Grace v. William Barr ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2019 Decided July 17, 2020
No. 19-5013
GRACE, ET AL.,
APPELLEES
v.
WILLIAM P. BARR, ATTORNEY GENERAL OF THE UNITED
STATES, IN HIS OFFICIAL CAPACITY, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01853)
Erez Reuveni, Assistant Director, U.S. Department of
Justice, argued the cause for appellants. With him on the briefs
were Susan Bennett Green, Senior Litigation Counsel, and
Christina P. Greer, Trial Attorney.
Michael M. Hethmon was on the brief for amicus curiae
Immigration Reform Law Institute in support of defendants-
appellants.
Cody Wofsy argued the cause for appellees. With him on
the brief were Jennifer Chang Newell, Katrina Eiland, Julie
Veroff, Judy Rabinovitz, Omar C. Jadwat, Celso J. Perez,
Eunice Lee, Karen Musalo, Anne Dutton, Blaine Bookey,
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Sandra S. Park, Scott Michelman, Arthur B. Spitzer, and
Thomas Buser-Clancy.
Karl A. Racine, Attorney General, Office of the Attorney
General for the District of Columbia, Loren L. AliKhan,
Solicitor General, Caroline S. Van Zile, Deputy Solicitor
General, and Lewis T. Preston, Assistant Attorney General,
were on the brief for amici curiae The District of Columbia, et
al. in support of appellees.
Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.
Frazelle were on the brief for amici curiae Current Members
of Congress and Bipartisan Former Members of Congress in
support of plaintiffs-appellees.
Paul M. Thompson, Julie Carpenter, and Richard
Caldarone were on the brief for amici curiae The Tahirih
Justice Center, et al. in support of appellees and affirmance.
Derek T. Ho was on the brief for amici curiae
Administrative Law Professors in support of plaintiffs-
appellees.
Thomas K. Ragland was on the brief for amici curiae
Immigration Law Professors in support of plaintiffs-appellees.
Alexander J. Kasner was on the brief for amicus curiae
United Nations High Commissioner for Refugees in support of
plaintiffs-appellees.
Before: HENDERSON, TATEL, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
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Dissenting opinion filed by Circuit Judge HENDERSON.
TATEL, Circuit Judge: Twelve asylum seekers challenge a
host of executive-branch policies adopted to implement the
expedited-removal provisions of the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), Pub. L.
No. 104-208, 110 Stat. 3009-546 (codified as amended in
scattered sections of 8 U.S.C.). Broadly speaking, the
challenged policies concern how asylum officers determine
whether an alien has demonstrated a “credible fear” of
persecution, a threshold showing that permits an alien who
would otherwise be immediately deported to seek asylum in the
United States. The asylum seekers principally argue that the
policies raise the bar for demonstrating a credible fear of
persecution far above what Congress intended and that the
Attorney General and various agencies violated the
Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq.,
by failing to adequately address important factors bearing on
the policies’ adoption. Largely on these grounds, the district
court found the policies inconsistent with IIRIRA, the
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et
seq., and the APA, and enjoined their enforcement. For the
reasons set forth in this opinion, we affirm in part and reverse
in part.
In IIRIRA, Congress established a comprehensive scheme
for distinguishing between aliens with potentially valid asylum
claims and those “‘who indisputably have no authorization to
be admitted [to the United States].’” American Immigration
Lawyers Ass’n v. Reno, 199 F.3d 1352, 1355 (D.C. Cir. 2000)
(quoting H.R. Rep. 104-828, 209 (1996) (Conf. Rep.)). Under
IIRIRA, which amended the INA, newly-arrived aliens who
lack valid authorization to enter the United States but express
an “intention to apply for asylum,” or indicate to immigration
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officers that they “fear persecution” if returned to their home
countries, must be interviewed by trained asylum officers. 8
U.S.C. § 1225(b)(1)(A)(i)–(ii), (b)(1)(E). Such officers are
employees of the United States Citizenship and Immigration
Service (USCIS), an agency of the Department of Homeland
Security (DHS). Asylum officers determine, in a
“nonadversarial” interview, whether an alien’s “fear of
persecution” is “credible.” 8 C.F.R. § 208.30(d)–(e).
The stakes are high. An alien found to have a credible fear
of persecution receives a full-blown asylum hearing before an
immigration judge, an employee of the Department of Justice
(DOJ), and has a right to review by the Board of Immigration
Appeals—also housed within DOJ—and then the appropriate
circuit court of appeals. See DHS v. Thuraissigiam, 140 S. Ct.
1959, 1965 (2020) (“If the asylum officer finds an applicant’s
asserted fear to be credible, the applicant will receive ‘full
consideration’ of his asylum claim in a standard removal
hearing.” (quoting 8 C.F.R. § 208.30(f))); see also 8 U.S.C.
§ 1225(b)(1)(B)(ii). An alien who receives a negative credible-
fear determination may also seek review by an immigration
judge, but if that judge affirms the negative finding, then “the
asylum officer shall order the alien removed from the United
States without further hearing or review.” 8 U.S.C.
§ 1225(b)(1)(B)(iii)(I), (III); see also 8 C.F.R. § 1208.30(g).
Aliens removed through this “highly expedited” process,
which “is meant to conclude within 24 hours,” Make the Road
New York v. Wolf, No. 19-5298, 2020 WL 3421904, at *2 (June
23, 2020), are ineligible for admission to the United States for
a period of five years, 8 U.S.C. § 1182(a)(9)(A)(i).
This case concerns the credible-fear interview. At this
“screening” stage, “[t]he applicant need not show that he or she
is in fact eligible for asylum.” Thuraissigiam, 140 S. Ct. at
1965. Instead, IIRIRA defines “[c]redible fear of persecution”
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as “a significant possibility, taking into account the credibility
of the statements made by the alien in support of the alien’s
claim and such other facts as are known to the officer, that the
alien could establish eligibility for asylum under [8 U.S.C.]
section 1158.” 8 U.S.C. § 1225(b)(1)(B)(v). Under section
1158, an alien must demonstrate two things: first, “refugee”
status, id. § 1158(b)(1)(B)(i), that is, either past persecution, or
a “well-founded fear” of future persecution, “on account of”
one or more of five statutorily-provided grounds—“race,
religion, nationality, membership in a particular social group,
or political opinion,” id. § 1101(a)(42)(A); and second, that the
ground “was or will be at least one central reason” for the
persecution, id. § 1158(b)(1)(B)(i). Put differently, to gain
asylum, the alien must prove that the alleged harm has a nexus
to one of the enumerated grounds—in this case, “membership
in a particular social group.”
The INA nowhere defines “particular social group.” But in
a line of decisions beginning with Matter of Acosta, 19 I. & N.
Dec. 211 (BIA 1985), the Board has long defined the term to
mean “a group of persons all of whom share a common,
immutable characteristic,” one they “either cannot change, or
should not be required to change because it is fundamental to
their individual identities or consciences.” Id. at 233; see also
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230–31 (BIA 2014)
(same); In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996)
(same). This basic definition is well-accepted by the courts.
See, e.g., S.E.R.L. v. Attorney General, 894 F.3d 535, 545–49
(3d Cir. 2018) (describing the Board’s efforts to refine Acosta’s
core framework); Reyes v. Lynch, 842 F.3d 1125, 1134 (9th
Cir. 2016) (same). As the Seventh Circuit has explained, “if the
‘members’ have no common characteristics they can’t
constitute a group, and if they can change [their common]
characteristics—that is, cease to belong to the group—without
significant hardship, they should be required to do so rather
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than be allowed to resettle in [the United States] if they do not
meet the ordinary criteria for immigration to this country.”
Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009).
Significantly for this case, moreover, a social group must exist
independently of the harm suffered by the asylum applicant,
i.e., “the persecution cannot be what defines the contours of the
group.” Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005).
For this reason, the Board has “resist[ed] efforts to classify
people who are targets of persecution as members of a
particular social group when they have little or nothing in
common beyond being targets.” Gatimi, 578 F.3d at 616. The
parties refer to this principle as the circularity rule.
Narrowing our focus even further, the agency action at
issue in this case addresses persecution by non-governmental
actors, like gangs and spouses. Under longstanding
administrative and judicial precedent, the term “persecution,”
undefined in the INA, encompasses harm inflicted by non-state
actors. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1060 (9th Cir. 2017) (en banc) (explaining that “[t]he concept
of persecution by non-state actors is ‘inherent’ in . . . the
Refugee Act,” which amended the INA); Deborah Anker, Law
of Asylum in the United States § 4:10 (2019 ed.) (“In U.S. law,
recognition of the non-state actor doctrine is long-standing,
pre-dating the 1980 incorporation of the international refugee
definition into the [INA].”). In order to obtain asylum based on
persecution by non-state actors, applicants must show that their
governments were “unable or unwilling to control” the
persecutors. See, e.g., Bringas-Rodriguez, 850 F.3d at 1062–68
(collecting cases applying the “unable or unwilling” standard).
