UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HEREDIA MONS, et al.,
Plaintiffs, v. Civil Action No. 19-1593 (JEB) KEVIN K. MCALEENAN, Acting Secretary of the Department of Homeland Security, et al.,
Defendants.
MEMORANDUM OPINION
Last summer in Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), this Court granted
a preliminary injunction to a provisional class of plaintiffs who were challenging the practices of
five Immigrations and Customs Enforcement field offices. Specifically, those plaintiffs
successfully maintained that ICE was violating the Department of Homeland Security’s “Parole
Directive,” a policy memorandum that sets forth procedural requirements for determining
whether an asylum-seeker is eligible for pre-hearing release on parole.
This suit offers the identical arguments – this time in relation to ICE’s New Orleans Field
Office, which Plaintiffs claim has effectively rescinded the Parole Directive, even while publicly
reaffirming its vitality. Rather than following the Directive, the Office is allegedly denying all
asylum-seekers parole as a matter of policy. In opposing a preliminary injunction and in
simultaneously moving to dismiss, the Government principally asserts that the claims of each of
the named Plaintiffs here are “moot” – i.e., extinguished, given that they have either had their
parole requests re-adjudicated on an individualized basis or are no longer in the custody of the
New Orleans Field Office. Therefore, the Government argues, because the named Plaintiffs have
1 already achieved the individualized review that they sought by bringing this lawsuit (or such
review is now unavailable to them), the Court is powerless to allow this class action to proceed.
This Court is not so constrained. Even assuming that the named Plaintiffs’ claims here
are moot, the Court retains jurisdiction over the proposed class. While it is true that class actions
are normally moot if no named representative with an unexpired claim remains at the time of
certification, see United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018), an exception
applies where the alleged harms would otherwise evade review because they are “inherently
transitory.” Id. Such is the case here. Defeated on their jurisdictional position, Defendants offer
little beyond their Damus arguments on the merits. The Court, accordingly, will reach the same
result and grant Plaintiffs’ Motion. In issuing an injunction of this nature for a second time, this
Court again simply holds the Government to the policy that it purports to already be following.
I. Background
A. Statutory and Regulatory Framework
The Court begins with the relevant statutory and regulatory framework at issue, as it did
in its prior decision on the subject of the Parole Directive. See Damus, 313 F. Supp. 3d at 323–
24. The Immigration and Nationality Act outlines the foundations of our nation’s immigration
system, including the process by which noncitizens can apply for asylum. See 8 U.S.C. §
1225(b)(1)(A)(ii). If an interviewing officer determines that an asylum-seeker has a “credible
fear” of persecution in her home country, that person “shall be detained for further consideration
of [her] application.” Id. § 1225(b)(1)(B)(ii); see also 8 C.F.R. § 208.30(f) (describing the
procedures surrounding a positive credive-fear finding). The INA, however, also offers another
option besides detention, permitting the Attorney General to temporarily parole these individuals
for “urgent humanitarian reasons or significant public benefit.” See 8 U.S.C. § 1182(d)(5)(A).
2 Agency regulations provide that the Secretary of Homeland Security may parole asylum-seekers
who are “neither a security risk nor a risk of absconding,” in the service of such “urgent
humanitarian reasons or significant public benefit.” 8 C.F.R. § 212.5(b).
In 2009, DHS issued the “Parole Directive,” which further fleshes out when, precisely, it
is in the “public benefit” for an asylum-seeker to be paroled. See ICE Directive 11002.1, Parole
of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009).
According to the Directive, if an asylum-seeker establishes her identity and that she presents
neither a flight risk nor a danger to the public, her detention “is not in the public interest,” and
thus ICE “should, absent additional factors . . . parole the alien.” Id., ¶ 6.2 (emphases added).
But how might ICE determine if an asylum-seeker poses a flight risk or a danger? The Directive
offers a binding roadmap. First, it states that “[e]ach alien’s eligibility for parole should be
considered and analyzed on its own merits and based on the facts of the individual alien’s case.”
Id. Next, to aid in this individualized consideration, the Directive prescribes that asylum-seekers
“shall” be provided with certain procedural safeguards. See, e.g., id., ¶ 6.1. These include
written notice of the parole process explained in a language they understand, a parole interview
within seven days of a credible-fear finding, written notification of a parole determination, and a
brief explanation of the reasoning behind any decision to deny parole. Id., ¶¶ 6.1–8.1. In sum,
the Directive “establishes certain minimum procedures and processes that are to be utilized in
making [parole] determinations.” Damus, 313 F. Supp. 3d at 324.
During the years immediately following implementation of the Directive, DHS released
asylum-seekers on parole at a 90% rate nationwide subsequent to their credible-fear
determinations. See ECF No. 2 (Complaint), ¶ 2. In 2017, then–DHS Secretary John Kelly
confirmed that the Parole Directive “remain[s] in full force and effect.” Memorandum of John
3 Kelly, “Implementing the President’s Border Security and Immigration Enforcement
Improvement Policies” at 10 (Feb. 20, 2017) (Kelly Memorandum). The Acting Director of the
New Orleans Field Office, moreover, recently proclaimed that the Parole Directive “is still in
effect in New Orleans.” ECF No. 27 (Def. MTD), Exh. A (Declaration of Scott Sutterfield), ¶ 6.
