1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CRISTIAN DOE, DIANA DOE, Case No.: 19-cv-2119-DMS (AGS)
12 Petitioners-Plaintiffs, ORDER GRANTING MOTION FOR 13 v. CLASS CERTIFICATION 14 CHAD F. WOLF, Acting Secretary of Homeland Security; et al., 15 Respondents-Defendants. 16 17 18 Pending before the Court is Petitioners’ motion for class certification. Petitioners, 19 on behalf of themselves and putative class members, allege Respondents have a practice or 20 policy of prohibiting asylum seekers access to retained counsel prior to and during non- 21 refoulement interviews. Petitioners seek to certify a class of similarly situated individuals 22 for whom injunctive relief can be entered allowing for such access to retained counsel. 23 On November 12, 2019, the Court granted Petitioners’ motion for temporary 24 restraining order (“TRO”) and ordered Respondents to allow Petitioners access to their 25 retained counsel prior to and during their non-refoulement interviews. Doe v. McAleenan, 26 --- F. Supp. 3d ---, 2019 WL 6605880, at *5 (S.D. Cal. Nov. 12, 2019). Since the issuance 27 of that Order, the parties have fully briefed the issue of class certification, and the Court 28 1 has heard the arguments of counsel. For the reasons set forth below, the Court grants 2 Petitioners’ motion for class certification. 3 I. 4 DISCUSSION1 5 Petitioners Cristian and Diana Doe and their five children fled their home country of 6 Guatemala in April of 2019. (Mot. for TRO at 14). While traveling through Mexico, 7 Petitioners and their children were threatened at gun point, assaulted, robbed, and stripped 8 of their clothing. (Id.). Upon reaching the United States, Petitioners immediately requested 9 asylum. (Id.). 10 Pursuant to the Migrant Protection Protocols Program (“MPP” or “Remain in 11 Mexico”), a program instituted in January of 2019, Respondents returned Petitioners to 12 Mexico to await their immigration proceedings. (Id.). While in Tijuana, the family 13 survived a shoot-out that occurred outside their temporary shelter. (Id. at 15). Because of 14 this violence and the trauma Petitioners experienced while traveling through Mexico, 15 Petitioners expressed a fear of returning to Mexico during an immigration court 16 proceeding. (Id. at 19). Petitioners were given a non-refoulement interview—which 17 assesses whether there is a likelihood the asylum seeker will face persecution or torture 18 upon return to Mexico—by a United States Citizenship and Immigration Services 19 (“USCIS”) Asylum Officer. (Resp. in Opp’n to Prelim. Inj., Declaration of Ashley Caudill- 20 Mirillo (“Caudill-Mirillo Decl.”), at ¶ 5). Petitioners did not pass the non-refoulement 21 interview. (Id.). Petitioners expressed a fear of returning to Mexico again at a later 22 immigration court hearing. (Id.). Pursuant to Respondents’ policy, Petitioners were denied 23 24 25 26 1 The factual background set out herein is abbreviated. A full discussion of the facts 27 relevant to this lawsuit is set out in the Order granting Petitioners’ motion for a classwide preliminary injunction filed concurrently herewith and Order granting Petitioners’ motion 28 1 access to their retained counsel prior to and during their non-refoulement interview. (Mot. 2 for Class Certification at 14). 3 Petitioners filed suit against Respondents, alleging their policy violated the 4 Administrative Procedures Act (“APA”), the Immigration and Nationality Act (“INA”), 5 and the First and Fifth Amendments to the United States Constitution. (Class Action 6 Compl. and Petition for Writ of Habeas Corpus, ECF No. 1). Petitioners also filed motions 7 for TRO and class certification. The Court granted Petitioners’ motion for TRO, enjoining 8 Respondents from prohibiting Petitioners access to retained counsel prior to and during 9 their non-refoulement interview. Doe, 2019 WL 6605880, at *1. With counsel present, 10 Petitioners ultimately passed their second non-refoulement interview. (Caudill-Mirillo 11 Decl. ¶ 5). Petitioners are still awaiting the outcome of their asylum case but are no longer 12 within the MPP. (Rep. in Supp. of Prelim. Inj., Declaration of Stephanie Blumberg 13 (“Blumberg Decl.”), at ¶ 9). 14 Petitioners, on behalf of themselves and putative class members, request certification 15 of the following class: 16 All individuals who are detained in CBP custody in California awaiting or 17 undergoing non-refoulement interviews pursuant to what the government calls the “Migrant Protection Protocols” program and who have retained 18 lawyers. 19 20 (Mot. for Class Certification at 2). Petitioners argue this proposed class meets the 21 requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2). Defendants argue 22 these requirements are not met, Petitioners lack standing, and the class certification motion 23 is moot. (Resp. in Opp’n to Class Certification at 6). The only claim currently at issue and 24 subject to class certification is Petitioners’ APA claim.2 Petitioners’ pending motion for 25 classwide preliminary injunction is addressed in a separate order. 