AL Otro Lado, Inc. v. Nielsen (327 F. Supp. 3d 1284, 2018)

United States District Court for the Southern District of California 2018-08-20

Judiciary and Judicial Procedure Aliens and Nationality

Citations

Full opinion text

Hon. Cynthia Bashant, United States District Judge.

This case concerns an alleged practice in which U.S Customs and Border Protection ("CBP") officials at ports of entry ("POE") along the U.S.-Mexico border deny asylum seekers access to the U.S. asylum process. The Defendants in this case are Kirstjen Nielsen, the Secretary of the U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of CBP; and Defendant Todd C. Owen, the Executive Assistant Commissioner of the Office of Field Operations for CBP. Each Defendant has a role in the direction and oversight of CBP and each is sued in his or her official capacity. Defendants move to dismiss the Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 135.) Plaintiffs oppose (ECF No. 143) and Defendants have replied in support (ECF No. 145). For the reasons herein, the Court grants in part and denies in part Defendants' motion to dismiss.

I. BACKGROUND

A. Relevant Statutory and Regulatory Background

At the heart of this case are several provisions of the Immigration and Nationality Act ("INA") and its implementing regulations which elaborate a procedure by which asylum seekers who arrive at POEs may seek asylum in the United States-a procedure Plaintiffs refer to as "access to the U.S. asylum process." (See generally ECF No. 1, Compl.) The INA generally provides that "[a]ny alien who is physically present in the United States or who arrives in the United States [ ], irrespective of such alien's status, may apply for asylum in accordance with...where applicable, section 1225(b)[.]" 8 U.S.C. § 1158(a)(1).

An alien who arrives in the United States, including at a designated POE, is deemed an "applicant for admission," who "shall be inspected by immigration officers," and may be removed "without further hearing" "if an immigration officer determines" that the alien "is inadmissible." See 8 U.S.C. § 1225(a)(1) ; 8 U.S.C. § 1225(a)(3) ; 8 U.S.C. § 1182(a). The INA, however, treats asylum seekers differently.

An "alien [who] indicates either an intention to apply for asylum under section 1158...or a fear of persecution" is excepted from this summary removal. 8 U.S.C. § 1225(b)(1)(A)(i). Instead, "[i]f an immigration officer determines that an alien...who is arriving in the United States...is inadmissible...and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer[.]" 8 U.S.C. § 1225(b)(1)(A)(ii). An implementing regulation similarly requires that if a noncitizen in expedited removal proceedings asserts an intention to apply for asylum or a fear of persecution, "the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer[.]" 8 C.F.R. § 235.3(b)(4).

The regulation further mandates that "the examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien's inadmissibility." Id.

An alien seeking asylum is subsequently referred to an "asylum officer," who is statutorily required to be "an immigration officer who has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title," and "is supervised by an officer who," inter alia , "has had substantial experience adjudicating asylum applications." 8 U.S.C. § 1225(b)(1)(E). The INA further elaborates the conduct of asylum officers in the interview and a process for removal if the officer determines that an alien does not have a credible fear of persecution. 8 U.S.C. § 1225(b)(1)(B).

At any point during this process, "[a]n alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States." 8 U.S.C. § 1225(a)(4). An implementing regulation further provides that "the alien's decision to withdraw his or her application for admission must be made voluntarily[.]" 8 C.F.R. § 235.4.

B. Factual Synopsis

The Plaintiffs are six individuals, Plaintiffs Abigail Doe, Beatrice Doe, Carolina Doe, Dinora Doe, Ingrid Doe, and Jose Doe (collectively, the "Individual Plaintiffs"), and organizational Plaintiff Al Otro Lado, Inc. ("Al Otro Lado"). They allege that CBP officials have "systematically violated U.S. law and binding international human rights law by refusing to allow individuals...who present themselves at POEs along the U.S.-Mexico border and assert their intention to apply for asylum or a fear of returning to their home countries-to seek protection in the United States." (Compl. ¶¶ 1-6, 37.) Plaintiffs allege that "[b]y refusing to follow the law, Defendants are engaged in an officially sanctioned policy or practice[.]" (Id. ¶ 5.)

Plaintiffs point to several reports from non-governmental organizations working in the U.S.-Mexico border region and Al Otro Lado's firsthand account, which describe instances in which CBP officials denied asylum seekers who presented themselves at POEs along the border access to the U.S. asylum process between December 2015 and June 2017. (Id. ¶¶ 37-39, 96-103.) Plaintiffs allege that CBP officials have carried out this practice through misrepresentations, threats and intimidation, verbal and physical abuse, and coercion. (Id. ¶¶ 84-103.) For example, CBP officials are alleged to turn away asylum seekers by falsely informing them that the U.S. is no longer providing asylum, that President Trump signed a new law ending asylum, that a law providing asylum to Central Americans ended, that Mexican citizens are not eligible for asylum, and that the U.S. is no longer accepting mothers with children for asylum. (Id. ¶ 85.) CBP officials are alleged to intimidate asylum seekers by threatening to take away their children if they do not renounce a claim for asylum and to deport the asylum seekers. (Id. ¶ 87.) CBP officials are also alleged to force asylum seekers to sign forms in English, without translation, in which the asylum seekers recant their fears of persecution.

(Id. ¶ 92.) CBP officials are further alleged to instruct the asylum seekers to recant their fears of persecution while being recorded on video. (Id. ¶ 92.) The Court briefly sets forth the Individual Plaintiffs' and Al Otro Lado's experiences of these alleged practices.

The Individual Plaintiffs

Plaintiffs Abigail Doe ("A.D."), Beatrice Doe ("B.D."), and Carolina Doe ("C.D.") are natives and citizens of Mexico, each of whom fled with their families to Tijuana, Mexico, where they attempted to access the U.S. asylum process. (Compl. ¶¶ 19-21.) Plaintiff A.D. sought to flee Mexico in May 2017 after her husband disappeared at the hands of a Mexican drug cartel. A cartel member threatened her with death. (Id. ¶¶ 19, 39-40.) She alleges that CBP officials at the San Ysidro POE coerced her into signing a form which falsely stated that she did not have a fear of returning to Mexico and withdrew her application for admission to the U.S., and forced her and her children to return to Mexico. (Id. ¶¶ 41-45.) Plaintiff B.D. sought to flee Mexico in May 2017 with her nephew and three children after the Zetas, a Mexican drug cartel in southern Mexico, targeted her nephew, and after she suffered severe domestic violence from her husband. (Id. ¶¶ 20, 46-47.) She presented herself at the Otay Mesa POE and twice at the San Ysidro POE, where CBP officials coerced her into signing a form in which she stated that she and her children have no fear of returning to Mexico and withdrew her application for admission. (Id. ¶¶ 48-54.) Plaintiff C.D. sought to flee Mexico in May 2017 with her three children after a drug cartel kidnapped and dismembered her brother-in-law and subsequently targeted her family with death and severe harm. (Id. ¶¶ 21, 55-56.) She alleges that CBP officials coerced her into recanting her fear on video and into signing a form withdrawing her application for admission to the U.S. (Id. ¶¶ 57-60.)

