Weekly Blog for 4.12.19 by Merle Kahn, Esq. – Part II – The District Courts
Over the past few weeks we have had some very interesting decisions out of the District Courts. One of the more interesting decisions is Northern District of California ruling enjoining the “Migrant Protection Protocols” (MPP) (or “Remain in Mexico”) because it violates the Administrative Procedures Act (APA). Judge Seeborg issued the decision on April 8, 2019 and ordered it to go into effect on April 12, 2019. The Ninth Circuit halted the injunction and will be ruling on the case. I am not going to blog about it because it is under appeal. But you can read the District Court decision here. Innovation Law Lab, et al. v. Nielsen, et al., No. 19-cv-00807-RS (N.D. Cal. April 8, 2019). Needless to say, the attorneys did a fantastic job.
Two other District Court cases have recently come down. One holds that asylum applicants who have passed a credible fear interview must be granted a bond hearing within seven days of the bond request; DHS has the burden of proof to establish why the Government should not release the class member on bond or parole during the proceedings; EOIR must record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and EOIR must produce a written decision with particularized determination of individualized findings at the conclusion of the bond hearing. That is one great decision.
The second decision is really interesting for those of us who do consular processing cases. Here the District Court ruled that the Plaintiffs could conduct limited discovery on the reasoning behind the denial of an immigrant visa application at the U.S. Consulate in El Salvador. The decision is limited to a discovery request, but it provides us with a good framework to challenge Consular denials.
Asylum Applicants Who Have Established a Credible Fear of Persecution Are Entitled to a Bond Hearing Within Seven Days and the Government Bears the Burden of Proof to Establish that the Applicant is a Flight Risk or a Danger to Society
In a fantastic case out of the District Court of the Western District of Washington (Seattle) the District Court granted Plaintiffs’ motion preliminary injunction and ruled that within thirty days of the order (or May 5, 2019) EOIR must do the following:
- Conduct bond hearings within seven days of a bond hearing request by a class member and release any class member whose detention time exceeds that limit.
- Place the burden of proof on DHS in those bond hearings to show why the Government should not release the class members on bond, parole, or other conditions.
- EOIR must record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal. And,
- EOIR must produce a written decision with particularized determinations of individualized findings at the end of the bond hearing.
Padilla v. U.S. Immigration and Customs Enforcement, No. C18-928 MJP (W.D. Wash. April 5, 2019) slip op. at *2. These holdings are all you really need to know about this case. But it’s a fun case with a lot of great legal theories that can help our clients so let’s delve into it.
The Court starts its decision by giving us background about the case. Asylum seekers who have passed a credible fear interview may request release from custody during the asylum process. Matter of X-K-, 23 I.&N. Dec. 731 (BIA 2005). DHS makes the initial bond determination. 8 C.F.R. § 236.1(c)(8). Asylum seekers may request review of DHS’s determination before the immigration court. INA § 236(a); 8 C.F.R. § 1003.47(k). However, EOIR has been delaying bond hearings for members of this class for weeks and even months after a hearing request.
In an immigration bond hearing, the noncitizen must establish that (1) they are not a flight risk; and, (2) they are not a danger to the community. I am so used to that standard that this sentence from the decision really shocked me. “Unique among civil detention hearings, however, EOIR places the burden of establishing these factors on the detainees instead of the government.” Padilla, slip op. at *3-4 (emphasis added). What? It’s unique? I am so used to that standard that it never occurred to me to question it. But, sure enough, the District Court is right. The burden of proof requirements is spelled out in the BIA decisions, the regulations, and the Immigration Court Practice Manual. The statute is silent about who has the burden of proof.
The Court then discusses the elements that the plaintiffs have to prove to get injunctive relief: (1) likelihood of success on the merits; (2) irreparable harm in the absence of the injunction; (3) a balance of equities which favors the moving party; and, (4) the existence of a public interest which favors the injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit the courts use a “sliding scale” approach. “[I]f the balance of hardships tips sharply in favor of the moving party, that party is only required to demonstrate claims that raise serious legal questions as well as meet the other two criteria. See e.g. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). Padilla, slip op. at *4-5. I have to admit; I like filing for injunctions. The law is so formulaic that it is easy to write a motion. The Plaintiffs in this case did an excellent job really setting out the hardships that they are suffering.
