Cancino Castellar v. Mayorkas

• Court: District Court, S.D. California
• Decided: July 27, 2022
• Docket: 3:17-cv-00491
• Status: Unknown

Opinion

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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || JOSE ORLANDO CANCINO Case No.: 17cv491-JO-AHG 2 CASTELLAR, ANA MARIA HERNANDEZ AGUAS, MICHAEL 13 || GONZALEZ, 14 Plaintiff-Petitioners, Peg MO STONS COR THE IS CLARIFICATION 16 17 ALEJANDRO MAYORKAS, Secretary of Homeland Security; et al., 18 Defendant-Respondents. 19 20 21 After the Court granted in part Plaintiffs’ renewed motion for class certificatior 22 ||[Dkt. 179], the parties moved the Court to clarify its order with respect to how it definec 23 certified class. Dkts. 191, 192. The Court sua sponte construes these requests a: 24 motions to reconsider the Court’s previous order and grants in part the relief requested by 25 Plaintiffs and denies the relief requested by Defendants. 26 I. BACKGROUND 27 Plaintiffs brought this action to challenge Department of Homeland Security 28 (“DHS”) and its agencies (“Defendants”) for its alleged practice of detaining individual:

1 || for longer than 48 hours without a hearing before an immigration judge. On October 16, 2 2020, Plaintiffs requested to certify a class of individuals held in the custody of Defendants 3 ||for longer than 48 hours without a hearing before an immigration judge, excluding 4 |;unaccompanied minors and individuals with administratively final removal orders. On 5 September 8, 2021, the Court granted certification but defined the class as follows: 6 All individuals in the Southern District of California—other than 7 individuals subject to expedited removal under 8 U.S.C. § 1225(b)(1), unaccompanied minors, or individuals with 8 administratively final removal orders—who (1) are or will have 9 been in the civil custody of the San Diego offices of Defendants for longer than 48 hours and (2) have not had a hearing before an 10 immigration judge. See Dkt. 179 (the “Order”). Court explicitly carved out from Plaintiffs’ requested class definition “individuals 12 subject to expedited removal under 8 U.S.C. §1225(b)(1)” on the grounds that it lacked 13 || jurisdiction over these individuals. 14 On November 10, 2021, Plaintiffs and Defendants each separately moved to clarify 15 Court’s order with respect to the category of individuals excluded from the class 16 || because they are “individuals subject to expedited removal.” Dkts. 191, 192. Defendants 17 ||contend that any individual initially screened for expedited removal at the outset should 18 ||remain excluded from the class because they are “individuals subject to expedited 19 ||removal,” even if DHS ultimately places them in regular removal proceedings. Plaintiffs 20 |/argue that the carve-out language above should not include individuals who have been 21 ||transitioned to regular removal proceedings because they are no longer in expedited 22 ||removal proceedings. 23 || A. Relevant Statutory Framework 24 I. Regular Removal and Expedited Removal 25 Under the Immigration and Nationality Act (“INA”), non-United States citizens 26 || (referred to as aliens throughout the text of the INA) who do not meet the requirements 27 || for either entry at the border or continued presence in the United States may be subject to 28 removal. Individuals subject to removal are placed into one of two types of removal