Yet the percentage of asylum-seekers that that Office has released on parole has dramatically
declined in recent years. The Office currently retains the lowest release rate of any jurisdiction
in the country, having denied 98.5% of release requests in 2018 and 100% of requests made thus
far in 2019. See ECF No. 30 (Pl. Response) at 5; Def. MTD at 4 n.4.
B. Plaintiffs’ Detentions
Eleven named individuals bring the present action. Plaintiffs and those they seek to
represent “all demonstrated a credible fear of persecution and are now [or previously were] in
removal proceedings before the Executive Office for Immigration Review.” Compl., ¶ 1. Rather
than being placed on parole during the pendency of their asylum determinations, Plaintiffs were
“confined under the jurisdiction of the New Orleans ICE Field Office” at one of six immigration
jails for months on end. Id., ¶ 10.
In July 2018, lead Plaintiff Ángel Alejandro Heredia Mons fled Cuba with his wife to
escape persecution for their refusals to participate in Communist political activities. Id., ¶ 12.
DHS separated Heredia Mons from his wife at the border, transferring her to an ICE facility in
Taylor, Texas, and him to the New Orleans Field Office. Id., ¶ 59. She passed a credible-fear
interview in early August 2018, and DHS granted her parole later that month. Id. Heredia Mons
had no such luck. After passing his credible-fear interview, he received a parole advisal in a
language he does not speak, four days after the deadline to submit documents. Id., ¶ 60. He
never received a parole interview. Id. The Office denied his parole request in a “form letter”
4 dated September 10, 2018, and it has detained him since that date. Id., ¶ 61. The other named
Plaintiffs – Miguel Ángel Giron Martinez, Douglas Enrique Puche Moreno, Adrián Toledo
Flores, Dayana Mena López, M.R.M.H., P.S.P, Y.A.K., J.M.R., R.O.P., and F.J.B.H – recount
similar narratives.
On June 30, 2019, the above-named Plaintiffs brought the present class action seeking to
enjoin DHS’s alleged practice of categorically denying parole to asylum-seekers in contravention
of the Directive. They assert that Defendants’ effective recession of the Directive is arbitrary and
capricious and contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C.
§ 706(2). See Compl., ¶¶ 129–33. Additionally, they allege that separate and apart from their
obligations under the Parole Directive, Defendants have violated both the APA and the Due
Process Clause of the Fifth Amendment to the Constitution in failing to provide individualized
determinations of flight risk and danger. Id., ¶¶ 134–42.
Plaintiffs now move for a preliminary injunction, while Defendants have countered with a
Motion to Dismiss. The Court heard oral argument on August 29, 2019, and issues this
expedited Opinion.
II. Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. NRDC, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish
[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)
(quoting Winter, 555 U.S. at 20). “The moving party bears the burden of persuasion and must
demonstrate, ‘by a clear showing,’ that the requested relief is warranted.” Hospitality Staffing
5 Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 197 (D.D.C. 2010) (citing Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
Historically, these factors have “been evaluated on a ‘sliding scale.’” Davis v. Pension
Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). In other words, if the movant makes an
“unusually strong showing on one of the factors, then it does not necessarily have to make as
strong a showing on another factor.” Id. at 1291–92. This Circuit has hinted, though not held,
that Winter – which overturned the Ninth Circuit’s “possibility of irreparable harm” standard –
establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent,
free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis v. PBGC, 571 F.3d
1288, 1296 (Kavanaugh, J., concurring)); see League of Women Voters v. Newby, 838 F.3d 1, 7
(D.C. Cir. 2016) (declining to address whether “sliding scale” approach is valid after Winter).
Unresolved, too, is the related question of “whether, in cases where the other three factors
strongly favor issuing an injunction, a plaintiff need only raise a serious legal question on the
merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (internal quotation and citation
omitted).
III. Analysis
Plaintiffs’ core contention is that the New Orleans Field Office has effectively rescinded
the 2009 Directive by failing to offer asylum-seekers individualized review of their parole
applications and instead denying them in summary fashion. Like the plaintiffs in Damus, they
offer comparative statistics as well as affidavits from detained asylum-seekers and their counsel.
For the most part, Defendants stand on the same arguments that the Court previously found
wanting in Damus; indeed, they simply incorporate them by reference. See Def. MTD at 6. As a
result, the Court’s analysis of the merits essentially tracks its prior articulation.
6 Defendants do, however, raise one novel argument. They ask this Court to dismiss
Plaintiffs’ proposed class action for lack of jurisdiction on the ground that the claims are moot.
As the Court disagrees, it will grant Plaintiffs’ Motions for a Preliminary Injunction and Class
Certification, while largely denying Defendants’ Motion to Dismiss. It first addresses
jurisdiction, then moves to class certification and the merits of the injunction, and concludes with
the Motion to Dismiss.
A. Jurisdiction
The Court begins, as it must, with jurisdictional issues. It separately addresses
justiciability and mootness.
