Court Decision Ensures Asylum Seekers Notice of the One-Year Filing Deadline and an Adequate Mechanism to Timely File Applications

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1 Court Decision Ensures Asylum Seekers Notice of the One-Year Filing Deadline and an Adequate Mechanism to Timely File Applications Frequently Asked Questions April, 0 Introduction Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington recently issued a significant decision regarding the one-year filing deadline for asylum applications. The decision has nationwide implications for thousands of asylum seekers. On March, 0, in Mendez Rojas v. Johnson, 0 WL (W.D. Wash. Mar., 0, the court held that the government s failure to provide adequate notice of the one-year deadline constitutes a violation of the immigration statue, the Administrative Procedure Act (APA, and class members due process rights under the Fifth Amendment. In addition, the court held that the government s failure to provide a uniform mechanism through which class members can timely file their asylum applications also violates the immigration statute and the APA. Therefore, the court ordered that the government adopt a notice of the one-year filing deadline and provide this notice to all current and future class members. Further, the court ordered the government to adopt, publicize, and implement uniform procedural mechanisms that will allow class members to file their asylum applications in a timely manner. Who is covered by the decision? To benefit from this decision, an individual must be a member of one of the two classes certified in the case: Class A comprises individuals who: Have been or will be released from Department of Homeland Security (DHS custody after having been found to have a credible fear of persecution within the meaning of U.S.C. (b((b(v; and Did not receive a notice from DHS of the one-year filing deadline for asylum applications; and Either o Have not filed an asylum application; or Copyright (c 0 American Immigration Council, Dobrin & Han, PC, and the Northwest Immigrant Rights Project. Click here for information on reprinting this document. The information contained in this FAQ is not a substitute for independent legal advice supplied by a lawyer familiar with a client s case. We are grateful for the assistance of Patrick Taurel, of Clark Hill, PLC, for drafting a Notice of Class Membership which is adapted and attached to this FAQ.

2 o Filed an asylum application more than one year after their arrival in the United States. Additionally, Class A is divided into two sub-classes: those who are not in removal proceedings; and those who are in removal proceedings. Class B comprises individuals who: Have been or will be detained by DHS upon their arrival into the country; Express a fear of return to their home country to a DHS official; Have been or will be released from DHS custody without a credible fear determination; Are issued a Notice to Appear (NTA; Did not receive a notice from DHS of the one-year filing deadline for asylum applications; and Either o Have not filed an asylum application; or o Filed an asylum application more than one year after their arrival in the United States. Additionally, Class B is divided into two sub-classes: those who are not in removal proceedings; and those who are in removal proceedings. What did the Mendez Rojas court decide? The court found that the government s failure to provide adequate notice of the one-year deadline violated class members statutory right to apply for asylum under the Immigration and Nationality Act (INA, providing for relief under the APA. Mendez Rojas, 0 WL at *,. Moreover, the court found that the notice the government claimed was provided to class members through a variety of documents and through the statute was insufficient. Id. at *-. The court concluded that such notice was not reasonably calculated, under all of the circumstances of this case, to afford class members adequate notice of the one-year deadline, in violation of their due process rights. Id. at *. Finally, the court found that the immigration courts refusal to accept applications until an NTA is filed with the court, coupled with USCIS s refusal to accept asylum applications from class members whose cases were not yet pending with an immigration court, operated to deprive class members of the opportunity to timely file their asylum applications. Id. at *-. These refusals constituted a violation of class members statutory right to apply for asylum under the INA, and the court provided for relief under the APA. Id. at *. What did the Mendez Rojas court order? Pursuant to its decision, the court ordered that: The government has until June, 0, to adopt notice of the one-year deadline and thereafter provide notice to all current and future class members;

3 The government must accept as timely filed any asylum application from a class member that is filed within one year of the date of adoption of the notice; and The government has until July, 0, to adopt, publicize, and immediately implement uniform procedural mechanisms that will ensure class members are able to file their asylum applications in a timely manner. Is the Court s order effective now? Yes. The court s decision became effective on the date that it was issued, March, 0. Consequently, the period in which the government must issue a notice to class members began to run on that date, as did the period in which it must implement uniform procedures for filing asylum applications. What happens if the government appeals? The government has until May, 0 to appeal the decision. If it appeals, it also may seek a stay of the order until the circuit court decides the appeal. Unless such a stay is granted, the district court s order will remain in effect. My client qualifies as a class member. What should I do? For class members with cases pending before EOIR, practitioners should notify the immigration judge of the decision in Mendez Rojas and their client s class membership. For class members whose cases are on appeal to the BIA, practitioners should similarly notify the BIA of their client s class membership. Enclosed is a sample Notice of Class Membership. Class members with final orders of removal whose asylum applications were rejected due to failure to comply with the one-year deadline should consider filing a motion to reopen their order. Generally, an individual must file a motion to reopen within 0 days of entry of the final order. Practitioners whose clients orders were issued more than 0 days ago can argue that the filing deadline should be equitably tolled based on the court s order and their diligent pursuit of their claim after learning about the order. Class members in this situation can class counsel at kmacleod-ball@immcouncil.org. Per the court s order, the government must accept as timely filed an asylum application that is filed by a class member within one year of the government s adoption of the new notice of the one-year deadline, including those applications filed by class members before the court s order but more than a year after their arrival in the United States. We will continue to update this FAQ as we learn more about the implementation of the court s order and any decision by the government to pursue an appeal. For more information about motions to reopen and equitable tolling, see the American Immigration Council s Practice Advisory, The Basics of Motions to Reopen EOIR-Issued Removal Orders.

