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Damus v. Nielsen

United States District Court, District of Columbia

July 2, 2018

ANSLY DAMUS, et al., Plaintiffs,
v.
KIRSTJEN NIELSEN, Secretary of the Department of Homeland Security, et al., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, United States District Judge.

         As the events of recent months make clear, the question of how this nation will treat those who come to our shores seeking refuge generates enormous debate. While arriving foreigners may have myriad reasons for wanting to settle in the United States, a subset claims a fear of persecution in their native lands. They seek asylum here. Since 2009, the detention of those asylum-seekers has, in part, been governed by a set of principles and procedures set forth in a “Parole Directive” issued by Immigration and Customs Enforcement, a component of the Department of Homeland Security. This document establishes the process by which ICE must determine whether an individual who has passed a credible-fear interview - the first step toward gaining asylum status - will be released from detention on parole pending a full hearing.

         Plaintiffs (and other members of the class they seek to represent) are noncitizens being held at five ICE Field Offices who have received a credible-fear determination but have been denied parole. Although, in the past, individuals deemed to have a “credible fear” of persecution and thus a significant possibility of being granted asylum were overwhelmingly released, Plaintiffs contend that there is a new reality in place. Pointing to the fact that parole rates have plummeted from over 90% to nearly zero, as well as to testimony from detained asylum-seekers and their counsel, they assert that the Government is no longer following its own Parole Directive. Plaintiffs allege that, rather than providing individualized determinations and procedural safeguards, DHS is now engaging in systematic detention.

         Seeking the protections spelled out in the Directive, Plaintiffs have now turned to the courts. They filed suit in March of this year against DHS Secretary Kirstjen Nielsen, as well as Thomas Homan, the Acting Director of ICE, U.S. Attorney General Jefferson B. Sessions, and the directors of the five ICE Field Offices. Their Complaint alleges that Plaintiffs have been denied parole in violation of the ICE Directive, and that the Government has thereby violated the Administrative Procedure Act, the Immigration and Nationality Act, and the Due Process Clause of the Fifth Amendment. Defendants have now moved to dismiss, contending that this Court lacks subject-matter jurisdiction over the various counts and that Plaintiffs have failed to state a viable claim for relief. The asylum-seekers both oppose dismissal and request a preliminary injunction requiring DHS to comply with the Parole Directive and to provide individualized parole determinations while this suit is pending.

         Finding that the circumstances here merit that extraordinary form of relief, the Court will grant Plaintiffs' Motion. In so doing, this Opinion does no more than hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance. Having extended the safeguards of the Parole Directive to asylum-seekers, ICE must now ensure that such protections are realized.

         I. Background

         A. Statutory and Regulatory Framework

         Plaintiffs in this case are detained pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1225(b). This statute provides that if a noncitizen “who is arriving in the United States” demonstrates an intention to apply for asylum or expresses a fear of persecution or torture, he is referred for an interview to determine whether the fear is credible. See 8 U.S.C. § 1225(b)(1)(A)(ii). If the interviewing officer determines this to be the case, the INA provides that the individual “shall be detained for further consideration of the application for asylum, ” which includes a full asylum hearing before an immigration court and, if unsuccessful, an administrative appeal with the Board of Immigration Appeals (BIA). See 8 C.F.R. § 208.30(f); 8 U.S.C. § 1225(b)(1)(B)(ii). This detention requirement is not, however, entirely inflexible. Instead, an individual detained under § 1225(b) can be paroled “into the United States temporarily” pursuant to the discretion of the Attorney General. See 8 U.S.C. § 1182(d)(5)(A). According to agency regulations, the Secretary of Homeland Security “may invoke” this parole authority for individuals who are “neither a security risk nor a risk of absconding, ” and who meet one or more of a series of conditions - namely, “for urgent humanitarian reasons or significant public benefit.” Id.; 8 C.F.R. § 212.5(b).