26 27 2 As noted in the Order granting Petitioners’ motion for classwide preliminary injunction, 28 1 2 A. Legal Standard 3 “The class action is ‘an exception to the usual rule that litigation is conducted by and 4 on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 5 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). To qualify 6 for the exception to individual litigation, the party seeking class certification must provide 7 facts sufficient to satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b). 8 Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308–09 (9th Cir. 1977). “The Rule ‘does 9 not set forth a mere pleading standard.’ ” Comcast Corp. v. Behrend, 569 U.S. 27, 33 10 (2013) (quoting Dukes, 564 U.S. at 350). “Rather, a party must not only ‘be prepared to 11 prove that there are in fact sufficiently numerous parties, common questions of law or fact,’ 12 typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a). 13 The party must also satisfy through evidentiary proof at least one of the provisions of Rule 14 23(b)[.]” Id. (quoting Dukes, 564 U.S. at 350) (internal citation omitted). 15 Federal Rule of Civil Procedure 23(a) sets out four requirements for class 16 certification—numerosity, commonality, typicality, and adequacy of representation. A 17 showing that these requirements are met, however, does not warrant class certification. The 18 plaintiff also must show that one of the requirements of Rule 23(b) is met. 19 Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or 20 refused to act on grounds that apply generally to the class, so that final injunctive relief or 21 corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. 22 Civ. P. 23(b)(2). Because the relief requested in a Rule 23(b)(2) class is prophylactic, 23 inures to the benefit of each class member, and is based on accused conduct that applies 24 uniformly to the class, notice to absent class members and an opportunity to opt out of the 25 class are not required. See Dukes, 564 U.S. at 361–62 (noting relief sought in a Rule 26 27 under the INA and the First and Fifth Amendments to the United States Constitution in 28 1 23(b)(2) class “perforce affect[s] the entire class at once” and thus, the class is “mandatory” 2 with no opportunity to opt out). 3 The district court must conduct a rigorous analysis to determine whether the 4 prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). 5 It is a well-recognized precept that “the class determination generally involves 6 considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s 7 cause of action.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting 8 Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)). However, “[a]lthough 9 some inquiry into the substance of a case may be necessary to ascertain satisfaction of the 10 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision 11 on the merits at the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 12 475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. U.S. Steel Corp., 709 F.2d 13 675, 680 (11th Cir. 1983) (plaintiff’s burden “entails more than the simple assertion of 14 [commonality and typicality] but less than a prima facie showing of liability”) (citation 15 omitted). Rather, a court’s review of the merits should be limited to those aspects relevant 16 to making the certification decision on an informed basis. See Fed. R. Civ. P. 23 advisory 17 committee’s notes. If a court is not fully satisfied that the requirements of Rule 23(a) and 18 (b) have been met, certification should be refused. Falcon, 457 U.S. at 161. 19 Before turning to the requirements of Rule 23(a), the Court addresses Respondents’ 20 arguments that Petitioners lack standing, and that Petitioners’ claim is moot. 21 B. Article III Standing 22 Standing is decided as of the “outset of the litigation.” Friends of the Earth, Inc. v. 23 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Thus, in determining whether 24 Petitioners have standing, the Court “must look at the facts as they exist at the time the 25 complaint was filed.” Slayman v. FedEx Ground Package Sys., Inc., 765 F.3d 1033,1047 26 (9th Cir. 2014) (internal quotation omitted). In a class action, like here, standing is satisfied 27 “if at least one named plaintiff meets the requirements.” Bates v. United Parcel Serv., 511 28 F.3d 974, 985 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 1 2001)). Standing requires Petitioners to show (1) they have suffered injury-in-fact—“an 2 invasion of a legally protected interest which is (a) concrete and particularized, and (b) 3 actual or imminent, not conjectural or hypothetical,” (2) a causal connection between the 4 injury and the conduct complained of, and (3) redressability. Lujan v. Defenders of 5 Wildlife, 504 U.S. 555, 561 (1992). 6 Respondents contend Petitioners lack standing because Petitioners are no longer at 7 risk of being returned to Mexico under the MPP. (Resp. in Opp’n to Class Certification at 8 12–13). Petitioners argue Respondents’ argument confuses two separate doctrines: 9 standing and mootness. (Rep. in Supp. of Class Certification at 3). 10 The doctrine of standing addresses whether the party invoking federal court 11 jurisdiction has “[t]he requisite personal interest” in the outcome of the case “at the 12 commencement of the litigation.” Blair v. Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994) 13 (internal quotations omitted). The doctrine of mootness addresses whether the party’s 14 personal interests “continue[s] throughout [the litigation’s] existence.” Id. (internal 15 quotations omitted). In other words, “mootness [is] ‘the doctrine of standing set in a time 16 frame.’ ” Id. at 1518–19 (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 17 (1980)). 18 As applied here, standing asks whether Petitioners had a personal stake in the 19 outcome of the litigation at the time they filed their Complaint. Clearly, Petitioners have 20 standing: Petitioners suffered the injury of being deprived access to retained counsel prior 21 to and during their non-refoulement interview, the injury was caused by Respondents’ 22 policy prohibiting access to counsel, and the injury can be redressed by an injunction 23 enjoining Respondents from implementing their policy. See Lujan, 504 U.S. at 561. The 24 fact that Petitioners are no longer in the MPP does not change this analysis. 25 Petitioners need not demonstrate a “real or immediate threat that [Respondents] will 26 again subject [them] to [the MPP].” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 27 1264 (9th Cir. 1999) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105–10 (1983)). 28 Cases like B.C. and Lyons are not applicable to Petitioners’ case, for those cases concern 1 plaintiffs who were not being subjected to the challenged policies at the time they filed 2 their complaint. In B.C., the plaintiff was a student challenging the school’s practice of 3 using dogs to sniff for drugs on the school campus. Id. at 1263. The plaintiff sought 4 injunctive relief, and the court dismissed his claim for lack of standing, noting he could not 5 “demonstrate a real or immediate threat that defendants will again subject him to an illegal 6 dog sniff of his person.” Id. at 1264. Similarly, in Lyons, the plaintiff sought injunctive 7 relief to enjoin Los Angeles police from illegally using chokeholds, and the Supreme Court 8 held the plaintiff lacked standing because he could not show he was “likely to suffer future 9 injury from the use of the chokeholds by police officers.” Lyons, 461 U.S. at 97–98, 105. 10 Unlike the plaintiffs in B.C. and Lyons, Petitioners sought injunctive relief while 11 being subjected to the practice they were challenging. Petitioners were not challenging 12 “[p]ast exposure to illegal conduct.” (Resp. in Opp’n to Class Certification at 13). 13 Petitioners’ injury—deprivation of the right to retained counsel—was concrete, actual, and 14 continuing at the time they filed their Complaint and moved for TRO. It was neither 15 speculative nor hypothetical. Petitioners, therefore, do not need to show a real or 16 immediate threat that they will again be subjected to the MPP and deprived of access to 17 retained counsel. Holding otherwise would drastically change the doctrine of standing. 18 C. Mootness 19 The doctrine of mootness, as explained above, requires that “an actual, ongoing 20 controversy exist at all stages of federal court proceedings.” Pitts v. Terrible Herbst, 653 21 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v. Barnes, 479 U.S. 361, 363 (1987)). 22 “Whether ‘the dispute between the parties was very much alive when suit was filed . . . 23 cannot substitute for the actual case or controversy that an exercise of this [c]ourt’s 24 jurisdiction requires.’ ” Id. (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). A case is 25 moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable 26 interest in the outcome” of the litigation. Powell v. McCormack, 395 U.S. 486, 496 (1969). 27 In a class action, however, the class claim “is not automatically moot because the named 28 representative’s claim is moot.” Kuahulu v. Empl’rs Ins. of Wausau, 557 F.3d 1334, 1336 1 (9th Cir. 1977) (citing Franks v. Bowman Transp. Co., 424 U.S. 747, 754 (1976)). “If the 2 district court certifies a class before the plaintiff’s claim becomes moot, ‘mooting the 3 putative class representative’s claim will not moot the class action.’ ” Slayman, 765 F.3d 4 at 1048 (quoting Pitts, 653 F.3d at 1090). 5 There is an exception to this rule for claims that “are so inherently transitory that the 6 trial court will not have even enough time to rule on a motion for class certification before 7 the proposed representative’s individual interest expires.” Pitts, 653 at F.3d at 1090. 