4 [ADDRESS] NOT DETAINED UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT [LOCATION] In The Matter of: [NAME] Respondent, In Removal Proceedings A ### ### ### Immigration Judge: *** *** Next Individual Calendar Hearing: [DATE] at [TIME] RESPONDENT S NOTICE OF MENDEZ ROJAS CLASS MEMBERSHIP

5 RESPONDENT S NOTICE OF MENDEZ ROJAS CLASS MEMBERSHIP The Respondent, by and through undersigned counsel, hereby notifies the Immigration Court that she is a member of a class certified in Mendez Rojas v. Johnson, No. -0, 0 WL (W.D. Wash. Jan. 0, 0 (order granting motion for class certification, and that this Court must deem her asylum application to have been timely filed. Mendez Rojas, 0 WL (W.D. Wash. Mar., 0 (order granting motion for summary judgment. Mendez Rojas is a class action lawsuit that challenged the government s failure to provide certain asylum seekers with adequate notice of the one-year filing deadline, and its failure to provide a uniform mechanism through which they can timely file their asylum applications. Id. Defendants in the case were both the Department of Homeland Security (DHS and the Executive Office for Immigration Review (EOIR. On January 0, 0, the court certified the following classes and subclasses: CLASS A ( Credible Fear Class : All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of U.S.C. (b((b(v and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in U.S.C. (a((b. A.I.: All individuals in Class A who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. A.II.: All individuals in Class A who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. CLASS B ( Other Entrants Class : All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear (NTA; and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in U.S.C. (a((b. The order granting plaintiffs motion for class certification appears at Exhibit A. The order granting plaintiffs motion for summary judgment appears at Exhibit B.

6 B.I.: All individuals in Class B who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. B.II.: All individuals in Class B who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. Mendez Rojas, 0 WL at *. On March, 0, the court issued an order granting the plaintiffs motion for summary judgment (hereinafter Order. Mendez Rojas, 0 WL at *. In granting plaintiffs motion for summary judgment, the court found that the government s failure to inform class members of the asylum filing deadline and to provide a uniform mechanism through which class members may timely submit their applications violates class members statutory and constitutional rights. Id. at *,, -. The Order requires, in pertinent part, that DHS adopt a notice of the one-year filing deadline, in consultation with class members, and thereafter provide notice to all class members who have already been released from DHS custody. Id. at *. The Order further directs the defendants which includes EOIR to accept as timely filed any asylum application filed by a class member that is filed within one year of the date of the adoption of the notice. Id. The Respondent in this case is a member of Mendez Rojas Subclass A.II., because:. She was released from DHS custody, after she was deemed to have a credible fear of persecution. [CITE EVIDENCE]. She did not receive notice from DHS of the one-year filing deadline. See Mendez Rojas, 0 WL at * (finding that DHS does not provide sufficient notice of the one-year deadline to satisfy the Due Process clause.. She is in removal proceedings.. She applied for asylum more than one year after her last arrival.

7 [NOTE TO READER: THIS SAMPLE USES SUBCLASS A.II. AS AN EXAMPLE. BE SURE TO MODIFY IF THE CLIENT FALLS WITHIN ANOTHER CLASS OR SUBCLASS]. Pursuant to the Order, this Court must deem the Respondent s asylum application to have been timely filed because it was filed within one year indeed, prior to the notice mandated by Mendez Rojas. Respectfully submitted, XXX Counsel for Respondent Date

8 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT [LOCATION] In The Matter of: [NAME] Respondent, In Removal Proceedings A ### ### ### Next Individual Calendar Hearing [DATE] at [TIME] before Immigration Judge [NAME] TABLE OF CONTENTS Exhibit Page A Mendez Rojas v. Johnson, No. -0, 0 WL (W.D. Wash. Jan. 0, 0 (order granting motion for class certification B Mendez Rojas, No. -0, 0 WL (W.D. Wash. Mar., 0 (order granting motion for summary judgment.

