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Mons v. McAleenan

United States District Court, District of Columbia

September 5, 2019

HEREDIA MONS, et al., Plaintiffs,
v.
KEVIN K. MCALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.

          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identical arguments - this time in relation to ICE's New Orleans Field Office, which Plaintiffs claim has effectively rescinded the Parole Directive, even while publicly reaffirming its vitality.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, ...


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