Doe v. McAleenan

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 CRISTIAN DOE, DIANA DOE, Case No.: 19-cv-2119-DMS (AGS)

12 Petitioners-Plaintiffs,

ORDER GRANTING MOTION FOR

13 v. CLASSWIDE PRELIMINARY

INJUNCTION

14 CHAD F. WOLF, Acting Secretary of

Homeland Security; et al.,

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Respondents-Defendants.

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18 On November 5, 2019, Petitioners filed a motion for class certification and a motion

19 for temporary restraining order (“TRO”) to allow Petitioners access to their retained

20 counsel prior to and during Petitioners’ non-refoulement interviews under the

21 Government’s Migrant Protection Protocols Program (“MPP” or “Remain in Mexico”).

22 Pursuant to the MPP, asylum seekers arriving at the United States Border by land from

23 Mexico are returned to Mexico to await the outcome of their immigration proceedings.

24 Bound by the duty of non-refoulement, however, Respondents may not return an asylum

25 seeker to Mexico if the individual can show he or she faces persecution or torture in

26 Mexico. Instead, the asylum seeker is taken out of the MPP and paroled or detained in the

27 United States to await their removal proceedings.

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1 On November 12, 2019, the Court granted Petitioners’ motion for TRO and ordered

2 Respondents to allow Petitioners access to their retained counsel prior to and during their

3 non-refoulement interviews. Doe v. McAleenan, --- F. Supp. 3d ---, 2019 WL 6605880, at

4 *5 (S.D. Cal. Nov. 12, 2019). Petitioner Cristian Doe was interviewed two days later by

5 an U.S. Citizenship and Immigration Services (“USCIS”) Asylum Officer. Three attorneys

6 for Doe were present telephonically. The Asylum Officer found it is more likely than not

7 that Petitioners will be persecuted or tortured if they are returned to Mexico. Consequently,

8 the Doe family was taken out of the MPP and released from Customs and Border Patrol

9 (“CBP”) custody. They are still awaiting the remainder of their immigration case.

10 The Court has certified a class action to include similarly situated asylum seekers.

11 Petitioners now request classwide injunctive relief to allow for access to retained counsel

12 prior to and during their non-refoulement interviews. The matter has been fully briefed

13 and argued. For the reasons set forth below, the Court reaffirms its conclusion that

14 Petitioners have met their burden and that the Administrative Procedures Act (“APA”),

15 specifically 5 U.S.C. § 555(b), provides a right to retained counsel in these circumstances.

16 I.

17 BACKGROUND

18 Petitioners’ and Respondents’ declarations provide the following background facts.

19 Petitioners are the parents of a family of five children that fled their home country of

20 Guatemala after suffering extortion, death threats, and rape. (Mot. for TRO, Declaration

21 of Cristian Doe (“Cristian Doe Decl.”), at ¶¶ 2, 4). Like many families, Petitioners traveled

22 through Mexico to seek asylum in the United States. (Id. at ¶ 7). While in Mexico,

23 Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped

24 of their clothing. (Mot. for TRO at 14). Their attackers, masked men clothed in what

25 appeared to be Mexican government uniforms, threatened to kill Petitioners if they reported

26 the incident. (Id.). Petitioners and their children were left terrified. (Id.). Upon reaching

27 the United States, Petitioners immediately requested asylum. (Id.).

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1 Prior to the MPP, asylum seekers arriving at the Southern border were usually placed

2 in expedited removal proceedings. 8 U.S.C. § 1225(b)(1). If they expressed a fear of

3 persecution or torture upon removal to their country of origin, the asylum seekers were

4 given a credible fear interview (“CFI”) to determine whether there was a significant

5 possibility they would establish eligibility for asylum. 8 U.S.C. § 1225(b)(1)(A)(i). Before

6 such interviews, asylum seekers had a right to consult with counsel. 8 C.F.R. §§ 208.30(d),

7 208.31(c). If the asylum seekers passed their CFIs, they were placed in full removal

8 proceedings before an Immigration Judge (“IJ”) to present their asylum claims. 8 U.S.C.

9 §§ 1229a(c)(4), 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30, 235.3. While awaiting their

10 removal proceedings, the asylum seekers were often paroled into the United States.

11 The process changed in January of 2019 when the Department of Homeland Security

12 (“DHS”) instituted the MPP: “an unprecedented action” meant to “address the urgent

13 humanitarian and security crisis at the Southern border.” (Resp. in Opp’n to TRO, Ex. 2

14 at 4). Pursuant to the MPP, “individuals arriving in or entering the United States from

15 Mexico—illegally or without proper documentation—may be returned to Mexico for the

16 duration of their immigration proceedings.” (Id., Ex. 1 at 1). Asylum seekers within the

17 MPP are given “Notice[s] to Appear” for their immigration court hearings and await such

18 hearings in Mexico. (Id. at 2). In effect, the MPP replaces expedited removal proceedings

19 and CFIs for certain asylum seekers. (Id., Ex. 2 at 7). The MPP is authorized by the

20 Immigration and Nationality Act (“INA”), which provides that asylum seekers “arriving

21 on land . . . from a foreign territory contiguous to the United States” may be returned “to

22 that territory pending [their immigration] proceeding[s.]” 8 U.S.C. § 1225(b)(2)(C).

