MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Last
summer in Damus v. Nielsen, 313 F.Supp.3d 317
(D.D.C. 2018), this Court granted a preliminary injunction to
a provisional class of plaintiffs who were challenging the
practices of five Immigrations and Customs Enforcement field
offices. Specifically, those plaintiffs successfully
maintained that ICE was violating the Department of Homeland
Security's “Parole Directive, ” a policy
memorandum that sets forth procedural requirements for
determining whether an asylum-seeker is eligible for
pre-hearing release on parole.
This
suit offers the identical arguments - this time in relation
to ICE's New Orleans Field Office, which
Plaintiffs claim has effectively rescinded the Parole
Directive, even while publicly reaffirming its vitality.
Rather than following the Directive, the Office is allegedly
denying all asylum-seekers parole as a matter of policy. In
opposing a preliminary injunction and in simultaneously
moving to dismiss, the Government principally asserts that
the claims of each of the named Plaintiffs here are
“moot” - i.e., extinguished, given that
they have either had their parole requests re-adjudicated on
an individualized basis or are no longer in the custody of
the New Orleans Field Office. Therefore, the Government
argues, because the named Plaintiffs have already achieved
the individualized review that they sought by bringing this
lawsuit (or such review is now unavailable to them), the
Court is powerless to allow this class action to proceed.
This
Court is not so constrained. Even assuming that the named
Plaintiffs' claims here are moot, the Court retains
jurisdiction over the proposed class. While it is true that
class actions are normally moot if no named representative
with an unexpired claim remains at the time of certification,
see United States v. Sanchez-Gomez, 138 S.Ct. 1532,
1538 (2018), an exception applies where the alleged harms
would otherwise evade review because they are
“inherently transitory.” Id. Such is the
case here. Defeated on their jurisdictional position,
Defendants offer little beyond their Damus arguments
on the merits. The Court, accordingly, will reach the same
result and grant Plaintiffs' Motion. In issuing an
injunction of this nature for a second time, this Court again
simply holds the Government to the policy that it purports to
already be following.
I.
Background
A.
Statutory and Regulatory Framework
The
Court begins with the relevant statutory and regulatory
framework at issue, as it did in its prior decision on the
subject of the Parole Directive. See Damus, 313
F.Supp.3d at 323- 24. The Immigration and Nationality Act
outlines the foundations of our nation's immigration
system, including the process by which noncitizens can apply
for asylum. See 8 U.S.C. § 1225(b)(1)(A)(ii).
If an interviewing officer determines that an asylum-seeker
has a “credible fear” of persecution in her home
country, that person “shall be detained for further
consideration of [her] application.” Id.
§ 1225(b)(1)(B)(ii); see also 8 C.F.R. §
208.30(f) (describing the procedures surrounding a positive
credive-fear finding). The INA, however, also offers another
option besides detention, permitting the Attorney General to
temporarily parole these individuals for “urgent
humanitarian reasons or significant public benefit.”
See 8 U.S.C. § 1182(d)(5)(A).
Agency
regulations provide that the Secretary of Homeland Security
may parole asylum-seekers who are “neither a security
risk nor a risk of absconding, ” in the service of such
“urgent humanitarian reasons or significant public
benefit.” 8 C.F.R. § 212.5(b).
In
2009, DHS issued the “Parole Directive, ” which
further fleshes out when, precisely, it is in the
“public benefit” for an asylum-seeker to be
paroled. See ICE Directive 11002.1, Parole of
Arriving Aliens Found to Have a Credible Fear of Persecution
or Torture (Dec. 8, 2009). According to the Directive, if an
asylum-seeker establishes her identity and that she presents
neither a flight risk nor a danger to the public, her
detention “is not in the public interest,
” and thus ICE “should, absent
additional factors . . . parole the alien.”
Id., ¶ 6.2 (emphases added). But how might ICE
determine if an asylum-seeker poses a flight risk or a
danger? The Directive offers a binding roadmap. First, it
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.”
Id. Next, to aid in this individualized
consideration, the Directive prescribes that asylum-seekers
“shall” be provided with certain procedural
safeguards. See, e.g., id., ¶ 6.1.
These include written notice of the parole process explained
in a language they understand, a parole interview within
seven days of a credible-fear finding, written notification
of a parole determination, and a brief explanation of the
reasoning behind any decision to deny parole. Id.,
¶¶ 6.1-8.1. In sum, the Directive
“establishes certain minimum procedures and processes
that are to be utilized in making [parole]
determinations.” Damus, 313 F.Supp.3d at 324.
During
the years immediately following implementation of the
Directive, DHS released asylum-seekers on parole at ¶
90% rate nationwide subsequent to their credible-fear
determinations. See ECF No. 2 (Complaint), ¶ 2.