This case traces its roots to the asylum petition of an El
Salvadoran mother, A.B., who entered the United States
unlawfully and claimed that she suffered persecution on
account of her membership in the “purported particular social
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group of El Salvadoran women who are unable to leave their
domestic relationships where they have children in common
with their partners.” Matter of A-B-, 27 I. & N. Dec. 316, 321
(2018) (internal quotation marks omitted). In support, A.B.
produced evidence that “her ex-husband, with whom she
share[d] three children, repeatedly abused her physically,
emotionally, and sexually during and after their marriage.” Id.
An immigration judge denied A.B.’s asylum application, but
the Board reversed, finding that A.B.’s social group was
“substantially similar” to the group “married women in
Guatemala who are unable to leave their relationship”—a
group it had approved in an earlier case, Matter of A-R-C-G-,
26 I. & N. Dec. 388 (BIA 2014). A-B-, 27 I. & N. Dec. at 321.
(internal quotation marks omitted). The Board also found “that
the El Salvadoran government was unwilling or unable to
protect [A.B.]” from abuse and thus concluded that she
satisfied the requirements for asylum. Id.
Pursuant to DOJ regulations, the Attorney General, then
Jefferson Sessions, “direct[ed] the Board to refer” A.B.’s case
to him for review, 8 C.F.R. § 1003.1(h)(1)(i), and sought
briefing on the question “whether, and under what
circumstances, being a victim of private criminal activity
constitutes a cognizable ‘particular social group’ for purposes
of an application for asylum or withholding of removal,” A-B-,
27 I. & N. Dec. at 317. He then vacated the Board’s decision
finding that A.B. had met the statutory definition of “refugee”
and overruled A-R-C-G-, 26 I. & N. Dec. 388, the decision on
which the Board had relied in granting A.B.’s asylum
application. See A-B-, 27 I. & N. Dec. at 317.
In his opinion, the Attorney General first reviewed the
Board’s social-group caselaw, explaining that applicants
seeking asylum based on particular social group membership
must establish “that [the group] exists independently of the
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alleged . . . harm[] [and] demonstrate that their persecutors
harmed them on account of their membership in that group
rather than for personal reasons.” Id. He then cautioned:
Generally, claims by aliens pertaining to
domestic violence or gang violence perpetrated
by non-governmental actors will not qualify for
asylum. While I do not decide that violence
inflicted by non-governmental actors may never
serve as the basis for an asylum or withholding
application based on membership in a particular
social group, in practice such claims are
unlikely to satisfy the statutory grounds for
proving group persecution that the government
is unable or unwilling to address.
Id. at 320 (footnote omitted). “Accordingly,” he added, “few
such claims would satisfy the legal standard to determine
whether an alien has a credible fear of persecution,” citing the
IIRIRA provision that governs credible-fear interviews. Id. at
320 n.1 (citing 8 U.S.C. § 1225(b)(1)(B)(v)). The Attorney
General also reiterated that asylum seekers alleging non-state-
actor persecution must show that their governments are “unable
or unwilling to prevent” the persecution. Id. at 338. He added,
however, that such applicants “must show that the government
condoned the private actions or at least demonstrated a
complete helplessness to protect the victims.” Id. at 337
(internal quotation marks omitted).
USCIS then issued a policy memorandum to provide
guidance to asylum officers “for determining whether a
petitioner is eligible for asylum . . . status in light of the
Attorney General’s decision in Matter of A-B-.” USCIS,
Guidance for Processing Reasonable Fear, Credible Fear,
Asylum, and Refugee Claims in Accordance with Matter of
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A-B- 1, PM-602-0162 (July 11, 2018), Joint Appendix (J.A.)
353 (“Guidance”). In addition to summarizing and restating
A-B-, especially its discussion of asylum claims based on
persecution by non-state actors on account of an applicant’s
membership in a particular social group, the Guidance
announced that, in making credible-fear determinations,
officers should apply the law of “the circuit where the alien is
physically located during the credible fear interview.” Id. at 9,
J.A. 361. Until then, USCIS had generally applied the circuit
law most favorable to applicants. We shall have much more to
say about this later.
With this background in mind, we turn to the facts of this
particular case. Twelve asylum seekers challenged both
A-B- and the Guidance in the district court, alleging that several
of the policies announced by the Attorney General and USCIS
violate the INA, the APA, and the U.S. Constitution. Compl.
¶¶ 6–11. The asylum seekers, most from Central America, all
testified to asylum officers that they suffered, or faced threats
of, sexual abuse or physical violence at the hands of romantic
partners or gangs. Id. ¶¶ 15–23. Cindy Ardon Mejia, for
example, testified that she “fled her home in Central America
with her young daughter . . . after suffering . . . rape, physical
beatings, and shootings carried out by her daughter’s father and
members of his gang” and that she “repeatedly sought police
protection” in her home country but never received it. Id. ¶ 23.
An asylum officer nonetheless found that Ardon Mejia had
failed to demonstrate a significant possibility that she would
qualify for asylum—that is, that she lacked a “credible fear of
persecution”—and after an immigration judge agreed, she was
removed to her home country. Id. The other asylum seekers
alleged similar experiences. Although asylum officers found
each asylum seeker credible, all were nonetheless ordered
removed from the United States.
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In their lawsuit, the asylum seekers challenged four
specific policies: (1) the condoned-or-completely helpless
standard for non-state persecution claims; (2) the requirement
that officers apply the law of the circuit where the credible-fear
interview occurs; (3) the standard for analyzing claims of
persecution “on account of . . . membership in a particular
social group,” 8 U.S.C. § 1101(a)(42)(A); and (4) the Attorney
General’s statement, repeated by USCIS in the Guidance, that
“generally, claims by aliens pertaining to domestic violence or
gang violence perpetrated by non-governmental actors will not
qualify for asylum,” A-B-, 27 I. & N. Dec. at 320.
The district court began by finding that it had jurisdiction
to review both A-B- and the Guidance. It then ruled that three
of the policies—the non-state actor standard, the choice-of-law
policy, and the “categorical ban” on domestic- and gang-
violence claims—are contrary to law and arbitrary and
capricious. See Grace v. Whitaker, 344 F. Supp. 3d 96, 126,
146 (D.D.C. 2018). It also found the Guidance’s directive
regarding how asylum officers should analyze claims of
persecution “on account of . . . membership in a particular
social group” arbitrary and capricious on the ground that it
departed from agency policy without explanation. Id. at 132–
33. The court granted summary judgment in the asylum
seekers’ favor, declared the four policies unlawful, vacated
them, and permanently enjoined defendants—the Attorney
General, the DHS Secretary, the USCIS Director, and the
Director of the Executive Office for Immigration Appeals—
and their agents from applying them in credible-fear
proceedings. See Order, Grace v. Whitaker, No. 18-cv-1853
(D.D.C. June 3, 2019). The court never reached the asylum
seekers’ constitutional claims, Grace, 344 F. Supp. 3d at 141
n.27, and they do not press them here. The government now
appeals. Our review is de novo. See Aamer v. Obama, 742 F.3d
1023, 1028 (D.C. Cir. 2014) (reviewing the district court’s
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subject-matter jurisdiction ruling de novo); Purepac
Pharmaceutical Co. v. Thompson, 354 F.3d 877, 883 (D.C. Cir.
2004) (“Because the district court entered a summary
judgment, we review its decision de novo and therefore, in
effect, review directly the decision of the agency.” (alteration
omitted)).
We start with the government’s argument that 8 U.S.C.
§ 1252, titled “[j]udicial review of orders of removal,” barred
the district court from considering the asylum seekers’
challenges to A-B- and the Guidance.
As our court recently explained, although much of section
1252 “limits and channels judicial relief directly into the
federal appellate courts or habeas corpus proceedings,”
subsection (e)(3) expressly “provide[s] in the expedited
removal context for more traditional judicial review of
‘challenges on validity of the system,’” Make the Road, 2020
WL 3421904, at *6 (quoting 8 U.S.C. § 1252(e)(3)), including
agency policies governing credible-fear interviews. As relevant
here, that provision states:
Judicial review of determinations under section
1225(b) [governing expedited removal] of this
title and its implementation is available in an
action instituted in the United States District
Court for the District of Columbia, but shall be
limited to determinations of . . . whether such a
regulation, or a written policy directive, written
policy guideline, or written procedure issued by
or under the authority of the Attorney General
to implement such section, is not consistent
with applicable provisions of this subchapter or
is otherwise in violation of law.
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8 U.S.C. § 1252(e)(3)(A)(ii). Any such action “must be filed
no later than 60 days after the date the
challenged . . . regulation, directive, guideline, or
procedure . . . is first implemented.” Id. § 1252(e)(3)(B).
