IMMIGRATION: Asylum-seekers can insist that the Government follow its own rules.
Jack E. Urquhart© July 21, 2018
Damus v. Department of Homeland Security, No. 18-578 (D.D.C. July 2, 2018) certifies a class of asylum-seekers and grants a preliminary injunction, requiring the Government to comply with the ICE Parole Directive when making parole decisions. In short, the Court orders the Government to follow its own rules. Without detracting from the many important issues this case tackles, the opinion joins the growing judicial teaching that everyone will benefit from sensible immigration reform. At this point, even a sensible discussion of immigration reform would be a helpful departure from the prevailing chaos. Back to reality 2018, the following summarizes one Court’s struggle with the American immigration maze to reach a seemingly obvious determination that, when the Government does adopt rules to guide decision-making, it should follow those rules.
Damus is an opinion out the United States District Court for the District of Columbia. The opinion was authored by Hon. James E. Boasberg. He was appointed to the District Court by President Barack Obama. In addition, Judge Boasberg serves on the United States Foreign Intelligence Surveillance Court. He was appointed to that Court by Hon. John Roberts, Chief Justice of the United States Supreme Court.
Damus granted class action relief to certain asylum-seekers detained or who will be detained in federal custody while awaiting the result of their asylum applications.
All granted relief is limited to five Immigration and Customs Enforcement (ICE) Field Offices located in Detroit, El Paso, Los Angeles, Newark, and Philadelphia.
The opinion focuses on the claim that the Government violated The Administrative Procedures Act by abandoning its own binding policies and procedures for resolving asylum-seekers’ applications for parole. Specifically, the claim is that the Government abandoned a 2009 ICE Parole Directive, and replaced it with blanket parole denials.
As phrased by the Court: “At the heart of Plaintiffs’ suit is their assertion that, under the current administration, parole practices at the five Field Offices have drastically departed from the policies and protections enshrined in the 2009 ICE Directive.” Damus v. Department of Homeland Security, No. 18-578 (D.D.C. July 2, 2018). Violation of this Directive, claimants assert, violates the Administrative Procedures Act.
In granting the preliminary injunction, the Court observes its opinion “does no more than hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance. Having extended the safeguards of the Parole Directive to asylum-seekers, ICE must now ensure that such protections are realized.”
The Court certified a class action. Class certification requirements, like many topics addressed in Damus, are well-known to some. For many, these topics are new, complex, and deathly boring. An effort will made to simplify without distorting meaning or omitting topics necessary for accuracy.
The class certified by the Court is made up of all arriving asylum-seekers who are found to have a credible fear of persecution or torture and who are, or will be, detained by ICE after having been denied parole under the authority of the five ICE Field Offices.
The Lead Plaintiff
The lead claimant is Ansly Damus. A few details of his alleged circumstances explain nature the class members common claim.
Ansly Damus, an ethics teacher in Haiti, entered the United States October 2016, seeking asylum from persecution. Entering the United States was the only way he could make an asylum claim. This is true of most asylum-seekers: They cannot make an asylum claim without “unlawfully” reaching American soil.
An asylum officer conducted a credible fear interview. A credible fear interview is a formal step in the asylum process. An asylum officer questioned Mr. Damus to judge whether he believed Mr. Damus’ claimed fear of persecution or torture if returned to Haiti. Mr. Damus fear was believed.
Following the judgment that his fear was credible, Mr. Damus was detained in the ICE Detroit Field Office. Since then, Mr. Damus has been granted asylum twice. Both times, the Government appealed. Mr. Damus applied for parole. His application was denied. He has been continuously detained for more than 20 months. Mr. Damus claims that in making the decision on his parole application the Detroit Field Office did not follow the ICE Parole Directive. Instead, that office systematically denied all or virtually all parole applications.
Common Class Characteristics:
All class Plaintiffs share these characteristics:
They entered or will enter the United States seeking asylum from persecution in their countries of origin.
Asylum officers found or will find their fear of persecution or torture credible.
They are or will be indefinitely detained in one of the five ICE Field Offices.
Their parole applications were or will be denied.
More information on this class certification is provided below.
2009 ICE Parole Directive
Congress is armed with the ultimate Constitutional authority and responsibility to determine immigration policies and practices. The Executive has broad authority to implement Congressional intent. Asylum is one among many immigration issues lacking clear guidance from Congress or the Executive.
It is clear that non-citizens arriving in the Unites States may apply for asylum. It is relatively clear that the first step in the asylum process is the credible-fear interview. The method for conducting this interview is not at all clear. However, if the interviewer is satisfied that the asylum-seeker’s fear of persecution or torture is believable, he or she will be detained until the full asylum process is complete. This detention, however, is subject to a right to apply for parole. Parole is available to asylum-seekers who are neither security nor flight risks.
