Rabelo-Rodriguez v. United States Secretary of Homeland Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-23213-BLOOM/Otazo-Reyes

YARIBEL RABELO-RODRIGUEZ,

et al.,

Plaintiffs,

v.

ALEJANDRO MAYORKAS, in his official capacity

as the UNITED STATES SECRETARY

OF HOMELAND SECURITY,

Defendant.

_____________________________/

ORDER ON MOTION FOR CLASS CERTIFICATION

AND MOTION TO ADD NAMED-PLAINTIFFS

THIS CAUSE is before the Court upon Plaintiffs’ Motion for Class Certification, ECF

No. [32] (“Motion for Class Certification”) and Plaintiffs’ Opposed Motion to Add Named-

Plaintiffs Under Rules 20(a) and 21, ECF No. [43] (“Motion to Add Named-Plaintiffs”). With

respect to the Motion for Class Certification, Defendant United States Secretary of Homeland

Security (“DHS” or “Government”) filed a Response in Opposition, ECF No. [38] (“Response”),

to which Plaintiffs filed a Reply, ECF No. [44] (“Reply”). With respect to the Motion to Add

Named-Plaintiffs, Defendant filed a Response in Opposition, ECF No. [46], to which Plaintiffs

filed a Reply, ECF No. [47]. The Court has carefully reviewed both Motions, the record in this

case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion

for Class Certification is denied and the Motion to Add Named-Plaintiffs is denied.

I. BACKGROUND

On September 3, 2021, twenty-one (21) Plaintiffs filed this action against Defendant

alleging that Defendant’s denial of permanent residence to Plaintiffs and the proposed class was

based on an impermissible construction of the governing statute (Count I) and that Defendant’s

denial of permanent residence to Plaintiffs and the proposed class was done without reasoned and

meaningful consideration (Count II). See generally ECF No. [1].

According to the initial complaint, Plaintiffs are arriving aliens or non-arriving aliens from

Cuba who sought refuge in the United States after the end of the special parole program for Cuban

nationals, colloquially referred to as the “wet-foot/dry-foot policy.” See id. at 4.1 After the end of

the “wet-foot/dry-foot policy,” Defendant released Plaintiffs and the proposed class into the United

States without keeping them in mandatory detention under 8 U.S.C. §§ 1225(b)(1) and (b)(2). See

id. However, rather than documenting their release into the United States as a “parole” under

§ 1182(d)(5), Defendant decided to “conditionally parole” Plaintiffs under § 1226(a). See id. When

Plaintiffs subsequently applied for permanent residence under the Cuban Refugee Adjustment Act

of 1966 (“CAA”), Pub. L. No. 89-732, 80 Stat. 1161 (as amended), Defendant denied their

applications on the grounds that they failed to demonstrate that they had been paroled into the

United States. See, e.g., ECF No. [1] ¶¶ 118, 130. Defendant also denied Plaintiffs’ motions to

reconsider in which Plaintiffs argued that they had been paroled as a matter of law. See, e.g., id.

¶¶ 119-20, 131-32. Plaintiffs’ contention is that given the Supreme Court’s decision in Jennings v.

Rodriguez, 138 S. Ct. 830 (2018), Plaintiffs’ release was a parole under § 1182(d)(5) as a matter

of law and their applications should have been processed accordingly. See ECF No. [1] at 4.

1 Noncitizens who present themselves for inspection at a port of entry are arriving aliens. See 8 C.F.R. § 1.2.

By contrast, noncitizens who fail to present themselves at a port of entry and enter the country between

ports of entry are non-arriving aliens. See id.; ECF No. [38] at 3.

On October 9, 2021, Plaintiffs filed their Unopposed Motion to Add Named-Plaintiffs,

seeking to add twenty-two (22) named Plaintiffs. ECF No. [29]. The Court granted the Motion and

Plaintiffs thereafter filed their First Amended Complaint (“FAC”), with a total of forty-three (43)

Plaintiffs. ECF No. [33]. On October 12, 2021, Plaintiffs filed the instant Motion for Class

Certification seeking class certification under Fed. R. Civ. P. 23(a) and 23(b)(2). ECF No. [32].

Plaintiffs proposed the following class:

All Cuban nationals:

(1) who are “applicants for admission” under 8 U. S. C. § 1225(a)(1) that were not

admitted into the U.S. in accordance with § 1101(a)(13)(A);

(2) who were enlarged or released from DHS custody into the U.S. after January

12, 2017;

(3) prior to the completion of proceedings contemplated by either 8 U. S. C.

§§ 1225(b)(1) or (b)(2); and

(4) who applied for adjustment of status under the Cuban Refugee Adjustment Act

of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161 (as amended), with U. S.

Citizenship and Immigration Services (USCIS), but were denied that relief on

the grounds that they did not demonstrate that they had been “inspected and

admitted or paroled into the U.S.”

ECF No. [32] at 3.

To elaborate on the pertinent statutes, § 1225 sets forth the procedure for the inspection of

applicants for admission by immigration officers. See 8 U.S.C. § 1225 et seq. Applicants for

admission include both arriving and non-arriving aliens. See 8 U.S.C. § 1225(a) (“An alien present

in the United States who has not been admitted or who arrives in the United States (whether or not

at a designated port of arrival and including an alien who is brought to the United States after

having been interdicted in international or United States waters) shall be deemed for purposes of

this chapter an applicant for admission.”). Sections 1225(b)(1) and (b)(2) detail detention and

removal proceedings for applicants for admission. See 8 U.S.C. §§ 1225(b)(1) (“If an immigration

officer determines that an alien . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of

this title, the officer shall order the alien removed from the United States without further hearing

or review unless the alien indicates either an intention to apply for asylum under section 1158 of

this title or a fear of persecution.”) and (b)(2) (“[I]f the examining immigration officer determines

that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien

shall be detained for a proceeding under section 1229a of this title.”).

