Al Otro Lado, Inc. v. McAleenan

• Decision Date: 19 November 2019
• Docket Number: Case No.: 17-cv-02366-BAS-KSC
• Parties: AL OTRO LADO, INC., et al., Plaintiffs, v. Kevin K. MCALEENAN, et al., Defendants.
• Court: U.S. District Court — Southern District of California

423 F.Supp.3d 848

AL OTRO LADO, INC., et al., Plaintiffs,

v.Kevin K. MCALEENAN, et al., Defendants.

Case No.: 17-cv-02366-BAS-KSC

United States District Court, S.D. California.

Signed November 19, 2019

Mary Catherine Bauer, Pro Hac Vice, Southern Poverty Law Center, Charlottesville, Rebecca Cassler, Pro Hac Vice, Sarah Marion Rich, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, Micah D. Stein, Pro Hac Vice, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Mayer Brown LLP, Karolina J. Walters, Pro Hac Vice, American Immigration Council, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice Mayer Brown LLP, Angelo R. Guisado, Pro Hac Vice, Baher Azmy, Pro Hac Vice, Ghita R. Schwarz, Pro Hac Vice, The Center for Constitution Rights, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Robin Kelley, Faraz R. Mohammadi, Wayne S Flick, Manuel A. Abascal, Latham & Watkins LLP, Los Angeles, CA, Michaela R. Laird, Latham & Wakins, LLP, San Diego, CA, Melissa E. Crow, Pro Hac Vice, Southern Poverty Law Center Washington, DC, for Plaintiffs.

Gisela Ann Westwater, Scott Grant Stewart, Ari Nazarov, Genevieve M. Kelly, Yamileth G. Davila, U.S. Department of Justice, Alexander James Halaska, Brian Ward, Katherine J. Shinners, U.S. Department of Justice Office of Immigration Litigation, Danielle K. Schuessler, Civil Division-Office of Immigration Litigation, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants.

ORDER:

(1) GRANTING PLAINTIFFS' MOTION FOR PROVISIONAL CLASS CERTIFICATION (ECF No. 293);

AND

(2) GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (ECF No. 294)

Hon. Cynthia Bashant, United States District Judge

Before the Court are Plaintiffs' Motion for Provisional Class Certification and Plaintiffs' Motion for a Preliminary Injunction. (Mot. for Provisional Class Certification, ECF No. 293; Mot. for Prelim. Inj., ECF No. 294.) These Motions identify a subclass of asylum-seekers caught in the legal bind created by Defendants' previous policies at the southern border and a newly-promulgated regulation known as the Asylum Ban. The Asylum Ban requires non-Mexican nationals who enter, attempt to enter, or arrive at a port of entry ("POE") at the southern border on or after July 16, 2019 to first seek asylum in Mexico, subject to narrow exceptions. Plaintiffs ask the Court to prevent the Government Defendants from applying the Asylum Ban to a class of non-Mexican nationals who were prevented from making direct claims for asylum at POEs before July 16, 2019 and instructed to instead wait in Mexico pursuant to the Government's own policies and practices.

The putative class members in this case did exactly what the Government told them to do: they did not make direct claims for asylum at a POE and instead returned to Mexico to wait for an opportunity to access the asylum process in the United States. Now, the Government is arguing that these class members never attempted to enter, entered, or arrived at a POE before July 16, 2019, and, therefore, the newly promulgated Asylum Ban is applicable to them.

The Court disagrees. Because the Court finds that members of the putative class attempted to enter a POE or arrived at a POE before July 16, 2019, and that as such, the Asylum Ban by its terms does not apply to them, the Court GRANTS Plaintiffs' Motions.

I. BACKGROUND

Plaintiffs filed their initial complaint in the underlying action on July 12, 2017 in the Central District of California. (Compl., ECF No. 1.) The case was subsequently transferred to the Southern District of California. (ECF Nos. 113, 114.) The Court provides a brief overview of the action's lengthy litigation history below.

A. Overview of the Litigation

Plaintiffs' putative class action complaint alleges that Customs and Border Protection ("CBP") uses various unlawful tactics, "including misrepresentation, threats and intimidation, verbal abuse and physical force, and coercion" to systematically deny asylum seekers access to the asylum process. (Compl. ¶ 2.) Defendants moved to dismiss the Complaint on December 14, 2017. (ECF No. 135.) In its order on the motion, the Court found that organizational Plaintiff Al Otro Lado had standing to bring the case and that the case was not moot, even though some named Plaintiffs had received an asylum hearing. See Al Otro Lado, Inc. v. Nielsen , 327 F. Supp. 3d 1284, 1296–1304 (S.D. Cal. 2018). The Court further denied requests to dismiss the lawsuit based on sovereign immunity and held that Plaintiffs had adequately alleged a claim under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), to "compel agency action unlawfully withheld." ( Id. at 1304–05, 1309–10.)