1 || proceedings: (1) regular removal under 8 U.S.C. § 1229a; or (2) expedited removal unde: 2 || 8 U.S.C. § 1225(b) for those who are apprehended at or near the border and lack valic 3 || entry documentation or misrepresent their identity. See 8 U.S.C. § 1229a(a)(2); 8 U.S.C 4 § 1225(b)(1)(A)(i). As discussed below, however, a person originally placed in expeditec 5 || removal proceedings may be subsequently placed in regular removal proceedings 1. 6 || determined eligible to pursue asylum claims or at the discretion of DHS. 8 C.F.R 7 |} §§ 208.2(c)(1)H3), 208.30(f); Order at 6; see also, e.g., Dkt. 171-5 at 23. 8 Regular removal proceedings are governed by § 1229a, which provides specific 9 || processes for the initiation of proceedings and final determinations of removability by ar 10 || immigration judge. 8 U.S.C. § 1229a. After a non-citizen individual is apprehended a: 11 || inadmissible or deportable, an immigration officer initiates regular removal proceeding: 12 || by filing a Notice to Appear (“NTA”) against the individual with the immigration court 13 || providing the time, place, and date of the initial hearing before an immigration judge. & 14 || C.F.R. § 1239.1(a); see also 8 C.F.R. §§ 1003.14, 1003.18(b).! The first hearing in regula 15 || removal proceedings is the initial Master Calendar Hearing. Dkt. 1 J 21, 29-30; Dkt. 28. 16 || 1 at 6. At the initial Master Calendar Hearing, the immigration judge explains to the 17 || individual “the nature of the removal proceeding, the contents of the [NTA] ‘in non. 18 || technical language,’ an alien’s right to representation at his or her own expense, and the 19 || availability of pro bono legal services.” Dkt. 1 § 29 (citing 8 C.F.R. § 1240.10(a)) 20 || Following the initial Master Calendar Hearing, the individual receives a hearing at whicl 21 || the immigration judge decides admissibility or deportability. § 1229a. 22 In contrast, expedited removal proceedings under § 1225(b) provide a more 23 || streamlined route to removal without the judicial process available to those placed ir 24 || regular removal proceedings. Individuals in expedited removal are removed from the 25 26 ' If this information is not contained in the NTA, the immigration court has the responsibility o 27 || providing the government and the individual subject to removal proceedings with notice of the time, place ng || and date of the initial removal hearing. 8 C.F.R. § 1239.1(a); see also 8 C.F.R. §§ 1003.14, 1003.18(b) The immigration court is otherwise responsible for scheduling removal hearings. 8 C.F.R. § 1003.18(a).

1 |} United States “without further hearing or review unless [he or she] indicates either an 2 || intention to apply for asylum ... or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). 3 For individuals who indicate that asylum proceedings may be appropriate as set forth 4 || above, the expedited removal process provides additional steps prior to removal. An 5 || asylum officer conducts an interview to determine whether the individual has a “credible 6 || fear,” defined as “a significant possibility,” taking credibility into account, “that the 7 || individual could establish eligibility for asylum.” §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B)(), 8 || § 1225(b)(1)(B)(v). An individual is eligible for asylum under the INA when she is unable 9 || or unwilling to return to a country because of persecution or a well-founded fear of 10 || persecution based on race, religion, nationality, membership in a social group, or political 11 || opinion. See 8 U.S.C. §§ 1158(b)(1)(A);1101(a)(42)(A). After the interview, the asylum 12 || officer determines whether the individual has a credible fear as defined above. 13 If the asylum officer determines that the individual has a credible fear, he or she is 14 || detained and transferred to regular removal proceedings. The expedited removal statute 15 || requires an individual with a credible fear to be “detained for further consideration of the 16 || application for asylum.” § 1225(b)(1)(B)Gi)._ DHS refers such an individual to an 17 || immigration judge for regular removal proceedings under § 1229a, and an NTA is issued. 18 || See 8 C.F.R. § 208.30(f) (instructing DHS to issue a notice of referral to an immigration 19 || judge for regular removal proceedings). Once an NTA issues, regular removal 20 || proceedings begin and § 1229a governs the proceedings. See 8 C.F.R. § 208.2(c)(1)4{3) 21 || (after referral, immigration judge has exclusive jurisdiction over asylum application); 8 22 || C.F.R. § 208.2(c)(3) (thereafter “proceedings shall be conducted in accordance with the 23 || same rules of procedure as proceedings conducted under [§ 1229a]’”).? 24 25 26 || 27 2 At DHS’s discretion, individuals that meet the requirements for expedited removal under 9g || § 1225(b) may also be placed in regular removal proceedings rather than expedited removal. Order at 6; see also, e.g., Dkt. 171-5 at 23.