Section 1182(d)(5) provides the means for release under parole by stating in relevant part:

(A) The Attorney General may . . . in his discretion parole into the United States

temporarily under such conditions as he may prescribe only on a case-by-case

basis for urgent humanitarian reasons or significant public benefit any alien

applying for admission to the United States, but such parole of such alien shall

not be regarded as an admission of the alien and when the purposes of such

parole shall, in the opinion of the Attorney General, have been served the alien

shall forthwith return or be returned to the custody from which he was paroled

and thereafter his case shall continue to be dealt with in the same manner as

that of any other applicant for admission to the United States.

8 U.S.C. § 1182(d)(5). Section 1226 sets forth the procedure for the apprehension and detention

of aliens, beyond the country’s border, and means for release on bond or conditional parole for

such aliens.

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and

detained pending a decision on whether the alien is to be removed from the

United States. Except as provided in subsection (c) and pending such decision,

the Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and

containing conditions prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an

‘employment authorized’ endorsement or other appropriate work

permit), unless the alien is lawfully admitted for permanent residence or

otherwise would (without regard to removal proceedings) be provided

such authorization.

8 U.S.C. § 1226. Finally, under the CAA,

[T]he status of any alien who is a native or citizen of Cuba and who has been

inspected and admitted or paroled into the United States subsequent to January 1,

1959 and has been physically present in the United States for at least two years,

may be adjusted by the Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien lawfully admitted for permanent

residence if the alien makes an application for such adjustment, and the alien is

eligible to receive an immigrant visa and is admissible to the United States for

permanent residence.

Cuban Refugee Adjustment Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161 (emphasis

added). Pursuant to Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010), conditional parole

under § 1226, does not constitute parole for the purposes of adjustment of status.

Defendant contends that Plaintiffs’ proposed class does not meet the requirements of Fed.

R. Civ. P. 23(a) and 23(b)(2). See generally ECF No. [38]. Plaintiffs claim that Defendant

mischaracterizes the class definition and that the proposed class meets the requirements of Fed. R.

Civ. P. 23(a) and 23(b)(2). See generally ECF No. [44].

On November 4, 2021, Plaintiffs filed an unopposed Motion to Drop Certain Named

Plaintiffs, requesting to drop twenty (20) of the forty-three (43) named Plaintiffs pursuant to Fed.

R. Civ. P. 21. ECF No. [39]. The Court granted the Motion, leaving only twenty-three (23)

Plaintiffs. ECF No. [40]. On November 8, 2021, Plaintiffs filed an opposed second Motion to Add

Named-Plaintiffs, requesting to add nineteen (19) Plaintiffs pursuant to Fed. R. Civ. P. 20(a) and

21. ECF No. [43]. Defendant filed a Response in Opposition, ECF No. [46], and Plaintiffs filed a

Reply. ECF No. [47].

II. LEGAL STANDARD

A. Class Certification

District courts have broad discretion in deciding whether to certify a class. Washington v.

Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). To certify a class

action, the putative class must satisfy “the four requirements listed in Rule 23(a), and the

requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v. Vital Pharm., Inc., 621 F. App’x

945, 946 (11th Cir. 2015) (citing Little v. T–Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.

2012)); see also Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he

putative class must meet each of the four requirements specified in [Rule] 23(a), as well as at least

one of the three requirements set forth in [Rule] 23(b).”); Rutstein v. Avis Rent–A–Car Sys., Inc.,

211 F.3d 1228, 1233 (11th Cir. 2000) (“A class action may be maintained only when it satisfies

all of the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of

Rule 23(b).” (quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)).

“Under Rule 23(a), every putative class first must satisfy the prerequisites of numerosity,

commonality, typicality, and adequacy of representation.” Vega v. T–Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009) (quoting Fed. R. Civ. P. 23(a); Valley Drug Co. v. Geneva Pharms.,

Inc., 350 F.3d 1181, 1187–88 (11th Cir. 2003)) (internal quotation marks omitted). Under Rule

23(b)(2), class certification is appropriate if “the party opposing the class has acted or refused to

act on grounds that apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

“The burden of establishing these requirements is on the plaintiff who seeks to certify the

suit as a class action.” Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997); see also

Rutstein, 211 F.3d at 1233. The moving party “must affirmatively demonstrate his compliance”

with the class certification requirements. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)

(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). That is, “a party must not

only be prepared to prove that there are in fact sufficiently numerous parties, common questions

of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule

23(a) [but also] satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id.

(emphasis in original). “A district court must conduct a rigorous analysis of the Rule 23

prerequisites before certifying a class.” Vega, 564 F.3d at 1266 (quoting Castano v. Am. Tobacco

Co., 84 F.3d 734, 740 (5th Cir. 1996)).

B. Pertinent Immigration Decisions

i. In re X-K-, 23 I. & N. Dec. 731 (BIA 2005)

On May 4, 2005, the Board of Immigration Appeals (“BIA”) issued a decision in In re X-

K-, 23 I. & N. Dec. 731, 2005 WL 1104422 (BIA 2005). It stated that aliens initially screened for

expedited removal under § 1225(b)(1)(A), who are subsequently placed in removal proceedings

under 8 U.S.C. § 1229a, are generally eligible for a custody redetermination hearing before an

immigration judge following a positive credible fear determination. The BIA determined that non-

arriving aliens could be subject to bond hearings and released pursuant to an immigration judge’s

general custody authority under § 1226. See id. The decision states in relevant part, “Immigration

Judges must assess . . . bond factors with respect to ‘certain other aliens [i.e., non-arriving aliens],’

who were initially considered for expedited removal, in the same manner as other aliens who are

within the Immigration Judges’ general custody jurisdiction in removal proceedings.” Id. at 736.