9 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT [LOCATION] In The Matter of: [NAME] Respondent, In Removal Proceedings A ### ### ### Next Individual Calendar Hearing [DATE] at [TIME] before Immigration Judge [NAME] PROOF OF SERVICE On the date indicated below, I, [COUNSEL NAME], served a copy of Respondent s Notice of Mendez Rojas Class Membership and any attached pages to the U.S. Department of Homeland Security, Immigration and Customs Enforcement, Office of the Chief Counsel at the following address: XXXXX, by FedEx. XXX Counsel for Respondent Date

10 EXHIBIT A

11 Case :-cv-00-rsm Document Filed 0/0/ Page of UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 0 CONCELY del CARMEN MENDEZ ROJAS, et al., v. Plaintiffs, JEH JOHNSON, Secretary of the Department of Homeland Security, in his official capacity, et al., Defendants. CASE NO. C-0RSM GRANTING MOTION FOR CLASS CERTIFICATION 0 I. INTRODUCTION This matter comes before the Court on Plaintiffs Motion for Class Certification. Dkt. #. Plaintiffs seek certification of two classes, each with two subclasses. Id. Defendants oppose the motion, arguing that the Plaintiffs lack standing, and fail to meet any of the class certification requirements. Dkt. #. For the reasons set forth below, the Court disagrees with Defendants and now GRANTS Plaintiffs motion. II. BACKGROUND Plaintiffs are asylum seekers who challenge Defendants alleged failure to provide them, and the classes they move to represent, with notice of the statutory requirement that an asylum seeker must apply for asylum within one year of arrival in the United States, U.S.C. (a((b, as well as Defendants alleged failure to provide a mechanism that ensures that PAGE -

12 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 an asylum seeker is able to comply with that deadline. Dkt. #. Plaintiffs allege that Defendants policies and practices infringe on their and the proposed putative class members statutory and regulatory rights to apply for asylum, often depriving them of those rights altogether, and also violate their right to due process under the Fifth Amendment to the United States Constitution. Id. Plaintiffs assert that the questions presented in this case whether the DHS Defendants are obligated to provide Plaintiffs with notice of the one-year deadline when released from DHS custody, and whether the DHS and DOJ Defendants must provide a mechanism that ensures that Plaintiffs are able to apply for asylum in a timely manner can and should be resolved on a class-wide basis. Dkt. # at. For context, Plaintiffs have provided a brief background of the proposed class representatives: Plaintiff Rodriguez is a -year-old asylum seeker from Honduras. Mr. Rodriguez entered the United States in July 0 and established a credible fear of persecution in an interview with USCIS. Subsequently, DHS released him from custody with an NTA, the charging document in removal proceedings, but did not inform him of the one-year deadline. DHS has not placed Mr. Rodriguez in removal proceedings yet. He only learned of the deadline when he sought counsel for his immigration case. His attempts to comply with the one-year deadline have been unsuccessful, however, as both USCIS and EOIR have rejected his asylum application USCIS rejected it on the assumption that Mr. Rodriguez was in removal proceedings, so the application had to be filed with EOIR; EOIR rejected the application Mr. Rodriguez attempted to lodge because he is not actually in removal proceedings. As a result, he has been unable to file, or even lodge, his asylum application. See Dkt. 0-. Plaintiff Mendez is a 0-year-old asylum seeker from the Dominican Republic. Ms. Mendez entered the United States in September 0 and established a credible fear of persecution in an interview with USCIS. Subsequently, DHS released her from custody with an NTA, but did not inform her of the one-year deadline. She only learned of the deadline when she sought counsel for her immigration case after one year had already passed. As she had not yet been placed in removal proceedings, Ms. Mendez attempted to file an asylum application with USCIS, but USCIS rejected it on the assumption that she already was in removal proceedings. PAGE -

13 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 Only after this rejection and more than one year after she entered the country did DHS file the NTA with the immigration court, allowing Ms. Mendez to finally lodge her asylum application with the San Antonio Immigration Court. Her first immigration court hearing will be in August 0. See Dkt. -. Plaintiff Lopez is a -year-old asylum seeker from Guatemala. In February 0, she arrived at a Texas port of entry with two of her children and told the inspecting officers that she was afraid to return to Guatemala. DHS served Ms. Lopez and her children with NTAs and released them from custody with the requirement that they check in with DHS on a regular basis. DHS did not inform her of the one-year deadline. Ms. Lopez checked in with DHS on four occasions between March 0 and September 0, yet at no point did DHS inform her of the one-year deadline. In October 0, she was issued a notice of hearing for November 0 in the San Antonio Immigration Court. Ms. Lopez did not learn of the one-year deadline until she consulted an immigration attorney in December 0. She lodged her asylum application with the court in January 0, nearly two years after she arrived in the United States. The immigration judge subsequently terminated her removal proceedings, and she filed an asylum application affirmatively with USCIS in February 0. USCIS has not yet scheduled an interview regarding her asylum application. See Dkt. -. Plaintiff Suarez is a -year-old asylum seeker from Mexico. She and her five young children arrived at a California port of entry in November 0. Upon her arrival, Ms. Suarez informed DHS that she was afraid to return to Mexico and that she was seeking asylum in the United States. She provided DHS with a sworn statement regarding her fear of returning to Mexico. Shortly afterwards, DHS released her and her children from custody with NTAs, and paroled them into the country to await a removal hearing. At no point did DHS inform Ms. Suarez of the one-year deadline. She first learned of this requirement more than a year later, when she sought counsel. She then promptly lodged her application with the San Francisco Immigration Court. Ms. Suarez is scheduled for an individual hearing in May 0. See Dkt. -. Dkt. # at -0. In response to the instant motion, Defendants have not disputed these background facts as to each of the named Plaintiffs. See Dkt. #. Plaintiffs now request that the Court certify the following classes and subclasses: CLASS A ( Credible Fear Class : All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of U.S.C. PAGE -

