Al Otro Lado, Inc. v. McAleenan

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AL OTRO LADO, INC., et al., Case No. 17-cv-02366-BAS-KSC 12 Plaintiffs, ORDER: 13 v. (1) TERMINATING PLAINTIFF 14 ALEJANDRO MAYORKAS, et al., ROBERTO DOE’S 15 Defendants. EMERGENCY APPLICATION AS MOOT (ECF No. 786); AND 16 17 (2) DIRECTING PARTIES TO SUBMIT JOINT STATUS 18 REPORT 19 20 21 Before this Court is Plaintiff Roberto Doe’s ex parte emergency application for 22 injunctive relief (“Application”) in the form of an order requiring the Government (1) to 23 provide him “with the necessary documents and/or approvals to travel on a commercial 24 airline [from Nicaragua] to the United States so that he may access the asylum process” 25 and (2) “to grant him access to the asylum process under the rules and regulations . . . that 26 would have applied in [October of 2018],” when Plaintiff was illegally turned back at a 27 Texas port of entry (“Application”). (App., ECF No. 786; see Mem., Ex. 1 to Mot., ECF 28 1 No. 786-1.) Plaintiff avers that it is no longer safe for him to continue to live in Nicaragua 2 given the worsening political unrest in his home country. (Doe Decl. ¶ 10, Ex. 2 to Mot., 3 ECF No. 786-2.) Specifically, he fears that if he remains in Nicaragua, even in hiding, his 4 life will be in jeopardy given his past political opposition to the current regime. (Id.) He 5 attests that his name was listed among a group of the regime’s political opponents, many 6 of whom have been rounded up and arrested by the police, and that “paramilitaries are 7 looking for [him] in [his] hometown.” (Id.) 8 The Government states that it has reached an agreement in principle with Plaintiff 9 that would provide him the relief he seeks by his Application. (Opp’n 7, ECF No. 790.) 10 Specifically, the Government represents to the Court that it will provide Plaintiff with “the 11 necessary permission and documentation” to enter the United States, subject to Plaintiff’s 12 submission to the Government of “certain basic application information” and “barring the 13 revelation of derogatory national security information.” (Id. 10.)2 The Government has 14 agreed to “process” Plaintiff’s application “within two weeks” of its receipt. (Halaska 15 Decl. ¶ 53.) Furthermore, the Government avers that the Migrant Protection Protocols 16 (“MPP”) memorandum and the CDC Order promulgated under Title 42 of the United States 17 Code, which “prevents the introduction of certain covered noncitizens,” will not apply to 18 Plaintiff if he arrives in the United States by air. (Opp’n 10 (citing Public Health 19 Reassessment and Order Suspending the Right to Introduce Certain Persons from 20 Countries Where a Quarantinable Communicable Disease Exists, 86 Fed. Reg. 42,828, 21 42,829 (Aug. 5, 2021) (CDC Order) (“The instant Order continues the suspension of the 22 right to introduce ‘covered noncitizens’ . . . into the United States along the U.S. land and 23 adjacent coastal borders.”)) and 8 U.S.C. § 1225(b)(2)(C) (permitting the government to 24 25 1 Plaintiffs seek identical relief in their Motion for Court Oversight of the Preliminary Injunction (See ECF No. 736), but were compelled to bring ex parte this Application due to the purportedly exigent 26 circumstances described above (Mem. 4). 2 Specifically, the Government has conditioned its offer on Plaintiff first providing an application 27 packet consisting of ‘[a] completed and signed USCIS form I-131, Application for Travel Document,’ a ‘clear photocopy of a valid, unexpired passport/travel document biographic data page . . .’ and a ‘proposed 28 | |}return to a contiguous territory a noncitizen “who is arriving on land . . . from a foreign 2 || territory contiguous to the United States).) 3 The Government avers that, in light of its acquiescence to the demands in □□□□□□□□□□□ 4 || Application, the Court need not issue an order compelling the relief Plaintiff seeks in the 5 interest of judicial economy and to conserve the parties’ resources. (Opp’n 10 (citing Leyva 6 || v. Certified Grocers of Calif., Ltd., 593 F.2d 857, 864 (9th Cir. 1979); Lopez v. Am. Express 7 Bank, FSB, No. 09-CV-7335, 2010 WL 3637755, at *4 (C.D. Cal. Sept. 17, 2010)).) 8 || Moreover, although it agrees to provide Plaintiff with the relief he seeks, the Government 9 ||does not concede that the relief Plaintiff seeks is legally “appropriate to address any 10 || violation found by this Court.” (Mem. 1.) 11 In lieu of a substantive reply, Plaintiff now requests the Court to “hold further 12 || briefing and ruling on [h]is [A]pplication in abeyance” and to direct the parties to file a 13 status report. (Reply 1, ECF No. 791.) Plaintiff requests the Court to afford him an 14 || opportunity to file a substantive reply if the Government fails to facilitate Plaintiff's travel 15 entry into the United States. (/d.) 16 Accordingly, the Court TERMINATES AS MOOT Plaintiff's Application and 17 |} ORDERS the parties to submit a joint report concerning Plaintiff's status by no later than 18 || January 31, 2022. That report shall be no longer than five (5) pages and shall indicate 19 || whether (1) a resolution has been reached, (2) the parties seek additional time to reach a 20 resolution, or (3) Plaintiff seeks to renew his Application. If Plaintiff indicates that he 21 ||seeks to renew his Application, he shall file a substantive reply to the Government’s 22 || Opposition (ECF No. 790) by no later than February 4, 2022. 23 IT IS SO ORDERED. 24 / yy 25 || DATED: December 21, 2021 ( yi uA (Liphan 6 26 United States District Judge 27 28