As a result of In re X-K-, select non-arriving aliens were eligible to be released on bond or

conditional parole under § 1226, rather than parole under § 1182(d)(5).

ii. Jennings v. Rodriguez, 138 S. Ct. 830 (2018)

On February 27, 2018, the Supreme Court determined in Jennings that aliens detained for

immigration proceedings were not entitled to periodic bond hearings. See 138 S. Ct. at 833-34.

The Supreme Court held that § 1226, which allows for the release of detained aliens on bond or

conditional parole, could not be interpreted as placing a six-month limit on detention or requiring

periodic bond hearings. See id. The Supreme Court also stated, in relevant part, that the only

exception to the detention of aliens pursuant to §§ 1225(b)(1) and (b)(2) was § 1182(d)(5)(A)

parole. See id. at 844 (“That express exception [§ 1182(d)(5)(A) parole] to detention implies that

there are no other circumstances under which aliens detained under § 1225(b) may be released.”

(emphasis in original)). Courts have since interpreted Jennings to apply to arriving aliens. See Leke

v. Hott, 521 F. Supp. 3d 597, 601 (E.D. Va. 2021) (“The Supreme Court in these circumstances

has made clear that § 1225(b) applies to arriving aliens, and that this provision both authorizes and

governs detention of arriving aliens . . . .” (citing Jennings, 138 S. Ct. at 845)); see also Aracely,

R. v. Nielsen, 319 F. Supp. 3d 110, 143 (D.D.C. 2018) (“In Jennings v. Rodriguez, the Supreme

Court addressed a Ninth Circuit decision interpreting § 1225(b) to limit detention of arriving aliens

to six-month periods, after which they are entitled to bond hearings.” (citing Jennings, 138 S. Ct.

at 839)). As a result of the decision, select arriving aliens were eligible to be released on parole

under § 1182(d)(5), and not conditional parole or bond under § 1226.

iii. Padilla v. U.S. Immigr. & Customs Enf’t, 387 F. Supp. 3d 1219 (W.D. Wash.

2019)

On July 2, 2019, the U.S. District Court for the Western District of Washington issued a

nationwide injunction (“Padilla Injunction”), which required the Government to conduct bond

hearings for “immigrants who have entered the United States without inspection [i.e., non-arriving

aliens], requested asylum, and who the Government has determined have a credible fear of

persecution if they return home.” Padilla v. U. S. Immigr. & Customs Enf’t, 387 F. Supp. 3d 1219,

1223 (W.D. Wash. 2019), aff’d in part, vacated in part, remanded, 953 F.3d 1134 (9th Cir. 2020),

cert. granted, judgment vacated, 141 S. Ct. 1041 (2021); see also Padilla v. U.S. Immigr. &

Customs Enf’t, 379 F. Supp. 3d 1170 (W.D. Wash. 2019). As a result of the Padilla Injunction,

select non-arriving aliens have been eligible to be released on bond, rather than parole under

§ 1182(d)(5). The Padilla Injunction remains in place as the case proceeds on remand from the

United States Supreme Court before the Ninth Circuit. See 141 S. Ct. 1041.

C. Permissive Joinder

“The central purpose of Rule 20 is to promote trial convenience and expedite the resolution

of disputes, thereby eliminating unnecessary lawsuits.” Alexander v. Fulton Cty. Ga., 207 F.3d

1303, 1323 (11th Cir. 2000), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th

Cir. 2003) (citing Fed. R. Civ. P. 20.). Under Rule 20,

“Persons may join in one action as plaintiffs if: (A) they assert any right to relief

jointly, severally, or in the alternative with respect to or arising out of the same

transaction, occurrence, or series of transactions or occurrences; and (B) any

question of law or fact common to all plaintiffs will arise in the action.”

Fed. R. Civ. P. 20. When considering the joinder of parties, “the broadest possible scope of action

consistent with fairness to the parties . . . is strongly encouraged.” United Mine Workers v. Gibbs,

282 U.S. 715, 724 (1966).

In analyzing whether parties are properly joined under Rule 20, “the term ‘transaction is a

word of flexible meaning’ that ‘may comprehend a series of many occurrences, depending not so

much upon the immediateness of their connection as upon their logical relationship.’” Gonzalez v.

Batsmasian, 320 F.R.D 580, 581 (S.D. Fla. 2017) (quoting Alexander, 207 F.3d at 1323).

Moreover, to satisfy the commonality prong for proper joinder, all that is required is that the

plaintiffs share a common question of law or fact. Alexander, 207 F.3d at 1324. Several district

courts have held that “‘Rule 20 contemplates a much lower threshold for allowing plaintiffs’

claims to proceed to trial together than is required by Rule 23 for class certification.’” See, e.g.,

Taylor v. Wells Fargo Bank, N.A., No. 3:16-cv-159-J-32JRK, 2017 WL 7371182, at *10 (M.D.

Fla. Aug. 8, 2017) (quoting Fisher v. Ciba Specialty Chems. Corp., 245 F.R.D. 539, 542 (S.D. Ala.

2007)).

Additionally, under Rule 21, the Court “may at any time, on just terms, add or drop a

party.” Fed. R. Civ. P. 21. The district courts are accordingly given “broad discretion to join parties

or not and that decision will not be overturned as long as it falls within the district court’s range of

choices.” Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2000); see also Alhassid v. Bank of Am.,

N.A., 60 F. Supp. 3d. 1302, 1326 (S.D. Fla. 2014).

