Al Otro Lado, Inc. v. McAleenanAl Otro Lado, Inc. v. McAleenan
Case Information
1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA AL OTRO LADO, INC.; ABIGAIL DOE, Case No. 17-cv-2366-BAS-KSC BEATRICE DOE, CAROLINA DOE, DINORA DOE, INGRID DOE, URSULA REMEDIES OPINION DOE, JOSE DOE, ROBERTO DOE,
MARIA DOE, JUAN DOE, VICTORIA DOE, BIANCA DOE, EMILIANA DOE,
AND CESAR DOE, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security, in
his official capacity; CHRIS MAGNUS
Commissioner, U.S. Customs and Border Protection, in his official capacity; PETE
FLORES, Executive Assistant
Commissioner, Office of Field Operations, U.S. Customs and Border
Protection, in his official capacity,
Defendants. In its September 2, 2021 decision, this Court held the right to access the U.S. asylum process conferred vis a vis § 1158(a)(1) applies extraterritorially to noncitizens who are arriving at Class A POEs along the U.S.-Mexico border, but who are not yet within the jurisdiction of the United States, and is of a constitutional dimension. (Op. Granting in Part and Denying in Part Parties’ Cross-Mots. for Summ. J. (“MSJ Opinion”), ECF No. 742.) It further held that Defendants’ systematic turnbacks of asylum seekers arriving at Class A POEs (the “Turnback Policy”) amounted to an unlawful withholding by immigration officials of their mandatory ministerial “inspection and referral duties” detailed in 8 U.S.C. § 1225 (“§ 1225”), in violation of the Administrative Procedures Act, 5 U.S.C. § 706(1) et seq. , and the Fifth Amendment Due Process Clause. (MSJ Opinion at 33–34, 37–38); see 8 U.S.C. §§ 1225(a)(3) (mapping out immigration officials’ duty to inspect asylum seekers), 1225(b)(1)(A)(ii) (mapping out immigration officials’ duty to refer asylum seekers to the U.S-asylum process).
In casting appropriate equitable relief to rectify the irreparable injury Defendants’
unauthorized and constitutionally violative Turnback Policy has inflicted upon members
of the Plaintiff class, this Court ordinarily would be guided by the fundamental principle
that an equitable remedy should be commensurate with the violations it is designed to
vindicate.
See Columbus Bd. of Educ. v. Penick
,
Yet the circumstances with which this Court is presented are not ordinary because
of the extraordinary, intervening decision of the United States Supreme Court in
Garland
v. Aleman Gonzalez
,
In no uncertain terms, the logical extension of appears to bestow immigration enforcement agencies carte blanche to implement immigration enforcement policies that clearly are unauthorized by the statutes under which they operate because the Government need only claim authority to implement to immunize itself from the federal judiciary’s oversight.
With acknowledgment that its decision will further contribute to the human suffering of asylum seekers enduring squalid and dangerous conditions in Mexican border communities as they await entry to POEs, this Court finds the shadow of Aleman Gonzalez inescapable in this case. Even the most narrow, meaningful equitable relief would have the effect of interfering with the “operation” of § 1225, as that term is construed by the Court, and, thus, would clash with § 1252(f)(1)’s remedy bar. Aleman Gonzalez not only renders uneconomical vindication of Plaintiff class members’ statutorily- and constitutionally-protected right to apply for asylum, those inefficiencies inevitably will lead to innumerable instances in which Plaintiff class members will be unable to vindicate their rights at all. Thus, while the majority and dissent in Aleman Gonzalez hash out their textual disagreements concerning § 1252(f)(1)’s scope in terms of remedies, make no mistake, Aleman Gonzalez leaves largely unrestrained immigration enforcement agencies to rapaciously scale back rights. See Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process , 41 San Diego L. Rev. 1633, 1634 (2004) (“Disputes over remedies provide a convenient way for dissenters to resist conformance to legal guarantees. Courts can declare rights, but then default in the remedy to avoid a politically unpopular result.” (footnote omitted)).
Although it is no substitute for a permanent injunction, class-wide declaratory relief is both available and warranted here. In lieu of even a circumscribed injunction enjoining Defendants from again implementing a policy under which they turn back asylum seekers presenting themselves at POEs along the U.S.-Mexico border, the Court enters a declaration in accordance with its MSJ Opinion that turning back asylum seekers constitutes both an unlawful withholding of Defendants’ mandatory ministerial inspection and referral duties under § 1158 and § 1225 in violation of both the APA and the Fifth Amendment Due Process Clause. The Court also issues relief as necessary to named Plaintiff Beatrice Doe.
