ECF 25, 60

BETH LABSON FREEMAN, United States District Judge

This Court recognizes the limits of judicial reviewability, including the longstanding principle that no court has the authority to examine the decision to let aliens into the United States absent express authorization from Congress. But that is not what this case is about. The narrow issue presented in this case is whether the content of Notices of Ineligibility issued by the Department of Homeland Security ("DHS") denying the applications of approximately 87 Iranian refugees failed to comply with the Lautenberg Amendment and other applicable law.

For the reasons that follow, the Court finds that Plaintiffs' claims are suitable for class resolution, and GRANTS Plaintiffs' motion for class certification. The Court also GRANTS Plaintiffs' motion for partial summary judgment, finding that the Notices of Ineligibility denying Plaintiffs' refugee applications "as a matter of discretion" violate the Lautenberg Amendment and the Accardi doctrine. As discussed below, the Court sets aside the February 2018 Notices of Ineligibility pursuant to 5 U.S.C. §§ 702, 706(2). DHS is ORDERED to issue notices containing their determinations to re-open processing or to deny Plaintiffs' refugee applications within 14 days of this Order. The Court takes no position on, and has no authority to review, the ultimate determination of Plaintiffs' applications, so long as any re-issued Notices comply with the Lautenberg Amendment and agency procedures.

I. BACKGROUND

Plaintiffs bring this putative class action against DHS1 challenging what Plaintiffs describe as an unprecedented mass denial of refugee status to approximately 87 Iranian Christians, Mandaeans, and other religious minorities who had applied for entry into the United States under the Vienna-based Lautenberg-Specter program and were told without further explanation that their applications were "denied as a matter of discretion." The five named Plaintiffs are three Iranian refugees currently in Vienna, Austria, and two United States citizens who served as the U.S. tie for two of the

357 F.Supp.3d 981

named Plaintiffs.2 The operative Complaint was filed on April 18, 2018, setting forth six claims for relief challenging the content of the Notices of Ineligibility issued to Plaintiffs in February 2018, which Plaintiffs argue fail to comply with the Lautenberg Amendment and applicable agency procedures. See generally ECF 1 ("Compl."). In light of the time-sensitive nature of Plaintiffs' claims, the Court set an expedited briefing and hearing schedule on Plaintiffs' motions for class certification and partial summary judgment. ECF 59. The Court held a hearing on Plaintiffs' motions on June 22, 2018.

Before addressing the merits of Plaintiffs' motions and DHS's overarching defense that Plaintiffs' claims are not justiciable, the Court provides an overview of the law governing the admission of Iranian refugees to the United States and the personal experiences of the named Plaintiffs.

A. Refugee Admission and The Lautenberg Amendment

The admission of refugees to the United States is authorized by 8 U.S.C. § 1157, which provides in relevant part that the "Attorney General may, in the Attorney General's discretion ... admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible ... as an immigrant." 8 U.S.C. § 1157(c)(1). By its plain text, the statute commits refugee admission to agency discretion—authority that now rests with the Secretary of the Department of Homeland Security. See 6 U.S.C. § 557. Accordingly, no foreign individual is entitled to resettlement in the United States under this statute. Moreover, § 1157 is silent with respect to judicial review of refugee status determinations. Courts have thus held that the absence of procedures for judicial review in section 1157"demonstrate a Congressional intent to preclude judicial review at the behest of aliens beyond the borders of the United States." Haitian Refugee Ctr., Inc. v. Baker , 953 F.2d 1498, 1506 (11th Cir. 1992). The promulgated regulations similarly do not provide for any formal appeal of a refugee status determination. See 8 C.F.R. § 207.4 ("There is no appeal from a denial of refugee status under this chapter.")