Plaintiffs Dinora Doe ("D.D."), Ingrid Doe ("I.D."), and Jose Doe ("J.D.") are natives and citizens of Honduras. (Id. ¶¶ 22-24.) Plaintiff D.D. alleges that MS-13 gang members threatened to kill her and her 17-year old daughter if they did not leave their home, and subsequently repeatedly raped her and her daughter over a three-day period. (Id ¶¶ 22, 61-62.) D.D and her daughter fled to Mexico where MS-13 gang members threatened them again. (Id. ¶ 63.) On three occasions in August 2016, D.D. and her daughter sought asylum in the United States at the Otay Mesa POE, but CBP officials told her that "there was no asylum in the United States," including specifically "for Central Americans," and that she "would be handed over to Mexican authorities and deported to Honduras." (Id. ¶¶ 64-69.) Plaintiff I.D. alleges that 18th Street gang members in Honduras murdered her mother and three siblings and that the gang threatened her with death. (Id. ¶¶ 23, 71.) She also alleges that her partner in Honduras severely abused her and her three children for several years, and regularly raped her, including in front of her children. (Id. ¶¶ 23, 72.) In June 2017, I.D. and her children fled to Tijuana and sought asylum at the Otay Mesa and the San Ysidro POEs, where CBP officers told them that they could not seek asylum in the U.S. (Id. ¶¶ 73-77.) Plaintiff J.D. alleges that 18th Street gang members murdered several of his family members in Honduras. He further alleges that gang members attacked him and threatened to kidnap and harm his two daughters. (Id. ¶¶ 24, 78- 79.) J.D. fled Honduras in June 2017 and sought asylum at the Laredo, Texas POE, but CBP officers told him he could not get asylum in the United States. (Id. ¶¶ 80- 82.)

At the time the Complaint was filed, the Individual Plaintiffs alleged that they "would like to present themselves again to seek asylum, but based on their experience and the experience of others with CBP's practice at POEs, [they] understand that they would likely be turned away again[.]" (Id. ¶¶ 44, 53, 59, 68, 76, 81.) They also allege that they are not alone. Rather, CBP officials are alleged to have a "prevalent and persistent" illegal practice since summer 2016 of denying other asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum system. Accordingly, the Individual Plaintiffs seek to represent a class of individuals with similar claims. (Id. ¶¶ 131-138 (class allegations).)

Al Otro Lado

Al Otro Lado is a non-profit California legal services organization established in 2014, which provides services to indigent deportees, migrants, refugees, and their families. (Compl. ¶ 12; Decl. of Erika Pinheiro, ECF No. 90-1 ("Pinheiro Decl.") ¶ 2.) Al Otro Lado's mission is to coordinate and to provide screening and legal representation for individuals in asylum and other immigration proceedings, seek redress for civil rights violations, and provide assistance with other legal and social services. (Compl. ¶ 12; Pinheiro Decl. ¶ 2.) Since December 2015, its representatives have accompanied asylum seekers to the San Ysidro POE and witnessed the alleged conduct of CBP officials. (Compl. ¶ 101.) In response to the alleged practices of CBP officials, Al Otro Lado has diverted significant time and resources from its L.A. operations and several of its non-refugee programs to send representatives to Tijuana. (Id. ¶¶ 14, 16-17; Pinheiro Decl. ¶¶ 4, 6-7.) Al Otro Lado has altered its previous "large-scale, mass-advisal legal clinics" in Tijuana that provided a general overview on asylum laws and procedures to provide individualized assistance and direct representation of asylum seekers, which has required Al Otro Lado to recruit and train more attorneys. (Compl. ¶¶ 13-14; Pinheiro Decl. ¶¶ 3-4.) Al Otro Lado expends significant time and resources to provide individual screenings and in-depth trainings to educate asylum seekers about CBP's conduct and challenge the alleged practices. (Id. ¶ 14; Pinheiro Decl. ¶ 4.)

C. Relevant Procedural Background

Plaintiffs filed the putative class action Complaint in the Central District of California on July 12, 2017. (ECF No. 1.) The Complaint presses three claims against the Defendants related to the INA provisions. Plaintiffs allege that (1) Defendants have violated various provisions of the INA that together constitute a "right to seek asylum under the [INA]," (Compl. ¶¶ 139-150); (2) the INA statutory violations also violate the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (Compl. ¶¶ 151-164) (asserting claims under Sections 706(1) and 706(2) of the APA); and (3) Defendants have violated Plaintiffs' Fifth Amendment procedural due process rights based on the alleged failure to comply with the INA's statutory protections (id. ¶¶ 165-176). Plaintiffs also assert claims pursuant to the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, for Defendants' alleged "violation of the non-refoulement doctrine," a doctrine which Plaintiffs contend is a "specific, universal, and obligatory norm," "which has also achieved the status of a jus cogens norm." (Compl. ¶¶ 177- 185). Plaintiffs seek declaratory and injunctive relief for their claims. (Id. at 52-53.)

