DocketNumber: Case No. 18-cv-02349-BLF
Citation Numbers: 357 F. Supp. 3d 972
Judges: Freeman
Filed Date: 7/10/2018
Status: Precedential
Modified Date: 7/25/2022
This Court recognizes the limits of judicial reviewability, including the longstanding principle that no court has the authority to examine the decision to let aliens into the United States absent express authorization from Congress. But that is not what this case is about. The narrow issue presented in this case is whether the content of Notices of Ineligibility issued by the Department of Homeland Security ("DHS") denying the applications of approximately 87 Iranian refugees failed to comply with the Lautenberg Amendment and other applicable law.
For the reasons that follow, the Court finds that Plaintiffs' claims are suitable for class resolution, and GRANTS Plaintiffs' motion for class certification. The Court also GRANTS Plaintiffs' motion for partial summary judgment, finding that the Notices of Ineligibility denying Plaintiffs' refugee applications "as a matter of discretion" violate the Lautenberg Amendment and the Accardi doctrine. As discussed below, the Court sets aside the February 2018 Notices of Ineligibility pursuant to
I. BACKGROUND
Plaintiffs bring this putative class action against DHS
Before addressing the merits of Plaintiffs' motions and DHS's overarching defense that Plaintiffs' claims are not justiciable, the Court provides an overview of the law governing the admission of Iranian refugees to the United States and the personal experiences of the named Plaintiffs.
A. Refugee Admission and The Lautenberg Amendment
The admission of refugees to the United States is authorized by
In 1989, Congress enacted the Lautenberg Amendment as part of the FY1990 Foreign Operations Appropriations Act in order to facilitate the refugee admission of persecuted categories of individuals to the United States. See P.L. 101-167, Tile V, § 599D,
Nothing in the Lautenberg Amendment or Specter Amendment explicitly alters the discretionary authority of DHS to grant or deny refugee applications pursuant to § 1157.
In practice, persecuted religious minorities in Iran seeking admission to the United States may apply for refugee status under the Vienna-based Lautenberg-Specter Program. See Declaration of Samuel Witten ("Witten Class Cert. Decl.") ¶ 4, ECF 63. The application process for the Lautenberg-Specter Program begins with an individual lawfully living in the United States, called a "U.S. tie," who submits an application on behalf of a member of an Iranian religious minority seeking refugee status.
Because the United States does not have an embassy in Iran, the Austrian Government interacts with the Iranian applicants at the Austrian Embassy in Tehran. Witten Class Cert. Decl. ¶ 8. After an Austrian official meets with the applicant in Iran and the applicant passes an initial screen, the Austrian embassy issues a visa to eligible refugee applicants for the purpose of traveling to Vienna, Austria to continue to processing of the refugee application by U.S. authorities.
Once the applicant has traveled to Austria, the program is managed by the U.S. State Department who has contracted with HIAS, a non-profit organization founded as the Hebrew Immigrant Aid Society, to operate a refugee Resettlement Support Center in Vienna. Witten Class Cert. Decl. ¶¶ 5, 9. Applicants are ultimately interviewed by officers from the U.S. Citizenship and Immigration Services ("USCIS"), of the Department of Homeland Security, who reviews and adjudicates the refugee applications.
B. Named Plaintiffs and the February 2018 Notices of Ineligibility
Despite the historically high approval rate of refugee applications under the Lautenberg-Specter Program, processing of refugee applicants who had already traveled to Vienna under the program began *983to stall in the fall of 2016. See Lee Summary Judgment Decl., Exh. E, ECF 26-5.
In particular, this case centers around Notices of Ineligibility issued by USCIS on or about February 19, 2018, denying the applications of approximately 87 of the 100 Lautenberg-Specter refugee applicants who had already traveled to Vienna under the program. See Lee Summary Judgment Decl. Exh E; see also Declaration of Joanna Ruppel ("Ruppel Decl.") ¶ 4, ECF 71-1, 72-1. Individuals familiar with the Lautenberg-Specter program represent that such a "mass denial" of refugee admissions represents an "extreme departure from how the program has run in the past and certainly is inconsistent with the way the program has operated under both Democratic and Republican Administrations." Declaration of Samuel Witten ("Witten Summary Judgment Decl.") ¶ 12, ECF 27.
Three of the five named Plaintiffs in this case are Iranian refugee applicants who were handed the February 2018 Notices of Ineligibility at issue after they had already left their homes in Iran and traveled to Vienna under the Lautenberg-Specter Program.
After review of all the information concerning your case, including your testimony, supporting documentation, background checks, country conditions, and other available information, your application for refugee resettlement to the United States under [8 U.S.C. § 1157 ] has been denied as a matter of discretion.
See
The Notices of Ineligibility also advised the applicants of the availability of an informal request for review ("RFR") process, stating:
Based on the reason or reasons indicated above, your request for resettlement to the United States is denied. There is no appeal from a denial of an application for refugee status. USCIS may exercise its discretion to review a case upon timely receipt of a request for review from the principal applicant. The request must include one or both of the following: (1) a detailed account explaining how a significant error was made by the adjudicating officer or (2) new information that would merit a change in the determination. Please note that if you provide new information in your request for review, you must provide an explanation about why you did not provide this information at the interview. USCIS will only accept one request that is postmarked or received by USCIS or the RSC within 90 days from the date of this notice.
See Doe 3 Decl. Exh. A; Doe 4 Decl. Exh. A; Doe 5 Decl. Exh. A; Bates Decl. ¶ 10.
Plaintiffs filed this putative class action on April 18, 2018, seeking to represent a class defined as:
All Iranian refugees who (1) applied for refugee admission to the United States under the Lautenberg Amendment, whether as a principal applicant or derivative relatives; (2) traveled to Vienna, Austria, for processing; and (3) received denials from the United States government in or after February 2018 with the sole explanation that their application was denied "as a matter of discretion," and their U.S.-based Close Family Members who served as their U.S. ties.