The parties agree that the reference to the Attorney General
includes the DHS Secretary. And because the asylum seekers
challenged A-B- and the Guidance within the sixty-day period,
the only question before us is whether the Guidance and A-B-
qualify as “regulation[s], . . . written policy directive[s],
written policy guideline[s], or written procedure[s]
issued . . . to implement . . . section [1225(b)].” Id.
§ 1252(e)(3)(A)(ii). They do.
A. The Guidance
Using language mirroring section 1252(e)(3), the
Guidance describes itself as a “policy memorandum” that
“provides guidance” to USCIS officers. Guidance 1, J.A. 353
(emphasis added). And citing section 1225, the provision
governing expedited removal, the Guidance instructs “all
USCIS employees” on how to apply A-B- “consistent[ly]”
throughout several types of proceedings, including “credible
fear . . . adjudications.” Id. In its brief, moreover, the
government explains that the Guidance “alerts USCIS officers
to new binding precedent and tells them how to operationalize
that precedent in various contexts, including expedited
removal.” Appellants’ Br. 31. As described by both USCIS in
the Guidance and the government in its brief, then, the
Guidance qualifies as a “written policy directive” or
“guideline” that “implement[s]” section 1225(b). 8 U.S.C.
§ 1252(e)(3)(A)(ii).
The government nonetheless insists that the Guidance falls
outside section 1252(e)(3)’s scope because it “implement[s]
A-B-, which in turn[] implements [section 1158]” and “thus
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does not implement section 1225(b)(1).” Appellants’ Br. 31
(internal quotation marks omitted); see also Dissenting Op. at
16–17. As the government sees it, section 1158 addresses the
“substantive content of asylum law,” whereas section 1225(b)
establishes procedures for implementing the expedited-
removal system. Appellants’ Br. 25 (emphasis omitted). So
according to the government, the Guidance “implements”
section 1158’s substantive asylum standards, not section
1225(b)’s expedited-removal system.
This substance-procedure distinction finds no support in
the statute’s text. Section 1225(b) expressly links the credible-
fear standard to the statutory requirements for asylum by
defining “credible fear” as “a significant possibility . . . that the
alien could establish eligibility for asylum under section 1158.”
8 U.S.C. § 1225(b)(1)(B)(v) (emphasis added). To be sure,
section 1225(b) requires immigration officials to follow several
procedural steps, but the credible-fear definition itself
encompasses the substantive requirement that an alien
demonstrate a “significant possibility” of asylum eligibility. Id.
The government also argues that the asylum seekers’ suit
is barred by section 1252(a)(2)(A)(iii), which withdraws
district-court jurisdiction over “‘the application of’ section
1225(b)(1) ‘to individual aliens, including the determination
made under section 1225(b)(1)(B).’” Appellants’ Br. 30
(quoting 8 U.S.C. § 1252(a)(2)(A)(iii)); see also Dissenting
Op. at 11–16. That provision, however, forbids review of
individual aliens’ credible-fear determinations, not suits like
this that challenge credible-fear policies on their face. See
Make the Road, 2020 WL 3421904, at *8 n.7 (“Romanette (iii)
applies specifically to a challenge to the ‘application’ of the
expedited removal process to an ‘individual[,]’ . . . who must
funnel [a] challenge[] to [a] final order[] of removal into habeas
corpus review rather than through Section 1252(e).” (quoting 8
14
U.S.C. § 1252(a)(2)(A)(iii))). Nothing in the asylum seekers’
complaint required the district court to examine how USCIS
officers “appl[ied]” the challenged policies “to individual
aliens.” 8 U.S.C. § 1252(a)(2)(A)(iii).
The Supreme Court reached a similar conclusion in
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991),
which involved a virtually identical INA provision that
prohibited “‘judicial review of a determination respecting an
application for adjustment of status.’” Id. at 491 (quoting 8
U.S.C. § 1160(e)(1)). Observing that “[t]he critical
words . . . describe the provision as referring only to review ‘of
a determination respecting an application,’” the Court
explained that “‘a determination’ describes a single act rather
than a group of decisions or a practice or procedure employed
in making decisions.” Id. at 491–92 (emphasis in original)
(quoting 8 U.S.C. § 1160(e)(1)). Such language, the Court
continued, “describ[es] the process of direct review of
individual denials . . . , rather than . . . referring to general
collateral challenges to . . . practices and policies used by the
agency.” Id. at 492. So too here. Section 1252(a)(2)(A)(iii)’s
“critical words”—“the application” of section 1225(b)(1) and
“the” credible-fear “determination”—“describe[] a single act
rather than a group of decisions or a . . . procedure employed
in making decisions,” id. They thus refer to direct review of
individual aliens’ negative credible-fear determinations, not to
facial challenges to the written policies that govern those
determinations.
As the asylum seekers point out, the government’s view of
section 1252(a)(2)(A)(iii) could leave no one able to challenge
the policies at issue in this suit. Although the dissent thinks this
is irrelevant, see Dissenting Op. at 16, we view it as further
evidence that our interpretation best “comports with our
obligation to interpret the statute’s provisions”—here, section
15
1252(a)(2)(A)(iii) and section 1252(e)(3)—“in harmony with
each other,” James Madison Limited by Hecht v. Ludwig, 82
F.3d 1085, 1093 (D.C. Cir. 1996). Our reading gives full effect
to the two provisions, which are best understood to address
different matters: section 1252(a)(2)(A)(iii) restricts judicial
authority to review how immigration officials apply credible-
fear policies in individual cases, while section 1252(e)(3)
preserves judicial authority over challenges to the underlying
policies themselves. By contrast, the dissent’s reading would
“impute to Congress a purpose to paralyze with one hand what
it sought to promote with the other.” Clark v. Uebersee Finanz-
Korporation, 332 U.S. 480, 489 (1947).
The dissent insists that “the standard petition for review
procedure” offers “an alternative avenue for judicial review of
Matter of A-B- and the Guidance.” Dissenting Op. at 15 n.7
(referring to Hobbs Act review of a removal order issued after
full consideration of an asylum claim in a standard removal
hearing). Not quite. Two of the policies the asylum seekers
challenge appear only in the Guidance, and, as best we can tell,
are unreviewable through the standard petition-for-review
procedure. The first, the choice-of-law policy, applies only at
the credible-fear stage, so any aliens eligible to file petitions
for review will have suffered no injury from it; they either
received positive credible-fear determinations or were not
subject to the policy at all. The second, the circularity rule, also
applies in interviews conducted by USCIS asylum officers in
connection with affirmative asylum applications. See 8 C.F.R.
§ 208.9(a) (stating that USCIS “shall adjudicate” affirmative
asylum applications); Guidance 1, J.A. 353 (“[The Guidance]
applies to and shall be used to guide determinations by all
USCIS employees.”). Like aliens found to lack credible fear,
however, aliens denied asylum by USCIS officers after
affirmative-application interviews generally cannot obtain
judicial review of that decision. See Anker, supra, app. A
16
§ A2:39 (“No appeal beyond USCIS is available to applicants
whose affirmative asylum applications have been
denied . . . .”); Dhakal v. Sessions, 895 F.3d 532, 540 (7th Cir.
2018) (describing the affirmative asylum process and
concluding that denial by an asylum officer is non-final). Given
this, we are unconvinced that the petition-for-review procedure
provides an “alternative avenue” for review of the Guidance.
The dissent also contends that courts interpreting section
1252 have “adopted” a “consistent understanding of ‘review’”
that “necessarily means that the plaintiffs ask for ‘review’ of
their credible fear determinations.” Dissenting Op. at 13 n.6.
But the cases the dissent cites in support of this claim mention
neither credible-fear interviews nor expedited removal, so
those courts had no need to harmonize the provisions at issue
with section 1252(e)(3). For example, in Zhu v. Gonzalez, 411
F.3d 292 (D.C. Cir. 2005), we found judicial review barred by
section 1252(a)(2)(B)(ii), which withdraws jurisdiction over
challenges to “any . . . decision or action of the Attorney
General or the Secretary of Homeland Security the authority
for which is specified under this subchapter to be in [their]
discretion,” 8 U.S.C. § 1252(a)(2)(B)(ii). We have since held,
however, that even where a decision is committed to the
Secretary’s discretion by law—in which case section
1252(a)(2)(B)(ii), read in isolation, would appear to prohibit
judicial review—section 1252(e)(3) operates to preserve
district-court jurisdiction so long as the challenged decision
implements section 1225(b). See Make the Road, 2020 WL
3421904, at *11 (“[W]hatever [section 1252(a)(2)(B)]’s
jurisdictional bar covers, it is not the type of challenges to the
Secretary’s . . . policies[] and directives specifically
implementing the expedited removal scheme for which Section
1252(e) expressly grants jurisdiction.”). The same logic
requires that we read section 1252(a)(2)(A)(iii)’s jurisdictional
bar in tandem with section 1252(e)(3). That is, even if, as the
17
dissent argues, section 1252(a)(2)(A)(iii), read in isolation,
could reasonably be understood to withdraw jurisdiction over
the asylum seekers’ claims—and, to be clear, we do not think
it can, see supra at 13–14 (citing Make the Road, 2020 WL
3421904, at *8 n.7, and McNary, 498 U.S. at 491–92)—section
1252(e)(3) decisively refutes that understanding.