//
//
//
// 1 BACKGROUND I. [3]
On September 2, 2022, this Court granted Plaintiffs’ motion for summary judgment on their APA and Fifth Amendment claims. [4] ( See generally MSJ Op.) Specifically, this Court found that Defendants’ implementation of the Turnback Policy withheld their mandatory ministerial duties to inspect and refer asylum seekers who present themselves at Class A POEs along the U.S.-Mexico border, but who are not yet within the jurisdiction of the United States, in violation of Section 706(1) of the APA. [5] ( See id. at 34.) This Court further found that, because Defendants’ withholding of inspection and referral duties infringed upon the Plaintiff class’s right to access the U.S.-asylum process secured by § 1158(a)(1), and because the Plaintiff class’s Fifth Amendment due process rights are coextensive with that statute, the Turnback Policy also violates the Fifth Amendment. ( Id. at 37–38.)
The Court asked the parties to weigh in on what equitable relief these statutory and constitutional violations warrant. ( Id. at 44.) The parties contemporaneously filed briefs in accordance with the MSJ Opinion on October 1, 2021. ( See Pls.’ Remedies Br., ECF No. 768; Defs.’ Remedies Br., ECF No. 770.) Plaintiffs additionally filed a Proposed Order listing the injunctive, oversight, and declaratory relief they believe is appropriate to rectify Defendants’ systemic violations. ( See Proposed Order, ECF No. 773-4.) On October 22, 2021, Defendants sought leave to file essentially a sur-reply, which addresses the purported 1 overbreadth of Plaintiffs’ proposed class-wide injunctions. ( See Mot. for Leave to File Sur-Reply, ECF No. 773; Defs.’ Sur-Reply, ECF No. 773-2.)
Several requests for relief Plaintiffs proffer are not in dispute. The parties agree Plaintiffs are entitled under the APA to vacatur of the Department of Homeland Security (“DHS”)’s Metering Guidance and Prioritization-Based Que Management (“PBQM”) Memorandum and the Office of Field Operations’ Metering Guidance Memorandum, both of which served to formalize Defendants’ Turnback Policy in approximately 2018. ( See Proposed Order ¶ 5; Defs.’ Remedies Br. at 6–8 (proposing vacatur of the Memoranda as an appropriate form of relief).)
Furthermore, Defendants do not appear to oppose entry of an order restoring the status quo ante for named Plaintiffs Roberto Doe and Beatrice Doe, including requiring Defendants to issue any necessary travel documents to allow them to travel to the United States and to ensure their processing for asylum upon arrival. ( See Proposed Order ¶ 7.)
Finally, Defendants appear to welcome Plaintiffs’ request for entry of a declaratory judgment giving legal effect to the MSJ Opinion’s conclusion that § 1158 and § 1225 require Defendants to inspect and refer noncitizens who present themselves at Class A POEs but who are not yet within the jurisdiction of the United States ( see MSJ Opinion 33–34). ( See Proposed Order ¶ 1; Defs.’ Remedies Br. at 6–8 (encouraging Court to enter class-wide declaratory relief, which can then be used “as a predicate to further relief, including an injunction” in individual suits by Plaintiff class members seeking an injunction against Defendants).)
Despite these areas of agreement, there is contentious disagreement concerning whether this Court has authority to enter class-wide injunctive relief and, if so, the proper 1 scope of such relief. Plaintiffs primarily request the Court to issue a class-wide injunction stating:
Defendants and others acting at their direction or in active concert or participation with them are PERMANENTLY ENJOINED from turning away, turning back, or otherwise denying access to inspection and/or asylum processing to noncitizens who have not been admitted or paroled and who are in the process of arriving in the United States at Class A Ports of Entry regardless of their purported justification for doing so, absent any independent, express, and lawful statutory authority to do so outside of Title 8 of the U.S. Code.
(Proposed Order ¶ 2.) Plaintiffs also seek an ancillary injunction directing Defendants and the Executive Office of Immigration Review “[t]o inspect and provide asylum” to each Plaintiff class member “under the rules and regulations that would have applied [to each member] at the time” he or she would have first entered the United States, but for Defendants’ unlawful Turnback Policy. ( Id. ¶ 3.) Finally, Plaintiffs seek appointment of Magistrate Judge Karen S. Crawford as special master pursuant to Federal Rule of Civil Procedure (“Rule”) 65 to monitor and oversee Defendants’ implementation of all class- wide injunctive relief. ( Id. ¶ 8.)
Defendants contend the IIRIRA at § 1252(f)(1) bars any class-wide injunctive relief in the instant case. ( See Defs.’ Remedies Br. at 3–4.) They aver § 1252(f)(1), which prohibits lower courts from “enjoin[ing] or restrain[ing] the operation of [8 U.S.C. §§ 1221 through 1332],” precludes entry of even a circumscribed injunction enjoining Defendants’ unauthorized practice of turning back asylum seekers arriving at Class A POEs because such an injunction would interfere with the “operation” of § 1225. (Defs.’ Remedies Br. 1 at 3–4.) Defendants further argue that Plaintiffs have failed to show that a balancing of the parties’ respective hardships and the public interest favor entry of their proposed permanent injunctions. Moreover, they contend the class-wide injunctions set forth in the Proposed Order are overbroad, impermissibly vague, and would threaten to hamper implementation of the Department of Health and Human Services’ Center for Disease Control and Prevention (“CDC”) orders, which, with limited exceptions, effectively suspend asylum processing at land POEs pursuant to 42 U.S.C. § 265 (“Title 42”) to prevent the spread of COVID-19 virus at POE facilities. ( See Defs.’ Remedies Br. at 8–18; Defs.’ Sur-Reply at 7–12.)