See Compl. ¶ 70.
The representative Plaintiffs in this case, who have been granted permission to proceed anonymously, are three Iranian refugee applicants currently in Vienna who received Notices of Ineligibility in February 2018, and two U.S. ties for two of the named Plaintiffs. Plaintiff Jane Doe 1 ("Doe 1") is a U.S. citizen living in San Jose, California, who served as a U.S. tie *985for her adult daughter, Plaintiff Jane Doe 3 ("Doe 3"), and young grandson, who are Mandaeans at risk of religious persecution in Iran. See Doe 1 Decl. ¶¶ 1-2, 8-10. Doe 3 received a February 2018 Notice of Ineligibility, which Doe 1 did not understand because their entire nuclear family had previously resettled in the United States under the Lautenberg-Specter Program.
Plaintiff John Doe 2 ("Doe 2") is a U.S. citizen living in West Chicago, Illinois, who served as a U.S. tie for his mother, Jane Doe 4 ("Doe 4"), and his disabled younger brother to apply for resettlement in the U.S. under the Lautenberg-Specter Program. See Doe 2 Decl. ¶¶ 1, 4; Doe 4 Decl. ¶¶ 5-6. As persecuted Mandaeans in Iran, Doe 4 and her sons traveled to Vienna in the fall of 2016 where Doe 4 was interviewed by DHS, underwent two medical checks, and was scheduled to attend a cultural orientation in preparation for resettlement to the U.S. See Doe 2 Decl. ¶¶ 5, 9; Doe 4 Decl. ¶¶ 9, 12-16. However, in February 2018, Doe 4 and her sons received identical Notices of Ineligibility denying their refugee applications "as a matter of discretion." Doe 4 Decl. ¶¶ 18, 21, Exh. A.
Jane Doe 5 ("Doe 5") is an Iranian refugee applicant stranded in Vienna with her elderly father and disabled son, all of whom received Notices of Ineligibility in February 2018. See Doe 5 Decl. ¶¶ 1, 11, Exh. A. Doe 5 is a Christian of Armenian descent who faced systemic discrimination in Iran and applied for the Lautenberg-Specter Program with her sister-in-law as her U.S. tie who paid thousands of dollars for Doe 5's application and additional deposits for the medical costs to care for Doe 5's father and son.
On April 20, 2018, Plaintiffs filed a motion for partial summary judgment on Claims 1-5 against DHS, requesting that the Court set aside the February 2018 Notices of Ineligibility as unlawful. ECF 25 ("MSJ"). Plaintiffs filed an Amended Motion for Class Certification on May 18, 2018. ECF 60 ("Class Cert. Mot."). The Court held a hearing on June 22, 2018.
II. MOTION FOR CLASS CERTIFICATION
A. Legal Standard
Recognizing that "[t]he class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only," Federal Rule of Civil Procedure 23 demands that two requirements be met before a court certifies a class. Comcast Corp. v. Behrend ,
A party must first meet the requirements of Rule 23(a), which demands that the party "prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation." Behrend , at 1432. If a party meets Rule 23(a)'s requirements, the Court must also find that Plaintiffs have satisfied "through evidentiary proof" one of the three subsections of Rule 23(b).
The party seeking class certification bears the burden of showing affirmative compliance with Rule 23. See, e.g. , Wal-Mart Stores, Inc. v. Dukes ,
B. Discussion
Plaintiffs simultaneously move for class certification and partial summary judgment on behalf of a class consisting of:
All Iranian refugees who (1) applied for refugee admission to the United States under the Lautenberg Amendment, whether as a principal applicant or derivative relatives; (2) traveled to Vienna, Austria, for processing; and (3) received denials from the United States government in or after February 2018 with the sole explanation that their application was denied "as a matter of discretion," and their U.S.-based Close Family Members who served as their U.S. ties.
See Class Cert. Mot. at 1. The Court addresses Plaintiffs' motion for class certification before turning to the motion for partial summary judgment.
DHS argues that the proposed class definition is inadequate because Plaintiffs omit a significant portion of USCIS's articulated ineligibility basis provided in the Notices. See Opp'n to Class Cert. Mot. at 9. This defect is easily remedied, and Plaintiffs argue that rather than decline to certify the class the Court should modify the proposed class definition to include the full language in all of the denials sent to class members. See Reply iso Class Cert. Mot. at 10, ECF 75. For purposes of completeness, the Court finds that the class definition should state the full text of the denial and include:
All Iranian refugees who (1) applied for refugee admission to the United States under the Lautenberg Amendment, whether as a principal applicant or derivative relatives; (2) traveled to Vienna, Austria, for processing; and (3) received denials from the United States government in or after February 2018 with the sole explanation that: "After review of all information concerning your case, including your testimony, supporting documentation, background checks, country conditions, and other available information, your application for refugee resettlement to the United States under INA § 207 has been denied as a matter of discretion," and their U.S.-based Close Family Members who served as their U.S. ties.
DHS's primary argument in opposition to class certification is that Plaintiffs' claims are not justiciable because no aspect of the refugee application denials is entitled to judicial review. See Opp'n to Class Cert. Mot. at 2, ECF 72. The Court addresses these arguments at length below in connection with Plaintiffs' motion *987for partial summary judgment.
Notwithstanding their justiciability and nonreviewability arguments, DHS does not challenge Plaintiffs' Article III and prudential standing to bring their claims. In any event, as discussed below regarding the APA, the Court finds that Plaintiffs are more than "arguably" within the "zone of interests" of the Refugee Act and Lautenberg and Specter Amendments.