Before getting to the formulaic part of the injunction, the District Court addressed the issue of standing. Apparently, the Government gave the named Plaintiffs bond hearings and released them from detention during the pendency of the litigation. The Government then argued that the named Plaintiffs had no standing to bring this motion because they had no cognizable injury. The District Court quickly dispatched with that argument recognizing the “right of these class representatives to prosecute “inherently transitory” claims (claims which by their nature may expire for any one individual during the course of the litigation) for those remaining members of the class who are still being injured by the policy or practice.” Padilla, slip op. at *5. Now to the formulaic part.
LIKELIHOOD OF SUCCESS ON THE MERITS
To determine the likelihood of success on the merits, the District Court uses the balancing test in Mathews v. Eldridge, 424 U.S. 319 (1976). I tell you, writing one of these motions is like putting on an old comfortable sweatshirt. You just know what to do. I mean, who among us has never heard of Mathews v. Eldridge? It’s one of the first cases you learn about in Constitutional law. Here is the balancing test:
- What is the private interest that will be affected by official action?
- What is the risk of an erroneous deprivation of such interest through the procedures used?
- What is the probable value of additional or substitute procedural safeguards; and,
- What is the Government’s interest? The Government’s interest includes the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Private Interest in Freedom
First the District Court looks at the private interest in freedom. The District Court recognizes that immigration detainees have a constitutionally protected interest in their freedom. Yeah, that seems reasonable. The District Court uses some very strong language: “The Ninth Circuit has recognized that, in the area of non-criminal detention of immigrants, “the private interest at issue here is ‘fundamental’: freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.” Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017).*.*.*. The Ninth Circuit described the fundamental nature of that interest as “beyond dispute.” Id.” Padilla, slip op. at *6.
The Government argued that the Plaintiffs have no constitutional rights because they are a class of “excludable aliens” who have no inherent due process rights. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). The District Court notes that the Plaintiffs were already within the territorial borders of the United States when they were detained so they are not considered to be “excludable aliens.” Once that argument did not work, the Government argued that as explained by the Supreme Court in Jennings v. Rodriguez the statute bars noncitizens from being granted a bond hearing during their removal hearings. The District Court was very restrained in its response to this argument. (Much more restrained than I would have been). Here’s the language: “This is an oversimplified and inaccurate reading of that portion of the ruling, which concerns 8 U.S.C. § 1225(b)(1) [INA § 235(b)(1)], and quotes its language that “[a]ny alien…shall be detained pending a final determination of credible fear of persecution and, if not found to have such a fear, until removed. Jennings, 138 S. Ct. [830,] 845 (2018).” Padilla, slip op. at *7 (emphasis in the original). As I said, the District Court was very restrained. In other words, that section of Jennings v. Rodriguez does not apply. The Government elided the controlling language.
The District Court found that the fundamental liberty interest implicated by the Bond Hearing Class’s prolonged and indefinite detention extends to the procedural remedies which they are seeking. These remedies include the following issues: (1) placing the burden of proof on the Government to establish the need for detention; (2) the right to a verbatim record of the proceedings; and, (3) the right to timely written findings of the adjudicator. The Government argues that it is “harmless error” not to provide these safeguards. The District Court really goes off on the Government (in a remarkably constrained way):
“Plaintiffs here are faced with a similar choice – accept their indeterminate detention and receive bond hearings at the Government’s pleasure with a reversed and inequitable burden of proof and procedural deficiencies which impact their ability to appeal an adverse determination or (as the Defendants have suggested) give up their asylum claim and allow themselves to be deported back to a homeland where they have already been found to have a credible fear of injury or death. The Constitution does not require these Plaintiffs to endure such a no-win scenario.”
Padilla, slip op. at *9. Well, maybe the judge isn’t too restrained here.
The Government then argues that the Plaintiffs have not exhausted their administrative remedies. The District Court swings the hammer, “[f]urthermore, Plaintiffs’ evidence demonstrates that, Defendants having shown no inclination to modify any of their policies, the administrative remedy is inadequate.” Padilla, slip op. at *9 (emphasis in the original).
