AL Otro Lado, Inc. v. Nielsen

Citation327 F.Supp.3d 1284
Decision Date20 August 2018
Docket NumberCase No. 17-cv-02366-BAS-KSC
Parties AL OTRO LADO, INC., a California Corporation; Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe, individually and on behalf of all others similarly situated, Plaintiffs, v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection, in his official capacity; Todd C. Owen, Executive Assistant Commissioner, Officer of Field Operations, U.S. Customs and Border Protection, in his official capacity, Defendants.
CourtU.S. District Court — Southern District of California

Michaela R. Laird, Latham & Wakins, LLP, San Diego, CA, Robin Kelley, Faraz R. Mohammadi, James H. Moon, Wayne S. Flick, Manuel A. Abascal, Latham & Watkins LLP, Los Angeles, CA, Angelo R. Guisado, Baher Azmy, Ghita R. Schwarz, Pro Hac Vice, Center for Constitution Rights, New York, NY, Karolina J. Walters, Kathryn E Shepherd, Melissa E. Crow, Pro Hac Vice, American Immigration Council, Aaron E. Reichlin-Melnick, Washington, DC, for Plaintiffs.

Alexander James Halaska, Brian Ward, U.S. Department of Justice, Office of Immigration Litigation, Gisela Ann Westwater, Genevieve M. Kelly, Yamileth G. Davila, US Department of Justice, Danielle K. Schuessler, Sairah G. Saeed, USDOJ-Civil Division-Office of Immigration Litigation, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THE COMPLAINT [ECF No. 135]

Hon. Cynthia Bashant, United States District Judge.

This case concerns an alleged practice in which U.S Customs and Border Protection ("CBP") officials at ports of entry ("POE") along the U.S.-Mexico border deny asylum seekers access to the U.S. asylum process. The Defendants in this case are Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of CBP; and Defendant Todd C. Owen, the Executive Assistant Commissioner of the Office of Field Operations for CBP. Each Defendant has a role in the direction and oversight of CBP and each is sued in his or her official capacity. Defendants move to dismiss the Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 135.) Plaintiffs oppose (ECF No. 143) and Defendants have replied in support (ECF No. 145). For the reasons herein, the Court grants in part and denies in part Defendants' motion to dismiss.

I. BACKGROUND
A. Relevant Statutory and Regulatory Background1

At the heart of this case are several provisions of the Immigration and Nationality Act ("INA") and its implementing regulations which elaborate a procedure by which asylum seekers who arrive at POEs may seek asylum in the United States—a procedure Plaintiffs refer to as "access to the U.S. asylum process."2 (See generally ECF No. 1, Compl.) The INA generally provides that "[a]ny alien who is physically present in the United States or who arrives in the United States [ ], irrespective of such alien's status, may apply for asylum in accordance with...where applicable, section 1225(b)[.]" 8 U.S.C. § 1158(a)(1).

An alien who arrives in the United States, including at a designated POE, is deemed an "applicant for admission," who "shall be inspected by immigration officers," and may be removed "without further hearing" "if an immigration officer determines" that the alien "is inadmissible." See 8 U.S.C. § 1225(a)(1) ; 8 U.S.C. § 1225(a)(3) ; 8 U.S.C. § 1182(a). The INA, however, treats asylum seekers differently.

An "alien [who] indicates either an intention to apply for asylum under section 1158...or a fear of persecution" is excepted from this summary removal. 8 U.S.C. § 1225(b)(1)(A)(i). Instead, "[i]f an immigration officer determines that an alien...who is arriving in the United States...is inadmissible...and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer[.]" 8 U.S.C. § 1225(b)(1)(A)(ii). An implementing regulation similarly requires that if a noncitizen in expedited removal proceedings asserts an intention to apply for asylum or a fear of persecution, "the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer[.]" 8 C.F.R. § 235.3(b)(4).

The regulation further mandates that "the examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien's inadmissibility." Id.

An alien seeking asylum is subsequently referred to an "asylum officer," who is statutorily required to be "an immigration officer who has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title," and "is supervised by an officer who," inter alia , "has had substantial experience adjudicating asylum applications." 8 U.S.C. § 1225(b)(1)(E). The INA further elaborates the conduct of asylum officers in the interview and a process for removal if the officer determines that an alien does not have a credible fear of persecution. 8 U.S.C. § 1225(b)(1)(B).