With no formal guidance from Congress or the Executive on the procedures for making parole determinations, the ICE Parole Directive was implemented in 2009. The Directive establishes “a set of minimum protections for those seeking asylum, including an opportunity to submit documentation, the availability of an individualized parole interview, and an explanation of the reasons for a parole denial. The Parole Directive provides that the public’s interest is not served by the continued detention of a non-citizen seeking asylum who establishes his or her identity and presents neither a security nor flight risk. See “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture,” issued by Immigration and Customs Enforcement; ECF No. 22-1 (ICE Directive 11002).
The Parole Directive affirms that parole decisions are discretionary, but also establishes minimum procedures and protections required when making parole decisions.
The Government stated during the oral argument that the ICE Parole Directive is binding.
Plaintiffs’ assert, however, that the five Ice Field Offices have ignored the Directive under the current administration. Instead, these Field Offices systematically deny all or virtually all parole applications. Plaintiffs supported this assertion with evidence that is more fully discussed below. The Government did not produce any convincing rebuttal evidence.
THE GOVERNMENT’S JURISDICTIONAL ATTACK
The Government argues that federal courts are stripped of jurisdiction to review discretionary decisions affecting non-citizens by 8 U.S.C. § 1252(a((2)(B)(ii). The Court agrees it lacks jurisdiction to challenge specific parole decisions. On the other hand, the Court finds it has jurisdiction to ensure the Government complies with its own policies and procedures. The Court cannot question the outcome of a parole decision, but it can question the method of decision-making. See Zadvydas v. Davis, 533 U.S. 678 (2001); R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015): Abdi v. Duke, 280 F. Supp. 3d 373, 385 (W.D.N.Y. 2017).
The Government also argues the Court does not have jurisdiction to issue classwide injunctive relief. The Court finds that 8 U.S.C. § 1252(f)(1) does preclude courts from enjoining the operation of the INA detention statutes, but Plaintiffs do not seek this relief. Rather, Plaintiffs only seek an order requiring the Government to comply with its own rules when making parole decisions.
The Court denied the Government’s jurisdictional arguments.
THE GOVERNMENT”S STANDING ATTACK
The Government attacks the standing of the proposed class members who have not yet experienced the alleged harm. It urges that this alleged harm is speculative. The Court rejects this argument. Plaintiffs claim that their detention is the direct result of the Field Offices’ current departure from the protections of the ICE Parole Directive in favor of de facto detention, and this claim is “robustly supported by statistics and other record evidence.“ As the current administration’s near-uniform detention of asylum-seekers results in a significant increase in the likelihood of parole denial for all asylum seekers at these five Field Offices, an injunction requiring the Field Offices to follow their own Parole Directive will reduce the probability of harm to future asylum-seekers. The harm is “in no sense speculative“ for future asylum-seekers sent to these five Field Offices, therefore, they have Article III standing.
THE GOVERNMENT’S ATTACK ON CLASS CERTIFICATI
Numerosity, adequacy of representation, typicality and commonality
The Government does not seriously challenge class certification on numerosity or adequacy of the class representation.
The Government does assail Plaintiffs’ alleged failure to meet class action typicality and commonality requirements. The Court denies these challenges. Contrary to the Government’s argument, Plaintiffs’ claim does not require an examination of each parole denial. To the contrary, Plaintiffs do not question any individual parole decision. They claim the ICE Parole Directive is ignored and replaced with a program of blanket denials.
Plaintiffs ask this Court to determine only whether, as a general matter, the five Field Offices are following the Directive or are instead systematically denying parole. Plaintiffs, therefore, meet the typicality and commonality tests for class certification.
Rule 23(b)(2): Cohesive interests of class members
The Government’s final attack on class certification is Plaintiff’s alleged failure to demonstrate that the class members’ interests are cohesive. The Government argues all claimants do not warrant the same relief for the same reason.
Once again, the Court finds that the Government misinterprets what is in dispute. The issue is not whether individual parole decisions are flawed. The issue is whether the ICE Parole Directive, which requires individualized decisions, is ignored and replaced with blanket denials of essentially all parole requests. “Plaintiffs ask only that the Court address an alleged systematic harm—the failure of the Field Offices to comply with the directive.”
THE MERITS OF PLAINTIFFS’ CLAIM
The Court finds Plaintiffs will likely succeed in proving the five Field Offices are violating the Administrative Procedures Act by failing to follow the Parole Directive.
The Accardi Doctrine.