II. LEGAL STANDARDS

A. Rule 12(b)(1) and Federal Court Jurisdiction

Pursuant to Rule 12(b)(1), a party may move to dismiss based on the court's lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A defendant may challenge the court's subject-matter jurisdiction in several ways, two of which are raised by Defendants'

motion to dismiss: mootness and sovereign immunity. When a defendant challenges the Article III standing of a plaintiff or the related issue of mootness, Rule 12(b)(1) is the appropriate standard of review because it is the court's subject-matter jurisdiction which is challenged. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) ("Mootness... pertain[s] to a federal court's subject-matter jurisdiction under Article III, [so it is] properly raised in a motion to dismiss under [ Rule] 12(b)(1)."). A Rule 12(b)(1) motion is also "a proper vehicle for invoking sovereign immunity from suit." Pistor v. Garcia , 791 F.3d 1104, 1111 (9th Cir. 2015). When the United States is sued or a suit implicates its sovereign immunity, a waiver of sovereign immunity is deemed a prerequisite for jurisdiction. FDIC v. Meyer , 510 U.S 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); Jachetta v. United States , 653 F.3d 898, 903 (9th Cir. 2011) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.") (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ). When sovereign immunity is invoked as the basis for the absence of subject-matter jurisdiction, "[a]s the party asserting a claim against the United States, [the plaintiff] has the burden of 'demonstrating an unequivocal waiver of immunity.' " United States v. Park Place Associates, Ltd. , 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham v. United States , 786 F.2d 1445, 1446 (9th Cir. 1986) ).

B. Rule 12(b)(6) and the Sufficiency of the Complaint

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). A defendant may move to dismiss a complaint on the ground that its allegations fail to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests the sufficiency of a complaint's allegations. N. Star Int'l v. Ariz. Corp. Comm'n , 720 F.2d 578, 581 (9th Cir. 1983). To survive such a motion, a plaintiff is required to set forth "enough facts to state a claim for relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw reasonable inferences that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. In assessing the sufficiency of a complaint, a court accepts as true the complaint's factual allegations and construes them in the light most favorable to the plaintiff. Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Yet, the court need not accept as true legal conclusions pled in the guise of factual allegations. Clegg v. Cult Awareness Network , 18 F.3d 752, 754-55 (9th Cir. 1994). A pleading is insufficient if it offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," without adequate factual allegations. Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; Iqbal , 556 U.S. at 676, 129 S.Ct. 1937. Generally, a court assesses a complaint's sufficiency based on its allegations, but a court may consider materials properly submitted as part of the complaint to resolve a Rule 12(b)(6) motion to dismiss. Lee v. City of Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001).

III. DISCUSSION

A. Mootness

In the days following the filing of the Complaint, Defendants agreed to process the Individual Plaintiffs for inspection and to permit them to access the asylum process. The agreement provides that: "[t]he government agrees to allow the class representatives and their children to present themselves at the San Ysidro and Laredo ports of entry and access the credible fear, withholding-only, or asylum process as appropriate under the [INA]." (ECF No. 67-3 Ex. B.) Three Individual Plaintiffs were processed at the San Ysidro POE on July 15, 2017 and another was processed on July 18, 2017. (ECF No. 135-2 Ex. A ¶ 4.) A fifth Individual Plaintiff was processed at the Laredo, Texas POE on July 18, 2017. (ECF No. 135-3 Ex. B. ¶ 4.) According to the Defendants, these five Individual Plaintiffs have been either referred to the asylum process or placed in removal proceedings. (ECF No. 135-1 at 1, 3.)

The parties have different views about what this means for the Court's jurisdiction. Defendants contend that the Individual Plaintiffs' Section 706(1) claims are now moot and so the Court should dismiss the entire case. (Id. at 1, 4-9.) Defendants assert that the Individual Plaintiffs have received "all the relief the Court could have granted" on their Section 706(1) claims: "the verifiable opportunity to be processed as applicants for admission" at a POE along the U.S.-Mexico border consistent with the INA's provisions. (Id. at 3, 6.) Plaintiffs argue that the Section 706(1) claims are not moot because (1) Plaintiff Beatrice Doe has not been processed for admission and therefore has not "actually received" the relief and (2) the Individual Plaintiffs who have been processed for admission only received "partial relief." (ECF No. 143 at 11.) Plaintiffs further argue that all Individual Plaintiffs who "crossed the U.S.-Mexico border" have a "continuing interest in pursuing a Rule 23 class action" for the conduct challenged in this case. (Id. at 11, 14.)

Article III limits the jurisdiction of the federal courts to "cases" or "controversies." U.S. Const. art. III, § 2; see also Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Because of this Article III limitation, a plaintiff must show the "irreducible constitutional minimum" of standing to invoke the federal judicial power: (1) an "injury in fact," (2) fairly traceable to the challenged action of the defendant, (3) which is "likely" to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolution of which have direct consequences on the parties involved." Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 71, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). Standing frames mootness. Mootness is "the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty , 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). To avoid mootness, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks and citation omitted). When a case becomes moot, a federal court must dismiss it for lack of jurisdiction. Pitts v. Terrible Herbst, Inc. , 653 F.3d 1081, 1086-87 (9th Cir. 2011).

To resolve Defendants' mootness challenge, the Court first considers whether the Individual Plaintiffs' receipt of Section 706(1) relief could alone moot this case- it does not-and, second, whether the Individual Plaintiffs' Section 706(1) claims asserted on behalf of a putative class warrant a mootness exception-they do. In considering these issues, the Court keeps in mind that "[t]he party asserting mootness has a heavy burden to establish that there is no effective relief remaining for a court to provide." In re Palmdale Hills Property , 654 F.3d 868, 874 (9th Cir. 2011) ; San Luis & Delta-Mendota Water Auth. v. United States DOI , 870 F.Supp.2d 943, 953 (E.D. Cal. 2012).

1. This Case is Not Moot

Defendants' argument that this case is moot ignores organizational Plaintiff Al Otro Lado's presence in this case and the Individual Plaintiffs' other requests for relief. "A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Knox v. SIEU, Local 1000 , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ; Johnson v. Rancho Santiago Cmty. College Dist. , 623 F.3d 1011, 1018 (9th Cir. 2010) (internal quotations and citation omitted) (a case is moot when there is no "present controversy as to which effective relief can be granted"). "[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Knox , 567 U.S. at 307-08, 132 S.Ct. 2277 (quoting Ellis v. Railway Clerks , 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ). Setting aside whether the Individual Plaintiffs' Section 706(1) claims are moot, this case is not moot given that it remains possible for the Court to grant effectual relief to Al Otro Lado and the Individual Plaintiffs.

a. Al Otro Lado

Faced with Al Otro Lado's argument that it possesses Article III standing, Defendants assert that they do not "yet dispute[ ] Al Otro Lado's Article III standing." (ECF No. 145 at 8.) Despite Defendants' assertion, the Court has an independent duty to assess whether Al Otro Lado satisfies Article III's "irreducible constitutional minimum" of standing. FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) ("The federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.' " (quoting Allen , 468 U.S. at 750, 104 S.Ct. 3315 ) ). The Court readily concludes that Al Otro Lado has Article III standing.