III. DISCUSSION

A. Named Plaintiffs

As a preliminary matter, given the procedural history of the case, the Court finds it

necessary to define the named Plaintiffs that seek class certification. On September 3, 2021,

twenty-one (21) Plaintiffs (“Group 1”) filed this action. ECF No. [1]. On October 10, 2021, the

Court granted Plaintiffs’ Unopposed Motion to Add New Plaintiffs, adding twenty-two (22)

Plaintiffs (“Group 2”). ECF No. [30]. On October 12, 2021, the forty-three (43) named Plaintiffs

from Groups 1 and 2 filed the Motion for Class Certification. ECF No. [32]. On November 5,

2021, the Court granted the parties’ Joint Motion and Stipulation to Drop Certain Named Plaintiffs,

ECF No. [39], dropping twenty (20) Plaintiffs from Group 1, leaving only twenty-three (23) named

Plaintiffs. ECF No. [40]. Therefore, the remaining twenty-three (23) named Plaintiffs – one (1)

from Group 1 and twenty-two (22) from Group 2 – are the remaining Plaintiffs that the Court

considers as it relates to the instant Motion for Class Certification.2

The Court recognizes that all of the Plaintiffs from Group 2 may have resolved their claims

with Defendant and may soon be dropped from the lawsuit. See ECF No. [44] at 8; see also ECF

No. [38] at 9. They have not done so yet. As such, the Court addresses the Motion for Class

Certification based on the twenty-three (23) Plaintiffs reflected in the record. ECF No. [44] at 8.

The Court also notes that on November 8, 2021, Plaintiffs filed the Opposed Motion to Add

Named-Plaintiffs, seeking to join nineteen (19) Plaintiffs (“Group 3”). ECF No. [43]. However,

2 The sole remaining Plaintiff from Group 1 is a non-arriving alien, Adelmis Reve-Marquez. See ECF No.

[38] at 6. All of the Plaintiffs from Group 2 are arriving aliens. See id. at 7.

because the Court addresses the Motion to Add Named-Plaintiffs after addressing the Motion for

Class Certification, Group 3 is not a part of the lawsuit yet and not a part of the Court’s analysis

regarding the Motion for Class Certification.

As Defendant correctly argues, even if the Court were to decide the Motion to Add Named-

Plaintiffs before deciding the Motion for Class Certification and permitted the joinder of Group 3,

it would not alter the Court’s analysis of the Motion for Class Certification. See ECF No. [38] at

7, n.4. As discussed below, the joinder of Group 3 would not change the Court’s determination

that Plaintiffs have failed to meet the requirements of Rule 23(a) and Rule 23(b)(2). To elaborate,

Group 3 would not cure the lack of commonality between arriving aliens and non-arriving aliens,

nor the fact that the final injunctive and declaratory relief sought would not be with respect to the

class as a whole. As such, the Court considers the Motion for Class Certification based on the

twenty-three (23) named Plaintiffs currently before the Court and then considers the Motion to

Add Named-Plaintiffs.

B. Rule 23(a) – Numerosity

Under Rule 23(a), Plaintiffs are required to demonstrate each of the four factors for class

certification: numerosity, commonality, typicality, and adequacy. Vega, 564 F.3d at 1265. Under

the first prong of Rule 23(a), a plaintiff must demonstrate that the class is “so numerous that joinder

of all members is impracticable.” Ruderman v. Washington Nat’l Ins. Co., 263 F.R.D. 670, 678

(S.D. Fla. 2010) (quoting Fed. R. Civ. P. 23(a)(1)). “The focus of the numerosity inquiry is not

whether the number of proposed class members is ‘too few’ to satisfy the Rule, but ‘whether

joinder of proposed class members is impractical.’” Id. at 678-79 (quoting Armstead v. Pingree,

629 F. Supp. 273, 279 (M.D. Fla. 1986)). Generally, less than twenty-one (21) class members is

inadequate to satisfy the numerosity requirement, but more than forty (40) is adequate. Id. (quoting

Cheney v. Cyberguard Corp., 213 F.R.D. 484, 490 (S.D. Fla. 2003).

Plaintiffs contend that the numerosity requirement is met by the named Plaintiffs as well

as the proposed class of Cuban nationals. See ECF No. [32] at 14. Defendant does not contest the

numerosity requirement. See generally ECF No. [38]. Presently, there are twenty-three (23) named

Plaintiffs. See id. at 7. Even if all of the Plaintiffs from Group 2 were to drop out of the lawsuit as

the Parties anticipate, see ECF No. [44] at 8; see also ECF No. [38] at 9, and even if the Motion to

Add Named-Plaintiffs was denied, the proposed class includes thousands of Cuban nationals who

are alleged to be similarly situated, see ECF No. [32] at 17. As such, Plaintiffs have satisfied the

numerosity requirement.

C. Rule 23(a) – Commonality

The commonality requirement of Rule 23(a)(2) requires that there be “questions of law or

fact common to the class.” Fed. R. Civ. P. 23(a)(2); Williams v. Mohawk Indus., Inc., 568 F.3d

1350, 1355 (11th Cir. 2009) (“Under the Rule 23(a)(2) commonality requirement, a class action

must involve issues that are susceptible to class-wide proof.”) (quoting Murray v. Auslander, 244

F.3d 807, 811 (11th Cir. 2001)). In Wal–Mart Stores, Inc. v. Dukes, the Supreme Court held that

commonality requires that the claim of the putative class “must be of such a nature that it is capable

of classwide resolution—which means that determination of its truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke.” 564 U.S. 338, 350 (2011).

“What matters to class certification . . . is not the raising of common questions—even in droves—

but, rather the capacity of a classwide proceeding to generate common answers apt to drive the

resolution of the litigation.” Id. (citation and internal quotation marks omitted; emphasis in

original).

Plaintiffs argue that the proposed class shares the same controlling questions of law and

fact. See ECF No. [32] at 18. The proposed class is comprised of Cuban national applicants for

admission who were not admitted into the U.S. and released from DHS custody after January 12,

2017, prior to removal proceedings under 8 U.S.C. §§ 1225(b)(1) and (b)(2). See id. The class

subsequently applied for adjustment of status under the CAA and were denied their adjustment of

status because they failed to demonstrate that they had been paroled into the United States. See id.