Changing tack, the government argues that the district
court’s “sweeping nationwide injunction . . . underscores the
serious error in [its] exercise of jurisdiction to begin with.”
Appellants’ Br. 32. But the government concedes that the
district court has authority to “[declare] any reviewable action
unlawful and set it aside.” Reply Br. 9. Given this, whether the
district court had authority to enter an injunction has no bearing
on its jurisdiction to review the Guidance since, as the
government acknowledges, the court had authority to order
other relief. See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019)
(plurality opinion) (explaining that “[w]hether the [district]
court had jurisdiction to enter . . . a[] [classwide] injunction is
irrelevant because [it] had jurisdiction to entertain the
plaintiffs’ request for declaratory relief”); Make the Road, 2020
WL 3421904, at *15 (same).
We thus see no jurisdictional obstacle to the district court’s
review of the choice-of-law policy and the circularity rule, as
they appear only in the Guidance. But the other two challenged
policies—the condoned-or-completely-helpless standard and
the Attorney General’s statement regarding domestic and gang
violence claims—are contained in both the Guidance and A-B-,
meaning that we must address the district court’s jurisdiction
to review the latter.
B. A-B-
Recall that section 1252(e)(3) authorizes review of
“a . . . written policy directive, written policy guideline, or
18
written procedure issued by or under the authority of the
Attorney General to implement [section 1225(b)].” 8 U.S.C.
§ 1252(e)(3)(A)(ii). In our view, A-B- falls within this section’s
scope.
To begin with, the decision expressly references the
credible-fear standard and asylum officers’ role in
implementing the expedited-removal system. It declares that
“[w]hen confronted with asylum cases based on purported
membership in a particular social group . . . asylum officers
must analyze the requirements as set forth in this opinion,
which restates and where appropriate, elaborates upon, the
requirements [for asylum].” A-B-, 27 I. & N. Dec. at 319
(emphasis added). It also states that “few [domestic violence
and gang violence] claims would satisfy the legal standard to
determine whether an alien has a credible fear of persecution,”
citing the statutory provision governing credible-fear
interviews. Id. at 320 n.1 (citing 8 U.S.C. § 1225(b)(1)(B)(v)).
The decision’s overarching purpose, moreover, is to interpret
section 1158’s phrase “membership in a particular social
group,” which Congress incorporated into section 1225(b) by
defining “credible fear of persecution” as “a significant
possibility . . . that the alien could establish eligibility for
asylum under section 1158.” 8 U.S.C. § 1225(b)(1)(B)(v). In
short, like the Guidance, A-B- qualifies as a “written policy
directive” or “written policy guideline” “issued by . . . the
Attorney General to implement [section 1225(b)].” Id.
§ 1252(e)(3)(A)(ii).
Arguing to the contrary, the government points out that
A-B- “was an adjudication in full removal proceedings under
8 U.S.C. § 1229a.” Appellants’ Br. 24; see also Dissenting Op.
at 17. True enough, but we have often recognized that agencies
can and do announce new policies in adjudications. See, e.g.,
POM Wonderful, LLC v. FTC, 777 F.3d 478, 497 (D.C. Cir.
19
2015) (noting that agencies may “announc[e] new principles in
an adjudicative proceeding” (internal quotation marks
omitted)). Were this sufficient to remove the decision from
section 1252(e)(3)’s scope, moreover, then the Attorney
General could immunize credible-fear policies from judicial
review by simply announcing them in section 1229a
adjudications. Such a result would conflict with section
1252(e)(3)’s purpose: to authorize, as its title makes clear,
“[c]hallenges on [the] validity of the [expedited-removal]
system.” 8 U.S.C. § 1252(e)(3); see also Make the Road, 2020
WL 3421904, at *6 (“[A]t every turn, [section 1252] expressly
preserve[s] jurisdiction over . . . claims of legal or
constitutional error in . . . rules implementing expedited
removal.”).
The dissent offers an additional argument based on section
1252’s structure. According to the dissent, “if section
[1252(e)(3)] grants our district court jurisdiction to review
[A-B-] . . . , it follows from the parallel language of sections
1252(e)(3)(A)(ii) and 1252(a)(2)(A)(iv) that the latter
provision bars a court of appeals from reviewing any
adjudicatory decision by the Attorney General or the BIA that
touches on asylum.” Dissenting Op. at 19. We respectfully
disagree. Section 1252(a)(2)(A)(iv), which provides that
“except as provided in subsection (e),” “no court shall have
jurisdiction to review . . . procedures and policies adopted by
the Attorney General to implement the provisions of section
1225(b)(1),” channels facial challenges to expedited-removal
policies to the district court for the District of Columbia.
8 U.S.C. § 1252(a)(2)(A)(iv); see also id. § 1252(e)(3).
Contrary to the dissent, however, that provision leaves open the
possibility that some such “procedures and policies” might be
“adopted by the Attorney General” to “implement . . . section
1225(b)(1)” and also for other purposes, meaning that the
policies could simultaneously be challenged in the district court
20
for the District of Columbia pursuant to section 1252(e)(3) and
also through a petition for review of a BIA decision. Indeed,
review of A-B- has proceeded on precisely such parallel tracks,
with the Fifth Circuit noting that “[t]he Grace [district] court’s
order does not prevent us from reviewing A-B- in order to rule
on [a] petition for review” because “the court vacated A-B- and
the [Guidance] as they pertain to credible-fear claims in
expedited removal proceedings only.” Gonzales-Veliz v. Barr,
938 F.3d 219, 228 (5th Cir. 2019); see also De Pena-Paniagua
v. Barr, 957 F.3d 88, 93 (1st Cir. 2020) (considering challenge
to A-B- on petition for review from a final order of removal).
Another point bears mention. We do not hold today that a
plaintiff may seek review of every BIA or Attorney General
decision regarding asylum. Far from it, we hold only that the
district court had jurisdiction to review this Guidance and that
such jurisdiction extended to A-B- to the extent the Guidance
incorporates A-B-.
Finally, even were section 1252 “reasonably susceptible to
divergent interpretation,” circuit precedent requires that we
“adopt the reading that accords with traditional understandings
and basic principles: that executive determinations generally
are subject to judicial review.” Make the Road, 2020 WL
3421904, at *6 (internal quotation marks omitted); see also id.
at *5–6 (expressly rejecting the argument that this “strong
presumption” is inapplicable to section 1252 (internal
quotation marks omitted)). Applying that presumption here
would “dispel[]” “[a]ny lingering doubt about the proper
interpretation of” section 1252. Kucana v. Holder, 558 U.S.
233, 251 (2010). Having assured ourselves of the district
court’s jurisdiction, and accordingly our own, we turn to the
merits. See Make the Road, 2020 WL 3421904, at *5 (noting
appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) where
8 U.S.C. § 1252(e)(3) preserved district court’s federal-
21
question jurisdiction over APA challenge to Secretary’s
memorandum).
As both sides acknowledge, it is “well settled that
principles of Chevron deference are applicable” to the Attorney
General’s interpretation of the INA. Negusie v. Holder, 555
U.S. 511, 516 (2009) (internal quotation marks omitted).
Accordingly, to the extent the challenged policies represent the
Attorney General’s interpretations of that statute, we ask
“whether Congress has directly spoken to the precise question
at issue.” Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984). “If the intent of
Congress is clear, that is the end of the matter; for [we], as well
as the [Attorney General], must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43.
For those policies that are “not . . . interpretation[s] of any
statutory language,” however, “the more apt analytic
framework . . . is standard ‘arbitrary [or] capricious’ review
under the APA.” Judulang v. Holder, 565 U.S. 42, 52 n.7
(2011) (alterations in original). “Under this narrow standard of
review, a court is not to substitute its judgment for that of the
agency, but instead to assess only whether the decision was
based on a consideration of the relevant factors and whether
there has been a clear error of judgment.” DHS v. Regents of
the University of California, 140 S. Ct. 1891, 1905 (2020)
(internal quotation marks omitted) (citation omitted). “That
task involves examining the reasons for agency decisions—or,
as the case may be, the absence of such reasons.” Judulang,
565 U.S. at 53.
22
A. Condoned or Completely Helpless
Citing A-B-, the Guidance instructs officers that “[i]n cases
where the persecutor is a non-government actor, the applicant
must show the harm or suffering was inflicted by persons or an
organization that his or her home government is unwilling or
unable to control, such that the government either ‘condoned
the behavior or demonstrated a complete helplessness to
protect the victim.’” Guidance 2, J.A. 354 (quoting A-B-, 27
I. & N. Dec. at 337). The asylum seekers argue that the term
“persecution,” 8 U.S.C. § 1101(a)(42)(A), incorporates the
unwilling-or-unable standard for asylum claims involving non-
governmental persecutors and thus precludes use of the more
demanding condoned-or-completely-helpless standard adopted
by A-B- and the Guidance. To prevail on this claim, the asylum
seekers must show that the unwilling-or-unable standard is so
“unambiguously expressed” in the statute that “we must
impose it upon the agency initially responsible for interpreting
the statute, despite the deference otherwise accorded under
Chevron.” Fort Stewart School v. FLRA, 495 U.S. 641, 647
(1990). This they have failed to do.