8 Inherently transitory claims “will certainly repeat as to the class, either because ‘the 9 individual could nonetheless suffer repeated [harm]’ or because ‘it is certain that other 10 persons similarly situated’ will have the same complaint.” Id. (quoting Gerstein v. Pugh, 11 520 U.S. 103, 110 n.11 (1975)). “Such claims are ‘capable of repetition, yet evading 12 review,’ and thus do not become moot.” Slayman, 653 F.3d at 1048 (quoting Pitts, 653 13 F.3d at 1090). In these cases, the district court may apply the ‘relation back’ approach and 14 certify the class even after the named plaintiff’s claim becomes moot. Pitts, 653 F.3d at 15 1090; see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991) (holding that 16 even though “the class was not certified until after the named plaintiffs’ claims had become 17 moot,” the district court still had jurisdiction because the class claim was inherently 18 transitory); Sosna v. Iowa, 419 U.S. 393, 401 (1975) (holding that the controversy “remains 19 very much alive for the class of persons [the named plaintiff] has been certified to 20 represent” even if it was “no longer alive as to” the named plaintiff); Wade v. Kirkland, 21 118 F.3d 667, 670 (9th Cir. 1997) (noting that if the named plaintiff’s claim is inherently 22 transitory, then “the action qualifies for an exception to mootness even if there is no 23 indication that [the named plaintiff] or other current class members may again be subject 24 to the acts that gave rise to the claims”) (emphasis in original). 25 Petitioners contend their claim is inherently transitory because they were short-term 26 detainees whose claim expired quickly. (Rep. in Supp. of Class Certification at 4). 27 Respondents argue Petitioners’ claim does not qualify as inherently transitory because (1) 28 that exception is limited to cases in which there is a reasonable expectation that the plaintiff 1 will be subjected to the same action again, (2) the Court had enough time to rule on 2 Petitioners’ motion for TRO, (3) Respondents do not have a litigation strategy in mooting 3 class members’ claims, and (4) Petitioners are not members of the class they are seeking 4 to certify. (Resp. in Opp’n to Class Certification at 14–16). These arguments are addressed 5 in turn. 6 First, Respondents argue the inherently transitory exception applies only if the 7 plaintiff will “be subjected to same action again.” Alvarez v. Hill, 667 F.3d 1061, 1064 8 (9th Cir. 2012) (holding that the individual plaintiff’s claim was not inherently transitory 9 because there was “no indication [he would] again be subject to the challenged prison 10 policies”) (emphasis added). Respondents are incorrect. In cases concerning class actions, 11 the named plaintiff need not be subjected to the same action again for the claim to be 12 inherently transitory. See Geraghty, 445 U.S. at 399 (noting that in Gerstein, there was 13 “no indication that the particular named plaintiffs might again be subject to pretrial 14 detention[,]” yet the Court held the case “not to be moot” because the claim was inherently 15 transitory); Gomez v. Campbell-Ewald Co., 805 F. Supp. 2d 923, 927–28 (C.D. Cal. 2011) 16 (noting the requirements of the inherently transitory exception for class claims include: 17 “(1) where the claim is ‘capable of repetition yet evading review’; and (2) where the claim 18 is so ‘inherently transitory’ that the trial court will not have enough time to rule on a motion 19 for class certification before the proposed named plaintiff's individual interest expires”). 20 The Court finds no controlling case law requiring it to first conclude Petitioners may be 21 subjected to the MPP and deprived of access to retained counsel again before it finds 22 Petitioners’ claim to be inherently transitory. 23 Next, Respondents contend the fact the Court ruled on Petitioners’ motion for TRO 24 undercuts Petitioners’ argument that their claim evades judicial review. Respondents 25 misconstrue the nature of inherently transitory claims. “The ‘inherently transitory’ 26 rationale was developed to address circumstances in which the challenged conduct was 27 effectively unreviewable, because no plaintiff possessed a personal stake in the suit long 28 enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 1 66, 76 (2013). Requiring an inherently transitory claim to expire before a court rules on a 2 TRO is too high of a standard and runs counter to long-standing case law. See McLaughlin, 3 500 U.S. at 52 (“Some claims are so inherently transitory that the trial court will not have 4 even enough time to rule on a motion for class certification before the proposed 5 representative's individual interest expires.”); Geraghty, 445 U.S. at 399 (same); Pitts, 653 6 F.3d at 1090 (same); Gomez, 805 F. Supp. at 927–28 (same). 7 Similarly, Respondents’ third argument—it is not their litigation strategy to moot 8 putative class members’ claims—also misapprehends the inherently transitory exception 9 to mootness. The defense does not need to have a litigation strategy of mooting class 10 members’ claims for the inherently transitory exception to apply. Although the inherently 11 transitory exception may apply when the defense is picking off class members, it by no 12 means is restricted to such fact patterns. See Pitts, 653 F.3d at 1091 (“Where, as here, a 13 defendant seeks to “buy off” the small individual claims of the named plaintiffs, the 14 analogous claims of the class—though not inherently transitory—become no less transitory 15 than inherently transitory claims.”). 