AL Otro Lado, Inc. v. Nielsen
This text of 327 F. Supp. 3d 1284 (AL Otro Lado, Inc. v. Nielsen) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Hon. Cynthia Bashant, United States District Judge.
This case concerns an alleged practice in which U.S Customs and Border Protection *1290("CBP") officials at ports of entry ("POE") along the U.S.-Mexico border deny asylum seekers access to the U.S. asylum process. The Defendants in this case are Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of CBP; and Defendant Todd C. Owen, the Executive Assistant Commissioner of the Office of Field Operations for CBP. Each Defendant has a role in the direction and oversight of CBP and each is sued in his or her official capacity. Defendants move to dismiss the Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 135.) Plaintiffs oppose (ECF No. 143) and Defendants have replied in support (ECF No. 145). For the reasons herein, the Court grants in part and denies in part Defendants' motion to dismiss.
I. BACKGROUND
A. Relevant Statutory and Regulatory Background1
At the heart of this case are several provisions of the Immigration and Nationality Act ("INA") and its implementing regulations which elaborate a procedure by which asylum seekers who arrive at POEs may seek asylum in the United States-a procedure Plaintiffs refer to as "access to the U.S. asylum process."2 (See generally ECF No. 1, Compl.) The INA generally provides that "[a]ny alien who is physically present in the United States or who arrives in the United States [ ], irrespective of such alien's status, may apply for asylum in accordance with...where applicable, section 1225(b)[.]"
An alien who arrives in the United States, including at a designated POE, is deemed an "applicant for admission," who "shall be inspected by immigration officers," and may be removed "without further hearing" "if an immigration officer determines" that the alien "is inadmissible." See
An "alien [who] indicates either an intention to apply for asylum under section 1158...or a fear of persecution" is excepted from this summary removal.
*1291The regulation further mandates that "the examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien's inadmissibility."
An alien seeking asylum is subsequently referred to an "asylum officer," who is statutorily required to be "an immigration officer who has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title," and "is supervised by an officer who," inter alia , "has had substantial experience adjudicating asylum applications."
At any point during this process, "[a]n alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States."
B. Factual Synopsis
The Plaintiffs are six individuals, Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the "Individual Plaintiffs"), and organizational Plaintiff Al Otro Lado, Inc. ("Al Otro Lado").3 They allege that CBP officials have "systematically violated U.S.
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Hon. Cynthia Bashant, United States District Judge.
This case concerns an alleged practice in which U.S Customs and Border Protection *1290("CBP") officials at ports of entry ("POE") along the U.S.-Mexico border deny asylum seekers access to the U.S. asylum process. The Defendants in this case are Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of CBP; and Defendant Todd C. Owen, the Executive Assistant Commissioner of the Office of Field Operations for CBP. Each Defendant has a role in the direction and oversight of CBP and each is sued in his or her official capacity. Defendants move to dismiss the Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 135.) Plaintiffs oppose (ECF No. 143) and Defendants have replied in support (ECF No. 145). For the reasons herein, the Court grants in part and denies in part Defendants' motion to dismiss.
I. BACKGROUND
A. Relevant Statutory and Regulatory Background1
At the heart of this case are several provisions of the Immigration and Nationality Act ("INA") and its implementing regulations which elaborate a procedure by which asylum seekers who arrive at POEs may seek asylum in the United States-a procedure Plaintiffs refer to as "access to the U.S. asylum process."2 (See generally ECF No. 1, Compl.) The INA generally provides that "[a]ny alien who is physically present in the United States or who arrives in the United States [ ], irrespective of such alien's status, may apply for asylum in accordance with...where applicable, section 1225(b)[.]"
An alien who arrives in the United States, including at a designated POE, is deemed an "applicant for admission," who "shall be inspected by immigration officers," and may be removed "without further hearing" "if an immigration officer determines" that the alien "is inadmissible." See
An "alien [who] indicates either an intention to apply for asylum under section 1158...or a fear of persecution" is excepted from this summary removal.
*1291The regulation further mandates that "the examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien's inadmissibility."
An alien seeking asylum is subsequently referred to an "asylum officer," who is statutorily required to be "an immigration officer who has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title," and "is supervised by an officer who," inter alia , "has had substantial experience adjudicating asylum applications."
At any point during this process, "[a]n alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States."
B. Factual Synopsis
The Plaintiffs are six individuals, Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the "Individual Plaintiffs"), and organizational Plaintiff Al Otro Lado, Inc. ("Al Otro Lado").3 They allege that CBP officials have "systematically violated U.S. law and binding international human rights law by refusing to allow individuals...who present themselves at POEs along the U.S.-Mexico border and assert their intention to apply for asylum or a fear of returning to their home countries-to seek protection in the United States." (Compl. ¶¶ 1-6, 37.) Plaintiffs allege that "[b]y refusing to follow the law, Defendants are engaged in an officially sanctioned policy or practice[.]" (Id. ¶ 5.)
Plaintiffs point to several reports from non-governmental organizations working in the U.S.-Mexico border region and Al Otro Lado's firsthand account, which describe instances in which CBP officials denied asylum seekers who presented themselves at POEs along the border access to the U.S. asylum process between December 2015 and June 2017. (Id. ¶¶ 37-39, 96-103.) Plaintiffs allege that CBP officials have carried out this practice through misrepresentations, threats and intimidation, verbal and physical abuse, and coercion. (Id. ¶¶ 84-103.) For example, CBP officials are alleged to turn away asylum seekers by falsely informing them that the U.S. is no longer providing asylum, that President Trump signed a new law ending asylum, that a law providing asylum to Central Americans ended, that Mexican citizens are not eligible for asylum, and that the U.S. is no longer accepting mothers with children for asylum. (Id. ¶ 85.) CBP officials are alleged to intimidate asylum seekers by threatening to take away their children if they do not renounce a claim for asylum and to deport the asylum seekers. (Id. ¶ 87.) CBP officials are also alleged to force asylum seekers to sign forms in English, without translation, in which the asylum seekers recant their fears of persecution.
*1292(Id. ¶ 92.) CBP officials are further alleged to instruct the asylum seekers to recant their fears of persecution while being recorded on video. (Id. ¶ 92.) The Court briefly sets forth the Individual Plaintiffs' and Al Otro Lado's experiences of these alleged practices.
