Padilla et al v. US Immigration and Customs Enforcement et al

Filing 102

ORDER granting Plaintiffs' 37 Amended Motion for Class Certification. It is further ORDERED that Plaintiffs Padilla, Guzman, Orantes and Vasquez are designated as representatives of the Credible Fear Interview Class; Plaintiffs Orantes and Vasquez as representatives of the Bond Hearing Class; and Plaintiffs' counsel as class counsel. Signed by Judge Marsha J. Pechman. (PM)

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 1 of 13

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

YOLANY PADILLA, et al.,
Plaintiffs,

11
12
13

v.

CASE NO. C18-928 MJP
ORDER GRANTING
CERTIFICATION OF THE
CLASSES

US IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,

14
Defendants.
15
16
17
18
19
20
21
22
23

The above-entitled Court, having received and reviewed
1. Plaintiffs’ Amended Motion for Class Certification (Dkt. No. 37),
2. Defendants’ Opposition to Plaintiffs’ Amended Motion for Class Certification (Dkt.
No. 68),
3. Plaintiffs’ Reply in Support of Amended Motion for Class Certification (Dkt. No.
72),
all attached declarations and exhibits, and relevant portions of the record, rules as follows:

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 1

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 2 of 13

1
2

IT IS ORDERED that the motion is GRANTED, and the following classes are certified in
this matter:

3

(1) Credible Fear Interview Class: All detained asylum seekers in the United States subject
to expedited removal proceedings under 8 U.S.C. § 1225(b) who are not provided a
credible fear determination within ten days of the later of (1) requesting asylum or
expressing a fear of persecution to a DHS official or (2) the conclusion of any criminal
proceeding related to the circumstances of their entry, absent a request by the asylum
seeker for a delayed credible fear interview.

4
5
6

(2) Bond Hearing Class: All detained asylum seekers who entered the United States without
inspection, were initially subject to expedited removal proceedings under 8 U.S.C. §
1225(b), were determined to have a credible fear of persecution, but are not provided a
bond hearing with a verbatim transcript or recording of the hearing within seven days of
requesting a bond hearing.

7
8
9
10
11

IT IS FURTHER ORDERED that Plaintiffs Padilla, Guzman, Orantes and Vasquez are
designated as representatives of the Credible Fear Interview Class; Plaintiffs Orantes and
Vasquez as representatives of the Bond Hearing Class; and Plaintiffs’ counsel as class counsel.

12
Background

13

Plaintiffs are the named representatives of a putative class seeking declaratory relief

14
15
16
17
18
19
20

related to Defendants United States Immigration and Customs Enforcement (“ICE”), United
States Department of Homeland Security (“DHS”), United States Customs and Border Protection
(“CBP”) and United States Citizenship and Immigration Services (“USCIS”)’s policies and
practices with respect to the processing of asylum and credible fear claims and the setting of
bond for detained immigrants pending resolution of those claims. Their complaint was originally
filed on June 25, 2018 (Dkt. No. 1) and has been amended twice to date. (Dkt. Nos. 8, 26.) 1

21
22
23
24

1

The complaint in this case was initially filed on June 25, 2018. (Dkt. No. 1.) Since then, it has
been twice amended. (Dkt. Nos. 8, 26.) The operative complaint is now the Second Amended
Complaint. (Dkt. No. 26 (“SAC”).) Hereinafter, all references to the complaint refer to the
SAC.

ORDER GRANTING CERTIFICATION OF THE CLASSES - 2

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 3 of 13

1

A. The Named Plaintiffs

2

Yolany Padilla: Shortly after her apprehension for illegal entry into the United States in

3

May 2018, Ms. Padilla expressed a fear of being removed to her native Honduras. (SAC at ¶

4

40.) Six weeks later, she was interviewed by an asylum officer and one day later, found to have

5

a credible fear. Two days later, she was granted a bond hearing, was awarded bond, and was

6

released in late July 2018. (Id. at ¶ 66, 115.)

7

Ibis Guzman: Ms. Guzman is also from Honduras and underwent a similar process to

8

Ms. Padilla. She was represented at her bond hearing but was denied bond. (Id. at ¶¶ 32, 99.)

9

She reserved appeal, but was released in late July 2018. (Id. at ¶ 119.)