1 For individuals found not to have a “credible fear,” the expedited removal statute 2 || provides an opportunity for additional review of the asylum officer’s determination before 3 || removal. Such individuals can request review of the determination by an immigratior 4 || judge, which “shall be concluded as expeditiously as possible, to the maximum exten 5 || practicable within 24 hours, but in no case later than 7 days after the date of the [asylun 6 || officer’s credible fear] determination.” § □□□□□□□□□□□□□□□□□□□□□□ An individual in thi: 7 || category “shall be detained pending a final determination of credible fear of persecutior 8 |} and, if found not to have such a fear, until removed.” § □□□□□□□□□□□□□□□□□□□□□□□ 9 Judicial review of the expedited removal process set forth in § 1225(b) is very 10 || limited. Only the United States District Court for the District of Columbia has jurisdictior 11 review challenges to the expedited removal scheme under certain limited circumstances 12 |} §§ 1252(e)(1)H3). Furthermore, no court, not even the District of Columbia, can certify < 13 class challenging the implementation of the expedited removal scheme. See id. □ 14 II. DISCUSSION 15 ||A. The Court’s Prior Order 16 The Court’s prior order excluded “individuals subject to expedited removal under □ 17 U.S.C. § 1225(b)(1)” from the certified class on the grounds that it lacked jurisdiction tc 18 issue orders regarding these individuals under the provisions of the INA.° This prior □□□□□ 19 |/noted that § 1252(e)(3)(A) awards the District of Columbia sole jurisdiction ove 20 || challenges to the implementation of expedited removal procedures set forth in 8 U.S.C 21 1225(6). Order at 10. Because any challenge to the “implementation” of §1225(b)’: 22 expedited removal procedures would be jurisdictionally off-limits, the Court examined the 23 |jmeaning of the word “implement,” and considered whether Plaintiffs’ claim regarding 24 ||\“when to present a detained individual to an immigration judge” concerned the 25 ||“implementation” of § 1225(b). Jd. at 10-11. After noting that § 1225(b) generally 26 27 28 3 The prior order was issued by Judge Cynthia Bashant. On January 5, 2022, this action wa: transferred from Judge Bashant to this Court. ‘

1 ||mandates detention of individuals screened for expedited removal, the Court determined 2 || that Plaintiffs’ claims regarding presentment concerned the implementation of mandatory 3 || detention under § 1225(b), and thus could only be brought before the District of Columbia. 4 ||\Id. The Court, therefore, excluded from the certified class all individuals who had ever 5 || been screened as part of the § 1225(b) expedited removal process. 6 Upon reviewing the parties’ motions for clarification, the Court finds that the prior 7 || order did not specifically address whether the above reasoning should extend to the subset 8 || of individuals who were screened for expedited removal but were found to have a credible 9 || fear and subsequently transferred to regular removal proceedings. Because the parties now 10 || ask the Court to revisit its reasoning as applied to this subset previously excluded from the 11 |\certified class, the Court sua sponte construes the foregoing motions as motions to 12 ||reconsider under Federal Rule of Civil Procedure 60(b). See City of Los Angeles, Harbor 13 || Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (holding that district 14 |;court had discretion to reconsider its own order sua sponte); Officers for Justice v. Civil 15 ||Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615, 633 (9th Cir. 1982) (“before 16 entry of a final judgment on the merits, a district court’s order respecting class status is not 17 or irrevocable, but rather, it is inherently tentative”); Fed. R. Civ. P. 23(c)(1)(C) (a 18 ||court’s order granting or denying class certification may be altered or amended at any time 19 |! before final judgment). 20 || B. The Court’s Reconsideration 21 The crux of the issue before the Court is whether a challenge to the timing of 22 || presentment before an immigration judge concerns the “implementation” of § 1225(b) for 23 individuals detained under the expedited removal statute but transferred to regular removal 24 || proceedings to seek asylum. For this subset of individuals (“Asylum Plaintiffs”),* if the 25 ||timing of the initial hearing “implements” the requirements of § 1225(b), then this Court 26 27 28 4 “Asylum Plaintiffs,” as used in this order, includes individuals that are transferred from expedited removal to regular removal proceedings at DHS’s discretion.