14 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 Dkt. # at. Dkt. # at. (b((b(v and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in U.S.C. (a((b. A.I.: All individuals in Class A who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. A.II.: All individuals in Class A who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. CLASS B ( Other Entrants Class : All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear (NTA; and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in U.S.C. (a((b. B.I.: All individuals in Class B who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. B.II.: All individuals in Class B who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. Plaintiffs propose that Plaintiffs Elmer Geovanni Rodriguez Escobar and Concely del Carmen Mendez Rojas be appointed as representatives of Class A. Plaintiff Rodriguez moves to be appointed as representative of Subclass A.I., and Plaintiff Mendez Rojas moves to be appointed as representative of Subclass A.II. Dkt. # at. Plaintiffs further propose that Plaintiffs Maribel Suarez Garcia and Lidia Margarita Lopez Orellana be appointed as representatives of Class B. Plaintiff Lopez Orellana moves to be appointed as representative of Subclass B.I., and Plaintiff Suarez moves to be appointed as representative of Subclass B.II. Dkt. # at. PAGE -

15 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 Plaintiffs also ask that the Court adopt the following definitions of certain terms for purposes of all four subclasses: Dkt. # at fn.. an individual has applied for asylum when her application on Form I- is accepted, and not subsequently rejected, by either Defendant U.S. Citizenship and Immigration Services (USCIS or Defendant EOIR. An application is rejected by USCIS where USCIS refuses to accept it or subsequently issues a rejection notice. An application is rejected by EOIR where EOIR refuses to accept it. Pursuant to current EOIR policy, an application is not filed if it is accepted for lodging purposes only. See Imm. Ct. Practice Manual.(b(iii(A. A. Legal Standard III. DISCUSSION Class certification is governed by Federal Rule of Civil Procedure. Wal-Mart Stores, Inc. v. Dukes, U.S.,, S. Ct., 0 L. Ed. d (0. Under Federal Rule of Civil Procedure Rule (a, the party seeking certification must first demonstrate that ( the class is so numerous that joinder of all members is impracticable; ( there are questions of law or fact common to the class; ( the claims or defenses of the representative parties are typical of the claims or defenses of the class; and ( the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. (a. Second, the proposed class must satisfy at least one of the three requirements listed in Rule (b. Dukes, U.S. at ; see also Leyva v. Medline Indus. Inc., F.d 0, (th Cir. 0. In this case, Plaintiffs seek to certify a class under Rule (b(, which requires that 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. Dkt. # at -; Fed. R. Civ. P. (b(. Rule PAGE -

16 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 (b( applies only when a single injunction or declaratory judgment would provide relief to each member of the class. Dukes, U.S. at 0. Rule does not set forth a mere pleading standard. Id. at 0. Rather, certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule (a have been satisfied. Id. at 0- (internal quotation omitted. [I]t may be necessary for the court to probe behind the pleadings before coming to rest on the certification question. Gen. Tel. Co. of Sw. v. Falcon, U.S., 0, 0 S. Ct., L. Ed. d 0 (. This is because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff s cause of action. Id. (internal quotation omitted. Nonetheless, the ultimate decision regarding class certification involve[s] a significant element of discretion. Yokoyama v. Midland Nat'l Life Ins. Co., F.d 0, 00 (th Cir. 00. B. Certification Plaintiffs assert that their proposed classes and subclasses satisfy all Rule (a and Rule (b( requirements. Accordingly, the Court addresses those arguments, in turn, below.. Numerosity and Standing The prerequisite of numerosity is discharged if the class is so large that joinder of all members is impracticable. Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. (quoting Fed. R. Civ. P. (a(. Plaintiffs assert that the proposed classes are numerous. Dkt. # at -. Plaintiffs provide statistics for Fiscal Year 0 from the Asylum Division of Defendant USCIS to assert that thousands of noncitizens express a fear of persecution to the DHS Defendants upon their arrival into the United States each month. See Asylum Division, USCIS, Credible Fear Workload Report Summary: FY 0 Total Caseload, at available at PAGE -