         It is this last factor - “public benefit” - that is the focus of the 2009 Directive, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, ” issued by Immigration and Customs Enforcement (“ICE Directive” or “Parole Directive”). See ECF No. 22-1 (ICE Directive 11002.1). The Directive explains the agency's interpretation of “public benefit” for the purposes of determining parole and sets out a number of procedural requirements for assessing asylum-seekers' eligibility for release. On a broad level, the Directive states that “[e]ach alien's eligibility for parole should be considered and analyzed on its own merits and based on the facts of the individual alien's case, ” and that if an asylum-seeker establishes his identity and that he presents neither a flight risk nor a danger to the public, “[ICE] should, absent additional factors . . . parole the alien on the basis that his or her continued detention is not in the public interest.” Id., ¶ 6.2 (emphasis added). More specifically, the Directive sets out a series of procedures ICE must undertake to determine whether a given asylum-seeker should be granted parole, including, inter alia, that the individual shall be provided written notice of the parole process explained in a language he understands, id., ¶¶ 6.1, 8.1, shall be granted a parole interview within seven days of a credible-fear finding, id., ¶ 8.2, shall be provided written notification of a parole determination, id., ¶ 6.5, and shall be given a “brief explanation of the reasons for any decision to deny parole.” Id., ¶ 6.5. As a result, although the Directive affirms that parole decisions are discretionary, it also establishes certain minimum procedures and processes that are to be utilized in making these determinations. Id., ¶ 4.4 (Directive “explains how the term [public interest] is to be interpreted by [ICE] when it decides whether to parole arriving aliens determined to have a credible fear” and “mandates uniform recordkeeping and review requirements for such decisions”).

         B. Plaintiffs' Detention

         The nine named Plaintiffs and other members of the class they seek to represent are “asylum seekers who traveled to the United States, were found to have a credible fear of persecution, and were referred for immigration proceedings to decide their asylum claims.” Compl., ¶ 2. During the pendency of their asylum determinations, however, each has remained detained, allegedly “with no individualized review of whether their detention is necessary.” Id.

         The lead plaintiff, Ansly Damus, is a former ethics teacher who is seeking asylum in the United States after fleeing political persecution in Haiti. Id., ¶ 11. Damus entered the United States in October 2016 and was referred for immigration proceedings after an asylum officer determined that he had a credible fear of persecution. He was subsequently granted asylum twice, but the Government appealed both determinations; meanwhile, the Detroit ICE Field Office denied his requests for parole in January 2017 and February 2018. Id. He has therefore remained detained - at this point - for over a year and a half. Id.

         Plaintiff L.H.A. (the Court has permitted certain named Plaintiffs to proceed under pseudonyms) has been detained for even longer - over two years. Id., ¶ 16. He entered the United States in May 2016, upon fleeing threats in El Salvador. After receiving a credible-fear determination, L.H.A. applied for parole on June 14, 2017, but his request was denied by the El Paso Field Office and he remains detained. Id.

         Plaintiffs Alexi Castro, H.A.Y., A.M.M., E.E.C.S., and L.I.L.M. have been detained for shorter periods (so far), but their experiences mirror those of Damus and L.H.A. Each was found to have a credible fear of persecution, each requested parole, and each was subsequently denied release and remains detained. Id., ¶¶ 14, 15, 17, 18. For two of the Plaintiffs, however, the story takes a slightly different twist. Abelardo Callol, who presented himself to immigration officers in December 2017 after fleeing persecution in Cuba, was denied parole and had been detained for over three months at the time the Complaint was filed. Id., ¶ 13. N.J.J.R., who presented himself to immigration in October 2017 after fleeing Venezula, had been detained for over four. Id., ¶ 12. In the time since the Complaint was filed, however, both men have been granted asylum and released from detention. See ECF No. 32 (Pl. Class Cert. Reply) at 15 n.6.

         According to Plaintiffs, this shared experience of being found to have a credible fear of persecution but then being denied parole is indicative of the issue at the crux of this case - namely, the allegation that certain ICE Field Offices are no longer providing individualized parole determinations pursuant to the 2009 Directive. In support of this claim, Plaintiffs point to the steep descent of parole-grant rates in the initial months of the current administration. Citing figures showing that nearly 100% of parole requests processed by the five Field Offices at issue have been denied, Plaintiffs allege that the Government is no longer following its own parole policies.