An organizational plaintiff like Al Otro Lado may have Article III standing to sue in its own right. See Havens Realty Corp. v. Coleman , 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). "An organization has 'direct standing to sue [when] it show[s] a drain on its resources from both a diversion of its resources and frustration of its mission.' " Valle Del Sol, Inc. v. Whiting , 732 F.3d 1006, 1018 (9th Cir. 2013) (quoting Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC , 666 F.3d 1216, 1219 (9th Cir. 2012) ). Of course, "[a]n organization cannot manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that would not otherwise affect the organization[.]" La Asociacion de Trabajadores de Lake Forest v. Lake Forest , 624 F.3d 1083, 1088 (9th Cir. 2010). Al Otro Lado satisfies this test.

Al Otro Lado is a non-profit that provides services to indigent deportees, migrants, refugees, and their families in Los Angeles, California and Tijuana, Mexico. Its core mission is, inter alia , to coordinate and provide screening, advocacy, and legal representation for individuals in asylum and other immigration proceedings. (Compl. ¶ 12.) As a result of CBP officers' conduct at POEs along the U.S.-Mexico border since 2016, Al Otro Lado alleges that it has diverted significant time and resources from its L.A. operations and its non-refugee programs to send representatives to Tijuana to provide individualized assistance and coordination of legal and social services, including individual screenings and in-depth trainings to educate asylum seekers about CBP's alleged conduct of denying the most basic form of access to the asylum process. (Id. ¶¶ 14, 16-18.) These alleged harms are sufficient for Article III standing. See Valle Del Sol Inc. , 732 F.3d at 1018 (organization had standing because its diverted resources from its core mission to address constituents' concerns); Smith v. Pac. Props. & Dev. Corp. , 358 F.3d 1097, 1105 (9th Cir. 2004) (finding standing where an organization alleged that "[it] has had...to divert its scarce resources from other efforts...to benefit the disabled community in other ways"). Accordingly, Al Otro Lado has an interest in this case that is not mooted by Defendants' post-Complaint conduct.

b. The Individual Plaintiffs' Other Claims for Relief

For the Individual Plaintiffs, Defendants' mootness challenge is narrow. It concerns only one form of relief in the Complaint on only one of the Plaintiffs' four claims. (See Compl. ¶¶ 152-153.) But the Individual Plaintiffs request other forms of relief, including: (1) "relief prohibiting Defendants" and their agents "from engaging in the unlawful policies, practices, acts and/or omissions...at POEs along the U.S.-Mexico border" and (2) "relief requiring Defendants to implement procedures to provide effective oversight and accountability in the inspection and processing of individuals who present themselves at POEs along the U.S.-Mexico border and indicate an intention to apply for asylum or assert a fear of persecution in their home countries." (Id. at 52-53.) The Complaint also requests a declaratory judgment that "Defendants' policies, practices, acts and/or omissions...violate" the INA, the APA, the Due Process Clause of the Fifth Amendment, and/or the "duty of non-refoulement under international law." (Id. at 52.) Defendants make no meaningful attempt to argue that their agreement to process the Individual Plaintiffs moots these requests for injunctive and declaratory relief.

Rather, Defendants' mootness argument treats these requests as irrelevant on the ground that Plaintiffs' other claims fail because the Plaintiffs do not plausibly allege that Defendants have a policy or practice. But a "party's prospects of success on a claim are not pertinent to the mootness inquiry." Looks Filmproduktionen GmbH v. CIA , 199 F.Supp.3d 153, 179 (D.D.C. 2016) (internal quotations and alterations omitted) (quoting Schnitzler v. United States , 761 F.3d 33, 39 (D.C. Cir. 2014) ); see also Aracely, R. v. Nielsen , No. 17-cv-1976-RC, 319 F.Supp.3d 110, 137, 2018 WL 3243977, at *15 (D.D.C. July 3, 2018) ; Ramirez v. ICE , 310 F.Supp.3d 7, 18 (D.D.C. 2018). Defendants' argument that Plaintiffs' other claims are moot because there is no policy or practice "confuses mootness with the merits." Chafin v. Chafin , 568 U.S. 165, 166, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013). "[J]urisdiction...is not defeated...by the possibility that the averments might fail to state a cause of action[.]" Bell v. Hood , 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ; see also Verizon Md., Inc. v. Pub. Serv. Comm'n of Md. , 535 U.S. 635, 642-43, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) ("It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction." (quoting Steel Co. v. Citizens for Better Env't , 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ) ); Eubanks v. McCotter , 802 F.2d 790, 793 (5th Cir. 1986) ("If federal jurisdiction turned on the success of a plaintiff's federal cause of action, no such case could ever be dismissed on the merits.").

Even on the merits, Defendants' argument cannot show that this entire case is moot because it conflates whether the Complaint plausibly shows the existence of a policy with whether the Complaint plausibly shows the existence of a practice. As the Court later explains, although the Complaint fails to show the existence of a policy, it plausibly shows the existence of a pattern or practice of denials faced by some asylum seekers. Accordingly, the Court cannot find that this entire case is moot by virtue of Defendants' agreement to process the Individual Plaintiffs.

2. The Section 706(1) Claims Are Not Moot

Although this case is not moot, Defendants' narrow mootness argument squarely raises the issue whether the Section 706(1) claims for relief asserted in the Complaint are. "A lawsuit-or an individual claim -becomes moot when a plaintiff actually receives all of the relief he or she could receive on the claim through further litigation." Chen v. Allstate Ins. Co. , 819 F.3d 1136, 1144 (9th Cir. 2016) (emphasis added). The Court must consider whether the agreement moots all the Section 706(1) claims asserted in this case and concludes that it does not. Al Otro Lado asserts APA claims, including a Section 706(1) claim, yet the agreement does not purport to provide any relief to Al Otro Lado. The Individual Plaintiffs also assert Section 706(1) claims on behalf of a putative class-a point Defendants' motion to dismiss elides. See Pitts , 653 F.3d at 1087 ("The distinction between issues that have become moot and parties whose interest in the issue may have become moot is especially visible in the context of class actions.").

a. Al Otro Lado's APA Claims

Defendants' Section 706(1) mootness challenge contains a key omission:

Plaintiff Al Otro Lado's Section 706(1) claim. (Compl. ¶¶ 151, 159-164.) Defendants omit discussion of any of Al Otro Lado's APA claims by assuming the merits of their separate argument that Al Otro Lado fails the zone of interests test applicable to claims asserted pursuant to the APA. (ECF No. 135 at 10-11.) The Court does not find that argument to be meritorious.