23 In implementing the MPP, DHS officials must act consistent with the principle of

24 non-refoulement. (Resp. in Opp’n to TRO, Ex. 3 at 11). This principle, contained in both

25 Article 33 of the 1951 Convention Relating to the Status of Refugees1 and Article 3 of the

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1 Convention Against Torture, prohibits the return of an individual to a country in which he

2 or she would more likely than not be persecuted or tortured. (Id. at 10–11). As applied to

3 the MPP, asylum seekers must first express a fear of returning to Mexico, and those that

4 do are then detained by CBP pending a non-refoulement interview with USCIS Asylum

5 Officers. (Id. at 11 n.4). During this interview, the Asylum Officer “elicit[s] all relevant

6 and useful information” regarding the likelihood the asylum seeker will face persecution

7 and torture upon his or her return to Mexico. (Id., Ex. 4 at 15). The interview “can last up

8 to several hours, during which time the [asylum seeker] is often handcuffed.” (Mot. for

9 TRO at 16; Cristian Doe Decl. at ¶¶ 25–26). If the asylum seeker passes the non-

10 refoulement interview, he or she is removed from the MPP and is either released on parole

11 or detained in the United States pending removal proceedings. (Mot. for TRO at 17). If

12 the asylum seeker does not pass, he or she must await the outcome of their removal

13 proceedings in Mexico. (Id.).

14 Pursuant to DHS policy, asylum seekers cannot communicate with retained counsel

15 prior to or during non-refoulement interviews.3 In practice, asylum seekers are given

16 sporadic access to counsel—prior to their interviews, asylum seekers may have monitored

17 calls with their attorneys if the phones are working, and during their interviews, asylum

18 seekers are “sometimes” given access to counsel “on an ad hoc basis.” (Id. at 18; Resp. in

19 Opp’n to Prelim. Inj., Declaration of Ashley B. Caudill-Mirillo (“Caudill-Mirillo Decl.”),

20 at ¶ 3). DHS maintains, however, that providing asylum seekers with access to retained

21 counsel is not required by law. (Resp. in Opp’n to Prelim. Inj. at 18–19).

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2 Dec. 10, 1984, 1465 U.N.T.S. 85.

24 3 USCIS states in its Policy Memorandum concerning the implementation of the MPP,

25 “[P]rovided the [non-refoulement interviews] are part of either primary or secondary

inspection, DHS is currently unable to provide access to counsel during the [interviews]

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given the limited capacity and resources at ports-of-entry and Border Patrol stations as well

27 as the need for orderly and efficient processing of individuals.” (Resp. in Opp’n to TRO,

Ex. 4 at 15). USCIS does not state in writing whether there is a right to access retained

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1 In accordance with the MPP, Petitioners and their children were returned to Mexico

2 to await their immigration proceedings. (Mot. for TRO at 14). At their first immigration

3 court hearing, Petitioners articulated a fear of return to Mexico and were given separate

4 non-refoulement interviews. They did not have counsel present. (Caudill-Mirillo Decl. at

5 ¶ 5; Cristian Doe Decl. at ¶ 26; Rep. in Supp. of Mot. for Prelim. Inj. at 9). Petitioners did

6 not pass their interviews and were returned to Mexico. (Caudill-Mirillo Decl. at ¶ 5).

7 Petitioners again articulated their fear of returning to Mexico at their third immigration

8 court hearing, in which retained counsel was present. (Mot. for TRO at 19). The family

9 was then detained by CBP to await a second non-refoulement interview. (Id.). Petitioners

10 were not given confidential access to retained counsel. (Id.)

11 Petitioners filed suit the same day on which they expressed a fear of returning to

12 Mexico in immigration court. Petitioners sought a temporary restraining order to enjoin

13 Respondents from prohibiting access to retained counsel and moved for class certification.

14 The Court granted Petitioners’ motion for a temporary restraining order and thereafter

15 certified the class. The Court now determines whether Petitioners are entitled to a

16 classwide preliminary injunction that requires Respondents to provide asylum seekers

17 access to retained counsel prior to and during non-refoulement interviews.

18 II.

19 DISCUSSION

20 Before addressing the merits of injunctive relief, the Court considers Respondents’

21 jurisdictional arguments, including that the INA forecloses judicial review of Petitioners’

22 claims and that the rule of non-inquiry bars judicial review of non-refoulement procedures.

23 The INA prohibits judicial review of a “decision or action” that is “in the discretion of the

24 Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii).

25 Respondents assert this jurisdictional bar extends not only to decisions to return asylum

26 seekers to Mexico pending removal proceedings—which this case does not concern—but

27 also extends to “the procedures used to arrive at those decisions.” (Resp. in Opp’n to

28 Prelim. Inj. at 13). In support, Respondents cite Gebhardt v. Nielsen, in which the Ninth

1 Circuit held it did not have jurisdiction to review the plaintiff’s statutory claim attacking

2 the USCIS’s denial of his I-130 petition because of the INA’s jurisdictional bar. Gebhardt

3 v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018). In that case, the Ninth Circuit noted that it

4 did not matter whether the plaintiff “characterize[d] his claims as challenges to the

5 substantive standards that the Secretary [of DHS] use[d]” or as challenges to the

6 Secretary’s ultimate decision. Id. Either way, the Court lacked jurisdiction to review the

7 claim because “[t]he standards by which the Secretary reaches a decision within his or her

8 ‘sole and unreviewable discretion’—and the methods by which the Secretary adopts those

9 standards—are just as unreviewable as the Secretary’s ultimate decisions themselves.” Id.