10

Bianca Orantes: Shortly after her apprehension for illegal entry into the United States,

11

Ms. Orantes expressed a fear of returning to her native El Salvador. (Id. at ¶ 44.) About five

12

weeks later, she was interviewed by an asylum officer and, one day later found to have a credible

13

fear. (Id. at ¶ 102.) She was granted a bond hearing 11 days after her credible fear

14

determination, was denied bond, reserved appeal, but was released in late July 2018. (Id. at ¶¶

15

121, 123.)

16

Baltazar Vasquez: Shortly after his apprehension for illegal entry into the United States,

17

Mr. Vasquez expressed a fear of returning to his native El Salvador. (Id. at ¶ 46.) About eight

18

weeks later, he was interviewed by an asylum officer and found to have a credible fear. Three

19

weeks later, he was granted a bond hearing, stipulated to an $8,000 bond, waived appeal, and

20

was released. (Id. at ¶¶ 108, 125.)

21

B. The Class Claims

22

Plaintiffs seek certification of two classes: A Credible Fear Interview Class and a Bond

23

Hearing Class (collectively, the “Classes”), and assert the following remaining claims:

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 3

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 4 of 13

1

Count I (Violation of Due Process): Both Classes claim they were detained for “an

2

unreasonable time” while awaiting their credible fear interview and bond hearings. They seek to

3

impose (1) a ten-day deadline for the credible fear interview, running from the date on which the

4

non-citizen expresses a fear of returning to his or her country; and (2) a seven-day deadline for

5

the bond hearing, running from the date of a positive credible fear determination. In addition,

6

they seek procedural changes to the bond hearing including (1) that the government bear the

7

burden of proof; (2) that they be provided a recording or verbatim transcript of the hearing; and

8

(3) that the bond adjudicator issue written findings after every hearing.

9

Count II (Administrative Procedure Act): The Bond Hearing Class claims that

10

the procedural deficiencies they allege in the bond hearing process are an unconstitutional part

11

of a “final agency action” in violation of the Administrative Procedures Act, 5 U.S.C. § 706(2)

12

(“APA”). 2
Discussion

13
14

Preliminarily, Defendants again argue that the restrictions in the immigration statutes at

15

issue deprive this Court of jurisdiction. These arguments are identical to those which the Court

16

has previously rejected. (See Dkt. No. 91 at 6-8; Dkt. No. 100.) The Court will not repeat its

17

reasoning here, but will repeat its finding that it has jurisdiction to hear Plaintiffs’ claims.

18

I.

19
20

Legal Standard
Plaintiffs seek class certification under Federal Rules of Civil Procedure 23(a) and

23(b)(2). Rule 23(a) provides that a class may be certified only if: (1) the class is so numerous

21
22
23
24

2

Count II also claims that credible fear interviews and bond hearings were being “unreasonably
delayed” in violation of the APA, § 706(1). However, those claims were dismissed by the Court
under Fed. R. Civ. P. 12(b)(6). (See Dkt. No. 91 at 11-12, 16-17.) Count III (Violation of
Asylum Statute) has been abandoned. (Id. at 18.)

ORDER GRANTING CERTIFICATION OF THE CLASSES - 4

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 5 of 13

1

that joinder of all members is impracticable; (2) there are questions of law or fact common to the

2

class; (3) the claims or defenses of the representative parties are typical of the claims or defenses

3

of the class; and (4) the representative parties will fairly and adequately protect the interests of

4

the class. Rule 23(b)(2) provides that a class may be maintained if “the party opposing the class

5

has acted or refused to act on grounds that apply generally to the class, so that . . . declaratory

6

relief is appropriate respecting the class as a whole.” A class may be certified under Rule

7

23(b)(2) where the challenged conduct is “such that it can be enjoined or declared unlawful only

8

as to all of the class members or as to none of them.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

9

338, 360 (2011).

10

II.

Class Certification

11

A. Numerosity

12

Defendants do not challenge this element, and the Court finds that the requirement for

13

numerosity has been satisfied.

14

B. Commonality

15

Plaintiffs contend that, despite the differing factual circumstances among the class

16

members, all have suffered the same injury, and that injury is capable of class-wide resolution.

