Al Otro Lado, Inc. et al v. Nielsen, et al, No. 3:2017cv02366 - Document 166 (S.D. Cal. 2018)

Court Description: ORDER granting in part and denying in part Defendants' 135 Motion to Dismiss. Court grants in part Defendants' motion to dismiss and dismisses without prejudice: a.) Plaintiffs A.D, B.D,, and C.D's claims under Section under 706(1) only insofar as they sought to compel agency action under 8 C.F.R. 235.4, and b.) all Plaintiffs' claims under section 706(2) regarding Defendants' alleged policy. Court denies on all other grounds Defendants' motion. Court grants Plai ntiffs leave to amend the pleadings consistent with this Order. Plaintiffs may file a First Amended Complaint by 9/15/2018. If Plaintiffs do not file a First Amended Complaint or request additional time to do so, Defendants shall file an Answer by 9/24/2018. Signed by Judge Cynthia Bashant on 8/20/2018. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 13 AL OTRO LADO, INC., a California Corporation; ABIGAIL DOE, BEATRICE DOE, CAROLINA DOE, DINORA DOE, INGRID DOE, and JOSE DOE, individually and on behalf of all others similarly situated, 14 Plaintiffs, 11 12 15 16 21 22 Defendants. 18 19 20 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT [ECF No. 135] v. KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; KEVIN K. MCALEENAN, Acting Commissioner, U.S. Customs and Border Protection, in his official capacity; TODD C. OWEN, Executive Assistant Commissioner, Officer of Field Operations, U.S. Customs and Border Protection, in his official capacity, 17 Case No. 17-cv-02366-BAS-KSC 23 This case concerns an alleged practice in which U.S Customs and Border 24 Protection (“CBP”) officials at ports of entry (“POE”) along the U.S.-Mexico border 25 deny asylum seekers access to the U.S. asylum process. The Defendants in this case 26 are Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security; 27 Kevin K. McAleenan, Acting Commissioner of CBP; and Defendant Todd C. Owen, 28 the Executive Assistant Commissioner of the Office of Field Operations for CBP. –1– 17cv2366 1 Each Defendant has a role in the direction and oversight of CBP and each is sued in 2 his or her official capacity. Defendants move to dismiss the Complaint in its entirety 3 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 135.) 4 Plaintiffs oppose (ECF No. 143) and Defendants have replied in support (ECF No. 5 145). For the reasons herein, the Court grants in part and denies in part Defendants’ 6 motion to dismiss. 7 I. BACKGROUND Relevant Statutory and Regulatory Background1 8 A. 9 At the heart of this case are several provisions of the Immigration and 10 Nationality Act (“INA”) and its implementing regulations which elaborate a 11 procedure by which asylum seekers who arrive at POEs may seek asylum in the 12 United States—a procedure Plaintiffs refer to as “access to the U.S. asylum process.”2 13 (See generally ECF No. 1, Compl.) The INA generally provides that “[a]ny alien who 14 is physically present in the United States or who arrives in the United States [], 15 irrespective of such alien’s status, may apply for asylum in accordance with . . . where 16 applicable, section 1225(b)[.]” 8 U.S.C. § 1158(a)(1). 17 An alien who arrives in the United States, including at a designated POE, is 18 19 20 21 22 23 24 25 26 27 28 1 The Court relies on portions of the statutory and regulatory background identified in the Complaint and the parties’ briefing to outline the relevant background for the purposes of this opinion. (See Compl. ¶¶ 104–118; ECF No. 135-1; ECF No. 143.) The Court does not include all aspects of the statutory and regulatory scheme concerning asylum. Defendants take issue with Plaintiffs’ use of the phrase “access to the asylum process,” asserting that “Plaintiffs misstate the law” because the INA does not use that phrase. (ECF No. 135-1 at 5 n.2.) However, Defendants themselves use the phrase “asylum process” to refer to the statutory provisions identified in the Complaint. (ECF No. 67-3 Ex. B.) The Court does not understand the phrase “access to the asylum process” as a statement of the law itself, but rather as a shorthand to collectively describe certain provisions of the INA and its implementing regulations at issue in this case. The Court similarly uses this shorthand in this opinion. 2 –2– 17cv2366 1 deemed an “applicant for admission,” who “shall be inspected by immigration 2 officers,” and may be removed “without further hearing” “if an immigration officer 3 determines” that the alien “is inadmissible.” See 8 U.S.C. § 1225(a)(1); 8 U.S.C. § 4 1225(a)(3); 8 U.S.C. § 1182(a). The INA, however, treats asylum seekers differently. 5 An “alien [who] indicates either an intention to apply for asylum under section 6 1158 . . . or a fear of persecution” is excepted from this summary removal. 8 U.S.C. 7 § 1225(b)(1)(A)(i). Instead, “[i]f an immigration officer determines that an alien . . . 8 who is arriving in the United States . . . is inadmissible . . . and the alien indicates 9 either an intention to apply for asylum under section 1158 of this title or a fear of 10 persecution, the officer shall refer the alien for an interview by an asylum officer[.]” 11 8 U.S.C. § 1225(b)(1)(A)(ii). An implementing regulation similarly requires that if a 12 noncitizen in expedited removal proceedings asserts an intention to apply for asylum 13 or a fear of persecution, “the inspecting officer shall not proceed further with removal 14 of the alien until the alien has been referred for an interview by an asylum officer[.]” 15 8 C.F.R. § 235.3(b)(4). 16 immigration officer shall record sufficient information in the sworn statement to 17 establish and record that the alien has indicated such intention, fear, or concern, and 18 to establish the alien’s inadmissibility.” Id. The regulation further mandates that “the examining 19 An alien seeking asylum is subsequently referred to an “asylum officer,” who 20 is statutorily required to be “an immigration officer who has had professional training 21 in country conditions, asylum law, and interview techniques comparable to that 22 provided to full-time adjudicators of applications under section 1158 of this title,” and 23 “is supervised by an officer who,” inter alia, “has had substantial experience 24 adjudicating asylum applications.” 8 U.S.C. § 1225(b)(1)(E). The INA further 25 elaborates the conduct of asylum officers in the interview and a process for removal 26 if the officer determines that an alien does not have a credible fear of persecution. 8 27 U.S.C. § 1225(b)(1)(B). 28 At any point during this process, “[a]n alien applying for admission may, in the –3– 17cv2366 1 discretion of the Attorney General and at any time, be permitted to withdraw the 2 application for admission and depart immediately from the United States.” 8 U.S.C. 3 § 1225(a)(4). An implementing regulation further provides that “the alien’s decision 4 to withdraw his or her application for admission must be made voluntarily[.]” 8 5 C.F.R. § 235.4. 6 B. 7 The Plaintiffs are six individuals, Plaintiffs Abigail Doe, Beatrice Doe, 8 Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the “Individual 9 Plaintiffs”), and organizational Plaintiff Al Otro Lado, Inc. (“Al Otro Lado”).3 They 10 allege that CBP officials have “systematically violated U.S. law and binding 11 international human rights law by refusing to allow individuals . . . who present 12 themselves at POEs along the U.S.-Mexico border and assert their intention to apply 13 for asylum or a fear of returning to their home countries—to seek protection in the 14 United States.” (Compl. ¶¶ 1–6, 37.) Plaintiffs allege that “[b]y refusing to follow 15 the law, Defendants are engaged in an officially sanctioned policy or practice[.]” (Id. 16 ¶ 5.) Factual Synopsis 17 Plaintiffs point to several reports from non-governmental organizations 18 working in the U.S.-Mexico border region and Al Otro Lado’s firsthand account, 19 which describe instances in which CBP officials denied asylum seekers who 20 presented themselves at POEs along the border access to the U.S. asylum process 21 between December 2015 and June 2017. (Id. ¶¶ 37–39, 96–103.) Plaintiffs allege 22 that CBP officials have carried out this practice through misrepresentations, threats 23 and intimidation, verbal and physical abuse, and coercion. (Id. ¶¶ 84–103.) For 24 example, CBP officials are alleged to turn away asylum seekers by falsely informing 25 26 27 28 3 The Court granted each of the Individual Plaintiffs permission to proceed pseudonymously in this litigation due to their asserted fears for their physical safety. (ECF No. 138.) Accordingly, each of these names is a fictitious name used by an Individual Plaintiff solely for the purposes of this litigation. –4– 17cv2366 1 them that the U.S. is no longer providing asylum, that President Trump signed a new 2 law ending asylum, that a law providing asylum to Central Americans ended, that 3 Mexican citizens are not eligible for asylum, and that the U.S. is no longer accepting 4 mothers with children for asylum. (Id. ¶ 85.) CBP officials are alleged to intimidate 5 asylum seekers by threatening to take away their children if they do not renounce a 6 claim for asylum and to deport the asylum seekers. (Id. ¶ 87.) CBP officials are also 7 alleged to force asylum seekers to sign forms in English, without translation, in which 8 the asylum seekers recant their fears of persecution. (Id. ¶ 92.) CBP officials are 9 further alleged to instruct the asylum seekers to recant their fears of persecution while 10 being recorded on video. (Id. ¶ 92.) The Court briefly sets forth the Individual 11 Plaintiffs’ and Al Otro Lado’s experiences of these alleged practices. 12 The Individual Plaintiffs 13 Plaintiffs Abigail Doe (“A.D.”), Beatrice Doe (“B.D.”), and Carolina Doe 14 (“C.D.”) are natives and citizens of Mexico, each of whom fled with their families to 15 Tijuana, Mexico, where they attempted to access the U.S. asylum process. (Compl. 16 ¶¶ 19–21.) Plaintiff A.D. sought to flee Mexico in May 2017 after her husband 17 disappeared at the hands of a Mexican drug cartel. A cartel member threatened her 18 with death. (Id. ¶¶ 19, 39–40.) She alleges that CBP officials at the San Ysidro POE 19 coerced her into signing a form which falsely stated that she did not have a fear of 20 returning to Mexico and withdrew her application for admission to the U.S., and 21 forced her and her children to return to Mexico. (Id. ¶¶ 41–45.) Plaintiff B.D. sought 22 to flee Mexico in May 2017 with her nephew and three children after the Zetas, a 23 Mexican drug cartel in southern Mexico, targeted her nephew, and after she suffered 24 severe domestic violence from her husband. (Id. ¶¶ 20, 46–47.) She presented herself 25 at the Otay Mesa POE and twice at the San Ysidro POE, where CBP officials coerced 26 her into signing a form in which she stated that she and her children have no fear of 27 returning to Mexico and withdrew her application for admission. (Id. ¶¶ 48–54.) 28 Plaintiff C.D. sought to flee Mexico in May 2017 with her three children after a drug –5– 17cv2366 1 cartel kidnapped and dismembered her brother-in-law and subsequently targeted her 2 family with death and severe harm. (Id. ¶¶ 21, 55–56.) She alleges that CBP officials 3 coerced her into recanting her fear on video and into signing a form withdrawing her 4 application for admission to the U.S. (Id. ¶¶ 57–60.) 5 Plaintiffs Dinora Doe (“D.D.”), Ingrid Doe (“I.D.”), and Jose Doe (“J.D.”) are 6 natives and citizens of Honduras. (Id. ¶¶ 22–24.) Plaintiff D.D. alleges that MS-13 7 gang members threatened to kill her and her 17-year old daughter if they did not leave 8 their home, and subsequently repeatedly raped her and her daughter over a three-day 9 period. (Id ¶¶ 22, 61–62.) D.D and her daughter fled to Mexico where MS-13 gang 10 members threatened them again. (Id. ¶ 63.) On three occasions in August 2016, D.D. 11 and her daughter sought asylum in the United States at the Otay Mesa POE, but CBP 12 officials told her that “there was no asylum in the United States,” including 13 specifically “for Central Americans,” and that she “would be handed over to Mexican 14 authorities and deported to Honduras.” (Id. ¶¶ 64–69.) Plaintiff I.D. alleges that 18th 15 Street gang members in Honduras murdered her mother and three siblings and that 16 the gang threatened her with death. (Id. ¶¶ 23, 71.) She also alleges that her partner 17 in Honduras severely abused her and her three children for several years, and 18 regularly raped her, including in front of her children. (Id. ¶¶ 23, 72.) In June 2017, 19 I.D. and her children fled to Tijuana and sought asylum at the Otay Mesa and the San 20 Ysidro POEs, where CBP officers told them that they could not seek asylum in the 21 U.S. (Id. ¶¶ 73–77.) Plaintiff J.D. alleges that 18th Street gang members murdered 22 several of his family members in Honduras. He further alleges that gang members 23 attacked him and threatened to kidnap and harm his two daughters. (Id. ¶¶ 24, 78– 24 79.) J.D. fled Honduras in June 2017 and sought asylum at the Laredo, Texas POE, 25 but CBP officers told him he could not get asylum in the United States. (Id. ¶¶ 80– 26 82.) 27 At the time the Complaint was filed, the Individual Plaintiffs alleged that they 28 “would like to present themselves again to seek asylum, but based on their experience –6– 17cv2366 1 and the experience of others with CBP’s practice at POEs, [they] understand that they 2 would likely be turned away again[.]” (Id. ¶¶ 44, 53, 59, 68, 76, 81.) They also allege 3 that they are not alone. Rather, CBP officials are alleged to have a “prevalent and 4 persistent” illegal practice since summer 2016 of denying other asylum seekers who 5 present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum 6 system. Accordingly, the Individual Plaintiffs seek to represent a class of individuals 7 with similar claims. (Id. ¶¶ 131–138 (class allegations).) 8 Al Otro Lado 9 Al Otro Lado is a non-profit California legal services organization established 10 in 2014, which provides services to indigent deportees, migrants, refugees, and their 11 families. (Compl. ¶ 12; Decl. of Erika Pinheiro, ECF No. 90–1 (“Pinheiro Decl.”) ¶ 12 2.) Al Otro Lado’s mission is to coordinate and to provide screening and legal 13 representation for individuals in asylum and other immigration proceedings, seek 14 redress for civil rights violations, and provide assistance with other legal and social 15 services. (Compl. ¶ 12; Pinheiro Decl. ¶ 2.) Since December 2015, its representatives 16 have accompanied asylum seekers to the San Ysidro POE and witnessed the alleged 17 conduct of CBP officials. (Compl. ¶ 101.) In response to the alleged practices of 18 CBP officials, Al Otro Lado has diverted significant time and resources from its L.A. 19 operations and several of its non-refugee programs to send representatives to Tijuana. 20 (Id. ¶¶ 14, 16–17; Pinheiro Decl. ¶¶ 4, 6–7.) Al Otro Lado has altered its previous 21 “large-scale, mass-advisal legal clinics” in Tijuana that provided a general overview 22 on asylum laws and procedures to provide individualized assistance and direct 23 representation of asylum seekers, which has required Al Otro Lado to recruit and train 24 more attorneys. (Compl. ¶¶ 13–14; Pinheiro Decl. ¶¶ 3–4.) Al Otro Lado expends 25 significant time and resources to provide individual screenings and in-depth trainings 26 to educate asylum seekers about CBP’s conduct and challenge the alleged practices. 27 (Id. ¶ 14; Pinheiro Decl. ¶ 4.) 