10 (citing Ortiz v. Meissner, 179 F.3d 718, 722 (9th Cir. 1999)). Respondents argue the same

11 logic applies here: Petitioners’ claims attack “the procedures used to arrive at the ultimate

12 decisions to return [asylum seekers] to Mexico” and those procedures are not subject to

13 judicial review. (Resp. in Opp’n to Prelim. Inj. at 14).

14 Respondents’ argument distorts Petitioners’ claim. Petitioners are not challenging

15 Respondents’ decisions to return asylum seekers to Mexico or the substantive standards

16 used to determine whether an asylum seeker will face persecution or torture upon return to

17 Mexico. Petitioners’ claim is narrow in its attack on Respondents’ policy prohibiting

18 access to retained counsel prior to and during non-refoulement interviews—an issue that is

19 collateral to the outcome of the interview, and therefore within the Court’s jurisdiction.

20 See Gebhardt, 879 F.3d at 987 (“[W]e can review a claim in this context only if it

21 challenges a genuinely collateral action”) (emphasis in original); Hernandez v. Sessions,

22 872 F.3d 976, 988 (9th Cir. 2017) (“[Section] 1252(a)(2)(B)(ii) restricts jurisdiction only

23 with respect to the executive’s exercise of discretion.”); Make the Road N.Y. v. McAleenan,

24 405 F. Supp. 3d 1, 31 (D.D.C. 2019) (“[S]ection 1252(a)(2)(B)(ii) relates to judicial review

25 of ‘denials of discretionary relief[,]’ . . . and nothing about Plaintiffs’ claims challenges

26 relief at all, much less discretionary relief or denials thereof.”) (internal citations omitted).

27 To hold otherwise, as Petitioners argue, would be to grant Respondents the unreviewable

28 freedom to determine the results of non-refoulement interviews with a “Ouija board” or

1 “prevent persons from speaking” or “bind and gag” asylum seekers during the interview.

2 (Rep. in Supp. of Mot. for Prelim. Inj. at 3). The Court, therefore, has jurisdiction over

3 Petitioners’ claim.

4 As to Respondents’ argument that the rule of non-inquiry bars judicial review of

5 Petitioners’ claim, the Court reaffirms its conclusion that the rule of non-inquiry does not

6 apply because Petitioners are not challenging extradition or return decisions. (Order

7 Granting TRO at 5–6 n.2). Petitioners seek to vindicate rights provided to them under

8 federal law, specifically the APA, and do not seek relief under the Convention Against

9 Torture or any extradition statute.

10 With these findings, the Court considers whether Petitioners are entitled to a

11 classwide preliminary injunction. Injunctive relief is “an extraordinary remedy that may

12 only be awarded upon a clear showing that the [petitioner] is entitled to such relief.” Winter

13 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To meet that showing, Petitioners

14 must demonstrate “ ‘[they are] likely to suffer irreparable harm in the absence of

15 preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is

16 in the public interest.’ ” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

17 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). Petitioners have met each factor.

18 A. Likelihood of Success

19 “The first factor under Winter is the most important—likely success on the merits.”

20 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Petitioners carry the

21 burden of demonstrating likelihood of success, they are not required to prove their case in

22 full at the preliminary injunction stage but only such portions that enable them to obtain

23 the injunctive relief they seek. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

24 As explained in the Order granting Petitioners’ motion for TRO, Petitioners contend

25 they are likely to succeed on the merits because 5 U.S.C. § 555(b) provides asylum seekers

26 the right to access counsel of their choice prior to and during non-refoulement interviews.

27 Petitioners argue that because the INA does not contain any statutory provision concerning

28 access to retained counsel and non-refoulement interviews, the APA provision providing

1 such access remains in effect. See 5 U.S.C. § 559 (“Subsequent statute may not be held to

2 supersede or modify [the APA’s protection of the right to access of retained counsel],

3 except to the extent that it does so expressly.”). Respondents argue § 555(b) of the APA

4 does not apply in any immigration proceeding, the INA provides no right to access retained

5 counsel prior to or during non-refoulement interviews, non-refoulement interviews occur

6 during primary and secondary inspections, and finally, even if the INA did not supplant the

7 APA here, § 555(b) does not apply. The Court addresses these arguments in turn.

8 In opposition to the preliminary injunction, Respondents revive their argument that

9 two Supreme Court cases, Ardestani v. Immigration and Naturalization Service and

10 Marcello v. Bonds, hold the INA displaces the APA in all “immigration proceedings”—

11 immigration being broadly defined. Ardestani v. INS, 502 U.S. 219 (1991); Marcello v.

12 Bonds, 349 U.S. 302 (1955). The Court reaffirms its previous decision: neither case stands

13 for the proposition Respondents proffer. The Supreme Court held in Marcello that § 242(b)

14 of the INA, the precursor to the modern removal proceeding statute, 8 U.S.C. § 1229a,

15 supplants the APA as the “sole and exclusive procedure for deportation proceedings.”

16 Marcello, 349 U.S. at 310. Relying on its decision in Marcello, the Supreme Court held in

17 Ardestani that deportation proceedings are not within the scope of the Equal Access to

18 Justice Act (“EAJA”) because “deportation proceeding[s] [are] not subject to the APA.”

19 Ardestani, 502 U.S. at 134. Both cases emphasize the INA’s “laborious adaptation of the

20 [APA] to the deportation process” and the INA’s language asserting that it “shall be the

21 sole and exclusive procedure for deportation proceedings.” Id. at 134 (quoting Marcello,

22 349 U.S. at 310). Distilled to their core holdings, both cases concern solely deportation

23 proceedings, not all immigration proceedings.