Statutory Restrictions on Reviewability
As a preliminary issue, the Court again rejects Defendants’ contention (incorporated by
reference) that it lacks jurisdiction to review Plaintiffs’ claims because they are barred by 8
U.S.C. §§ 1252(a)(2)(B)(ii) and (f)(1). Briefly, the former provides:
[N]o court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.
As this Court previously held in Damus, “[T]o the extent Plaintiffs are challenging the
determinations themselves – i.e., the actual balancing of the merits of each application for parole
– this Court agrees that it lacks jurisdiction.” 313 F. Supp. 3d at 327. The plaintiffs there and
here, however, “are not challenging the outcome of ICE’s decisionmaking, but the method by
which parole is currently being granted (or denied). The question, therefore, is whether such a
claim falls within the scope of § 1252(a).” Id. It does not. Where plaintiffs challenge an
overarching agency action as unlawful – in this case, a systemic failure to follow the Parole
7 Directive – Supreme Court and Circuit precedent dictate that such a challenge does not fall
within § 1252’s jurisdictional bar. See Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that
challenges to “extent of the Attorney General’s authority” to indefinitely detain individuals are
outside scope of § 1252(a)(2)(B)(ii)); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 176–77 (D.D.C.
2015) (holding that district courts have jurisdiction to review challenges to policies underlying
detention but not discretionary determinations granting or denying bond or parole in individual
cases).
Second, this Court is again unconvinced that another provision of the INA – 8 U.S.C.
§ 1252(f)(1) – precludes it from granting the classwide injunctive relief sought by Plaintiffs.
That section provides that “no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1232], other
than with respect to . . . an individual alien against whom proceedings under such part have been
initiated.” As this Court noted in R.I.L-R (and Damus), § 1252(f)(1) “prohibits only injunction
of ‘the operation of’ the detention statutes.” R.I.L-R, 80 F. Supp. 3d at 184 (quoting Rodriguez
v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)). But “[w]here . . . a petitioner seeks to enjoin
conduct that allegedly is not even authorized[,] . . . the court is not enjoining the operation of
[the statute], and § 1252(f)(1) therefore is not implicated.” Id. (quoting Rodriguez, 591 F.3d at
1120) (internal quotations and citations omitted). Here, Plaintiffs seek to enjoin “conduct” that
the INA allegedly does not authorize – viz., the Office’s flagrant disregard of the Parole
Directive. Therefore, a classwide injunction in this case would not obstruct the “operation of”
the detention statutes.
8 Mootness
The focus of the Government’s briefs here is on an issue not tackled by the Damus
decision. Defendants contend that even if this Court at one time had jurisdiction to decide
Plaintiffs’ claims, it no longer does so because such claims are now moot. The Constitution
limits the federal courts’ jurisdiction to those claims that embody actual “[c]ases” or
“[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. A “case or controversy exists when both the
plaintiff and the defendant have a ‘personal stake’ in the lawsuit,” and a “plaintiff demonstrates a
personal stake by establishing standing to sue, which requires . . . ‘an ongoing interest in the
dispute.’” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 678–79 (2016) (Roberts, C.J.,
dissenting) (quoting Camreta v. Greene, 563 U.S. 682, 701 (2011)). A complaining party lacks
standing, and a case is considered “moot,” “when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Schmidt v. United States, 749 F.3d
1064, 1068 (D.C. Cir. 2014) (internal quotation marks omitted). Therefore, “[i]f a case becomes
moot, federal courts are divested of jurisdiction over the action.” Id.
According to Defendants, developments subsequent to the filing of the instant Complaint
have mooted the named Plaintiffs’ claims and thereby stripped this Court of jurisdiction. First,
some of the Plaintiffs are no longer in the custody of the New Orleans Field Office. Plaintiffs
concede that these individuals’ claims are, in fact, moot. See, e.g., ECF No. 28 (Pl. Reply) at 9.
Second, the Office has allegedly re-adjudicated the statuses of the remainder of the named
Plaintiffs on an individualized basis, and it has again denied them parole. Indeed, the agency’s
declarant explains, almost all of the named Plaintiffs who remain in the custody of the New
Orleans Field Office have been ordered removed by an Immigration Judge. See Sutterfield
Decl., ¶ 8. Some have also lost their appeals to the Bureau of Immigration Appeals and are
9 therefore subject to a final order of removal. Id. Largely because of these adverse
determinations, the agency concluded during the re-adjudications that the named Plaintiffs
currently under the custody of the New Orleans Field Office present flight risks, and it
accordingly denied them parole. Id.
Plaintiffs, for their part, contest that the detained individuals’ claims have been mooted.
They first argue that the Office’s denial of all these individuals’ parole requests demonstrates
that Defendants are continuing to categorically refuse parole to all asylum-seekers and are
thereby flouting the demands of the Parole Directive. See ECF No. 30 (Pl. Response) at 8. They
further characterize the “re-adjudications” as “shams” and offer affidavits in support of their
position that the detained Plaintiffs “continue to suffer from the [New Orleans] Field Office’s
unlawful policy” of ignoring the Parole Directive. See Pl. Reply at 10. They also believe that
until final removal, Plaintiffs could be released – e.g., via BIA appeal or remand – and thus their
claims remain live.