In 2017, then-DHS Secretary John Kelly confirmed that the
Parole Directive “remain[s] in full force and
effect.” Memorandum of John Kelly, “Implementing
the President's Border Security and Immigration
Enforcement Improvement Policies” at 10 (Feb. 20, 2017)
(Kelly Memorandum). The Acting Director of the New Orleans
Field Office, moreover, recently proclaimed that the Parole
Directive “is still in effect in New Orleans.”
ECF No. 27 (Def. MTD), Exh. A (Declaration of Scott
Sutterfield), ¶ 6. Yet the percentage of asylum-seekers
that that Office has released on parole has dramatically
declined in recent years. The Office currently retains the
lowest release rate of any jurisdiction in the country,
having denied 98.5% of release requests in 2018 and 100% of
requests made thus far in 2019. See ECF No. 30 (Pl.
Response) at 5; Def. MTD at 4 n.4.
B.
Plaintiffs' Detentions
Eleven
named individuals bring the present action. Plaintiffs and
those they seek to represent “all demonstrated a
credible fear of persecution and are now [or previously were]
in removal proceedings before the Executive Office for
Immigration Review.” Compl., ¶ 1. Rather than
being placed on parole during the pendency of their asylum
determinations, Plaintiffs were “confined under the
jurisdiction of the New Orleans ICE Field Office” at
one of six immigration jails for months on end. Id.,
¶ 10.
In July
2018, lead Plaintiff Ángel Alejandro Heredia Mons fled
Cuba with his wife to escape persecution for their refusals
to participate in Communist political activities.
Id., ¶ 12. DHS separated Heredia Mons from his
wife at the border, transferring her to an ICE facility in
Taylor, Texas, and him to the New Orleans Field Office.
Id., ¶ 59. She passed a credible-fear interview
in early August 2018, and DHS granted her parole later that
month. Id. Heredia Mons had no such luck. After
passing his credible-fear interview, he received a parole
advisal in a language he does not speak, four days
after the deadline to submit documents.
Id., ¶ 60. He never received a parole
interview. Id. The Office denied his parole request
in a “form letter” dated September 10, 2018, and
it has detained him since that date. Id., ¶ 61.
The other named Plaintiffs - Miguel Ángel Giron
Martinez, Douglas Enrique Puche Moreno, Adrián Toledo
Flores, Dayana Mena López, M.R.M.H., P.S.P, Y.A.K.,
J.M.R., R.O.P., and F.J.B.H - recount similar narratives.
On June
30, 2019, the above-named Plaintiffs brought the present
class action seeking to enjoin DHS's alleged practice of
categorically denying parole to asylum-seekers in
contravention of the Directive. They assert that
Defendants' effective recession of the Directive is
arbitrary and capricious and contrary to law, in violation of
the Administrative Procedure Act, 5 U.S.C. § 706(2).
See Compl., ¶¶ 129-33. Additionally, they
allege that separate and apart from their obligations under
the Parole Directive, Defendants have violated both the APA
and the Due Process Clause of the Fifth Amendment to the
Constitution in failing to provide individualized
determinations of flight risk and danger. Id.,
¶¶ 134-42.
Plaintiffs
now move for a preliminary injunction, while Defendants have
countered with a Motion to Dismiss. The Court heard oral
argument on August 29, 2019, and issues this expedited
Opinion.
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 plaintiff seeking a preliminary
injunction must establish [1] that he is likely to succeed on
the merits, [2] that he is likely to suffer irreparable harm
in the absence of preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an injunction is in
the public interest.” Sherley v. Sebelius, 644
F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter, 555
U.S. at 20). “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)).
Historically,
these factors have “been evaluated on a ‘sliding
scale.'” Davis v. Pension Ben. Guar.
Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). In other
words, if the movant makes an “unusually strong showing
on one of the factors, then it does not necessarily have to
make as strong a showing on another factor.” Id.at
1291-92. 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, 644 F.3d at 392-93
(quoting Davis v. PBGC, 571 F.3d 1288, 1296
(Kavanaugh, J., concurring)); see League of Women Voters
v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016) (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)
(internal quotation and citation omitted).
III.
Analysis
Plaintiffs'
core contention is that the New Orleans Field Office has
effectively rescinded the 2009 Directive by failing to offer
asylum-seekers individualized review of their parole
applications and instead denying them in summary fashion.
Like the plaintiffs in Damus, they offer comparative
statistics as well as affidavits from detained asylum-seekers
and their counsel. For the most part, Defendants stand on the
same arguments that the Court previously found wanting in
Damus; indeed, they simply incorporate them by reference. See
Def. MTD at 6. As a result, the Court's analysis of the
merits essentially tracks its prior articulation.
Defendants
do, however, raise one novel argument. They ask this Court to
dismiss Plaintiffs' proposed class action for lack of
jurisdiction on the ground that the claims are moot. As the
Court disagrees, it will grant Plaintiffs' Motions for a
Preliminary Injunction and Class Certification, while largely
denying Defendants' Motion to Dismiss. It first addresses
jurisdiction, ...