28 –7– 17cv2366 1 C. 2 Plaintiffs filed the putative class action Complaint in the Central District of 3 California on July 12, 2017. (ECF No. 1.) The Complaint presses three claims against 4 the Defendants related to the INA provisions. Plaintiffs allege that (1) Defendants 5 have violated various provisions of the INA that together constitute a “right to seek 6 asylum under the [INA],” (Compl. ¶¶ 139–150); (2) the INA statutory violations also 7 violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Compl. ¶¶ 8 151–164) (asserting claims under Sections 706(1) and 706(2) of the APA); and (3) 9 Defendants have violated Plaintiffs’ Fifth Amendment procedural due process rights 10 based on the alleged failure to comply with the INA’s statutory protections (id. ¶¶ 11 165–176). Plaintiffs also assert claims pursuant to the Alien Tort Statute (“ATS”), 12 28 U.S.C. § 1350, for Defendants’ alleged “violation of the non-refoulement 13 doctrine,” a doctrine which Plaintiffs contend is a “specific, universal, and obligatory 14 norm,” “which has also achieved the status of a jus cogens norm.” (Compl. ¶¶ 177– 15 185). Plaintiffs seek declaratory and injunctive relief for their claims. (Id. at 52–53.) 16 II. Relevant Procedural Background LEGAL STANDARDS 17 A. 18 Pursuant to Rule 12(b)(1), a party may move to dismiss based on the court’s 19 lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A defendant may 20 challenge the court’s subject-matter jurisdiction in several ways, two of which are 21 raised by Defendants’ motion to dismiss: mootness and sovereign immunity. When 22 a defendant challenges the Article III standing of a plaintiff or the related issue of 23 mootness, Rule 12(b)(1) is the appropriate standard of review because it is the court’s 24 subject-matter jurisdiction which is challenged. White v. Lee, 227 F.3d 1214, 1242 25 (9th Cir. 2000) (“Mootness . . . pertain[s] to a federal court’s subject-matter 26 jurisdiction under Article III, [so it is] properly raised in a motion to dismiss under 27 [Rule] 12(b)(1).”). A Rule 12(b)(1) motion is also “a proper vehicle for invoking 28 sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. Rule 12(b)(1) and Federal Court Jurisdiction –8– 17cv2366 1 2015). When the United States is sued or a suit implicates its sovereign immunity, a 2 waiver of sovereign immunity is deemed a prerequisite for jurisdiction. FDIC v. 3 Meyer, 510 U.S 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the 4 Federal Government and its agencies from suit.”); Jachetta v. United States, 653 F.3d 5 898, 903 (9th Cir. 2011) (“It is axiomatic that the United States may not be sued 6 without its consent and that the existence of consent is a prerequisite for jurisdiction.”) 7 (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). When sovereign 8 immunity is invoked as the basis for the absence of subject-matter jurisdiction, “[a]s 9 the party asserting a claim against the United States, [the plaintiff] has the burden of 10 ‘demonstrating an unequivocal waiver of immunity.’” United States v. Park Place 11 Associates, Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham v. United 12 States, 786 F.2d 1445, 1446 (9th Cir. 1986)). 13 B. 14 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth “a 15 short and plain statement of the claim showing that the pleader is entitled to relief,” 16 in order to “give the defendant fair notice of what the . . . claim is and the grounds 17 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 18 Conley v. Gibson, 355 U.S. 41, 47 (1957)). A defendant may move to dismiss a 19 complaint on the ground that its allegations fail to state a claim upon which relief may 20 be granted. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests the sufficiency of 21 a complaint’s allegations. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 22 (9th Cir. 1983). To survive such a motion, a plaintiff is required to set forth “enough 23 facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 24 570. “A claim has facial plausibility when the plaintiff pleads factual content that 25 allows the court to draw reasonable inferences that the defendant is liable for the 26 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 27 Factual allegations must be enough to raise a right to relief above the speculative 28 level. Twombly, 550 U.S. at 556. In assessing the sufficiency of a complaint, a court Rule 12(b)(6) and the Sufficiency of the Complaint –9– 17cv2366 1 accepts as true the complaint’s factual allegations and construes them in the light most 2 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Yet, 3 the court need not accept as true legal conclusions pled in the guise of factual 4 allegations. Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 5 A pleading is insufficient if it offers only “labels and conclusions” or “a formulaic 6 recitation of the elements of a cause of action,” without adequate factual allegations. 7 Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 676. Generally, a court assesses a 8 complaint’s sufficiency based on its allegations, but a court may consider materials 9 properly submitted as part of the complaint to resolve a Rule 12(b)(6) motion to 10 dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). 11 III. DISCUSSION 12 A. 13 In the days following the filing of the Complaint, Defendants agreed to process 14 the Individual Plaintiffs for inspection and to permit them to access the asylum 15 process. The agreement provides that: “[t]he government agrees to allow the class 16 representatives and their children to present themselves at the San Ysidro and Laredo 17 ports of entry and access the credible fear, withholding-only, or asylum process as 18 appropriate under the [INA].” (ECF No. 67-3 Ex. B.) Three Individual Plaintiffs 19 were processed at the San Ysidro POE on July 15, 2017 and another was processed 20 on July 18, 2017. (ECF No. 135-2 Ex. A ¶ 4.) A fifth Individual Plaintiff was 21 processed at the Laredo, Texas POE on July 18, 2017. (ECF No. 135-3 Ex. B. ¶ 4.) 22 According to the Defendants, these five Individual Plaintiffs have been either referred 23 to the asylum process or placed in removal proceedings. (ECF No. 135-1 at 1, 3.) Mootness 24 The parties have different views about what this means for the Court’s 25 jurisdiction. Defendants contend that the Individual Plaintiffs’ Section 706(1) claims 26 are now moot and so the Court should dismiss the entire case. (Id. at 1, 4–9.) 27 Defendants assert that the Individual Plaintiffs have received “all the relief the Court 28 could have granted” on their Section 706(1) claims: “the verifiable opportunity to be – 10 – 17cv2366 1 processed as applicants for admission” at a POE along the U.S.-Mexico border 2 consistent with the INA’s provisions. (Id. at 3, 6.) Plaintiffs argue that the Section 3 706(1) claims are not moot because (1) Plaintiff Beatrice Doe has not been processed 4 for admission and therefore has not “actually received” the relief and (2) the 5 Individual Plaintiffs who have been processed for admission only received “partial 6 relief.” (ECF No. 143 at 11.) Plaintiffs further argue that all Individual Plaintiffs 7 who “crossed the U.S.-Mexico border” have a “continuing interest in pursuing a Rule 8 23 class action” for the conduct challenged in this case. (Id. at 11, 14.) 9 Article III limits the jurisdiction of the federal courts to “cases” or 10 “controversies.” U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750 11 (1984). Because of this Article III limitation, a plaintiff must show the “irreducible 12 constitutional minimum” of standing to invoke the federal judicial power: (1) an 13 “injury in fact,” (2) fairly traceable to the challenged action of the defendant, (3) 14 which is “likely” to be redressed by a favorable judicial decision. Lujan, 504 U.S. at 15 560–61. “This requirement ensures that the Federal Judiciary confines itself to its 16 constitutionally limited role of adjudicating actual and concrete disputes, the 17 resolution of which have direct consequences on the parties involved.” Genesis 18 Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). Standing frames mootness. 19 Mootness is “the doctrine of standing set in a time frame: the requisite personal 20 interest that must exist at the commencement of litigation (standing) must continue 21 throughout its existence (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 22 388, 397 (1980). To avoid mootness, “an actual controversy must be extant at all 23 stages of review, not merely at the time the complaint is filed.” Arizonans for Official 24 English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks and citation 25 omitted). When a case becomes moot, a federal court must dismiss it for lack of 26 jurisdiction. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086–87 (9th Cir. 2011). 27 To resolve Defendants’ mootness challenge, the Court first considers whether 28 the Individual Plaintiffs’ receipt of Section 706(1) relief could alone moot this case— – 11 – 17cv2366 1 it does not—and, second, whether the Individual Plaintiffs’ Section 706(1) claims 2 asserted on behalf of a putative class warrant a mootness exception—they do. In 3 considering these issues, the Court keeps in mind that “[t]he party asserting mootness 4 has a heavy burden to establish that there is no effective relief remaining for a court 5 to provide.” In re Palmdale Hills Property, 654 F.3d 868, 874 (9th Cir. 2011); San 6 Luis & Delta-Mendota Water Auth. v. United States DOI, 870 F. Supp. 2d 943, 953 7 (E.D. Cal. 2012). 8 1. This Case is Not Moot 9 Defendants’ argument that this case is moot ignores organizational Plaintiff Al 10 Otro Lado’s presence in this case and the Individual Plaintiffs’ other requests for 11 relief. “A case becomes moot only when it is impossible for a court to grant any 12 effectual relief whatever to the prevailing party.” Knox v. SIEU, Local 1000, 567 U.S. 13 298, 307 (2012); Johnson v. Rancho Santiago Cmty. College Dist., 623 F.3d 1011, 14 1018 (9th Cir. 2010) (internal quotations and citation omitted) (a case is moot when 15 there is no “present controversy as to which effective relief can be granted”). “[A]s 16 long as the parties have a concrete interest, however small, in the outcome of the 17 litigation, the case is not moot.” Knox, 567 U.S. at 307–08 (quoting Ellis v. Railway 18 Clerks, 466 U.S. 435, 442 (1984)). Setting aside whether the Individual Plaintiffs’ 19 Section 706(1) claims are moot, this case is not moot given that it remains possible 20 for the Court to grant effectual relief to Al Otro Lado and the Individual Plaintiffs. 21 a. Al Otro Lado 22 Faced with Al Otro Lado’s argument that it possesses Article III standing, 23 Defendants assert that they do not “yet dispute[] Al Otro Lado’s Article III standing.” 24 (ECF No. 145 at 8.) Despite Defendants’ assertion, the Court has an independent 25 duty to assess whether Al Otro Lado satisfies Article III’s “irreducible constitutional 26 minimum” of standing. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) 27 (“The federal courts are under an independent obligation to examine their own 28 jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] – 12 – 17cv2366 1 doctrines.’” (quoting Allen, 468 U.S. at 750)). The Court readily concludes that Al 2 Otro Lado has Article III standing. 3 An organizational plaintiff like Al Otro Lado may have Article III standing to 4 sue in its own right. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). 5 “An organization has ‘direct standing to sue [when] it show[s] a drain on its resources 6 from both a diversion of its resources and frustration of its mission.’” Valle Del Sol, 7 Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (quoting Fair Hous. Council of 8 San Fernando Valley v. Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)). 9 Of course, “[a]n organization cannot manufacture the injury by incurring litigation 10 costs or simply choosing to spend money fixing a problem that would not otherwise 11 affect the organization[.]” La Asociacion de Trabajadores de Lake Forest v. Lake 12 Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). Al Otro Lado satisfies this test. 13 Al Otro Lado is a non-profit that provides services to indigent deportees, 14 migrants, refugees, and their families in Los Angeles, California and Tijuana, Mexico. 15 Its core mission is, inter alia, to coordinate and provide screening, advocacy, and 16 legal representation for individuals in asylum and other immigration proceedings. 17 (Compl. ¶ 12.) As a result of CBP officers’ conduct at POEs along the U.S.-Mexico 18 border since 2016, Al Otro Lado alleges that it has diverted significant time and 19 resources from its L.A. operations and its non-refugee programs to send 20 representatives to Tijuana to provide individualized assistance and coordination of 21 legal and social services, including individual screenings and in-depth trainings to 22 educate asylum seekers about CBP’s alleged conduct of denying the most basic form 23 of access to the asylum process. (Id. ¶¶ 14, 16–18.) These alleged harms are 24 sufficient for Article III standing. 25 (organization had standing because its diverted resources from its core mission to 26 address constituents’ concerns); Smith v. Pac. Props & Dev. Corp., 358 F.3d 1097, 27 1105 (9th Cir. 2004) (finding standing where an organization alleged that “[it] has 28 had . . . to divert its scarce resources from other efforts . . . to benefit the disabled See Valle Del Sol Inc., 732 F.3d at 1018 – 13 – 17cv2366 1 community in other ways”). Accordingly, Al Otro Lado has an interest in this case 2 that is not mooted by Defendants’ post-Complaint conduct. 4 3 b. The Individual Plaintiffs’ Other Claims for Relief 4 For the Individual Plaintiffs, Defendants’ mootness challenge is narrow. It 5 concerns only one form of relief in the Complaint on only one of the Plaintiffs’ four 6 claims. (See Compl. ¶¶ 152–153.) But the Individual Plaintiffs request other forms 7 of relief, including: (1) “relief prohibiting Defendants” and their agents “from 8 engaging in the unlawful policies, practices, acts and/or omissions . . . at POEs along 9 the U.S.-Mexico border” and (2) “relief requiring Defendants to implement 10 procedures to provide effective oversight and accountability in the inspection and 11 processing of individuals who present themselves at POEs along the U.S.-Mexico 12 border and indicate an intention to apply for asylum or assert a fear of persecution in 13 their home countries.” (Id. at 52–53.) The Complaint also requests a declaratory 14 judgment that “Defendants’ policies, practices, acts and/or omissions . . . violate” the 15 INA, the APA, the Due Process Clause of the Fifth Amendment, and/or the “duty of 16 non-refoulement under international law.” 17 meaningful attempt to argue that their agreement to process the Individual Plaintiffs 18 moots these requests for injunctive and declaratory relief. (Id. at 52.) Defendants make no 19 Rather, Defendants’ mootness argument treats these requests as irrelevant on 20 the ground that Plaintiffs’ other claims fail because the Plaintiffs do not plausibly 21 allege that Defendants have a policy or practice. But a “party’s prospects of success 22 on a claim are not pertinent to the mootness inquiry.” Looks Filmproduktionen GmbH 23 v. CIA, 199 F. Supp. 3d 153, 179 (D.D.C. 2016) (internal quotations and alterations 24 25 26 27 28 “The general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993). However, because the parties dispute the ability of the Individual Plaintiffs to seek Section 706(1) relief for the putative class in this case, the Court does not limit its mootness analysis to organizational Plaintiff Al Otro Lado. 4 – 14 – 17cv2366 1 omitted) (quoting Schnitzler v. United States, 761 F.3d 33, 39 (D.C. Cir. 2014)); see 2 also Aracely, R. v. Nielsen, No. 17-cv-1976-RC, —F. Supp. 3d—, 2018 WL 3243977, 3 at *15 (D.D.C. July 3, 2018); Ramirez v. ICE, 310 F. Supp. 3d 7, 18 (D.D.C. 2018). 