The Court, however, need not decide this battle of competing affidavits or even decide
whether true re-adjudication occurred. Class actions are “[n]ormally . . . moot if no named class
representative with an unexpired claim remain[s] at the time of class certification.” United
States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018) (emphasis added). The Supreme Court
has, however, recognized certain limited exceptions to this rule, situations where a lower court
may “relate [a] certification motion back’ to a date when the individual claims were live.” J.D.
v. Azar, 925 F.3d 1291, 1307 (D.C. Cir. 2019) (emphasis added) (quoting Genesis Healthcare
Corp. v. Symczyk, 569 U.S. 66, 71 n.2 (2013)). Relevant here, where “claims are so inherently
transitory that the trial court will not have even enough time to rule on a motion for class
certification before the proposed representative's individual interest expires,” the Court has found
10 such relation back appropriate. See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)
(emphasis added). Otherwise, such claims would be “effectively unreviewable, because no
plaintiff [would] possess[ ] a personal stake in the suit long enough for litigation to run its
course.” Genesis Healthcare, 569 U.S. at 76. Even assuming arguendo that the named
Plaintiffs’ claims are moot, consequently, their proposed class action necessarily qualifies for
this “inherently transitory” exception.
It bears mentioning at the outset that the Supreme Court specifically “crafted the
exception in injunctive class actions,” such as this one, “challenging criminal and immigration
detention procedures.” J.D., 925 F.3d at 1308. To provide one example, that Court has held
that claims regarding certain bail-hearing practices are “inherently transitory” because “it is by
no means certain that any given individual, named as plaintiff, would be in pretrial custody
[awaiting a bail hearing] long enough for a district judge to certify the class.” Gerstein v. Pugh,
420 U.S. 103, 110 n.11 (1975); see also McLaughlin, 500 U.S. at 52 (same).
More recently, both the Supreme Court and the D.C. Circuit have had occasion to outline
the contours of the “inherently transitory” exception in the context of challenges to current
immigration-detention procedures. First, in Nielsen v. Preap, 139 S. Ct. 954 (2019), the
Supreme Court reviewed a challenge to DHS’s practice of detaining without bail immigrants
who had been convicted of certain crimes and were awaiting the conclusion of removal
proceedings. Arguing that DHS’s policy violated the Illegal Immigration Reform and Immigrant
Responsibility Act, the Preap plaintiffs brought two separate injunctive class actions seeking bail
hearings for those detained individuals. Id. at 960–61. By the time of class certification, the
named plaintiffs had obtained either cancellation of removal or bond hearings, and therefore the
Government argued that their claims were moot. Id. at 963. A plurality of the Court, however,
11 held that the class action was not moot (and therefore that the Court retained jurisdiction over the
claims asserted) because at least one of the named plaintiffs in both cases faced the “threat of
rearrest and mandatory detention.” Id. Of significance here, even if the plaintiffs had not faced
such a threat, the cases still would not have been moot, the plurality reasoned, because the harms
alleged were “transitory enough to elude review.” Id. (emphasis added). The plurality found
these detention-based claims to be transitory because they end “as soon as the decision on
removal is made,” id., even though such immigrants “are held on average, for one year, and
sometimes longer.” Id. at 976 (Thomas J., concurring in part and concurring in the judgment)
(internal quotation marks omitted).
Taking up the mantle from the Preap plurality, the D.C. Circuit recently applied the
“inherently transitory” exception in certifying a class consisting of unaccompanied alien children
who challenged a policy that functioned as “an across-the-board ban on access to abortion” for
those minors being detained by DHS. See J.D., 925 F.3d. at 1299, 1299. There, the
representative plaintiffs’ claims became moot when they left Government custody. Id. at 1307.
In certifying the class, the D.C. Circuit canvassed the Supreme Court’s jurisprudence concerning
the “inherently transitory” exception – including the Preap decision – and discerned the
following rule:
In sum, the “inherently transitory” exception to mootness requires [courts] to determine (i) whether the individual claim might end before the district court has a reasonable amount of time to decide class certification, and (ii) whether some class members will retain a live claim at every stage of litigation. An affirmative answer to both questions ordinarily will suffice to trigger relation back.
Id. at 1311. The court further adopted a flexible approach for ascertaining whether a claim
“might” end before certification, requiring “reasoned supposition” based on the “practicalities”
of the litigation at issue. Id. at 1310. Applying that standard, the court held that the plaintiffs –
12 who were held in custody, and therefore subject to the policy, for “uncertain and unpredictable”
lengths of time that averaged 3 months by the time of the court’s decision – brought “inherently
transitory” claims. Id. at 1311.
This case presents a somewhat thorny variant on the “inherently transitory” exception
because, as discussed above, the parties cannot agree as to when the named Plaintiffs’ claims
were mooted, if at all. It is most likely that their claims remained live only from the period
(lasting a maximum of six months) between their credible-fear determinations and their hearings
before an Immigration Judge, at which time the parole calculus necessarily changed in character.