24 The problem is the Supreme Court’s language in Ardestani is not specific. In stating

25 the question before the Court, the Court writes: “We now consider whether the EAJA

26 authorizes the award of attorney’s fees and costs for administrative deportation

27 proceedings before the INS.” Id. at 131 (emphasis added). The Court later replaces the

28 phrase ‘deportation proceedings’ with ‘immigration proceedings’ and states: “Although

1 immigration proceedings are required by statute to be determined on the record after a

2 hearing . . . , we previously have decided that they are not governed by the APA.” Id. at

3 132 (citing Marcello, 349 U.S. 302). We know, however, that not all immigration

4 proceedings ‘are required by statute to be determined on the record after a hearing.’ The

5 immigration proceeding at issue here, a non-refoulement interview, is undeniably not

6 determined on the record after a hearing. (Resp. in Opp’n to TRO, Ex. 4 at 15–16). Do

7 we take the Supreme Court’s language to mean that all immigration proceedings must be

8 determined on the record after a hearing? Or, do we understand the Supreme Court’s

9 language to concern the narrower category of deportation proceedings? The Court finds

10 the latter, most importantly because the Supreme Court’s decision in Marcello requires

11 such an interpretation. In comparison, there is no Supreme Court precedent holding the

12 INA supplants the APA in all immigration proceedings.

13 Respondents argue the Court’s reading of these two cases is not correct, for if it was,

14 then § 555(b) of the APA would necessarily extend to expedited removal proceedings. (Id.

15 at 17). Respondents contend this cannot be right because “courts have repeatedly and

16 unequivocally concluded the APA right-to-counsel provision does not govern expedited

17 removal proceedings.” (Id. at 17 (citing United States v. Barajas, 655 F.3d 1077, 1088

18 (9th Cir. 2011); United States v. Quinteros Guzman, No. 3:18-cr-00031-001, 2019 WL

19 3220576, at *10 (W.D. Va. July 17, 2019))). Respondents’ argument is a non sequitur

20 because expedited removal proceedings and non-refoulement interviews are not

21 comparable immigration proceedings. The INA provision concerning expedited removal

22 proceedings is complex, specialized, and specific to expedited removal proceedings. See

23 8 U.S.C. § 1225. The INA contains no provision concerning non-refoulement interviews.

24 This difference is crucial in this context: the INA’s expedited removal proceeding

25 provision supersedes the APA, whereas the INA’s lack of mention of non-refoulement

26 interview does not. See 5 U.S.C. § 559 (“Subsequent statute may not be held to supersede

27 or modify [the APA’s protection of the right to access of retained counsel], except to the

28 extent that it does so expressly.”); United States v. Menasche, 348 U.S. 528, 538–39 (1955)

1 (“It is our duty to give effect, if possible, to every clause and word of a statute, rather than

2 to emasculate an entire section, as the Government's interpretation requires) (internal

3 quotation omitted); Barajas, 655 F.3d at 1088 (“The cases cited by [the plaintiff] involve

4 aliens in the more formal removal proceedings, where the regulations provide a right of

5 counsel, as compared to expedited removal proceedings, where they do not.”); Kim v.

6 Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004) (“[A]lthough there is no statutory or

7 regulatory deadline by which [Citizenship and Immigration Services] must adjudicate an

8 application, at some point, defendants’ failure to take any action runs afoul of section

9 555(b) [of the APA]”). Holding the INA fails to supplant the APA for non-refoulement

10 interview procedures says nothing about whether the INA supplants the APA for expedited

11 removal proceedings.

12 Next, Respondents argue the INA does not provide a right to access retained counsel

13 prior to and during non-refoulement interviews. Although Respondents agree there is “no

14 statutory or regulatory provision” addressing the issue, Respondents contend that this

15 silence buttresses their conclusion that the INA does not provide for a right to access

16 retained counsel. (Resp. in Opp’n to Prelim. Inj. at 18). Respondents cite the Ninth

17 Circuit’s decision in Barajas in support of their argument. In that case, the court held that

18 aliens do not have a right to counsel in expedited removal proceedings because the

19 expedited removal proceeding provision of the INA does not provide for one, unlike the

20 formal removal proceeding provision, which does. Barajas, 655 F.3d at 1088.

21 Respondents argue the same logic applies here. The INA is silent on whether asylum

22 seekers may access retained counsel prior to and during non-refoulement interviews,

23 whereas the INA provides access to retained counsel prior to CFIs and during formal

24 removal proceedings. Therefore, Respondents argue, the INA does not provide asylum

25 seekers access to retained counsel in the non-refoulement interview context.

26 Respondents’ argument is not persuasive. It is impossible to evince from the INA

27 whether there is a right to counsel in non-refoulement interviews because the INA does not

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1 mention non-refoulement interviews at all. In Barajas, the court’s reasoning necessarily

2 depends on Congressional consideration of both expedited removal proceedings and formal

3 removal proceedings. Barajas, 655 F.3d at 1088 (“The cases cited by [the plaintiff] involve

4 aliens in the more formal removal proceedings, where the regulations provide a right of

5 counsel, as compared to expedited removal proceedings, where they do not.”); see also 8

6 C.F.R. § 287.3 (“Except in the case of an alien subject to the expedited removal provisions

7 of section 235(b)(1)(A) of the Act, an alien arrested without warrant and placed in formal

8 proceedings under section 238 or 240 of the Act will be advised of . . . the right to be

9 represented at no expense of the Government.”). Here, there is no such Congressional

10 consideration. Therefore, the Court stands by its prior conclusion that the INA does not

11 foreclose asylum seekers the right to access retained counsel prior to and during non-

12 refoulement interviews.

