AL Otro Lado v. Wolf, Case No. 17-cv-02366-BAS-KSC

Decision Date30 October 2020
Docket NumberCase No. 17-cv-02366-BAS-KSC
Citation497 F.Supp.3d 914
Parties AL OTRO LADO, et al., Plaintiffs, v. Chad F. WOLF, Acting Secretary of Homeland Security, et al., Defendants.
CourtU.S. District Court — Southern District of California

Allison Parr, Karolina J. Walters, Pro Hac Vice, Melissa E. Crow, Pro Hac Vice, Southern Poverty Law Center, Michelle N. Webster, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Victoria Murphy, Mayer Brown LLP, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice, Sydney R. Fields, Mayer Brown LLP, Angelo R. Guisado, Pro Hac Vice, Baher Azmy, Pro Hac Vice, Ghita R. Schwarz, Pro Hac Vice, Center for Constitution Rights, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Rebecca Cassler, Pro Hac Vice, Sarah Marion Rich, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Plaintiffs Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe.

Allison Parr, Karolina J. Walters, Pro Hac Vice, Melissa E. Crow, Pro Hac Vice, Southern Poverty Law Center, Michelle N. Webster, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Victoria Murphy, Mayer Brown LLP, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice, Sydney R. Fields, Mayer Brown LLP, Angelo R. Guisado, Pro Hac Vice, Baher Azmy, Pro Hac Vice, Ghita R. Schwarz, Pro Hac Vice, Center for Constitution Rights, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Sarah Marion Rich, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Plaintiff Jose Doe.

Allison Parr, Michelle N. Webster, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Victoria Murphy, Mayer Brown LLP, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice, Sydney R. Fields, Mayer Brown LLP, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Rebecca Cassler, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Plaintiffs Ursula Doe, Victoria Doe, Juan Doe, Roberto Doe, Cesar Doe, Maria Doe, Emiliana Doe.

Matthew Ellis Fenn, Pro Hac Vice, Mayer Brown LLP, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Mayer Brown LLP, Washington, DC, Rebecca Cassler, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Plaintiff Bianca Doe.

Alexander James Halaska, Brian Ward, Gisela Ann Westwater, Scott Grant Stewart, U.S. Department of Justice, Danielle K. Schuessler, Genevieve Kelly, Hayden Windrow, DOJ-Civ, Dhruman Y. Sampat, Katherine J. Shinners, OIL-DCS Trial Attorney, U.S. Dep't of Justice, Office of Immigration Litigation, Washington, DC, for Defendant Todd C. Owen.

Hayden Windrow, DOJ-Civ, Washington, DC, for Defendant Does 1-25.

Alexander James Halaska, Brian Ward, Ari Nazarov, Scott Grant Stewart, Gisela Ann Westwater, U.S. Department of Justice, Danielle K. Schuessler, Genevieve Kelly, Hayden Windrow, DOJ-Civ, Dhruman Y. Sampat, Katherine J. Shinners, OIL-DCS Trial Attorney, Yamileth G. Davila, United States Department of Justice, Washington, DC, for Defendant Chad F. Wolf.

ORDER:

(1) GRANTING PLAINTIFFSMOTION FOR CLARIFICATION OF THE PRELIMINARY INJUNCTION (ECF No. 494);

(2) GRANTING IN PART AND DENYING IN PART PLAINTIFFSMOTION TO SEAL (ECF No. 495);
AND
(3) DENYING AS MOOT PLAINTIFFSEX PARTE MOTION FOR ORAL ARGUMENT (ECF No. 509)

CYNTHIA BASHANT, United States District Judge

Before the Court is PlaintiffsMotion for Clarification of this Court's November 19, 2019 Preliminary Injunction ("Motion"). (ECF No. 494.) Defendants oppose, and Plaintiffs reply. (ECF Nos. 508, 516.) After considering the parties’ arguments, the Court GRANTS Plaintiffs’ Motion and CLARIFIES the parameters of the Preliminary Injunction below. The Court further GRANTS IN PART and DENIES IN PART PlaintiffsMotion to Seal filed in connection with the Motion (ECF No. 495) and DENIES AS MOOT PlaintiffsEx Parte Motion for Oral Argument on the Motion (ECF No. 509).

I. BACKGROUND
A. Procedural History

Plaintiffs’ underlying claims in this case concern Defendants’ 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 ports of entry is ‘full’ or ‘at capacity[.] " (Second Am. Compl. ¶ 3, ECF No. 189.) Plaintiffs allege that this policy is intended to deter individuals from seeking asylum in the United States and violates constitutional, statutory, and international law. (Id. ¶¶ 3, 5, 72–83.)