As the Government argues, an alien facing an order of removal from an IJ presents a
fundamentally different flight risk from one who is merely awaiting a hearing before an IJ, and
the Parole Directive is silent as to the effect of such a decision. See Def. MTD at 15. This
silence may be attributed to the fact that the procedural mandates of the Directive are generally
applicable to the period immediately following the credible-fear determination. See Parole
Directive, ¶ 8.2 (noting that parole interview must occur “no later than seven days” following
credible-fear finding). It is also possible, as Defendants argue, that the “re-adjudications”
provided to the named Plaintiffs at various points in time (usually within a few weeks of their IJ
hearings) mooted their claims. Finally, Plaintiffs argue that claims of this nature remain live
until an asylum-seeker’s receipt of a final order of removal, the termination of an adjudication
process that can last well over a year. The Court does not accept this theory, but if it did, the
claims would not be moot in the first place.
This Court thankfully need not decide precisely when the named Plaintiffs’ claims
became moot – if at all – because it easily concludes that the nature of their claims is such that
they “might” be mooted before certification. First, either of the events that Defendants assert
13 mooted the named Plaintiffs’ claims falls within the length of time that courts from the Preap
plurality to this Court have found to qualify as an “inherently transitory” period. See R.I.L.-R,
80 F. Supp. 3d at 183 (period of unlawful detention lasting weeks or months qualified for
“inherently transitory” exception). Months of detention may feel unbearably lengthy to those
being detained but represent a mere moment in the arena of civil litigation where, as Charles
Dickens famously noted in Bleak House, a case often “drags its dreary length.”
Take, for example, Plaintiff M.R.M.H. He arrived in the United States in January 2019
and received a credible-fear determination in mid-February of 2019. See Compl., ¶ 79. He was
ordered removed by an IJ on July 16, 2019, and had his parole re-adjudicated and denied on July
31. See Sutterfield Decl., ¶ 8(c). Accepting the Government’s argument that the re-adjudication
mooted his claim, it remained live for about five months total and only a month and a half after
the filing of the Complaint. Put differently, Defendants cannot maintain that the re-adjudications
and releases at issue here mooted Plaintiffs’ claims, while simultaneously asserting that such
claims will generally continue to remain “live” for over a year in order to avoid the “inherently
transitory” exception.
Additionally, the “practicalities and prudential considerations” of this particular class
under review demand application of the “inherently transitory” exception. As in J.D., Plaintiffs
were detained without individualized parole review for “uncertain and unpredictable” periods of
time, the precise length of which was entirely under Defendants’ control. J.D., 925 F.3d at 1342
(Silberman, J., dissenting) (disagreeing with the majority that the proposed class of detained
unaccompanied pregnant minors brought “inherently transitory” claims, but conceding that his
analysis would be different if the “average time of detention was [in] the Government’s complete
control”). Even if some individuals detained by the Office might retain live claims for upwards
14 of a year, the reality of the immigration-detention process makes identifying those persons in
advance largely impossible. See Thorpe v. Dist. of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C.
2013) (holding that claims regarding nursing-facility placement were “inherently transitory”
because “[t]he length of any individual’s stay in a nursing facility is impossible to predict, so
even though there are certainly individuals whose claims will not expire within the time it would
take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will
be those individuals”).
Defendants also assert that the Preap plurality’s conclusion that the plaintiffs – who
brought claims that generally remain live for about a year – qualified for the “inherently
transitory” exception should be ignored because the plurality did not focus on the “amount of
time at issue.” ECF No. 31 (Def. Reply) at 11. The Court has several responses to this
argument. As an initial matter, the idea that the Preap plurality simply failed to notice the
longevity of the claims involved strains credulity, especially given that two Justices dissented
specifically from this aspect of the opinion. See 139 S. Ct. at 975 (Thomas, J., joined by
Gorsuch, J., concurring in part and concurring in the judgment). This precise argument,
moreover, was raised by the J.D. dissenting judge, see J.D., 925 F.3d at 1341–42 (Silberman, J.,
dissenting), but was rejected by the majority, the decision of which this Court is bound to follow.
J.D., 925 F.3d at 1309. The J.D. majority instead embraced a “pragmatic” approach to the
“inherently transitory” exception and outlined the factors just applied by this Court. Id. at 1310.
Judge Silberman’s dissent in J.D. also advocated disregarding the time period involved in Preap
and instead looking to whether the Government controls how long a claim will remain “live” (as
was the case in Preap). Id. at 1341 (Silberman, J., dissenting). In this case, as noted, that factor
also favors Plaintiffs.
15 In any event, the named Plaintiffs here bring claims that, according to Defendants, were
generally extinguished well within a year. This Court therefore need not assume that Preap sets
an outer temporal bound because Plaintiffs’ proposed class does not reach it. In sum, given the
realities of the claims involved here and the “practicalities” of the immigration-detention process
generally, this Court has no trouble concluding that the named Plaintiffs’ claims “might end
before the district court has a reasonable amount of time to decide class certification.” J.D., 925
F.3d at 1311.