1 j|does not have jurisdiction under § 1252(e)(3). 8 U.S.C. § 1252(e)(3) (challenges to the 2 |{implementation of the expedited removal statute may only be reviewed by the District o: 3 ||Columbia). If, however, the timing of the initial hearing does not “implement” ths 4 |jrequirements of § 1225(b), then this Court does have jurisdiction such that Asylur 5 |; Plaintiffs may be included in the class certified for declaratory relief by the Court’s prio: 6 ||order. As with the Court’s prior order, therefore, the Court’s analysis begins with ar 7 ||examination of what it means to implement the expedited removal statute, § 1225(b). 8 A plaintiff's claim concerns the implementation of the expedited removal statute 1: 9 directly challenges the statute itself, or if it challenges a policy intended to carry ou 10 ||expedited removal. In its prior order, the Court defined implement as “carry out 11 ||/accomplish” or “provide instruments ... for.” Order at 10; see also Bryan A. Garner, / 12 || Dictionary of Modern Legal Usage 422 (2d ed. 2001) (explaining that the verb “tc 13 ||implement” ordinarily means “to carry out”). Courts applying this definition have 14 |/concluded that direct challenges to the expedited removal statute—including ar 15 |/individual’s initial placement in removal proceedings, the expedited removal proceeding: 16 ||themselves, and final removal orders—concern implementation of the expedited remova. 17 || statute. United States v. Barajas-Alvarado, 655 F.3d 1077, 1086 n.10 (9th Cir. 2011) (cour 18 ||/lacked jurisdiction to review “general attacks on the expedited removal process”) 19 || Shunaula v. Holder, 732 F.3d 143, 146 (2d Cir. 2013) (court lacked jurisdiction to reviev 20 ||challenge to the “way [plaintiff's expedited] removal was carried out”). In addition 21 ||challenges that do not explicitly challenge expedited removal but challenge a policy tha 22 || carries it out also concern implementation of the expedited removal statute. See Grace v. 23 || Barr, 965 F.3d 883, 892 (D.C. Cir. 2020). In making this determination, courts have lookec 24 ||to the overarching purpose of the challenged policy and its nexus to the process □□ 25 ||expedited removal. For example, in Kiakombua v. Wolf, the District of Columbia founc 26 || that a “Lesson Plan” implemented the credible fear section of § 1225(b) where the policy 27 || was intended to guide asylum officers in how to make credible fear determinations fo1 28 individuals subject to expedited removal. 498 F. Supp. 3d 1, 34-35 (D.D.C. 2020); Las

1 || Americas Immigrant Advocacy Ctr. v. Wolf, 507 F. Supp. 3d 1, 20-21 (D.D.C. 2020) 2 ||(similar). On the other hand, courts have found that challenges to “other circumstances 3 ||incidental to removal,” such as a challenge to a separate provision of the INA that does not 4 ||“callf{] into question the legality of the expedited removal process itself,” do not implicate 5 ||the implementation of expedited removal. Al Otro Lado, Inc. v. McAleenan, 423 F. Supp. 6 848, 867 (S.D. Cal. 2019), order clarified sub nom. Al Otro Lado v. Wolf, 497 F. Supp. 7 13d 914 (S.D. Cal. 2020) (holding that a challenge to asylum eligibility requirements 8 ||implemented 8 U.S.C. §1158, not expedited removal). The Court applies these principles 9 lito the matter at hand to determine whether Plaintiffs’ challenge concerns the 10 || implementation of expedited removal. 11 Mandatory detention is the only requirement that the expedited removal statute 12 ||continues to impose on Asylum Plaintiffs after they are transferred to regular removal 13 proceedings. The expedited removal statute requires that individuals found to have a 14 |icredible fear “be detained for further consideration of the application for asylum.” 15 |] § 1225(b)(1)(B)(ii). While the expedited removal statute makes detention mandatory for 16 ||individuals who were screened for expedited removal and subsequently placed in regular 17 ||removal proceedings, the statute specifies no other requirements governing how or where 18 |/detention is implemented. Indeed, a separate statute, § 1231, governs “the appropriate 19 places for detention” for all individuals awaiting a removal decision. Neither does 20 || § 1225(b) impose any requirements regarding the steps or the timing of regular removal 21 || proceedings: those are governed entirely by § 1229 and § 1229a. 22 Asylum Plaintiffs’ claim concerning the timing of the initial hearing in regular 23 ||removal proceedings does not challenge, nor even incidentally implicate, their detention— 24 sole requirement that the expedited removal scheme continues to impose on them after 25 ||transfer to regular removal proceedings. Plaintiffs’ claim does not attack § 1225(b)’s 26 mandatory detention requirement; thus, this case poses no direct challenge to the statute’s 27 ||implementation. See 8 U.S.C. § 1225(b); Barajas-Alvarado, 655 F.3d at 1086 n.10; 28 192. Neither do Asylum Plaintiffs challenge a policy that carries out expedited