While this lawsuit was pending, Defendants promulgated a regulation on July 16, 2019 entitled "Asylum Eligibility and Procedural Modifications"—also known as the "Asylum Ban" or the "Asylum Transit Rule." 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. § 208.13(c)(4). Among other things, the rule renders asylum seekers who enter, attempt to enter, or arrive at the United States-Mexico border after July 16, 2019 ineligible for asylum if they transit through at least one country other than their country of origin and fail to apply for humanitarian protection in that country.

Plaintiffs filed Motions for a Preliminary Injunction and Provisional Class Certification to partially enjoin the application of the Asylum Ban to asylum seekers from countries other than Mexico who were metered before its effective date. (ECF Nos. 293, 294.) They argued the Asylum Ban would, if applied to these asylum seekers who were metered at the border before July 16, 2019, permanently bar these individuals from accessing any asylum process altogether, since they their 30-day window to apply for asylum in Mexico—a country they transited through—had already expired.

On November 19, 2019, the Court granted Plaintiffs’ Motions. (Prelim. Inj., ECF No. 330.) Specifically, the Court ordered the following:

The Court provisionally certifies a class consisting of "all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. POE before July 16, 2019 because of the U.S. Government's metering policy, and who continue to seek access to the U.S. asylum process."
...
Defendants are hereby ENJOINED from applying the Asylum Ban to members of the aforementioned provisionally certified class and ORDERED to return to the pre-Asylum Ban practices for processing the asylum applications of members of the certified class.

(Prelim. Inj. at 36.)

Defendants appealed and concurrently filed an emergency motion to stay the Preliminary Injunction pending the appeal's resolution. (ECF Nos. 335, 354.) The Ninth Circuit issued an administrative stay of the order on December 20, 2019 pending resolution of the motion to stay on the merits. (ECF No. 369.) After oral argument, the court lifted the stay on March 5, 2020. (ECF No. 418.) Oral argument on the underlying appeal was held on July 10, 2020 and a determination remains pending. (See Al Otro Lado et al. v. Chad Wolf, et al. , 945 F.3d 1223 (9th 2019), Dkt. Nos. 97, 105.)

B. Effect of Preliminary Injunction on Immigration Proceedings

In the aftermath of the Preliminary Injunction, Defendants have made piecemeal efforts at various stages of immigration proceedings to identify class members. Below, the Court summarizes the steps Defendants allege they have taken after the Order issued on November 19, 2019, after the Ninth Circuit granted an administrative stay of the Order on December 20, 2019, and after the stay was lifted on March 5, 2020.

1. United States Citizenship and Immigration Services ("USCIS")

Five days after the Preliminary Injunction issued, USCIS directed asylum officers to ask screening questions during credible fear interviews to determine if individuals were more likely than not members of the class; if so, they were instructed to apply the more generous pre-Asylum Ban standard to class members’ asylum claims. (Opp'n to Mot. ("Opp'n") at 5, 16, ECF No. 508; Updated Guidance on Credible Fear Processing Pursuant to Al Otro Lado Litigation ("USCIS Updated Guidance") at 7–9, Ex. 1 to Decl. of Alexander J. Halaska ("Halaska Decl."), ECF No. 508-2.) USCIS also paused credible fear decisions for those who had been interviewed between November 20, 2019 and November 26, 2019 and conducted follow-up interviews to determine class member status for those previously believed to be subject to the Asylum Ban. (Opp'n at 5, 16; Decl. of Ashley B. Caudill-Mirillo ("Caudill-Mirillo Decl.") ¶ 4, Ex. 2 to Halaska Decl., ECF No. 508-3.)

On December 29, 2020, nine days after the Ninth Circuit imposed the stay, USCIS directed asylum officers to stop asking class member screening questions in credible fear interviews, "but to note in the record if the interviewee affirmatively asserted that they were metered or were an Al Otro Lado class member." (USCIS Updated Guidance at 4–5; Decl. of Ori Lev ("Lev Decl.") ¶ 9a, ECF No. 494-2.) However, the screening practice was reinstituted once the administrative stay was lifted on March 5, 2020. (USCIS Updated Guidance at 2–4.)

2. Immigration and Customs Enforcement ("ICE")

On December 8, 2019, ICE suspended the removal of all individuals in custody who had received negative credible fear determinations between July 16, 2019 (the date the Asylum Ban took effect) and November 19, 2019 (the date the Preliminary Injunction issued) and who had no case pending before Executive Office of Immigration Review. (Opp'n at 17; Email from Joseph P. Laws, Ex. 5 to Halaska Decl., ECF No. 508-6.) They were referred to USCIS to be screened for class membership at this time. (Id. )

It appears ICE stopped referring these individuals to USCIS once the administrative stay took effect on December 20, 2019, but returned to this practice on March 16, 2020, after the stay was lifted. (Opp'n at 6; USCIS Updated Guidance at 2; Email from Peter B. Berg, Ex. 6 to Halaska Decl., ECF No. 508-7.) ICE then began referring to USCIS for class membership screening the cases of potential class members who were still in ICE custody or who...

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