"In addition to [Article III's standing] requirements, a plaintiff bringing suit under the [APA] for a violation of [a statute] must show that his alleged injury falls within the 'zone of interests' that [the statute] was designed to protect." Cantrell v. City of Long Beach , 241 F.3d 674, 679 (9th Cir. 2001). "[T]he breadth of the zone of interests varies according to the provisions of law at issue[.]" Bennett v. Spear , 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Courts "presume that a statutory cause of action extends only to plaintiffs whose interests 'fall within the zone of interests protected by the law invoked.' " Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 129, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (quoting Allen , 468 U.S. at 751, 104 S.Ct. 3315 ). The APA's " 'zone of interests' test is 'not meant to be especially demanding,' and a court should deny standing only 'if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.' " Cetacean Cmty. v. Bush , 386 F.3d 1169, 1177 (9th Cir. 2004) (quoting Clarke v. Sec. Indus. Ass'n , 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) ) (emphasis added). The test does not require a specific congressional purpose to benefit the would-be plaintiff. Clarke , 479 U.S. at 399-400, 107 S.Ct. 750. And the "benefit of any doubt goes to the plaintiff." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. 209, 225, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012).

Defendants first argue that Al Otro Lado fails the zone of interests test because it does not cite any INA provision permitting it to sue. (ECF No. 135 at 10-11.) This argument is unavailing. "The APA confers a general cause of action upon persons 'adversely affected or aggrieved by action within the meaning of the relevant statute,' but withdraws that cause of action to the extent the relevant statute 'preclude[s] judicial review." Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) ; see also Reeb v. Thomas , 636 F.3d 1224, 1226 (9th Cir. 2011) (same); Defenders of Wildlife v. Tuggle , 607 F.Supp.2d 1095, 1098 (D. Ariz. 2009) (same). Defendants do not purport to argue that the INA itself precludes judicial review in this case.

Defendants' second argument is that Al Otro Lado "ha[s] failed to plead sufficient facts to demonstrate that [it] has statutory standing as a legal advocacy group to pursue a claim under 8 U.S.C. §§ 1158 or 1225." (ECF No. 145 at 8.) Defendants ground this argument in an opinion decided by a single Supreme Court justice, which granted the government's application to stay a district court's injunction order entered in favor of several legal organizations pending appeal. See INS v. Legalization Assistance Project of L.A. Cty. Fed'n of Labor , 510 U.S. 1301, 114 S.Ct. 422, 126 L.Ed.2d 410 (1993) (O'Connor, J.) [hereinafter " L.A.P. "]. L.A.P. concerned the Immigration Reform and Control Act of 1986 ("IRCA"), a statute which created a limited amnesty period for certain undocumented aliens to seek legalization. Considering whether to grant a stay, Justice O'Connor "predict[ed]" that "this Court would grant certiorari and conclude that the respondents"-organizations "that provide legal help to immigrants"-"are outside the zone of interests IRCA seeks to protect, and that therefore they had no standing to seek the order entered by the District Court." Id. at 1302, 1305, 114 S.Ct. 422. She reasoned that although IRCA provided a role for legal help organizations during the amnesty period in the role of "so-called 'qualified designated entities,' " there was "no indication" that IRCA was addressed to the interests of the organizations, but rather it was "clearly meant to protect" the interests of undocumented aliens. Id. at 1305, 114 S.Ct. 422 (citing 8 U.S.C. § 1255(a)(2) ). Defendants argue that, like the respondent organizations who Justice O'Connor predicted the Supreme Court would find as outside IRCA's zone of interests, Al Otro Lado falls outside the INA's zone of interests. The Court rejects this argument.

As an initial matter, the precedential value of Justice O'Connor stay opinion is questionable. Justice O'Connor recognized that her task in deciding whether to grant a stay was a "difficult and speculative inquiry" that required her "to predict whether four Justices would vote to grant certiorari and whether the Court would then set the order aside." L.A.P. , 510 U.S. at 1304, 114 S.Ct. 422. In relevant part, her zone of interests answer to that concededly speculative inquiry did not prove true. The Court granted certiorari and, instead of adopting Justice O'Connor's merits reasoning, it vacated the judgment below and remanded to the Ninth Circuit for further consideration in light of, inter alia , Reno v. Catholic Social Services, Inc. , 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). See INS v. L.A.P. , 510 U.S. 1007, 114 S.Ct. 594, 126 L.Ed.2d 560 (1993). Given the posture of Justice O'Connor's opinion and the Supreme Court's ultimate disposition, this Court does not view L.A.P. as binding. See Lozano v. City of Hazleton , 496 F.Supp.2d 477, 502 & n.2 (M.D. Pa. 2007) ("Because of the nature of [ L.A.P. ]-a speculative opinion by one Supreme Court Justice sitting as a Circuit Court Justice-and the fact the decision served only to delay implementation of an order pending appeal, we do not consider that opinion as binding, but rather as persuasive authority."), aff'd in part and rev'd in part on other grounds by , 620 F.3d 170 (3d Cir. 2010), vacated and remanded on other grounds by , 563 U.S. 1030, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011).

Setting aside its questionable precedential value, the Court does not find L.A.P. 's reasoning helpful because L.A.P. concerned IRCA's zone of interests-not the INA. This distinction is important. Justice O'Connor's analysis cannot be isolated from the cases her opinion discussed, which narrowly interpreted standing to sue under IRCA even as applied to undocumented aliens. For example, Justice O'Connor began her opinion with a discussion of Reno , decided some five months earlier and which the INS argued required vacating the district court's order. L.A.P. , 510 U.S. at 1303, 114 S.Ct. 422. In Reno , the Supreme Court held that "the only people who could ask for injunctive or declaratory relief under IRCA" from an alleged administrative INS "front-desking policy" of discouraging legalization applications were those to whom that policy was directly applied. L.A.P. , 510 U.S. at 1303, 114 S.Ct. 422 (quoting Reno , 509 U.S. at 61-67, 113 S.Ct. 2485 ). Reno 's view of standing was adopted in Ayuda, Inc. v. Reno , 7 F.3d 246 (D.C. Cir. 1993), a decision with which Justice O'Connor viewed the decisions of the district court and Ninth Circuit in L.A.P. as in "conflict." L.A.P. , 510 U.S. at 1305, 114 S.Ct. 422. In Ayuda, Inc ., the D.C. Circuit held that "in light of the [ Reno ] analysis, it is now quite clear that the organizational plaintiffs did not have standing to raise their claims challenging INS policies or regulations that interpreted aliens' rights to legalization under IRCA." Ayuda, Inc. , 7 F.3d at 251 (citing Reno , 509 U.S. at 61, 113 S.Ct. 2485 ) (vacating district court orders for lack of jurisdiction). Placed in context, Justice O'Connor's view of IRCA's zone of interests says much about the restrictive judicial treatment of challenges concerning IRCA and little about the INA's zone of interests.