The INA nowhere defines the term “persecution,” let alone
addresses the standards for government conduct, and nothing
in the statute otherwise speaks directly “to the precise question
at issue,” Chevron, 467 U.S. at 842—the level of government
culpability required to qualify for asylum. The asylum seekers
insist that the statute’s silence makes no difference because
“[the unwilling-or-unable] standard has been a settled
construction of the term ‘persecution’ since before Congress
established the modern asylum system in 1980,” i.e., the year
it enacted the Refugee Act, the source of section
1101(a)(42)(A). Appellees’ Br. 40. In support, they make two
arguments, neither of which is persuasive.
23
They first rely on a handbook issued by the United Nations
High Commissioner for Refugees, which states that
“persecution” includes harm by non-governmental actors
“if . . . knowingly tolerated by the authorities, or if the
authorities refuse, or prove unable, to offer effective
protection.” U.N. High Commissioner for Refugees, Handbook
on Procedures and Criteria for Determining Refugee Status
¶ 65 (1979) (“Handbook”). Urging us to import the
Handbook’s standard into the statute, the asylum seekers cite
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), in which the
Supreme Court relied on the Handbook as evidence of the
meaning of the phrase “well-founded fear of persecution.” See
id. at 438–39 (“In interpreting . . . ‘refugee’ [in the United
Nations Protocol Relating to the Status of Refugees] we are
further guided by the analysis set forth in the [Handbook].”).
There, however, the Court used the Handbook to “confirm[]”
“the message conveyed by the plain language of the Act.” Id.
at 432 (emphasis added). In this case, the asylum seekers ask
us to do the opposite—use the Handbook to divine clarity from
ambiguous statutory language, something we cannot do. See
INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (“The U.N.
Handbook may be a useful interpretative aid, but it is not
binding on the Attorney General, the [Board], or United States
courts.”); Cardoza-Fonseca, 480 U.S. at 439 n.22 (“We do not
suggest, of course, that the explanation in the U.N. Handbook
has the force of law or in any way binds the [Immigration and
Naturalization Service] with reference to the asylum provisions
of [8 U.S.C. § 1158(a)].”).
The asylum seekers next argue that “domestic law at the
time of the Refugee Act” had settled the meaning of the term
“persecution” and that “Congress intended to adopt this judicial
and administrative construction.” Appellees’ Br. 43 (internal
quotation marks omitted); see also Grace, 344 F. Supp. 3d at
128 (finding it “clear at the time the Act was passed” that
24
Congress intended to adopt the “unable or unwilling”
standard). But the “domestic law” they cite—a single circuit
court decision and two Board decisions—is far too sparse for
us to conclude that when Congress enacted the Refugee Act, it
“would have surveyed the jurisprudential landscape and
necessarily concluded that the courts had already settled the
question.” Lightfoot v. Cendant Mortgage Corp., 137 S. Ct.
553, 564 (2017); cf. Banister v. Davis, 140 S. Ct. 1698, 1706–
07 (2020) (finding that one Supreme Court decision and
multiple court of appeals decisions established a “legal
backdrop”); Bragdon v. Abbott, 524 U.S. 624, 645 (1998)
(finding statute’s meaning “settled” where Office of Legal
Counsel opinion, twelve judicial decisions, and multiple
federal agencies interpreted term consistently and “[a]ll
indications [we]re that Congress was well aware of th[at]
position” when it incorporated that term into the statute). In any
event, the decisions the asylum seekers cite are themselves
ambiguous regarding the non-government persecutor standard.
See Rosa v. INS, 440 F.2d 100, 102 (1st Cir. 1971) (not
discussing the precise standard for determining when non-
governmental persecutors “[have] sufficient . . . power to carry
out [their] purposes without effective hindrance”); Matter of
Eusaph, 10 I. & N. Dec. 453, 454–55 (BIA 1964) (using the
terms “unable,” “sponsored,” “tolerated,” and “condone”
without distinguishing among them); Matter of Stojkovic, 10 I.
& N. Dec. 281, 287 (BIA 1963) (“not consider[ing]” “whether
intentional physical harm . . . by a riotous mob, acting without
the sanction of the Dominican Government, would amount to
physical persecution”).
Alternatively, the asylum seekers argue that the condoned-
or-completely-helpless standard is arbitrary and capricious.
Specifically, they contend that the Board has historically
required applicants to demonstrate only that their governments
are “unwilling or unable” to protect them, and that the Attorney
25
General and USCIS adopted the new, more demanding
standard “without acknowledging and explaining the change[,]
violat[ing] the rule that ‘[an] agenc[y] may not . . . depart from
a prior policy sub silentio.’” Appellees’ Br. 48 (emphasis
omitted) (quoting American Wild Horse Preservation
Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017)). The
government insists that no change occurred, that is, that the two
standards are identical. The asylum seekers have the better of
the argument.
To begin with, as a matter of plain language, the two
formulations are hardly interchangeable. A government that
“condones” or is “completely helpless” in the face of
persecution is obviously more culpable, or more incompetent,
than one that is simply “unwilling or unable” to protect its
citizens. Take, for example, the facts of a recent First Circuit
decision, where a Mexican man sought asylum after his son
was murdered by individuals he believed to be organized
criminals. Evidence at the applicant’s removal hearing
demonstrated that after the murder, federal police visited “the
scene where [his son’s] body was recovered” and “took
statements from [him] and his wife” and that “an autopsy was
performed.” Rosales Justo v. Sessions, 895 F.3d 154, 159 (1st
Cir. 2018). Although this was sufficient to establish that some
“police took an immediate and active interest in [the
applicant’s] son’s murder,” other evidence—corruption among
state and local police, local residents’ “lack [of] faith” in police,
and high homicide rates—showed that organized criminals
generally operated with impunity within the applicant’s home
state. Id. at 159–60. Under the unwilling-or-unable standard,
the applicant would qualify for asylum because, though the
police investigation demonstrated his home government’s
willingness to intervene, the evidence of criminal impunity
demonstrated its inability to offer him effective protection. See
id. at 167 (concluding that “country condition
26
reports . . . combined with [the applicant’s] testimony about
the particular circumstances of his case[] were sufficient to
support the . . . finding that the police in [the applicant’s home
state] would be unable to protect Rosales from persecution by
organized crime”). By contrast, under the condoned-or-
completely-helpless standard, the applicant’s asylum claim
would fail because his home government, far from condoning
the violence or being completely helpless in response to the
murder, responded to the crime scene, took statements from the
asylum seeker and his wife, and autopsied the body.
The government emphasizes that several courts of appeals,
despite reciting the condoned-or-completely-helpless standard,
never actually required asylum applicants to meet that higher
standard. See, e.g., Hor v. Gonzales, 421 F.3d 497, 502 (7th
Cir. 2005) (finding military’s inability to protect petitioner and
court’s inability to offer relief “strong evidence” that Algerian
government was “incapable” of protecting petitioner); Galina
v. INS, 213 F.3d 955, 958 (7th Cir. 2000) (finding that
petitioner suffered persecution despite some police action in
response to threatening phone calls). The Guidance, however,
instructs asylum officers to follow the Guidance, emphasizing
that it “applies to and shall be used to guide determinations by
all USCIS employees.” Guidance 1, J.A. 353. And the
Guidance requires asylum officers to apply the more
demanding standard:
In a case where the alleged persecutor is not
affiliated with the government, the applicant
must show the government is unable or
unwilling to protect him or her. When the harm
is at the hands of a private actor, the applicant
must show more than the government’s
difficulty controlling the private behavior. The
applicant must show the government condoned
27
the private actions or at least demonstrated a
complete helplessness to protect the victim.
Id. at 6, J.A. 358 (internal citations omitted); see also id. at 10,
J.A. 362 (“Again, the home government must either condone
the behavior or demonstrate a complete helplessness to protect
victims of such alleged persecution.”). To be sure, as the
government points out, the Guidance also includes the
unwilling-or-unable language. See id. at 2, J.A. 354 (explaining
that applicants must show that their home governments were
“unwilling or unable to control [the persecutors], such that the
government either ‘condoned the behavior or demonstrated a
complete helplessness to protect [them]’” (quoting A-B-, 27 I.
& N. Dec. at 337)). But if the government is suggesting that
asylum officers can choose between the two standards, then
“[a]n alien appearing before one official may suffer
deportation; an identically situated alien appearing before
another may gain the right to stay in this country.” Judulang,
565 U.S. at 58. This, the Supreme Court has warned, is
precisely “what the APA’s ‘arbitrary and capricious’ standard
is designed to thwart.” Id. at 59.