Several intervening factual developments since the MSJ Opinion have rendered moot certain of Plaintiffs’ requests for relief in their Proposed Order. On November 2, 2022, Defendants voluntarily rescinded the PBQM and Metering Guidance Memoranda; those Memoranda have not been replaced with revised or amended policy documents. ( See Rescission of June 5, 2018, Prioritization-Based Queue Management Memorandum, Ex. 2 to Notice of Administrative Action (“NOAA”), ECF No. 775-2; Guidance for Management and Processing of Undocumented Noncitizens at Southwest Border Land Ports of Entry, Ex. 1 to NOAA, ECF No. 775-1.) Then, on January 28, 2022, the parties indicated that Plaintiff Roberto Doe had arrived in the United States by commercial airline and was allowed to access the U.S.-asylum process. ( See Joint Status Report, ECF No. 796.) //
In addition to these factual developments, the legal landscape concerning §
1252(f)(1) has changed drastically since the MSJ Opinion. At the time of the MSJ Opinion,
it was the law in the Ninth Circuit that § 1252(f)(1) “d[id] not . . . categorically insulate
immigration enforcement from judicial classwide injunctions.”
Gonzalez v. United States
Immigration & Customs Enf’t
,
But on June 13, 2022, the Supreme Court effectively held in
Garland v. Aleman
Gonzalez
,
// II. LEGAL STANDARD
A. Permanent Injunctive Relief
In the Ninth Circuit, a plaintiff who seeks a permanent injunction must satisfy a four-
factor test.
See Kurin, Inc. v. Magnolia Med. Techs., Inc.
,
(1) [t]hat it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction [(“ eBay factors”)].
eBay Inc.
, 547 U.S. at 391. Where the Government is the party opposing issuance of
injunctive relief, the above-mentioned third and fourth factors—balancing of hardships and
public interest—merge.
See Nken v. Holder
, 556 U.S. 418, 435 (2009). This merger
requires the Court to examine whether “any significant ‘public consequences’ would result
from issuing the preliminary injunction” and, if so, whether they favor or disfavor its entry.
See Fraihat v. United States Immigration & Customs Enf’t
,
It is well-established that deprivation of a constitutional right “unquestionably
constitutes irreparable injury,” and that no public interest is served by withholding
equitable relief without which those rights will continue to be infringed.
Melendres v.
Arpaio
,
District courts have “broad discretion to fashion injunctive relief” to eliminate
constitutional violations.
See Melendres v. Maricopa Cty.
,
B. Declaratory Judgment Act
The Declaratory Judgment Act provides, in pertinent part, that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a); see Fed. R. Civ. P. 57 (“The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.”); see also In re Singh , 457 B.R. 790, 798 (Bankr. E.D. Cal. 2011) (“Declaratory relief is an equitable remedy distinctive in that it allows adjudication of rights and obligations on disputes regardless of whether claims for damages or injunction have arisen.”).
The question whether to issue declaratory relief is a matter of the district court’s
sound discretion.
See Wilton v. Seven Falls Co.
, 515 U.S. 277, 288 (1995) (“By the
Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court’s
quiver[.]”). A court’s decision to enter declaratory relief must be firmly implanted “in
sound reason,”
McGraw-Edison Co. v. Preformed Line Products. Co.
,
1 III. ANALYSIS
A. Class-Wide Permanent Injunction
1. 8 U.S.C. § 1252(f)(1)
Among the “‘judicial power[s]’ committed to the federal courts by Article III” is the
power to grant broad, equitable relief, including on a class-wide basis.
Rodriguez v. Hayes
,
Here, the remedy-stripping statute at issue is § 1252(f)(1). That provision states: Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, [which includes § 1225,] as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). Section 1252(f)(1) is “nothing more or less than a limit on injunctive
relief.”
Reno v. Am.-Arab Anti-Discrimination Comm.
,
At the heart of the parties’ dispute concerning remedies is whether § 1252(f)(1) is so broad in scope as to preclude the entry of any permanent class-wide injunction that remediates Defendants’ statutory and constitutional violations. The Ninth Circuit’s Interpretation of § 1252(f)(1) 2.
24
It has been the law in the Ninth Circuit for nearly twenty years that § 1252(f)(1)
25
“does not . . . categorically insulate immigration enforcement from judicial classwide
26
injunctions.”
Gonzalez v. U.S. Immigration & Customs Enf’t
,
Thus, in the Ninth Circuit, lower courts have had authority to enter injunctions
against violations of the detention statutes.