Courts have not interpreted the INA's zone of interests as narrowly as IRCA's and non-alien plaintiffs, including organizational plaintiffs, have been permitted to assert claims based on the INA. See Hawaii v. Trump , 859 F.3d 741, 766 (9th Cir. 2017) (finding that plaintiff states' "efforts to enroll students and hire faculty members who are nationals from six countries" affected by president order fell within zone of interests), vacated on other grounds by Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 377, 199 L.Ed.2d 275 (2017) ; Doe v. Trump , 288 F.Supp.3d 1045, 1067-68 (W.D. Wash. 2017) (relying on Hawaii to conclude that two organizational plaintiffs fell within the zone of interests of the INA and the Refugee Act of 1980 because of their "core mission" involved "[m]aking provisions for the resettlement and absorption of refugees"); V. Real Estate Group, Inc. v. United States Citizenship & Immigration Servs. , 85 F.Supp.3d 1200, 1209 (D. Nev. 2015) (company could sue for USCIS's revocation of an EB-5 foreign investor visa because its "interest..is more than just marginally related to the statutes' purpose since the company was actually founded with the intent that its model would satisfy the requirements of the EB-5 program and bring Chinese investors to the country.").

The specific INA provisions in this case evince a congressional intent that aliens-including those arriving at POEs and those facing expedited removal-have "an opportunity...to have the merits of his or her claim promptly assessed by officers." Castro v. United States Dep't of Homeland Sec. , 163 F.Supp.3d 157, 161 (E.D. Pa. 2016) (quoting H.R. Rep. No. 104-828, at 209-10 (1996) (Conf. Rep.) ); see also 8 U.S.C. § 1158 ; 8 U.S.C. § 1225. Al Otro Lado alleges that part of its mission is to serve and represent asylum and refugee seekers. (Compl. ¶ 12.) In furtherance of this mission, Al Otro Lado established and operates its Refugee Program in Tijuana, Mexico, which services individuals who wish to seek asylum in the United States. (Id. ¶ 13.) The alleged conduct of CBP officers has caused Al Otro Lado to expend significant time and resources to assist asylum seekers in responding to CBP officials' alleged conduct of foreclosing even the most basic aspect of the INA's asylum procedures-the opportunity to be processed in the first place. (Id. ¶¶ 12- 15.)

This Court finds Al Otro Lado's interests in this case "are related to the basic purposes of the INA['s]" goal of permitting aliens to apply for asylum in the United States at POEs and not so marginally related that its interests fall outside the INA's zone of interests. Hawaii , 859 F.3d at 766 ; Doe v. Trump , 288 F.Supp.3d at 1067-68. Accordingly, the Court rejects Defendants' challenge to Al Otro Lado's INA-based claims.

b. The Individual Plaintiffs' Section 706(1) Claims

Five of the six Individual Plaintiffs have received the requested relief from Defendants' agreement to process these "class representatives and their children" at POEs. Thus, their Section 706(1) claims are moot unless an exception applies. Plaintiffs contend, however, that the Section 706(1) claim of Beatrice Doe is not moot because she has not "actually received" the relief provided in the agreement. (ECF No. 143 at 11.) The Court does not share Plaintiffs' view.

Plaintiffs' argument relies solely on case law holding that a rejected or unaccepted Rule 68 offer of judgment does not moot a plaintiff's individual claims even when that offer would provide full relief. See Chen , 819 F.3d at 1136 ; Diaz v. First. Am. Home Buyers Prot. Corp. , 732 F.3d 948, 954-55 (9th Cir. 2013) ("[A]n unaccepted offer that would...fully satisf[y] a plaintiff's claim does not render that claim moot."). This is true of an unaccepted settlement offer as well. See Campbell-Ewald Co. v. Gomez , --- U.S. ----, 136 S.Ct. 663, 672, 193 L.Ed.2d 571 (2016).

Defendants' agreement, however, is not a Rule 68 offer of judgment or a settlement offer and thus Chen and Diaz are not directly applicable. Even if the reasoning of these cases extends to less formal offers, what is before the Court is not an offer which Beatrice Doe has yet to accept or reject, but rather an agreement. The agreement permits her to be processed by CBP officials at a POE in accordance with the INA and has no expiration. The evidence shows that five of the six Individual Plaintiffs were processed pursuant to the agreement and there is no basis for the Court to find that Beatrice Doe will be treated any differently. Defendants readily concede that Beatrice Doe "can return to a port of entry to be processed as an arriving alien at any time, should she choose to do so" pursuant to the agreement. (ECF No. 135-1 at 3.) And they "fully expect that 'she would be processed as an applicant for admission[.]' " (ECF No. 145 at 2 (quoting ECF No. 135-2 Ex. A ¶ 4).). Beatrice Doe is in no different a position than she would be with a court order compelling agency action. Accordingly, her individual Section 706(1) claim, like those of the other Individual Plaintiffs, is moot unless an exception applies.

