Mora v. Wolf
| Decision Date | 25 June 2020 |
| Docket Number | Civil Action No. 20-0993 (ABJ) |
| Parties | NORA AND HER MINOR SON, JOSE (by and through his mother) c/o American Civil Liberties Union, et al., Plaintiffs, v. CHAD F. WOLF, Acting Secretary of the Department of Homeland Security in his official capacity, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs are twenty-six asylum seekers - twelve adults and their fourteen minor children - who are awaiting the completion of asylum proceedings in the Mexican state of Tamaulipas. Compl. [Dkt. # 3] ¶ 1. They all fled violence and persecution in their home countries and sought refuge in the United States. Compl. ¶ 1. Once they reached the border, the Department of Homeland Security returned plaintiffs to Mexico pursuant to the Migrant Protection Protocols, which require that asylum seekers be returned to the territory from which they came from pending adjudication of their requests. Compl. ¶¶ 3-4. The complaint alleges that the decision to expand the implementation of this policy to include the entry points bordering Tamaulipas was unreasonable and unlawful; plaintiffs allege that they have endured - and continue to endure - extreme physical violence there. Compl. ¶ 2. They aver that have been assaulted, kidnapped, raped, extorted, and threatened by members of organized groups that control the area. Pls.' Declarations, Ex. 1 to Compl. [Dkt. # 3-2] (SEALED) ( ). Plaintiffs contend that the federal government is well-aware of the violence that migrants face in Tamaulipas, Compl. ¶ 5; they point out that the region has been assigned the U.S. State Department's highest level "Do Not Travel" advisory "due to crime and kidnapping." Compl. ¶¶ 39-40.
On April 16, 2020, plaintiffs filed this lawsuit, claiming that the Department of Homeland Security and its Acting Secretary, Chad F. Wolf, violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), in expanding the Migrant Protection Protocols to include Tamaulipas; that the policy and the government's decision to return these plaintiffs violates their substantive due process rights; and that the return decisions were not adjudicated appropriately. Compl. ¶¶ 105-21. On May 2, 2020, plaintiffs filed a motion for a preliminary injunction, requesting that they be returned to the United States during the pendency of this litigation. Pls.' Mot. for Prelim. Inj. [Dkt. # 18] ( ); Pls.' Redacted Mem. of P. & A. in Supp. of Mot. for Prelim. Inj. [Dkt. # 18-2] ( ) at 1, 4. Defendants opposed the motion on May 8, 2020. Defs.' Mem. of P. & A. in Opp. to Pls.' Mot. [Dkt. # 23-2] (SEALED); Defs.' Redacted Mem. of P. & A. in Opp. to Pls.' Mot. [Dkt. # 34] ( ). In opposition to the motion, defendants argued, among other things, that plaintiffs could not demonstrate a likelihood of success on the merits since the Court lacked jurisdiction to hear their claims. Defs.' Mem. at 22-30, 35-37.
For the reasons set forth in more detail below, the motion for preliminary injunctive relief will be granted in part and denied in part. Defendants have pointed to a statutory provision that precludes judicial review of individual, discretionary deportation decisions, Defs.' Mem. at 29-30; see 8 U.S.C. § 1252(a)(2)(B)(ii), and the portions of the complaint that seek such relief must be dismissed pursuant to Federal Rule of Civil Procedure 12(h)(3). But there are some claims in the complaint that will go forward. Claim One alleges that the defendants' broadly applicable decision to expand the Migrant Protection Protocols to Tamaulipas was arbitrary and capricious, Compl. ¶¶ 105-08, and the Court has jurisdiction to hear it under the APA notwithstanding section 1252 of the Illegal Immigration Reform and Immigrant Responsibility Act. The Court has jurisdiction to consider Claim Two to the extent it challenges the constitutionality of the expansion of MPP to Tamaulipas, as opposed to the MPP generally. See Compl. ¶¶ 109-14. Claim Three directly challenges the merits of the decisions to return each of the plaintiffs to Mexico notwithstanding their expressions of fear in nonrefoulement interviews, Compl. ¶¶ 115-21, and it falls under the statutory prohibition except to the extent that it alleges that some plaintiffs received no nonrefoulement interview at all.