See Rodriguez
,
//
//
//
//
//
// 1 on the district court’s authority to enjoin agency action found to be unlawful.” (emphasis omitted)).
Prior to
Aleman Gonzalez
, this Court would have little difficulty finding that
Rodriguez
and
Ali
provide fertile ground upon which it could enter an injunction enjoining
Defendants from turning back asylum seekers in the process of arriving at Class A POEs,
or compelling Defendants to inspect and refer those individuals in accordance with §
1158(a)(1) and § 1225, despite § 1252(f)(1)’s remedial bar. Defendants’ turning back of
asylum seekers unlawfully withholds inspection and referral duties that § 1158(a)(1) and §
1225 require Defendants to perform; by failing to perform those duties, Defendants act
without statutory authority and commensurately violate the due process rights of Plaintiff
class members. (
See
MSJ Opinion at 33–34, 37–38.)
Rodriguez
and
Ali
make explicitly
clear that a class-wide injunction enjoining Defendants from withholding their inspection
and referral duties would not interfere with the “operation” of § 1225 because such an
injunction would be directed at unauthorized and unconstitutional practices.
See also Osny
Sorto-Vasquez Kidd
,
Nor would this Court have difficulty concluding each of the
eBay
factors tip
decidedly in favor of such an injunction.
See
547 U.S. at 391;
Nken
, 556 U.S. at 435.
Plaintiffs have established irreparable harm. Defendants’ Turnback Policy inflicted
constitutional injuries upon members of the Plaintiff class. (MSJ Opinion at 37–38.)
Deprivation of a Fifth Amendment due process right “unquestionably constitutes
irreparable injury.”
See Melendres I
,
Furthermore, intolerable public consequences would arise from withholding class-
wide injunctive relief tailored to remediate the specific violations found in the MSJ
Opinion. Without issuance of an injunction enjoining Defendants’ systemic withholding
of their referral and inspection duties, Defendants will continue to have free rein to trample
upon Plaintiffs’ statutory and constitutional rights.
See Melendres I
,
However, as Defendants assert, and Plaintiffs concede, Aleman Gonzalez completely changes this Court’s calculus. ( See Defs.’ Suppl. Br. at 1–3.) The Court must answer the question whether Ali and Rodriguez are still viable post- Aleman Gonzalez and, if not, whether § 1252(f)(1) precludes issuance of a permanent class-wide injunction in this case.
3.
Aleman Gonzalez
is Clearly Irreconcilable with
Ali
and
Rodriguez
An intervening change in controlling law is found where the reasoning or theory of
a case “is clearly irreconcilable with the reasoning or theory of intervening higher
authority,”
Miller v. Gammie
,
Before the Supreme Court in
Aleman Gonzalez
was the question whether the
discretionary detention provision at 8 U.S.C. § 1231(a)(6), which enables the federal
government to detain noncitizens pending removal, requires the Immigration and
Naturalization Service (“INS”) to provide bail hearings to individuals in DHS custody for
a period of six months or more.
The Government appealed to the Supreme Court, which granted certiorari and sua sponte requested additional briefing concerning whether § 1252(f)(1) precluded the lower courts from issuing preliminary injunctions in the first instance. Aleman Gonzalez , 142 S. Ct. at 2063.
On June 13, 2022, the Supreme Court held § 1252(f)(1) “generally prohibits lower
courts from entering injunctions that order federal officials to take or to refrain from taking
actions to enforce, implement, or otherwise carry out [§§ 1221–32],” with “one exception”:
lower courts “retain the authority to ‘enjoin or restrain the operation of’ the relevant
statutory provisions ‘with respect to the application of such provisions to an individual
alien against whom proceedings under such part have been initiated.’” ,
Although it does not mention them by name, there can be little doubt
Aleman
Gonzalez
repudiates the central holdings of
Ali
and
Rodriguez
. Indeed, the Supreme Court
in
Aleman Gonzalez
poured cold water on the premise for which
Ali
and
Rodriguez
stand—
that § 1252(f)(1) is inapplicable to injunctions that merely seek to force immigration
enforcement agencies to implement the statute consistent with its terms—by concluding
even injunctions that “enjoin or restrain” the “unlawful” or “improper operation,”
i.e.
,
violations, of § 1252(f)(1)’s covered provisions clash with that statute’s remedy bar.
Aleman Gonzalez
,
4. 8 U.S.C. § 1252(f)(1) Bars Class-Wide Injunctive Relief
Having concluded
Aleman Gonzalez
appears to repudiate
Ali
and
Rodriguez
, this
Court finds itself at odds between two competing obligations: its duty to avoid interpreting
and applying § 1252(f)(1) in a manner that “produce[s] absurd results,”
see Griffin v.
Oceanic Contractors, Inc.
,
On the one hand, flips on their heads two fundamental principles
that guide Article III courts in exercising their inherent judicial powers: that “it is
emphatically the province and duty of the judicial department to say what the law is,”
Marbury v. Madison
,
“Generally, judicial relief is available to one who has been injured by an act of a
government official which is in excess of his express or implied powers.”