17 Case :-cv-00-rsm Document Filed 0/0/ Page of ments/crediblefearreasonablefearstatisticsnationalityreports.pdf (last visited Jan., 0. Further, during that same year, the Asylum Division determined that, individuals who were originally detained and placed in expedited removal proceedings had a credible fear of persecution if returned to their home countries. Id. Accordingly, Plaintiffs believe that the majority, if not all, of these, individuals are putative Class A members. In addition, Plaintiffs have presented Declarations from immigration attorneys around the country supporting the assertion that both Class A and Class B membership is too numerous for joinder. See Dkts. # at - and # at, and -. Finally, Plaintiffs note that Defendants are in possession of the precise number of proposed class members, but Plaintiffs have demonstrated that the number of current and future class members, and the numerous reasons why it would be impractical to join them.... Based on this evidence, general knowledge, and common sense, the Court can infer that both putative classes and their subclasses are sufficiently large. Perez-Funez v. Dist. Dir., I.N.S., F. Supp. 0, (C.D. Cal.. Further, each putative subclass includes unnamed and unknown future asylum applicants, and joinder of such individuals is inherently impracticable. Jordan v. L.A. Cty., F.d, 0 (th Cir., vacated on other grounds, U.S. 0, 0 S. Ct., L. Ed. d. However, the Court must also address Defendants argument that Plaintiffs cannot meet the numerosity standard because none of the Plaintiffs can demonstrate an actual injury, and therefore they do not have standing. Dkt. # at -. Standing has three elements: ( an injury in fact; ( a causal connection between the injury and the conduct complained of ; and ( redressability, meaning that the injury is likely capable of being redressed by a PAGE -

18 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 favorable decision. Lujan v. Defenders of Wildlife, 0 U.S., 0, S. Ct. 0, L. Ed. d (. In a class action, standing is satisfied if at least one named plaintiff meets the requirements. Bates v. UPS, F.d, (th Cir. 00. In this case, Defendants argue that none of the representative Plaintiffs has experienced any injury in fact, and that any future injury is purely speculative because they don t know whether their asylum applications will be denied. Dkt. # at -. The Court is not persuaded. Plaintiffs are not challenging any denial, past or future, of asylum. See Dkt. #0 at. Rather, they challenge their right to timely apply for asylum. Id. That is, they challenge the denial of an opportunity to apply within the one-year deadline, which they allege is caused by Defendants failure to provide adequate notice of the deadline and an alleged failure to implement a uniform method through which Plaintiffs can comply with that deadline. Id. The Ninth Circuit has made clear that Plaintiffs and the proposed class members have a statutory right to apply for asylum: Section 0(b of the Refugee Act, U.S.C., conferred upon all aliens a statutory right to apply for asylum. Orantes-Hernandez v. Thornburgh, F.d, (th Cir. 0. That right may be violated by a pattern or practice that forecloses the opportunity to apply. See Id. at (upholding finding that coercion of aliens to accept voluntary departure violated their right to apply for asylum. The same provision of the Refugee Act required the Attorney General to establish means by which aliens, regardless of status, may apply for political asylum. See U.S.C.. Campos v. Nail, F.d, (th Cir.. Plaintiffs allege that the failures by Defendants have caused them to lose this right, and they must now rely on an immigration judge to find, in his or her discretion, that either changed circumstances or extraordinary circumstances justified their delayed filings. Dkt. #0 at ; U.S.C. (a((d and C.F.R. 0.(a((B, a(-(. If Plaintiffs allegations are true, they have lost the PAGE -

19 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 statutory right to apply for asylum and must now depend on the discretion of an adjudicator to apply. Accordingly, the Court finds that Plaintiffs have demonstrated standing. Defendants next argue that this Court has no jurisdiction to review asylum applications, and that such applications must go to review in the Circuit Court of Appeals. Dkt. # at -. Again, that argument misconstrues Plaintiffs claims. Plaintiffs are not asking this Court to make any finding with respect to how immigration judges analyze the extraordinary circumstances exception. Rather, they allege that Defendants action or inactions have deprived them of a statutory right to apply for asylum by foreclosing their opportunity to apply as of right. See Dkt. #0 at. Accordingly, the Court finds that Plaintiffs have standing. Because the only arguments that Defendants present in response to Plaintiffs assertion of numerosity pertained to standing, and based on the evidence of numerosity presented by Plaintiffs as discussed above, the Court concludes that the proposed classes and their subclasses are sufficiently numerous to satisfy Rule (a(.. Commonality The requirement of commonality is met through the existence of a common contention that is of such a nature that it is capable of classwide resolution. Dukes, U.S. at 0. A contention is capable of classwide resolution if the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. Accordingly, what matters to class certification... is not the raising of common questions even in droves but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Id. This requirement is construed permissively. Hanlon, 0 F.d at 0. Accordingly, [a]ll questions of fact and PAGE -

