Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 1 of 15 1 The Honorable Marsha J. Pechman 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YOLANY PADILLA, et al., Plaintiffs-Petitioners, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Case No. 2:18-cv-00928-MJP PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES Defendants-Respondents. NOTE ON MOTION CALENDAR: October 26, 2018 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 2 of 15 1 I. 2 3 4 5 6 INTRODUCTION This Court should deny Defendants’ motion to hold this case in abeyance and relieve them of all deadlines. That motion is based on what Defendants assume will be the latest of the Attorney General’s series of efforts to deter asylum seekers from seeking refuge in the United States. Under the guise of the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830 7 (2018), Defendant Sessions has self-certified the question of whether the Board of Immigration 8 Appeals’ decision in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005)—which Plaintiffs and 9 putative bond hearing (BH) class members have cited to support their eligibility for bond 10 hearings—“should be overruled.” Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018); Matter of 11 M-S-, 27 I&N Dec. 476 (A.G. 2018). Defendants mistakenly state that Plaintiffs “concede” that 12 their bond claims depend on Matter of X-K-, and that Plaintiffs “implicitly concede” that 13 Defendant Sessions’ future decision in Matter of M-S- will resolve all issues “with respect to the 14 bond hearing class.” Dkt. 83 at 1.1 While Plaintiffs have cited to Matter of X-K- as evidencing 15 16 17 18 19 the availability of bond hearings, the Due Process Clause of the Fifth Amendment as well as the regulatory basis underlying the decision in Matter of X-K- long have provided the foundational basis for those hearings. The Court’s decision in Jennings does not change that fact, and any contrary conclusion by Defendant Sessions would warrant review by this Court. This Court should deny Defendants’ motion. First, as discussed in Plaintiffs’ preliminary 20 21 injunction motion and herein, proposed BH class members face substantial, irreparable harm 22 from the existing delay and lack of adequate procedural protections in those hearings. Staying 23 proceedings at this junction would further exacerbate that harm. Second, as Defendants readily 24 25 admit, when Defendant Sessions will issue a decision in Matter of M-S- is entirely speculative. Recent certification decisions suggest that Defendant Sessions likely will not issue a decision for 26 27 28 Defendants do not, and could not, suggest that Matter of M-S- implicates Plaintiffs’ claims on behalf of the credible fear class. Indeed, Defendants ignore those claims in the motion. 1 PLS.’ OPP. TO DEFS.’ DEADLINE MX. -1 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 3 of 15 1 2 3 months. Furthermore, that decision ultimately may not change bond practices because serious constitutional concerns would result from the elimination of bond hearings. If and when Defendant Sessions issues a decision in Matter of M-S-, this Court may address that decision as 4 5 6 needed, including with respect to the pending motions for class certification and preliminary injunctive relief. This Court retains broad discretion to modify the class definitions as needed 7 throughout the course of the litigation. Similarly, where appropriate, Defendants may move to 8 modify any preliminary injunctive relief that this Court has provided. II. 9 10 A. BACKGROUND Defendants’ Anti-Asylum Seeker Policies and Actions 11 Plaintiffs seek to protect the rights of individuals seeking asylum in the United States, 12 challenging Defendants’ systemic actions to impede their ability to seek protection, even after 13 14 having been found by an asylum officer to have a credible fear of return to their country of origin. Because it is important to place Defendants’ pending motion in context, Plaintiffs provide 15 16 17 18 19 20 21 22 23 24 a brief overview of Defendants’ recent anti-asylum seeker policies and actions. On October 12, 2017, Defendant Sessions delivered the following remarks to Defendant Executive Office for Immigration Review (EOIR): [I]n 2009, the previous Administration began to allow most [noncitizens] who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes—and case law that has expanded the concept of asylum well beyond Congressional intent—created even more incentives for illegal [noncitizens] to come here and claim a fear of return. . . . The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims. . . . Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing—if the [noncitizen] shows for the hearing. 25 Jefferson B. Sessions III, Att’y Gen., Attorney General Jeff Sessions Delivers Remarks to the 26 Executive Office for Immigration Review (Oct. 12, 2017), https://tinyurl.com/y9n3alru. 27 Defendant Sessions reiterated these themes multiple times over the past year. In another 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. -2 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 4 of 15 1 speech to Defendant EOIR in June 2018, he expressed disapproval of the credible fear process, 2 claiming that “[s]aying a few simple words—claiming a fear of return—is now transforming a 3 straightforward arrest for illegal reentry and immediate return to a prolonged legal process where 4 5 6 [a noncitizen] may be released from custody into the United States and possibly never show up for an immigration hearing.” Jefferson B. Sessions III, Att’y Gen., Attorney General Sessions 7 Delivers Remarks to the Executive Office for Immigration Review Legal Training Program 8 (June 11, 2018), https://tinyurl.com/yasya8v3. Similarly, he criticized “the previous 9 Administration” for “releas[ing] most [noncitizens] apprehended at the border who requested 10 asylum into the United States with a document asking them to show up for a hearing at some 11 later date.” Jefferson B. Sessons III, Att’y Gen., Attorney General Sessions Addresses Recent 12 Criticisms of Zero Tolerance By Church Leaders (June 14, 2018), https://tinyurl.com/y9t2nay9. 13 14 In September 2018, speaking to a new class of immigration judges, Defendant Sessions repeated that “[s]aying a few simple words—claiming a fear of return—has transformed a straightforward 15 16 17 18 arrest for illegal entry and immediate return to too often a prolonged legal process, where [a noncitizen] may be released from custody into the United States and possibly never show up for an immigration hearing.” Jefferson B. Sessions III, Att’y Gen., Attorney General Sessions 19 Delivers Remarks to the Largest Class of Immigration Judges in History for the Executive Office 20 for Immigration Review (EOIR) (Sept. 10, 2018), https://tinyurl.com/y7jrxl2v (“September 10 21 Speech”). And even more pointedly, he opined that allowing release on bond for individuals who 22 pass credible fear interviews creates “[p]owerful incentives . . . to come here illegally and claim 23 a fear of return.” Id. 24 25 Earlier this year, in April 2018, Defendant Sessions announced the “Zero-Tolerance Policy,” pursuant to which the government would criminally prosecute all noncitizens who 26 crossed the southern border, including asylum seekers, and would separate parents from their 27 28 children. Defendant Sessions warned individuals crossing the southern border, including asylum PLS.’ OPP. TO DEFS.’ DEADLINE MX. -3 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 5 of 15 1 seekers, that they would “not be rewarded” and would “be met with the full prosecutorial powers 2 of the Department of Justice.” Press Release, U.S. Dep’t of Justice, Attorney General Announces 3 4 5 6 7 Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), https://tinyurl.com/y96nsut6; see also September 10 Speech (describing the “deterrent effect” of the Zero Tolerance Policy against asylum seekers who “abuse[]” the immigration system “to the detriment of the rule of law, sound public policy, and public safety”). 8 Subsequently, after sustained public outcry against the ensuing separation of thousands of 9 parents and children, President Trump issued an Executive Order directing an end to the practice 10 in the future, although doing nothing to reunite the thousands of children already separated from 11 their parents. See Exec. Order No. 13841, 83 Fed. Reg. 29435, Affording Congress an 12 Opportunity to Address Family Separation (Jun. 20, 2018). Moreover, the Executive Order re- 13 14 15 16 17 18 committed Defendants to keep asylum seekers detained while they present their claims to immigration courts. Id. § 3(a) (directing DHS to “maintain custody of [noncitizen] families during the pendency of any . . . immigration proceedings involving their members”). Defendants also made it more difficult for asylum seekers to qualify for asylum and prevail on the