Assuming that plaintiffs have demonstrated that they risk irreparable harm if they remain in Tamaulipas, the Court must consider whether they have carried their burden to show that they are likely to succeed on the merits of the claims over which it has jurisdiction. Based on the complaint and the evidence adduced so far, the Court cannot determine whether plaintiffs are likely to succeed on the merits of Claim One since it has not been provided with records that memorialize the agency's decision or any administrative record underlying the alleged decision. Therefore, the Court will consolidate consideration of the motion for preliminary injunction with expedited consideration of Claim One on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). The Court finds that plaintiffs have not shown that they are likely to succeed on the merits of Claim Two given the lack of authority to support the extension of the state-created danger doctrine to the immigration context. But the Court will order that any plaintiffs who were returned to Mexico without nonrefoulement interviews as alleged in the surviving portion of Claim Three must receive an interview by July 2, 2020.
On December 20, 2018, the Department of Homeland Security ("DHS") introduced the Migrant Protection Protocols ("MPP"), which require that certain noncitizens who enter the United States directly from, or by travelling through Mexico, "illegally or without proper documentation," must be "returned to Mexico for the duration of their immigration proceedings." Compl. ¶ 29; Dec. 20, 2018 Migrant Protection Protocols Announcement, Ex. 1 to Declaration of Darlene Barballianiz Boggs [Dkt. # 18-14] ("MPP Announcement"). The protocols were issued pursuant to a provision in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1225(b)(2)(C) (hereinafter, "contiguous territory provision"), which states:
In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.
See Jan. 25, 2019 Policy Guidance for Implementation of the Migrant Protection Protocols, Ex. 3 to Defs.' Mem. [Dkt. # 34-3] ("Jan. 25 MPP Policy Guidance").
The announcement that accompanied the adoption of the protocols asserts that they were issued because the United States "has an overwhelming asylum backlog of more than 786,000 pending cases," and "[m]ost of these claims are not meritorious." MPP Announcement at 2. Therefore, DHS proclaimed, to prevent "aliens . . . [from] exploit[ing] asylum loopholes" and from "disappear[ing] into the United States," asylum seekers must await the processing of their applications in Mexico, and if they are granted asylum, they will then be allowed to enter the country. Id.
The same day the United States announced the MPP, the government of Mexico also issued a statement declaring that it would allow "temporary entrance of certain foreign individuals coming from the United States who entered that country at a port of entry" and "ensure that foreigners who have received their notice to appear have all the rights and freedoms recognized in the Constitution, the international treaties to which Mexico is a party, and its Migration Law." Jan. 25 MPP Policy Guidance at 1-2.
Individuals subject to the MPP undergo removal proceedings under 8 U.S.C. § 1229(a), and they are ordered to appear at immigration hearings at a U.S. port of entry on a future date. Compl. ¶ 30. Then, they are physically returned to Mexico, and on the date of their hearing, they must report to their designated port of entry to be processed by Customs and Border Patrol ("CBP") and transported to the hearing site. Id. ¶¶ 30-31. After the hearing, they are transported back to the port of entry and returned to Mexico. This process continues for as many hearings as are necessary to conclude the individual's immigration proceedings. See Jan. 28, 2019 MPP Guiding Principles, Ex. 2 to Defs.' Mem. [Dkt. # 34-2] ("Jan. 28 MPP Guiding Principles") at 2.
Consistent with the principle of nonrefoulement, which precludes a State from expelling or returning a refugee "to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion,"1 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, the MPP are not supposed to apply to any individual who is "more likely than not to face persecution or torture in Mexico." Jan. 28 MPP Guiding Principles at 2. Thus, "where an alien affirmatively states a concern that he or she may face a risk of persecution on account of a protected ground or torture upon return to Mexico," U.S. Citizenship and Immigration Services ("USCIS") "will conduct an assessment" to determine whether application of the MPP is appropriate. Jan. 28, 2019 MPP Guidance for Implementing Section 235(b)(2)(C) of the INA, Ex. 2 to Declaration of Darlene Barballianiz Boggs [Dkt. # 18-15] ("Jan. 28 Policy Memo.") at 3.
That assessment is referred to by plaintiffs as a "nonrefoulement interview." See, e.g., Compl. ¶ 9. These interviews are meant to be conducted in a "non-adversarial manner, separate and apart from the general public." Jan. 28 Policy Memo at 3. "The purpose of the interview is to elicit all relevant and useful information bearing on whether the alien would more likely...
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