17

Wal-Mart, 564 U.S. at 350. Regarding the timing of credible fear interviews and bond hearings,

18

the alleged injury is the failure to hold the interviews and hearings in a constitutionally timely

19

manner (i.e., ten days and seven days, respectively, according to the complaint). Regarding the

20

bond hearings, the alleged injury is the claimed procedural deficiencies (i.e., that the burden of

21

proof is placed on the detainee; that no verbatim record and no written findings are provided

22

unless the ruling is appealed). The uniform resolution which is applicable to all members of the

23

class is a declaratory judgment that these practices are unconstitutional.

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 5

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 6 of 13

1

Regarding the timing of interviews and hearings, Defendants respond that the individual

2

circumstances of the class members and varying reasons for delays in their interviews and

3

hearings render this matter incapable of a uniform procedural resolution. For example, because

4

some of the class members have not entered at a recognized point of entry (“POE”), they are

5

subject to criminal prosecution, which may affect the timing of credible fear interviews and/or

6

bond hearings. This argument is addressed in detail in Section II.C, infra, with respect to

7

typicality and adequacy of the class representatives. The Court will confine itself here to a

8

finding that the criminal prosecutions faced by some class members will not suffice to defeat

9

commonality.

10

Regarding the procedural protections available at bond hearings, Defendants claim that

11

the balancing test in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (which weighs the

12

private interest affected by the government action, the risk of erroneous deprivation of the

13

private interest, and the government interest in the action) requires an “individualized

14

assessment,” and that imposing a strict and uniform timetable on credible fear interviews and

15

bond hearings would be inconsistent with “the flexibility inherent in due process.” Mathews

16

contains no holding to this effect, nor does it hold that a classwide deprivation of due process

17

cannot be addressed by a uniform solution.

18

Defendants further contend that due process violations in the immigration context must

19

be subjected to a “harmless error” analysis. See, e.g., Prieto-Romero v. Clark, 534 F.3d 1053,

20

1066 (9th Cir. 2008); Singh v. Holder, 638 F.3d 1196, 1210 (9th Cir. 2011). While this does

21

appear to be the state of the law regarding individual litigants, neither of these cases were class

22

action suits analyzing the commonality of class claims. The fact that certain members of the

23

Classes may not have ultimately been harmed by the allegedly unconstitutional practices of the

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 6

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 7 of 13

1

government does not mean that these practices are constitutional. Furthermore, a finding that

2

any or all of these practices are unconstitutional means, ipso facto, that they have the potential to

3

harm anyone who is subjected to them. The purpose of classwide declaratory relief is to avert

4

any such likelihood and it is self-defeating to wait until after the fact of the bond hearing to

5

decide whether the practice is unconstitutional and harmful to a particular class member.

6

As Plaintiffs point out, “courts regularly resolve procedural due process claims on a

7

class-wide basis when addressing the constitutionality of immigration agencies’ policies and

8

practices.” See, e.g., Hernandez v. Sessions, 872 F.2d 976, 993-94 (9th Cir. 2017); Walters v.

9

Reno, 145 F.3d 1032, 1047 (9th Cir. 1998); Rojas v. Johnson, 305 F. Supp. 3d 1176, 1194-1200

10

(W.D.Wash. 2018).

11

The Court finds that the requirement for commonality has been satisfied.

12

C. Typicality and Adequacy 3

13

Defendants attack the named Plaintiffs’ typicality and adequacy on multiple fronts, and

14

the Court will address each in turn:
1. The Named Plaintiffs’ Injury

15

Defendants contend that the named plaintiffs have received their credible fear

16
17

determinations and bond hearings and have all been released from custody such that they are no

18

longer facing any injury. The Court finds that these events do not defeat adequacy or typicality.

19

First, there is precedent for certifying a class where some of the proposed class members

20

have received some of the sought-after protections but others have not. See Walters, 145 F.3d at

21

1037; Rojas v. Johnson, C16-1024RSM, 2017 WL 1397749, at *5-6 (W.D. Wash. Jan. 10, 2017).

22
23
24

3

While typicality and adequacy are separate inquiries, they are in some ways overlapping and
the briefing tends to conflate the two factors. Accordingly, the Court will address them together.

ORDER GRANTING CERTIFICATION OF THE CLASSES - 7

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 8 of 13

1

Second, the resolution of the named Plaintiffs’ injuries occurred after the filing of the

2

litigation, and courts are traditionally reluctant to permit government agencies “to avoid

3

nationwide litigation that challenges the constitutionality of its general practices simply by

4

pointing to minor variations in procedure . . . designed to avoid the precise constitutional

5

inadequacies” which are at issue. Walters, 145 F.3d at 1046.