13 Respondents also argue the regulation prohibiting individuals from accessing

14 retained counsel during primary and secondary inspection precludes the Court’s conclusion

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17 4 At oral argument, counsel for Respondents argued the INA’s provision concerning the

return of asylum seekers to contiguous territories pending their immigration proceedings

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constitutes a statutory provision concerning non-refoulement interviews. (Rep. Tr. (Draft)

19 at 19–20, Dec. 20, 2019); See 8 U.S.C. § 1225(b)(2)(c). Respondents asked the Court to

compare § 1225(b)(2)(c) to § 1225(b)(1)(B)(iv), which provides for the right to consult

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with counsel prior to a CFI. Respondents argued that the INA’s mention of a right to

21 consult counsel prior to CFIs and its lack of mention of a right to access counsel in non-

refoulement interviews indicates there is no right to counsel in the latter immigration

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proceeding. There is one major problem with this argument: § 1225(b)(2)(c) says nothing

23 about the duty of non-refoulement or the mechanisms by which Respondents comply with

this obligation. It is textually inappropriate to consider § 1225(b)(2)(c) a provision that

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concerns non-refoulement interviews whatsoever. If Respondents’ argument were true and

25 § 1225(b)(2)(c) concerned the procedures of a non-refoulement interview, then, by

extension, the lack of mention of non-refoulement interviews in comparison to the detailed

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procedures of a CFI could be used to argue Congress did not intend for there to be a duty

27 of non-refoulement altogether. Yet, we know this not to be true. See Article 33 of the 1951

Convention Relating to the Status of Refugees; Article 3 of the Convention Against

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1 that § 555(b) of the APA applies to non-refoulement interviews. (Resp. in Opp’n to Prelim.

2 Inj. at 19). Respondents cite the USCIS’s Policy Memorandum concerning the

3 implementation of the MPP, which states: “[P]rovided the MPP assessments are part of

4 either primary or secondary inspection, DHS is currently unable to provide access to

5 counsel during the assessments given the limited capacity and resources at the ports-of-

6 entry and Border Patrol stations as well as the need for the orderly and efficient processing

7 of individuals.” (Resp. in Opp’n to TRO, Ex. 4, at 15). Respondents argue that, at the very

8 least, the regulation forecloses a right to access retained counsel if the non-refoulement

9 interview occurs during primary or secondary inspection.

10 There are two problems with this argument. First, there is no evidence that a non-

11 refoulement interview has ever occurred during primary or secondary inspection.

12 Respondents’ declarations provide information concerning the number of individuals in

13 the MPP and the number of individuals crossing the United States-Mexico border. (Resp.

14 in Opp’n to Prelim. Inj., Declaration of Scott Garrett (“Garrett Decl.”), at ¶ 8 (“Since

15 [implementation of the MPP] San Diego Sector has processed approximately 6,200 cases

16 through the program . . . . El Centro Sector has also processed approximately 6,800 cases

17 which includes aliens apprehended by Tucson Sector . . . . On November 21, 2019, there

18 were approximately 190 individuals processed by Border Patrol who were scheduled to

19 appear in immigration court.”), Declaration of Mariza Marin (“Marin Decl.”), at ¶ 27 (“For

20 fiscal year 2019, through the end of August, the San Ysidro POE processed more than 11

21 million northbound pedestrians, more than 13 million northbound vehicles, and more than

22 34 million northbound travelers altogether . . . . San Diego OFO has processed

23 approximately 1,110 aliens pursuant to the MPP . . . . While daily numbers vary, there

24 were 224 individuals scheduled for their immigration court appearance, of which 116

25 showed up for transport to court.”). None of Respondents’ declarations, however, state

26 that non-refoulement interviews are, or ever have been, conducted during primary or

27 secondary inspection.

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1 In fact, Respondents’ declarations lend themselves to conclude the opposite.

2 “Generally, the MPP respondents are returned to Mexico within a day or two after

3 encounter.” (Marin Decl. at ¶ 17). If an asylum seeker were to articulate a fear of returning

4 to Mexico before he or she is processed for MPP, the asylum seeker is referred to a USCIS

5 Asylum Officer. (Resp. in Opp’n to TRO, Ex. 5 at 18–19 (“If an alien who is potentially

6 amendable to MPP affirmatively states that he or she has a fear of persecution or torture in

7 Mexico, or a fear of return to Mexico, whether before or after they are processed for MPP

8 or other disposition, that alien will be referred to a USCIS asylum officer for

9 screening . . . .”)). It is clear that non-refoulement interviews do not occur within primary

10 or secondary inspection. They are conducted in separate areas by an officer of a different

11 agency at a later time. (Id., Ex. 4 at 15 (“[T]he USCIS officer should conduct the MPP

12 Assessment interview in a non-adversarial manner, separate and apart from the general

13 public.”); Cristian Doe Decl. at ¶ 17 (“After the court hearing we were returned to the

14 [POE] before being transferred to another nearby cold holding cell. We were there for two