Finally, the Government does not contest that Plaintiffs also satisfy the second factor
necessary for invoking the “inherently transitory” exception – namely, that “some class members
will retain a live claim at every stage of litigation.” Id. Plaintiffs present substantial evidence
that the New Orleans Field Office continues to detain a great number of the members of the
proposed class without granting them individualized parole determinations. As of this month,
more than 8,000 people were in ICE custody in Louisiana and Mississippi. See Pl. Response at
13. This tide shows no sign of waning. In other words, there will continue to be people seeking
parole from the New Orleans Field Office immediately following credible-fear determinations.
Plaintiffs have therefore established both requirements of the “inherently transitory” exception.
The Court thus relates back class certification to the date of the pleadings, at which time, as
Defendants concede, the class’s claims certainly remained live.
B. Class Certification
Having disposed of Defendants’ jurisdictional contentions, the Court can make quick
work of the class-certification arguments it previously addressed in Damus. To obtain
certification, a plaintiff must show that the proposed class satisfies all four requirements of Rule
23(a) and one of the three Rule 23(b) requirements. See Wal-Mart Stores, Inc. v. Dukes, 564
16 U.S. 338, 345 (2011). According to Rule 23(a), a class may be certified only if: (1) it is so
numerous that joinder of all members is impracticable (“numerosity”), (2) there are questions of
law or fact common to the class (“commonality”), (3) the claims or defenses of the representative
are typical of those of the class (“typicality”), and (4) the class representative will fairly and
adequately protect the interests of the class (“adequacy of representation”). Plaintiffs must show,
in addition, that: (1) the prosecution of separate actions by or against individual members of the
class would create a risk of inconsistent adjudications, (2) the party opposing the class has acted
or refused to act on grounds generally applicable to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole, or (3) questions of
law or fact common to the members of the class predominate over any questions affecting only
individual members. See Fed. R. Civ. P. 23(b)(1)–(3).
Plaintiffs’ proposed class here consists of “[(1)] [a]ll arriving asylum-seekers (2) who
receive positive credible fear determinations; and (3) who are or will be detained by U.S.
Immigration and Customs Enforcement; (4) after having been denied parole by the New Orleans
ICE Field Office.” Compl., ¶ 120. The Court finds that this proposed class meets the conditions
supplied by Rule 23 for substantially the same reasons that the Damus plaintiffs satisfied those
same requirements. See Damus, 313 F. Supp. 3d at 329–35. Given that the Government does
not raise any new arguments regarding class certification here, this Court will not further
elaborate on the discussion of these issues it previously provided.
C. Merits of Injunction
The Court turns next to the merits of Plaintiffs’ Motion for a Preliminary Injunction.
They first assert that in failing to follow the Parole Directive, the New Orleans Field Office is
acting contrary to law in violation of the APA. See Compl., ¶¶ 129–33. They also allege that
17 Defendants have violated both the APA and the Due Process Clause by neglecting to provide
individualized parole adjudications to asylum-seekers. Id., ¶¶ 134–42. As in Damus, the Court
narrows its focus to Plaintiffs’ first theory, finding that it warrants injunctive relief. The
discussion will first consider likelihood of success and next address irreparable harm and the
public interest.
Likelihood of Success
As was the case in Damus, Plaintiffs’ first APA claim is based on the “Accardi doctrine.”
The doctrine takes its name from a Supreme Court decision holding that “government agencies
are bound to follow their own rules, even self-imposed procedural rules that limit otherwise
discretionary decisions.” Wilkinson v. Legal Servs. Corp., 27 F. Supp. 2d 32, 34 n.3 (D.D.C.
1998) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267–69 (1954)). The
Supreme Court has also extended the doctrine to a challenge to a benefits determination that did
not comply with the procedures set forth in an agency’s internal manual. See Morton v. Ruiz,
415 U.S. 199, 232, 235 (1974). In applying the Accardi doctrine, the high court has reaffirmed
that “it is incumbent upon agencies to follow their own procedures . . . even where [they] are
possibly more rigorous than otherwise would be required,” particularly where “the rights of
individuals are effected.” Id. at 235. In this Circuit, “Accardi has come to stand for the
proposition that agencies may not violate their own rules and regulations to the prejudice of
others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005); see also Steenholdt v. FAA, 314
F.3d 633, 639 (D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies to follow their
own rules, even gratuitous procedural rules that limit otherwise discretionary actions.”).
Accardi does not, however, provide an unlimited means of reviewing agency action; not
every agency policy is enforceable in a court of law. According to the Supreme Court, the
18 enforceability of agency policies depends upon whether they impose binding norms on the
agency. Vitarelli v. Seaton, 359 U.S. 535, 539–40 (1959); Service v. Dulles, 354 U.S. 363, 372
(1957). This Circuit has further clarified that “an agency pronouncement is transformed into a
binding norm if so intended by the agency,” a determination that takes into account the substance
and intent of the agency action, as well as whether it confers individual protections or privileges.
See Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (citations omitted). In the immigration
context, the Second Circuit has explained that the Accardi doctrine’s “ambit is not limited to
rules attaining the status of formal regulation,” and that it can be applied to internal agency
guidance. See Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991).