Plaintiffs claim that one question of law applies to the entire class – whether the class was paroled

under 8 U.S.C. § 1182(d)(5) as a matter of law pursuant to Jennings. See id. at 19; see also 138 S.

Ct. at 844. Plaintiffs argue that Jennings requires the release of all applicants for admission to be

a parole under § 1182(d)(5). See ECF No. [44] at 6-7. According to Plaintiffs’ interpretation of

Jennings, conditional parole under § 1226(a) is only available for “deportable aliens.” Id. at 6. As

such, Plaintiffs argue that the entire class was subject to § 1225(b) proceedings and must have been

released on parole pursuant to § 1182(d)(5), not conditional parole pursuant to § 1226(a). See id.

at 6-7. Plaintiffs stress that the Supreme Court held that there are no circumstances, other than

parole under § 1182(d)(5), through which aliens detained under § 1225(b) may be released. See id.

at 5-6.

Defendant disputes that Plaintiffs have satisfied the commonality requirement. See ECF

No. [38] at 13-14. Defendant’s contention is that Jennings does not apply to non-arriving aliens,

see ECF No. [38] at 14, and that members of the proposed class were therefore released through

varying mechanisms, not necessarily parole under § 1182(d)(5), depending on the member’s status

as an arriving alien or non-arriving alien, as well as the time and location of apprehension in the

case of non-arriving aliens. In short,

• Arriving aliens were generally subject to removal proceedings under § 1225 and may have

been released on conditional parole pursuant to § 1226(a). See id. at 13.3

• Non-arriving aliens were generally subject to removal proceedings under either §§ 1225 or

1226, depending on the time and location of their apprehension. See id.

o Non-arriving aliens who entered the country in 2017 and were apprehended later

were subject to detention pursuant to § 1226(a) and may have been released on

bond or conditional parole, and not parole under § 1182(d)(5). See ECF No. [38] at

13.

o Non-arriving aliens who entered the country in 2017 and were apprehended at the

border were subject to expedited removal proceedings under § 1225(b) and may

have been released on bond under § 1226(a) if found to have a credible fear of

returning to Cuba pursuant to In re X-K-, and not parole under § 1182(d)(5). See id.

at 13-14.

o Non-arriving aliens who entered the country in 2020 and were apprehended at the

border were subject to expedited removal proceedings under § 1225(b) and may

have been released on bond pursuant to the Padilla Injunction if found to have a

credible fear of returning to Cuba, and not parole under § 1182(d)(5). See id. at 14.

• Still others in the relevant time period may have been released pursuant to a habeas petition,

and not parole under § 1182(d)(5). See id. at 8-9.

Defendant’s argument is persuasive. The proposed class makes no distinction between

arriving aliens and non-arriving aliens who may have been released under various mechanisms.

3 Defendant appears to admit that this group of released arriving aliens should have been released on parole

under § 1182(d)(5). See ECF No. [38] at 9; see also Jennings, 138 S. Ct. at 845.

Instead, Plaintiffs propose a class of “applicants for admission” that includes both arriving aliens

and non-arriving aliens who have been released under different mechanisms. See ECF No. [32] at

3 (“All Cuban nationals: (1) who are ‘applicants for admission’ under 8 U.S.C. § 1225(a)(1)”); see

also ECF No. [33] ¶ 121 (noting that “applicants for admission” include noncitizens who present

themselves at a designated port of arrival and those who do not). While Defendant has indicated

that arriving alien Plaintiffs are entitled to parole under § 1182(d)(5), see ECF No. [38] at 9 (noting

that Defendant offered to grant § 1182(d)(5) parole documents to arriving alien Plaintiffs and to

negotiate a resolution for all other arriving aliens similarly situated), the various mechanisms

through which non-arriving aliens were released suggest that non-arriving aliens may not be

similarly entitled to parole under § 1182(d)(5).

Plaintiffs argue that Defendant mischaracterizes the proposed class. See ECF No. [44] at

2. Plaintiffs contend that the proposed class does not include Cuban nationals who have been

released by immigration judges or a federal court order and only includes Cuban nationals who

have been released by the Department of Homeland Security (“DHS”) “under its own volition.”

Id. Plaintiffs claim that since the proposed class does not include individuals who have been

released by an immigration judge or a federal court order, individuals who may have been released

under In re X-K-, the Padilla Injunction, or a habeas petition are irrelevant to the Court’s analysis.

See id. However, a review of the class definition does not support Plaintiffs’ argument. See ECF

No. [32] at 3. The proposed class definition does not contain any language that limits the proposed

class to “Cuban nationals released from DHS custody by DHS[.]” ECF No. [44] at 2 (emphasis in

original). Instead, the class definition includes individuals “who were enlarged or released from

DHS custody” regardless of whether they were released by an immigration judge, a federal court

order, or DHS. ECF No. [32] at 3.

Even if the proposed class only included arriving aliens and non-arriving aliens who were

released by DHS under its own volition as Plaintiffs argue, Plaintiffs must resolve the differences

between arriving aliens and those non-arriving aliens. Plaintiffs argue that the differences between

arriving aliens and non-arriving aliens are an immaterial “regulatory creation” that does not affect

whether the alien is an applicant for admission under § 1225(a)(1). ECF No. [32] at 18, n.8.

However, Defendant correctly points out that arriving aliens and non-arriving aliens are materially

different and have received differing treatment. See ECF No. [38] at 15, n.6 (noting that the United

States Citizenship and Immigration Services (“USCIS”) generally has exclusive jurisdiction to

grant adjustment of status for arriving aliens but not non-arriving aliens (citing 8 C.F.R.

