Al Otro Lado, Inc. v. McAleenan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AL OTRO LADO, INC., et al., Case No. 17-cv-2366-BAS-KSC 12 Plaintiffs, ORDER: 13 v. (1) DENYING AS MOOT 14 ALEJANDRO MAYORKAS, et al., PLAINTIFFS’ MOTION TO 15 Defendants. ENFORCE PRELIMINARY INJUNCTION (ECF No. 644); 16 17 (2) DENYING AS MOOT PLAINTIFFS’ MOTION FOR 18 ORAL ARGUMENT (ECF No. 19 653); 20 (3) GRANTING PLAINTIFFS’ 21 MOTION FOR DISCOVERY (ECF No. 680); AND 22 23 (4) GRANTING MOTIONS TO SEAL (ECF Nos. 643, 663, 678, 24 693, 696, 701) 25 26 I. MOTION FOR COURT OVERSIGHT 27 Plaintiffs have filed a Motion to Enforce Preliminary Injunction (ECF No. 644) and 28 a Motion for Court Oversight of Preliminary Injunction (ECF No. 736). Because the first 1 motion is subsumed in the second, the Court DENIES the initial Motion to Enforce 2 Preliminary Injunction and the Motion for Oral Argument on that Motion as moot. (ECF 3 Nos. 644, 653.) The Court will address Plaintiffs’ concerns regarding enforcement of the 4 preliminary injunction in its ruling on the Motion for Court Oversight. (ECF No. 736.) 5 II. MOTION FOR DISCOVERY 6 Plaintiffs additionally move for discovery, to include 20 requests for production, 10 7 interrogatories, and an unspecified number of depositions of unspecified individuals. (ECF 8 No. 680.) Specifically, Plaintiffs request information on who is a likely class member; how 9 the Government determined who was a likely class member; and what the Government did 10 after learning an individual was a likely class member. (Id.) Despite Defendants’ outlining 11 how the process is proceeding, Plaintiffs provide anecdotal evidence that Immigration 12 Judges are refusing to apply the Preliminary Injunction and the Government has attempted 13 to deport some individuals subject to the Preliminary Injunction without a credible fear 14 interview. (Id.) 15 Additionally, on at least one occasion, the Government was poised to deport a 16 planeload of individuals to Cameroon, which included several potential class members. 17 (ECF No. 680–3, 680–4.) In October 2020, the Court granted Plaintiffs’ Emergency 18 Motion to enjoin removal of a Cameroonian asylum applicant who the Court determined 19 was a member of the certified subclass. (ECF No. 607.) Despite the Government’s 20 argument in opposing this Emergency Motion that the applicant’s asylum application had 21 been denied for reasons beyond the Asylum Ban, the Court disagreed. Because the 22 Immigration Court had determined the Asylum Ban applied, the Judge had only then 23 applied a “reasonable fear” standard as opposed to the lesser “credible fear” standard. (Id.) 24 Thus, the Court ordered the Government to allow this class member the required asylum 25 hearing to determine if she had a “credible fear” if deported. (Id.) 26 Defendants oppose the request for discovery, arguing that Plaintiffs have or can 27 obtain the information they request. (ECF No. 695.) Specifically, the Government will 28 provide Plaintiffs with a list of class members once a protective order is signed, and 1 Defendants have shared their plans for implementing the Preliminary Injunction. Thus, the 2 Defendants contend, further discovery is unnecessary. (Id.) Plaintiffs reply. (ECF No. 3 698). 4 “[A] court should give careful attention to a request for discovery to establish 5 noncompliance with one of its judgments.” Calif. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 6 1025, 1033 (9th Cir. 2008). If the discovery could reveal “potentially favorable 7 information,” it should be ordered. Id. at 1034. “A movant who requested permission to 8 engage in discovery as part of a motion to enforce a judgment need only show … that the 9 request might have generated information that could raise significant questions concerning 10 compliance.” Id.; see also Gen. Elec. Co. v. Liang, No. CV 13-08670 DDP (VBKx), 2014 11 WL 1089264, at *4 (C.D. Cal. Mar. 19, 2014) (“Discovery can be vital to enable a plaintiff 12 to … evaluate the need for any further injunctive relief beyond that which has been 13 ordered.”); Fraihat v. U.S. Immigr. & Customs Enf’t, No. EDCV 19-1546 JGB (SHKx), 14 2020 WL 2758553, at *3 (E.D. Cal. May 15, 2020) (holding district court’s authority to 15 monitor and enforce prior orders “extends to allowing post-judgment discovery to aid the 16 court in determining whether a party has complied with that order” (citing Richmark Corp. 17 v. Timber Falling Consultants, Inc., 937 F.2d 1444, 1449 (9th Cir. 1991))). 