As this Court held in Damus, the Accardi doctrine applies to Plaintiffs’ claim that
Defendants have violated the APA in failing to abide by the Parole Directive. See 313 F. Supp.
3d at 336–38. The APA empowers litigants to challenge agency action that is arbitrary,
capricious, and contrary to law, see 5 U.S.C. §§ 702, 706(2), and the Accardi doctrine provides
them with a means by which they can hold agencies accountable to their own policies. See, e.g.,
Burdue v. FAA, 774 F.3d 1076, 1082 n.2 (6th Cir. 2014) (“Under the doctrine outlined
in Accardi, a party may always challenge an agency’s failure to abide by its own regulations.”)
(internal citation omitted). It is clear, moreover, that Accardi claims may arise under the APA.
See, e.g., Schaefer v. Geren, 607 F. Supp. 2d 61, 68–70 (D.D.C. 2009), aff'd sub nom. Schaefer
v. McHugh, 608 F.3d 851 (D.C. Cir. 2010) (addressing Accardi claim pursuant to allegation that
Army Board for Correction of Military Records “acted arbitrarily, capriciously, and contrary to
law” in violation of APA § 706(2)(A)).
As the Court previously explained in more detail, the Parole Directive qualifies as
precisely the sort of “binding” agency policy affecting individual rights to which the Accardi
19 doctrine may govern. See Damus, 313 F. Supp. 3d at 337; see also Abdi v. Duke, 280 F. Supp.
3d 373, 389 (W.D.N.Y. 2017) (holding that agency cannot “avoid application of Accardi by
simply disclaiming any binding effect in the [D]irective itself” and that “[t]o find otherwise
would render the teachings of Accardi and its progeny meaningless”). Plaintiffs’ allegation that
Defendants are neglecting “to follow their own procedures” in denying detainees parole therefore
falls “well within the scope of the Accardi doctrine” and is “properly framed as a claim that the
agency’s actions were ‘arbitrary, capricious, and an abuse of discretion.’” Damus, 313 F. Supp.
3d at 337.
The question to be decided here, consequently, is whether the New Orleans Field Office,
like the Offices discussed in Damus, is no longer following the Parole Directive. It bears
mentioning that Defendants have offered no evidence to the contrary beyond vague
unsubstantiated assertions that the “[D]irective is still in effect in New Orleans.” Sutterfield
Decl., ¶ 6. In fact, in claiming that in response to this litigation the named Plaintiffs have had
their parole statuses re-adjudicated “in accordance with the 2009 ICE Parole Directive,” id., ¶ 8,
Defendants seem to implicitly concede that such individualized review was not granted to those
Plaintiffs previously.
Plaintiffs, on the other hand, offer a substantial body of evidence in support of their claim
that the Office has ceased following the Directive. First, the sheer percentage of asylum-seekers
denied parole by the New Orleans Field Office offers them powerful ammunition. In 2016, the
Office denied parole in only 24.5% of the 229 decisions made. In 2017, that denial rate
skyrocketed to 82% of 78 decisions. In 2018, it rose even higher to 98.5% of 130 decisions. See
ECF No. 22 (Pl. Motion for PI) at 8; id., Exh. 1 (Declaration of Sophie Beiers) at 1–4. Finally, it
has attained the unsurpassable height of a 100% denial rate this year. See Pl. Response at 5.
20 These most recent denial rates are even higher than those of some of the Offices found to be out
of compliance with the Directive in Damus. See 313 F. Supp. 3d at 339 (noting that during the
period in question two of the challenged Offices (Los Angeles and Detroit) denied 92% and 98%
of parole applications, respectively). Indeed, as of 2018, the New Orleans Field Office
maintained the highest rate of parole denials of any field office in the United States. See Pl.
Response at 5.
DHS generally and the New Orleans Field Office specifically have continued to
proclaim, however, that the Directive “remain[s] in full force and effect,” and the Government
has represented the same to the Supreme Court. See Kelly Memorandum at 8; Sutterfield Decl.,
¶ 6; Pet. Suppl. Reply Br., Jennings v. Rodriguez, No. 15-1204, at 6 n.2 (filed Feb. 21, 2017).
Yet Defendants offer absolutely no explanation for the precipitous nosedive in the parole-grant
rates issued by an Office that has allegedly preserved the same underlying policy for making
those decisions all along.
There’s more. Plaintiffs also offer a number of declarations from asylum-seekers and
their advocates that describe the New Orleans Field Office’s myriad violations of the Parole
Directive. These declarations attest to the automatic, rather than individualized, nature of the
parole proceedings, various aspects of which run directly contrary to the guarantees provided by
the Directive. For example, various declarants assert that detainees often are not notified of the
availability of parole. Even when they are, they receive parole documents in a language they do
not understand, and they are often not granted an interview. See, e.g., ECF No. 16 (Pl. Motion
for Class Certification), Exh. 2 (Declaration of Dayana Mena López), ¶ 16; id., Exh. 1
(Declaration of Ángel Heredia Mons), ¶ 18. Sometimes the Office does not even respond to
parole requests. When it does, it issues boilerplate parole denials devoid of any individualized
21 explanations. See, e.g., Heredia Mons Decl., ¶ 22; Pl. Motion for Class Certification, Exh. 4
(Declaration of J.M.R.), ¶ 23; id., Exh. 6 (Declaration of R.O.P.), ¶ 21.