The Individual Plaintiffs
Plaintiffs Abigail Doe ("A.D."), Beatrice Doe ("B.D."), and Carolina Doe ("C.D.") are natives and citizens of Mexico, each of whom fled with their families to Tijuana, Mexico, where they attempted to access the U.S. asylum process. (Compl. ¶¶ 19-21.) Plaintiff A.D. sought to flee Mexico in May 2017 after her husband disappeared at the hands of a Mexican drug cartel. A cartel member threatened her with death. (Id. ¶¶ 19, 39-40.) She alleges that CBP officials at the San Ysidro POE coerced her into signing a form which falsely stated that she did not have a fear of returning to Mexico and withdrew her application for admission to the U.S., and forced her and her children to return to Mexico. (Id. ¶¶ 41-45.) Plaintiff B.D. sought to flee Mexico in May 2017 with her nephew and three children after the Zetas, a Mexican drug cartel in southern Mexico, targeted her nephew, and after she suffered severe domestic violence from her husband. (Id. ¶¶ 20, 46-47.) She presented herself at the Otay Mesa POE and twice at the San Ysidro POE, where CBP officials coerced her into signing a form in which she stated that she and her children have no fear of returning to Mexico and withdrew her application for admission. (Id. ¶¶ 48-54.) Plaintiff C.D. sought to flee Mexico in May 2017 with her three children after a drug cartel kidnapped and dismembered her brother-in-law and subsequently targeted her family with death and severe harm. (Id. ¶¶ 21, 55-56.) She alleges that CBP officials coerced her into recanting her fear on video and into signing a form withdrawing her application for admission to the U.S. (Id. ¶¶ 57-60.)
Plaintiffs Dinora Doe ("D.D."), Ingrid Doe ("I.D."), and Jose Doe ("J.D.") are natives and citizens of Honduras. (Id. ¶¶ 22-24.) Plaintiff D.D. alleges that MS-13 gang members threatened to kill her and her 17-year old daughter if they did not leave their home, and subsequently repeatedly raped her and her daughter over a three-day period. (Id ¶¶ 22, 61-62.) D.D and her daughter fled to Mexico where MS-13 gang members threatened them again. (Id. ¶ 63.) On three occasions in August 2016, D.D. and her daughter sought asylum in the United States at the Otay Mesa POE, but CBP officials told her that "there was no asylum in the United States," including specifically "for Central Americans," and that she "would be handed over to Mexican authorities and deported to Honduras." (Id. ¶¶ 64-69.) Plaintiff I.D. alleges that 18th Street gang members in Honduras murdered her mother and three siblings and that the gang threatened her with death. (Id. ¶¶ 23, 71.) She also alleges that her partner in Honduras severely abused her and her three children for several years, and regularly raped her, including in front of her children. (Id. ¶¶ 23, 72.) In June 2017, I.D. and her children fled to Tijuana and sought asylum at the Otay Mesa and the San Ysidro POEs, where CBP officers told them that they could not seek asylum in the U.S. (Id. ¶¶ 73-77.) Plaintiff J.D. alleges that 18th Street gang members murdered several of his family members in Honduras. He further alleges that gang members attacked him and threatened to kidnap and harm his two daughters. (Id. ¶¶ 24, 78- 79.) J.D. fled Honduras in June 2017 and sought asylum at the Laredo, Texas POE, but CBP officers told him he could not get asylum in the United States. (Id. ¶¶ 80- 82.)
At the time the Complaint was filed, the Individual Plaintiffs alleged that they "would like to present themselves again to *1293seek asylum, but based on their experience and the experience of others with CBP's practice at POEs, [they] understand that they would likely be turned away again[.]" (Id. ¶¶ 44, 53, 59, 68, 76, 81.) They also allege that they are not alone. Rather, CBP officials are alleged to have a "prevalent and persistent" illegal practice since summer 2016 of denying other asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum system. Accordingly, the Individual Plaintiffs seek to represent a class of individuals with similar claims. (Id. ¶¶ 131-138 (class allegations).)
Al Otro Lado
Al Otro Lado is a non-profit California legal services organization established in 2014, which provides services to indigent deportees, migrants, refugees, and their families. (Compl. ¶ 12; Decl. of Erika Pinheiro, ECF No. 90-1 ("Pinheiro Decl.") ¶ 2.) Al Otro Lado's mission is to coordinate and to provide screening and legal representation for individuals in asylum and other immigration proceedings, seek redress for civil rights violations, and provide assistance with other legal and social services. (Compl. ¶ 12; Pinheiro Decl. ¶ 2.) Since December 2015, its representatives have accompanied asylum seekers to the San Ysidro POE and witnessed the alleged conduct of CBP officials. (Compl. ¶ 101.) In response to the alleged practices of CBP officials, Al Otro Lado has diverted significant time and resources from its L.A. operations and several of its non-refugee programs to send representatives to Tijuana. (Id. ¶¶ 14, 16-17; Pinheiro Decl. ¶¶ 4, 6-7.) Al Otro Lado has altered its previous "large-scale, mass-advisal legal clinics" in Tijuana that provided a general overview on asylum laws and procedures to provide individualized assistance and direct representation of asylum seekers, which has required Al Otro Lado to recruit and train more attorneys. (Compl. ¶¶ 13-14; Pinheiro Decl. ¶¶ 3-4.) Al Otro Lado expends significant time and resources to provide individual screenings and in-depth trainings to educate asylum seekers about CBP's conduct and challenge the alleged practices. (Id. ¶ 14; Pinheiro Decl. ¶ 4.)