4 Defendants’ argument that Plaintiffs’ other claims are moot because there is no policy 5 or practice “confuses mootness with the merits.” Chafin v. Chafin, 568 U.S. 165, 166 6 (2013). “[J]urisdiction . . . is not defeated . . . by the possibility that the averments 7 might fail to state a cause of action[.]” Bell v. Hood, 327 U.S. 678, 682 (1946); see 8 also Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642–43 (2002) 9 (“It is firmly established in our cases that the absence of a valid (as opposed to 10 arguable) cause of action does not implicate subject-matter jurisdiction.” (quoting 11 Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998))); Eubanks v. McCotter, 12 802 F.2d 790, 793 (5th Cir. 1986) (“If federal jurisdiction turned on the success of a 13 plaintiff’s federal cause of action, no such case could ever be dismissed on the 14 merits.”). 15 Even on the merits, Defendants’ argument cannot show that this entire case is 16 moot because it conflates whether the Complaint plausibly shows the existence of a 17 policy with whether the Complaint plausibly shows the existence of a practice. As 18 the Court later explains, although the Complaint fails to show the existence of a 19 policy, it plausibly shows the existence of a pattern or practice of denials faced by 20 some asylum seekers. Accordingly, the Court cannot find that this entire case is moot 21 by virtue of Defendants’ agreement to process the Individual Plaintiffs. 22 2. The Section 706(1) Claims Are Not Moot 23 Although this case is not moot, Defendants’ narrow mootness argument 24 squarely raises the issue whether the Section 706(1) claims for relief asserted in the 25 Complaint are. “A lawsuit—or an individual claim—becomes moot when a plaintiff 26 actually receives all of the relief he or she could receive on the claim through further 27 litigation.” Chen v. Allstate Ins. Co., 819 F.3d 1136, 1144 (9th Cir. 2016) (emphasis 28 added). The Court must consider whether the agreement moots all the Section 706(1) – 15 – 17cv2366 1 claims asserted in this case and concludes that it does not. Al Otro Lado asserts APA 2 claims, including a Section 706(1) claim, yet the agreement does not purport to 3 provide any relief to Al Otro Lado. The Individual Plaintiffs also assert Section 4 706(1) claims on behalf of a putative class—a point Defendants’ motion to dismiss 5 elides. See Pitts, 653 F.3d at 1087 (“The distinction between issues that have become 6 moot and parties whose interest in the issue may have become moot is especially 7 visible in the context of class actions.”). 8 9 a. Al Otro Lado’s APA Claims Defendants’ Section 706(1) mootness challenge contains a key omission: 10 Plaintiff Al Otro Lado’s Section 706(1) claim. 11 Defendants omit discussion of any of Al Otro Lado’s APA claims by assuming the 12 merits of their separate argument that Al Otro Lado fails the zone of interests test 13 applicable to claims asserted pursuant to the APA. (ECF No. 135 at 10–11.) The 14 Court does not find that argument to be meritorious.5 (Compl. ¶¶ 151, 159–164.) 15 “In addition to [Article III’s standing] requirements, a plaintiff bringing suit 16 under the [APA] for a violation of [a statute] must show that his alleged injury falls 17 within the ‘zone of interests’ that [the statute] was designed to protect.” Cantrell v. 18 City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001). “[T]he breadth of the zone of 19 interests varies according to the provisions of law at issue[.]” Bennett v. Spear, 520 20 U.S. 154, 163 (1997). Courts “presume that a statutory cause of action extends only 21 to plaintiffs whose interests ‘fall within the zone of interests protected by the law 22 invoked.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 23 24 25 26 27 28 5 The Court recognizes that the zone of interests test does not itself implicate the Court’s subject matter jurisdiction, but rather whether a particular plaintiff has a statutory cause of action. Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir. 2015) (citing Lexmark Int’l, Inc. v. Static Control Components, 572 U.S. 118, 127–28 (2014)). Because Defendants’ mootness argument concerns the Plaintiffs’ Section 706(1) claims, however, the Court addresses whether Al Otro Lado may assert any APA causes of action in this case as part of its mootness analysis. – 16 – 17cv2366 1 (2014) (quoting Allen, 468 U.S. at 751). The APA’s “‘zone of interests’ test is ‘not 2 meant to be especially demanding,’ and a court should deny standing only ‘if the 3 plaintiff’s interests are so marginally related to or inconsistent with the purposes 4 implicit in the statute that it cannot reasonably be assumed that Congress intended to 5 permit the suit.’” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1177 (9th Cir. 2004) 6 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)) (emphasis added). 7 The test does not require a specific congressional purpose to benefit the would-be 8 plaintiff. Clarke, 479 U.S. at 399–400. And the “benefit of any doubt goes to the 9 plaintiff.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 10 567 U.S. 209, 225 (2012). 11 Defendants first argue that Al Otro Lado fails the zone of interests test because 12 it does not cite any INA provision permitting it to sue. (ECF No. 135 at 10–11.) This 13 argument is unavailing. “The APA confers a general cause of action upon persons 14 ‘adversely affected or aggrieved by action within the meaning of the relevant statute,’ 15 but withdraws that cause of action to the extent the relevant statute ‘preclude[s] 16 judicial review.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984); see also 17 Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (same); Defenders of Wildlife 18 v. Tuggle, 607 F. Supp. 2d 1095, 1098 (D. Ariz. 2009) (same). Defendants do not 19 purport to argue that the INA itself precludes judicial review in this case. 20 Defendants’ second argument is that Al Otro Lado “ha[s] failed to plead 21 sufficient facts to demonstrate that [it] has statutory standing as a legal advocacy 22 group to pursue a claim under 8 U.S.C. §§1158 or 1225.” (ECF No. 145 at 8.) 23 Defendants ground this argument in an opinion decided by a single Supreme Court 24 justice, which granted the government’s application to stay a district court’s 25 injunction order entered in favor of several legal organizations pending appeal. See 26 INS v. Legalization Assistance Project of L.A. Cty. Fed’n of Labor, 510 U.S. 1301 27 (1993) (O’Connor, J.) [hereinafter “L.A.P.”]. L.A.P. concerned the Immigration 28 Reform and Control Act of 1986 (“IRCA”), a statute which created a limited amnesty – 17 – 17cv2366 1 period for certain undocumented aliens to seek legalization. Considering whether to 2 grant a stay, Justice O’Connor “predict[ed]” that “this Court would grant certiorari 3 and conclude that the respondents”—organizations “that provide legal help to 4 immigrants”—“are outside the zone of interests IRCA seeks to protect, and that 5 therefore they had no standing to seek the order entered by the District Court.” Id. at 6 1302, 1305. 7 organizations during the amnesty period in the role of “so-called ‘qualified designated 8 entities,’” there was “no indication” that IRCA was addressed to the interests of the 9 organizations, but rather it was “clearly meant to protect” the interests of 10 undocumented aliens. Id. at 1305 (citing 8 U.S.C. § 1255(a)(2)). Defendants argue 11 that, like the respondent organizations who Justice O’Connor predicted the Supreme 12 Court would find as outside IRCA’s zone of interests, Al Otro Lado falls outside the 13 INA’s zone of interests. The Court rejects this argument. She reasoned that although IRCA provided a role for legal help 14 As an initial matter, the precedential value of Justice O’Connor stay opinion is 15 questionable. Justice O’Connor recognized that her task in deciding whether to grant 16 a stay was a “difficult and speculative inquiry” that required her “to predict whether 17 four Justices would vote to grant certiorari and whether the Court would then set the 18 order aside.” L.A.P., 510 U.S. at 1304. In relevant part, her zone of interests answer 19 to that concededly speculative inquiry did not prove true. The Court granted certiorari 20 and, instead of adopting Justice O’Connor’s merits reasoning, it vacated the judgment 21 below and remanded to the Ninth Circuit for further consideration in light of, inter 22 alia, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993). See INS v. L.A.P., 23 510 U.S. 1007 (1993). Given the posture of Justice O’Connor’s opinion and the 24 Supreme Court’s ultimate disposition, this Court does not view L.A.P. as binding. See 25 Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 502 & n.2 (M.D. Pa. 2007) 26 (“Because of the nature of [L.A.P.]—a speculative opinion by one Supreme Court 27 Justice sitting as a Circuit Court Justice—and the fact the decision served only to 28 delay implementation of an order pending appeal, we do not consider that opinion as – 18 – 17cv2366 1 binding, but rather as persuasive authority.”), aff’d in part and rev’d in part on other 2 grounds by, 620 F.3d 170 (3d Cir. 2010), vacated and remanded on other grounds 3 by, 563 U.S. 1030 (2011). 4 Setting aside its questionable precedential value, the Court does not find 5 L.A.P.’s reasoning helpful because L.A.P. concerned IRCA’s zone of interests—not 6 the INA. This distinction is important. Justice O’Connor’s analysis cannot be 7 isolated from the cases her opinion discussed, which narrowly interpreted standing to 8 sue under IRCA even as applied to undocumented aliens. For example, Justice 9 O’Connor began her opinion with a discussion of Reno, decided some five months 10 earlier and which the INS argued required vacating the district court’s order. L.A.P., 11 510 U.S. at 1303. In Reno, the Supreme Court held that “the only people who could 12 ask for injunctive or declaratory relief under IRCA” from an alleged administrative 13 INS “front-desking policy” of discouraging legalization applications were those to 14 whom that policy was directly applied. L.A.P., 510 U.S. at 1303 (quoting Reno, 509 15 U.S. at 61–67). Reno’s view of standing was adopted in Ayuda, Inc. v. Reno, 7 F.3d 16 246 (D.C. Cir. 1993), a decision with which Justice O’Connor viewed the decisions 17 of the district court and Ninth Circuit in L.A.P. as in “conflict.” L.A.P., 510 U.S. at 18 1305. In Ayuda, Inc., the D.C. Circuit held that “in light of the [Reno] analysis, it is 19 now quite clear that the organizational plaintiffs did not have standing to raise their 20 claims challenging INS policies or regulations that interpreted aliens’ rights to 21 legalization under IRCA.” Ayuda, Inc., 7 F.3d at 251 (citing Reno, 509 U.S. at 61) 22 (vacating district court orders for lack of jurisdiction).6 Placed in context, Justice 23 24 25 26 27 28 The INS’s petition for a writ of certiorari in L.A.P. is also illuminative. The INS argued that the Ninth Circuit’s treatment of the organizational standing question was “in substantial tension” with the D.C. Circuit’s earlier opinion in Ayuda, Inc. L.A.P., Petition for Writ of Certiorari, 510 U.S. 1007 (1993) (No. 93-73), 1993 WL 13076006, at *8 (citing Ayuda, Inc. v. Thornburgh, 880 F.3d 1325, 1339 (D.C. Cir. 1989), vacated on other grounds by, 498 U.S. 1117 (1991)). The earlier Ayuda opinion determined that “qualified designated entities” (“QDEs”) established by 6 – 19 – 17cv2366 1 O’Connor’s view of IRCA’s zone of interests says much about the restrictive judicial 2 treatment of challenges concerning IRCA and little about the INA’s zone of interests. 3 Courts have not interpreted the INA’s zone of interests as narrowly as IRCA’s 4 and non-alien plaintiffs, including organizational plaintiffs, have been permitted to 5 assert claims based on the INA.7 See Hawaii v. Trump, 859 F.3d 741, 766 (9th Cir. 6 2017) (finding that plaintiff states’ “efforts to enroll students and hire faculty 7 members who are nationals from six countries” affected by president order fell within 8 zone of interests), vacated on other grounds by Trump v. Hawaii, 138 S. Ct. 377 9 (2017); Doe v. Trump, 288 F. Supp. 3d 1045, 1067–68 (W.D. Wash. 2017) (relying 10 on Hawaii to conclude that two organizational plaintiffs fell within the zone of 11 interests of the INA and the Refugee Act of 1980 because of their “core mission” 12 involved “[m]aking provisions for the resettlement and absorption of refugees”); V. 13 Real Estate Group, Inc. v. United States Citizenship & Immigration Servs., 85 F. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IRCA fell outside IRCA’s zone of interests because “Congress, at most, intended the QDEs to act as intermediaries, not litigating ombudsmen. And even if the QDEs are thought of as agents for the aliens, we doubt Congress intended the agents to have broader rights to seek judicial review than do the principals.” Ayuda, Inc., 880 F.3d at 1339. 7 Other district courts have found that organizational plaintiffs like Al Otro Lado can fall within the INA’s zone of interests when it has members or clients targeted by the government action. See Vidal v. Nielsen, 291 F. Supp. 3d 260, 269 n.3 (E.D.N.Y. 2018) (determining that organizational plaintiff met zone of interests test to challenge DACA rescission because it had members, clients, and employees who received DACA); see also NAACP v. Trump, 298 F. Supp. 3d 209, 235 (D.D.C. 2018) (determining that organizational plaintiffs fells within INA’s zone of interests because “each has members who are DACA beneficiaries and whose interests consequently fall within the zone of interests regulated by the INA”). Although Al Otro Lado has not expressly invoked representative standing as the basis for its Article III standing in this case, the asylum seekers Al Otro Lado serves and represents are ostensibly its clients. Vidal and NAACP provide a persuasive basis for the conclusion that Al Otro Lado would likely also fall within the INA’s zone of interests on this basis as well. – 20 – 17cv2366 1 Supp. 3d 1200, 1209 (D. Nev. 2015) (company could sue for USCIS’s revocation of 2 an EB-5 foreign investor visa because its “interest . . is more than just marginally 3 related to the statutes’ purpose since the company was actually founded with the intent 4 that its model would satisfy the requirements of the EB-5 program and bring Chinese 5 investors to the country.”). 6 The specific INA provisions in this case evince a congressional intent that 7 aliens—including those arriving at POEs and those facing expedited removal—have 8 “an opportunity . . . to have the merits of his or her claim promptly assessed by 9 officers.” Castro v. United States Dep’t of Homeland Sec., 163 F. Supp. 3d 157, 161 10 (E.D. Pa. 2016) (quoting H.R. Rep. No. 104-828, at 209–10 (1996) (Conf. Rep.)); see 11 also 8 U.S.C. § 1158; 8 U.S.C. § 1225. Al Otro Lado alleges that part of its mission 12 is to serve and represent asylum and refugee seekers. (Compl. ¶ 12.) In furtherance 13 of this mission, Al Otro Lado established and operates its Refugee Program in 14 Tijuana, Mexico, which services individuals who wish to seek asylum in the United 15 States. (Id. ¶ 13.) The alleged conduct of CBP officers has caused Al Otro Lado to 16 expend significant time and resources to assist asylum seekers in responding to CBP 17 officials’ alleged conduct of foreclosing even the most basic aspect of the INA’s 18 asylum procedures—the opportunity to be processed in the first place. (Id. ¶¶ 12– 19 15.) This Court finds Al Otro Lado’s interests in this case “are related to the basic 20 purposes of the INA[’s]” goal of permitting aliens to apply for asylum in the United 21 States at POEs and not so marginally related that its interests fall outside the INA’s 22 zone of interests. Hawaii, 859 F.3d at 766; Doe v. Trump, 288 F. Supp. 3d at 1067– 23 68. Accordingly, the Court rejects Defendants’ challenge to Al Otro Lado’s INA- 24 based claims. 