16 Finally, Respondents argue that because Petitioners are no longer subjected to the 17 MPP and deprived of counsel, they are not class members and the class action cannot 18 proceed. As explained above, the inherently transitory doctrine is an exception to the 19 mootness doctrine—it only applies when a named plaintiff’s claim expires before a class 20 is certified. See Pitts, 653 F.3d at 1090. If Respondents’ argument was correct, then there 21 would be no set of a facts in which the exception could apply. 22 Contrary to Respondents’ arguments, Petitioners’ claim is inherently transitory. 23 Upon expressing a fear of returning to Mexico, Petitioners were placed in short-term 24 detention. (Mot. for TRO at 18). They sought an emergency TRO because they feared 25 their non-refoulement interview was “imminent.” (Id. at 11, 12). Petitioners’ fear was 26 correct—their non-refoulement interview was scheduled two days after the Court ruled on 27 the TRO. (Caudill-Mirillo Decl. at ¶ 5). It is clear the Court would not have had “enough 28 1 time to rule on a motion for class certification before [Petitioners’] individual interest[s] 2 expire[d].” McLaughlin, 500 U.S. at 52. 3 D. Federal Rule of Civil Procedure 23(a) 4 Rule 23(a) and its prerequisites for class certification—numerosity, commonality, 5 typicality, and adequacy of representation—are addressed in turn. 6 1. Numerosity 7 Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is 8 impracticable.” Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 9 2003). Petitioners need not state the exact number of potential class members; nor is a 10 specific minimum number required. Arnold v. United Artists Theatre Circuit, Inc., 158 11 F.R.D. 439, 448 (N.D. Cal. 1994). Rather, whether joinder is impracticable depends on 12 the facts and circumstances of each case. Id. 13 Petitioners assert that, from January to September of 2019, at least 380 individuals, 14 represented by retained counsel, were within the MPP and had cases before the San Diego 15 Immigration Court. (Mot. for Class Certification, Declaration of Monica Langarica 16 (“Langarica Decl.”), at ¶ 8). Of these 380 individuals, it is unknown how many had non- 17 refoulement interviews and were deprived of access to their retained counsel. Petitioners 18 do, however, provide declarations of attorneys who were unable to communicate with their 19 clients prior to and during the clients’ non-refoulement interviews. (Id., Declaration of 20 Leah L. Chavarria (“Chavarria Decl.”), at ¶¶ 13, 15–18; Declaration of Vanessa Dojaquez- 21 Torres (“Dojaquez-Torres Decl.”), at ¶ 26; Declaration of Margaret Cargioli (“Cargioli 22 Decl.”), at ¶ 4; Declaration of Siobhan M. Waldron (“Waldron Decl.”), at ¶¶ 8–10; 23 Declaration of Lisa Knox (“Knox Declaration”), at ¶¶ 4, 9). From this information, counsel 24 for Petitioners approximated the class size at 46 people. (Rep. Tr. (Draft) at 47, Dec. 20, 25 2019). Therefore, Petitioners provide an adequate approximation that class members are 26 sufficiently numerous and demonstrate joinder of all members would be significantly 27 difficult and impracticable. Fed. R. Civ. P. 23(a)(1); see also Rivera v. Holder, 307 F.R.D. 28 539, 550 (W.D. Wash. 2015) (holding a class of 40 aliens was sufficiently numerous, 1 “especially given the transient nature of the class and the inclusion of future class 2 members”); Nat’l Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 3 1986) (“[W]here the class includes unnamed, unknown future members, joinder of such 4 unknown individuals is impracticable and the numerosity requirement is therefore met, 5 regardless of class size.”) (internal quotations omitted); Orantes-Hernandez v. Smith, 541 6 F. Supp. 351, 370 (C.D. Cal. 1982) (“Where the exact size of the class is unknown but 7 general knowledge and common sense indicate that it is large, the numerosity requirement 8 is satisfied.”). Accordingly, Petitioners satisfy the numerosity requirement. 9 2. Commonality 10 The second element of Rule 23(a) requires the existence of “questions of law or fact 11 common to the class[.]” Fed. R. Civ. P. 23(a)(2). This element has “ ‘been construed 12 permissively,’ and ‘[a]ll questions of fact and law need not be common to satisfy the rule.’ ” 13 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v. 14 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “However, it is insufficient to 15 merely allege any common question[.]” Id. Instead, Petitioners must allege the existence 16 of a “common contention” that is of “such a nature that it is capable of classwide 17 resolution[.]” Dukes, 564 U.S. at 350. As summarized by the Supreme Court: 18 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 19 answers apt to drive the resolution of the litigation. Dissimilarities within the 20 proposed class are what have the potential to impede the generation of commons 21 answers. 22 Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 23 N.Y.U. L. Rev. 97, 132 (2009)). 