merits of their claims. Defendants Sessions certified a case to himself and issued a 19 nationwide, precedential decision that restricted the circumstances under which an asylum seeker 20 can demonstrate membership in a protected group. Matter of A-B-, 27 I&N Dec. 316 (A.G. 21 2018). That decision is binding on Defendant EOIR. In implementing the decision, Defendant 22 USCIS directed USCIS asylum officers to broadly reject categories of asylum claims related to, 23 for example, domestic violence and gang violence. As part of that directive, Defendants 24 25 emphasized the discretionary nature of asylum and urged consideration of whether asylum seekers who have entered without inspection and/or did not pursue refugee status in their 26 countries of origin when determining whether to exercise such discretion, even in credible fear 27 28 interviews. See USCIS, PM-602-0162, Guidance for Processing Reasonable Fear, Credible Fear, PLS.’ OPP. TO DEFS.’ DEADLINE MX. -4 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 6 of 15 1 2 3 4 5 6 Asylum, and Refugee Claims in Accordance with Matter of A-B- (Jul. 11, 2018); see also Matter of A-B-, 27 I&N at 345 n.12. B. Defendant Sessions’ Certification Decisions Just as Defendants’ anti-asylum seeker policies and actions may inform this Court’s review of the pending motion, so too should Defendant Sessions’ use of the certification 7 authority pursuant to 8 C.F.R. § 1003.1(h)(1)(i). Since January 2018, Defendant Sessions 8 referred the following eight matters to himself: 9  Matter of Castro-Tum (referred Jan. 4, 2018): Defendant Sessions certified the case of a pro se respondent, and identified seven far-reaching questions related to administrative closure. 27 I&N Dec. 187, 187 (A.G. 2018). Defendant Sessions issued a decision on May 17, 2018 that limited the ability of IJs to administratively close cases. 27 I&N Dec. 271 (A.G. 2018).  Matter of E-F-H-L- (decided Mar. 5, 2018): Two months later, in Matter of E-F-H-L-. 27 I&N Dec. 226, 226 (A.G. 2018), Defendant Sessions vacated a precedent decision previously issued by the Board that held that “a respondent applying for asylum and withholding of removal [is] ordinarily entitled to a full evidentiary hearing.” Id.  Matter of A-B- (referred Mar. 7, 2018): In this case, Defendant Sessions certified to himself the following question for review: “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” 27 I&N Dec. 227, 227 (A.G. 2018). Defendant Sessions issued a decision on June 11, 2018, that limited the circumstances under which an asylum seeker can demonstrate membership in a protected group. 27 I&N Dec. 316 (A.G. 2018).  Matter of L-A-B-R- (referred Mar. 22, 2018): Defendant Sessions referred three consolidated cases to himself “for review of issues relating to when there is ‘good cause’ to grant a continuance for a collateral matter to be adjudicated.” 27 I&N Dec. 245, 245 (A.G. 2018). He issued a decision restricting the definition of “good cause” on August 16, 2018. 27 I&N Dec. 405 (A.G. 2018).  Matter of S-O-G-& F-D-B- (decided Sept. 18, 2018): Defendant Sessions self-referred this case without notifying the public. On September 18, 2018, he held that IJs may dismiss or terminate removal proceedings only under circumstances expressly identified in the regulations. 27 I&N Dec. 462 (A.G. 2018). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. -5 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 7 of 15 1  Matter of M-G-G- (referred Sept. 18, 2018): In referring to himself yet another pro se case, Defendant Sessions’ sought to review whether “Matter of X-K-, 23 I&N Dec. 731 (BIA 2005) . . . should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).” 27 I&N Dec. 469, 469 (A.G. 2018). On October 12, 2018, he stated he would not review the case because the noncitizen seeking release from custody had been deported. Matter of M-G-G-, 27 I&N Dec. 475 (A.G. 2018).  Matter of M-S- (referred Oct. 12, 2018): On the same day Defendant Sessions stated he would not review Matter of M-G-G-, he certified the same question to himself in a separate case. 27 I&N Dec. 476 (A.G. 2018).  Matter of Negusie (referred Oct. 18, 2018): In his latest certification order, Defendant Sessions stayed the Board’s precedent decision in Matter of Negusie, 27 I&N Dec. 347 (BIA 2018), which held that duress is an available defense from being barred from asylum or withholding of removal based on the persecution of others, and asked for further briefing on that issue. 