25 b. The Individual Plaintiffs’ Section 706(1) Claims 26 Five of the six Individual Plaintiffs have received the requested relief from 27 Defendants’ agreement to process these “class representatives and their children” at 28 POEs. Thus, their Section 706(1) claims are moot unless an exception applies. – 21 – 17cv2366 1 Plaintiffs contend, however, that the Section 706(1) claim of Beatrice Doe is not moot 2 because she has not “actually received” the relief provided in the agreement. (ECF 3 No. 143 at 11.) The Court does not share Plaintiffs’ view. 4 Plaintiffs’ argument relies solely on case law holding that a rejected or 5 unaccepted Rule 68 offer of judgment does not moot a plaintiff’s individual claims 6 even when that offer would provide full relief. See Chen, 819 F.3d at 1136; Diaz v. 7 First. Am. Home Buyers Prot. Corp., 732 F.3d 948, 954–55 (9th Cir. 2013) (“[A]n 8 unaccepted offer that would . . . fully satisf[y] a plaintiff’s claim does not render that 9 claim moot.”). This is true of an unaccepted settlement offer as well. See Campbell- 10 Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). 11 Defendants’ agreement, however, is not a Rule 68 offer of judgment or a 12 settlement offer and thus Chen and Diaz are not directly applicable. Even if the 13 reasoning of these cases extends to less formal offers, what is before the Court is not 14 an offer which Beatrice Doe has yet to accept or reject, but rather an agreement. The 15 agreement permits her to be processed by CBP officials at a POE in accordance with 16 the INA and has no expiration. The evidence shows that five of the six Individual 17 Plaintiffs were processed pursuant to the agreement and there is no basis for the Court 18 to find that Beatrice Doe will be treated any differently. Defendants readily concede 19 that Beatrice Doe “can return to a port of entry to be processed as an arriving alien at 20 any time, should she choose to do so” pursuant to the agreement. (ECF No. 135-1 at 21 3.) 22 admission[.]’” (ECF No. 145 at 2 (quoting ECF No. 135-2 Ex. A ¶ 4).). Beatrice 23 Doe is in no different a position than she would be with a court order compelling 24 agency action. Accordingly, her individual Section 706(1) claim, like those of the 25 other Individual Plaintiffs, is moot unless an exception applies. And they “fully expect that ‘she would be processed as an applicant for 26 Even when a claim becomes moot due to subsequent events after the 27 commencement of a lawsuit, “the flexible character of the Art[icle] III mootness 28 doctrine” may warrant the exercise of jurisdiction over the claim. United States – 22 – 17cv2366 1 Parole Comm’n v. Geraghty, 445 U.S. 388, 401 (1980); see also San Luis & Delta- 2 Mendota Water Auth., 870 F. Supp. 2d at 958 (“Even if a case is technically moot, it 3 may nevertheless be judiciable if one of three exceptions to the mootness doctrine 4 applies,” including “‘for wrongs capable of repetition yet evading review.’”) (quoting 5 Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964–66 (9th Cir. 2007)). Under 6 the “capable of repetition, yet evading review” exception, a claim is justiciable 7 notwithstanding mootness if: (1) there is “a ‘reasonable expectation’ that the same 8 party will confront the same controversy again” and (2) if the underlying dispute is 9 “inherently limited in duration such that it is likely always to become moot before 10 federal court litigation is completed.” W. Coast Seafood Processors Ass’n v. NRDC, 11 643 F.3d 701, 704 (9th Cir. 2011) (quoting Feldman v. Bomar, 518 F.3d 637, 644 12 (9th Cir. 2008)), id. at 705 (quoting Ctr. for Biological Diversity, 511 F.3d at 965 13 (internal quotations omitted)). The parties dispute whether this exception applies. 14 Defendants argue that it does not. (ECF No. 135-1 at 8.) In Defendants’ view, 15 “[t]here is no reason to anticipate that the Doe Plaintiffs . . . will return to a [POE] as 16 applicants for admission in the future, or that, upon doing so, they will not be properly 17 processed, especially considering the low percentage rate of improper processing[.]” 18 (Id.) It is unclear what basis there is for Defendants’ assertion. Unless the Individual 19 Plaintiffs are granted asylum, there is nothing in the Complaint that suggests that they 20 will not attempt to seek asylum again and, if so, that CBP officers will not turn them 21 away from a POE. Each Individual Plaintiff has alleged that he or she does not wish 22 to return to his or her home country because of a fear of violence. Each Individual 23 Plaintiff has also alleged being turned away by CBP officials on multiple occasions 24 and a practice of such conduct. Even if Defendants are correct that the Complaint 25 fails to show a blanket policy of turning away asylum seekers at POEs, “the ‘capable 26 of repetition yet evading review’ exception is not so narrowly circumscribed.” San 27 Luis & Delta-Mendota Water Auth., 870 F. Supp. 2d at 960. Based on the limited 28 nature of the Court’s review of the pleadings at this stage, the Court cannot say that – 23 – 17cv2366 1 the Individual Plaintiffs’ allegations do not show a reasonable expectation that they 2 would again be subjected to the conduct they have alleged experiencing. 3 Furthermore, contrary to Defendants’ argument (ECF No. 135-1 at 9), the 4 putative class action nature of this case does change the Court’s analysis regarding 5 the effect of their agreement.8 Courts are sensitive to assertions of mootness in the 6 class action context. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991); 7 Sosna v. Iowa, 419 U.S. 393, 401 (1975); Gerstein v. Pugh, 420 U.S. 103, 110 (1975). 8 The “capable of repetition, yet evading review” mootness exception has a particular 9 application in the class action context when the defendant’s actions after the filing of 10 the complaint moot the proposed class representative’s individual claims. Courts are 11 sensitive to a defendant’s tactics of “picking off lead plaintiffs” so as “to avoid a class 12 action,” even when a proposed class representative’s “claims are not ‘inherently 13 transitory as a result of being time sensitive.” Pitts, 653 F.3d at 1091 (quoting Weiss 14 v. Regal Collections, 385 F.3d 337, 347 (3d Cir. 2004)). “The end result is the same: 15 a class transitory by its very nature and one transitory by virtue of the defendant’s 16 litigation strategy share the reality that both claims would evade review.” Id. Even 17 if the named plaintiff in a putative class action receives “complete relief on [his or 18 her] individual claims . . . before class certification, fully satisfying those individual 19 claims, [the plaintiff] still would be entitled to seek certification.” Chen, 819 F.3d at 20 1142. 21 Defendants acknowledge Pitts and Chen, yet they contend that unlike the 22 defendants in those cases, they have not sought to “buy-off” the Plaintiffs in this case 23 to avoid a class action. (ECF No. 135-1 at 9; ECF No. 145 at 4.) However, Plaintiffs 24 25 26 27 28 Central to Defendants’ argument is the notion that “[t]he styling of the Complaint as a putative class action does not change this analysis.” (ECF No. 135-1 at 9) Contrary to this characterization of the Complaint, the Complaint contains class action allegations and the conduct at issue is alleged to affect the putative class. (Compl. ¶¶ 131–138 (the “class action allegations”).) Defendants have not moved to strike these allegations; they remain an integral feature of the Complaint in this case. 8 – 24 – 17cv2366 1 seek only declaratory and injunctive relief. The fact that Defendants have provided 2 one form of the injunctive relief solely to the “class representatives” (ECF No. 67-3 3 Ex. B) after the filing of this case is no less a potential “buy-off” strategy that 4 effectively renders transitory the claims they seek to assert on behalf of a putative 5 class. The government could simply render moot any class action Section 706(1) 6 claims concerning the conduct at issue in this case by affording relief to any individual 7 plaintiffs who seek to challenge such conduct as soon as the case is filed and long 8 before a court could reasonably be expected to rule on a motion for class certification. 9 See Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (determining that the 10 expiration of the plaintiff’s claim one month after filing the lawsuit did not moot the 11 class’s claim for injunctive relief because “the district court could not have been 12 expected to rule on a motion for class certification in that period”). 13 Defendants possess the authority to direct CBP officials to process aliens who 14 present themselves at POEs along the U.S.-Mexico border in accordance with the 15 requirements of the INA and implementing regulations. Defendants’ agreement to 16 exercise that authority occurred a mere two days after the filing of the Complaint and 17 only when confronted with the possibility that Plaintiffs would file an ex parte request 18 for a temporary restraining order that all Individual Plaintiffs be processed at a POE. 19 (ECF No. 67-1 ¶¶ 2–7.) Under these circumstances, the Court is convinced that the 20 Section 706(1) claims the Individual Plaintiffs assert on behalf of themselves and the 21 putative class fall within an exception from mootness. 22 B. 23 Defendants’ motion to dismiss also raises the issue of sovereign immunity. 24 (ECF No. 135-1 at 21; ECF No. 145 at 1.) “Sovereign immunity is a threshold 25 question that is sometimes described as ‘jurisdictional.’” Forester v. Chertoff, 500 26 F.3d 920, 925 n.5 (9th Cir. 2007) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 27 89, 94 (1990)); see also Reed v. Dep’t of Homeland Sec., No. CV 16-7170 CJC (JC), 28 2017 WL 2701940, at *3 (C.D. Cal. May 25, 2017) (“Sovereign immunity is a Sovereign Immunity – 25 – 17cv2366 1 threshold issue [that] goes to the court’s subject matter jurisdiction.”) (quoting 2 Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1026 (9th Cir. 2010) (en banc), cert. 3 denied, 564 U.S. 1037 (2011)). 4 Plaintiffs sue the named Defendants in their official capacity as United States 5 officers, each of whom is alleged to oversee the enforcement and administration of 6 U.S. immigration laws, including oversight of CBP. (Compl. 1–2 (caption); id. ¶¶ 7 25–27.). “An action against an officer, operating in his or her official capacity as a 8 United States agent, operates as a claim against the United States.” Ministerio Roca 9 Solida v. McKelvey, 820 F.3d 1090, 1095 (9th Cir. 2016) (citing Farmer v. Perrill, 10 275 F.3d 958, 963 (10th Cir. 2001)); see also Kentucky v. Graham, 473 U.S. 159, 11 165–66 (1985). Plaintiffs must therefore contend with the sovereign immunity of the 12 United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (“It has 13 long been held that the bar of sovereign immunity cannot be avoided by naming 14 officers and employees of the United States as defendants.”); Allen v. United States, 15 871 F. Supp. 2d 982, 988 (N.D. Cal. 2012) (the issue of sovereign immunity “includes 16 suits against federal officers in their official capacities to compel them to act”) (citing 17 Dugan v. Rank, 372 U.S. 609, 620 (1963)). 18 “The United States, as a sovereign, is immune from suit unless it has waived 19 its immunity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 20 482 F.3d 1157, 1173 (9th Cir. 2007) (emphasis added) (citing Dep’t of Army v. Blue 21 Fox, Inc., 525 U.S. 255, 260 (1999)); United States v. Mitchell, 445 U.S. 535, 538 22 (1980)). “When the United States consents to be sued, the terms of its waiver of 23 sovereign immunity define the extent of the court’s jurisdiction.” United States v. 24 Mottaz, 476 U.S 834, 841 (1986) (citing United States v. Sherwood, 312 U.S. 584, 25 586 (1941)); see also Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat’l Forest, 304 F. 26 Supp. 3d 916, 932–33 (E.D. Cal. 2018) (same) (quoting Balser v. Dep’t of Justice, 27 Office of U.S. Tr., 327 F.3d 903, 907 (9th Cir. 2003)). Thus, consistent with sovereign 28 immunity and any waiver of it, a court may only exercise jurisdiction over claims – 26 – 17cv2366 1 2 against the United States within the parameters set by Congress. 1. The APA Supplies the Relevant Waiver 3 The APA “contains a specific waiver of the United States’ sovereign 4 immunity.” Matsuo v. United States, 416 F. Supp. 2d 982, 988 (D. Haw. 2006) (citing 5 Bowen v. Massachusetts, 487 U.S. 879, 891–92 (1988)). As a general matter, the 6 APA permits suits against the United States by “[a] person suffering legal wrong 7 because of the agency action, or adversely affected or aggrieved by agency action 8 within the meaning of relevant statute.” 5 U.S.C. § 702. This portion of Section 702 9 constitutes the APA’s judicial review provision and dates to the APA’s original 10 enactment in 1946. See Administrative Procedure Act, Pub. L. No. 79-404 § 10(a), 11 60 Stat. 237, 243 (1946) (codified as amended at 5 U.S.C. § 702); see also Navajo 12 Nation v. Dep’t of the Interior, 876 F.3d 1144, 1168 (9th Cir. 2017). Claims asserted 13 pursuant to the APA must satisfy Section 702’s “agency action” requirement and the 14 further requirement under Section 704 of the APA that a plaintiff must identify a 15 “final agency action” to obtain judicial review. 5 U.S.C. § 704. 16 Apart from Section 702’s judicial review provision for APA claims is the 17 APA’s waiver of sovereign immunity, also located in Section 702. The waiver 18 provides that: “[a]n action in a court of the United States seeking relief other than 19 money damages and stating a claim that an agency or an officer or employee thereof 20 acted or failed to act in an official capacity . . . shall not be dismissed nor relief therein 21 be denied on the ground that it is against the United States.” 5 U.S.C. § 702. This 22 waiver of sovereign immunity was enacted as a 1976 amendment to the APA, which 23 aimed “to clear up a morass of federal sovereign immunity jurisprudence” and “aimed 24 to ‘broaden the avenues for judicial review of agency action by eliminating the 25 defense of sovereign immunity in cases covered by the amendment.’” Navajo Nation, 26 876 F.3d at 1168 (quoting Bowen v. Massachusetts, 487 U.S. 879, 891–92 (1988)). 27 Unlike Section 702’s judicial review provision, which is textually limited to “agency 28 action,” Section 702’s waiver of sovereign immunity contains no such textual – 27 – 17cv2366 1 limitation. 5 U.S.C. § 702; see also Navajo Nation, 876 F.3d at 1171. Accordingly, 2 as amended, the APA “waives sovereign immunity broadly for all causes of action 3 that meet its terms” irrespective of whether the claims satisfy the APA’s requirements 4 for judicial review of an agency action. Navajo Nation, 876 F.3d at 1172; see also 5 The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989) 6 (Section 702 is “an unqualified waiver of sovereign immunity in actions seeking 7 nonmonetary relief”).9 Thus, a plaintiff need only seek nonmonetary relief against 8 the government in order to avail himself of the APA’s waiver of sovereign immunity. 9 In this case, Plaintiffs invoke the APA’s waiver and seek only non-monetary relief 10 against Defendants, based on claims regarding the purported actions and failures to 11 act of CBP officials and the named Defendants. (Compl. ¶ 10; id. at 52–53.) 12 Accordingly, Plaintiffs’ claims for relief fall squarely within the broad waiver of 13 sovereign immunity reflected in Section 702. 