1. Rule 23(a)
Pursuant to Rule 23(a), the Court may only certify a class where "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). DHS argues that Plaintiffs cannot show commonality, typicality, or adequacy of representation. See Opp'n to Class Cert. Mot. at 8. The Court disagrees, and finds that all prerequisites in Rule 23(a) are satisfied.
i. Ascertainability and Numerosity
Before analyzing numerosity, district courts have required a showing that the class to be certified is ascertainable. See Xavier v. Philip Morris USA, Inc. ,
*988Daniel F. v. Blue Shield of Cal. ,
As for numerosity, Rule 23(a)(1) requires the proposed class to be "so numerous that joinder of all members is impracticable." " 'Impracticability' does not mean 'impossibility,' but only the difficulty or inconvenience of joining all members of the class." Harris v. Palm Springs Alpine Estates, Inc. ,
With the exception of the objection that the proposed class is "imprecise," as remedied above, DHS does not challenge the proposed class with respect to ascertainability or numerosity. Plaintiffs estimate that the class contains 87 refugee applicants in Vienna and their corresponding U.S. ties. See Lee Class Cert. Decl. Exh D, E, ECF 61. Although the exact number of individuals who received the Notices of Ineligibility in and around February 2018 is only known by the Government, Plaintiffs are aware of at least 38 individuals (applicants and their derivative relatives) who received the Notices. See Bates Decl. ¶ 6. These 38 individuals are sponsored by 16 corresponding U.S. ties who are "Close Family Members" under the class definition.
For the foregoing reasons, the Court finds that membership in the proposed class is objectively ascertainable and sufficiently numerous.
ii. Commonality
DHS challenges Plaintiffs' ability to establish that there are "questions of law or fact common to the class" as required by Rule 23(a)(2). See Opp'n to Class Cert. Mot. at 16-17. "[C]ommonality requires that the class members' claims depend upon a common contention such that determination of its truth or falsity will resolve an issue that is central to the validity of each claim in one stroke." Jimenez v. Allstate Ins. Co. ,
*989Commonality focuses on the relationship among class members. Plaintiffs argue that all class members present the same set of factual circumstances and thus present the same common question of law: whether the Notices of Ineligibility at issue violated the Lautenberg Amendment. See Class Cert. Mot. at 15. All class members assert that DHS violated its obligations under the Lautenberg Amendment and applicable agency guidelines and regulations. See generally Compl.
DHS argues that Plaintiffs cannot demonstrate commonality because of the diverse relationships that the proposed class presents. See Opp'n to Class Cert. at 16-17. DHS argues that class members can be divided into two groups: one group of unadmitted and nonresident aliens who applied for refugee status, and the other group of U.S. citizens who did not apply for refugee status.
Although the refugee applicants may have factual bases for their claims that differ from the U.S. ties, "[i]t is not necessary that "[a]ll questions of fact and law... be common to satisfy the rule." Hanlon v. Chrysler Corp. ,
iii. Typicality
Rule 23(a)(3)'s typicality requirement looks to whether Plaintiffs' claims are typical of those advanced by the class. See Fed. R. Civ. P. 23(a)(3). Typicality is "directed to ensuring that plaintiffs are proper parties to proceed with the suit." Ries v. Arizona Beverages USA ,
Similar to its position on commonality, DHS argues that typicality is not satisfied because the alien-Plaintiffs and U.S. citizen-Plaintiffs are in fundamentally different positions that affect the justiciability of their claims. See Opp'n to Class Cert Mot. at 18. DHS highlights this argument by demonstrating that the proposed class includes familial relationships that are not represented by the named Plaintiffs.
Although DHS's argument regarding familial relationships may have merit with respect to Plaintiffs' fifth cause of action regarding Due Process rights, Plaintiffs do not seek to certify that class and the Court does not reach the Due Process claim in its order on Plaintiffs' motion for partial summary judgment. See Compl. ¶¶ 92-94. The diverse familial relationships do not impact the justiciability of Plaintiffs' claims that the Notices of Ineligibility violated the Lautenberg Amendment and Accardi doctrine. The argument that factual variations in individual cases preclude typicality thus fails for similar reasons to those discussed above with respect to commonality. See Gonzalez ,
For the foregoing reasons, the Court finds that Plaintiffs' claims are "reasonably co-extensive with the claims of the class" because they seek identical relief from an identical injury as the absent class members. Rodriguez v. Hayes ,
iv. Adequacy of Representation
The final requirement of Rule 23(a) ensured that the class representative will "fairly and adequately protect the interests of the class." Rule 23(a)(4). This requirement is related to typicality, and serves to protect the due process rights of absent class members who will be bound by the judgment. Hanlon ,
DHS does not argue that any conflicts of interest exist. Rather, DHS repeats its defense that the named Plaintiffs' claims are not justiciable and thus they cannot vigorously prosecute the action as required to adequately represent the proposed class. See Opp'n to Class Cert. Mot. at 19. This justiciability argument fails for the reasons discussed in the Court's order granting Plaintiffs' motion for partial summary judgment. DHS also reasserts that the proposed class represents a wide array of familial relationships that, for the most part, are not represented by the U.S.-citizen Plaintiffs who include only a parent and an adult child of refugee applicants.
The Court finds that Plaintiffs and their experienced counsel have no conflict of interest with other class members and there is no basis to conclude that Plaintiffs and their counsel will not vigorously represent the class. The U.S.-citizen Plaintiffs both testify that they are willing to serve as class representatives for similarly situated individuals who serve as U.S. ties for their family member applicants who are stuck in Vienna and want to help everyone in their situation "because we are all suffering from the unexplained denial of our family members' refugee applications." Doe 1 Decl. ¶¶ 12-13; Doe 2 Decl. ¶¶ 16-17. The refugee applicant Plaintiffs also represent that they are willing to serve as representatives for similarly situated Iranian religious minorities who are stranded in Vienna after receiving Notices of Ineligibility, and the named Plaintiffs want to help everyone suffering from the same unexplained denial of their refugee applications. See Doe 3 Decl. ¶¶ 23-24; Doe 4 Decl. ¶¶ 26-27; Doe 5 Decl. ¶¶ 20-21.