20 Case :-cv-00-rsm Document Filed 0/0/ Page 0 of 0 0 law need not be common to satisfy the rule. Id.; see also Rodriguez v. Hayes, F.d 0, (th Cir. 00. In this case, the Plaintiffs and proposed class members allege a violation of their statutory right to apply for asylum, including adequate notice of the statutory deadline and a meaningful opportunity to comply with that deadline. Dkt. # at -. Those claims are also based on a common core of facts. Id. at. Defendants argue again that none of the Plaintiffs have demonstrated an injury in fact, and therefore cannot demonstrate commonality. Dkt. # at. The Court has already rejected that argument. Defendants also argue that Plaintiffs cannot demonstrate commonality because the resolution of the claims requires an individualized inquiry, and the government actually provides notice of the one-year deadline in several circumstances. Dkt. # at -0. This argument misses the mark. Plaintiffs assert that Defendants do not have a policy and practice of advising the proposed members of the classes of the filing deadline, and that they do not have an adequate mechanism for timely filing. Defendants do not dispute either of those claims. Rather they assert that some asylum seekers are provided with such notice and filing opportunities. Accordingly, the Court concludes that the resolution of the legal issues raised by Plaintiffs will generate one result for each member of the putative classes and subclasses. Thus, the Court agrees that these legal issues constitute a common contention that is capable of classwide resolution. Dukes, U.S. at 0.. Typicality [R]epresentative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical. Hanlon, 0 F.d at 00. Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. Hanon v. Dataproducts Corp., F.d PAGE - 0

21 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0, 0 (th Cir.. Nonetheless, the commonality and typicality requirements of Rule (a tend to merge. Falcon, U.S. at n.. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Id. In determining typicality, courts consider whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Hanon, F.d at 0. Plaintiffs convincingly argue that all Individual Plaintiffs suffered the same injury as the putative class. Dkts. # at 0- and #0 at -0. Defendants primarily respond with the same arguments regarding injury in fact as have already been rejected by this Court. Dkt. # at 0-. They are no more persuasive in the context of typicality. Accordingly, the Court concludes that the individual Plaintiffs are typical of the classes and subclasses they seek to represent.. Adequacy Defendants have not separately addressed the adequacy requirement. Instead, they included their objections in their arguments as to typicality. Dkt. # at 0-. For the same reasons above, the Court concludes that the individual Plaintiffs and their proposed counsel constitute adequate class representatives.. Common Grounds Plaintiffs contend that their class action satisfies Rule (b( because Defendants have 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. (b(; Dkt. # at -. Class certification under Rule (b( is appropriate PAGE -

22 Case :-cv-00-rsm Document Filed 0/0/ Page of 0 0 only where the primary relief sought is declaratory or injunctive. Zinser v. Accufix Research Inst., Inc., F.d 0, (th Cir. 00. The Court treats [p]redominance and superiority a[s] self-evident, Dukes, U.S. at, and requires [o]nly a showing of cohesiveness of class claims, Herskowitz v. Apple, Inc., 0 F.R.D. 0, (N.D. Cal. 0 (citing Fosmire v. Progressive Max Ins. Co., F.R.D., (W.D. Wash. 0. In this case, the primary relief that Plaintiffs seek is declaratory and injunctive. Plaintiffs seek a declaration that the DHS Defendants policy and practice of failing to give notice of the one-year deadline is contrary to the statute and the Constitution and that the DHS and DOJ Defendants failure to provide uniform meaningful and reliable mechanisms within which to comply is contrary to the statute and the Constitution. Dkt. # at - and Prayer for Relief, d.-e. Defendants argue that Plaintiffs fail to meet the (b( standard because Defendants have not failed to act or refused to act on grounds applicable to the class. Dkt. # at -. For the reasons set forth by Plaintiffs, the Court does not agree that Defendants have presented either a system whereby putative class members are guaranteed notice of the one-year filing deadline or a mechanism whereby putative class members are assured of the opportunity to timely file their asylum applications. See Dkt. #0 at 0-. Accordingly, the Court finds that Plaintiffs have also met the requirements of Rule (b(, and their proposed classes and subclasses should be certified. IV. CONCLUSION Having reviewed Plaintiffs motion for class certification, the opposition thereto and reply in support thereof, along with the Declarations submitted by the parties and the remainder of the record, the Court hereby finds and S: PAGE -

23 Case :-cv-00-rsm Document Filed 0/0/ Page of 0. Plaintiffs Motion for Class Certification (Dkt. # is GRANTED.. Plaintiffs have satisfied the class certification requirements as discussed above. Therefore, the following classes and subclasses are CERTIFIED: a. CLASS A ( Credible Fear Class : All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of U.S.C. (b((b(v and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in U.S.C. (a((b. i A.I.: All individuals in Class A who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. ii A.II.: All individuals in Class A who are in removal proceedings and 0 who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. b. CLASS B ( Other Entrants Class : All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear (NTA; and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in U.S.C. (a((b. i B.I.: All individuals in Class B who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. PAGE -

