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 ...