Moreover, the Court finds that Plaintiffs' counsel-highly experienced attorneys from Latham & Watkins LLP and the International Refugee Assistance Project ("IRAP")-will vigorously prosecute this action on behalf of the class. See Lee Class Cert. Decl. ¶¶ 2-5; Declaration of Mariko Hirose ("Hirose Decl.") ¶ 6, ECF 62. DHS does not challenge the adequacy of counsel.
For the foregoing reasons, the Court finds that adequacy of representation is met, and all four of Rule 23(a)'s requirements are satisfied in this case.
2. Rule 23(b)(2)
Having found that Plaintiffs satisfy the four prerequisites under Rule 23(a), the Court next considers whether Plaintiffs have satisfied one of the three subsections of Rule 23(b). See Behrend , 133 S.Ct. at 1432. Plaintiffs move for class certification pursuant to Rule 23(b)(2), which permits the Court to certify a class if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). " Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class." Dukes ,
Plaintiffs argue that the uniform response from DHS to class members in the February 2018 Notices of Ineligibility are sufficient to satisfy Rule 23(b)(2). See Class Cert. Mot. at 17. Plaintiffs allege and present evidence that the class members received denials of their refugee applications under the Lautenberg Amendment in or after February 2018 with the sole explanation that: "After review of all information concerning your case, including your testimony, supporting documentation, background checks, country conditions, and other available information, your application for refugee resettlement to the United States under INA § 207 has been denied as a matter of discretion."See Exh. A to Declarations of Does 1-3; see also Bates Decl. ¶ 9. In order to certify a Rule 23(b)(2) class, Plaintiffs do not need to prove that DHS adopted a formal policy of 100% uniformity across the class.
The Court finds that Plaintiffs have satisfied Rule 23(b)(2). Plaintiffs have shown that the class is "cohesive" by demonstrating that DHS "has adopted a pattern of activity that is likely to be the same as to all members of the class." In re Conseco Life Ins. Co. LifeTrend Ins. Sales & Mktg. Litig. ,
3. Rule 23(g)
Rule 23(g) provides that, upon class certification, the Court "must appoint class counsel[,]" and in doing so, must consider: "(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class[.]" Fed. R. Civ. P. 23(g)(1)(A). The Court may also consider "any other matter pertinent to the counsel's ability to fairly and adequately represent the interests of the class[.]" Fed. R. Civ. P. 23(g)(1)(B).
As discussed above with respect to adequacy of representation, Plaintiffs' counsel satisfy each of the Rule 23(g) factors. Counsel has spent considerable time and effort in identifying Plaintiffs and investigating their potential claims. See Lee Class Cert. Decl. ¶ 5; Hirose Decl. ¶ 6. Moreover, counsel and their organizations have extensive experience handling class actions and complex litigation, including immigration and refugee matters. See Lee Class Cert. Decl. ¶ 3; Hirose Decl. ¶¶ 4-6. Plaintiffs' counsel are also strongly committed to representing the class. See Lee Class Cert Decl. ¶ 5; Hirose Decl. ¶ 6.
*993For these reasons, the Court appoints Latham & Watkins LLP and IRAP as counsel for the proposed class pursuant to Rule 23(g).
C. Order on Motion for Class Certification
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs' motion for class certification is GRANTED. "An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g)." Fed. R. Civ. P. 23(c)(1)(B). The Court thus certifies a Rule 23(b)(2) class of:
All Iranian refugees who (1) applied for refugee admission to the United States under the Lautenberg Amendment, whether as a principal applicant or derivative relatives; (2) traveled to Vienna, Austria, for processing; and (3) received denials from the United States government in or after February 2018 with the sole explanation that: "After review of all information concerning your case, including your testimony, supporting documentation, background checks, country conditions, and other available information, your application for refugee resettlement to the United States under INA § 207 has been denied as a matter of discretion," and their U.S.-based Close Family Members who served as their U.S. ties.
The Court certifies as appropriate for class treatment Plaintiffs' First, Second, Third, Fourth, and Sixth Causes of Action, as alleged in the Complaint. The Court also certifies Doe 1, Doe 2, Doe 3, Doe 4, and Doe 5 as class representatives and Plaintiffs' counsel of record as class counsel. The Court will approve the parties' Stipulation Regarding Class Notice by separate order.
III. MOTION FOR PARTIAL SUMMARY JUDGMENT
A. Legal Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett ,
The moving party "bears the burden of showing there is no material factual dispute," Hill v. R+L Carriers, Inc. ,
Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Celotex , 477 U.S. at 325,
B. Discussion
Having certified the class of refugee applicants and their U.S. ties as discussed above, the Court turns to Plaintiffs' motion for partial summary judgment on Claims 1-5 of their Complaint. Plaintiffs argue that the February 2018 Notices of Ineligibility denying refugee applications "as a matter of discretion," fail to comply with the Lautenberg Amendment's mandate that "[e]ach decision to deny an application for refugee status...shall state, to the maximum extent feasible, the reason for the denial."
At the outset, DHS concedes that there is no genuine issue of material fact for purposes of summary judgment. See Opposition to Motion for Partial Summary Judgment ("SJ Opp'n") at 6, ECF 71 (emphasis original). Accordingly, the traditional summary judgment framework does not apply. Defendants rely on an overarching defense that Plaintiffs' claims are not justiciable and the Court lacks jurisdiction to review DHS's discretionary denials of refugee applications. See SJ Opp'n at 6-12. DHS argues in the alternative that even if Plaintiffs' claims are found to be justiciable, the Notices of Ineligibility complied with the Lautenberg Amendment.