6
7
8
9
10
11

Third, Plaintiffs’ ultimate release is not a factor in a case where the nature of the class’s
common circumstance—immigration detention—renders their claims “inherently transitory”:
[W]here a plaintiff's claim becomes moot while she seeks to certify a class, her
action will not be rendered moot if her claims are "inherently transitory" (such
that the trial court could not have ruled on the motion for class certification before
her claim expired), as similarly-situated class members would have the same
complaint. The theory behind this rule is that such claims are "capable of
repetition, yet evading review."

12

Rivera v. Holder, 307 F.R.D. 539, 548 (W.D. Wash. 2015) (citing Pitts v. Terrible Herbst, Inc.,

13

653 F.3d 1081, 1090-91 (9th Cir. 2011) (describing how this "relation back" doctrine applies in

14

class actions)). Claims which would otherwise “evade review” are permitted to “relate back” to

15

the filing of the complaint for purposes of the certification analysis. Sosna v. Iowa, 419 U.S.,

16

393, 402 n.11 (1975).

17

Finally, Plaintiffs’ claims are aimed at Defendants’ policies and practices. If those

18

policies and practices are ultimately determined to be unconstitutional or otherwise violative of

19

federal law, the fact that not all class members will have been injured by those practices (due to

20

the “inherently transitory” nature of their claims) should not affect their ability to have those

21

practices declared unconstitutional as to all who find themselves in similar circumstances.

22
23
24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 8

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 9 of 13

1
2

2. The Timing and Effect of Criminal Proceedings
Defendants argue that the named Plaintiffs are atypical, having been subject to—in

3

addition to the normal immigration procedures—criminal prosecution (based upon their entry

4

into the country at some place other than a POE). Tellingly, Defendants fail to provide any

5

explanation as to how a criminal prosecution might impact the timing of the credible fear

6

interview and bond hearing or change the due process analysis. In the case of at least Ms.

7

Orantes, her credible fear interview occurred weeks after her criminal proceedings were

8

concluded. Nor do the immigration regulations regarding the right to a credible fear interview

9

and bond hearing contain any provision about criminal prosecution impacting the timing of those

10

procedures. See 8 C.F.R. § 208.31(b). The allegedly unconstitutional delays of which the

11

named Plaintiffs complain remain the same for them as the other class members.

12

In response, Plaintiffs explain:

13

[J]ust as Plaintiffs do not seek to impose deadlines where delays are at the request
of the applicant, they do not seek to require CFIs prior to a district court’s
disposition of a pending criminal charge.

14
15
16
17
18
19
20
21
22

(Dkt. No. 72 at 9.) Based upon this representation, the Court will revise the Credible Fear
Interview Class’s proposed class definition, such that the requested ten-day deadline will be run
from the disposition of any pending criminal proceedings. In other words, the Credible Fear
Interview Class will include “all detained asylum seekers . . . who are not provided a credible
fear determination within ten days of the later of (1) requesting asylum or expressing a fear of
persecution to a DHS official or (2) the conclusion of any criminal proceeding related to the
circumstances of their entry, absent a request by the asylum seeker for a delayed credible fear
interview.”

23
24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 9

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 10 of 13

1

3. The Geographical Location, Circumstances of Entry, and Challenges to
Bond Determinations

2
Defendants’ arguments that the named Plaintiffs are located in different geographical
3
regions, entered the country under different circumstances, and faced different outcomes at their
4
bond hearings, fare no better.
5
First, Defendants follow the same “indefinite detention” policy across the country,
6
regardless of their location or the circumstances of their entry. Further, these factors do not seem
7
to affect the uniformity of treatment received by the putative class members: Plaintiffs have
8
submitted affidavits from immigration attorneys across the country describing similar delays and
9
procedural deficiencies in credible fear interviews and bond hearings. (Dkt. Nos. 39-44.)
10
Second, Defendants contend that Ms. Orantes and Mr. Vasquez are neither typical nor
11
adequate to represent the bond hearing class because neither appealed their bond determination.
12
The Court fails to see how this renders them atypical or inadequate, as they were still subject to
13
the same allegedly improper circumstances (i.e., delayed bond hearings, alleged procedural
14
deficiencies) as the class they seek to represent. Additionally, where a defendant’s policies are
15
immutable, a futile effort at administrative exhaustion is not required. American-Arab
16
Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1058 (9th Cir. 1995). In any event,
17
according to the complaint, Ms. Orantes and Mr. Vazquez did intend to appeal their bond denials
18
and only abandoned these efforts when they were released.
19
4. The Named Plaintiffs’ Participation in Litigation
20
Lastly, Defendants argue that there is a lack of evidence of the named Plaintiffs’
21
“interest, willingness, and understanding of the need to participate” in their litigation, based upon
22
the absence of declarations affirming so much. As far as the Court is aware, there is no
23
requirement that a named plaintiff submit a declaration specifically affirming their interest,
24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 10