24 Case :-cv-00-rsm Document Filed 0/0/ Page of ii B.II.: All individuals in Class B who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. 0. Plaintiffs proposed representatives will fairly and adequately protect the class interests as discussed above. Therefore, the following class representatives are APPOINTED: a. As Class A representatives: Plaintiffs Elmer Geovanni Rodriguez Escobar and Concely del Carmen Mendez Rojas. Plaintiff Rodriguez will also serve as representative of Subclass A.I., while Plaintiff Mendez will serve as representative of Subclass A.II. b. As Class B representatives: Plaintiffs Maribel Suarez Garcia and Lidia Margarita Lopez Orellana. Plaintiff Lopez will also serve as 0 representative of Subclass B.I., while Plaintiff Suarez will serve as representative of Subclass B.II.. The Court also adopts Plaintiffs definition of applied as defined in footnote of their motion for class certification (Dkt. # at, fn... Plaintiffs current counsel will also fairly and adequately protect the class interests as discussed above. DATED this 0 day of January, 0. A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE PAGE -

25 EXHIBIT B

26 Case :-cv-00-rsm Document Filed 0// Page of 0 0 CONCELY del CARMEN MENDEZ ROJAS, et al., v. Plaintiffs, JEH JOHNSON, Secretary of the Department of Homeland Security, in his official capacity, et al., Defendants. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE CASE NO. C-0 RSM GRANTING MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This matter comes before the Court on Plaintiffs Motion for Summary Judgment. Dkt. #. Plaintiffs assert that Defendants failure to provide all class members with notice of the one-year asylum application deadline and failure to create and implement procedural mechanisms that guarantee class members the opportunity to timely submit their asylum applications violate the Immigration and Nationality Act ( INA, Administrative Procedure Act ( APA, governing regulations and due process. Id. Plaintiffs assert that based on the record before this Court summary judgment in their favor is appropriate. Id. Defendants oppose the motion, arguing that Plaintiffs seek to impute notice requirements that neither Congress nor the U.S. Constitution mandates, and the Court lacks jurisdiction over Plaintiffs claim for new procedural mechanisms. Dkt. #. For the reasons set forth below, the Court disagrees with Defendants and now GRANTS Plaintiffs motion. PAGE -

27 Case :-cv-00-rsm Document Filed 0// Page of 0 0 II. BACKGROUND The Plaintiff class members are asylum seekers who challenge Defendants alleged failure to provide them with notice of the statutory requirement that an asylum seeker must apply for asylum within one year of arrival in the United States, U.S.C. (a((b, as well as Defendants alleged failure to provide a mechanism that ensures that an asylum seeker is able to comply with that deadline. Dkt. #. The Court has certified the following classes and subclasses in this matter: Dkt. #. CLASS A ( Credible Fear Class : All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of U.S.C. (b((b(v and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in U.S.C. (a((b. A.I.: All individuals in Class A who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. A.II.: All individuals in Class A who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. CLASS B ( Other Entrants Class : All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear (NTA; and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in U.S.C. (a((b. B.I.: All individuals in Class B who are not in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. B.II.: All individuals in Class B who are in removal proceedings and who either (a have not yet applied for asylum or (b applied for asylum after one year of their last arrival. PAGE -

28 Case :-cv-00-rsm Document Filed 0// Page of 0 0 For context, Plaintiffs have provided a brief background of the class representatives, which is undisputed by Defendants: Plaintiff Rodriguez is a -year-old asylum seeker from Honduras. Mr. Rodriguez entered the United States in July 0 and established a credible fear of persecution in an interview with USCIS. Subsequently, DHS released him from custody with an NTA, the charging document in removal proceedings, but did not inform him of the one-year deadline. DHS has not placed Mr. Rodriguez in removal proceedings yet. He only learned of the deadline when he sought counsel for his immigration case. His attempts to comply with the one-year deadline have been unsuccessful, however, as both USCIS and EOIR have rejected his asylum application USCIS rejected it on the assumption that Mr. Rodriguez was in removal proceedings, so the application had to be filed with EOIR; EOIR rejected the application Mr. Rodriguez attempted to lodge because he is not actually in removal proceedings. As a result, he has been unable to file, or even lodge, his asylum application. See Dkt. 0-. Plaintiff Mendez is a 0-year-old asylum seeker from the Dominican Republic. Ms. Mendez entered the United States in September 0 and established a credible fear of persecution in an interview with USCIS. Subsequently, DHS released her from custody with an NTA, but did not inform her of the one-year deadline. She only learned of the deadline when she sought counsel for her immigration case after one year had already passed. As she had not yet been placed in removal proceedings, Ms. Mendez attempted to file an asylum application with USCIS, but USCIS rejected it on the assumption that she already was in removal proceedings. Only after this rejection and more than one year after she entered the country did DHS file the NTA with the immigration court, allowing Ms. Mendez to finally lodge her asylum application with the San Antonio Immigration Court. Her first immigration court hearing will be in August 0. See Dkt. -. Plaintiff Lopez is a -year-old asylum seeker from Guatemala. In February 0, she arrived at a Texas port of entry with two of her children and told the inspecting officers that she was afraid to return to Guatemala. DHS served Ms. Lopez and her children with NTAs and released them from custody with the requirement that they check in with DHS on a regular basis. DHS did not inform her of the one-year deadline. Ms. Lopez checked in with DHS on four occasions between March 0 and September 0, yet at no point did DHS inform her of the one-year deadline. In October 0, she was issued a notice of hearing for November 0 in the San Antonio Immigration Court. Ms. Lopez did not learn of the one-year deadline until she consulted an immigration attorney in December 0. She lodged her asylum application with the court in January 0, nearly two years after she arrived in the United States. The immigration judge subsequently terminated PAGE -