24 Petitioners argue commonality is satisfied because “they challenge a single [p]olicy 25 applied equally to all individuals in the non-refoulement process in California.” (Mot. for 26 Class Certification at 20). The Court agrees. First, the class is asserting the same legal 27 claim, namely whether Respondents’ practice of prohibiting putative class members access 28 to retained counsel prior to and during non-refoulement interviews violates the APA. 1 Second, the facts underlying the putative class members’ claims are the same: each 2 individual class member came to the United States to seek asylum, was placed in the MPP, 3 expressed a fear of returning to Mexico, retained an attorney, and was refused access to 4 that attorney prior to and during his or her non-refoulement interview. (Id.). Third, putative 5 class members suffered the same legal injury: they were deprived of access to their retained 6 counsel. Fourth, class members are challenging the same Government policy of refusing 7 asylum seekers access to retained counsel prior to and during non-refoulement interviews. 8 Finally, class members are seeking the same relief: a declaration that Respondents’ conduct 9 is unlawful and an injunction requiring Respondents to allow asylum seekers access to their 10 retained counsel prior to and during non-refoulement interviews. Given the number of 11 common questions of law and fact, Petitioners satisfy the commonality requirement. See 12 Ms. L. v. U.S. Immigration & Customs Enf’t, 3331 F.R.D. 529, 538 (S.D. Cal. 2018) 13 (“[C]ommonality only requires a single significant question of law or fact[,] . . . and that is 14 particularly so where a suit challenges a system-wide practice or policy that affects all of 15 the putative class members.”) (internal quotations omitted). 16 Respondents contend Petitioners’ class flunks the commonality requirement because 17 the class includes individuals detained “as part of the primary or secondary inspection.”3 18 As the Court noted in the Order granting preliminary injunction, Respondents provide no 19 evidence that a non-refoulement interview has ever occurred during primary or secondary 20 inspection. (Order Granting Prelim. Inj. at 12). In comparison to primary and secondary 21 inspection, non-refoulement interviews are conducted in separate areas, at different times, 22 by officers of a different agency. (Resp. in Opp’n to TRO, Ex. 4 at 15 (“[T]he USCIS 23 officer should conduct the MPP Assessment interview in a non-adversarial manner, 24 25 26 3 As noted above, the Court declines to address the balance of Petitioners’ statutory and 27 constitutional claims under the INA and the First and Fifth Amendments to the United States Constitution. The Court, therefore, will not address Respondents’ arguments 28 1 separate and apart from the general public.”); Mot. for TRO, Declaration of Cristian Doe 2 (“Cristian Doe Decl.”), at ¶ 17 (“After the court hearing we were returned to the [POE] 3 before being transferred to another nearby cold holding cell. We were there for two or three 4 days . . . .”)). Furthermore, according to the MPP Guiding Principles: 5 If an alien who is potentially amenable to MPP affirmatively states that he 6 or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico, whether before or after they are processed for MPP or other 7 disposition, that alien will be referred to a USCIS asylum officer for 8 screening . . . . 9 (Resp. in Opp’n to TRO, Ex. 5 at 18–19 (emphasis added)). Regardless of when they 10 express a fear of returning to Mexico, asylum seekers are “referred to a USCISM asylum 11 officer for screening.” (Id. at 19 (“Aliens who return to the POE for their scheduled hearing 12 and affirmatively state a fear of return to Mexico will be referred to USCIS for screening 13 prior to any return to Mexico.”)). Given this information, it is clear that the time in which 14 an asylum seeker expresses a fear of returning to Mexico does not affect the procedure of 15 non-refoulement interviews. 16 3. Typicality 17 The next requirement of Rule 23(a) is typicality, which focuses on the relationship 18 of facts and issues between the class and its representatives. “[R]epresentative claims are 19 ‘typical’ if they are reasonably co-extensive with those of absent class members; they need 20 not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether 21 other members have the same or similar injury, whether the action is based on conduct 22 which is not unique to the named plaintiffs, and whether other class members have been 23 injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 24 (9th Cir. 1992) (citation and internal quotation marks omitted). The typicality requirement 25 will occasionally merge with the commonality requirement, Parsons v. Ryan, 754 F.3d 26 657, 687 (9th Cir. 2014), because “[b]oth serve as guideposts for determining whether 27 under the particular circumstances maintenance of a class action is economical and whether 28 1 the named plaintiff’s claim and the class claims are so interrelated that the interests of the 2 class members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. 3 at 349 n.5. 