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 11 of 13

1

willingness, and understanding of the need to participate. Further, Ms. Orantes submitted a

2

declaration in connection with the pending request for a preliminary injunction. (See Dkt. No.

3

57.) The physiological, psychological, and emotional hardships she relates in those declarations

4

leave little doubt as to her interest in the case and willingness to pursue it. Defendants’ request

5

for additional time to depose the named Plaintiffs on these topics is rejected as both unnecessary

6

and unduly time-consuming.

7

The Court finds that the requirements for typicality and adequacy have been satisfied.

8

D. Classwide Relief is Appropriate

9

For the reasons discussed in Section II.B, supra, concerning the commonality

10

requirement, the Court finds that Defendants’ conduct is applicable to all class members, such

11

that declaratory relief, if granted, will be appropriate for everyone in both the Credible Fear

12

Interview and the Bond Hearing Classes.

13

E. Nationwide Certification is Appropriate

14

Defendants ask that, should the Court certify the requested classes, it not do so on a

15

nationwide basis. Their grounds for this request are (1) “intercircuit comity,” (2) the foreclosure

16

of similar litigation in other districts with the accompanying opportunity to address “unique local

17

issues”, and (3) the risk that nationwide certification would foreclose class members—who will

18

not be able to opt out—from seeking “speedier individual relief.”

19

The Court is not persuaded. As Plaintiffs point out, the proposed class representatives

20

were transferred all over the country before landing in the Western District of Washington. That

21

Defendants routinely transfer detained immigrants throughout the country prior to adjudicating

22

their cases is a fact capable of judicial notice, and the Court fails to see the logic of confining the

23

outcome of this matter to a single district.

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 11

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 12 of 13

1

Further, the Court’s analysis of the “commonality” and “typicality” factors addresses the

2

validity of “unique local issues”—Plaintiffs are seeking a uniform nationwide resolution because

3

there is no provision in the applicable regulations (or the Constitution) that permits Defendants to

4

deny due process based upon “local issues,” however “unique” they may be. In any event,

5

Defendants cite no other similar litigation elsewhere in the country, and the Court is aware of

6

none.

7

Finally, the Court finds Defendants’ concern that class members be afforded the

8

opportunity to seek “speedier individual recovery” to border on the cynical. It is again a fact

9

eligible for judicial notice that the overwhelming majority of these class members are not

10
11

sufficiently resourced to pursue litigation on their own.
The Supreme Court has recognized that nationwide certification is committed to the

12

discretion of the district court and is appropriate in some circumstances. Califano v. Yamasaki,

13

442 U.S. 682, 702-03 (1979). The Court finds that this is manifestly one of those circumstances,

14

and rejects Defendants’ request to limit the scope of the class certification.

15
16

Conclusion
Plaintiffs have established numerosity, commonality, typicality and adequacy, and have

17

further demonstrated that “declaratory relief is available to the class as a whole” and that the

18

challenged conduct is “such that it can be enjoined or declared unlawful only as to all of the class

19

members or as to none of them.” Wal-Mart, 564 U.S. at 360. The Court therefore certifies a

20

Credible Fear Interview Class and a Bond Hearing Class as defined supra; designates named

21

Plaintiffs Padilla, Guzman, Orantes and Vasquez as Credible Fear Interview Class

22

representatives and Plaintiffs Orantes and Vasquez as Bond Hearing Class representatives; and

23

appoints Plaintiffs’ counsel as class counsel.

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 12

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 13 of 13

1

The clerk is ordered to provide copies of this order to all counsel.

2

Dated March 6, 2019.

4

A

5

Marsha J. Pechman
United States Senior District Judge

3

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 13