§ 1245.2(a)(1)(ii)). In the FAC, Plaintiffs also appear to acknowledge that USCIS decisions

regarding Cuban nationals who are “arriving aliens” are not subject to review by immigration

judges. ECF No. [33] ¶ 7 (citing Perez v. USCIS, 774 F.3d 960, 966-67 (11th Cir. 2014)). Plaintiffs

notably omit any discussion about whether USCIS decisions on Cuban nationals who are non-

arriving aliens are subject to review by immigration judges, thereby implicitly recognizing the

differing treatment of arriving and non-arriving aliens. See id.

Nonetheless, Plaintiffs argue that, in this context, the difference is immaterial because

Jennings does not distinguish between arriving aliens and non-arriving aliens, and that Jennings

requires the release of all applicants for admission to be a parole under § 1182(d)(5). See ECF No.

[44] at 6-7. According to Plaintiffs’ interpretation of Jennings, conditional parole under § 1226(a)

is not possible for applicants for admission and is only available for “deportable aliens.” Id. at 6.

As such, Plaintiffs argue that applicants for admission who were subject to § 1225(b) proceedings

and subsequently released must have been released under parole pursuant to § 1182(d)(5), not

conditional parole under § 1226(a). See id. at 6-7 (noting that the Supreme Court rejected the

argument that “once detention authority ends under § 1225(b)(1) and (b)(2), aliens can be detained

[and released] only under § 1226(a)” (quoting Jennings, 138 S. Ct. at 845)). Plaintiffs contend that

in Jennings, 138 S. Ct. at 844, the Supreme Court held that there are no circumstances, other than

parole under § 1182(d)(5), through which arriving and non-arriving aliens detained under

§ 1225(b) may be released. Id. at 5-6. Plaintiffs also argue that the majority rejected Justice

Breyer’s dissent in Jennings which set forth the argument that § 1226(a)(2)(A) (release on bond)

works with §§ 1225(b)(1) and (b)(2) to allow for the release of noncitizens on bond without the

need for § 1182(d)(5) parole. See id.; see also Jennings, 138 S. Ct. at 870-72, 874-75 (Breyer, J.,

dissenting).

However, the passage in Jennings – cited by Plaintiffs to support their argument that

§ 1226(a) only applies to deportable aliens – merely indicates that deportable aliens under

§ 1227(a) may be removed by § 1226(a). See Jennings, 138 S. Ct. at 837. The Supreme Court did

not limit § 1226(a) to “only” deportable aliens and not applicants for admission, as Plaintiffs

contend. ECF No. [44] at 6; see also Jennings, 138 S. Ct. at 837. Therefore, Plaintiffs fail to

demonstrate that arriving and non-arriving aliens alike must be processed under § 1225(b) and

cannot be subject to § 1226(a).4 In addition, the passage from Jennings that Plaintiffs quote for the

proposition that all applicants for admission must have been released under parole, not conditional

parole, does not support Plaintiffs’ argument. In the quoted passage, the Supreme Court rejected

the argument that “once detention authority ends under §§ 1225(b)(1) and (b)(2), aliens can be

detained only under § 1226(a).” Jennings, 138 S. Ct. at 845 (emphasis added). Other than

indicating that aliens could be detained under other mechanisms in addition to § 1226(a), the

passage does not appear to have any bearing on whether some aliens cannot also be detained and

4 To reiterate, certain non-arriving aliens have been subject to § 1226(a) but arriving aliens have only been

subject to § 1225(b). See ECF No. [38] at 13-14.

subsequently released under § 1226(a). Therefore, Plaintiffs fail to show that Jennings requires all

applicants for admission to be processed for removal proceedings under § 1225(b) and that non-

arriving aliens cannot be released on bond or conditional parole under § 1226(a).

Furthermore, Defendant asserts that Jennings does not apply to non-arriving aliens. See

ECF No. [38] at 14. Defendant argues that Jennings was an appeal of a Ninth Circuit decision,

Rodriguez v. Robbins, 804 F.3d 1050 (9th Cir. 2015), that required bond hearings for “arriving

aliens” detained under § 1225(b). Id. Defendant contends, therefore, that the Supreme Court’s

ruling necessarily pertained to the class before it – namely, arriving aliens and not non-arriving

aliens. See id. Indeed, courts have interpreted Jennings to apply to arriving aliens. See Leke v. Hott,

521 F. Supp. 3d 597, 601 (E.D. Va. 2021) (“The Supreme Court in these circumstances has made

clear that § 1225(b) applies to arriving aliens, and that this provision both authorizes and governs

detention of arriving aliens . . . .” (citing Jennings, 138 S. Ct. at 845)); see also Aracely, R. v.

Nielsen, 319 F. Supp. 3d 110, 143 (D.D.C. 2018) (“In Jennings v. Rodriguez, the Supreme Court

addressed a Ninth Circuit decision interpreting § 1225(b) to limit detention of arriving aliens to

six-month periods, after which they are entitled to bond hearings.” (citing Jennings, 138 S. Ct. at

839)).

If Jennings only applies to arriving aliens, as Defendant argues, then the Supreme Court’s

ruling that “there are no other circumstances [other than parole pursuant to § 1182(d)(5)(A)] under

which aliens detained under § 1225(b) may be released,” would not apply to non-arriving aliens

who may be released pursuant to § 1226(a). Jennings, 138 S. Ct. at 844 (emphasis omitted).

Further, if Jennings only applies to arriving aliens, then the passages in Justice Breyer’s dissent

that Plaintiffs cite – which allegedly set forth the rejected argument that § 1226(a)(2)(A) works

with §§ 1225(b)(1) and (b)(2) to permit release on bond without the need for § 1182(d)(5) parole

– would be a rejected argument with respect to arriving aliens only. See Jennings, 138 S. Ct. at

870-72, 874-75 (Breyer, J., dissenting). Put differently, § 1226(a)(2)(A) may work with

§§ 1225(b)(1) and (b)(2) in the context of non-arriving aliens to allow for release on bond rather

than parole only.