At any point during this process, "[a]n alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States." 8 U.S.C. § 1225(a)(4). An implementing regulation further provides that "the alien's decision to withdraw his or her application for admission must be made voluntarily[.]" 8 C.F.R. § 235.4.

B. Factual Synopsis

The Plaintiffs are six individuals, Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the "Individual Plaintiffs"), and organizational Plaintiff Al Otro Lado, Inc. ("Al Otro Lado").3 They allege that CBP officials have "systematically violated U.S. law and binding international human rights law by refusing to allow individuals...who present themselves at POEs along the U.S.-Mexico border and assert their intention to apply for asylum or a fear of returning to their home countries—to seek protection in the United States." (Compl. ¶¶ 1–6, 37.) Plaintiffs allege that "[b]y refusing to follow the law, Defendants are engaged in an officially sanctioned policy or practice[.]" (Id. ¶ 5.)

Plaintiffs point to several reports from non-governmental organizations working in the U.S.-Mexico border region and Al Otro Lado's firsthand account, which describe instances in which CBP officials denied asylum seekers who presented themselves at POEs along the border access to the U.S. asylum process between December 2015 and June 2017. (Id. ¶¶ 37–39, 96–103.) Plaintiffs allege that CBP officials have carried out this practice through misrepresentations, threats and intimidation, verbal and physical abuse, and coercion. (Id. ¶¶ 84–103.) For example, CBP officials are alleged to turn away asylum seekers by falsely informing them that the U.S. is no longer providing asylum, that President Trump signed a new law ending asylum, that a law providing asylum to Central Americans ended, that Mexican citizens are not eligible for asylum, and that the U.S. is no longer accepting mothers with children for asylum. (Id. ¶ 85.) CBP officials are alleged to intimidate asylum seekers by threatening to take away their children if they do not renounce a claim for asylum and to deport the asylum seekers. (Id. ¶ 87.) CBP officials are also alleged to force asylum seekers to sign forms in English, without translation, in which the asylum seekers recant their fears of persecution.

(Id. ¶ 92.) CBP officials are further alleged to instruct the asylum seekers to recant their fears of persecution while being recorded on video. (Id. ¶ 92.) The Court briefly sets forth the Individual Plaintiffs' and Al Otro Lado's experiences of these alleged practices.

The Individual Plaintiffs

Plaintiffs Abigail Doe ("A.D."), Beatrice Doe ("B.D."), and Carolina Doe ("C.D.") are natives and citizens of Mexico, each of whom fled with their families to Tijuana, Mexico, where they attempted to access the U.S. asylum process. (Compl. ¶¶ 19–21.) Plaintiff A.D. sought to flee Mexico in May 2017 after her husband disappeared at the hands of a Mexican drug cartel. A cartel member threatened her with death. (Id. ¶¶ 19, 39–40.) She alleges that CBP officials at the San Ysidro POE coerced her into signing a form which falsely stated that she did not have a fear of returning to Mexico and withdrew her application for admission to the U.S., and forced her and her children to return to Mexico. (Id. ¶¶ 41–45.) Plaintiff B.D. sought to flee Mexico in May 2017 with her nephew and three children after the Zetas, a Mexican drug cartel in southern Mexico, targeted her nephew, and after she suffered severe domestic violence from her husband. (Id. ¶¶ 20, 46–47.) She presented herself at the Otay Mesa POE and twice at the San Ysidro POE, where CBP officials coerced her into signing a form in which she stated that she and her children have no fear of returning to Mexico and withdrew her application for admission. (Id. ¶¶ 48–54.) Plaintiff C.D. sought to flee Mexico in May 2017 with her three children after a drug cartel kidnapped and dismembered her brother-in-law and subsequently targeted her family with death and severe harm. (Id. ¶¶ 21, 55–56.) She alleges that CBP officials coerced her into recanting her fear on video and into signing a form withdrawing her application for admission to the U.S. (Id. ¶¶ 57–60.)

Plaintiffs Dinora Doe ("D.D."), Ingrid Doe ("I.D."), and Jose Doe ("J.D.") are natives and citizens of Honduras. (Id. ¶¶...

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