15 or three days . . . .”). Respondents have provided no information stating otherwise.5

16 The second problem with Respondents’ argument is that primary and secondary

17 inspection and non-refoulement interviews are separate immigration proceedings with

18 different purposes. In primary and secondary inspection, CBP officers “at the inspections

19 booths . . . ensur[e] and facilitiat[e] lawful trade and travel, and prevent[] the introduction

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22 5 At oral argument, counsel for Respondents pointed to paragraphs 12 and 24 of the Marin

23 Declaration in support of their argument that non-refoulement interviews occur during

primary and secondary inspection. Paragraph 12 of the Marin Declaration states:

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“Amenable aliens arriving at the San Ysidro POE or Calexico POE are initially processed

25 for MPP at the POE at which they attempted to enter the U.S.” (Marin Decl. at ¶ 12).

Paragraph 24 states: “Nor do the ports have the manpower to supervise MPP respondent

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visits, as most officers are at the inspection booths in primary and secondary inspection

27 ensuring and facilitating lawful trade and travel, and preventing the introduction of

contraband into the United States.” (Id. at 24). Neither paragraph substantiates

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1 of contraband into the United States.” (Marin Decl. at ¶ 24); see also Am. Immigration

2 Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 42 (D.D.C. 1998) (“During the primary

3 inspection stage, the immigration officer literally has only a few seconds to examine

4 documents, run basic lookout queries, and ask pertinent questions to determine

5 admissibility and issue relevant entry documents.”). During non-refoulement interviews,

6 the USCIS Asylum Officer’s purpose is to “elicit all relevant and useful information

7 bearing on whether the alien would more likely than not face persecution on account of a

8 protected ground, or torture, if the alien is returned to Mexico . . . .” (Resp. in Opp’n to

9 TRO, Ex. 4, at 15). The Asylum Officer takes into account (1) the credibility of the asylum

10 seeker’s statements, (2) commitments from the Government of Mexico regarding treatment

11 and protection of asylum seekers, and (3) whether the alien has engaged in criminal,

12 persecutory, or terrorist activity. (Id. at 15–16). This fact intensive interview can last up

13 to several hours. (Cristian Decl. at ¶¶ 25, 26). Although a non-refoulement interview may

14 be conducted close in time and space to inspection, the two immigration proceedings are

15 separate and different—the procedures of one do not extend to the procedures of another.

16 Therefore, the regulation prohibiting right to counsel during primary and secondary

17 inspection is irrelevant to the issue of whether there is such a right prior to and during non-

18 refoulement interviews.

19 Finally, Respondents argue that even if the INA fails to supersede the APA, § 555(b)

20 of the APA does not apply to non-refoulement interviews. (Resp. in Opp’n to Prelim. Inj.

21 at 19–21). Section 555(b) contains two distinct provisions on access to retained counsel.

22 The first provision states: “A person compelled to appear in person before an agency or

23 representative thereof is entitled to be accompanied, represented, and advised by counsel

24 or, if permitted by the agency, by other qualified representative.” 5 U.S.C. § 555(b). The

25 second provision states: “A party is entitled to appear in person or by or with counsel or

26 other duly qualified representative in an agency proceeding.” Id. Respondents argue

27 Petitioners are not “ ‘compelled to appear’ at non-refoulement interviews” and non-

28 refoulement interviews are not “agency proceedings.” (Resp. in Opp’n to Prelim. Inj. at

1 20). Because the Court finds the first provision of § 555(b) applies, it will not address the

2 applicability of the second provision.

3 Prior to non-refoulement interviews, asylum seekers are detained in CBP custody.

4 (Cristian Decl. at ¶¶ 2, 22). During the interview, asylum seekers may be handcuffed.

5 (Mot. for TRO, Declaration of A.V.D. (“AVD Decl.”), at ¶ 27). Although asylum seekers

6 must articulate a fear of return to Mexico before non-refoulement interviews commence,

7 they are not “elect[ing] to appear at their non-refoulement interviews.” (Res. in Opp’n to

8 Prelim. Inj. at 20). A non-refoulement interview is merely the next step in a long, multi-

9 stage immigration process, and it is irrelevant to the applicability of § 555(b) whether or

10 not Petitioners triggered that process. (See Resp. In Opp’n to TRO, Ex. 4 at 16). To hold

11 otherwise would suggest § 555(b) does not apply in workers’ compensation hearings—

12 hearings that are initiated by the same individuals claiming a right to counsel under §

13 555(b). The Ninth Circuit has, however, held otherwise. See Smiley v. Dir. Office of

14 Workers Comp. Programs, 984 F.3d 278, 282 (9th Cir. 1993) (“[The plaintiff] had a

15 statutory right to be advised and represented by counsel. 5 U.S.C.A. § 555(b).”). Given

16 the circumstances in which the non-refoulement interview takes place, Petitioners are

17 “compelled” to appear for the purposes of § 555(b).