The Court first addresses the threshold issue of justiciability, finding that Plaintiffs' narrow claims are subject to judicial review as they plainly do not seek review of the determinations of ineligibility themselves. The Court then turns to the merits of whether the Notices are unlawful and whether Plaintiffs are entitled to relief.
1. Justiciability
DHS argues that Plaintiffs' claims regarding the February 2018 Notices of Ineligibility are not justiciable because the Government's decision to exclude an alien is immune from judicial review, unless review is expressly authorized by law. See generally Opp'n to MSJ (citing *995Fiallo v. Bell ,
Plaintiffs do not challenge the decision to admit or deny the refugee applications, or whether the discretion delegated to DHS was properly exercised in this case. Rather, Plaintiffs request this Court to determine whether DHS complied with its mandatory duties under the Lautenberg Amendment and applicable regulations. See Reply iso MSJ at 3-4. The Court finds that whether DHS followed the law in issuing the February 2018 Notices of Ineligibility is subject to judicial review-notwithstanding that the ultimate decision to deny admission to the refugee applicants is not reviewable.
DHS argues that to the extent Plaintiffs challenge the Notices of Ineligibility separate and apart from the underlying refugee admission decision, the claims are barred by principles of nonreviewability. See Opp'n to MSJ at 7. The Court finds that the line of cases relied on by DHS is inapposite. Rather, Defendants' cases stand for the principle that judicial review is limited when Congress delegates decisional authority to the Executive branch and does not explicitly authorize review by the courts. See Fiallo ,
According to DHS, the longstanding doctrine of non-reviewability provides that "aliens abroad are simply not entitled to any kind of judicial review with respect to any kind of application." June 22, 2018 Hearing Transcript at 25:3-7. In support of its argument that people in different countries are not entitled to any review of executive actions in U.S. courts, DHS attempts to draw a comparison between the Notices of Ineligibility in the Lautenberg Amendment context and the typical case in *996which an individual applies for a visa overseas and is denied. In the visa context, the doctrine of "consular nonreviewability" has emerged to hold that "a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise." Saavedra Bruno v. Albright ,
DHS argues that the designation of this doctrine as "consular nonreviewability" merely reflects the context in which the principle most often arises. See Opp'n to MSJ at 7. According to DHS, the nonreviewability principles underlying these cases apply to any manner in which the Executive Branch denies entry to an alien abroad, including denial of a refugee applicant under the Lautenberg Amendment.
The cases cited by DHS make clear that the Court lacks authority to review the ultimate decision to grant or deny refugee applications under the Lautenberg-Specter Program. Plaintiffs have gone to painstaking lengths to make clear that they are not challenging a decision that was delegated to the Executive branch or asking that DHS admit the refugee applications to the United States. Plaintiffs are "merely asking that the Defendants be required to follow the process Congress mandated and so they can have a fair opportunity to pursue their hope for family reunification in the United States." Reply iso MSJ at 2. Above all else, this is a request for the Court to determine whether the content of the February 2018 Notices of Ineligibility comply with the Lautenberg Amendment's requirement that a denial of an application under its purview state, "to the maximum extent feasible, the reason for the denial."
DHS cannot stretch the longstanding principles of non-reviewability to avoid their explicit legal obligations mandated by Congress by arguing that Plaintiffs are not entitled to judicial review of "any aspect" of the refugee application denials. Opp'n to MSJ at 9. This Court's review of whether DHS has obeyed the relevant law is entirely distinct from judicial review of the underlying refugee application determinations. While the Court is in complete agreement with DHS that challenges to denials of visa and refugee applications are not judicially reviewable, that is simply not what this case is about. DHS retains an enormous amount of authority and discretion to adjudicate refugee applications, but they do not have the discretion to violate the law.
*9972. Whether the Notices of Ineligibility are Unlawful
Having determined that principles of nonreviewability are inapplicable to the case at hand, the Court next considers whether the content of the Notices of Ineligibility complied with DHS's obligations under the law mandated by Congress. DHS argues that even if Plaintiffs' claims are justiciable, their claims are meritless because the Notices comply with the Lautenberg Amendment and applicable agency procedures. See Opp'n to MSJ at 13-15. In other words, DHS argues that as written, the February 2018 Notices provided "to the maximum extent feasible, the reason for the denial."
i. Ruppel Declaration
As their sole evidence that the February 2018 Notices of Ineligibility complied with the Lautenberg Amendment, DHS submits the declaration of Joanna Ruppel, Chief of the Refugee Affairs Division of USCIS, within DHS. See Ruppel Decl. ¶ 1. The declaration provides that Ms. Ruppel has held that position since March 2018, one month after the February 2018 Notices of Ineligibility were issued.
As stated on the record at the June 22, 2018 hearing, the Court SUSTAINS Plaintiffs' objections to the Ruppel Declaration and STRIKES the declaration as inadmissible. The Declaration is made without any personal knowledge of the events at issue in this case. See Fed. R. Evid. 701 (providing that opinion testimony of lay witnesses must be "rationally based on the witness's perception" and "helpful to clearly understanding the witness's testimony or to determining a fact in issue.") For example, the Declaration states that "[a]ll refugee applicants, including religious minorities applying under the Lautenberg program, are subject to rigorous vetting by our law enforcement and intelligence community partners." Ruppel Decl. ¶ 2. There is no basis provided for Ms. Ruppel's personal knowledge of that fact. Nor does the declaration explain Ms. Ruppel's knowledge of the "individualized vetting" that each refugee applicant is subject to.