Plaintiffs invoke the Accardi Doctrine as the foundation for their position that the Government is violating the Administrative Procedures Act. The Accardi doctrine stands for the proposition that agencies may not violate their own rules and regulations to the prejudice of others. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Morton v. Rule, 415 U.S. 199 (1971). In the immigration context, courts have extended the Accardi Doctrine beyond formal regulations. See Montilla v. INS, 926 F.2d 162 (2d Cir. 1991); Zhang v. Slattery, 840 F. Supp. 292 (S.D.N.Y. 1994). The Court concludes that the Third Circuit applies the Accardi Doctrine to agency pronouncements that the agency intends to be binding on them. This intent is determined by both the substance and agency intent and whether the pronouncement confers individual protections or privileges. In this case, the Government admitted in its argument that the ICE Parole Directive is binding and must be followed.
The Court held the APA empowers Plaintiffs to challenge agency action that is arbitrary, capricious, and an abuse of discretion. See Torres v. U.S. Dep’t of Homeland Security1, 2017 WL 4340385 (S.D. Cal. Sep.29, 2017.) The allegation that ICE violated the Parole Directive would be unlawful if proven.
ICE NO LONGER FOLLOWS THE DIRECTIVE
Plaintiffs produced written evidence that from February to September 2017, ICE El Paso, Philadelphia, and Newark Field Offices denied every single parole application. During the same period, ICE Los Angeles Field Office denied 92% of all applications and the Detroit Field Office denial rate was 98%. These numbers include every parole request made to the five Field Offices during the first 8 months of current administration—more than 800 cases.
The Government had no contrary evidence.
The Government offered no explanation for the “dramatic departure in parole-grants” since the current administration took office.
The Government admitted that “there had been no significant change in the “type of asylum-seekers” since the new administration took office.
February 2017 John Kelly—then DHS Secretary—stated the Directive was still in effect and the Government repeated the same representation to the United State Supreme Court.
The Court finds the Government’s position that is following the Directive is “untenable.” The Government cannot believably claim it follows the Directive without some explanation for the stark increase in parole denial rates—approximately 90% parole grants prior to the new administration and almost complete parole denial after the administration change.
The sworn declarations
Plaintiffs also produced sworn declarations that ICE officials admitted, “No more parole.” Experienced immigration practitioners swore in produced declarations that ICE now denies parole to individuals who would be granted parole under the Directive.
Government declarations relied on records not submitted to the Court and were from people who “largely did not have direct involvement with the specific adjudications.” If given full weight, those declarations do nothing to counter the “overwhelming evidence presented by Plaintiffs.” Indeed, Government declarations often support Plaintiffs’ claims. A declaration, for example, said an individual’s parole was denied because she was “a recent entrant and thus presented a flight risk.” Virtually all asylum-seekers are “recent entrants.” Using this fact as the sole basis for concluding that an asylum-seeker is a flight risk is not consistent with the Directive. Actually, this is more consistent with blanket denial.
The Court finds it is evident that the Government’s failure to follow the Parole Directive results in continued detention. The Government argued that the Plaintiffs are not harmed by indefinite detention, because they can seek a redetermination of their parole request. The Court finds this argument meritless. Having uniformly denied parole in violation of its own policies, the Government is hard pressed to believably argue that reconsideration is meaningful relief.
Government is “enjoined” to follow its own rules
The Court succinctly wrote: “To be clear, in finding that injunctive relief is warranted in this case, this Court is simply ordering Defendants to do what they already admit is required—follow the ICE Directive when adjudicating asylum-seekers’ detention.”
While anything is possible, it strains the imagination that anything other than a change in policy can explain 90% parole grants prior to the new administration and almost 100% parole denials after the new administration took office. Moreover, it strains reason that the Government does not admit the change or at least attempt to explain it.
A new administration has broad rights to change policies.
Congress can rewrite all our immigration laws.
If change is desired by the political branches of government, they have the right to make or attempt to make the change in publically. In so doing they can appropriately be held accountable for the changes and the consequences of those changes.
The public is best served by candor. The public is poorly served by duplicity.
Immigrants and immigration issues fall in the arena of marginalized people and marginalized concerns. Gross missteps will attract at least fleeting attention. The steady deprivation of immigrant rights or the long-term neglect of needed immigration reform will likely pass unnoticed for dangerously long periods.
The current immigration turbulence offers an opportunity for sensible reform. Strange and ill-formed Executive fiats are inadequate substitutes for long overdue Congressional and formal rule-making reform.
Practically, the Constitution grants control of immigration policy to the political branches of our federal government—Congress and the Executive. Realistically, it is the American Judiciary—whose control over immigration policy is extremely limited—that is shining the brightest light on the many flaws in our immigration system. Yet, the circle of responsibility for sound immigration reform returns to the voters. In the end, we get the policies we deserve.