18 The Court’s conclusion that asylum seekers have a right to access retained counsel

19 prior to and during non-refoulement interviews is required by the text of § 555(b) and §

20 559 of the APA. Petitioners have established a likelihood of success on their statutory

21 claim under the APA, 5 U.S.C. § 555(b).6

22 ///

23 ///

24

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26 6 In light of Petitioners’ likelihood of success on their first claim for relief under the APA,

27 the Court declines to address the balance of Petitioners’ statutory and constitutional claims

under the INA and the First and Fifth Amendments to the United States Constitution. (See

28

1 B. Irreparable Injury

2 Turning to the next factor, Plaintiffs must show they are “ ‘likely to suffer irreparable

3 harm in the absence of preliminary relief.’ ” Hernandez v. Sessions, 872 F.3d 976, 994

4 (9th Cir. 2017) (quoting Winter, 555 U.S. at 20). Respondents argue Petitioners have not

5 demonstrated an immediate threatened injury, but only a speculative injury. (Resp. in

6 Opp’n to Prelim. Inj. at 30). Specifically, Respondents argue that Petitioners’ showing is

7 lacking because (1) they have not identified “any named class members who would suffer

8 irreparable harm in the absence of injunctive relief, and (2) even if the unnamed,

9 unidentified class members obtained the relief sought and were able to have [an] attorney

10 present during their interview they could very well still nonetheless be returned to Mexico.”

11 (Id.). Petitioners allege that without access to counsel, class members risk the irreparable

12 harm of a non-reviewable, erroneous decision that forces them to return to Mexico to face

13 persecution and torture. (Mot. for TRO at 32–33).

14 Petitioners’ declarations provide sufficient evidence to establish a likelihood of

15 irreparable injury. Petitioners’ first non-refoulement interview, in which counsel was not

16 present, resulted in a negative assessment of fear. (Caudill-Mirillo Decl. at ¶ 5).

17 Petitioners’ second interview, in which counsel was present, resulted in a positive

18 assessment of fear. (Id. at ¶ 7). Respondents suggest Petitioners provided the USCIS

19 Asylum Officer with information concerning “additional threats” that occurred “between

20 the first and second interview.” (Id.). Petitioners’ counsel, however, notes that during the

21 interview, she “identif[ied] discrepancies with the interpretation and add[ed] to the record

22 by eliciting important testimony from [Petitioner] Cristian Doe.” (Rep. in Supp. of Prelim.

23 Inj., Declaration of Stephanie Blumberg (“Blumberg Decl.”), at ¶ 5). The presence of

24 counsel was clearly helpful to Petitioner Cristian Doe in presenting his fear of return to

25 Mexico. Given the stakes of a non-refoulement interview—the return to a country in which

26 one may face persecution and torture—and the interview’s fact-intensive nature, it is

27 undeniable that access to counsel is important.

28

1 The fact that some class members may still be returned to Mexico, despite having

2 an attorney present during their non-refoulement interview, does not preclude a finding of

3 irreparable injury. Petitioners “need not further show that the action sought to be enjoined

4 is the exclusive cause of the injury.” M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012).

5 It is enough to find that injunctive relief will prevent additional suffering, persecution, and

6 torture. See Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004) (finding the

7 plaintiff satisfied the irreparable injury element because the injunctive relief prevented

8 “exacerbation of the current . . . situation and additional suffering”). In addition,

9 deprivation of the right to retained counsel for an interview of this magnitude is an injury

10 itself. Accordingly, the Court finds Petitioners have shown a likelihood of irreparable

11 injury.

12 C. Balance of Equities

13 “To obtain a preliminary injunction, a plaintiff must also demonstrate that ‘the

14 balance of equities tips in his favor.’ ” Hernandez, 872 F.3d at 995 (quoting Winter, 555

15 U.S. at 20). Respondents argue the balance of equities weighs against granting injunctive

16 relief because “the Government will be required to comply with additional procedural

17 prerequisites in numerous non-refoulement interviews in California going forward.”

18 (Resp. in Opp’n to Prelim. Inj. at 31). Respondents further contend that an injunction

19 would threaten national security and hinder immigration officers from addressing “the flow

20 of illegal immigration.” (Id.). Respondents’ declarations note the heightened security at

21 border patrol stations, the border patrol’s limited staff and space, and the likelihood of

22 asylum seekers’ counsel overhearing sensitive information. (See Garrett Decl. at ¶¶ 14–

23 17; Marin Decl. at ¶¶ 21–24).

24 The balance of equities weighs in favor of granting the preliminary injunction,

25 despite Respondents’ allegations. Although Respondents will be required to comply with

26 additional procedural requirements prior to and during non-refoulement interviews, those

27 procedural requirements are required by federal law, specifically the APA. Respondents

28 “cannot reasonably assert that [they are] harmed in any legally cognizable sense” by being

1 compelled to the follow the law. Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983).

2 Furthermore, if injunctive relief is not granted, class members face the possibility of being

3 forced to return to Mexico to suffer persecution, torture, and potentially death. The balance

4 of equities, therefore, favors preventing the violation of “requirements of federal law.”

5 Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014).

6 D. Public Interest

7 The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

8 996 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (“When, as

9 here, ‘the impact of an injunction reaches beyond the parties, carrying with it a potential

10 for public consequences, the public interest will be relevant to whether the district court

11 grants the preliminary injunction.’ ”)) To obtain the requested relief, “[Petitioners] must

12 demonstrate that the public interest favors granting the injunction ‘in light of [its] likely

13 consequences,’ i.e., ‘consequences [that are not] too remote, insubstantial, or speculative

14 and [are] supported by evidence.’ ” Id. (quoting Stormans, 586 F.3d at 1139).

15 Respondents contend that the “public interest favors the efficient administration of

16 immigration laws at the border” and thus, favors the Government. (Resp. in Opp’n to

17 Prelim. Inj. at 31 (citing Innovation Law Lab v. McAleenan, 924 F.3d 503, 510 (9th Cir.

18 2019)).