However, the Court dismissed the § 706(1) claims brought by Plaintiffs Abigail Doe, Beatrice Doe and Carolina Doe to the extent they sought to compel relief under 8 C.F.R. § 235.4 for allegedly being coerced into withdrawing their applications for admission. Id. at 1314–15 (concluding that § 235.4 did not require CBP to take "discrete agency action" to determine whether a withdrawal was made voluntarily). The Court also dismissed Plaintiffs' § 706(2) claims based on an alleged "pattern or practice" because Plaintiffs had not alleged facts to plausibly "support [ ] the inference that there is an overarching policy" to deny access to the asylum process, and thus had not identified a "final agency action" reviewable under this provision of the APA. Id. at 1320. The Court granted Plaintiffs leave to amend their § 706(2) claims. Id. at 1321.

Plaintiffs then filed a First Amended Complaint ("FAC") on October 12, 2018, followed by a Second Amended Complaint ("SAC") on November 13, 2018. (ECF Nos. 176, 189). The amended complaints added allegations regarding the Government's purported "Turnback Policy," which included a "metering" or "waitlist" system in which asylum seekers were instructed "to wait on the bridge, in the pre-inspection area, or at a shelter"—or were simply told that "they [could not] be processed because the [POE] is ‘full’ or ‘at capacity[.]’ " (SAC ¶ 3.) Plaintiffs contend that CBP officials "routinely tell asylum seekers approaching POEs that in order to apply for asylum, they must get on a list or get a number" and that CBP prevents asylum-seekers from coming to the POE "until their number is called which can take days, weeks or longer." (Id. ¶ 100.) Some individuals are prevented from registering on the lists due to discrimination based on race, sexual orientation, or gender identity by the Mexican officials or third parties managing the lists. (Id. ) Plaintiffs allege that CBP's rationale for this system—that the POEs did not have the capacity to process the asylum claims—is a pretext to serve "the Trump administration's broader, public proclaimed goal of deterring individuals from seeking access to the asylum process." (Id. ¶¶ 3, 5; see also id. ¶¶ 72–83.)

Defendants moved to dismiss the SAC on November 29, 2018. (ECF No. 192.) Following briefing—including six amicus briefs filed in support of Plaintiffs' arguments¹ —and oral argument, the Court largely denied Defendants' motion to dismiss the SAC. See Al Otro Lado v. McAleenan , 394 F. Supp. 3d 1168 (S.D. Cal. 2019). First, the Court denied Defendants' Motion to Dismiss the SAC with respect to the amended § 706(2) allegations, finding that:

Unlike the original Complaint, the SAC now alleges that as early as 2016, Defendants were implementing a policy to restrict the flow of asylum seekers at the San Ysidro Port of Entry. Plaintiffs allege that Defendants formalized this policy in spring 2018 in the form of the border-wide Turnback Policy, an alleged "formal policy to restrict access to the asylum process at POEs by mandating that lower-level officials directly or constructively turn back asylum seekers at the border," including through pretextual assertions that POEs lack capacity to process asylum seekers.

Id. at 1180 (citing SAC ¶¶ 3, 48–93).

The Court also rejected, without prejudice, Defendants' argument that the SAC raised issues barred by the political question doctrine because they implicated "Defendants' coordination with a foreign national to regulate border crossings." Id. at 1190–93. The Court found that although some allegations "touch on coordination with Mexican government officials[,]" this coordination was "merely an outgrowth of the alleged underlying conduct by U.S. Officials." Id. at 1192

Finally, the Court rejected Defendants' arguments that Plaintiffs located on Mexican soil were not "arriving in" the United States for purposes of asylum. Id. at 1199–1201 (citing 8 U.S.C. § 1158(a)(1) (applicants for asylum include "[a]ny alien who is physically present in the United States or who arrives in the United States") and 8 U.S.C. § 1225(b)(1)(A)(ii) (requiring an immigration officer to refer for an asylum interview certain individuals who are "arriving in the United States")). The Court found that the plain language and legislative histories of these statutes supported the conclusion that the statute applies to asylum seekers in the process of arriving. Id. at 1199–1201. Furthermore, the Court concluded that the allegations in the SAC plausibly showed that Plaintiffs were in the process of arriving in the United States at the time they attempted to raise their asylum claims at POEs. Id. at 1203.

Defendants then answered the Complaint on August 16, 2019. (ECF No. 283).

B. The Asylum Ban

On July 16, 2019, the Government issued a joint interim final rule entitled "Asylum Eligibility and Procedural Modifications," widely known as the "Asylum Ban." 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. § 208.13(c)(4). In relevant part, Asylum Ban provides the following:

(c) Mandatory denials—

(4) Additional limitation on eligibility for asylum. Notwithstanding the provisions of § 208.15, any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019 , after

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