14 Because the APA supplies the relevant waiver of the sovereign immunity in 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There is Ninth Circuit precedent which suggests that the APA’s sovereign immunity waiver is tethered to the APA’s requirements for judicial review of APA causes of action. See Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th Cir. 1998) (determining that the APA’s waiver of sovereign immunity contains several limitations,” including Section 704’s limitations to review of only “final agency action” and “agency action otherwise reviewable by statute”); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998) (referring to Sections 702 and 704 to conclude that “the APA waives sovereign immunity for [a plaintiff’s] claims only if three conditions are met: (1) its claims are not for money damages, (2) an adequate remedy for its claims is not available elsewhere and (3) its claims do not seek relief expressly or impliedly forbidden by another statute.”). In the face of Ninth Circuit precedent that grafts the APA’s review requirements onto Section 702’s waiver, the Navajo Nation panel attempted to clarify that the APA’s waiver exists independently of the APA’s requirements for APA causes of action. See Navajo Nation, 876 F.3d at 1171; id. at 1172 (summing up conclusion as “the second sentence of § 702 waives sovereign immunity broadly for all causes of action that meet its terms, while § 704’s ‘final agency action’ limitation applies only to APA claims”). This Court finds Navajo Nation’s reading of Section 702 persuasive and appropriate, and applies it in this case. 9 – 28 – 17cv2366 1 this case, the Court can easily reject Defendants’ argument that “Congress has not 2 waived sovereign immunity to create a private right of action for a per se ‘pattern or 3 practice’ claim against federal law enforcement.” (ECF No. 135-1 at 21; ECF No. 4 145 at 1.) Setting aside that the Complaint does not separately plead such a claim and 5 that the Plaintiffs disavow bringing one (see generally Compl.; see also ECF No. 143 6 at 19 n.6), Defendants’ argument fails under Navajo Nation. Because Plaintiffs’ 7 claims fall within the scope of Section 702’s waiver, they do not need to identify a 8 separate waiver of sovereign immunity for “pattern or practice” claims against the 9 government. See Navajo Nation, 876 F.3d at 1172 (“§ 702 waives sovereign 10 immunity broadly for all causes of action that meet its terms[.]”). To the extent 11 Defendants are arguing that pattern or practice claims are not cognizable under the 12 APA, that is an issue that concerns the sufficiency of such claims, not whether the 13 United States or its officers are immune from such claims. See id.; see also Trudeau 14 v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006) (concluding that Section 702’s waiver of 15 sovereign immunity applies regardless of whether the challenged conduct itself 16 satisfies the APA’s review provisions). 17 2. The APA’s Waiver Extends to Plaintiffs’ ATS Claims 18 The APA’s waiver of sovereign immunity also resolves one of Defendants’ 19 challenges to Plaintiffs’ ATS claims. The Complaint alleges ATS claims against the 20 Defendants for “violation of the non-refoulement doctrine” under international law. 21 (Compl. ¶ 180.) Defendants argue that the ATS “does not constitute a waiver of 22 sovereign immunity and therefore does not create a cause of action against the 23 government.” (ECF No. 135-1 at 11–12 n.5.)10 Defendants thus appear to suggest 24 25 26 27 28 Defendants also argue that although Plaintiffs refer to the “duty of nonrefoulement” as the basis for their ATS claims, Plaintiffs “fail to explain how it imposes relevant legal obligations on the government beyond the obligations captured in 8 U.S.C. § 1225(b)(1)(A)(ii).” (ECF No. 135-1 at 12 n.5.) To the extent that Defendants contend that the ATS claims must be dismissed because a remedy is available under domestic law, the Court rejects that argument. “Contrary to 10 – 29 – 17cv2366 1 that this Court lacks jurisdiction over the ATS claims asserted against the Defendants 2 as a matter of sovereign immunity. 3 Defendants are correct that the ATS does not waive the sovereign immunity of 4 the United States. The ATS provides only that “the district courts shall have original 5 jurisdiction of any civil action by an alien for a tort only, committed in violation of 6 the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The text of the 7 ATS says nothing about sovereign immunity and, thus, it cannot be construed as a 8 waiver. See Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted) 9 (stating that “[a] waiver of the Federal Government’s sovereign immunity must be 10 unequivocally expressed in statutory text and will not be implied”). Specifically, the 11 ATS does not waive the government’s sovereign immunity. Tobar v. United States, 12 639 F.3d 1191, 1196 (9th Cir. 2011) (“[T]he Alien Tort Statute has been interpreted 13 as a jurisdiction statute only—it has not been held to imply any waiver of sovereign 14 immunity.”). 15 However, at least one appellate court has suggested that the APA is “arguably 16 available” as a waiver of sovereign immunity for claims asserted against federal 17 officers sued in their official capacity for nonmonetary relief. See Sanchez-Espinoza 18 v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) (recognizing the possibility that ATS 19 suits seeking non-monetary relief may proceed against the Secretary of Defense and 20 the Director of the CIA under the APA’s waiver of sovereign immunity). The D.C. 21 Circuit ultimately declined to apply the APA’s waiver to the ATS claims in Sanchez- 22 Espinoza because it did not believe that the alien plaintiffs in that case who challenged 23 24 25 26 27 28 defendants’ argument, there is no absolute preclusion of international law claims by the availability of domestic remedies for the same alleged harm.” See Hawa Abdi Jama v. United States INS, 22 F. Supp. 2d 353, 364 (D.N.J. 1998). Defendants raise no other arguments showing that dismissal of Plaintiffs’ ATS claims is warranted and neither side has briefed the sufficiency of the claims. Accordingly, the Court expresses no further view on them in this opinion aside from the sovereign immunity issue. – 30 – 17cv2366 1 “support for military operations” were entitled to the discretionary declaratory and 2 injunctive relief available under the APA in an area “so sensitive a[s] foreign affairs.” 3 Id. at 208. The notion that the APA’s waiver of sovereign immunity should not apply 4 to permit equitable relief in military matters or sensitive foreign affairs cases has been 5 echoed by other courts. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 41–43 6 (D.D.C. 2010) (questioning “whether the APA should be interpreted as a waiver of 7 sovereign immunity for an ATS claim like plaintiff’s” against the U.S. Secretary of 8 Defense and Director of the CIA which requested “discretionary relief that would 9 prohibit military and intelligence activities against an alleged enemy abroad”). 10 This case, however, does not involve military matters, nor do Defendants argue 11 that it involves sensitive foreign affairs. At least one district court has applied the 12 APA’s waiver of sovereign immunity for international law claims asserted against the 13 U.S. government for non-monetary relief in such circumstances. See Rosner v. United 14 States, 231 F. Supp. 2d 1202, 1211–12 (S.D. Fla. 2002). In line with the APA’s broad 15 waiver of sovereign immunity for claims against the United States for nonmonetary 16 relief, the Court finds that the APA’s unqualified waiver of sovereign immunity 17 supplies a waiver for the ATS claims asserted in this case. See 5 U.S.C. § 702; Navajo 18 Nation, 876 F.3d at 1171. 19 C. 20 The Complaint asserts two APA claims against the Defendants. First, the 21 Complaint raises Section 706(1) claims “to compel agency action unlawfully 22 withheld or unreasonably delayed.” (Compl. ¶ 152 (citing 5 U.S.C. § 706(1).) The 23 basis of these claims is CBP officials’ alleged “failure to take actions mandated” by 24 various provisions of the INA and implementing regulations. (Id. ¶ 153; see also id. 25 ¶ 157 (referring to “Defendants’ repeated and pervasive failure to act”).) The 26 Complaint also alleges a Section 706(2) claim to “hold unlawful and set aside agency 27 action.” 5 U.S.C. § 706(2). The basis of this claim is that “CBP officials have acted 28 in excess of their statutorily proscribed authority and without observance of the The Sufficiency of the APA Claims – 31 – 17cv2366 1 procedures required by law in violation of the APA.” (Id. ¶ 154 (citing 5 U.S.C. 2 §§706(2)(C), (D)), id. ¶ 155 (alleging that “in turning Class Plaintiffs . . . away at 3 POEs along the U.S.-Mexico border without following the procedures mandated by 4 the INA, CBP officials have acted in excess of the authority granted them by 5 Congress”); id. ¶ 157 (referring to Defendants’ “action taken in excess of their 6 authority”).) 7 In moving to dismiss, Defendants argue that (1) Plaintiffs’ “only well-pleaded” 8 claims are the Section 706(1) claims and (2) Plaintiffs have failed to identify a “final 9 agency action” necessary to seek review of Defendants’ alleged policy pursuant to 10 Section 706(2). (ECF No. 135-1 at 4–9 (mootness for Section 706(1) claims), 11–20 11 (failure to state a Section 706(2) claim).) In opposition, Plaintiffs argue that they have 12 pleaded Section 706(1) claims and not brought a Section 706(2) claim. (ECF No. 143 13 at 19–21.) Independently of their Section 706(1) claims, however, the Plaintiffs 14 contend that they have plausibly pleaded that Defendants have “an illegal policy or 15 practice.” (Id. at 21–23.) To resolve the parties’ dispute, the Court first outlines the 16 APA’s framework for judicial review of agency action. The Court then considers the 17 sufficiency of Plaintiffs’ Section 706(1) claims. Finally, the Court determines that 18 Defendants’ alleged policy must be reviewed pursuant to Section 706(2) and 19 concludes that Plaintiffs have failed to identify a final agency action subject to judicial 20 review. 21 1. Judicial Review of Agency Action Pursuant to the APA 22 As a general matter, the APA provides that “[a] person suffering legal wrong 23 because of agency action, or adversely affected or aggrieved by agency action within 24 the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 25 702. This judicial review provision “is not so all-encompassing as to authorize . . . 26 judicial review over everything done by an administrative agency.” Wild Fish 27 Conservancy v. Jewell, 703 F.3d 791, 800–01 (9th Cir. 2013). The APA confines 28 what is subject to judicial review by limiting review to an “agency action,” which is – 32 – 17cv2366 1 in turn defined to only “include[] the whole or a part of an agency rule, order, license, 2 sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 3 551(13); 5 U.S.C. § 701(b)(2) (incorporating Section 551’s definition of “agency 4 action”). 5 The APA also places limits on when agency action is subject to judicial review. 6 “Agency action made reviewable by statute and final agency action for which there 7 is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704; 8 see also Navajo Nation, 876 F.3d at 1171 (“[Section] 704’s requirement that to 9 proceed under the APA, agency action must be final or otherwise reviewable by 10 statute is an independent element without which courts may not determine APA 11 claims.”). “Where no other statute provides a private right of action, the ‘agency 12 action’ complained of must be ‘final agency action.’” Norton v. S. Utah Wilderness 13 Alliance, 542 U.S. 55, 61–62 (2004) [hereinafter “SUWA”] (quoting 5 U.S.C. § 704); 14 see also Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 15 (9th Cir. 2008) (referring to “final agency action” as a “jurisdictional requirement 16 imposed by statute”); Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 266 (9th Cir. 17 1990) (same). 18 Section 706 of the APA further defines the “scope of review” for an agency 19 action that is subject to judicial review. As a general matter, a court “shall decide all 20 relevant questions of law” and “interpret constitutional and statutory provisions” as 21 part of its review of agency action “[t]o the extent necessary to decision and when 22 presented.” 5 U.S.C. § 706. In addition, a court may provide relief from agency 23 action in one of two ways. Under Section 706(1), a court “shall . . . compel agency 24 action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Under 25 Section 706(2), a court “shall hold unlawful and set aside agency action . . . found to 26 be,” inter alia, “in excess of statutory jurisdiction, authority, or limitations, or short 27 of statutory rights” or “without observance of procedure required by law.” 5 U.S.C. 28 § 706(2). A challenge to an agency’s alleged failure to act is more appropriately – 33 – 17cv2366 1 channeled through Section 706(1). See Rosario v. United States Citizenship, No. 2 C15-0813JLR, 2017 WL 3034447, at *7 n.6 (W.D. Wash. July 18, 2017); Leigh v. 3 Salazar, No. 3:13-cv-00006-MMD-VPC, 2014 WL 4700016, at *4 (D. Nev. Sept. 22, 4 2014) (construing a Section 706(2) claim regarding an agency’s alleged failure to act 5 as in fact a Section 706(1) claim). Section 706(2) is typically reserved for completed 6 agency actions whose validity can be assessed according to the bases for setting aside 7 agency action set forth in that provision. See Nw. Envtl. Defense Ctr. v. Bonneville 8 Power Admin., 477 F.3d 668, 680–81 & n.10 (9th Cir. 2007). With these general 9 principles in mind, the Court turns to the APA claims in this case. 10 2. The Complaint States Section 706(1) Claims for “Unlawfully Withheld” Access to the U.S. Asylum Process 11 12 The Court turns first to the Individual Plaintiffs’ Section 706(1) claims that 13 CBP officials have failed permit asylum seekers to access the U.S. asylum process. 14 Defendants concede that the Individual Plaintiffs’ Section 706(1) claims are “well- 15 pleaded.” (ECF No. 135-1 at 4–5; ECF No. 145 at 1.) Defendants, however, suggest 16 that such claims are not cognizable insofar as they concern a putative class of other 17 asylum seekers who have experienced the alleged pattern of denials. Plaintiffs in turn 18 argue that they have stated Section 706(1) claims for Defendants’ alleged “failure to 19 act” and that they can challenge a pattern of violations. (ECF No. 143 at 19–20, id. 20 at 19 n.6.) Because Section 706(1) claims may be dismissed if the plaintiff fails to 21 show an entitlement to agency action that a court can properly compel, the Court 22 addresses the sufficiency of the Complaint’s Section 706(1) claims as they pertain to 23 the Individual Plaintiffs and the putative class.11 See Alvarado v. Table Mountain 24 Rancheria, 509 F.3d 1008, 1019–20 (9th Cir. 2007) (“a Section 706(1) claim may be 25 dismissed for lack of jurisdiction” when plaintiff fails to show he is entitled to relief 26 27 11 28 Defendants do not raise an issue as to whether Al Otro Lado has plausibly stated a claim for Section 706(1) relief. – 34 – 17cv2366 1 under the provision); Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2 2006). 3 a. The Individual Plaintiffs 4 Section 706(1) grants a court authority to “compel agency action unlawfully 5 withheld.” 5 U.S.C. §706(1). Under this provision, a court’s “ability to ‘compel 6 agency action’ is carefully circumscribed to situations where an agency has ignored 7 a specific legislative command.” Hells Canyon Pres. Council v. United States Forest 8 Serv., 593 F.3d 923, 932 (9th Cir. 2010). When a plaintiff challenges an agency’s 9 alleged failure to act, that challenge must satisfy certain limitations. The APA’s use 10 of the phrase “failure to act” means “a failure to take an agency action—that is, a 11 failure to take one of the agency actions (including their equivalents) earlier defined 12 in § 551(13),” i.e., an “agency rule, order, license, sanction, or relief.” SUWA, 542 13 U.S. at 62–63; see also 5 U.S.C. §551(13). Thus, a Section 706(1) claim “can only 14 proceed where a plaintiff asserts that an agency failed to take a discrete agency action 15 that it is required to take.” SUWA, 542 U.S. at 64 (emphasis in original). 