It should come as no surprise then that, according to the declarants, officials associated
with the New Orleans Field Office have made numerous comments that suggest they no longer
feel constrained by the Parole Directive. In response to Plaintiff R.O.P.’s request for an
individualized parole inquiry, for example, a former Warden of one of the detention facilities
under the Office’s jurisdiction responded that he could not “possibly tend to everyone.” R.O.P.
Decl., ¶ 25; see also ECF No. 15, Exh. 14 (Declaration of Joseph Giardina), ¶ 17 (New Orleans
ICE officer told attorney he denies parole because it would be 99% impossible for an individual
to demonstrate he is not a flight risk). In response to the American Immigration Lawyers
Association’s inquiry as to whether the Directive remains in effect at the New Orleans Field
Office, Assistant Field Office Director Brian Acuna stated, “[T]echnically no, by Executive
Order.” Compl., Exh. A. (Email from Brian Acuna to Ana Sardi) at 4. (He now retracts that
statement, which he claims to have made in error. See Def. MTD, Exh. C (Declaration of Brian
Acuna), ¶¶ 10–13.)
The numbers and the affidavits provide a powerful case – one the Government barely
attempts to rebut – that the New Orleans Field Office no longer follows the dictates of the Parole
Directive. The Court therefore finds that Plaintiffs have demonstrated a likelihood of success on
the merits of their Accardi claim.
Irreparable Harm
To establish the existence of this second factor necessary for the issuance of a
preliminary injunction, a party must demonstrate that its injury is “of such imminence that there
is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full
22 Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The injury must also be “both certain and great; it
must be actual and not theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the
injury must be “beyond remediation.” Id. Like the plaintiffs in Damus, Plaintiffs here have
established that they will suffer irreparable harm without injunctive relief. As the Court there
noted, detention irreparably harms individuals “in myriad ways,” and the injuries at stake there
and here are “beyond remediation.” 313 F. Supp. 3d at 342.
Balance of Harms and Public Interest
Finally, these last two prongs pose no serious obstacle to Plaintiffs’ request for a
preliminary injunction. “The public interest is served when administrative agencies comply with
their obligations under the APA.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21
(D.D.C. 2009). In fact, the Parole Directive itself states that the detention of asylum-seekers who
are neither a flight risk nor dangerous is “not in the public interest” and thus requires an
individualized parole determination as to whether they should be released. See Parole Directive,
¶ 6.2 (emphasis added). The Court therefore finds that these two factors also favor Plaintiffs.
D. Motion to Dismiss
In addition to opposing Plaintiffs’ Motion for a Preliminary Injunction, Defendants have
moved to dismiss all of Plaintiffs’ claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure. “The former Rule concerns subject-matter jurisdiction, the latter, ‘failure to
state a claim upon which relief can be granted.’” Arbaugh v. Y & H Corp., 546 U.S. 500, 512
(2006) (quoting Fed. R. Civ. P. 12(b)(6)). “Motions to dismiss on grounds of mootness are
properly brought under Rule 12(b)(1).” Flores ex rel. J.F. v. Dist. of Columbia, 437 F. Supp. 2d
22, 27 (D.D.C. 2006). Defendants do not raise separate arguments in support of their Motion to
23 Dismiss but instead refer the Court to the Damus arguments. The Court consequently reaches
the same decision.
Specifically, the analysis provided above precludes Defendants’ Motion to Dismiss
Plaintiffs’ APA claim. As already explained, their class action is not moot, and the Court’s
conclusion that Plaintiffs have demonstrated a likelihood of success on the merits of their APA
claim forecloses any argument for dismissing it. Defendants’ Motion to Dismiss Plaintiffs’ due-
process count, however, is destined for a brighter future. In Damus, after finding that the
plaintiffs had demonstrated a likelihood of success on the merits of their APA claims, this Court
dismissed their due-process count, invoking basic principles of judicial restraint. Damus v.
Nielsen, No. 18-578, 2019 WL 1003440, at *2 (D.D.C. Feb. 28, 2019). The Court sees no
reason to chart a different course in this case. Indeed, Plaintiffs have already expressed their
acceptance of this approach. See Pl. Response at 5–6. Here, as in Damus, “the merits of the
constitutional cause of action rise and fall in relevant part with the merits of Plaintiffs’ APA
claim[ ],” and the “same relief” would obtain for a violation of the APA. See Damus, 2019 WL
1003440, at *2. The Court therefore grants Defendants’ Motion to Dismiss Plaintiffs’ due-
process claim, though it does so without prejudice.
IV. Conclusion
For these reasons, the Court will grant Plaintiffs’ Motion for a Preliminary Injunction and
Class Certification and grant in part and deny in part Defendants’ Motion to Dismiss. A separate
Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: September 5, 2019