Even when a claim becomes moot due to subsequent events after the commencement of a lawsuit, "the flexible character of the Art[icle] III mootness doctrine" may warrant the exercise of jurisdiction over the claim. United States Parole Comm'n v. Geraghty , 445 U.S. 388, 401, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ; see also San Luis & Delta-Mendota Water Auth. , 870 F.Supp.2d at 958 ("Even if a case is technically moot, it may nevertheless be judiciable if one of three exceptions to the mootness doctrine applies," including " 'for wrongs capable of repetition yet evading review.' ") (quoting Ctr. for Biological Diversity v. Lohn , 511 F.3d 960, 964-66 (9th Cir. 2007) ). Under the "capable of repetition, yet evading review" exception, a claim is justiciable notwithstanding mootness if: (1) there is "a 'reasonable expectation' that the same party will confront the same controversy again" and (2) if the underlying dispute is "inherently limited in duration such that it is likely always to become moot before federal court litigation is completed." W. Coast Seafood Processors Ass'n v. NRDC , 643 F.3d 701, 704 (9th Cir. 2011) (quoting Feldman v. Bomar , 518 F.3d 637, 644 (9th Cir. 2008) ), id. at 705 (quoting Ctr. for Biological Diversity , 511 F.3d at 965 (internal quotations omitted) ). The parties dispute whether this exception applies.

Defendants argue that it does not. (ECF No. 135-1 at 8.) In Defendants' view, "[t]here is no reason to anticipate that the Doe Plaintiffs...will return to a [POE] as applicants for admission in the future, or that, upon doing so, they will not be properly processed, especially considering the low percentage rate of improper processing[.]" (Id. ) It is unclear what basis there is for Defendants' assertion. Unless the Individual Plaintiffs are granted asylum, there is nothing in the Complaint that suggests that they will not attempt to seek asylum again and, if so, that CBP officers will not turn them away from a POE. Each Individual Plaintiff has alleged that he or she does not wish to return to his or her home country because of a fear of violence. Each Individual Plaintiff has also alleged being turned away by CBP officials on multiple occasions and a practice of such conduct. Even if Defendants are correct that the Complaint fails to show a blanket policy of turning away asylum seekers at POEs, "the 'capable of repetition yet evading review' exception is not so narrowly circumscribed." San Luis & Delta-Mendota Water Auth. , 870 F.Supp.2d at 960. Based on the limited nature of the Court's review of the pleadings at this stage, the Court cannot say that the Individual Plaintiffs' allegations do not show a reasonable expectation that they would again be subjected to the conduct they have alleged experiencing.

Furthermore, contrary to Defendants' argument (ECF No. 135-1 at 9), the putative class action nature of this case does change the Court's analysis regarding the effect of their agreement. Courts are sensitive to assertions of mootness in the class action context. See Cty. of Riverside v. McLaughlin , 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ; Sosna v. Iowa , 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) ; Gerstein v. Pugh , 420 U.S. 103, 110, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The "capable of repetition, yet evading review" mootness exception has a particular application in the class action context when the defendant's actions after the filing of the complaint moot the proposed class representative's individual claims. Courts are sensitive to a defendant's tactics of "picking off lead plaintiffs" so as "to avoid a class action," even when a proposed class representative's "claims are not 'inherently transitory as a result of being time sensitive." Pitts , 653 F.3d at 1091 (quoting Weiss v. Regal Collections , 385 F.3d 337, 347 (3d Cir. 2004) ). "The end result is the same: a class transitory by its very nature and one transitory by virtue of the defendant's litigation strategy share the reality that both claims would evade review." Id. Even if the named plaintiff in a putative class action receives "complete relief on [his or her] individual claims...before class certification, fully satisfying those individual claims, [the plaintiff] still would be entitled to seek certification." Chen , 819 F.3d at 1142.

Defendants acknowledge Pitts and Chen , yet they contend that unlike the defendants in those cases, they have not sought to "buy-off" the Plaintiffs in this case to avoid a class action. (ECF No. 135-1 at 9; ECF No. 145 at 4.) However, Plaintiffs seek only declaratory and injunctive relief. The fact that Defendants have provided one form of the injunctive relief solely to the "class representatives" (ECF No. 67-3 Ex. B) after the filing of this case is no less a potential "buy-off" strategy that effectively renders transitory the claims they seek to assert on behalf of a putative class. The government could simply render moot any class action Section 706(1) claims concerning the conduct at issue in this case by affording relief to any individual plaintiffs who seek to challenge such conduct as soon as the case is filed and long before a court could reasonably be expected to rule on a motion for class certification. See Haro v. Sebelius , 747 F.3d 1099, 1110 (9th Cir. 2014) (determining that the expiration of the plaintiff's claim one month after filing the lawsuit did not moot the class's claim for injunctive relief because "the district court could not have been expected to rule on a motion for class certification in that period").

Defendants possess the authority to direct CBP officials to process aliens who present themselves at POEs along the U.S.-Mexico border in accordance with the requirements of the INA and implementing regulations. Defendants' agreement to exercise that authority occurred a mere two days after the filing of the Complaint and only when confronted with the possibility that Plaintiffs would file an ex parte request for a temporary restraining order that all Individual Plaintiffs be processed at a POE. (ECF No. 67-1 ¶¶ 2-7.) Under these circumstances, the Court is convinced that the Section 706(1) claims the Individual Plaintiffs assert on behalf of themselves and the putative class fall within an exception from mootness.

B. Sovereign Immunity

Defendants' motion to dismiss also raises the issue of sovereign immunity. (ECF No. 135-1 at 21; ECF No. 145 at 1.) "Sovereign immunity is a threshold question that is sometimes described as 'jurisdictional.' " Forester v. Chertoff , 500 F.3d 920, 925 n.5 (9th Cir. 2007) (citing Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ); see also Reed v. Dep't of Homeland Sec. , No. CV 16-7170 CJC (JC), 2017 WL 2701940, at *3 (C.D. Cal. May 25, 2017) ("Sovereign immunity is a threshold issue [that] goes to the court's subject matter jurisdiction.") (quoting Cassirer v. Kingdom of Spain , 616 F.3d 1019, 1026 (9th Cir. 2010) (en banc), cert. denied , 564 U.S. 1037, 131 S.Ct. 3057, 180 L.Ed.2d 886 (2011) ).

Plaintiffs sue the named Defendants in their official capacity as United States officers, each of whom is alleged to oversee the enforcement and administration of U.S. immigration laws, including oversight of CBP. (Compl. 1-2 (caption); id. ¶¶ 25-27.). "An action against an officer, operating in his or her official capacity as a United States agent, operates as a claim against the United States." Ministerio Roca Solida v. McKelvey , 820 F.3d 1090, 1095 (9th Cir. 2016) (citing Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001) ); see also Kentucky v. Graham , 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Plaintiffs must therefore contend with the sovereign immunity of the United States. See Gilbert v. DaGrossa , 756 F.2d 1455, 1458 (9th Cir. 1985) ("It has long been held that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants."); Allen v. United States, 871 F.Supp.2d 982, 988 (N.D. Cal. 2012) (the issue of sovereign immunity "includes suits against federal officers in their official capacities to compel them to act")

(citing Dugan v. Rank , 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) ).