In short, contrary to the government’s arguments, the two
standards differ. And putting all of its eggs in the “no change”
basket, the government does not, in the alternative, defend the
condoned-or-completely-helpless standard on the merits. That
is, nowhere does it argue that even if the policy changed, the
Attorney General or USCIS “provide[d] a reasoned
explanation for the change.” Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2125 (2016). Accordingly, we have
no choice but to find the standard arbitrary and capricious.
Because this, by itself, requires setting aside the new standard,
we need not reach the asylum seekers’ alternative argument
that the new standard conflicts with the Refugee Act’s “well-
28
founded fear” standard and IIRIRA’s “significant possibility”
standard.
B. Choice of Law
This policy, which USCIS adopted on its own—i.e., not in
response to A-B-—requires asylum officers conducting
credible-fear interviews to “faithfully apply precedents of the
Board and, if necessary, the circuit where the alien is physically
located during the credible fear interview.” Guidance 9, J.A.
361 (emphasis added). By contrast, under USCIS’s prior
policy, officers generally applied “the interpretation most
favorable to the applicant.” USCIS, Lesson Plan: Credible Fear
of Persecution and Torture Determinations 17 (Feb. 13, 2017),
J.A. 379 (“Lesson Plan”). According to the asylum seekers, the
new policy is arbitrary and capricious because “it represents a
dramatic, unacknowledged, and unexplained departure from
years of prior agency practice.” Appellees’ Br. 30.
As our court recently explained, “[r]easoned decision-
making requires that when departing from precedents or
practices, an agency must ‘offer a reason to distinguish them or
explain its apparent rejection of their approach.’” Physicians
for Social Responsibility v. Wheeler, 956 F.3d 634, 644 (D.C.
Cir. 2020) (quoting Southwest Airlines Co. v. FERC, 926 F.3d
851, 856 (D.C. Cir. 2019)). Although “[not] every agency
action representing a policy change must be justified by
reasons more substantial than those required to adopt a policy
in the first instance,” FCC v. Fox Television Stations, Inc., 556
U.S. 502, 514 (2009), “however the agency justifies its new
position, what it may not do is ‘gloss[] over or swerve[] from
prior precedents without discussion,’” Southwest Airlines, 926
F.3d at 856 (alterations in original) (quoting Greater Boston
Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)).
29
According to the government, “the extent of any
divergence” between its prior policy and the new policy is
“debatable,” Reply Br. 15, thus making it “far from clear” that
there was “any need” to acknowledge any change, Appellants’
Br. 39. We disagree.
The old policy appears in a USCIS Lesson Plan, which
provides that:
Questions as to how the [credible-fear] standard
is applied should be considered in light of the
nature of the standard as a screening
standard . . . . [W]here there is:
a. disagreement among the United States
Circuit Courts of Appeal as to the proper
interpretation of a legal issue; or,
b. the claim otherwise raises an unresolved
issue of law; and,
c. there is no DHS or Asylum Division policy or
guidance on the issue, then
generally the interpretation most favorable to
the applicant is used when determining whether
the applicant meets the credible fear standard.
Lesson Plan 17, J.A. 379 (original emphasis omitted and
emphasis added). As the government emphasizes, the Lesson
Plan contained an exception to the most-favorable-law rule: if
there is “DHS or Asylum Division policy or guidance on the
issue,” then officers should apply such guidance. Id. (emphasis
omitted). But this makes no difference for our purposes
because the new policy requires asylum officers to apply local
circuit law in every circumstance, thus “eliminat[ing] the most-
30
favorable-interpretation rule on every issue,” not just on
“specific issue[s]” for which the agency has issued guidance.
Appellees’ Br. 36. In other words, even under the government’s
own telling, USCIS’s new policy differs significantly from the
old one.
Nothing in the Guidance acknowledges this change. In
full, here is what the Guidance says about the choice-of-law
policy:
[R]emoval proceedings can take place in any
forum selected by DHS, and not necessarily the
forum where the intending asylum applicant is
located during the credible fear or reasonable
fear interview. Because an asylum officer
cannot predict with certainty where DHS will
file a Notice to Appear or Notice of Referral to
Immigration Judge, and because there may not
be removal proceedings if the officer concludes
the alien does not have a credible fear or
reasonable fear and the alien does not seek
review from an immigration judge, the asylum
officer should faithfully apply precedents of the
Board and, if necessary, the circuit where the
alien is physically located during the credible
fear interview.
Guidance 9, J.A. 361. From this, readers would have no idea
that prior to issuing the Guidance, USCIS generally applied the
law most favorable to applicants. Put in terms of our caselaw,
the Guidance has “gloss[ed] over or swerve[d] from prior
precedents without discussion,” “cross[ing] the line from the
tolerably terse to the intolerably mute.” Greater Boston
Television, 444 F.2d at 852.
31
USCIS’s failure to acknowledge the change in policy is
especially egregious given its potential consequences for
asylum seekers. Under the previous policy, applicants either
got the benefit of the doubt—because officers applied the most
favorable circuit law—or were at least treated equally across
circuits because officers applied nationally uniform guidance.
But under the new policy, “a noncitizen who would be eligible
for asylum in the circuit where [removal] proceedings would
ultimately take place can be issued a negative credible-fear
determination and summarily removed, simply because the
circuit in which the screening interview takes place happens to
have unfavorable law.” Appellees’ Br. 32. USCIS has thus
“fail[ed] to grapple with how [the new] policy affected its
statutory . . . mandate[],” Physicians, 956 F.3d at 647—to
ensure that aliens who demonstrate “a significant
possibility . . . [of] eligibility for asylum under section 1158”
are not summarily removed, 8 U.S.C. § 1225(b)(1)(B)(v). Such
silence, the Supreme Court has made clear, fails the APA’s
requirement of reasoned decisionmaking because it ignores “an
important aspect of the problem.” Motor Vehicle
Manufacturers Ass’n of the United States, Inc. v. State Farm,
463 U.S. 29, 43 (1983).
The government argues that it had no obligation to
acknowledge the change because the old policy appeared only
in the USCIS Lesson Plan. In support, it cites our decision in
Vietnam Veterans of America v. Secretary of the Navy, 843
F.2d 528 (D.C. Cir. 1988), in which we ruled that a
servicemember could not challenge his military discharge on
the ground that failed to comply with a Navy policy
memorandum. See id. at 537–38 (“[T]he . . . [m]emorandum
cannot reasonably be classified as a binding statement.”). But
the policy involved in that case was quite different from the one
at issue here. As explained in Vietnam Veterans’ very first
paragraph, the policy at issue there was “not specific or
32
prescriptive enough . . . to bind agency discretion,” id. at 530,
and there “[was] no evidence in the record that the Secretary,”
who authored the policy, “ha[d] ever applied [it] in an
inflexible fashion or used it to limit significantly the [military]
review boards’ discretion,” id. at 539. Here, by contrast, the
government nowhere claims that immigration officials were
free to depart from USCIS’s previous choice-of-law policy.
Quite to the contrary, the Lesson Plan reminded asylum
officers that they were expected to “correctly
make . . . credible fear determination[s] consistent with
the . . . policies[] and procedures that govern . . . credible
fear.” Lesson Plan 14, J.A. 363 (emphasis added).
Nor does it make any difference that the Lesson Plan was
informal, as the government argues. Although the formality of
a policy may be relevant in cases where the policy’s existence
or content is disputed, this is not such a case. The government
acknowledges that the Lesson Plan reflected USCIS’s
“consistent practice,” which under our caselaw “sets the
baseline from which future departures must be explained.”
Southwest Airlines, 926 F.3d at 858; see also American Wild
Horse, 873 F.3d at 925 (finding that an agency could not deny
the existence of a policy that was “well documented in the
administrative record, and . . . reconfirmed repeatedly by two
decades of agency practice and official pronouncements”).
Alternatively, the government argues that the reasons
USCIS offered for the rule—venue uncertainty and the Board’s
(not USCIS’s) practice of applying the law of the circuit in
which proceedings occur—“[were] sufficient to fulfill any
obligation to explain.” Reply Br. 15. That might well be so if
the statute’s only goal were to ensure efficient removal of
aliens with no lawful authorization to remain in the United
States. But the statute has a second, equally important goal:
ensuring that individuals with valid asylum claims are not
33
returned to countries where they could face persecution. Both
purposes are evident in the system’s design and are confirmed
throughout the legislative history on which the government
relies. See 142 Cong. Rec. 25,347 (1996) (“The [significant-
possibility] standard . . . is intended to be a low screening
standard for admission into the usual full asylum process.”)
