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Rojas v. Johnson

United States District Court, W.D. Washington, Seattle

March 29, 2018

CONCELY del CARMEN MENDEZ ROJAS, et al., Plaintiffs,
v.
JEH JOHNSON, Secretary of the Department of Homeland Security, in his official capacity, et al., Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Plaintiffs' Motion for Summary Judgment. Dkt. #57. Plaintiffs assert that Defendants' failure to provide all class members with notice of the one-year asylum application deadline and failure to create and implement procedural mechanisms that guarantee class members the opportunity to timely submit their asylum applications violate the Immigration and Nationality Act (“INA”), Administrative Procedure Act (“APA”), governing regulations and due process. Id. Plaintiffs assert that based on the record before this Court summary judgment in their favor is appropriate. Id. Defendants oppose the motion, arguing that Plaintiffs seek to impute notice requirements that neither Congress nor the U.S. Constitution mandates, and the Court lacks jurisdiction over Plaintiffs' claim for new procedural mechanisms. Dkt. #61. For the reasons set forth below, the Court disagrees with Defendants and now GRANTS Plaintiffs' motion.

         II. BACKGROUND

         The Plaintiff class members are asylum seekers who challenge Defendants' alleged failure to provide them with notice of the statutory requirement that an asylum seeker must apply for asylum within one year of arrival in the United States, 8 U.S.C. § 1158(a)(2)(B), as well as Defendants' alleged failure to provide a mechanism that ensures that an asylum seeker is able to comply with that deadline. Dkt. #1. The Court has certified the following classes and subclasses in this matter:

CLASS A (“Credible Fear Class”): All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of 8 U.S.C. § 1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in 8 U.S.C. § 1158(a)(2)(B).
A.I.: All individuals in Class A who are not in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
A.II.: All individuals in Class A who are in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
CLASS B (“Other Entrants Class”): All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear (NTA); and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in 8 U.S.C. § 1158(a)(2)(B).
B.I.: All individuals in Class B who are not in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
B.II.: All individuals in Class B who are in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.

Dkt. #37.

         For context, Plaintiffs have provided a brief background of the class representatives, which is undisputed by Defendants:

Plaintiff Rodriguez is a 37-year-old asylum seeker from Honduras. Mr. Rodriguez entered the United States in July 2014 and established a credible fear of persecution in an interview with USCIS. Subsequently, DHS released him from custody with an NTA, the charging document in removal proceedings, but did not inform him of the one-year deadline. DHS has not placed Mr. Rodriguez in removal proceedings yet. He only learned of the deadline when he sought counsel for his immigration case. His attempts to comply with the one-year deadline have been unsuccessful, however, as both USCIS and EOIR have rejected his asylum application - USCIS rejected it on the assumption that Mr. Rodriguez was in removal proceedings, so the application had to be filed with EOIR; EOIR rejected the application Mr. Rodriguez attempted to lodge because he is not actually in removal proceedings. As a result, he has been unable to file, or even lodge, his asylum application. See Dkt. 1 ¶ ¶ 60-66.
Plaintiff Mendez is a 30-year-old asylum seeker from the Dominican Republic. Ms. Mendez entered the United States in September 2013 and established a credible fear of persecution in an interview with USCIS. Subsequently, DHS released her from custody with an NTA, but did not inform her of the one-year deadline. She only learned of the deadline when she sought counsel for her immigration case - after one year had already passed. As she had not yet been placed in removal proceedings, Ms. Mendez attempted to file an asylum application with USCIS, but USCIS rejected it on the assumption that she already was in removal proceedings. Only after this rejection - and more than one year after she entered the country - did DHS file the NTA with the immigration court, allowing Ms. Mendez to finally lodge her asylum application with the San Antonio Immigration Court. Her first immigration court hearing will be in August 2016. See Dkt. 1 ¶ ¶ 67-74.
Plaintiff Lopez is a 37-year-old asylum seeker from Guatemala. In February 2014, she arrived at a Texas port of entry with two of her children and told the inspecting officers that she was afraid to return to Guatemala. DHS served Ms. Lopez and her children with NTAs and released them from custody with the requirement that they check in with DHS on a regular basis. DHS did not inform her of the one-year deadline. Ms. Lopez checked in with DHS on four occasions between March 2014 and September 2015, yet at no point did DHS inform her of the one-year deadline. In October 2015, she was issued a notice of hearing for November 2015 in the San Antonio Immigration Court. Ms. Lopez did not learn of the one-year deadline until she consulted an immigration attorney in December 2015. She lodged her asylum application with the court in January 2016, nearly two years after she arrived in the United States. The immigration judge subsequently terminated her removal proceedings, and she filed an asylum application affirmatively with USCIS in February 2016. USCIS has not yet scheduled an interview regarding her asylum application. See Dkt. 1 ¶ ¶ 75-81.
Plaintiff Suarez is a 29-year-old asylum seeker from Mexico. She and her five young children arrived at a California port of entry in November 2013. Upon her arrival, Ms. Suarez informed DHS that she was afraid to return to Mexico and that she was seeking asylum in the United States. She provided DHS with a sworn statement regarding her fear of returning to Mexico. Shortly afterwards, DHS released her and her children from custody with NTAs, and paroled them into the country to await a removal hearing. At no point did DHS inform Ms. Suarez of the one-year deadline. She first learned of this requirement more than a year later, when she sought counsel. She then promptly lodged her application with the San Francisco Immigration Court. Ms. Suarez is scheduled for an individual hearing in May 2017. See Dkt. 1 ¶ ¶ 82-87.

Dkt. #7 at 8-10.

         Plaintiffs allege that Defendants' policies and practices infringe on their statutory and regulatory rights to apply for asylum, often depriving them of those rights altogether, and also violate their right to due process under the Fifth Amendment to the United States Constitution.

         III. DISCUSSION

         A. ...


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