19 As explained in the Court’s Order granting Petitioners’ motion for TRO, the public

20 interest is served by allowing class members access to retained counsel prior to and during

21 non-refoulement interviews. It would not be “in the public’s interest to allow

22 [Respondents] . . . to violate the requirements of federal law, especially when there are not

23 adequate remedies available.” Ariz. Dream Act Coal., 757 F.3d at 1069 (quoting

24 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). Federal law, specifically the

25 APA, requires class members to have access to retained counsel prior to and during non-

26 refoulement interviews. Respondents have failed to demonstrate how complying with this

27 legal requirement will impede the efficient administration of immigration laws at the

28 border. Furthermore, Respondents’ argument that it lacks the staff and space required to

1 comply with the APA is not persuasive, for Respondents elected to implement the MPP

2 and detain asylum seekers in CBP custody pending non-refoulement interviews. As

3 Petitioners note, Respondents “cannot bootstrap [their] choices into justifications for those

4 choices.” (Rep. in Supp. of Prelim. Inj. at 8). Therefore, the public’s interest weighs in

5 favor of granting injunctive relief.

6 E. In-Person Access

7 In its Order granting Petitioners’ motion for TRO, the Court asked the parties to

8 address whether the APA’s right to access retained counsel provided for in-person access

9 or only telephonic access. Respondents contend (1) Petitioners did not demand in-person

10 access in their Complaint, (2) courts have upheld restrictions on defendants’

11 communication with counsel within the Sixth Amendment context, and (3) § 555(b)’s right

12 to be ‘accompanied’ does not extend to being represented in ‘an agency proceeding.’

13 (Resp. in Opp’n of Prelim. Inj. at 22). Petitioners argue they expressly sought to enjoin

14 Respondents from “preventing confidential visits” with class members in their Complaint,

15 and therefore, demanded the appropriate relief from the outset. (Class Action Compl. and

16 Petition for Writ of Habeas Corpus, ECF No. 1, at 27). Petitioners further argue it is

17 assumed that § 555(b)’s right to counsel includes in-person access given the importance of

18 face-to-face communication. Neither party has provided case law concerning in-person,

19 as opposed to telephonic, access to counsel within the context of § 555(b) of the APA.

20 Before considering the text of § 555(b), the Court must address whether Petitioners

21 adequately raised the issue of in-person access to counsel in their Complaint. It “is

22 axiomatic that the complaint may not be amended by the briefs.” Candor v. United States,

23 1 F. Supp. 3d 1076, 1082 (S.D. Cal. 2014) (internal quotation omitted). Petitioners’

24 Complaint includes the word ‘visit’ nine times. Petitioners allege that CBP does not “allow

25 attorneys representing persons in its custody to visit such persons for the purpose of

26 confidential legal advice,” and CBP has “a policy and practice of denying requests for in-

27 person visits or confidential telephonic communication with counsel at its holding

28 facilities.” (Class Action Compl. and Petition for Writ of Habeas Corpus, ECF No. 1, at 9,

1 15). Petitioners allege that as a result of CBP’s policy, “lawyers are unable to locate, visit

2 or make confidential phone calls with their clients.” (Id. at 16). Petitioners also note that

3 the common questions of law and fact as to all class members include “whether they are

4 denied confidential visitation or communication with retained counsel.” (Id. at 21).

5 Finally, Petitioners’ prayer for relief includes a request that the Court enjoin Defendants

6 from “preventing confidential legal visits.” (Id. at 27). Given Petitioners’ allegations and

7 requests of the Court in their Complaint, the Court finds the question of whether access to

8 retained counsel includes in-person access is properly before the Court.

9 As noted above, § 555(b) of the APA contains two provisions providing access to

10 retained counsel. The Court has already found that the first provision applies to non-

11 refoulement interviews. This provision reads: “A person compelled to appear in person

12 before an agency or representative thereof is entitled to be accompanied, represented, and

13 advised by counsel or, if permitted by the agency, by other qualified representative.” 5

14 U.S.C. § 555(b). The pertinent word is “accompanied.” Black’s Law Dictionary defines

15 ‘accompany’ as “[t]o go along with” or “to attend.” Black’s Law Dictionary (11th ed.

16 2019). This definition suggests § 555(b) envisioned in-person access to counsel. See also

17 United States v. McPhaul, 617 F. Supp. 58, 59 (W.D.N.C. 1985) (“Under 5 U.S.C. §

18 555(b), there is a right to have counsel present whenever a person is compelled to appear.”).

19 Although Petitioners have conceded telephonic access to counsel during the non-

20 refoulement interviews is sufficient, Petitioners have maintained the need for in-person

21 access prior to non-refoulement interviews. (Rep. in Supp. of TRO at 3 n.2). Therefore,

22 given the text of § 555(b), class members are entitled to in-person access to retained counsel

23 prior to their non-refoulement interviews.

24 III.

25 CONCLUSION AND ORDER

26 For these reasons, Petitioners’ motion for classwide preliminary injunction is

27 granted. Respondents may not conduct class members’ non-refoulement interviews

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1 || without first affording the interviewees access to their retained counsel both before and

2 || during any such interview.

3 IT IS SO ORDERED.

4

5 Dated: January 14, 2020

6 2 ine ym. LA

7 Hon. Dana M. Sabraw

3 United States District Judge

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