(statement of Sen. Hatch); H.R. Rep. No. 104-469, pt. 1, at 158
(1995) (“Under this system, there should be no danger that an
alien with a genuine asylum claim will be returned to
persecution.”). Appearing to recognize this, the Lesson Plan
instructs officers to apply the credible-fear standard “in light of
the nature of the standard as a screening standard to identify
persons who could qualify for asylum . . . , including when
there is reasonable doubt regarding the outcome of a credible
fear determination.” Lesson Plan 17, J.A. 379. And as
explained above, the Guidance’s choice-of-law policy could
undermine this purpose were it to result in the expedited
removal of applicants who would have been eligible for asylum
had their credible-fear interviews taken place in a different
circuit.
In its brief, the government offers two additional
justifications for the local-circuit-law policy: that “apply[ing]
the law where the action takes place” “is consistent with the
most basic and firmly established choice of law rule” and that
requiring officers to apply the most favorable law would “result
in significant operational burdens.” Appellants’ Br. 39–40, 41.
These rationales, however, appear nowhere in the Guidance,
and when “assessing the reasonableness of [an agency’s
action], we look only to what the agency said at the time of the
[action]—not to its lawyers’ post-hoc rationalizations.” Good
Fortune Shipping SA v. Commissioner of Internal Revenue
Service, 897 F.3d 256, 263 (D.C. Cir. 2018) (internal quotation
marks omitted).
34
Given our conclusion that the new choice-of-law policy is
arbitrary and capricious due to USCIS’s failure to acknowledge
and explain its departure from past practice, we may affirm the
district court’s order on that basis alone, thus leaving us with
no need to consider the asylum seekers’ alternative argument
that the policy is contrary to law.
C. Circularity
As noted above, the circularity rule governs how
immigration officials analyze asylum claims premised on an
applicant’s “membership in a particular social group.” 8 U.S.C.
§ 1101(a)(42)(A). As explained in A-B-, under Board precedent
social groups must “exist independently” of the harm claimed
by the applicant, that is, the applicant must be able to establish
the group’s existence “without defining [it] by the fact of
persecution.” A-B-, 27 I. & N. Dec. at 334.
To understand the precise issue before us, we think it
helpful to begin with a few examples that are not circular. One
paradigmatic case involves persecution on account of sexual
orientation—for example, a gay man fleeing a country where
the police are known to assault homosexual men. See Kadri v.
Mukasey, 543 F.3d 16, 21 (1st Cir. 2008) (collecting cases).
Because the social group (gay men) exists independently of the
harm alleged (assault), the group is not circular. Another
example involves persecution on account of disability—for
example, an individual who suffers from bipolar disorder
fleeing a country whose government institutionalizes and
tortures mentally-ill individuals. See Temu v. Holder, 740 F.3d
887, 892 (4th Cir. 2014) (discussing such a claim). Again,
because the social group (mentally-ill individuals) exists
independently of the harm alleged (torture), the group is not
circular.
35
But whether a group exists independently of the harm
alleged is not always so apparent. Consider, for example, the
group “women who fear being forced into prostitution.” Stated
that way, the group is defined by the harm alleged (forced
prostitution). But if the women are targeted for forced
prostitution because they share a common protected
characteristic, such as their political views, then the group
exists independently of the harm alleged and thus is not
circular. Cf. Lushaj v. Holder, 380 F. App’x 41, 43 (2d Cir.
2010) (discussing the group “women whom members of the
Haklaj gang wished to kidnap and force into prostitution . . . to
punish their family members for their political activities in
Albania” (alterations omitted) (internal quotation marks
omitted)). Consider another example, Somali women who have
suffered female genital mutilation. See Hassan v. Gonzales,
484 F.3d 513, 518 (8th Cir. 2007) (describing such a group).
At one level, the group is circular because it is defined in part
by the harm alleged (female genital mutilation). But it could
also be defined independently of the harm by describing the
group as Somali women or, depending on the facts, even more
narrowly as “young girls in the Benadiri clan,” Mohammed v.
Gonzales, 400 F.3d 785, 797 (9th Cir. 2005). As these
examples demonstrate, “it is not fair to conclude that the group
is defined by the harm or potential harm inflicted merely by the
language used rather than determining what underlying
characteristics account for the fear and vulnerability.” Cece v.
Holder, 733 F.3d 662, 672 (7th Cir. 2013) (en banc).
A-B- itself illustrates the difficulty in determining whether
an applicant’s proposed group is circular. The asylum seeker
there alleged that she had been abused by her husband on
account of her membership in the group of “El Salvadoran
women who are unable to leave their domestic relationships
where they have children in common with their partners.” A-B-,
27 I. & N. Dec. at 321 (internal quotation marks omitted). This
36
group, like the group “women who fear forced prostitution,”
appears to be defined in part by the alleged harm (being unable
to leave a relationship). On closer examination, however, this
is not necessarily so. If A.B.’s inability to leave her relationship
stems from circumstances independent of the alleged harm—
for example, legal constraints on divorce—then the group
would not be circular because the “inability to leave” does not
refer to harm at all. See De Pena-Paniagua, 957 F.3d at 93–94
(explaining that the “inability to leave a relationship may be the
product of forces other than physical abuse,” such as “cultural,
societal, religious, economic, or other factors”). In short,
whether a given group is circular depends on the facts of the
particular case.
With these examples in mind, we turn to the asylum
seekers’ argument that the Guidance incorrectly describes the
circularity rule as set forth in A-B-. There, the Attorney General
explained:
[t]o be cognizable, a particular social group
must exist independently of the harm asserted in
an application for asylum . . . . If a group is
defined by the persecution of its members, then
the definition of the group moots the need to
establish actual persecution. For this reason, the
individuals in the group must share a narrowing
characteristic other than their risk of being
persecuted.
A-B-, 27 I. & N. Dec. at 334–35 (citations omitted) (internal
quotation marks omitted). Referring to an earlier case, the
Attorney General also noted that the group “‘married women
in Guatemala who are unable to leave their relationship’ [is]
effectively defined to consist of women in Guatemala who are
37
victims of domestic abuse because the inability ‘to leave’ was
created by harm or threatened harm.” Id. at 335.
The asylum seekers do not challenge A-B-’s description of
the circularity rule, arguing instead that “the Guidance departs
from th[at] settled standard.” Appellees’ Br. 53. We disagree.
The Guidance explains that in A-B-, “[t]he Attorney
General observed” that the group “‘married women in
Guatemala who are unable to leave their relationship’” “‘was
effectively defined to consist of women in Guatemala who are
victims of domestic abuse because the inability to leave was
created by [the] harm or threatened harm.’” Guidance 5, J.A.
357 (quoting A-B-, 27 I. & N. Dec. at 335–36). Focusing on the
circularity rule’s application to asylum claims founded on
domestic violence, the Guidance explains:
[A-B-’s] analysis casts doubt on whether a
particular social group defined solely by the
ability to leave a relationship can be sufficiently
particular. Even if “unable to leave” were
particular, the applicant must show something
more than the danger of harm from an abuser if
the applicant tried to leave, because that would
amount to circularly defining the particular
social group by the harm on which the asylum
claim was based. Officers should carefully
examine any proposed particular social group to
ascertain whether it contains any attributes that
“exist independently of the harm asserted.”
Id.
Unlike the asylum seekers, we detect no meaningful
difference between A-B- and the Guidance regarding the
circularity rule. Fairly read, the Guidance simply quotes or
38
paraphrases A-B- and betrays no intent to depart from the
Attorney General’s decision. Nor, contrary to the asylum
seekers’ claim, does anything in the Guidance categorically bar
groups based in part on applicants’ inability to leave a
relationship. Instead, and read as a whole, the document directs
officers to “analyze each case on its own merits in the context
of the society where the claim arises,” and warns that “analysis
of a proposed social group is incomplete whenever the defining
terms of the proposed group are analyzed in isolation, rather
than collectively.” Id. at 3, J.A. 355. This is exactly what
A-B- requires and, as our hypotheticals demonstrate, exactly
the analysis required to determine whether a particular claim is
or is not circular.
So far, so good. But in its brief, the government asserts that
“the group must be ‘separate’ from the harm, not consisting of
the harm, even in part.” Reply Br. 23. As the asylum seekers
point out, this statement of the rule is flatly inconsistent with
both A-B- and the Guidance. Indeed, government counsel
conceded as much at oral argument. Asked about the inaccurate
statement in its brief, counsel agreed that asylum officers must
not apply the social-group requirements formulaically and
instead must go case-by-case. See Oral Arg. Rec. 24:00–03,
25:10–12 (describing how an “asylum officer would elicit
further testimony” and “go through the steps” set forth in A-B-
and the Guidance). And when asked specifically about the
group “Guatemalan women unable to leave their
relationships,” counsel acknowledged that it is “not
categorically barred,” id. at 19:55–58, 21:34–35, and that its
validity would turn on the specific factual circumstances of an
applicant’s claim, id. at 21:50–21:53 (“You could, in theory,
have that group, if you checked the boxes.”). In sum, then,
when viewed as a whole, the Guidance accurately restates the
circularity rule as described in A-B-.