29 Case :-cv-00-rsm Document Filed 0// Page of 0 0 Dkt. # at -0. her removal proceedings, and she filed an asylum application affirmatively with USCIS in February 0. USCIS has not yet scheduled an interview regarding her asylum application. See Dkt. -. Plaintiff Suarez is a -year-old asylum seeker from Mexico. She and her five young children arrived at a California port of entry in November 0. Upon her arrival, Ms. Suarez informed DHS that she was afraid to return to Mexico and that she was seeking asylum in the United States. She provided DHS with a sworn statement regarding her fear of returning to Mexico. Shortly afterwards, DHS released her and her children from custody with NTAs, and paroled them into the country to await a removal hearing. At no point did DHS inform Ms. Suarez of the one-year deadline. She first learned of this requirement more than a year later, when she sought counsel. She then promptly lodged her application with the San Francisco Immigration Court. Ms. Suarez is scheduled for an individual hearing in May 0. See Dkt. -. Plaintiffs allege that Defendants policies and practices infringe on their statutory and regulatory rights to apply for asylum, often depriving them of those rights altogether, and also violate their right to due process under the Fifth Amendment to the United States Constitution. A. Legal Standard III. DISCUSSION Summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. (a; Anderson v. Liberty Lobby, Inc., U.S., (. Material facts are those which might affect the outcome of the suit under governing law. Anderson, U.S. at. In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but only determine[s] whether there is a genuine issue for trial. Crane v. Conoco, Inc., F.d, (th Cir. (citing Federal Deposit Ins. Corp. v. O Melveny & Meyers, F.d, (th Cir.. PAGE -

30 Case :-cv-00-rsm Document Filed 0// Page of 0 0 On a motion for summary judgment, the Court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson, U.S. at ; Sullivan v. U.S. Dep't of the Navy, F.d, (th Cir. 00. However, the nonmoving party must make a sufficient showing on an essential element of her case with respect to which she has the burden of proof to survive summary judgment. Celotex Corp. v. Catrett, U.S., (. Further, [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Anderson, U.S. at. B. Notice of One-Year Asylum Application Deadline. Alleged Violation of the INA and APA Under U.S.C. (a(, [a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters, irrespective of such alien s status, may apply for asylum in accordance with this section.... The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under that statute. U.S.C. (b((a. However, the foregoing shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within year after the date of the alien s arrival in the United States. U.S.C. (a((b. If an alien does not apply within one year after arrival in the United States, the application for asylum may be considered if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant s eligibility for asylum PAGE -

31 Case :-cv-00-rsm Document Filed 0// Page of 0 0 or extraordinary circumstances relating to the delay in filing an application within the one-year period. U.S.C. (a((d. PAGE - Plaintiffs first argue that because the ability to exercise the right to apply for asylum is contingent upon filing in a timely manner, when Defendants fail to provide notice of the oneyear deadline or delay providing notice, they violate congressional intent, and as a result violate both the INA and the APA. Dkt. # at. Defendants acknowledge that they do not provide blanket notice to all asylum seekers at the time they are apprehended, during the credible fear determination, or upon release, but respond that no such statutory notice requirement exists. Dkt. # at -. As a result, Defendants assert that they have not violated the law and summary judgment on this basis must be denied. Plaintiffs have relied on certain congressional history in support of their argument. Specifically, Plaintiffs point to Senator Orrin Hatch s comments on the Omnibus Consolidated Appropriations Act,, which he made on September 0,. Dkt. # at (citing CONG. Rec. S,0 (daily ed. Sept. 0, (statement of Sen. Hatch. Senator Hatch stated: Like my distinguished colleague from Michigan, I too supported the Senate provision, which received overwhelming, bipartisan support in the Senate. In fact, that provision was adopted by an amendment in the Judiciary Committee that passed by unanimous consent. The Senate provisions had established a -year time limit only on defensive claims of asylum, that is, those raised for the first time in deportation proceedings, and provided for a good cause exception. Let me say that I share the Senator s concern that we continue to ensure that asylum is available for those with legitimate claims of asylum. The way in which the time limit was rewritten in the conference report--with the two exceptions specified--was intended to provide adequate protections to those with legitimate claims of asylum. I expect that circumstances covered by the The Court acknowledges that not every legal argument raised by Plaintiffs applies to each separate Defendant, and that some arguments are directed toward the Agency Defendants, while some are directed at the Individual Defendants. However, for ease of reference, the Court simply refers in its discussion to Defendants in the plural, and will differentiate a particular Defendant or group of Defendants if and when it becomes necessary in making specific rulings.