16 These requirements to obtain Section 706(1) relief from a court are mutually 17 reinforcing. The discrete agency action “limitation” precludes a “broad programmatic 18 attack” against an agency. Id. As such, it “protect[s] agencies from undue judicial 19 interference with their lawful discretion” and “avoid[s] entanglement in abstract 20 policy disagreements which courts lack both expertise and information to resolve.” 21 Id. at 66–67. Thus, a plaintiff “cannot seek wholesale improvements of [a] program 22 by court decree” under the guise of a Section 706(1) claim. Lujan v. Nat’l Wildlife 23 Fed’n, 497 U.S. 871, 891 (1990); Public Lands for the People, Inc. v. U.S. Dep’t of 24 Agric., 733 F. Supp. 2d 1172, 1183 (E.D. Cal. 2010) (“This interpretation effectively 25 precludes enforcement of broad statutory mandates under section 706(1), insofar as a 26 broad mandate typically is not one that requires discrete agency action.”). The 27 “limitation to required agency action rules out judicial direction of even discrete 28 agency action that is not demanded by law.” SUWA, 542 U.S. at 65. Because of that – 35 – 17cv2366 1 limitation, courts “have no authority to compel agency action merely because the 2 agency is not doing something we may think it should do.” Zixiang Li v Kerry, 710 3 F.3d 995, 1004 (9th Cir. 2013) (Smith, M.D., J.). Thus, a plaintiff seeking relief under 4 Section 706(1) must identify an actual legal obligation for the agency to take some 5 action. Id. 6 The gravamen of Plaintiffs’ Section 706(1) claims is that CBP officials failed 7 to take actions that the INA requires when a noncitizen asserts an intent to seek 8 asylum. The Complaint grounds these claims in various statutory and regulatory 9 provisions, including 8 U.S.C. § 1225(a)(1)(3), 8 U.S.C. § 1225(b)(1)(A)(ii), 8 U.S.C. 10 § 1225(b)(2)(A), and 8 C.F.R. § 235.3(b)(4). (Compl. ¶¶ 104–121, 153.)12 There is 11 no dispute between the parties regarding the sufficiency of the Individual Plaintiffs’ 12 Section 706(1) claims under these provisions. Defendants agree that “APA relief 13 under section 706(1)” is “an appropriate remedy” for the failures to act the Individual 14 Plaintiffs allege. (ECF No. 145 at 1.) 13 These concessions buttress the Court’s 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Complaint’s Section 706(1) claim invokes 8 U.S.C. § 1158(a)(1). (Compl. ¶ 153.) The Court observes that it likely could not compel relief for this statutory provision. 8 U.S.C. § 1158(a)(1) does not identify any specific obligations placed on an immigration officer and, therefore, may not serve as the basis for Section 706(1) relief. See Public Lands for the People, Inc., 733 F. Supp. 2d at 1183 (“[W]here a statutory directive does not require action, that statute may be so ‘broad’ that it cannot be enforced under section 706(1)[.]”). Plaintiffs do not invoke 8 U.S.C. § 1158 in discussing the sufficiency of their Section 706(1) claims and so the Court deems any claims premised on it as waived. The Complaint also invokes 8 C.F.R. § 235.4, a regulation which provides that “[t]he alien’s decision to withdraw his or her application admission must be made voluntarily[.]” (Compl. ¶ 153.) As the Court discusses separately, Plaintiffs cannot seek Section 706(1) relief with respect to this regulation and any Section 706(1) claims seeking to compel agency action based on it are subject to dismissal. 12 13 However, Defendants argue that because the parties agree on what the law requires, “Plaintiffs have failed to identify any legal dispute between the parties,” and thus there is no “live case or controversy.” (ECF No. 135-1 at 19 & n.9.) Defendants’ argument is an inartful attempt to attack Plaintiffs’ Article III standing. To have – 36 – 17cv2366 1 conclusion that Plaintiffs have stated Section 706(1) claims for discrete and legally 2 required agency actions. 3 b. The Putative Class and Practice Allegations 4 A salient aspect of the Complaint are the allegations that there is a “practice” 5 of CBP officials refusing to permit asylum seekers who present themselves at POEs 6 along the U.S.-Mexico border to access the asylum process in the United States. (See 7 generally Compl.) Plaintiffs’ Section 706(1) claims incorporate these allegations. 8 (Id. ¶ 157 (“Defendants’ repeated and pervasive failure to act . . ., which denied Class 9 Plaintiffs access to the statutorily prescribed asylum process . . . mandates relief under 10 the APA.”); id. ¶ 163 (alleging that “Defendants’ conduct and practices, as alleged in 11 this Complaint, violate the APA.”).) Defendants primarily take issue with these 12 pattern allegations as a matter of sovereign immunity. As the Court has already 13 concluded, that argument lacks merit. Even so, Defendants’ argument that there is 14 “no cause of action” for pattern or practice claims raises a different issue: whether 15 and how pattern and practice claims are cognizable under the APA. 16 Two courts have considered this issue in the context of Section 706(1) claims 17 based on an agency’s alleged failure to act. These courts concluded that pattern and 18 practice challenges to an agency’s alleged failure to act are not legally cognizable 19 under the APA. See Californians v. United States EPA, No. C 15-3292 SBA, 2018 20 WL 1586211, at *19 (N.D. Cal. Mar. 30, 2018) (dismissing separately pleaded claim 21 22 23 24 25 26 27 28 standing, a plaintiff must allege: (1) an injury in fact (2) “fairly traceable to the challenged action of the defendant” (3) that may be “redressed by a favorable decision” from a court. Lujan, 504 U.S. at 560−61 (internal citations and quotations omitted). The Complaint plainly shows that the Plaintiffs have standing based on the injuries caused by CBP officials at POEs along the U.S.-Mexico border in violation of the INA and its implementing regulations. This Court has the authority to redress those injuries. See 5 U.S.C. § 706(1). The parties’ apparent agreement in their legal memoranda submitted to this Court on what the INA and its implementing regulations require cannot vitiate Plaintiffs’ standing based on the harms resulting from CBP officials’ alleged violations of those provisions. – 37 – 17cv2366 1 against EPA for an alleged pattern or practice of failing to timely act on administrative 2 complaints); Del Monte Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 3 116 (D.D.C. 2010) (dismissing claim against FDA for an alleged unlawful pattern and 4 practice of delay in sampling and inspecting food imported by plaintiff). 5 reasoning underlying these conclusions turns on Section 706(1)’s discrete agency 6 action limitation. See Californians, 2018 WL 1586211, at *19 (citing Lujan, 497 U.S. 7 at 891; SUWA, 542 U.S. at 66–67); Del Monte, 706 F. Supp. 2d at 119 (citing SUWA, 8 542 U.S. at 64, 66–67). As the Court has previously discussed, that limitation 9 precludes a plaintiff from using Section 706(1) to launch a “programmatic attack” or 10 seek “wholesale improvement” of an agency’s procedures. SUWA, 542 U.S. at 64. 11 Both the Del Monte and Californians courts determined that the “pattern or practice” 12 claims in those cases were impermissible attacks on the relevant agency. The 13 For example, in Del Monte, the court concluded that the plaintiffs could not 14 pursue a claim against the FDA for its alleged pattern and practice of not inspecting 15 Del Monte products within a reasonable time period. The Del Monte court reasoned 16 that such a claim would require the court to “consider the procedures by which the 17 FDA inspects samples and makes decisions as to their suitability for import” as a 18 general matter. Del Monte, 706 F. Supp. 2d at 119. As such, the court would have 19 engaged in “broad review of agency operations” of “just the sort of ‘entanglement’ in 20 daily management of the agency’s business that the Supreme Court has instructed is 21 in appropriate.” Id. The Del Monte plaintiff never challenged, nor sought relief for 22 specific instances of the FDA’s alleged failure to act or unreasonable delay in taking 23 action despite referring to several such instances. Id. at 120 n.6. In Californians, the 24 court similarly determined that the plaintiffs’ separately pleaded pattern and practice 25 claim against “the EPA’s general practice in handling [administrative] complaints, as 26 opposed to seeking relief on a specific complaint” was “in effect” “a programmatic 27 attack” on the EPA’s procedures and therefore “impermissible.” Californians, 2018 28 WL 1586211, at *19. The court, however, reached this conclusion even as it – 38 – 17cv2366 1 determined that the plaintiffs’ other five claims “seek[ing] relief based on the EPA’s 2 failure to act on each of the Plaintiffs’ respective [administrative] complaints” 3 “clearly satisf[ied] the discrete agency action requirement.” Id. Del Monte and 4 Californians, as well as their reliance on SUWA and Lujan, caution this Court to take 5 a closer look at the practice allegations in this case to ensure that they do not constitute 6 an impermissible broad-based programmatic attack against CBP. 7 Plaintiffs assert that they have not “attempt[ed] to bring a so-called ‘pattern or 8 practice’ claim as an independent cause of action.” (ECF No. 143 at 19 n.6.) This 9 assertion is supported by the Complaint, which does not facially plead independent 10 Section 706(1) claims for Defendants’ alleged practice of denying asylum seekers 11 who present themselves at POEs along the U.S.-Mexico border access to the asylum 12 process. Instead of raising an independent pattern or practice claim, the Section 13 706(1) claims incorporate the practice allegations as part of Plaintiffs’ request for 14 relief from “Defendants’ repeated and pervasive failure to act.” (Compl. ¶ 157.) 15 Plaintiffs challenge not only alleged agency failures to act in their particular cases, 16 they challenge CBP officials’ failures to act experienced by other individuals. 17 (Compare id. ¶¶ 39–82 (allegations of each Individual Plaintiff’s experiences) with 18 id. ¶¶ 83, 85–91, 96(a)–(d), 97, 98(b), (d), 99, 100, 101(a)–(e), 102 (allegations that 19 “CBP officials have systematically denied numerous other asylum seekers access to 20 the asylum process”) and id. ¶¶ 131–138 (setting forth “class action allegations”).) 21 Neither Del Monte, which involved an attempt to bring a freestanding pattern or 22 practice claim, nor Californians, which involved an attempt to plead a pattern or 23 practice claim independently of claims targeting discrete agency actions, is thus on 24 point. 25 The Court does not view the incorporation of these pattern allegations as an 26 impermissible “programmatic” attack. Unlike this case, SUWA, Lujan, Del Monte, 27 and Californians, did not involve Section 706(1) claims asserted on behalf of a 28 putative class of individuals. The Section 706(1) relief is no less discrete and lawfully – 39 – 17cv2366 1 required simply because it is requested on behalf of a putative class. See Ramirez, 2 310 F. Supp. 3d at 21 (“Defendants confuse aggregation of similar, discrete purported 3 injuries—claims that many people were injured in similar ways by the same type of 4 agency action—for a broad programmatic attack.”) (rejecting challenge to Section 5 706(1) relief sought on behalf of class). This conclusion is reinforced by the fact that 6 Section 706(1) claims to compel agency action may be asserted on behalf of a class. 7 See, e.g., Vietnam Veterans of Am. v. CIA, 811 F.3d 1068, 1971 (9th Cir. 2016) 8 (affirming district court preliminary injunction in a case involving Section 706(1) 9 claims asserted on behalf of a class of all current or former members of the armed 10 forces who were test subjects in certain government programs during their service); 11 Ramirez, 310 F. Supp. 3d at 21; Venantius Nkafor Ngwanyia v. Gonzales, 376 F. 12 Supp. 2d 923, 925 (D. Minn. 2005) (approving settlement in a class action suit 13 involving allegations that federal immigration agencies improperly administered the 14 system by which asylees become lawful permanent residents). 15 Defendants suggest that Section 706(1) relief is not available on a class-wide 16 basis, arguing that “Plaintiffs’ ‘pattern or practice’ allegations are too speculative to 17 otherwise establish a live case or controversy” and, thus, “the Court should dismiss 18 any ‘pattern or practice’ claims under Rule 12(b)(1).” (ECF No. 135-1 at 22, 24.) 19 Central to this argument is Defendants’ contention that “Plaintiffs have not alleged 20 that all CBP officers at [POEs] always deny asylum seekers access to the asylum 21 process.” (Id. at 24.) Like Defendants’ misguided attack on the Individual Plaintiffs’ 22 Article III standing based on the parties’ agreement about what the INA requires, 23 Defendants’ targeting of the pattern allegations as “too speculative” to establish a 24 “live case or controversy” misses the mark. 25 Defendants readily concede that the Complaint identifies incidents in which 26 asylum seekers who presented themselves at POEs along the U.S.-Mexico border 27 have been denied access to the asylum process. (ECF No. 135-1 at 24.) Even in the 28 absence of Defendants’ concession, the Complaint incorporates numerous reports – 40 – 17cv2366 1 from non-governmental organizations operating in the U.S.-Mexico border region, 2 which document hundreds of examples of asylum seekers who CBP officials denied 3 access to the U.S. asylum process. (Compl. ¶¶ 37–38, 96–102.) While Defendants 4 may seek to minimize those allegations by selectively casting doubt on the reliability 5 of those portions of the reports that reflect negatively on CBP and by characterizing 6 the reports as showing only “an alleged 1.6% denial rate,” (ECF No. 135-1 at 14), the 7 volume of denials is irrelevant to whether the Complaint concretely alleges that other 8 individuals have been subjected to the same alleged failures to act by CBP officials. 9 The Complaint plainly alleges such failures, which the Court is required to take as 10 true at this stage. Because the Individual Plaintiffs have standing in their own right 11 to seek Section 706(1) relief to compel the Defendants to inspect and process them 12 for admission, they may request that relief for a putative class of others asylum 13 seekers who have allegedly experienced the same failures to act. See O’Shea v. 14 Littleton, 414 U.S. 488, 494 (1974). Accordingly, the Court rejects Defendants’ 15 challenge to the Complaint’s practice allegations, which are merely a feature of the 16 class action nature of this case. 17 18 3. The Complaint Fails to State a Section 706(1) Claim for Relief Pursuant to 8 C.F.R. § 235.4 19 Although the Complaint states Section 706(1) claims regarding the alleged 20 failures of CBP officials to permit the Individual Plaintiffs to access the U.S. asylum 21 process, certain Individual Plaintiffs also seek relief regarding alleged coercion by 22 CBP officials. As the Court has discussed, all Plaintiffs argue that they only press 23 Section 706(1) claims to compel agency action unlawfully withheld. (ECF No. 143 24 at 19.) The Court will therefore consider these Plaintiffs’ coercion allegations within 25 the Section 706(1) framework. 