18 The Court agrees with Plaintiffs that discovery would enable them to determine 19 whether the Government has complied with the preliminary injunction. Therefore, the 20 Court GRANTS the Motion for discovery in principle, but requests that Plaintiffs submit 21 their discovery requests to the Court for approval. The Government may oppose the 22 specific requests. 23 III. MOTION TO SEAL 24 Finally, in conjunction with the Motion to Enforce the Preliminary Injunction and 25 the Motion for Discovery, the parties file various Motions to Seal. (ECF Nos. 643, 663, 26 678, 693, 696, 701.) Because the Court finds the redactions all address material the Court 27 has previously found to be confidential and has previously sealed, the Motions are 28 GRANTED. 1 Specifically, the parties move to seal names, A-file numbers, and other identifying 2 information about the cases of asylum seekers. The Court has previously found such 3 information is properly sealed. Therefore, the Court grants the Unopposed Motion to Seal 4 portions of Exhibits 3 and 4 to Plaintiffs’ Motion to Enforce the Preliminary Injunction 5 (ECF Nos. 644-5, 644-6); grants the Unopposed Motion to Seal portions of Exhibits 1, 2 6 and 3 in Support of Plaintiffs’ Motion for Discovery (ECF Nos. 680); grants the Unopposed 7 Motion to Seal portions of the Reply brief supporting Plaintiff’s Motion for Discovery 8 (ECF No. 698); and grants the Unopposed Motion to Seal portions of the Points and 9 Authorities and Exhibits B, D, E to Defendants’ Opposition to the Motion for Discovery 10 (ECF No. 695). (ECF Nos. 643; 678; 693; 696.) 11 Plaintiffs also move to seal portions of the Reply supporting Plaintiffs’ Motion for a 12 Preliminary Injunction and Exhibits 1, 2, and 3 thereto (ECF No. 662). (ECF No. 663.) 13 Plaintiffs claim the redacted portions detail how the U.S. Customs and Border Protection 14 deploys resources, meetings between the governments of the U.S. and Mexico and 15 information about port capacity, all information the Court has previously sealed as 16 confidential. Therefore, the Court grants this Motion to Seal. (Id.) 17 Finally, Defendants moved, unopposed, to seal Exhibit A to Plaintiffs’ Unopposed 18 Motion for Leave to Lodge Supplemental Evidence (ECF No. 300-2) and Exhibit 19 to 19 Plaintiffs’ Memorandum and Authorities in Support of Their Motion for Summary 20 Judgment (ECF No. 535-21). (ECF No. 701.) Defendants claim that these documents 21 reveal the identity of a whistleblower whose safety and security is potentially at risk 22 through such public disclosure. Again, the Court has previously sealed this type of 23 information as confidential. Therefore, the Court grants this Motion to Seal. (Id.) 24 IV. CONCLUSION 25 For the reasons stated above, the Court DENIES as moot the Motion to Enforce 26 Preliminary Injunction (ECF No. 644); DENIES as moot the Motion for Oral Argument 27 (ECF No. 653) and GRANTS the Motion for Discovery (ECF No. 680). Additionally, the 28 Court GRANTS the Motions to Seal (ECF Nos. 643, 663, 678, 693, 696, 701), and directs 1 || the clerk of court to accept and file under seal the proposed sealed lodged documents (ECF 2 || Nos. 645, 664, 679, 694, 697) and to seal two previously filed documents (ECF No. 300- 3 ||2; ECF No. 535-21). 4 IT IS SO ORDERED. 5 A 6 || DATED: September 24, 2021 Ypilag (Lyohaa 6 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5]