In 1989, Congress enacted the Lautenberg Amendment as part of the FY1990 Foreign Operations Appropriations Act in order to facilitate the refugee admission of persecuted categories of individuals to the United States. See P.L. 101-167, Tile V, § 599D, 103 Stat. 1195 (1989). The Amendment designated categories of individuals for whom less evidence would be needed to establish refugee status, including Jews and Christians from the Former Soviet Union. Congress passed the Specter Amendment in 2004, adding Iranian religious minorities to the enumerated categories of individuals eligible for the Lautenberg Amendment's special protections. P.L. 108-199, Division E, Title II, § 213. Congress has reauthorized the Lautenberg and Specter Amendments as recently as March 23, 2018. Pub. L. 115-141, § 7034(k)(5), 103 Stat. 135 (2018).

Nothing in the Lautenberg Amendment or Specter Amendment explicitly alters the discretionary authority of DHS to grant or deny refugee applications pursuant to § 1157.3 However, the Lautenberg Amendment

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requires that "[e]ach decision to deny an application for refugee status of an alien who is within a category established under this section shall be in writing and shall state, to the maximum extent feasible, the reason for the denial." P.L. 101-167, Title V, § 559 D; see also 8 U.S.C. § 1157(c) (note).

In practice, persecuted religious minorities in Iran seeking admission to the United States may apply for refugee status under the Vienna-based Lautenberg-Specter Program. See Declaration of Samuel Witten ("Witten Class Cert. Decl.") ¶ 4, ECF 63. The application process for the Lautenberg-Specter Program begins with an individual lawfully living in the United States, called a "U.S. tie," who submits an application on behalf of a member of an Iranian religious minority seeking refugee status. Id. ¶ 7. The U.S. tie undergoes significant expense by entering into a contract to pay for all costs associated with the application, including administrative fees and living expenses in Vienna for the applicant while applications are under review. Id. Such expenses include paying a deposit of between $ 2,600 and $ 3,000, or more depending on the unique circumstances, per refugee applicant. See Declaration of Jane Doe 1 ("Doe 1 Decl.") ¶ 5, ECF 65; Declaration of John Doe 2 ("Doe 2 Decl.") ¶ 6, ECF 66; Declaration of Jane Doe 5 ("Doe 5 Decl.") ¶ 7, ECF 69. These costs are a financial burden and hardship on many U.S. ties, who are often sponsoring several refugee applicants in a family. Id.

Because the United States does not have an embassy in Iran, the Austrian Government interacts with the Iranian applicants at the Austrian Embassy in Tehran. Witten Class Cert. Decl. ¶ 8. After an Austrian official meets with the applicant in Iran and the applicant passes an initial screen, the Austrian embassy issues a visa to eligible refugee applicants for the purpose of traveling to Vienna, Austria to continue to processing of the refugee application by U.S. authorities. Id. At this point in the process, the refugee applicants do not anticipate ever returning to Iran where they face religious persecution, and typically sell almost all of their possessions before leaving. See Declaration of Jane Doe 3 ("Doe 3 Decl.") ¶ 10, ECF 67; Declaration of Jane Doe 4 ("Doe 4 Decl.") ¶ 12, ECF 68; Doe 5 Decl. ¶ 9.

Once the applicant has traveled to Austria, the program is managed by the U.S. State Department who has contracted with HIAS, a non-profit organization founded as the Hebrew Immigrant Aid Society, to operate a refugee Resettlement Support Center in Vienna. Witten Class Cert. Decl. ¶¶ 5, 9. Applicants are ultimately interviewed by officers from the U.S. Citizenship and Immigration Services ("USCIS"), of the Department of Homeland Security, who reviews and adjudicates the refugee applications. Id. Before traveling to the United States, applicants undergo medical screening, attend cultural orientation, and receive an assurance of sponsorship from a resettlement...

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    ...for summary judgment on Theos's bad faith claim.IV. CONCLUSIONFor the foregoing reasons, the Court GRANTS Great American's motion for 357 F.Supp.3d 972summary judgment and DENIES Theos and Bhatia's cross-motion for partial summary judgment.IT IS SO ORDERED.--------Notes:1 Great American req......

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