Then the Government argues that the Plaintiffs have no constitutional right to a verbatim record or automatic written findings. The Government cites to criminal proceedings and says that not even criminal defendants have a guaranteed right to a verbatim record. Here it appears that the Government may have misstated or misconstrued the law. The District Court cites old Supreme Court and Ninth Circuit cases holding that criminal defendants “[m]ust be provided with a “record of sufficient completeness” (Coppedge v. United States, 369 U.S. 438, 447 (1962)). Padilla, slip op. at *10. Usually I have the highest respect for the government attorneys from the Office of Immigration Litigation. But I’m really wondering who was arguing this case and writing these briefs? When the case law is against me, I hate arguing it, but I know that I have to argue it and try to distinguish it. What exactly is the government doing here? Do they think that the District Court won’t notice?
On the very next page of the decision, the District Court once again points out the fallacy in another one of the Government’s arguments.
“Regarding Plaintiffs’ interest in shifting the burden of proof at the bond hearings, Defendants again wrongly cite Jennings for their argument that Plaintiffs must continue to bear the burden of proof. (Respondent at 18). The Supreme Court in Jennings declined to address the constitutional arguments on their merits, instead remanding them to the appellate court for that purpose. 138 S.Ct. at 851. In every other context (both civil and criminal detention), the government bears the burden of proof regarding suitability for release (with the corresponding presumption in favor of release) – the Supreme Court has upheld that allocation of the burden where it was found … and struck it down where it was not.
Padilla, slip op. at *11 (internal citations omitted). Seriously dudes, just don’t misrepresent the law. It undermines your credibility. The District Court concludes by finding that the Plaintiffs have succeeded in establishing the existence of the private interests that are being impacted by the government action.
Risk of Deprivation/Value of Procedural Safeguards
The District Court starts this section of its order by noting that the risk of deprivation occasioned by indeterminate prolonged civil detention is almost too obvious to state. Padilla, slip op. at *12. (I love this judge). The District Court notes that the Government’s procedures which include (1) the absence of any deadline for conducting a bond hearing once a noncitizen requests a hearing; (2) placing the burden of proof on the detainees to establish grounds for relief; along with, (3) a failure to supply a verbatim record of the hearing or a contemporaneous set of written finding jeopardizes the Plaintiffs’ ability to appeal an adverse decision and it’s a further incursion upon their constitutionally protected liberty interest.
Once the District Court identifies the risks involved, they looked at the probable value of additional safeguards. The District Court finds that a timeline of seven days from the date of the bond hearing request to the date of the hearing is consistent with Congressional intent and judicial precedent. The District Court then finds that the probable value of the other safeguards increases the likelihood that the detainees be deprived of their fundamental liberty interest only where absolutely necessary, and for no longer than necessary. The District Court notes that the Government will have additional administrative and fiscal burdens but “the Court will not exalt expense over fundamental rights to liberty.” Padilla, slip op. at *15. Damn!
Irreparable Harm
The District Court “finds that the Plaintiffs have provided solid evidentiary and jurisprudential proof of multiple layers of irreparable injury occasioned by Defendants’ policies and practices.” Padilla, slip op. at *15. Wow! “Multiple layers of irreparable injury.” I love that phrase! The District Court first notes that any deprivation of constitutional rights constitutes irreparable injury. Then it turns to the more concrete forms of injury of prolonged detention including malnutrition, poor medical care, and the likelihood of depression. Plus, it is very difficult to get attorneys or witnesses while in detention to say nothing of the documents that the immigration officials have confiscated. Plus, there is the difficulty of appealing a denial if the detainee does not know what the grounds were for the denial.
Balance of Equities/Public Interest
When the Government is a party to a case the balance of equities and the public interest merge.
“The equities on Plaintiffs’ side consist of the deprivation of a fundamental constitutional right with accompanying harms that range from physical, emotional and psychological damage to unnecessarily prolonged separation from their families to a denial of due process. The equities on Defendants’ side are primarily concerned with the agencies’ right to control their dockets and to allocate what are unquestionably limited resources as they see fit. This is not a close call.”
Padilla, slip op. at 17-18. The District Court ends the case by stating that EOIR must institute the procedural safeguards within thirty days of this Order (or by May 5, 2019). It’s a fantastic read. Padilla, et al., v. U.S. Immigration and Customs Enforcement, et al., No. C18-928 MJP (W.D. Wash. April 5, 2019).