In sum, Defendant sets forth a plausible argument that Jennings does not apply to non-

arriving aliens. See id. at 14. Given the Parties’ competing interpretations of Jennings, the analysis

the Court would have to conduct, after certifying the proposed class, would vary depending on

whether the Court was considering an arriving alien or non-arriving alien. This analysis necessarily

raises the possibility that there is no “common answer” for the entire class of arriving and non-

arriving aliens. Wal-mart, 564 U.S. at 350. Further, if the Court were to consider non-arriving

aliens released under In re X-K- and those released under Padilla, as the class is currently defined,

the Court would have to analyze whether Jennings is applicable to those subgroups of non-arriving

aliens as well.5 As such, Plaintiffs have failed to meet the burden of demonstrating commonality.

Lastly, Plaintiffs raise the possibility of the Court sua sponte redefining the class. See ECF

No. [44] at 3, n.2. Plaintiffs also allude to the possibility of subclasses but do not seek to certify

subclasses. See ECF No. [44] at 10, n.6; see also id. at 8-9.6 Ultimately, however, Plaintiffs’

Counsel states in no uncertain terms that “the undersigned do not believe there exists a basis for

breaking up the proposed class into sub-classes” and that Plaintiffs’ Counsel “articulated to the

5 It should be noted that Defendant relies on Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), to

argue that the Court should not consider the merits of Plaintiffs’ claims when determining class

certification. See ECF No. [38] at 11, 14-15. However, the Supreme Court stated in Wal-Mart, 564 U.S. at

351, n.6, that Eisen did not set forth the proposition that the courts may not examine the merits of the

plaintiff’s claim when considering class certification. The Supreme Court clarified that courts may examine

the merits of a plaintiff’s case. See id. As discussed above, the Court has therefore examined the merits of

Plaintiffs’ claims under Plaintiffs’ interpretation of Jennings and Defendant’s interpretation of Jennings,

which raise the possibility of inconsistent answers among members of the proposed class.

6 Plaintiffs’ Motion to Add Named-Plaintiffs further discusses the possibility of subclassification. See ECF

No. [43] at 6.

[Defendant] that [Plaintiffs] would not stipulate to such.” ECF No. [44] at 9. The Eleventh Circuit

has determined that “[t]he district court has no sua sponte obligation to subclassify, it is the

plaintiff’s burden to designate an appropriate class.” Heaven, 118 F.3d at 738. The Court declines

to sua sponte redefine the class or subclassify or to address whether the new class and/or subclasses

meet the requirements for class certification, especially since Plaintiffs’ Counsel does not consider

subclassification to be necessary.

Because Plaintiffs have failed to meet the commonality requirement, the Court does not

analyze the remaining factors for class certification under Rule 23(a).

D. Rule 23(b)(2)

Even if Plaintiffs satisfied the elements of Rule 23(a), Plaintiffs do not satisfy Rule

23(b)(2). To obtain class certification, Plaintiffs must satisfy one of the three requirements

enumerated in Rule 23(b). See Fed. R. Civ. P. 23(b). Plaintiffs seek to certify the class under Rule

23(b)(2), see ECF No. [32] at 3, which requires the Court to find that “the party opposing the class

has acted or refused to act on grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R.

Civ. P. 23(b)(2).

Plaintiffs argue that Defendant has acted on grounds that apply generally to the class and

that the corresponding relief sought applies to the class as a whole. See ECF No. [32] at 21-22.7

Defendant argues that Defendant has not acted on grounds that apply generally to the class and

7 Plaintiffs note that in the Third Circuit, the requirements of Rule 23(b) are “almost automatically satisfied

in actions primarily seeking injunctive relief.” ECF No. [32] at 22 (citing Baby Neal for & by Kanter v.

Casey, 43 F.3d 48, 58 (3d Cir. 1994)). However, the Court follows the precedent in the Southern District

of Florida – which Plaintiffs also cite – that requires the Court to examine whether class members have

suffered a “common injury that may properly be addressed by class-wide injunctive or equitable relief.”

See Ibrahim v. Acosta, 326 F.R.D. 697, 701 (S.D. Fla. 2018) (citing Holmes v. Continental Can Co., 706

F.2d 1144, 1155 (11th Cir. 1983)); ECF No. [32] at 22.

that the relief sought would not be uniformly applied. See ECF No. [38] at 11. As noted above,

Defendant argues that it offered Plaintiffs who are arriving aliens, as well as the putative class of

similarly situated arriving aliens, the relief they seek in the lawsuit, namely § 1182(d)(5) parole

documents. ECF No. [38] at 9. On the other hand, Defendant did not offer Plaintiffs who are non-

arriving aliens the same relief that Plaintiffs seek. See id. Defendant further argues that it has not

acted on grounds that apply to non-arriving aliens because some non-arriving aliens were released

pursuant to the Padilla Injunction, some were released pursuant to In re X-K-, and some were

conditionally paroled or released on bond because they were detained pursuant to § 1226(a). See

id. at 12. In the Reply, Plaintiffs argue that Defendant’s action in granting the relief sought to some

of the Plaintiffs does negate the fact that Defendant acted on grounds that apply generally to the

class by refusing to recognize every class member’s release as a parole under § 1182(d)(5). See

ECF No. [44] at 3.

Plaintiffs are persuasive to the extent that they argue that Defendant has acted on grounds

that apply generally to the class by denying all putative class members their § 1182(d)(5) parole

documents. The fact that Defendant subsequently settled the claims with respect to some of the

Plaintiffs does not negate the fact that Defendant previously denied the entire proposed class’

§ 1182(d)(5) parole documents. By Defendant’s logic, any class certification under Rule 23(b)

could be defeated by offering some members of the proposed class the relief they seek once the

class action is filed. As such, Defendant did act on grounds that apply generally to the class in this

case.