C. Relevant Procedural Background
Plaintiffs filed the putative class action Complaint in the Central District of California on July 12, 2017. (ECF No. 1.) The Complaint presses three claims against the Defendants related to the INA provisions. Plaintiffs allege that (1) Defendants have violated various provisions of the INA that together constitute a "right to seek asylum under the [INA]," (Compl. ¶¶ 139-150); (2) the INA statutory violations also violate the Administrative Procedure Act ("APA"),
II. LEGAL STANDARDS
A. Rule 12(b)(1) and Federal Court Jurisdiction
Pursuant to Rule 12(b)(1), a party may move to dismiss based on the court's lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A defendant may challenge the court's subject-matter jurisdiction in several ways, two of which are raised by Defendants'
*1294motion to dismiss: mootness and sovereign immunity. When a defendant challenges the Article III standing of a plaintiff or the related issue of mootness, Rule 12(b)(1) is the appropriate standard of review because it is the court's subject-matter jurisdiction which is challenged. White v. Lee ,
B. Rule 12(b)(6) and the Sufficiency of the Complaint
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly ,
III. DISCUSSION
A. Mootness
In the days following the filing of the Complaint, Defendants agreed to process the Individual Plaintiffs for inspection and to permit them to access the asylum process. The agreement provides that: "[t]he government agrees to allow the class representatives and their children to present themselves at the San Ysidro and Laredo ports of entry and access the credible fear, withholding-only, or asylum process as appropriate under the [INA]." (ECF No. 67-3 Ex. B.) Three Individual Plaintiffs were processed at the San Ysidro POE on July 15, 2017 and another was processed on July 18, 2017. (ECF No. 135-2 Ex. A ¶ 4.) A fifth Individual Plaintiff was processed at the Laredo, Texas POE on July 18, 2017. (ECF No. 135-3 Ex. B. ¶ 4.) According to the Defendants, these five Individual Plaintiffs have been either referred to the asylum process or placed in removal proceedings. (ECF No. 135-1 at 1, 3.)
The parties have different views about what this means for the Court's jurisdiction. Defendants contend that the Individual Plaintiffs' Section 706(1) claims are now moot and so the Court should dismiss the entire case. (Id. at 1, 4-9.) Defendants assert that the Individual Plaintiffs have received "all the relief the Court could have granted" on their Section 706(1) claims: "the verifiable opportunity to be processed as applicants for admission" at a POE along the U.S.-Mexico border consistent with the INA's provisions. (Id. at 3, 6.) Plaintiffs argue that the Section 706(1) claims are not moot because (1) Plaintiff Beatrice Doe has not been processed for admission and therefore has not "actually received" the relief and (2) the Individual Plaintiffs who have been processed for admission only received "partial relief." (ECF No. 143 at 11.) Plaintiffs further argue that all Individual Plaintiffs who "crossed the U.S.-Mexico border" have a "continuing interest in pursuing a Rule 23 class action" for the conduct challenged in this case. (Id. at 11, 14.)
Article III limits the jurisdiction of the federal courts to "cases" or "controversies." U.S. Const. art. III, § 2; see also Allen v. Wright ,
To resolve Defendants' mootness challenge, the Court first considers whether the Individual Plaintiffs' receipt of Section 706(1) relief could alone moot this case- it does not-and, second, whether the Individual Plaintiffs' Section 706(1) claims asserted on behalf of a putative class warrant a mootness exception-they do. In considering these issues, the Court keeps in mind that "[t]he party asserting mootness has a heavy burden to establish that there is no effective relief remaining for a court to provide." In re Palmdale Hills Property ,
1. This Case is Not Moot
Defendants' argument that this case is moot ignores organizational Plaintiff Al Otro Lado's presence in this case and the Individual Plaintiffs' other requests for relief. "A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Knox v. SIEU, Local 1000 ,
a. Al Otro Lado
Faced with Al Otro Lado's argument that it possesses Article III standing, Defendants assert that they do not "yet dispute[ ] Al Otro Lado's Article III standing." (ECF No. 145 at 8.) Despite Defendants' assertion, the Court has an independent duty to assess whether Al Otro Lado satisfies Article III's "irreducible constitutional minimum" of standing. FW/PBS, Inc. v. City of Dallas ,
An organizational plaintiff like Al Otro Lado may have Article III standing to sue in its own right. See Havens Realty Corp. v. Coleman ,
Al Otro Lado is a non-profit that provides services to indigent deportees, migrants, refugees, and their families in Los *1297Angeles, California and Tijuana, Mexico. Its core mission is, inter alia , to coordinate and provide screening, advocacy, and legal representation for individuals in asylum and other immigration proceedings. (Compl. ¶ 12.) As a result of CBP officers' conduct at POEs along the U.S.-Mexico border since 2016, Al Otro Lado alleges that it has diverted significant time and resources from its L.A. operations and its non-refugee programs to send representatives to Tijuana to provide individualized assistance and coordination of legal and social services, including individual screenings and in-depth trainings to educate asylum seekers about CBP's alleged conduct of denying the most basic form of access to the asylum process. (Id. ¶¶ 14, 16-18.) These alleged harms are sufficient for Article III standing. See Valle Del Sol Inc. ,
b. The Individual Plaintiffs' Other Claims for Relief
For the Individual Plaintiffs, Defendants' mootness challenge is narrow. It concerns only one form of relief in the Complaint on only one of the Plaintiffs' four claims. (See Compl. ¶¶ 152-153.) But the Individual Plaintiffs request other forms of relief, including: (1) "relief prohibiting Defendants" and their agents "from engaging in the unlawful policies, practices, acts and/or omissions...at POEs along the U.S.-Mexico border" and (2) "relief requiring Defendants to implement procedures to provide effective oversight and accountability in the inspection and processing of individuals who present themselves at POEs along the U.S.-Mexico border and indicate an intention to apply for asylum or assert a fear of persecution in their home countries." (Id. at 52-53.) The Complaint also requests a declaratory judgment that "Defendants' policies, practices, acts and/or omissions...violate" the INA, the APA, the Due Process Clause of the Fifth Amendment, and/or the "duty of non-refoulement under international law." (Id. at 52.) Defendants make no meaningful attempt to argue that their agreement to process the Individual Plaintiffs moots these requests for injunctive and declaratory relief.
Rather, Defendants' mootness argument treats these requests as irrelevant on the ground that Plaintiffs' other claims fail because the Plaintiffs do not plausibly allege that Defendants have a policy or practice. But a "party's prospects of success on a claim are not pertinent to the mootness inquiry." Looks Filmproduktionen GmbH v. CIA ,
Even on the merits, Defendants' argument cannot show that this entire case is moot because it conflates whether the Complaint plausibly shows the existence of a policy with whether the Complaint plausibly shows the existence of a practice. As the Court later explains, although the Complaint fails to show the existence of a policy, it plausibly shows the existence of a pattern or practice of denials faced by some asylum seekers. Accordingly, the Court cannot find that this entire case is moot by virtue of Defendants' agreement to process the Individual Plaintiffs.