26 Plaintiffs A.D., B.D., and C.D. each allege that on of one of the occasions they 27 sought asylum, CBP officials coerced them to into signing documents which stated 28 that they lacked a fear of persecution. (Compl. ¶¶ 42–43, 50–51, 56–58.) A.D. and – 41 – 17cv2366 1 C.D. further allege that CBP officials forced them to recant their fears in video 2 recorded statements. (Id. ¶¶ 42–43, 56–58.) They further refer to their allegations 3 regarding CBP’s alleged coercion of certain Individual Plaintiffs in discussing their 4 Section 706(1) claims. (ECF No. 143 at 20.) Both sides further agree that “the law 5 requires an alien’s decision to withdraw his or her application for admission be 6 voluntary” under 8 C.F.R. § 235.4. (ECF No. 135-1 at 20; ECF No. 143 at 20.) That 7 the parties agree on the text of the INA’s provisions and certain implementing 8 regulations, however, does not mean that the Court in fact has authority to provide 9 Section 706(1) relief based on 8 C.F.R. § 235.4. The Court concludes that it does not. 10 The Court has the authority to compel an agency action pursuant to Section 11 706(1) only when there is “a specific, unequivocal command” placed on the agency 12 to take a “discrete agency action,” and the agency has failed to take that action. 13 SUWA, 542 U.S. at 63–64. The obligation placed on the agency action must be “so 14 clearly set forth that it could traditionally have been enforced through a writ of 15 mandamus.” Hells Canyon Pres. Council, 593 F.3d at 932. The action must be a 16 “precise, definite act.” Id. The only provision Plaintiffs cite in the Complaint and 17 their opposing papers regarding the alleged coercion of withdrawal statements is 8 18 C.F.R. § 235.4, a regulation which states that “[t]he alien’s decision to withdraw his 19 or her application [for admission] must be made voluntarily[.]” 8 C.F.R. § 235.4. 20 This language is an insufficient basis for the Court to grant any Section 706(1) relief 21 pursuant to the regulation. 22 Although the clear objective of 8 C.F.R. § 235.4 is to ensure that an alien’s 23 withdrawal of an application for admission is made voluntarily, the regulation’s plain 24 text “does not instruct [the Defendants] to do anything.” San Luis Unit Food 25 Producers v. United States, 709 F.3d 798, 807 (9th Cir. 2013). The regulation does 26 not require CBP officers to determine whether a withdrawal was made voluntarily, 27 and it does not specify what CBP officers must do if a withdrawal was not. The 28 regulation thus “leaves [the agency] a great deal of discretion in deciding how to – 42 – 17cv2366 1 achieve” its objective and, in turn, lacks “the clarity necessary to support judicial 2 action under § 706(1).” SUWA, 542 U.S. at 66; see also San Luis Unit Food 3 Producers, 709 F.3d at 803 (“Statutory goals that are ‘mandatory as to the object to 4 be achieved; but that leave the agency ‘with discretion in deciding how to achieve’ 5 those goals are insufficient to support a ‘failure to act claim because such 6 discretionary actions are not ‘demanded by the law.’”). 7 Although Plaintiffs’ allegations may show that there are “[g]eneral deficiencies 8 in compliance,” SUWA, 542 U.S. at 66, there is nothing this Court can permissibly 9 compel from Defendants pursuant to with 8 C.F.R. § 235.4 to correct those 10 deficiencies. Accordingly, the Court dismisses Plaintiff A.D., B.D., and C.D.’s 11 Section 706(1) claims without prejudice only insofar as these Plaintiffs seek relief 12 pursuant to this regulation. This determination does not affect the Court’s conclusion 13 that these Plaintiffs have otherwise stated Section 706(1) claims regarding their 14 alleged denial of access to the asylum process in the United States. 15 4. The Complaint Fails to State a Section 706(2) Claim Regarding Defendants’ Alleged Policy 16 17 The Complaint alleges that CBP officials have systematically prevented 18 asylum seekers arriving at POEs along the U.S.-Mexico border from accessing the 19 U.S. asylum process since summer 2016. (Compl. ¶¶ 1, 5, 37.) Plaintiffs allege that 20 this conduct has been documented “in hundreds of cases” at POEs along the border. 21 (Id. ¶¶ 37–38.) 22 Plaintiffs have stated a Section 706(2) claim regarding an alleged “policy” of the 23 Defendants to deny asylum seekers who present themselves at POEs along the U.S.- 24 Mexico border access to the asylum process. (ECF No. 135-1 at 11–20.) Defendants 25 argue that “[w]hile the Complaint does not expressly seek judicial review of a final 26 agency action, it alleges that CBP has adopted an ‘officially sanctioned policy’[.]” 27 (Id. at 11 (citing Compl. ¶¶ 5, 154).) Defendants contend that “to the extent the Court 28 construes those references as a request for judicial review of an alleged unlawful The bulk of Defendants’ motion to dismiss concerns whether – 43 – 17cv2366 1 policy under the APA” pursuant to Section 706(2), the Court should dismiss that 2 request because: (1) Plaintiffs fail to identify an agency action and, even if Plaintiffs 3 have done so, (2) the Complaints fails to show a final agency action. (Id. at 12.) 4 Plaintiffs assert that “Defendants’ critique is misplaced” because “the review 5 of ‘final agency action’ . . . under [] § 706(2) is distinct from the analysis for APA 6 claims to compel agency action under § 706(1), and Plaintiffs brought the latter APA 7 claim.” (ECF No. 143 at 19.) Normally, the Court would construe Plaintiffs’ 8 response as a concession that they do not press a Section 706(2) claim and would not 9 address the issue further. However, two points convince the Court that further 10 analysis warranted. For one, the Complaint expressly invokes Section 706(2) as a 11 basis for judicial review of Defendants’ alleged conduct. (Compl. ¶¶ 151–164.) 12 Plaintiffs’ requested injunctive relief in turn includes “prohibiting Defendants . . . 13 from engaging in the unlawful policies . . . described herein at POEs along the U.S.- 14 Mexico border.” (Id. at 52–53.) Therefore, contrary to Plaintiffs’ assertion, the 15 Complaint appears to include a Section 706(2) claim. 16 Defendants’ motion, Plaintiffs assert that they “have alleged an illegal policy or 17 practice” because they “have pled sufficient facts . . . to support a reasonable inference 18 of liability” of the named Defendants. (ECF No. 143 at 21.) Plaintiffs’ assertion is 19 made independently of the APA’s basis for judicial review of agency action. 20 (Contrast id. at 19–20 (arguing that Section 706(1) APA claim is plausible) with id. 21 at 21–23 (arguing that Defendants’ policy is plausible).) Second, in opposing 22 The Complaint and Plaintiffs’ assertions raise two issues. First, the Court must 23 consider whether Plaintiffs may seek review of Defendants’ alleged policy 24 independently of the APA. The Court concludes that they may not. Second, because 25 Plaintiffs must seek review of any alleged policy pursuant to Section 706(2), the Court 26 must consider whether the Plaintiffs have satisfied the APA’s requirements for 27 judicial review and, specifically, the final agency action requirement. The Court 28 concludes they have not. – 44 – 17cv2366 1 2 a. Judicial Review of Defendants’ Alleged Policy Must Proceed Under the APA 3 Plaintiffs assert that Defendants may be held liable for an alleged policy of 4 denying asylum seekers who present themselves at POEs along the U.S.-Mexico 5 border access to the U.S. asylum process. And they make that assertion by relying 6 solely on cases in which courts considered Section 1983 and Bivens challenges. 7 Neither Section 1983, nor Bivens, however, provides a basis for holding the 8 Defendants liable. Nor does either supply the appropriate legal framework for review 9 of Defendants’ alleged policy. 10 Based on the pleadings, the APA supplies the appropriate framework for judicial review of the alleged policy. 11 As a general matter, “[t]he APA governs the conduct of federal administrative 12 agencies,” Aracely, R., —F. Supp. 3d—, 2018 WL 3243977, at *5, and it provides a 13 “default judicial review standard” for agency action, Ninilchik Traditional Council 14 v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000). “While a right to judicial 15 review of agency action may be created by a separate statutory or constitutional 16 provision, once created it becomes subject to the judicial review provisions of the 17 APA unless specifically excluded.” Webster v. Doe, 486 U.S. 592, 607 n* (1988) 18 (Scalia, J., dissenting); Ninilchik Traditional Council, 227 F.3d at 1194 (citing 19 Scalia’s Webster dissent approvingly). In this case, the Complaint challenges agency 20 action pursuant to the APA. (Compl. ¶¶ 151–164.) Although the Complaint purports 21 to bring a separate claim for violation of the Plaintiffs’ “procedural due process rights 22 under the Fifth Amendment,” that claim expressly incorporates the alleged APA 23 violations. (Id. ¶¶ 166, 171.) Plaintiffs allege that “the INA and its implementing 24 regulations provide Class Plaintiffs the right to be processed at a POE and granted 25 access to the asylum process” and that “CBP officials have denied Class Plaintiffs 26 access to the asylum process and failed to comply with procedures set forth in the 27 INA and its implementing regulations.” (Id. ¶¶ 168, 169.) “Insofar as [Plaintiffs] 28 have such an entitlement” under the INA and its implementing regulations, Plaintiffs – 45 – 17cv2366 1 “may obtain all the relief they request under the provisions of the APA.” Graham v. 2 Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1001 n.2 (9th Cir. 1998). Obtaining 3 such relief from Defendants’ alleged policy of course requires Plaintiffs to satisfy the 4 APA’s judicial review requirements. See Navajo Nation, 876 F.3d at 1171 (“§ 704’s 5 requirement that to proceed under the APA, agency action must be final or otherwise 6 reviewable by statute is an independent element without which court may not 7 determine APA claims.”). Plaintiffs’ reliance on Section 1983 and Bivens case law 8 does not convince the Court otherwise. 9 Liability under Section 1983 is inapt in this case. The Complaint does not 10 invoke Section 1983 as a basis for holding the named Defendants liable. Even if it 11 did, liability would not lie against the Defendants. Defendants Nielsen, McAleenan, 12 and Owen are Federal Executive officers or officials sued in their official capacity for 13 their duties pursuant to federal law. (Compl. ¶¶ 25–27.) As Defendants recognize 14 (ECF No. 145 at 9–10), Section 1983’s plain terms do not provide a cause of action 15 against federal officers acting in their official capacity. See 42 U.S.C. § 1983; see 16 also Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017) (“[Section 1983] entitles an 17 injured person to money damages if a state official violates his or her constitutional 18 rights. Congress did not create an analogous statute for federal officials.”); Pangacos 19 v. Towery, 782 F. Supp. 2d 1983, 1189 (W.D. Wash. 2011) (“Federal officers are 20 exempt from the proscription of § 1983) (citing District of Columbia v. Carter, 409 21 U.S 418, 424–25 (1973); McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006)); 22 Comm. for Immigrant Rights v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1203 (N.D. 23 Cal. 2009) (“Federal officers acting under federal authority are immune from suit 24 under § 1983 unless the state or its agents significantly participated in the challenged 25 activity). Plaintiffs’ reliance on Section 1983 to assert that the Defendants may be 26 held liable is thus inappropriate. See Morse v. North Coast Opportunities, Inc., 118 27 F.3d 1338, 1343 (9th Cir. 1997) (“Lest there be any continuing confusion, we take 28 this opportunity to remind the Bar that by its very terms, § 1983 precludes liability in – 46 – 17cv2366 1 federal government actors.”). 2 Taking for granted that Section 1983 does not apply to federal officers, 3 Plaintiffs further assert that their “allegations of a policy or practice are analogous to 4 claims brought under Monell[.]” (ECF No. 143 at 21 n.7.) Monell permits a Section 5 1983 plaintiff to establish municipal liability for an alleged constitutional violation in 6 certain circumstances, including by showing that a municipal employee committed 7 an alleged constitutional violation pursuant to a formal government policy or a 8 longstanding practice or custom which constitutes the standard operating procedure 9 of the local governmental entity. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 10 737(1989); Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). To the extent 11 Plaintiffs are arguing that an alleged policy is subject to judicial review because their 12 allegations could establish Monell liability, the Court rejects this argument. Monell 13 arose in the context of a statute that is fundamentally different from the APA. Most 14 relevant here are two limitations: (1) whereas the APA is limited to “agency action,” 15 Section 1983 reaches the conduct of “[e]very person” alleged to have violated federal 16 law, and (2) whereas the APA permits judicial review of only a “final agency action” 17 unless another statute makes the action reviewable, Section 1983 contains no identical 18 or analogous limitation on review. Contrast 5 U.S.C. §§ 702, 704 with 42 U.S.C. § 19 1983. Given these key differences, analogizing to Section 1983 liability is not 20 helpful. 21 The remaining cases cited by both parties involve Bivens actions against federal 22 officers sued in their individual capacity for alleged constitutional violations. (ECF 23 No. 135-1 at 11, 17; ECF No. 143 at 23.) In Bivens, the Supreme Court fashioned a 24 judicial cause of action for damages to redress constitutional violations committed by 25 a federal officer by treating such an action as one against the officer in his or her 26 individual capacity and thus not barred by sovereign immunity. Bivens, 403 U.S. 388, 27 409–10 (1971) (Harlan, J, concurring). By its nature, a Bivens suit is limited to 28 damages claims against a federal officer in his or her individual capacity. See – 47 – 17cv2366 1 Ministerio Roca Solida, 820 F.3d at 1093–94; see also Consejo de Desarrollo 2 Economico de Mexicali, A.C., 482 F.3d at 1173; Vaccaro v. Dobre, 81 F.3d 854, 857 3 (9th Cir. 1996) (a Bivens action “can be maintained against a defendant in his or her 4 individual action only, and not in his or her official capacity.”). A Bivens action “does 5 not encompass injunctive and declaratory relief where . . . the equitable relief requires 6 official government action.” Ministerio Roca Solida, 820 F.3d at 1093–94; Consejo 7 de Desarrollo Economico de Mexicali, A.C., 482 F.3d at 1173. In such cases, “Bivens 8 is both inappropriate and unnecessary” in large part “because the Administrative 9 Procedure Act waives sovereign immunity for such claims” and thus provides a 10 mechanism for judicial review. Ministerio Roca Solida, 820 F.3d at 1095, 1096. 11 Much of the dispute between the parties regarding Plaintiffs’ policy allegations 12 concerns whether Defendants may be held liable for the alleged conduct of some CBP 13 officials along the U.S.-Mexico border, liability which requires some connection 14 between the conduct of those officials and the named Defendants in this case. 15 (Compare ECF No. 135-1 at 11, 17 with ECF No. 143 at 23.) 16 overlooks a key point: the Bivens framework for holding federal government officials 17 liable for alleged constitutional violations has no application in this case This case is 18 far from a Bivens action in form and substance. The Complaint names the Defendants 19 in their official capacity and seeks declaratory and injunctive relief that undoubtedly 20 requires official government action. Thus, Bivens liability is not appropriate. 