4 Petitioners primarily rely on the arguments raised on commonality to support a 5 showing of typicality, while also emphasizing that the putative class representatives, 6 Cristian and Diana Doe, fit the pattern of the putative class members’ experiences. (Mot. 7 for Class Certification at 23). Respondents argue typicality is not satisfied because (1) 8 Petitioners’ claim is not typical of the class because the proposed class includes asylum 9 seekers who were not paroled into the United States for an immigration court hearing, as 10 well as asylum seekers who articulate a fear of returning to Mexico “later in the removal 11 proceeding process,” and (2) Petitioners’ claim is moot. 12 First, Respondents’ argument that the putative class includes both individuals who 13 have not attended an immigration court hearing and individuals who articulate a fear of 14 returning to Mexico later in removal proceedings distorts the non-refoulement interview 15 process. As the Court addressed in reference to the commonality requirement, when and 16 where an asylum seeker expresses a fear of returning to Mexico does not change the non- 17 refoulement procedure—the asylum seeker is always “referred to a USCIS asylum officer 18 for screening” upon an expression of fear of returning to Mexico. (Resp. in Opp’n to TRO, 19 Ex. 5 at 18–19). The issue of whether some class members have been “paroled into the 20 United States” for an immigration court hearing and some have not is a distinction without 21 a discernable or material difference in the context of typicality. (Resp. in Opp’n to Class 22 Certification at 21 (quoting Mot. for TRO at 23)). All putative class members’ claims— 23 that the Respondents’ policy of prohibiting access to retained counsel prior to and during 24 non-refoulement interviews violates the APA—are the same. 25 Second, Respondents argue Petitioners do not satisfy typicality because Petitioners’ 26 claim is moot. Given that Petitioners’ claim is inherently transitory, Respondents’ 27 argument is misplaced. In determining whether Petitioners’ claim is typical of a putative 28 class member’s claim, the Court invokes the relation back doctrine and asks whether 1 typicality was satisfied as of the filing of the complaint. See Pitts, 653 F.3d at 1092 2 (holding that certification of inherently transitory claims “relates back to the filing of the 3 complaint”); see also Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration 4 Servs., 325 F.R.D. 671, 696 (W.D. Wash. 2016) (considering whether typicality was met 5 “as of the filing of the complaint” for an inherently transitory class claim); Rivera, 307 6 F.R.D. at 550 (W.D. Wash. 2015) (holding typicality was “easily satisfied” in a class action 7 with an inherently transitory claim); Lyon v. U.S. Immigration & Customs Enf’t, 300 F.R.D. 8 628, 640 (N.D. Cal. 2014) (same). As stated above, Petitioners’ claim was typical of the 9 class as of the filing of the Complaint. 10 4. Adequacy of Representation 11 The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) requires a showing 12 that “the representative parties will fairly and adequately protect the interests of the class.” 13 Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process 14 concerns; “absent class members must be afforded adequate representation before entry of 15 a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311 16 U.S. 32, 42–43 (1940)). In reviewing this issue, courts must resolve two questions: “(1) 17 do the named plaintiffs and their counsel have any conflicts of interest with other class 18 members and (2) will the named plaintiffs and their counsel prosecute the action vigorously 19 on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 20 512 (9th Cir. 1978)). The named plaintiffs and their counsel must have sufficient “zeal and 21 competence” to protect the interests of the rest of the class. Fendler v. Westgate-Cal. Corp., 22 527 F.2d 1168, 1170 (9th Cir. 1975). 23 Petitioners satisfy Rule 23(a)(4)’s adequacy requirement. Petitioners have shown 24 they do not have any conflicts of interest with other class members. Petitioners’ Complaint 25 seeks the same relief as the class: an injunction requiring Respondents to allow individuals 26 access to retained counsel prior to and during non-refoulement interviews and 27 corresponding declaratory relief. Petitioners have also demonstrated they will protect the 28 interests of the class. Furthermore, there is no conflict between Petitioners’ counsel and 1 the members of the proposed class, and counsel has demonstrated they will prosecute the 2 case vigorously on behalf of the class. 3 Respondents argue Petitioners cannot demonstrate adequacy because Petitioners 4 “would derive no benefit from any injunctive relief . . . awarded.” (Resp. in Opp’n to Class 5 Certification at 22). This argument, like Respondents’ argument concerning typicality, 6 does not address the inherently transitory nature of Petitioners’ claim. The Court again 7 invokes the relation back doctrine and asks whether adequacy was satisfied at the filing of 8 the complaint. See Padilla v. U.S. Immigration & Customs Enf’t, No. 18-928, 2019 WL 9 1056466, at *4 (W.D. Wash. March 6, 2019) (holding the class representatives would 10 adequately represent the class, despite their claim being moot, because their claim was 11 inherently transitory); McLaughlin v. Wells Fargo Bank, NA, No. 15-02904, 2016 WL 12 3418337, at *6 (N.D. Cal. June 22, 2016) (same); Lyon, 300 F.R.D. at 636–39 (same); 13 Franco-Gonzales v. Napolitano, No. 10-02211, 2011 WL 11705815, at *14 (C.D. Cal. 14 Nov. 21, 2011) (same). As stated, Petitioners are adequate class representatives. 