2. The Section 706(1) Claims Are Not Moot
Although this case is not moot, Defendants' narrow mootness argument squarely raises the issue whether the Section 706(1) claims for relief asserted in the Complaint are. "A lawsuit-or an individual claim -becomes moot when a plaintiff actually receives all of the relief he or she could receive on the claim through further litigation." Chen v. Allstate Ins. Co. ,
a. Al Otro Lado's APA Claims
Defendants' Section 706(1) mootness challenge contains a key omission:
Plaintiff Al Otro Lado's Section 706(1) claim. (Compl. ¶¶ 151, 159-164.) Defendants omit discussion of any of Al Otro Lado's APA claims by assuming the merits of their separate argument that Al Otro Lado fails the zone of interests test applicable to claims asserted pursuant to the APA. (ECF No. 135 at 10-11.) The Court does not find that argument to be meritorious.5
"In addition to [Article III's standing] requirements, a plaintiff bringing suit under the [APA] for a violation of [a statute] must show that his alleged injury *1299falls within the 'zone of interests' that [the statute] was designed to protect." Cantrell v. City of Long Beach ,
Defendants first argue that Al Otro Lado fails the zone of interests test because it does not cite any INA provision permitting it to sue. (ECF No. 135 at 10-11.) This argument is unavailing. "The APA confers a general cause of action upon persons 'adversely affected or aggrieved by action within the meaning of the relevant statute,' but withdraws that cause of action to the extent the relevant statute 'preclude[s] judicial review." Block v. Cmty. Nutrition Inst. ,
Defendants' second argument is that Al Otro Lado "ha[s] failed to plead sufficient facts to demonstrate that [it] has statutory standing as a legal advocacy group to pursue a claim under
As an initial matter, the precedential value of Justice O'Connor stay opinion is questionable. Justice O'Connor recognized that her task in deciding whether to grant a stay was a "difficult and speculative inquiry" that required her "to predict whether four Justices would vote to grant certiorari and whether the Court would then set the order aside." L.A.P. , 510 U.S. at 1304,
Setting aside its questionable precedential value, the Court does not find L.A.P. 's reasoning helpful because L.A.P. concerned IRCA's zone of interests-not the INA. This distinction is important. Justice O'Connor's analysis cannot be isolated from the cases her opinion discussed, which narrowly interpreted standing to sue under IRCA even as applied to undocumented aliens. For example, Justice O'Connor began her opinion with a discussion of Reno , decided some five months earlier and which the INS argued required vacating the district court's order. L.A.P. ,
Courts have not interpreted the INA's zone of interests as narrowly as IRCA's and non-alien plaintiffs, including organizational plaintiffs, have been permitted to assert claims based on the INA.7 See Hawaii v. Trump ,
The specific INA provisions in this case evince a congressional intent that aliens-including those arriving at POEs and those facing expedited removal-have "an opportunity...to have the merits of his or her claim promptly assessed by officers." Castro v. United States Dep't of Homeland Sec. ,
*1302This Court finds Al Otro Lado's interests in this case "are related to the basic purposes of the INA['s]" goal of permitting aliens to apply for asylum in the United States at POEs and not so marginally related that its interests fall outside the INA's zone of interests. Hawaii ,
b. The Individual Plaintiffs' Section 706(1) Claims
Five of the six Individual Plaintiffs have received the requested relief from Defendants' agreement to process these "class representatives and their children" at POEs. Thus, their Section 706(1) claims are moot unless an exception applies. Plaintiffs contend, however, that the Section 706(1) claim of Beatrice Doe is not moot because she has not "actually received" the relief provided in the agreement. (ECF No. 143 at 11.) The Court does not share Plaintiffs' view.
Plaintiffs' argument relies solely on case law holding that a rejected or unaccepted Rule 68 offer of judgment does not moot a plaintiff's individual claims even when that offer would provide full relief. See Chen ,
Defendants' agreement, however, is not a Rule 68 offer of judgment or a settlement offer and thus Chen and Diaz are not directly applicable. Even if the reasoning of these cases extends to less formal offers, what is before the Court is not an offer which Beatrice Doe has yet to accept or reject, but rather an agreement. The agreement permits her to be processed by CBP officials at a POE in accordance with the INA and has no expiration. The evidence shows that five of the six Individual Plaintiffs were processed pursuant to the agreement and there is no basis for the Court to find that Beatrice Doe will be treated any differently. Defendants readily concede that Beatrice Doe "can return to a port of entry to be processed as an arriving alien at any time, should she choose to do so" pursuant to the agreement. (ECF No. 135-1 at 3.) And they "fully expect that 'she would be processed as an applicant for admission[.]' " (ECF No. 145 at 2 (quoting ECF No. 135-2 Ex. A ¶ 4).). Beatrice Doe is in no different a position than she would be with a court order compelling agency action. Accordingly, her individual Section 706(1) claim, like those of the other Individual Plaintiffs, is moot unless an exception applies.