14 This dispute 21 22 23 24 25 26 27 28 14 For example, Defendants rely on Perez v. United States, 103 F. Supp. 3d 1180, 1200 (S.D. Cal. 2015), to argue that Plaintiffs have failed to allege “any factual connection between the alleged misconduct of a handful of officers and a policy” of the named Defendants and thus cannot show a “broadly sanctioned policy.” (ECF No. 135-1 at 11, 17.) In contrast, Plaintiffs argue that the Complaint demonstrates an alleged “high-level knowledge and acquiescence in the unlawful conduct,” of CBP officials by the named Defendants for which the latter may be held liable. (ECF No. 143 at 23.) The assumption underlying each of these arguments is that Bivens supervisory liability for the allegedly unconstitutional conduct of low-level officers is applicable in this case. It is not. – 48 – 17cv2366 1 With neither Section 1983, nor Bivens providing a framework applicable to 2 Defendants’ alleged policy, the Court affirms that the APA supplies the relevant 3 framework for considering Defendants’ alleged policy. See Am. Fin. Benefits Ctr. v. 4 Fed. Trade Comm’n, No. 17-04817, 2018 WL 3203391, at *5 (N.D. Cal. May 29, 5 2018) (analyzing plaintiffs’ claims under the APA because “although Plaintiffs assert 6 that the APA is inapplicable, they fail to identify any other basis for judicial review 7 or the exercise of this Court’s jurisdiction”). 8 b. The Complaint Does Not Identify a Final Agency Policy 9 The APA limits judicial review to agency action in the form of “the whole or 10 part of an agency rule, order, license, sanction, relief, or the equivalent or denial 11 thereof, or failure to act.” 5 U.S.C. § 551(13). An agency action must be “reviewable 12 by statute or a “final agency action for which there is no other adequate remedy[.]” 5 13 U.S.C. § 704. Two conditions must be satisfied for an agency action to be final: (1) 14 “the action must mark the consummation of the agency’s decisionmaking process— 15 it must not be of a merely tentative or interlocutory nature” and (2) “the action must 16 be one by which rights or obligations have been determined, or from which legal 17 consequences will flow.” United States Army Corps of Engineers v. Hawkes Co., 136 18 S. Ct. 1807, 1813 (2016) (quoting Bennett, 520 U.S. at 177–78). Although the finality 19 requirement is “flexible” and must be applied in a “pragmatic way,” it is nevertheless 20 a requirement that a plaintiff seeking review of agency action must satisfy.15 See 21 22 23 24 25 26 27 28 15 The Ninth Circuit has previously referred to the final agency action requirement as a jurisdictional requirement. See City of San Diego v. Whitman, 242 F.3d 1097, 1102 (9th Cir. 2001). However, this view of the final agency requirement, as applicable to courts in the Ninth Circuit, has been questioned. See Pebble Ltd. P’ship v. United States EPA, 604 Fed. App’x 623, 625–26 (9th Cir. 2015) (Watford, J., concurring) (“[I]n my view the D.C. Circuit has persuasively explained why our court’s precedent on this point is wrong. As that court held in Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), § 704 is not a jurisdiction-conferring statute.”). The Navajo Nation panel at least suggested that Section 704’s finality requirement should not be viewed as jurisdictional. See Navajo Nation, 876 F.3d at 1171 (“[Section] – 49 – 17cv2366 1 Oregon Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006). 2 The Complaint contains a single allegation that Defendants have an “officially 3 sanctioned policy” of denying asylum seekers who present themselves at POEs along 4 the U.S.-Mexico border access to the U.S. asylum process. (Comp. ¶ 5.) The only 5 formulation of the alleged policy suggested by Plaintiffs is that CBP officials have a 6 categorical policy of denying asylum seekers who present themselves at POEs along 7 the U.S.-Mexico border access to the U.S. asylum system. (Id. ¶¶ 1–6.) A further 8 variant of this policy is one in which CBP officials deny access through tactics of 9 misrepresentations, harassment, coercion, threats, and physical violence. (Id. ¶¶ 95– 10 101, ECF No. 143 at 23.) But the Court cannot locate a single agency action reflecting 11 Defendants’ alleged policy, let alone one that is final. 12 Neither the Complaint, nor Plaintiffs’ opposition to the motion to dismiss 13 “refer[s] to a single . . . order or regulation” of the Defendants’ which constitutes or 14 reflects an agency policy applicable to all CBP officials at POEs along the U.S.- 15 Mexico border for the challenged conduct. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 16 871, 890 (1990) (rejecting plaintiffs’ challenge to the Bureau of Land Management’s 17 alleged “land withdrawal program” because there was no agency action on which to 18 base their challenge under the APA); ONRC Action v. BLM, 150 F.3d 1132, 1136 (9th 19 Cir. 1998) (rejecting APA claims because “this case presents a situation where there 20 is no identifiable agency order, regulation, policy or plan that may be subject to 21 challenge as a final agency action’). 22 Plaintiffs observe in opposition that a policy need not be in written form to 23 exist, thus suggesting that the Court should infer the existence of a policy even if the 24 Court cannot locate one reduced to writing. (ECF No. 143 at 21.) The Court readily 25 acknowledges that “agency action . . . need not be in writing to be final and judicially 26 27 28 704’s requirement that to proceed under the APA, agency action must be final or otherwise reviewable by statute is an independent element without which courts may not determine APA claims.”). – 50 – 17cv2366 1 reviewable” pursuant to the APA. R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 184 2 (D.D.C. 2015). An unwritten policy can still satisfy the APA’s pragmatic final agency 3 action requirement. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 4 (D.C. Cir. 2008) (reviewing challenge to an agency’s “decision . . . to adopt [an 5 unwritten] policy of disclosing confidential information without notice” because such 6 a policy was “surely a consummation of the agency’s decisionmaking process” that 7 impacted the plaintiff’s rights); R.I.L.-R, 80 F. Supp. 3d at 174–176 (determining that 8 plaintiffs had shown a reviewable unwritten “DHS policy direct[ing] ICE officers to 9 consider deterrence of mass migration as a factor in their custody determinations” as 10 underlying the plaintiffs’ detention). “[A] contrary rule ‘would allow an agency to 11 shield its decisions from judicial review simply by refusing to put those decisions in 12 writing.’” R.I.L.-R, 80 F. Supp. at 184 (quoting Grand Canyon Tr. v. Pub. Serv. Co. 13 of N.M., 283 F. Supp. 2d 1249, 1252 (D.N.M. 2003)); see also Aracely R., —F. Supp. 14 3d—, 2018 WL 3243977, at *16 (“Despite Defendants’ assertions to the contrary, 15 agency action need not be in writing to be judicially reviewable as a final action.”). 16 Recent cases provide examples of challengeable unwritten agency policies in 17 the immigration context. For example, in R.I.L.-R, the plaintiffs challenged two 18 variants of an alleged DHS detention policy affecting Central American mothers 19 accompanied by minor children. In sustaining the “narrower formulation of the 20 relevant policy,” the court rejected the government’s APA finality argument that the 21 plaintiffs had failed to identify a regulation, policy memoranda, or any other 22 document memorializing the challenged policy. R.I.L.-R, 80 F. Supp. 3d at 174. The 23 court determined that the plaintiffs had shown the existence of a “DHS policy 24 direct[ing] ICE officers to consider deterrence of mass migration as a factor in their 25 custody determinations” through firsthand knowledge and data showing that “ICE has 26 been largely denying release to Central American mothers accompanied by minor 27 children since June 2014.” Id. These denials were “contrary to past practice” of DHS 28 and, while claiming there was no policy document, Defendants had “essentially – 51 – 17cv2366 1 conceded that the recent surge in detention during a period of mass migration . . . 2 reflects a design to deter such migration.” Id. at 175. The plaintiffs in Aracely, R. v. 3 Nielsen challenged prolonged detention of asylum seekers who present themselves at 4 POEs. They alleged a “de facto immigration policy promulgated by high-level 5 officials in Washington D.C.,” which began in 2014 and was “re-emphasized . . . after 6 the 2016 Presidential election.” Aracely, R., —F. Supp. 3d—, 2018 WL 3243977, at 7 *4. The alleged policy was “designed to serve as a deterrent to asylum seekers” by 8 “ordering local officials to heavily weight immigration deterrence in deciding parole 9 and similar forms of release.” Id. The plaintiffs pointed to data showing that the 10 parole release rate of the asylum seekers who crossed a U.S. POE was 80% in 2012, 11 but dropped to 47% in 2015. Id. The Aracely court found this sufficient to show a 12 final agency policy subject to APA review. Id. at *16. 13 To assess whether the Complaint shows an unwritten policy, the Court turns to 14 the Complaint’s pattern allegations. Plaintiffs rely on those allegations to defend the 15 existence of an alleged policy and argue that they “have pled sufficient facts to show 16 a widespread pattern or practice of denial of access to the asylum process[.]” (ECF 17 No. 143 at 21.) The Court, however, is not convinced that the Complaint’s disparate 18 “examples”—in Plaintiffs’ words—of conduct by CBP officials supports the 19 inference that there is an overarching policy. See Pearl River Union Free Sch. Dist. 20 v. King, 214 F. Supp. 3d 241 (S.D.N.Y. 2016) (“[T]his is not a case where a policy of 21 some kind was plainly adopted and illuminated, albeit imperfectly . . . rather, at best, 22 Plaintiff has alleged that Defendants took certain action with respect to it and asks the 23 Court to surmise therefrom the existence of a broader policy.”); Bark v. U.S. Forest 24 Serv., 37 F. Supp. 3d 41, 50 (D.D.C. 2014) (“Plaintiffs appear to have attached a 25 ‘policy’ label to their own amorphous description of the [defendant government 26 agency’s] practices. But a final agency action requires more.”). 27 Unlike the unwritten policies challenged in R.I.L.-R and Aracely, the Complaint 28 does not plausibly show the existence of the unwritten policy the Plaintiffs ask this – 52 – 17cv2366 1 Court to infer. As an initial matter, while the Complaint contains allegations about 2 the tactics employed by various CBP officials (Compl. ¶¶ 83–103), there are no 3 allegations connecting any of that conduct with an unwritten policy created by the 4 Defendants. In fact, Plaintiffs do not even allege that the Defendants were involved 5 in the development of any policy in this case. Aracely, R., —F. Supp. 3d—, 2018 6 WL 3243977, at *4. 7 categorical unwritten policy of the type Plaintiffs suggest. Even accepting the 8 Complaint’s references to documented instances of asylum seekers at POEs along the 9 U.S.-Mexico border who were denied access to the asylum process, the Complaint 10 expressly incorporates reports which show that many more asylum seekers were not 11 denied access.16 For example, the Complaint cites a 2017 report from Human Rights 12 First, which reports at least 125 occasions between December 2016 and March 2017 13 in which applicants for admission were denied access. (Compl. ¶ 38 n.27.)17 Yet, the 14 report also states that “CBP agents referred some 8,000 asylum seekers at [POEs]” 15 along the U.S-Mexico border to credible fear interviews during the same period. See 16 Crossing the Line, at 1. This information defeats the inference that a categorical 17 policy of the nature Plaintiffs intimate exists. See R.I.L.-R, 80 F. Supp. 3d at 174 18 (declining to find that “DHS adopted a categorical policy in June 2014 of denying The Complaint’s pattern allegations also fail to show a 19 20 21 22 23 24 25 26 27 28 Plaintiffs contend that “evidentiary arguments” regarding the existence of the unwritten policy they allege are not appropriate at the pleading stage. (ECF No. 143 at 23 n.8.) Because the Complaint expressly incorporates various reports and articles and provides the web links to them, the Court may consider these materials in full to assess the sufficiency of the allegations in the Complaint. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (courts may also consider “documents ‘whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] pleading.’”). 16 17 The Complaint provides the following source: B. Shaw Drake, et al., Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers, Human Rights First, 16 (2017), https://www.humanrightsfirst.org/sites/default/files/hrf-crossingthe-line-report.pdf [“Crossing the Line”]. – 53 – 17cv2366 1 release to all asylum-seeking Central American families in order to deter further 2 immigration” given that “in some small number of cases” ICE granted bonds). 3 Both sides also dispute whether the Complaint shows the existence of an 4 unwritten policy based on the following allegation: “[o]n June 13, 2017, in 5 questioning before the House Appropriations Committee, the Executive Assistant 6 Commissioner for CBP’s OFO admitted that CBP officials were turning away asylum 7 applicants at POEs along the U.S.-Mexico border.” (Compl. ¶ 103.) However, the 8 Complaint does not incorporate any particular portion of the testimony of John 9 Wagner, Deputy Executive Assistant Commissioner for the Office of Field 10 Operations of CBP, and thus it is not clear that this information is properly reviewable 11 at the motion to dismiss stage. Even if it were, the Court does not find the testimony 12 sufficient to show the existence of the unwritten policy Plaintiffs allege. Insofar as 13 CBP is “working with Mexico to develop methods to control the flow of migrants 14 entering U.S. [POEs] at any given time” (ECF No. 135-1 at 16), that information does 15 not show the consummation of an agency decision-making process, let alone one that 16 applies to asylum seekers in the manner Plaintiffs allege. As for the “contingency 17 plans” for a future “surge of migrants,” (id.), it is unclear how a such a plan has any 18 application in this case because the Complaint does not allege that any Plaintiff was 19 turned away by CBP officials as part of a policy concerning migrant “surges.” 20 In the absence of allegations showing a final agency order, rule, regulation, 21 policy, or plan to deny asylum seekers who present themselves at POEs along the 22 U.S-Mexico border—or allegations from which the Court could infer that one 23 exists—the Complaint fails to plead that Defendants have a policy this Court can 24 “hold unlawful and set aside.” 5 U.S.C. § 706(2). Because Plaintiffs may be able to 25 allege the existence of a policy, the Court dismisses without prejudice Plaintiffs’ 26 Section 706(2) claim concerning an alleged policy. This conclusion does not affect 27 the sufficiency of Plaintiffs’ Section 706(1) claims. See Bark v. U.S. Forest Serv., 37 28 F. Supp. 3d 41, 50–51 (D.D.C. 2014) (rejecting challenge to “a generalized, unwritten – 54 – 17cv2366 1 administrative ‘policy,’” but permitting challenge to five challenged permits). 2 IV. CONCLUSION & ORDER 3 For the foregoing reasons, the Court HEREBY ORDERS that: 4 1. The Court GRANTS IN PART Defendants’ motion to dismiss and 5 DISMISSES WITHOUT PREJUDICE: (a) Plaintiffs A.D, B.D., and C.D.’s claims 6 under Section 706(1) only insofar as they have sought to compel agency action under 7 8 C.F.R § 235.4, and (b) all Plaintiffs’ claims under Section 706(2) regarding 8 Defendants’ alleged policy. 9 2. 10 motion. 11 3. The Court DENIES ON ALL OTHER GROUNDS Defendants’ The Court Plaintiffs GRANTS LEAVE TO AMEND the pleadings 12 consistent with this Order. Plaintiffs may file a First Amended Complaint no later 13 than September 15, 2018. 14 4. If Plaintiffs do not file an amended complaint or request additional time 15 to do so by the foregoing date, Defendants shall file an Answer no later than 16 September 24, 2018. 17 18 IT IS SO ORDERED. DATED: August 20, 2018 19 20 21 22 23 24 25 26 27 28 – 55 – 17cv2366

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