Harmon v.
Bruckler
,
It would be quite absurd if, in
Brown
,
Swann
, or
Milliken
, the lower courts were
restrained to issue injunctive relief, schoolchild-by-schoolchild.
See Califano v. Yamasaki
,
By restraining the lower federal courts’ authority to issue meaningful relief,
Aleman
Gonzalez
simultaneously confers to immigration enforcement agencies power to
unilaterally ignore or deviate from the Congressional mandates set forth in the removal
provisions of the INA,
see
8 U.S.C. §§ 1221–32. In this way,
Aleman Gonzalez
not only
deflates the historical and traditional role of Article III courts, but it also undermines a
fundamental principle of federalism: that when Congress explicitly speaks to a specific
issue, federal agencies and courts are bound to “give effect to the unambiguously expressed
intent of Congress.”
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.
,
Defendants suggest Aleman Gonzalez ’s implications are not as damaging to the rights of the Plaintiff class as they appear at first glance. Defendants say that, if this Court issues class-wide declaratory relief, Plaintiff class members can institute a separate, non- class action suit and rely upon this Court’s declaratory judgment “as a predicate to further relief, including [an] injunction,” which would fit within § 1252(f)(1)’s carve out. (Defs.’ Remedies Br. at 7.) But by requiring injunctive relief to be issued Plaintiff class member- by-member, there inevitably will be individuals deprived of their due process right to access asylum. As the dissent in observed:
Noncitizens subjected to removal proceedings are disproportionately unlikely to be familiar with the U.S. legal system or fluent in the English language. Even so, these individuals must navigate the Nation’s labyrinthine immigration laws without entitlement to appointed counsel or legal support.
On the other hand, this Court has an unfaltering obligation to faithfully apply
pertinent Supreme Court precedent.
Hart
,
The inspection and referral duties this Court found Defendants had withheld by
implementing their Turnback Policy are explicitly imposed by the INA at § 1225(a)(3)
(delineating immigration officers’ duty to inspect) and § 1225(b)(1)(A)(ii) (delineating
immigration officers’ duty to refer asylum seekers).
See Al Otro Lado v. Wolf
, 952 F.3d
999, 1010 (9th Cir. 2020) (holding § 1158(a)(1) “creates a right to apply for asylum” while
§ 1225 “imposes two key mandatory duties on immigration officers with respect to
potential asylum seekers”). Section 1225 is among § 1252(f)(1)’s covered provisions.
Clearly, after
Aleman Gonzalez
, such an injunction must be construed as “enjoin[ing] or
restrain[ing] the operation” of § 1225 because it would have the effect of “interfer[ing]
with the Government’s efforts to operate § [1225].”
Nevertheless, Plaintiffs fashion several creative arguments for why an injunction is appropriate despite Aleman Gonzalez ’s repudiation of Rodriguez and Ali . None are availing.
i. Vacatur under the Administrative Procedures Act
First, Plaintiffs argue that the Court can issue vacatur relief. (Pls.’ Supplemental Br. at 2.) As an initial matter, Plaintiffs are wrong to suggest this Court simply can issue an injunction disguised as vacatur relief; though the two remedies may overlap, they are not the same. Unlike an injunction, a vacatur does not restrain the enjoined defendants from pursuing other courses of action to reach the same or a similar result as the vacated agency action. See Daniel Mach, Rules Without Reasons: The Diminishing Role of Statutory Policy and Equitable Discretion in the Law of NEPA Remedies , 35 Harv. Envtl. L. Rev. 205, 237 (2011). For example, here, either vacatur or an injunction would suffice to strike down the Turnback Policy, but only an injunction, not vacatur, would restrain Defendants from, in the future, experimenting with and instituting a modified or amended version of the Turnback Policy. See. id.
Moreover, although this Court believes (and Defendants appear to as well) that neither § 1252(f)(1) nor restrict lower courts from “set[ting] aside” or “vacating” a policy based upon an APA violation, Defendants accurately observe that because the PBQM and Metering Guidance Memoranda were rescinded in November of 2021, there exists no “agency action” for this Court to vacate (Defs.’ Supp. Br. at 3). See 5 U.S.C. § 706(2).