Even when a claim becomes moot due to subsequent events after the commencement of a lawsuit, "the flexible character of the Art[icle] III mootness doctrine" may warrant the exercise of jurisdiction over the claim. United States Parole Comm'n v. Geraghty ,
Defendants argue that it does not. (ECF No. 135-1 at 8.) In Defendants' view, "[t]here is no reason to anticipate that the Doe Plaintiffs...will return to a [POE] as applicants for admission in the future, or that, upon doing so, they will not be properly processed, especially considering the low percentage rate of improper processing[.]" (Id. ) It is unclear what basis there is for Defendants' assertion. Unless the Individual Plaintiffs are granted asylum, there is nothing in the Complaint that suggests that they will not attempt to seek asylum again and, if so, that CBP officers will not turn them away from a POE. Each Individual Plaintiff has alleged that he or she does not wish to return to his or her home country because of a fear of violence. Each Individual Plaintiff has also alleged being turned away by CBP officials on multiple occasions and a practice of such conduct. Even if Defendants are correct that the Complaint fails to show a blanket policy of turning away asylum seekers at POEs, "the 'capable of repetition yet evading review' exception is not so narrowly circumscribed." San Luis & Delta-Mendota Water Auth. ,
Furthermore, contrary to Defendants' argument (ECF No. 135-1 at 9), the putative class action nature of this case does change the Court's analysis regarding the effect of their agreement.8 Courts are sensitive to assertions of mootness in the class action context. See Cty. of Riverside v. McLaughlin ,
Defendants acknowledge Pitts and Chen , yet they contend that unlike the *1304defendants in those cases, they have not sought to "buy-off" the Plaintiffs in this case to avoid a class action. (ECF No. 135-1 at 9; ECF No. 145 at 4.) However, Plaintiffs seek only declaratory and injunctive relief. The fact that Defendants have provided one form of the injunctive relief solely to the "class representatives" (ECF No. 67-3 Ex. B) after the filing of this case is no less a potential "buy-off" strategy that effectively renders transitory the claims they seek to assert on behalf of a putative class. The government could simply render moot any class action Section 706(1) claims concerning the conduct at issue in this case by affording relief to any individual plaintiffs who seek to challenge such conduct as soon as the case is filed and long before a court could reasonably be expected to rule on a motion for class certification. See Haro v. Sebelius ,
Defendants possess the authority to direct CBP officials to process aliens who present themselves at POEs along the U.S.-Mexico border in accordance with the requirements of the INA and implementing regulations. Defendants' agreement to exercise that authority occurred a mere two days after the filing of the Complaint and only when confronted with the possibility that Plaintiffs would file an ex parte request for a temporary restraining order that all Individual Plaintiffs be processed at a POE. (ECF No. 67-1 ¶¶ 2-7.) Under these circumstances, the Court is convinced that the Section 706(1) claims the Individual Plaintiffs assert on behalf of themselves and the putative class fall within an exception from mootness.
B. Sovereign Immunity
Defendants' motion to dismiss also raises the issue of sovereign immunity. (ECF No. 135-1 at 21; ECF No. 145 at 1.) "Sovereign immunity is a threshold question that is sometimes described as 'jurisdictional.' " Forester v. Chertoff ,
Plaintiffs sue the named Defendants in their official capacity as United States officers, each of whom is alleged to oversee the enforcement and administration of U.S. immigration laws, including oversight of CBP. (Compl. 1-2 (caption); id. ¶¶ 25-27.). "An action against an officer, operating in his or her official capacity as a United States agent, operates as a claim against the United States." Ministerio Roca Solida v. McKelvey ,
*1305(citing Dugan v. Rank ,
"The United States, as a sovereign, is immune from suit unless it has waived its immunity." Consejo de Desarrollo Economico de Mexicali, A.C. v. United States ,
1. The APA Supplies the Relevant Waiver
The APA "contains a specific waiver of the United States' sovereign immunity." Matsuo v. United States ,
Apart from Section 702's judicial review provision for APA claims is the APA's waiver of sovereign immunity, also located in Section 702. The waiver provides that: "[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity...shall not be dismissed nor relief therein be denied on the ground that it is against the United States."
Because the APA supplies the relevant waiver of the sovereign immunity in this case, the Court can easily reject Defendants' argument that "Congress has not waived sovereign immunity to create a private right of action for a per se 'pattern or practice' claim against federal law enforcement." (ECF No. 135-1 at 21; ECF No. 145 at 1.) Setting aside that the Complaint does not separately plead such a claim and that the Plaintiffs disavow bringing one (see generally Compl.; see also ECF No. 143 at 19 n.6), Defendants' argument fails under Navajo Nation . Because Plaintiffs' claims fall within the scope of Section 702's waiver, they do not need to identify a separate waiver of sovereign immunity for "pattern or practice" claims against the government. See Navajo Nation ,
2. The APA's Waiver Extends to Plaintiffs' ATS Claims
The APA's waiver of sovereign immunity also resolves one of Defendants' challenges to Plaintiffs' ATS claims. The Complaint alleges ATS claims against the Defendants for "violation of the non-refoulement doctrine" under international law. (Compl. ¶ 180.) Defendants argue that the ATS "does not constitute a waiver of sovereign immunity and therefore does not create a cause of action against the government."
*1307(ECF No. 135-1 at 11-12 n.5.)10 Defendants thus appear to suggest that this Court lacks jurisdiction over the ATS claims asserted against the Defendants as a matter of sovereign immunity.
Defendants are correct that the ATS does not waive the sovereign immunity of the United States. The ATS provides only that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
However, at least one appellate court has suggested that the APA is "arguably available" as a waiver of sovereign immunity for claims asserted against federal officers sued in their official capacity for nonmonetary relief. See Sanchez-Espinoza v. Reagan ,
This case, however, does not involve military matters, nor do Defendants argue that it involves sensitive foreign affairs. At least one district court has applied the APA's waiver of sovereign immunity for international law claims asserted against the U.S. government for non-monetary relief in such circumstances. See *1308Rosner v. United States ,
C. The Sufficiency of the APA Claims
The Complaint asserts two APA claims against the Defendants. First, the Complaint raises Section 706(1) claims "to compel agency action unlawfully withheld or unreasonably delayed." (Compl. ¶ 152 (citing
In moving to dismiss, Defendants argue that (1) Plaintiffs' "only well-pleaded" claims are the Section 706(1) claims and (2) Plaintiffs have failed to identify a "final agency action" necessary to seek review of Defendants' alleged policy pursuant to Section 706(2). (ECF No. 135-1 at 4-9 (mootness for Section 706(1) claims), 11-20 (failure to state a Section 706(2) claim).) In opposition, Plaintiffs argue that they have pleaded Section 706(1) claims and not brought a Section 706(2) claim. (ECF No. 143 at 19-21.) Independently of their Section 706(1) claims, however, the Plaintiffs contend that they have plausibly pleaded that Defendants have "an illegal policy or practice." (Id. at 21-23.) To resolve the parties' dispute, the Court first outlines the APA's framework for judicial review of agency action. The Court then considers the sufficiency of Plaintiffs' Section 706(1) claims. Finally, the Court determines that Defendants' alleged policy must be reviewed pursuant to Section 706(2) and concludes that Plaintiffs have failed to identify a final agency action subject to judicial review.