Most strikingly, with respect to the February 2018 Notices of Ineligibility, there is absolutely no indication that Ms. Ruppel has personal knowledge that "[e]ach denial was based on the facts of that individual case, taking into account the results of the vetting process to which all refugee applicants are subject."
Without the Ruppel Declaration, DHS has provided no evidence to avoid summary judgment and must rely solely on its legal arguments to defeat Plaintiffs' claims on the merits.
*998ii. Compliance with the Lautenberg Amendment
Plaintiffs' broadest claim for relief is that the February 2018 Notices of Ineligibility violate the Lautenberg Amendment's explicit requirement that "each decision to deny an application for refugee status...shall be in writing and shall state, to the maximum extent feasible, the reason for the denial."
After review of all the information concerning your case, including your testimony, supporting documentation, background checks, country conditions, and other available information, your application for refugee resettlement to the United States under [8 U.S.C. § 1157 ] has been denied as a matter of discretion.
See, e.g. , Doe 3 Decl. Exh A; Bates Decl. ¶ 9. Plaintiffs argue that a denial of refugee status "as a matter of discretion" is tantamount to providing no reason at all and deprives the applicants of the ability to submit meaningful RFRs. See MSJ at 12-13.
As the Court explained at the June 22, 2018 hearing, these Notices put Plaintiffs in an untenable position that Congress explicitly sought to avoid in enacting the Lautenberg Amendment. Without a reason for the denial, the applicants are left to guess at which factors and circumstances DHS considered. Any meaningful review of the denials becomes impossible because Plaintiffs are effectively shadowboxing against themselves. The February 2018 Notices of Ineligibility do not indicate any reason for the individualized denials-such as whether an applicant was rejected based on security concerns or eligibility reasons. Indeed, Plaintiffs' evidence that the applications of at least 38 of the individuals denied admission in February 2018 received identical Notices of Ineligibility raises the inference that the denials were not, in fact, individualized. See Bates Decl. ¶ 6.
DHS concedes that the statutory text and legislative history of the Lautenberg Amendment makes clear that Congress intended for a reason to be given upon denial of a refugee application whenever feasible. See June 22, 2018 Hearing Transcript at 37:14-29; see also Opp'n to MSJ at 13. However, DHS points out that Congress did not state that a reason must be given in the case of every denial. The Congressional mandate is only to provide a reason "to the maximum extent feasible."
*999There is a complete absence of admissible evidence in the record demonstrating that DHS determined that it was not feasible to give Plaintiffs and the putative class members a reason for the denial of their refugee applications. Even if the Court were to consider the Ruppel Declaration, which it does not, the assertion that the denials were "individualized" and subject to general vetting procedures does not come close to demonstrating that Plaintiffs received reasons for their denials "to the maximum extent feasible." Like the justiciability argument, DHS's position that the Notices complied with the Lautenberg Amendment's mandate is yet another attempt to prevent this Court from determining whether the law was followed in this case. The Court need not determine whether DHS has the discretion to determine when it is feasible to give reasons for the denial under the Lautenberg Amendment, because in this case, DHS has failed to address the feasibility determination at all. DHS's argument that it determined that it was not feasible to give the Plaintiffs in this case reasons for the denials is nothing more than a "trust me" defense that lacks any evidentiary support.
Meanwhile, Plaintiffs have provided evidence that the February 2018 Notices fail to meet the "maximum extent feasible" language because they fall below the floor required by Defendants' own regulations, policies and practices with respect to other refugee applicants. See MSJ at 12-15; Reply iso MSJ at 7. Although DHS has not promulgated regulations regarding the Lautenberg Amendment specifically, Plaintiffs argue that other DHS regulations applicable to refugee applicants make clear that if an adverse decision is based on derogatory information unknown to the applicant, USCIS must advise the refugee applicant of that fact and "offer[ ] an opportunity to rebut the information" unless the information is classified.
Plaintiffs also point to the USCIS Adjudicator's Field Manual, which provides in Section 10.7(b)(3) that a denial must include "[a] description of the evidence in the case in question" and "[i]f the applicant or petition cannot reasonably be presumed to be already aware of the evidence, he or she must be given an opportunity to rebut the evidence before a decision is made. See Lee Summary Judgment Decl., Exh. S, ECF 29-2. Finally, Plaintiffs submit evidence that DHS has issued Notices of Ineligibility to other refugee applicants on forms that specify whether a discretionary denial is security-related or otherwise, and if otherwise, requires an explanation. See Bates Decl., Exh. A. Plaintiffs' evidence, coupled with the complete lack of evidence from DHS, demonstrates that DHS did not meet the Lautenberg Amendment's heightened requirement that refugee denials must state a reason "to the maximum extent feasible."
For the foregoing reasons, and based on the record before the Court, the language provided by DHS in the February 2018 Notices of Ineligibility does not "state, to the maximum extent feasible, the reason for the denial."
iii. Accardi Doctrine
In addition to violating the Lautenberg Amendment, Plaintiffs argue that the Notices of Ineligibility are unlawful on the independent grounds that they violate DHS's regulations and policies. Pursuant to the Accardi doctrine, "[r]egulations with the force and effect of law supplement the bare bones of" federal statutes. United States ex rel. Accardi v. Shaughnessy ,
As explained above, Plaintiffs point to
DHS does not argue that the requirements of the Accardi doctrine are not met, effectively conceding that the regulations are substantive and binding as they are published in the Code of Federal Regulations. Rather, DHS argues that the Accardi doctrine is inapplicable because neither
In Ghafoori v. Napolitano , the court considered whether DHS violated its own regulations in the processing of a Refugee/Asylee Relative Petition, which is a benefit request under the Refugee Act like the applications under the Lautenberg Amendment.