ii. Anchoring an Injunction in § 1158
Second, Plaintiffs argue that a separate line of Ninth Circuit precedent, besides
Ali
and
Rodriguez
, provides this Court with authority to issue a class-wide permanent
injunction despite § 1252(f)(1)’s remedial bar. Specifically, citing
Gonzales v. Department
of Homeland Security
,
Despite Plaintiffs’ assertion otherwise,
Gonzales
is not applicable here. Unlike in
Gonzales
, there is practically no attenuation between § 1158, the statute in which Plaintiffs
ask this Court to anchor an injunction, and § 1225, the statute that Plaintiffs acknowledge
§ 1252(f)(1) prohibits this Court from influencing through injunctive relief. Those statutes
are inextricably intertwined. (
See
MTD Opinion at 5 (“This case turns on [§] 1225(b)
iii. Anchoring an Injunction in
8 U.S.C. § 1103(a)(1) and 6 U.S.C. § 202 Relying again on Gonzales , Plaintiffs aver that this Court can issue an injunction anchored in the statutory provisions Defendants claimed authorized their Turnback Policy: 8 U.S.C. § 1103(a)(1) and 6 U.S.C. § 202. As this Court has explained previously, Defendants predicated the Turnback Policy based upon their interpretation of those statutes as authorizing the DHS Secretary with incredibly broad discretion to prioritize DHS’s responsibilities in the manner he or she deems necessary. (MTD Opinion at 55 (“Defendants point to [§] 1103(a)(1) in particular, which provides that the Secretary ‘shall establish such regulations; prescribe such forms of bonds, reports, entries, and other papers; 1 issue instructions; and perform other acts as he deems necessary for carrying out his authority under the provisions of this chapter. ” (emphasis added)).)
While the Court is intrigued by this theory, Plaintiffs miss the mark.
Aleman
Gonzalez
requires this Court to inquire whether an injunction would “interfere with
[Defendants’] efforts to operate” § 1225, which this Court answered in the affirmative
above,
see supra
Sec. III.A.4.
Aleman Gonzalez
,
Accordingly, this Court concludes that § 1252(f)(1) prohibits it from entering a permanent class-wide injunction enjoining Defendants from turning back noncitizen asylum seekers in the process of arriving at Class A POEs or compelling Defendants to inspect and refer such asylum seekers.
* * * * Having concluded § 1252(f)(1) strips this Court of authority to enter a permanent injunction, Plaintiffs’ request for oversight of all permanent injunctive relief is therefore moot.
B. Individual Relief
Plaintiffs seek an order restoring the status quo ante for named Plaintiff Beatrice Doe prior to Defendants’ unlawful Turnback Policy. Defendants neither argue § 1252(f)(1) prohibits this Court from issuing such an injunction nor assert that such relief is unwarranted. Indeed, it is apparent to the Court that Plaintiff Beatrice Doe is entitled to the relief sought in the Proposed Order. ( See Proposed Order ¶ 7.) Accordingly, the Court orders Defendants to restore the status quo ante for named Plaintiff Beatrice Doe prior to Defendants’ unlawful conduct. This includes taking the necessary steps to facilitate Plaintiff Beatrice Doe’s entry into the United States, including issuing any necessary travel documents to allow her to travel to the United States (by air if necessary) and to ensure her asylum processing upon arrival.
Although Plaintiff Beatrice Doe does not seek an injunction directing Defendants to “inspect and refer” her to the U.S. asylum process at a Class A land POE along the U.S.- Mexico border, Defendants suggest that the appropriate recourse for the innumerable Plaintiff class members waiting in Mexican border communities is to seek individualized relief in accordance with § 1252(f)(1) and Aleman Gonzalez . The Court, therefore, takes this occasion to point out yet another absurd consequence Aleman Gonzalez produces when taken to its logical endpoint.
The Supreme Court held in
Aleman Gonzalez
that § 1252(f)(1) has “one exception”
to its general prohibition against lower court injunctions: lower courts “retain authority to
restrain or enjoin the operation of the [covered] statutory provisions ‘with respect to the
application of such provisions to an individual
alien against whom
[
removal
]
proceedings
. . . have been initiated
.’”
Aleman Gonzalez
, 142 S. Ct. at 2065 (quoting 8 U.S.C. §
1252(f)(1)) (emphasis added). But the text of § 1252(f)(1) places the individual members
of the Plaintiff class in a devastatingly cruel catch-22. Unlike the class members in
Aleman
Gonzalez
, removal proceedings have yet to be instituted against all members of the Plaintiff
class here precisely because of Defendants’ unlawful Turnback Policy. Definitionally,
inspection and referral is a prerequisite to removal. Thus, without
Ali
and
Rodriguez
to
rest upon, appears to effectively render illusory Plaintiff class members’
Fifth Amendment due process right to apply for asylum. This is despite Congress’s clear
legislative intent in enacting § 1252(f)(1) that the statute “not hamper a district court’s
ability to address imminent rights violations.”
Padilla v. Immigration & Customs Enf’t
,
“The government of the United States has been emphatically termed a government of laws, and not men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. Marbury , 5 U.S. (1 Cranch) 137, 163; see also Ashby v. White , 92 Eng. Rep. 126 (K.B. 1703) (“If the plaintiff has a right, he must of necessity have means to vindicate and maintain it, and a remedy if he is injured in the exercise of enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy and want of a remedy are reciprocal.”). Because of Aleman Gonzalez , innumerable Plaintiff class members may well end up living in this gray area where they possess a due process right but no remedy when that right is violated by rapacious executive overreach.