1. Judicial Review of Agency Action Pursuant to the APA
As a general matter, the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
The APA also places limits on when agency action is subject to judicial review. "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."
*1309see also Navajo Nation ,
Section 706 of the APA further defines the "scope of review" for an agency action that is subject to judicial review. As a general matter, a court "shall decide all relevant questions of law" and "interpret constitutional and statutory provisions" as part of its review of agency action "[t]o the extent necessary to decision and when presented."
2. The Complaint States Section 706(1) Claims for "Unlawfully Withheld" Access to the U.S. Asylum Process
The Court turns first to the Individual Plaintiffs' Section 706(1) claims that CBP officials have failed permit asylum seekers to access the U.S. asylum process. Defendants concede that the Individual Plaintiffs' Section 706(1) claims are "well-pleaded." (ECF No. 135-1 at 4-5; ECF No. 145 at 1.) Defendants, however, suggest that such claims are not cognizable insofar as they concern a putative class of other asylum seekers who have experienced the alleged pattern of denials. Plaintiffs in turn argue that they have stated Section 706(1) claims for Defendants' alleged "failure to act" and that they can challenge a pattern of violations. (ECF No. 143 at 19-20,
a. The Individual Plaintiffs
Section 706(1) grants a court authority to "compel agency action unlawfully withheld."
These requirements to obtain Section 706(1) relief from a court are mutually reinforcing. The discrete agency action "limitation" precludes a "broad programmatic attack" against an agency.
The gravamen of Plaintiffs' Section 706(1) claims is that CBP officials failed to take actions that the INA requires when a noncitizen asserts an intent to seek asylum. The Complaint grounds these claims in various statutory and regulatory provisions, including
b. The Putative Class and Practice Allegations
A salient aspect of the Complaint are the allegations that there is a "practice" of CBP officials refusing to permit asylum seekers who present themselves at POEs along the U.S.-Mexico border to access the asylum process in the United States. (See generally Compl.) Plaintiffs' Section 706(1) claims incorporate these allegations. (Id. ¶ 157 ("Defendants' repeated and pervasive failure to act..., which denied Class Plaintiffs access to the statutorily prescribed asylum process...mandates relief under the APA.");
Two courts have considered this issue in the context of Section 706(1) claims based on an agency's alleged failure to act. These courts concluded that pattern and practice challenges to an agency's alleged failure to act are not legally cognizable under the APA. See Californians v. United States EPA , No. C 15-3292 SBA,
*1312SUWA ,
For example, in Del Monte , the court concluded that the plaintiffs could not pursue a claim against the FDA for its alleged pattern and practice of not inspecting Del Monte products within a reasonable time period. The Del Monte court reasoned that such a claim would require the court to "consider the procedures by which the FDA inspects samples and makes decisions as to their suitability for import" as a general matter. Del Monte ,
Plaintiffs assert that they have not "attempt[ed] to bring a so-called 'pattern or practice' claim as an independent cause of action." (ECF No. 143 at 19 n.6.) This assertion is supported by the Complaint, which does not facially plead independent Section 706(1) claims for Defendants' alleged practice of denying asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the asylum process. Instead of raising an independent pattern or practice claim, the Section 706(1) claims incorporate the practice allegations as part of Plaintiffs' request for relief from "Defendants' repeated and pervasive failure to act." (Compl. ¶ 157.) Plaintiffs challenge not only alleged agency failures to act in their particular cases, they challenge CBP officials' failures to act experienced by other individuals. (Compare id. ¶¶ 39-82 (allegations of each Individual Plaintiff's experiences) with id. ¶¶ 83, 85-91, 96(a)-(d), 97, 98(b), (d), 99, 100, 101(a)-(e), 102 (allegations that "CBP officials have systematically denied numerous other asylum seekers access to the asylum process") and id. ¶¶ 131-138 (setting forth "class action allegations").) Neither Del Monte , which involved an attempt to bring a freestanding pattern or practice claim, nor Californians , which involved an attempt to plead a pattern or practice claim independently of claims targeting discrete agency actions, is thus on point.
The Court does not view the incorporation of these pattern allegations as an impermissible "programmatic" attack. Unlike *1313this case, SUWA , Lujan , Del Monte , and Californians , did not involve Section 706(1) claims asserted on behalf of a putative class of individuals. The Section 706(1) relief is no less discrete and lawfully required simply because it is requested on behalf of a putative class. See Ramirez ,
Defendants suggest that Section 706(1) relief is not available on a class-wide basis, arguing that "Plaintiffs' 'pattern or practice' allegations are too speculative to otherwise establish a live case or controversy" and, thus, "the Court should dismiss any 'pattern or practice' claims under Rule 12(b)(1)." (ECF No. 135-1 at 22, 24.) Central to this argument is Defendants' contention that "Plaintiffs have not alleged that all CBP officers at [POEs] always deny asylum seekers access to the asylum process." (Id. at 24.) Like Defendants' misguided attack on the Individual Plaintiffs' Article III standing based on the parties' agreement about what the INA requires, Defendants' targeting of the pattern allegations as "too speculative" to establish a "live case or controversy" misses the mark.
Defendants readily concede that the Complaint identifies incidents in which asylum seekers who presented themselves at POEs along the U.S.-Mexico border have been denied access to the asylum process. (ECF No. 135-1 at 24.) Even in the absence of Defendants' concession, the Complaint incorporates numerous reports from non-governmental organizations operating in the U.S.-Mexico border region, which document hundreds of examples of asylum seekers who CBP officials denied access to the U.S. asylum process. (Compl. ¶¶ 37-38, 96-102.) While Defendants may seek to minimize those allegations by selectively casting doubt on the reliability of those portions of the reports that reflect negatively on CBP and by characterizing the reports as showing only "an alleged 1.6% denial rate," (ECF No. 135-1 at 14), the volume of denials is irrelevant to whether the Complaint concretely alleges that other individuals have been subjected to the same alleged failures to act by CBP officials. The Complaint plainly alleges such failures, which the Court is required to take as true at this stage. Because the Individual Plaintiffs have standing in their own right to seek Section 706(1) relief to compel the Defendants to inspect and process them for admission, they may request that relief for a putative class of others asylum seekers who have allegedly experienced the same failures to act. See O'Shea v. Littleton ,
*13143. The Complaint Fails to State a Section 706(1) Claim for Relief Pursuant to
Although the Complaint states Section 706(1) claims regarding the alleged failures of CBP officials to permit the Individual Plaintiffs to access the U.S. asylum process, certain Individual Plaintiffs also seek relief regarding alleged coercion by CBP officials. As the Court has discussed, all Plaintiffs argue that they only press Section 706(1) claims to compel agency action unlawfully withheld. (ECF No. 143 at 19.) The Court will therefore consider these Plaintiffs' coercion allegations within the Section 706(1) framework.