27 I&N Dec. 481 (A.G. 2018). 2 3 4 5 6 7 8 9 10 11 To date, 4 of 8 of Defendant Sessions’ certification decisions and 4 of 7 of the certified 12 questions implicate asylum seekers. None of the certifications contain contact information for the 13 individual, his/her counsel, nor any case-related information that may inform briefing, and at 14 15 least three of the certified cases are known to involve pro se individuals. Although there is little case law addressing the referral authority itself—including its validity, scope, and the process 16 17 18 required—the Third Circuit has criticized at least one decision where the Attorney General took an “unusual” approach in matters of referral and adjudication. Jean-Louis v. Att’y Gen., 582 F.3d 19 462, 470 n.11 (3d Cir. 2009); see also Laura S. Trice, Adjudication by Fiat: The Need for 20 Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 21 85 N.Y.U. L. Rev. 1766 (2010). 22 In his speech to the new class of IJs, delivered just over a month ago, Defendant Sessions 23 confirmed that he will continue to rapidly employ the regulatory certification authority to make 24 nationwide law: [E]arlier this year, I issued a decision that restores sound principles of asylum and long standing principles of immigration law. . . . But it isn’t the only thing we have done to provide clarity to the process. I have also issued decisions on other topics— in one case, clarifying that immigration judges and the Board lack the authority to “administratively close” cases under the law; in another, clarifying the “good 25 26 27 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. -6 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 8 of 15 cause” standard for a continuance for collateral matters in immigration court; and, vacating a mooted Board decision that injected confusion as to the requirement to hold a merits hearing in certain cases. And there will be more still to come. 1 2 3 September 10 Speech. Defendant Sessions’ frequent use of the certification process to target 4 asylum seekers, combined with his statements and actions, see supra Section II.A, are 5 incompatible with the due process requirement that an impartial adjudicator decide each case on 6 7 its own merits. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002) (citation omitted) (remanding where IJ’s statements showed that he had “already judged” the respondent’s claim).2 8 III. 9 When deciding a stay motion, this Court must balance the “competing interests [that] will 10 11 12 ARGUMENT be affected by the granting or refusal to grant a stay.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)). In balancing 13 those competing interests, the Court considers “the balance of hardships between the parties” and 14 the “prospect of narrowing the factual and legal issues.” Id. at 1112. Here, as detailed in 15 Plaintiffs’ preliminary injunction motion, Dkt. 45, proposed class members face irreparable harm 16 from the delay and lack of adequate protections in bond proceedings. Moreover, Defendant 17 Sessions may take months to reach a decision on the merits of Matter of M-S-, and may 18 ultimately not change the agency’s position in Matter of X-K-. Because these factors outweigh 19 the government’s interest in staying proceedings, the Court should deny Defendants’ motion. 20 A. Staying Proceedings Would Irreparably Harm Putative Class Members 21 22 23 A stay in this case would cause serious, irrevocable harm to proposed class members. Dkt. 45 at 20-23. Defendants claim that the Plaintiffs will not face injury because they have been released from immigration custody and because the proposed class will continue to receive bond 24 25 Moreover, the Department of Justice is seeking to expand the scope of Defendants Sessions’ regulatory authority, including by authorizing certification of “certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.” Office of Management and Budget, Office of Information and Regulatory Affairs, View Rule, RIN 1125AA86 (Fall 2018), https://tinyurl.com/y8344hsr. 2 26 27 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. -7 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 9 of 15 1 hearings in the meantime. Dkt. 83 at 8-9. However, as Defendants well know, Plaintiffs 2 challenge Defendants’ practices aimed at deterring asylum seekers by prolonging their detention 3 4 5 through delaying bond hearings, and by eliminating critical procedural protections in those hearings. Dkt. 45 at 21-22. If this case were stayed, proposed class members would continue to suffer a restraint on their physical liberty without sufficient due process, in violation of their 6 constitutional rights. 