However, as Defendant correctly argues, Plaintiffs fail to show that the “final injunctive

relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

Civ. P. 23(b); ECF No. [38] at 11. In interpreting Rule 23(b), the Supreme Court has held that

“[t]he key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy

warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as

to all of the class members or as to none of them.” Wal-Mart, 564 U.S. at 360 (internal quotations

and citation omitted). The focus of the Supreme Court’s analysis in Wal-Mart was the class-wide

nature of the possible injunctive or declaratory relief, not the class-wide nature of injury suffered.

See id. (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would

provide relief to each member of the class. It does not authorize class certification when each

individual class member would be entitled to a different injunction or declaratory judgment against

the defendant.” (emphasis in original)). In this case, depending on the interpretation of Jennings,

the injunctive or declaratory relief Plaintiffs seek could require an individualized assessment for

each member of the class --- first to determine if each member of the putative class is an arriving

alien or a non-arriving alien; and then a second analysis for non-arriving aliens to determine

whether each non-arriving alien is entitled to § 1182(d)(5) parole. Thus, although Defendant may

have denied the proposed class parole under § 1182(d)(5), causing the proposed class to suffer the

same alleged injury, the relief sought may not be granted on a class-wide basis.

Plaintiffs challenge Defendant’s argument on this matter by again claiming that Defendant

has mischaracterized the scope of the class to include aliens released by immigration judges and

federal court orders. ECF No. [44] at 3. As noted above, however, Defendant does not

mischaracterize the scope of the class since the class definition does not limit the class to those

released by DHS under its own volition. See ECF No. [32] at 3. Further, even if the class was

limited to those released by DHS under its own volition, whether injunctive or declaratory relief

could apply to both arriving and non-arriving aliens would require an interpretation of Jennings,

which could yield different outcomes for different class members as noted above. Accordingly,

Plaintiff has failed to meet the burden of satisfying the requirements of Rule 23(b).

E. Motion to Add Named-Plaintiffs

Lastly, the Court addresses the Motion to Add Named-Plaintiffs, ECF No. [43]. As stated

above, the Court considers the Motion to Add Named-Plaintiffs after addressing the Motion for

Class Certification because the joinder of Group 3 does not affect the Court’s analysis of the

Motion for Class Certification. When considering the joinder of parties, “the broadest possible

scope of action consistent with fairness to the parties . . . is strongly encouraged.” United Mine

Workers, 282 U.S. at 724. Additionally, under Rule 21, the Court “may at any time, on just terms,

add or drop a party.” Fed. R. Civ. P. 21. The Eleventh Circuit has determined that district courts

are given “broad discretion to join parties or not and that decision will not be overturned as long

as it falls within the district court’s range of choices.” Swan, 293 F.3d at 1253.

Plaintiffs’ primary reasons for joining nineteen (19) additional Plaintiffs in Group 3 are:

(1) to ensure that both arriving aliens and non-arriving aliens are among the named Plaintiffs in

the event that the Court rules that there is a lack of commonality between arriving aliens and non-

arriving aliens and thus certifies subclasses; and (2) to ensure the adequacy of class representatives

once Group 2 is dropped from the lawsuit. ECF No. [43] at 6-7. Group 3 is intended to justify

subclasses should the need for subclasses arise and to ensure a large and diverse enough group of

named Plaintiffs in case Group 2 is dropped from the lawsuit. However, as discussed above, the

Court finds that there is a lack of commonality between arriving aliens and non-arriving aliens,

and the Court declines to sua sponte define subclasses or determine whether the subclasses meet

the requirements for class certification. See Heaven, 118 F.3d at 738. As such, the joinder of

additional Plaintiffs based on Plaintiff’s first argument is unpersuasive. In addition, Group 2 has

not yet been dropped from the lawsuit, and this Order addressed the Motion for Class Certification

by taking into consideration Group 2 Plaintiffs. As such, Plaintiffs’ second argument for joining

Group 3 is moot.

Plaintiffs fail to raise an argument to join additional Plaintiffs in the event that the Court

denies class certification. See generally ECF No. [43]. Plaintiffs do, however, cite a case from the

Northern District of Georgia stating that “the interests of judicial economy will be served by adding

these new plaintiffs-whether or not class certification is granted,” as it would avoid “the filing of

a second, possibly duplicitous suit.” ECF No. [43] at 3-4 (quoting Hawkins v. Fulton Cty., 95

F.R.D. 88, 91 (N.D. Ga. 1982)) (emphasis omitted). Defendant does not state whether it would

agree or oppose the joinder of Group 3 if the Court does not certify the class. See ECF No. [46] at

5. Defendant instead states its intention to agree or oppose the joinder after the Court renders the

decision on the Motion for Class Certification and Plaintiffs seek to add individual plaintiffs at

that time. See id.

The joinder of nineteen (19) additional Plaintiffs at this stage would not serve the interests

of judicial economy. If the Court were to grant the Motion to Add Named-Plaintiffs, Defendant

would be required to gather the administrative record for Group 3. However, the deadline for

Defendant to file the administrative record has already passed, and Plaintiffs’ summary judgment

motion is due on December 6, 2021. Defendant would likely not have enough time to compile an

updated administrative record for Plaintiffs’ summary judgment motion.8 Furthermore, Plaintiffs

already had an opportunity to join additional Plaintiffs. ECF No. [30]. Therefore, Plaintiffs’

Motion to Add Named-Plaintiffs is denied.

8 Plaintiffs state their willingness to proceed without an administrative record. See ECF No. [47] at 2-3.

However, given the individualized assessment that would be required for a multi-plaintiff case, the Court

is unwilling to proceed without an administrative record.

Case No. 21-cv-23213-BLOOM/Otazo-Reyes

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiffs’ Motion for Class Certification, ECF No. [32], is DENIED.

2. Plaintiffs’ Motion to Add Named-Plaintiffs, ECF No. [43], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on December 1, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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