Plaintiffs A.D., B.D., and C.D. each allege that on of one of the occasions they sought asylum, CBP officials coerced them to into signing documents which stated that they lacked a fear of persecution. (Compl. ¶¶ 42-43, 50-51, 56-58.) A.D. and C.D. further allege that CBP officials forced them to recant their fears in video recorded statements. (Id. ¶¶ 42-43, 56-58.) They further refer to their allegations regarding CBP's alleged coercion of certain Individual Plaintiffs in discussing their Section 706(1) claims. (ECF No. 143 at 20.) Both sides further agree that "the law requires an alien's decision to withdraw his or her application for admission be voluntary" under
The Court has the authority to compel an agency action pursuant to Section 706(1) only when there is "a specific, unequivocal command" placed on the agency to take a "discrete agency action," and the agency has failed to take that action. SUWA ,
Although the clear objective of
Although Plaintiffs' allegations may show that there are "[g]eneral deficiencies in compliance," SUWA ,
4. The Complaint Fails to State a Section 706(2) Claim Regarding Defendants' Alleged Policy
The Complaint alleges that CBP officials have systematically prevented asylum seekers arriving at POEs along the U.S.-Mexico border from accessing the U.S. asylum process since summer 2016. (Compl. ¶¶ 1, 5, 37.) Plaintiffs allege that this conduct has been documented "in hundreds of cases" at POEs along the border. (Id. ¶¶ 37-38.) The bulk of Defendants' motion to dismiss concerns whether Plaintiffs have stated a Section 706(2) claim regarding an alleged "policy" of the Defendants to deny asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the asylum process. (ECF No. 135-1 at 11-20.) Defendants argue that "[w]hile the Complaint does not expressly seek judicial review of a final agency action, it alleges that CBP has adopted an 'officially sanctioned policy'[.]" (Id. at 11 (citing Compl. ¶¶ 5, 154).) Defendants contend that "to the extent the Court construes those references as a request for judicial review of an alleged unlawful policy under the APA" pursuant to Section 706(2), the Court should dismiss that request because: (1) Plaintiffs fail to identify an agency action and, even if Plaintiffs have done so, (2) the Complaints fails to show a final agency action. (Id. at 12.)
Plaintiffs assert that "Defendants' critique is misplaced" because "the review of 'final agency action'...under [ ] § 706(2) is distinct from the analysis for APA claims to compel agency action under § 706(1), and Plaintiffs brought the latter APA claim." (ECF No. 143 at 19.) Normally, the Court would construe Plaintiffs' response as a concession that they do not press a Section 706(2) claim and would not address the issue further. However, two points convince the Court that further analysis warranted. For one, the Complaint expressly invokes Section 706(2) as a basis for judicial review of Defendants' alleged conduct. (Compl. ¶¶ 151-164.) Plaintiffs' requested injunctive relief in turn includes "prohibiting Defendants...from engaging in the unlawful policies...described herein at POEs along the U.S.-Mexico border." (Id. at 52-53.) Therefore, contrary to Plaintiffs' assertion, the Complaint appears to include a Section 706(2) claim. Second, in opposing Defendants' motion, Plaintiffs assert that they "have alleged an illegal policy or practice" because they "have pled sufficient facts...to support a reasonable inference of liability" of the named Defendants. (ECF No. 143 at 21.) Plaintiffs' assertion is made independently of the APA's basis for judicial review of agency action. (Contrast
The Complaint and Plaintiffs' assertions raise two issues. First, the Court must consider whether Plaintiffs may seek review of Defendants' alleged policy independently of the APA. The Court concludes that they may not. Second, because Plaintiffs must seek review of any alleged policy pursuant to Section 706(2), the Court must consider whether the Plaintiffs have satisfied the APA's requirements for judicial review and, specifically, the final agency action requirement. The Court concludes they have not.
*1316a. Judicial Review of Defendants' Alleged Policy Must Proceed Under the APA
Plaintiffs assert that Defendants may be held liable for an alleged policy of denying asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum process. And they make that assertion by relying solely on cases in which courts considered Section 1983 and Bivens challenges. Neither Section 1983, nor Bivens , however, provides a basis for holding the Defendants liable. Nor does either supply the appropriate legal framework for review of Defendants' alleged policy. Based on the pleadings, the APA supplies the appropriate framework for judicial review of the alleged policy.
As a general matter, "[t]he APA governs the conduct of federal administrative agencies," Aracely, R. ,
Liability under Section 1983 is inapt in this case. The Complaint does not invoke Section 1983 as a basis for holding the named Defendants liable. Even if it did, liability would not lie against the Defendants. Defendants Nielsen, McAleenan, and Owen are Federal Executive officers or officials sued in their official capacity for their duties pursuant to federal law. (Compl. ¶¶ 25-27.) As Defendants recognize (ECF No. 145 at 9-10), Section 1983's plain terms do not provide a cause of action against federal officers acting in their official capacity. See
*1317Panagacos v. Towery ,
Taking for granted that Section 1983 does not apply to federal officers, Plaintiffs further assert that their "allegations of a policy or practice are analogous to claims brought under Monell [.]" (ECF No. 143 at 21 n.7.) Monell permits a Section 1983 plaintiff to establish municipal liability for an alleged constitutional violation in certain circumstances, including by showing that a municipal employee committed an alleged constitutional violation pursuant to a formal government policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. See Jett v. Dallas Indep. Sch. Dist. ,
The remaining cases cited by both parties involve Bivens actions against federal officers sued in their individual capacity for alleged constitutional violations. (ECF No. 135-1 at 11, 17; ECF No. 143 at 23.) In Bivens , the Supreme Court fashioned a judicial cause of action for damages to redress constitutional violations committed by a federal officer by treating such an action as one against the officer in his or her individual capacity and thus not barred by sovereign immunity. Bivens ,
*1318Much of the dispute between the parties regarding Plaintiffs' policy allegations concerns whether Defendants may be held liable for the alleged conduct of some CBP officials along the U.S.-Mexico border, liability which requires some connection between the conduct of those officials and the named Defendants in this case. (Compare ECF No. 135-1 at 11, 17 with ECF No. 143 at 23.)14 This dispute overlooks a key point: the Bivens framework for holding federal government officials liable for alleged constitutional violations has no application in this case This case is far from a Bivens action in form and substance. The Complaint names the Defendants in their official capacity and seeks declaratory and injunctive relief that undoubtedly requires official government action. Thus, Bivens liability is not appropriate.