7 8 9 10 11 The proposed class is comprised of asylum seekers who fled their countries of origin due to persecution, and who experience “further trauma, depression, and other medical and mental health problems” because of Defendants’ policies. Id. at 21 (citing several declarations from immigration practitioners and Plaintiffs). Moreover, protracted detention makes it difficult for 12 proposed class members to find an attorney, communicate with others to assist in case 13 preparation, and to compile evidence necessary to support their applications for asylum and other 14 protection. Id. at 22-23. Given the stakes in proposed class members’ asylum cases—return to 15 likely persecution, torture, or death if they do not succeed—the harm that Defendants’ policies 16 inflict on the proposed class members is exceptionally severe and irreparable. Id.; cf. Leiva-Perez 17 v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (finding stay of deportation warranted where 18 petitioner was likely to face extortion and “savage beatings” if removed). 19 20 21 22 23 24 In addition, absent action by this Court, putative BH class members will continue to face delayed access to bond hearings, causing some proposed class members to give up their cases— despite the fact that they already have demonstrated a bona fide asylum claim to an asylum officer. Dkt. 45 at 23. Finally, many proposed class members remain separated from family during the continued detention they face because of Defendants’ policies. See Dkt. 45 at 23; see also Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (identifying “separated families” 25 26 27 as relevant factor for irreparable harm analysis). Indeed, the named Plaintiffs themselves faced these same injuries during their detention, underscoring the gravity of the continued injury that 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. -8 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 10 of 15 1 2 3 putative BH class members face absent prompt action by this Court. See Dkt. Nos. 57, 61. As a result, the harm factor strongly favors denying Defendants’ motion to hold this case in abeyance. B. 4 5 Other Factors Also Support Denying Defendants’ Motion to Delay This Case Additional considerations also weigh in favor of deciding the pending motions for class certification, preliminary injunctive relief, and Defendants’ motion to dismiss, rather than 6 7 8 9 10 waiting for the Attorney General to issue a decision instead. First, although Defendants “anticipate that any stay . . . would be brief,” no timeline exists for the Attorney General’s decision. Dkt. 83 at 9. As recent self-certifications demonstrate, the decision could take months to resolve. For example, Defendant Sessions certified Matter of Castro-Tum the case to himself 11 on January 4, 2018, but the case was pending for five months until May 17, 2018. See 27 I&N 12 Dec. 187 (A.G. 2018); 27 I&N Dec. 271 (A.G. 2018). Similarly, Defendant Sessions certified 13 Matter of L-A-B-R- to himself on March 22, 2018, but did not reach a decision until nearly five 14 months later, on August 16, 2018. See 27 I&N Dec. 245 (A.G. 2018); 27 I&N Dec. 405 (A.G. 15 2018). 16 Plaintiffs have moved for class certification and preliminary injunctive relief seeking to 17 alleviate immediate, ongoing, irreparable harm for putative class members. Defendants may seek 18 to alter how the agency interprets the statutory authority for proposed class members’ bond 19 hearings, but, regardless, their actions continue to violate proposed class members’ constitutional 20 rights with respect to bond hearings. Even if Defendant Sessions ultimately abrogates the 21 agency’s position regarding the availability of such hearings, this Court has ample authority, 22 23 24 25 where appropriate, to modify any class definition or order granting preliminary injunctive relief. See, e.g., Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001) (“[Rule 23] provides district courts with broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court.”), abrogated on other 26 grounds by Johnson v. California, 543 U.S. 499 (2005); A&M Records, Inc. v. Napster, Inc., 284 27 28 F.3d 1091, 1098 (9th Cir. 2002) (“A district court has inherent authority to modify a preliminary PLS.’ OPP. TO DEFS.’ DEADLINE MX. -9 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 11 of 15 1 injunction in consideration of new facts.”). Defendants ask this Court to pause this case for an 2 indefinite period to await a decision that may not even change the agency’s position. If and when 3 4 5 Defendant Sessions modifies Matter of X-K-, this Court then may address the propriety of the action. In the meantime, there is no reason to delay ruling on the pending motions, all of which will be fully briefed by October 26, 2018. 6 Second, any decision by Defendant Sessions reversing Matter of X-K- almost certainly 7 8 9 10 11 would require ignoring fundamental principles of liberty and due process as well as revising longstanding regulations governing immigration court jurisdiction and proceedings. See 23 I&N Dec. at 734-36. Defendants attempt to obscure that fact by stating that Matter of X-K- was decided in part because of “ambiguity in the statute and applicable regulations.” Dkt. 83 at 4. 12 That conclusion does not find support in Matter of X-K-, the statute, or applicable regulations. 13 Defendant Sessions points to the Supreme Court’s decision in Jennings v. Rodriguez to question 14 the ongoing validity of Matter of X-K-. See Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018). 15 However, in Jennings, the Court expressly declined to address any of the constitutional issues 16 presented in that case. See Jennings, 138 S. Ct. at 851 (holding that because the Court of Appeals 17 “had no occasion to consider respondents’ constitutional arguments on their merits. . . . we do 18 not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them 19 in the first instance.”). 20 21 22 23 24 25 26 Serious constitutional considerations underlie and support Matter of X-K- and its reading of the current regulations. Individuals who have entered the United States long have been accorded more due process rights than those who have merely applied for admission. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). Here, proposed class members seeking adequate and timely bond hearings have all entered the country before being detained, and have all passed a credible fear interview, demonstrating that they have a “significant possibility” of obtaining asylum, 8 C.F.R. § 208.30(e)(2)—and a route to permanent 27 28 residency, and ultimately citizenship, see 8 U.S.C. § 1159(b). These additional concerns suggest PLS.’ OPP. TO DEFS.’ DEADLINE MX. - 10 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 12 of 15 1 that even were Defendant Sessions to attempt to modify the agency’s position from Matter of X- 2 K-, the result would run afoul of constitutional requirements. 3 4 5 6 Indeed, as the Supreme Court and the Ninth Circuit have repeatedly affirmed, “once a[] [noncitizen] enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) 7 8 9 10 11 (emphases added); see also Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc) (due process protects “every person within the nation’s borders . . . ‘[e]ven one whose presence in this country is unlawful, involuntary, or transitory’”) (quoting Mathews v. Diaz, 426 U.S. 67, 77 (1976)); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1108 (9th Cir. 2001) (“[O]nce a[] 12 [noncitizen] has ‘entered’ U.S. territory, legally or illegally, he or she has constitutional rights, 13 including Fifth Amendment rights.”). Those due process rights apply regardless of when and 14 how an individual entered the United States. See, e.g., Flores-Chavez v. Ashcroft, 362 F.3d 1150, 15 1153, 1160-62 (9th Cir. 2004) (finding that noncitizen apprehended the same day as his unlawful 16 entry is entitled to due process); Rios-Berrios v. INS, 776 F.2d 859, 860, 862-63 (9th Cir. 1985) 17 (same). 18 The relevant statutory and regulatory scheme, in turn, corresponds to these longstanding 19 constitutional principles that distinguish between the due process rights of those who have 20 effected an entry into the country, including an unlawful entry, and those who are deemed not to 21 have effected an entry because they were taken into custody upon arrival at a port of entry. See 22 Mezei, 345 U.S. at 212 (“[Noncitizens] who have once passed through our gates, even illegally, 23 24 25 26 may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”). Sections 1225(b)(1) and (2) of Title 8 encompass expedited removal and credible fear procedures for two separate categories of noncitizens: first, those who are apprehended upon arriving at a port of entry and are deemed “arriving 27 28 [noncitizens],” and second, those who are apprehended after entering without inspection and are PLS.’ OPP. TO DEFS.’ DEADLINE MX. - 11 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 13 of 15 1 labeled as “certain other [noncitizens].” The statute states that once an “arriving [noncitizen]” or 2 “certain other [noncitizen]” passes a credible fear interview, “the [noncitizen] shall be detained 3 for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). They are 4 5 6 7 8 9 10 11 then transferred to regular removal proceedings under 8 U.S.C. § 1229a to apply for asylum and any other immigration benefits for which they may qualify. See 8 C.F.R. § 208.30(f). Matter of X-K- concluded that the regulations clearly—not ambiguously—treat “arriving [noncitizens]” and “certain other [noncitizens]” differently once in regular removal proceedings. Specifically, an IJ may review DHS’s detention decision for “certain other [noncitizens]” under the regulations, while an IJ may not do so for an “arriving [noncitizen].” 23 I&N Dec. at 731, 734-35 (explaining that 8 C.F.R. § 1003.19 differentiates between these two classes of 12 noncitizens by “specifically exclud[ing]” arriving noncitizens from IJ custody determinations). 13 In other words, the regulations make clear that “certain other [noncitizens]” are not subject to the 14 mandatory detention provision in 8 U.S.C. § 1225(b)(1)(B)(ii). As explained above, that 15 distinction is rooted in fundamental constitutional principles concerning due process. 16 Given this clear constitutional and regulatory distinction—the result in Matter of X-K- 17 should not—and cannot—change simply because the Attorney General certified a case to 18 himself. Indeed, Defendant Sessions has little reason to think the Supreme Court has even 19 addressed noncitizens in Plaintiffs’ position, as the class before the Court in Jennings dealt only 20 with arriving noncitizens—those who are not entitled to an initial custody hearing—and not 21 “certain other [noncitizens].” See Rodriguez v. Robbins, 715 F.3d 1127, 1139-40 (9th Cir. 2013) 22 (describing members of the Jennings § 1225(b) subclass as “applicants for admission,” and not 23 24 25 as individuals who have already entered the United States). Accordingly, Plaintiffs request that the Court adjudicate the pending motions seeking protection for proposed class members who continue to suffer deprivation of their constitutional rights. 26 CONCLUSION 27 28 For the foregoing reasons, the Court should deny Defendants’ motion. PLS.’ OPP. TO DEFS.’ DEADLINE MX. - 12 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 14 of 15 1 RESPECTFULLY SUBMITTED this 24th day of October, 2018. 2 3 4 5 6 s/ Matt Adams Matt Adams, WSBA No. 28287 Email: matt@nwirp.org s/ Trina Realmuto Trina Realmuto* Email: trealmuto@immcouncil.org s/ Glenda M. Aldana Madrid Glenda M. Aldana Madrid, WSBA No. 46987 Email: glenda@nwirp.org s/ Kristin Macleod-Ball Kristin Macleod-Ball* Email: kmacleod-ball@immcouncil.org s/ Leila Kang Leila Kang, WSBA No. 48048 Email: leila@nwirp.org American Immigration Council 100 Summer Street, 23rd Floor Boston, MA 02110 (857) 305-3600 7 8 9 10 11 12 13 14 15 16 s/ Aaron Korthuis Aaron Korthuis, WSBA No. 53974 Email: aaron@nwirp.org *Admitted pro hac vice Northwest Immigrant Rights Project 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 Facsimile: (206) 587-4025 Attorneys for Plaintiffs-Petitioners 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. - 13 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611 Case 2:18-cv-00928-MJP Document 84 Filed 10/24/18 Page 15 of 15 1 2 3 CERTIFICATE OF SERVICE I hereby certify that on October 24, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to those 4 attorneys of record registered on the CM/ECF system. All other parties shall be served in 5 6 7 accordance with the Federal Rules of Civil Procedure. DATED this 24th day of October, 2018. 8 9 10 11 12 13 s/ Aaron Korthuis Aaron Korthuis, WSBA No. 53974 Email: aaron@nwirp.org Northwest Immigrant Rights Project 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone: (206) 816-8611 Facsimile: (206) 587-4025 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP. TO DEFS.’ DEADLINE MX. - 14 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Tel. (206) 957-8611