"The United States, as a sovereign, is immune from suit unless it has waived its immunity." Consejo de Desarrollo Economico de Mexicali, A.C. v. United States , 482 F.3d 1157, 1173 (9th Cir. 2007) (emphasis added) (citing Dep't of Army v. Blue Fox, Inc. , 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) ); United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) ). "When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court's jurisdiction." United States v. Mottaz , 476 U.S 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) (citing United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) ); see also Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest , 304 F.Supp.3d 916, 932-33 (E.D. Cal. 2018) (same) (quoting Balser v. Dep't of Justice, Office of U.S. Tr. , 327 F.3d 903, 907 (9th Cir. 2003) ). Thus, consistent with sovereign immunity and any waiver of it, a court may only exercise jurisdiction over claims against the United States within the parameters set by Congress.

1. The APA Supplies the Relevant Waiver

The APA "contains a specific waiver of the United States' sovereign immunity." Matsuo v. United States , 416 F.Supp.2d 982, 988 (D. Haw. 2006) (citing Bowen v. Massachusetts , 487 U.S. 879, 891-92, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) ). As a general matter, the APA permits suits against the United States by "[a] person suffering legal wrong because of the agency action, or adversely affected or aggrieved by agency action within the meaning of relevant statute." 5 U.S.C. § 702. This portion of Section 702 constitutes the APA's judicial review provision and dates to the APA's original enactment in 1946. See Administrative Procedure Act, Pub. L. No. 79-404 § 10(a), 60 Stat. 237, 243 (1946) (codified as amended at 5 U.S.C. § 702 ); see also Navajo Nation v. Dep't of the Interior , 876 F.3d 1144, 1168 (9th Cir. 2017). Claims asserted pursuant to the APA must satisfy Section 702's "agency action" requirement and the further requirement under Section 704 of the APA that a plaintiff must identify a "final agency action" to obtain judicial review. 5 U.S.C. § 704.

Apart from Section 702's judicial review provision for APA claims is the APA's waiver of sovereign immunity, also located in Section 702. The waiver provides that: "[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity...shall not be dismissed nor relief therein be denied on the ground that it is against the United States." 5 U.S.C. § 702. This waiver of sovereign immunity was enacted as a 1976 amendment to the APA, which aimed "to clear up a morass of federal sovereign immunity jurisprudence" and "aimed to 'broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment.' " Navajo Nation , 876 F.3d at 1168 (quoting Bowen v. Massachusetts , 487 U.S. 879, 891-92, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) ). Unlike Section 702's judicial review provision, which is textually limited to "agency action," Section 702's waiver of sovereign immunity contains no such textual limitation. 5 U.S.C. § 702 ; see also Navajo Nation , 876 F.3d at 1171. Accordingly, as amended, the APA "waives sovereign immunity broadly for all causes of action that meet its terms" irrespective of whether the claims satisfy the APA's requirements for judicial review of an agency action. Navajo Nation , 876 F.3d at 1172 ; see also The Presbyterian Church (U.S.A.) v. United States , 870 F.2d 518, 525 (9th Cir. 1989) ( Section 702 is "an unqualified waiver of sovereign immunity in actions seeking nonmonetary relief"). Thus, a plaintiff need only seek nonmonetary relief against the government in order to avail himself of the APA's waiver of sovereign immunity. In this case, Plaintiffs invoke the APA's waiver and seek only non-monetary relief against Defendants, based on claims regarding the purported actions and failures to act of CBP officials and the named Defendants. (Compl. ¶ 10; id. at 52-53.) Accordingly, Plaintiffs' claims for relief fall squarely within the broad waiver of sovereign immunity reflected in Section 702.

Because the APA supplies the relevant waiver of the sovereign immunity in this case, the Court can easily reject Defendants' argument that "Congress has not waived sovereign immunity to create a private right of action for a per se 'pattern or practice' claim against federal law enforcement." (ECF No. 135-1 at 21; ECF No. 145 at 1.) Setting aside that the Complaint does not separately plead such a claim and that the Plaintiffs disavow bringing one (see generally Compl.; see also ECF No. 143 at 19 n.6), Defendants' argument fails under Navajo Nation . Because Plaintiffs' claims fall within the scope of Section 702's waiver, they do not need to identify a separate waiver of sovereign immunity for "pattern or practice" claims against the government. See Navajo Nation , 876 F.3d at 1172 (" § 702 waives sovereign immunity broadly for all causes of action that meet its terms[.]"). To the extent Defendants are arguing that pattern or practice claims are not cognizable under the APA, that is an issue that concerns the sufficiency of such claims, not whether the United States or its officers are immune from such claims. See id. ; see also Trudeau v. FTC , 456 F.3d 178, 187 (D.C. Cir. 2006) (concluding that Section 702's waiver of sovereign immunity applies regardless of whether the challenged conduct itself satisfies the APA's review provisions).

2. The APA's Waiver Extends to Plaintiffs' ATS Claims

The APA's waiver of sovereign immunity also resolves one of Defendants' challenges to Plaintiffs' ATS claims. The Complaint alleges ATS claims against the Defendants for "violation of the non-refoulement doctrine" under international law. (Compl. ¶ 180.) Defendants argue that the ATS "does not constitute a waiver of sovereign immunity and therefore does not create a cause of action against the government."

(ECF No. 135-1 at 11-12 n.5.) Defendants thus appear to suggest that this Court lacks jurisdiction over the ATS claims asserted against the Defendants as a matter of sovereign immunity.

Defendants are correct that the ATS does not waive the sovereign immunity of the United States. The ATS provides only that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The text of the ATS says nothing about sovereign immunity and, thus, it cannot be construed as a waiver. See Lane v. Pena , 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (internal citations omitted) (stating that "[a] waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied"). Specifically, the ATS does not waive the government's sovereign immunity. Tobar v. United States , 639 F.3d 1191, 1196 (9th Cir. 2011) ("[T]he Alien Tort Statute has been interpreted as a jurisdiction statute only-it has not been held to imply any waiver of sovereign immunity.").

However, at least one appellate court has suggested that the APA is "arguably available" as a waiver of sovereign immunity for claims