Al Otro Lado v. Gaynor, Case No. 17-cv-02366-BAS-KSC

513 F.Supp.3d 1253

AL OTRO LADO, et al., Petitioners,

v.Peter T. GAYNOR, Acting Secretary of Homeland Security, et al., Respondents.

Case No. 17-cv-02366-BAS-KSC

United States District Court, S.D. California.

Signed January 18, 2021

Karolina J. Walters, Pro Hac Vice, American Immigration Council, Melissa E. Crow, Pro Hac Vice, Southern Poverty Law Center, Allison Parr, Michelle N. Webster, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Victoria Murphy, Mayer Brown LLP, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice, Sydney R. Fields, Mayer Brown LLP, Angelo R. Guisado, Pro Hac Vice, Baher Azmy, Pro Hac Vice, Ghita R. Schwarz, Pro Hac Vice, Center for Constitution Rights, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Rebecca Cassler, Pro Hac Vice, Sarah Marion Rich, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Petitioners Al Otro Lado, Inc., Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe.

Karolina J. Walters, Pro Hac Vice, American Immigration Council, Melissa E. Crow, Pro Hac Vice, Southern Poverty Law Center, Allison Parr, Michelle N. Webster, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Victoria Murphy, Mayer Brown LLP, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice, Sydney R. Fields, Mayer Brown LLP, Angelo R. Guisado, Pro Hac Vice, Baher Azmy, Pro Hac Vice, Ghita R. Schwarz, Pro Hac Vice, Center for Constitution Rights, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Sarah Marion Rich, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Petitioner Jose Doe.

Allison Parr, Michelle N. Webster, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Victoria Murphy, Mayer Brown LLP, Washington, DC, Matthew Ellis Fenn, Pro Hac Vice, Sydney R. Fields, Mayer Brown LLP, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Rebecca Cassler, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Petitioners Ursula Doe, Victoria Doe, Juan Doe, Roberto Doe, Cesar Doe, Maria Doe, Emiliana Doe.

Matthew Ellis Fenn, Pro Hac Vice, Mayer Brown LLP, New York, NY, Matthew H. Marmolejo, Mayer Brown LLP, Los Angeles, CA, Ori Lev, Pro Hac Vice, Stephen Medlock, Pro Hac Vice, Mayer Brown LLP, Washington, DC, Rebecca Cassler, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, for Petitioner Bianca Doe.

OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Alexander James Halaska, Brian Ward, Katherine J. Shinners, Dhruman Y. Sampat, U.S. Department of Justice Office of Immigration Litigation, Gisela Ann Westwater, Scott Grant Stewart, U.S. Department of Justice, Danielle K. Schuessler, Civil Division - Office of Immigration Litigation, Hayden Windrow, DOJ-Civ, OIL-DCS, Genevieve Kelly, Washington, DC, for Respondent Todd C. Owen.

Hayden Windrow, DOJ-Civ, OIL-DCS, Washington, DC, for Respondent Does 1-25.

OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Alexander James Halaska, Brian Ward, Katherine J. Shinners, Dhruman Y. Sampat, U.S. Department of Justice Office of Immigration Litigation, Ari Nazarov, Scott Grant Stewart, Gisela Ann Westwater, Yamileth G. Davila, United States Department of Justice, Danielle K. Schuessler, Civil Division - Office of Immigration Litigation, Genevieve Kelly, Hayden Windrow, DOJ-Civ, OIL-DCS, Genevieve Kelly Washington, DC, for Respondent Chad F. Wolf.

TEMPORARY RESTRAINING ORDER

Cynthia Bashant, United States District Judge Before the Court is Plaintiffs’ Motion for a Temporary Restraining Order ("Motion") requesting that the Court prohibit Defendants from applying yet another regulation—titled Asylum Eligibility and Procedural Modification, 85 Fed. Reg. 82,260 (Dec. 17, 2020) ("Final Transit Rule")—to members of the provisional class previously certified by this Court. (ECF No. 658.) Defendants oppose the Motion and Plaintiffs reply. (ECF Nos. 667, 670.) For the reasons stated below, the Court GRANTS Plaintiffs’ Motion and temporarily restrains Defendants from applying this regulation to provisional class members.

I. BACKGROUND

Plaintiffs’ underlying claims in this case concern Defendants’ purported "Turnback Policy," which included a "metering" or "waitlist" system in which asylum-seekers at the southern border were instructed "to wait on the bridge [at a port of entry], in the pre-inspection area, or at a shelter"—or were simply told that "they [could not] be processed because the ports of entry [were] ‘full’ or ‘at capacity[.]’ " (Second Am. Compl. ¶ 3, ECF No. 189.) Plaintiffs allege that this policy was intended to deter individuals from seeking asylum in the United States, in violation of constitutional, statutory, and international law. (Id. ¶¶ 3, 5, 72–83.) The Court has certified the class in this underlying dispute. (ECF No. 513.) The parties have also filed and briefed cross motions for summary judgment that await resolution. (ECF Nos. 535, 563.)