15 Accordingly, the adequacy requirement of Rule 23(a)(4) is satisfied. 16 E. Federal Rule of Civil Procedure 23(b) 17 Having satisfied the requirements of Rule 23(a), the next issue is whether Petitioners 18 have shown that at least one of the requirements of Rule 23(b) is met. Amchem Products, 19 Inc. v. Windsor, 521 U.S. 591, 614–15 (1997). Petitioners assert they have met the 20 prerequisites of certification for a class under Rule 23(b)(2). 21 Under Rule 23(b)(2), class certification may be appropriate where a defendant acted 22 or refused to act in a manner applicable to the class generally, rendering injunctive and 23 declaratory relief appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2). The 24 Supreme Court has noted: 25 The 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 26 declared unlawful only as to all of the class members or as to none of them.” [citation 27 omitted]. In other words, Rule 23(b)(2) applies only when a single injunction or 28 declaratory judgment would provide relief to each member of the class. It does not 1 authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. 2 Dukes, 564 U.S. at 360. 3 Petitioners argue this case satisfies the requirements of Rule 23(b)(2) because 4 Respondents are subjecting “all class members to the [p]olicy by denying them access to 5 counsel while they are awaiting their non-refoulement interviews, and then denying them 6 the participation and representation of their counsel during the interviews themselves.” 7 (Mot. for Class Certification at 26). Respondents contend Petitioners cannot satisfy Rule 8 23(b)(2) “[b]ecause of the class members’ various differences, which affect the viability of 9 the legal claims Petitioners purport to bring.” (Resp. in Opp’n of Class Certification at 25). 10 Respondents further argue that 8 U.S.C. § 1252(f)(1) precludes the Court from granting 11 classwide injunctive relief. (Id.). 12 Contrary to Respondents’ argument, Petitioners have demonstrated that certification 13 under Rule 23(b)(2) is appropriate here. Rule 23(b)(2)’s “requirements are unquestionably 14 satisfied when members of a putative class seek uniform injunctive or declaratory relief 15 from policies or practices that are generally applicable to the class as a whole.” Parsons, 16 754 F.3d at 688 (citing Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)). That is 17 surely the case here: putative class members seek the same injunctive and declaratory 18 relief, and Respondents’ policy of prohibiting access to retained counsel prior to and during 19 non-refoulement interviews is generally applicable to the entire class. In other words, 20 Petitioners and putative class members seek “relief from a single practice.” Rodriguez, 21 591 F.3d at 1126. Accordingly, the Court finds Petitioners’ case is particularly suited for 22 certification under Rule 23(b)(2). 23 Section 1252(f)(1) does not bar classwide injunctive relief in this case. In pertinent 24 part, § 1252(f)(1) states: “no court . . . shall have jurisdiction or authority to enjoin or 25 restrain the operation of the provisions of part IV of this subchapter,” referring to §§ 1221– 26 1232. 8 U.S.C. § 1252(f)(1). Respondents contend the relief Petitioners are seeking 27 “imposes additional requirements on the Government before it exercises its authority in 8 28 1 U.S.C. § 1225(b)(2)(C)[,]” and “[t]hus, Petitioners are asking . . . to enjoin 8 U.S.C. § 2 || 1225(b)(2)(C) on a classwide basis.” (Resp. in Opp’n to Class Certification at 25). 3 ||Respondents’ argument is not persuasive. Section 1225(b)(2)(C) states: “the Attorney 4 General may return the alien to [a foreign territory contiguous to the United States] pending 5 ||a proceeding under section 1229a....” 8 U.S.C. § 1225(b)(2)(C). The relief Petitioners 6 ||seek does not enjoin § 1225(b)(2)(C). Petitioners are not challenging the legality or the 7 ||implementation of the MPP or any decision to return an asylum seeker to Mexico. 8 ||Furthermore, § 1225(b)(2)(C) is silent as to non-refoulement interviews, and the relief 9 || Petitioners seek relates only to non-refoulement interviews. (See Order granting Prelim. 10 at 7-10). Therefore, § 1252(f)(1) does not apply to Petitioners’ request for classwide 11 || relief. 12 II. 13 CONCLUSION AND ORDER 14 For these reasons, Petitioners’ motion for class certification is granted as to 15 || Petitioners’ APA statutory claim. Specifically, the Court certifies the following class under 16 || Federal Rule of Civil Procedure 23(b)(2): 17 All individuals who are detained in CBP custody in California awaiting or 18 undergoing non-refoulement interviews pursuant to the “Migrant Protection 19 Protocols” program and who have retained lawyers. 20 ||Petitioners are appointed as Class Representatives, and Counsel from the ACLU 21 || Foundation of San Diego and Imperial Counties are appointed as counsel for this Class 22 || pursuant to Federal Rule of Civil Procedure 23(g). 23 IT IS SO ORDERED. 24 25 ||Dated: January 14, 2020 26 2 inn L4\ 07 Hon. Dana M. Sabraw 3g United States District Judge