The Ghafoori court held DHS to the requirements of
In addition, Plaintiffs point out that the regulatory section of
Similarly, the Court is not persuaded by DHS's unsupported argument that the Adjudicator's Field Manual does not apply to adjudication of refugee applications to the extent it conflicts with RAD's unspecified guidance. The only evidence to support this contention comes from the Ruppel *1002Declaration, which the Court has already stricken on the grounds that Ruppel has not established how she knows that any of the conclusory facts contained in the declaration are true. The bare assertion that it is actually RAD's practice to ignore its own policies set forth in the Adjudicator's Field Manual when it conflicts with "RAD practice" actually underscores the merits of Plaintiffs' Accardi doctrine claim.
For the foregoing reasons, the Court finds that
iv. Remaining Arguments
In addition to their arguments under the Lautenberg Amendment and Accardi doctrine, Plaintiffs move for summary judgment on their fifth claim for relief, that the Notices of Ineligibility violate the Due Process rights of Doe 1 and Doe 2 only. See MSJ at 17-19. Plaintiffs further argue that once the Court determines that the Notices of Ineligibility are unlawful under any of the three bases discussed above (Lautenberg Amendment, Accardi doctrine, and Due Process), the Court can set aside the unlawful Notices pursuant to APA § 706(2). In the alternative to exercising its equitable powers in conjunction with § 706(2), Plaintiffs argue that the Court could compel issuance of lawful notices under APA § 706(1), or could enter a writ of mandamus pursuant to
At the June 22, 2018 hearing, Plaintiffs stated that the Lautenberg Amendment provides the broadest relief sought in their motion for partial summary judgment. See June 22, 2018 Hearing Transcript at 8:2-12, ECF 84. Plaintiffs confirmed that their arguments regarding the unlawfulness of the Notices and the options for granting equitable relief were presented as alternatives. Thus, the Court need not reach the remaining arguments to the extent it finds that the Notices of Ineligibility are unlawful under the Lautenberg Amendment and sets the Notices aside under the APA.
With respect to Plaintiffs' Due Process claim on behalf of Doe 1 and Doe 2, principles of judicial restraint and constitutional avoidance direct this Court to refrain from addressing the constitutional issue when Plaintiffs' claims can be fully disposed of on statutory grounds. See Spector Motor Serv. v. McLaughlin ,
Turning to the equitable relief sought by Plaintiffs, the Court has the authority to set aside the unlawful Notices *1003of Ineligibility pursuant to the Administrative Procedure Act. APA § 702 provides the Court with authority to review challenges brought by "[a] person...aggrieved by agency action."
The Supreme Court has explained in the APA context that the Zone of Interest test is not "especially demanding." Lexmark ,
DHS does not dispute that Plaintiffs fall within the Lautenberg Amendment's "zone of interests," as the statute explicitly includes Iranian religious minorities as a category of individuals entitled to special protections. See June 22, 2018 Hearing Transcript at 28:20-29:2 ("So certainly [Plaintiffs] are affected by these decisions, they are affected by decisions concerning the Lautenberg Amendment, there's no doubt. There's definitely harm there.") The record further indicates that Plaintiffs had already met certain qualifications under the Lautenberg-Specter Program and were issued visas to travel to Vienna, where historically others in their position enjoyed quick and successful processing of their applications. The Court therefore finds that Plaintiffs satisfy the zone of interests test and have standing under the APA.
Under APA § 706(2), the Court has the equitable power to "hold unlawful and set aside agency action" found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or (D) without observance of procedure required by law.
*1004Biodiversity Legal Found. v. Badgley ,
DHS argues only that nonreviewability principles preclude any review of an exclusion order under APA § 706(2). Opp'n to MSJ at 11-12. For the reasons discussed at length above, the Court finds that DHS's nonreviewability argument is misplaced. Plaintiffs do not seek review of the decision to exclude them from the United States, and the Court takes no position with respect to whether DHS should grant or deny Plaintiffs' applications.
Plaintiffs cite to several cases demonstrating that courts in APA cases have heard analogous challenges to an agency's non-compliance with a mandatory duty. See, e.g. , Rivas v. Napolitano ,
For the foregoing reasons, the Court SETS ASIDE the February 2018 Notices of Ineligibility pursuant to APA §§ 702, 706(2), and this Court's equitable powers.
C. Order on Motion for Partial Summary Judgment
Having considered Plaintiffs' Motion for Partial Summary Judgment, filed on April 20, 2018, the Declarations of Belinda S. Lee, Samuel Witten, Adam Bates, and Does 1-5 filed in support thereof, any papers filed in response, submissions from counsel, as well as all other arguments and the record of the case; having granted Plaintiffs' Amended Motion for Class Certification filed on May 18, 2018, discussed above; and good cause appearing therefor, the Court hereby ORDERS as follows:
*10051. The Court GRANTS partial summary judgment in favor of Plaintiffs (used herein to include named plaintiffs and class members) as to their claim for declaratory relief. The Court hereby DECLARES that the Notices of Ineligibility issued to Plaintiffs are unlawful for failure to "state, to the maximum extent feasible, the reason for the denial" as required by the Lautenberg Amendment, P.L. 101-167, Title V, § 599 D, as amended in
2. The Court GRANTS partial summary judgment in favor of Plaintiffs as to their claim for relief under
3. The Court GRANTS partial summary judgment in favor of Plaintiffs as to their claim for relief under
4. In the event that Defendants re-issue notices denying any of Plaintiffs' refugee applications, it is further ORDERED that any such notice comply with the Lautenberg Amendment by stating "to the maximum extent feasible, the reason for the denial," including by stating the individualized reason(s) for that denial and complying with the requirements of
5. In order to ensure compliance with this Court's order, it is ORDERED that Defendants shall file a declaration with the Court within 21 days of this Order: (a) certifying completion of the issuance and service of notices required in Paragraph 3 of this Order or explaining the efforts undertaken to complete issuance and service in the event the Order has not been fully complied with; and (b) to the extent that Defendants have withheld any part or all of the individualized reason(s) for the denial required under Paragraph 4, stating the basis for withholding the individualized reason(s).