C. Class-wide Declaratory Relief is Warranted
Although the issuance of a class-wide injunction is prohibited, § 1252(f)(1) does not
strip this Court of jurisdiction to issue a class-wide declaration.
See Rodriguez
, 591 F.3d
at 119 (construing § 1252(f)(1) narrowly as not banning class-wide declaratory relief),
cited
affirmatively by Padilla
,
The parties agree that this Court has both constitutional and statutory jurisdiction to
issue a declaratory judgment in this case.
See Gov’t Emps. Ins. Co. v. Dizol
,
Both parties aver that declaratory relief will serve a useful purpose in clarifying
where the balance lies between Defendants’ authority to regulate the flow and methodology
of inspecting and processing asylum seekers in the process of arriving at Class A POEs and
the Plaintiff class’s right to access the U.S. Asylum Process. (Pls.’ Remedy Br. at 7–8
(“[T]he Court should issue a judgment declaring, pursuant to its earlier opinion on the
parties’ cross-motion for summary judgment, that turnbacks of noncitizens in the process
of arriving at POEs on the U.S.-Mexico border violate the INA, section 706(1) of the APA,
and the Due Process Clause of the Fifth Amendment.”);
see
Defs.’ Remedy Br. at 6–7.)
They also concur that a declaratory judgment memorializing the Court’s central holdings
in its MSJ Opinion would extinguish the disputes giving rise to this action and avoid future
litigation concerning the scope of Defendants’ inspection and referral duties. (
See
Pls.’
Remedy Br. at 7–8 (arguing a declaratory judgment would terminate in advance disputes
that might arise “should this Administration or another one wish to experiment with new
ways of denying arriving noncitizens access to the asylum process at POEs.”); Defs.’
Remedy Br.at 7 (“[A declaratory judgment] could be used by individual [
AOL
] Class
Members ‘as a predicate to further relief, including an injunction.’” (quoting
Powell v.
McCormack
,
The Court is persuaded that declaratory relief that captures the central holdings of its MSJ Opinion would serve the dual purposes of the Declaratory Judgment Act. Accordingly, the Court enters the following declaratory relief:
This Court enters a DECLARATORY JUDGMENT that, absent any independent, express, and lawful statutory authority, Defendants’ refusal to deny inspection or asylum processing to noncitizens who have not been admitted or paroled and who are in the process of arriving in the United States at Class A Ports of Entry is unlawful regardless of the purported justification for doing so.
IV. CONCLUSION
For the foregoing reasons stated above:
1) The Court ORDERS Defendants to restore the status quo ante for the named Plaintiffs prior to Defendants’ unlawful conduct. This includes taking the necessary steps to facilitate Plaintiff Beatrice Doe’s entry into the United States, including issuing any necessary travel documents to allow her to travel to the United States (by air if necessary) and to ensure her inspection and asylum processing upon arrival.
2) The Court DECLARES that, absent any independent, express, and lawful statutory authority, Defendants’ refusal to deny inspection or asylum processing to noncitizens who have not been admitted or paroled and who are in the process of arriving in the United States at Class A Ports of Entry is unlawful regardless of the purported justification for doing so.
The parties are further ORDERED to meet and confer and lodge a Proposed Final Judgment that incorporates this Court’s rulings in its MSJ Opinion (ECF No. 742) and set forth herein by no later than August 22, 2022 .
IT IS SO ORDERED.
DATED: August 5, 2022
Notes
[1] Because all Defendants are sued in their official capacities, the successors for these public offices are automatically substituted as Defendants per Federal Rule of Civil Procedure 25(d).
[2] Plaintiffs consist of the named Plaintiffs listed in the case caption, along with a certified class consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of [Customs and Border Protection] officials on or after January 1, 2016.” (Class Certification Order at 18, ECF No. 513.) The Court also certified a subclass consisting of “all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.” ( Id. )
[3] Familiarity with this Court’s prior orders granting in part and denying in part Defendants’ motion 22 to dismiss (“MTD Opinion”) (ECF No. 280) and MSJ Opinion is presumed. The factual and procedural history needed to understand this Remedies Opinion is found in the background section of those Opinions. 23
[4] This Court also found legally invalid on summary judgment Plaintiffs’ claims Defendants committed ultra vires violations of the Plaintiff class’s right to seek asylum under the Immigration and 24 Nationality Act (“INA”) and violated the Alien Tort Statute. (MSJ Opinion at 11–13, 38–43.)
[5] The term “inspection and referral duties” to which the Court alludes throughout retains the same 25 meaning given to that term in the MSJ Opinion. (MSJ Opinion at 8 n.7.) Those duties refer to the asylum 26 provision in § 1158(a)(1), which this Court found bestows upon noncitizens who are in the process of arriving at a Class A POE—but who are still physically outside the international boundary line at the 27 POE—a right to apply for asylum, and § 1225, which sets forth specific asylum processing duties Defendants must undertake to give meaning to that right. See 8 U.S.C. §§ 1225(a)(3) (delineating immigration officers’ duty to inspect), 1225(b)(1)(A)(ii) (delineating immigration officers’ duty to refer).