1 |}removal—the initial hearing in regular removal proceedings is a circumstance attendant tc 2 ||regular removal, not expedited removal. See 8 U.S.C. § 1229a; Dkt. 192. Furthermore 3 ||the timing of presentment before an immigration judge can hardly be deemed ever 4 incidental to detention.> The time at which Asylum Plaintiffs first see an immigration judge 5 regular removal proceedings does not affect their detention status in any way. Asylum 6 Plaintiffs remain detained pending “further consideration of the application of asylum.’ 7 1225(b)(1)(B)Gi). This remains the prescribed term of detention whether Asylur 8 Plaintiffs receive an initial hearing in regular removal proceedings within 48 hours or 4( 9 ||days. Because the initial hearing in regular removal proceedings does not “implement” o1 10 ||““carry out” the expedited removal statute, the Court has jurisdiction to hear a challenge tc 11 |/its timing. Accordingly, the Court may certify a class that includes individuals screenec 12 || for expedited removal and transferred to regular removal proceedings. 13 The language in the expedited removal statute regarding the process available tc 14 individuals in expedited removal determined not to have a credible fear confirms the 15 Court’s conclusion that the timing of a hearing in regular removal proceedings does no 16 ||implement expedited removal. Principles of statutory interpretation require the Court tc 17 || look to the plain language of the statute. Caminetti v. United States, 242 U.S. 470, 485 18 ||(1917). Moreover, “[w]here Congress includes particular language in one section of < 19 |/statute but omits it in another section of the same Act, it is generally presumed tha 20 || Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Duncar 21 || v. Walker, 533 U.S. 167, 173 (2001) (citation omitted). Here, the statute expressly provide: 22 individuals found not to have a credible fear are afforded specific proceedings tha 23 ||must occur within a specific time frame. § 1225(b)(1)(B)(iii)(IID (review requested fror 24 immigration judge to be concluded within 7 days). Conversely, the expedited remova 25 26 || 27 5 Challenges to “other circumstances incidental to removal,” do not “call[] into question the 2g legality of the expedited removal process itself,” and thus do not implicate the implementation o: expedited removal. A/ Otro Lado, 423 F. Supp. 3d at 867.

1 || statute does not specify any proceedings available to individuals found to have a credible 2 || fear, and other provisions clarify that proceedings thereafter are governed by § 1229a. See 3 C.E.R. §§ 208.2(c)(1), 208.2(c)(3), 208.30(f); see also 8 U.S.C. §§ 1225(b), 1229(a). 4 Congress intended that the expedited removal statute continue to govern proceedings 5 || after an individual has been found to have a credible fear and transferred to regular removal 6 proceedings, it presumably would have done so expressly as it did for individuals 7 ||determined to be without a credible fear. Thus, the absence of any similar language 8 ||regarding individuals transferred to regular removal proceedings confirms that § 1225(b) 9 || does not implement such proceedings. 10 Il. CONCLUSION AND ORDER 11 For the reasons set out above, the Court GRANTS IN PART Plaintiffs’ motion for 12 reconsideration [Dkt. 192] and DENIES Defendants’ motion for reconsideration [Dkt. 191] 13 |jas follows. The Court determines it has jurisdiction to include Asylum Plaintiffs in the 14 ||\class and orders the parties to meet and confer regarding revising the class definition o1 15 || defining a subclass for certification accordingly. The parties are to file their stipulation by 16 || August 31, 2022. If the parties are unable to reach an agreement, Plaintiffs shall file theiz 17 || proposed subclass along with briefing by September 28, 2022, and obtain a hearing date 18 || on the motion from the Court in accordance with the local rules. Defendants shall submit 19 opposition by October 12, 2022. Plaintiffs may submit a reply by October 19, 2022. 20 IT IS SO ORDERED. (9 21 || Dated: | 2 ) | 2 □□ SB 22 Hite Judge 23 24 25 . 26 27 28