IT IS SO ORDERED.
For purposes of this Order, "DHS" or "Defendants" refer to Department of Homeland Security, Secretary Kirstjen Nielsen, Director L. Francis Cissna, and Assistant Director Jennifer B. Higgins. Plaintiffs also bring Count 6 against the Department of State Defendants, but that claim for relief is not before the Court on Plaintiffs' motion for partial summary judgment. See Compl. ¶¶ 95-96.
The Court previously granted Plaintiffs' unopposed motion to proceed under pseudonyms. See ECF 55.
The Court notes that Plaintiffs have provided legislative history indicating that the discretion to deny applications under the Lautenberg Amendment "is extremely limited in scope-that is only for the isolated case which cannot now be foreseen-in which a conferral of refugee status, would not be appropriate, or otherwise not in the national interest[.]" Declaration of Belinda S. Lee ("Lee Summary Judgment Decl."), Exh. A, ECF 26-1.
To put the success of the program in perspective, approximately 30,000 Iranians have resettled in the United States under the Lautenberg Amendment. See Lee Summary Judgment Decl. Exh. F, ECF 26-6; see also Lee Class Cert. Decl. Exhs. D-E, ECF 61. Prior to the fall of 2016, processing of refugee applications in Vienna took only a few months from the date of the applicant's arrival in Vienna, and nearly 100% of refugees eligible for the Lautenberg-Specter Program were accepted for admission to the U.S. See Lee Summary Judgment Decl., Exhs. E-F; Written Summary Judgment Decl. ¶ 11, ECF 27.
The Supreme Court's recent decision in Trump v. Hawaii came down a few days after the hearing on Plaintiffs' pending motions in this case. Although the Court does not find that Trump v. Hawaii impacts the legal issues raised in Plaintiffs' motions, the President's restrictions on the admission of foreign nationals from Iran is highly relevant to the factual context in which Plaintiffs' claims arise.
Plaintiffs present evidence that the applications of at least 38 of the 87 individuals denied admission in February 2018 received identical Notices of Ineligibility. See Declaration of Adam Bates ("Bates Decl.") ¶ 6, ECF 64.
During the course of this litigation, the parties stipulated to extend the deadline for putative class members to file or re-file their RFRs for an additional 120 days beyond the original deadline. See ECF 54. DHS states in the opposition brief that USCIS will allow for receipt of one RFR that is postmarked or received by USCIS or the Resettlement Support Center no later than 120 days from June 4, 2018, or 120 days from the date that the request for review was originally due-whichever is later. See Opp'n to MSJ at 4-5; Declaration of Stacey I. Young ("Young Decl."), Exh. A., ECF 71-2.
Counts 1-4 and 6 of the Complaint are brought as a class action. Count 5 for violation of the due process clause of the Fifth Amendment to the U.S. Constitution is brought on behalf of the U.S. citizen Plaintiffs (Does 1 and 2) only.
The nonreviewability arguments and cases cited by DHS in opposition to the class certification motion are nearly identical to those arguments raised in opposition to Plaintiffs' motion for partial summary judgment. Compare Opp'n to MSJ at 6-12 with Opp'n to Class Cert. Mot. at 9-15.
Plaintiffs also persuasively argue that the class can include foreign nationals living in Vienna, as there is no legal basis for precluding a mixed class composed of U.S. plaintiffs and foreign nationals living abroad. See Takeda v. Turbodyne Techs., Inc. ,
Plaintiffs do not move for class certification on their Due Process claim, which is brought on behalf of Does 1 and 2 only.
In addition, neither the statute governing refugee admissions nor its implementing regulations confer judicial review over such determinations. See
DHS further argues that the recent line of authority challenging President Trump's Executive Orders that promulgated "sweeping immigration policy" is inapposite for purposes of whether the refugee denials in this case are reviewable. See Opp'n to MSJ at 8. According to DHS, this is because Plaintiffs challenge individual adjudicatory decisions of their refugee applications that are more akin to the decisions by consular officials to deny visa applications. While the Court agrees that the Executive Order cases are inapposite, the consular nonreviewability doctrine cases are misplaced as well-Plaintiffs here do not seek review of individual adjudications made by DHS but ask only for the Court to determine whether DHS complied with its legal obligations.
This unrebutted inference is further supported by evidence that at least one individual, Doe 5's father, was originally approved for resettlement in the United States in April 2017, but received an identical Notice of Ineligibility in February 2018 after choosing to stay with his family. Doe 5 Dec. ¶¶ 11-12.
For example, DHS presents no evidence that it was not feasible to provide more information to Plaintiffs as the result of classified information, national security, or to protect the safety of the sources of derogatory information.
DHS argues that
As stated on the record at the June 22, 2018 hearing, this Court will not issue an advisory opinion as to what language would meet the statute's "maximum extent feasible" requirement.
In light of this Court's finding that the Notices violate the Lautenberg Amendment and are set aside pursuant to APA § 706(2), the Court does not reach summary judgment of Doe 1 and Doe 2's Due Process claims or Plaintiffs' claims for equitable relief under APA § 706(1) and the Mandamus Act.
In line with the Court's guidance at the June 22, 2018 hearing, Plaintiffs submitted an Amended Proposed Order Granting Plaintiffs' Motion for Partial Summary Judgment which the Court now approves, as modified. See ECF 83.