         This past spring, the asylum-seekers looked elsewhere to vindicate their claims. On March 15, 2018, they brought a class-action suit in this Court, challenging the parole regime currently in place at the Detroit, El Paso, Los Angeles, Newark, and Philadelphia ICE Field Offices. See Compl., ¶¶ 21-25. They claim that these Field Offices are categorically denying parole, an approach that Plaintiffs contend is contrary to law and arbitrary and capricious in contravention of the APA and the INA. Id., ¶¶ 66-74. They additionally bring a freestanding allegation that the current state of the parole system violates the Due Process Clause of the Fifth Amendment. Id., ¶¶ 75-80. Presently before the Court are Plaintiffs' Motions for a preliminary injunction requiring that Defendants follow the Parole Directive during the pendency of this suit, as well as for provisional class certification for purposes of the requested injunction. Defendants oppose both Motions and separately seek dismissal of the suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In keeping with the expedited nature of a preliminary-injunction proceeding, the Court held a hearing on May 17, 2018, after which it ordered further briefing on the issue of class certification. See ECF Order of May 29, 2018. That briefing complete, this Opinion regarding injunctive relief now follows. Given the result, the Court does not now tackle Defendants' Motion to Dismiss.

         II. Legal Standard

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). A party seeking preliminary relief must make a “clear ‘showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.'” League of Women Voters of United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing America's Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). “The moving party bears the burden of persuasion and must demonstrate, ‘by a clear showing,' that the requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F.Supp.2d 192, 197 (D.D.C. 2010) (citing Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).

         Before the Supreme Court's decision in Winter, courts weighed these factors on a “sliding scale, ” allowing “an unusually strong showing on one of the factors” to overcome a weaker showing on another. Davis v. PBGC, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009); see Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit has hinted, though not held, that Winter - which overturned the Ninth Circuit's “possibility of irreparable harm” standard - establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, free-standing requirement[s].'” Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)); see League of Women Voters, 838 F.3d at 7 (declining to address whether “sliding scale” approach is valid after Winter). Unresolved, too, is the related question of “whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question' on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (citation omitted). Regardless of the extent to which showings of irreparable harm and success on the merits can be diminished, however, it is clear that where the plaintiff can show neither harm nor success, no relief is warranted. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205 F.Supp.3d 4, 26 (D.D.C. 2016).

         III. Analysis

         At the heart of Plaintiffs' suit is their assertion that, under the current administration, the parole practices at the five Field Offices have drastically departed from the policies and protections enshrined in the 2009 ICE Directive. Offering comparative statistics as well as declarations from detained asylum-seekers and their counsel, Plaintiffs contend that parole has been effectively eliminated as an option and detention has instead become the status quo. They attribute this shift in part to the Trump administration's emphasis on “deterrence” and “zero-tolerance” when it comes to the treatment of undocumented individuals. Defendants contest this characterization, claiming instead that there is no “deterrence policy” in place, that they continue to implement the ICE Directive, and that parole remains available to asylum-seekers at the five Field Offices.

         Before turning to its analysis of these issues, however, the Court must first address two threshold complications: justiciability and class certification. According to Defendants, the asylum-seekers' case cannot proceed because this Court lacks jurisdiction over their claims and because they do not present a proper class. Disagreeing on both fronts, the Court will discuss these points separately before tackling the merits of injunctive relief.

         A. Preliminary Issues

         1. Jurisdiction

         Defendants raise a bevy of jurisdictional objections. Specifically, the Government alleges that Plaintiffs' claims challenging the parole process are barred by 8 U.S.C. § 1252(a)(2)(B)(ii) and their request for classwide injunctive relief by 8 U.S.C. § 1252(f)(1). Ultimately, the Court concludes that these alleged jurisdictional hurdles are easily cleared by the asylum-seekers, and that their claims may therefore proceed.

         One arrow Defendants pluck from their justiciability quiver relies on on 8 U.S.C. § 1252(a)(2)(B)(ii), which provides:

[N]o court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.

         According to the Government, Plaintiffs are improperly attempting to challenge “ICE officers' discretionary weighing of the evidence.” ECF No. 26 (Def. PI Reply) at 4.

         To the extent Plaintiffs are challenging the determinations themselves - i.e., the actual balancing of the merits of each application for parole - this Court agrees that it lacks jurisdiction. It will, therefore, not inquire into the specific strengths or weaknesses of the parole decisions under dispute, including Plaintiffs' allegation that certain of the proffered rationales for denial were “pretextual.” ECF No. 24 at 8-10. Yet the asylum-seekers do not rest their case on a challenge to discrete parole determinations. Rather, they allege that ICE is, as a matter of general course, not complying with the policies and procedures of the Parole Directive. In other words, they are not challenging the outcome ...


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