[6] The Court GRANTS Defendants leave to file a sur-reply (ECF No. 773), but notes that 27 Defendants’ arguments therein were irrelevant to the issue on which this Court’s decision not to enter a class-wide injunction ultimately turns: whether § 1252(f)(1)’s remedy bar applies to this case. See infra Sec. III.A.
[7] Additionally, Plaintiffs ask the Court to convert into a permanent injunction the Preliminary 24 Injunction enjoining application of 8 C.F.R. § 208.13(c)(4), known more commonly as the “Asylum Ban,” to the immigration proceedings of members of a provisionally certified class consisting of “non-Mexican 25 asylum seekers who were unable to make a direct asylum claim at a [Class A POE] before July 16, 2019 26 because of [Defendants’] metering policy” (Prelim. Inj., ECF No. 330). ( See Proposed Order ¶ 4; see also Clarification Order, ECF No. 605.) The Court addresses this request for class-wide injunctive relief 27 separately in its contemporaneously filed Opinion at ECF No. 816, which principally resolves Plaintiffs’ motions to essentially clarify for a second time the contours of the Preliminary Injunction and Clarification Orders ( see ECF Nos. 644, 736).
[8] Despite rescission of the PBQM and Metering Guidance Memoranda in November of 2021,
23
asylum processing at the U.S.-Mexico border is still restricted in light of the CDC’s COVID-19 Title 42
orders, which generally “suspend[s] the introduction of persons into the United States” who are “traveling
24
from Canada or Mexico (regardless of their country of origin) [and] who would otherwise be introduced
into a congregate setting in a land [POE] or Border Patrol station at or near the United States borders with
25
Canada and Mexico[.]” 85 Fed. Reg. 17,060 (Mar. 26, 2020). On April 1, 2022, CDC Director Rochelle
26
Walensky issued an order terminating the then-operative Title 42 order,
see
87 Fed. Reg. 15,243 (Mar.
17, 2022). 87 Fed. Reg. 19,941 (Apr. 6, 2022). However, the CDC’s rescission was enjoined by a district
27
court in the Lafayette Division of the Western District of Louisiana on May 20, 2022.
See Louisiana v.
Ctrs. for Disease Control & Prevention
, --- F. Supp. 3d ---,
[9] The Supreme Court in
Jennings v. Rodriguez
, 138 S. Ct. 830, 851 (2018), accepted without
repudiation the underlying logic of the Ninth Circuit’s interpretation of § 1252(f)(1): that the injunction
25
bar “d[oes] not affect [lower courts’] jurisdiction over . . .
statutory
claims because those claims d[o] not
26
‘seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized
by the statutes.’”
Id.
(quoting
Rodriguez
,
[10] Importantly, the Court notes that the Ninth Circuit requested briefing on precisely this issue on
26
June 29, 2022 in
Leobardo Moreno Galvez v. Tracy Renaud
, No. 20-36052, Dkt. No. 62 (“The parties are
directed to address . . . whether the Supreme Court’s decision in overrules this Court’s
27
holding that Section 1252(f) prohibits only injunction of ‘the operation of the detention statutes, not
injunction of a violation of the statutes.’” (citing
Rodriguez
,
[11] The
Aleman Gonzalez
Court’s interpretation rests principally upon its observation that “it is very
common to refer to the ‘unlawful’ or ‘improper’ operation of whatever it is that is being operated,”
pointing by way of example to,
inter alia
, cars, airplanes, railroads, radios, and video poker machines, all
of which “can be unlawfully or improperly operated.”
Aleman Gonzalez
,
[12] While the Supreme Court decisions cited all involve unauthorized acts taken by state officials,
27
it is well-settled that federal courts’ equitable powers extend to entering class-wide injunctive relief to
enjoin violations of federal law
by federal officers
.
See, e.g.
,
McAnnulty
,
[13]
See Texas v. United States
, --- F. Supp. 3d ---,
[14] This decision does not cover Plaintiffs’ request to convert the Preliminary Injunction into a 27 permanent one or Plaintiffs’ request for oversight over Defendants’ compliance with the Preliminary Injunction and Clarification Order. As mentioned above, supra note 7, those issues are addressed at ECF No. 816.
[15] It is true that even if this dire interpretation of § 1252(f)(1) and is the correct
one, § 1252(f)(1) still leaves open the possibility that the Supreme Court can fashion class-wide injunctive
relief to vindicate the Plaintiff class’s right to access the U.S.-asylum process.
See Biden v. Texas
, 142 S.
Ct. 2528, 2539 (2022) (“A second feature of the text of section 1252(f)(1) leaves no doubt that this Court
has jurisdiction: the parenthetical explicitly preserving this Court’s power to enter injunctive relief.”).
But the Supreme Court “grants only a very small percentage of certiorari petitions.”
United States v.
Burch
,