District Court Grants Discovery in a Consular Processing Request
A huge thank you to Rachael Keast for bringing this case to my attention. I am not sure who the attorney was on this case, but they did a great job. The District Court for the Central District of California granted a discovery request in a consular processing case. Generally, when I think about consular processing, I just think about the Supreme Court’s decision in Kerry v. Din and think there is no hope and there is nothing that anyone can do. But this case proves me wrong.
FACTS
Luis Ascencio is a native and citizen of El Salvador who came to the United States in March 2005. In July 2010, he married Sandra Munoz, a native-born U.S. citizen. Ms. Munoz filed an immigrant visa petition for her husband and in April 2015, Mr. Ascencio went to the U.S. Consulate in El Salvador with his approved immigrant visa petition. Like many young men, Mr. Ascencio has several tattoos. He was prepared for an interview at the Consulate. He submitted evidence from Humberto Guizar, an attorney and a court-approved gang expert. Mr. Guizar reviewed Mr. Ascencio’s tattoos and declared that Mr. Ascencio was not a gang member and had no tattoos that are representative of any known criminal gangs or any known criminal organizations either in El Salvador or in the United States.
You would think that would be the end of the story. But then, we would not have a story. On December 28, 2015, the U.S. Consulate denied Mr. Ascencio’s visa application finding that he was inadmissible under INA § 212(a)(3)(ii) (any noncitizen who a consular officer knows or has reason to believe seeks to enter the United States to engage solely, principally, or incidentally in unlawful activity is inadmissible). Ms. Munoz contacted Judy Chu, her Congressional representative, and Representative Chu sent a letter to DOS. The consulate responded to her letter citing 212(a)(3)(A)(ii) but provided no specific facts for finding Mr. Ascencio inadmissible. In April 2016, the consulate forwarded the case to the immigration visa unit for review. The Immigration Visa Unit agreed with the consulate’s findings but did not give a reason why. The Plaintiffs sued in District Court. They raised six causes of action:
- The visa denial was not facially legitimate and bona fide;
- The visa denial violates the Equal Protection Clause of the Fifth Amendment;
- The visa denial violates the separation of powers clause;
- The visa denial was made in bad faith;
- The visa denial without judicial review violates the Administrative Procedures Act; and,
- Section 212(a)(3)(A)(ii) of the INA is unconstitutionally vague.
The Plaintiffs sought an explanation for the denial of the visa application.
LEGAL ANALYSIS
The District Court noted that while the discretionary decisions of executive officials in immigration cases are subject to judicial review; that judicial review is narrow. “[I]n the context of denying a visa application, a court must “limit[] its inquiry to the question whether the Government had provided a ‘facially legitimate and bona fide’ reason for its action.” Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring). Din lays out a two-part test for determining whether the denial of a visa provides the “facially legitimate and bona fide” reason. “First, the consular officer must deny the visa under a valid statute of inadmissibility. *.*.*. Second, the consular officer must cite an admissibility statute that ‘specifies discrete factual predicates the consular officer must find to exist before denying a visa,” or there must be a fact in the record that ‘provides at least a facial connect to’ the statutory ground of inadmissibility.” Munoz v. U.S. Department of State, No. CV-17-0037AS, slip op. at *3 (C. D. Cal. April 2, 2019).
The District Court noted that the consular officer’s mere conclusion that Mr. Ascencio is a member of MS-13 is unsupported by any evidence or discrete fact in the record that provides at least a facial connection to the ground of inadmissibility. The interview, criminal record review, and the tattoos are not enough. “The term ‘reason to believe’ shall be considered to require a determination based on facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations. Munoz, slip op. at *4. The reason to believe standard is more than just mere suspicion; it is a probability supported by the facts that the noncitizen is a member of an organized criminal entity. Id. And the gang expert’s sworn declaration disputed the Consular Officer’s conclusion.
The District Court ordered that the Plaintiffs are entitled to limited discovery. Plaintiffs may seek a deposition or a Rule 31 deposition by written questions of the consular officer who refused the visa petition. The questions must regard the discrete facts in the record that provide a facial connect to Mr. Ascencio’s purported MS-13 affiliation and the consular officer’s consideration of the gang expert’s declaration. It is really an amazing case. And, it gives us a framework for challenging the consulates when they deny visa petitions.
Munoz v. U.S. Department of State, No. CV 17-0037 AS (April 2, 2019).
Great analysis by you!