On June 30, 2016, asylum seekers in this case, represented by the American Immigration Council and partners, filed this lawsuit against the Attorney General of the United States as well as the directors of the Department of Homeland Security, the U.S. Immigration and Customs Enforcement, U.S. Customs and Immigration Services, U.S. Customs and Border Patrol, and the Executive Office for Immigration Review. The plaintiffs argued that DHS had failed to notify them of its one-year asylum application deadline and failed to implement mechanisms that guaranteed members the opportunity to timely submit these applications. The plaintiffs argued that these actions violated the Administrative Procedure Act, the Immigration and Nationality Act, governing regulations, and their due process rights. They sought class certification, injunctive and declaratory relief, mandamus, and attorneys' fees.

On July 21, 2016, the plaintiffs moved to certify their class. However, the court granted a stipulated motion to stay the case until after the 2016 presidential election. The case was restored to active docket on November 7, 2016.

In January 2017, the court issued an order certifying the class. 2017 WL 1397749. 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 8 U.S.C. § 1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in 8 U.S.C. § 1158(a)(2)(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 8 U.S.C. § 1158(a)(2)(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.

The day after class certification, the defendants moved to dismiss, arguing that the plaintiffs lacked standing and that the court lacked subject matter jurisdiction. The court denied the motion in March 2017. 2017 WL 1153856.

On October 30, 2017, the plaintiffs moved for summary judgment. The defendants opposed the motion, arguing that the court lacked jurisdiction and that neither Congress nor the Constitution required the notice that the plaintiffs were seeking. The court disagreed, and granted summary judgment for the plaintiffs. On March 29, 2018, the court found that Congress, in adopting the one-year application deadline, expressed concern about foreclosing legitimate claims and intended to monitor administration of the deadline to make sure it was implemented fairly. Failure to provide notice to class members, then, violated Congressional intent. The court also found that the defendants had not taken steps that were “reasonably calculated” to provide notice to class members and that consequently, it had not met its procedural due process obligations.

The defendants appealed the decision to the Ninth Circuit on May 25, 2018. According to the American Immigration Council, the parties agreed to a joint interim stay agreement that requires the Executive Office for Immigration Review and USCIS to treat as timely all pending and newly filed asylum applications adjudicated during the stay that are filed by class members without final orders of removal. See the Council's website for additional information.

Since the defendants filed the appeal, the parties have been participating the Ninth Circuit's mediation program which facilitates settlement. As of this writing, this process is ongoing.

Alexandra Gilewicz - 10/16/2018
Peter Harding - 11/18/2019


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