With neither Section 1983, nor Bivens providing a framework applicable to Defendants' alleged policy, the Court affirms that the APA supplies the relevant framework for considering Defendants' alleged policy. See Am. Fin. Benefits Ctr. v. Fed. Trade Comm'n , No. 17-04817,
b. The Complaint Does Not Identify a Final Agency Policy
The APA limits judicial review to agency action in the form of "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."
The Complaint contains a single allegation that Defendants have an "officially sanctioned policy" of denying asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum process. (Comp. ¶ 5.) The only formulation of the alleged policy suggested by Plaintiffs is that CBP officials have a categorical policy of denying asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum system. (Id. ¶¶ 1-6.) A further variant of this policy is one in which CBP officials deny access through tactics of misrepresentations, harassment, coercion, threats, and physical violence. (Id. ¶¶ 95- 101, ECF No. 143 at 23.) But the Court cannot locate a single agency action reflecting Defendants' alleged policy, let alone one that is final.
Neither the Complaint, nor Plaintiffs' opposition to the motion to dismiss "refer[s] to a single...order or regulation" of the Defendants' which constitutes or reflects an agency policy applicable to all CBP officials at POEs along the U.S.-Mexico border for the challenged conduct. Lujan v. Nat'l Wildlife Fed'n ,
Plaintiffs observe in opposition that a policy need not be in written form to exist, thus suggesting that the Court should infer the existence of a policy even if the Court cannot locate one reduced to writing. (ECF No. 143 at 21.) The Court readily acknowledges that "agency action...need not be in writing to be final and judicially reviewable" pursuant to the APA. R.I.L.-R v. Johnson ,
Recent cases provide examples of challengeable unwritten agency policies in the immigration context. For example, in R.I.L.-R , the plaintiffs challenged two variants of an alleged DHS detention policy affecting Central American mothers *1320accompanied by minor children. In sustaining the "narrower formulation of the relevant policy," the court rejected the government's APA finality argument that the plaintiffs had failed to identify a regulation, policy memoranda, or any other document memorializing the challenged policy. R.I.L.-R ,
To assess whether the Complaint shows an unwritten policy, the Court turns to the Complaint's pattern allegations. Plaintiffs rely on those allegations to defend the existence of an alleged policy and argue that they "have pled sufficient facts to show a widespread pattern or practice of denial of access to the asylum process[.]" (ECF No. 143 at 21.) The Court, however, is not convinced that the Complaint's disparate "examples"-in Plaintiffs' words-of conduct by CBP officials supports the inference that there is an overarching policy. See Pearl River Union Free Sch. Dist. v. King ,
Unlike the unwritten policies challenged in R.I.L.-R and Aracely , the Complaint does not plausibly show the existence of the unwritten policy the Plaintiffs ask this Court to infer. As an initial matter, while the Complaint contains allegations about the tactics employed by various CBP officials (Compl. ¶¶ 83-103), there are no allegations connecting any of that conduct with an unwritten policy created by the Defendants. In fact, Plaintiffs do not even allege that the Defendants were involved in the development of any policy in this case. Aracely, R .,
Both sides also dispute whether the Complaint shows the existence of an unwritten policy based on the following allegation: "[o]n June 13, 2017, in questioning before the House Appropriations Committee, the Executive Assistant Commissioner for CBP's OFO admitted that CBP officials were turning away asylum applicants at POEs along the U.S.-Mexico border." (Compl. ¶ 103.) However, the Complaint does not incorporate any particular portion of the testimony of John Wagner, Deputy Executive Assistant Commissioner for the Office of Field Operations of CBP, and thus it is not clear that this information is properly reviewable at the motion to dismiss stage. Even if it were, the Court does not find the testimony sufficient to show the existence of the unwritten policy Plaintiffs allege. Insofar as CBP is "working with Mexico to develop methods to control the flow of migrants entering U.S. [POEs] at any given time" (ECF No. 135-1 at 16), that information does not show the consummation of an agency decision-making process, let alone one that applies to asylum seekers in the manner Plaintiffs allege. As for the "contingency plans" for a future "surge of migrants," (id. ), it is unclear how a such a plan has any application in this case because the Complaint does not allege that any Plaintiff was turned away by CBP officials as part of a policy concerning migrant "surges."
In the absence of allegations showing a final agency order, rule, regulation, policy, or plan to deny asylum seekers who present themselves at POEs along the U.S-Mexico border-or allegations from which the Court could infer that one exists-the Complaint fails to plead that Defendants have a policy this Court can "hold unlawful and set aside."
IV. CONCLUSION & ORDER
For the foregoing reasons, the Court HEREBY ORDERS that:
1. The Court GRANTS IN PART Defendants' motion to dismiss and DISMISSES WITHOUT PREJUDICE : (a) Plaintiffs A.D, B.D., and C.D.'s claims under Section 706(1) only insofar as they have sought to compel agency action under
2. The Court DENIES ON ALL OTHER GROUNDS Defendants' motion.
3. The Court Plaintiffs GRANTS LEAVE TO AMEND the pleadings consistent with this Order. Plaintiffs may file a First Amended Complaint no later than September 15, 2018 .
4. If Plaintiffs do not file an amended complaint or request additional time to do so by the foregoing date, Defendants shall file an Answer no later than September 24, 2018 .
IT IS SO ORDERED.
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