During the pendency of this action, Defendants have promulgated new asylum eligibility regulations—including the Final Transit Rule—that have threatened the preservation of the underlying class of metered asylum-seekers. This has led to a morass of litigation ancillary to the primary case regarding the lawfulness of Defendants’ metering practices. The Court summarizes this byzantine procedural history below.

A. Asylum Ban

On July 16, 2019, Defendants promulgated a regulation entitled "Asylum Eligibility and Procedural Modifications"—also known as the "Asylum Ban" or the "Interim Final Rule" ("IFR").¹

84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. §§ 208.13(c)(4), 1208.13(c)(4). Among other things, the rule renders asylum seekers who enter, attempt to enter, or arrive at the United States-Mexico border after July 16, 2019 ineligible for asylum if they transit through at least one country, other than their country of origin, and fail to apply for any available humanitarian protection in that country.

Plaintiffs moved for a preliminary injunction and provisional class certification to partially enjoin the application of the IFR to asylum-seekers from countries other than Mexico who were metered before its effective date. (ECF Nos. 293, 294.) They argued that: (1) the provisional class was prevented from accessing the asylum process before the effective date of the IFR only because they were subject to Defendants’ unlawful metering practices; and (2) the IFR, if applied to this class, would preclude these individuals from obtaining any form of humanitarian protection, since they their 30-day window to apply for asylum in Mexico—a country through which they transited—had already expired.

On November 19, 2019, the Court granted Plaintiffs’ Motions. (Prelim. Inj., ECF No. 330.) The Court's order was partly based on its previous finding that Plaintiffs located on Mexican soil at the time they were metered were "arriving in" the United States for purposes of asylum under the plain language of the Immigration and Nationality Act ("INA"). (See id. at 4–5 (citing Al Otro Lado v. McAleenan , 394 F. Supp. 3d 1168, 1199–1201 (S.D. Cal. 2019) ).) In its concluding paragraph, the Court issued the following order:

The Court provisionally certifies a class consisting of "all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. POE before July 16, 2019 because of the U.S. Government's metering policy, and who continue to seek access to the U.S. asylum process."

...

Defendants are hereby ENJOINED from applying the Asylum Ban to members of the aforementioned provisionally certified class and ORDERED to return to the pre-Asylum Ban practices for processing the asylum applications of members of the certified class.

(Id. at 36.)

Defendants appealed the Preliminary Injunction to the Ninth Circuit. (ECF No. 335.) After granting an administrative stay on December 20, 2019, the Ninth Circuit denied Defendants’ motion to stay the Preliminary Injunction on March 5, 2020. (ECF Nos. 369, 418.) The court heard oral argument on July 10, 2020 on the merits of the appeal but issued an order on December 2, 2020 holding the proceedings in abeyance pending issuance of the mandates in two related cases. (ECF No. 636.)

B. Subsequent Litigation

While this underlying appeal of the Preliminary Injunction has been pending, several disputes related to the Preliminary Injunction or the provisionally certified class have arisen between the parties.

First, Plaintiffs moved for a temporary restraining order similar to the instant motion but concerning a different regulation, "Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act" (the "ACA Rule"). (ECF Nos. 344, 352.) Plaintiffs claimed Defendants intended to impose the ACA Rule on members of the provisional class to extinguish their underlying metering claims and bar them from accessing the asylum process. (Id. ) The Court denied the motion without prejudice, finding that Plaintiffs had not established a likelihood that Defendants would apply the new regulation to class members. (ECF No. 382.) The Court also based its decision on the fact that the terms of the Preliminary Injunction, if affirmed on appeal, would require Defendants to "return to the pre-Asylum Ban practices" for asylum-seekers metered before July 16, 2019 and therefore "necessarily prohibit[ed]" the application of the more recently promulgated ACA Rule. (Id. at 5–6.) The Court stated that it assumed Defendants would act in good faith by "avoid[ing] taking steps that could complicate or preclude its compliance with a court order." (Id. at 6.)

Second, on July 17, 2020, Plaintiffs filed a Motion for Clarification of the Preliminary Injunction after the parties failed to resolve disputes about the scope of the order and Defendants’ attendant obligations. (ECF No. 494.) The Court then issued an order on October 30, 2020 (the "Clarification Order") clarifying that the Preliminary Injunction: (1) applied to individuals...