39
D. Domestic and Gang Violence
In bold font, the Guidance states that:
[i]n general, . . . claims based on membership in
a putative particular social group defined by the
members’ vulnerability to harm of domestic
violence or gang violence committed by non-
government actors will not establish the basis
for asylum, refugee status, or a credible or
reasonable fear of persecution.
Guidance 6, J.A. 358. A-B- likewise states that “[g]enerally,
claims by aliens pertaining to domestic violence or gang
violence perpetrated by non-governmental actors will not
qualify for asylum,” and “[a]ccordingly, few such claims
would satisfy the legal standard to determine whether an alien
has a credible fear of persecution.” 27 I. & N. Dec. at 320, n.1.
Challenging these statements, the asylum seekers argue that
they “establish[] a rule generally rejecting credible fear claims
pertaining to domestic and gang violence” and thus violate the
INA. Appellees’ Br. 14. The government responds that the
asylum seekers misread A-B-, which, according to the
government, simply “remarked” “that asylum claims based on
gang and domestic violence [have] historically foundered on
the requirements for particular social group, nexus, and
persecution.” Appellants’ Br. 17, 56.
The problem with the government’s argument is that both
A-B- and the Guidance use the phrase “will not,” rather than
“have not,” thus suggesting that the statements represent a new
rule. That said, both statements also use the phrase “in
general,” thus suggesting that asylum claims based on domestic
and/or gang violence might, depending on the circumstances of
the case, qualify for asylum. Indeed, at oral argument,
government counsel assured us that there is no general rule
40
against such claims, calling it “crystal clear” that “none of these
groups are categorically barred.” Oral Arg. Rec. 24:03–07.
“[T]he only general rule that Matter of A-B- articulates,”
counsel explained, is that “[asylum officers] have to go through
the steps” for analyzing particular-social-group claims. Id. at
25:20–25. This explanation is perfectly consistent with the
Guidance’s instruction to asylum officers, explained above,
that claims be analyzed on a case-by-case basis.
The asylum seekers argue that “an allowance for limited
exceptions does not mean no rule exists.” Appellees’ Br. 55. In
support, they cite McLouth Steel Product Corp. v. Thomas, 838
F.2d 1317 (D.C. Cir. 1988), in which we found that an EPA
model used to determine contamination levels constituted a
“rule” within the meaning of APA section 553. Id. at 1319. As
the asylum seekers point out, in that case we rejected EPA’s
argument that its “discretion to deviate” from the model
transformed it into a nonbinding policy statement. Id. at 1320.
Critical to our ruling, however, the language EPA used to
announce the model “strongly suggested” that the agency
intended to treat it as a “binding norm” and EPA’s “later
conduct”—namely, treating the model as “conclusively
disposing of certain issues”—“confirm[ed] [the model’s]
binding character.” Id. at 1320, 1321. Here, by contrast, the
challenged statements are qualified by the words “general” and
“generally.” And, as explained above, other parts of both A-B-
and the Guidance make clear that asylum officers must
“analyze each case on its own merits in the context of the
society where the claim arises,” Guidance 3, J.A. 355. In other
words, the record in this case does not support the asylum
seekers’ argument that USCIS and the Attorney General have
erected a rule against asylum claims involving allegations of
domestic and/or gang violence.
41
This brings us, finally, to the government’s challenge to
the district court’s remedy. The district court declared all four
policies unlawful, vacated them, and permanently enjoined
application of the policies in credible-fear proceedings. It also
ordered the government to (1) “provide written guidance or
instructions to all asylum officers and immigration
judges . . . communicating that the [vacated policies] shall not
be applied to any . . . credible fear proceedings,” and
(2) provide new credible-fear interviews to the twelve asylum
seekers who brought this case. Order at 3, Grace,
No. 18-cv-1853 (D.D.C. June 3, 2019). The government does
not challenge the latter requirement—indeed, the credible-fear
interviews have already occurred. Instead, the government
objects to the portions of the district court’s order enjoining the
challenged credible-fear policies. According to the
government, the injunction runs afoul of 8 U.S.C. § 1252,
which the government believes withdraws district-court
authority to issue a “prospective injunction mandating or
barring particular interpretations of section 1158 in future
individual credible-fear determinations.” Appellants’ Br. 34.
In support, the government first points to section
1252(f)(1), which provides:
[N]o court (other than the Supreme Court) shall
have jurisdiction or authority to enjoin or
restrain the operation of the provisions of [8
U.S.C. §§ 1221–31], . . . other than with respect
to the application of such provisions to an
individual alien against whom proceedings
under such part have been initiated.
8 U.S.C. § 1252(f)(1). This section, however, refers only to
“the operation of the provisions”—i.e., the statutory provisions
42
themselves, and thus places no restriction on the district court’s
authority to enjoin agency action found to be unlawful. Indeed,
the Supreme Court has twice noted that section 1252(f)
“prohibits federal courts from granting classwide injunctive
relief against the operation of §§ 1221–1231”; in neither case
did it even hint that the “operation of the provisions” refers to
anything other than the statute itself. Reno v. American-Arab
Anti–Discrimination Committee, 525 U.S. 471, 481–482
(1999) (emphasis added); see also Jennings v. Rodriguez, 138
S. Ct. 830, 851 (2018) (quoting Reno, 525 U.S. at 481, and
noting, without questioning, the Ninth Circuit’s conclusion that
section 1252(f) had no effect on its authority to enjoin
violations or misapplications of the immigration-detention
statutes).
The government also relies on section 1252(e)(1)(A),
which provides that “no court may . . . enter declaratory,
injunctive, or other equitable relief in an action pertaining to an
order to exclude an alien in accordance with section 1225(b)(1)
of this title except as specifically authorized in a subsequent
paragraph of this subsection.” 8 U.S.C. § 1252(e)(1)(A). As the
plain language of this provision makes clear, it applies to
“action[s] pertaining to an order to exclude an alien in
accordance with section 1225(b)(1),” not to the kind of
challenge we face here, namely, a “[c]hallenge[] on [the]
validity of the [expedited-removal] system,” id. § 1252(e)(3).
As explained above, although the asylum seekers were issued
expedited-removal orders, nothing about adjudicating their
APA claims required the district court to examine those orders
or the underlying credible-fear determinations.
This reading of section 1252(e)(1)(A) is confirmed by
section 1252(e)(3). The latter provision does not, in the words
of section 1252(e)(1)(A), “specifically authorize[]” any relief.
Accordingly, were the government correct that section
43
1252(e)(1)(A) applies to this case, then Congress would have
expressly authorized the district court to review expedited-
removal policies yet simultaneously prohibited it from issuing
any remedies. The government insists that section 1252(e)(3)
does “specifically authorize[]” relief, citing in support the
portion of that section stating that “[j]udicial review is
available . . . but shall be limited to determinations,” id.
§ 1252(e)(3)(A) (emphasis added). According to the
government, that word means “declaratory” or “set aside”
relief that “prevent[s] implementation of the challenged
policies as to [these] Plaintiffs,” but not “system-wide
injunction[s].” Reply Br. 9–10 (internal quotation marks
omitted). “Determination,” however, denotes a decision, not a
remedy. See Webster’s Third New International Dictionary,
Unabridged (online ed. 2020) (defining “determination” as “the
settling and ending of a controversy especially by judicial
decision”); Black’s Law Dictionary (11th ed. 2019) (defining
“determination” as “[t]he act of deciding something
officially”). Indeed, throughout section 1252, Congress used
“determination” in connection with decisions, referring, for
example, to “the determination made under section
1225(b)(1)(B),” 8 U.S.C. § 1252(a)(2)(A)(iii), and “a
determination made by a trier of fact,” id. § 1252(b)(4).
Further confirming that the government is mistaken about
the meaning of “determination,” subsection (e)(2), mirroring
subsection (e)(3), provides that “[j]udicial review” of
expedited-removal orders “is available in habeas corpus
proceedings, but shall be limited to determinations
of . . . whether the petitioner is an alien,” “whether the
petitioner was ordered removed under [section 1225(b)(1)],”
and “whether the petitioner can prove” lawful permanent
residence or refugee or asylee status. Id. § 1252(e)(2)
(emphasis added). Subsection (e)(4), in turn, specifies the relief
available in such cases, namely, “a hearing in accordance with
44
section 1229a.” Id. § 1252(e)(4)(B). The contrast between
subsections (e)(2) and (e)(4) makes clear that Congress used
the phrase “limited to determinations” in the former to refer to
the scope of judicial review, not the relief available. Applying
the “standard principle of statutory construction . . . that
identical words and phrases within the same statute should
normally be given the same meaning,” Powerex Corp. v.
Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007), we
conclude that the phrase “limited to determinations” in
subsection (e)(3) likewise refers to the scope of judicial review.
In sum, neither section 1252(f)(1) nor section 1252(e)(1)
prohibited the district court from issuing an injunction. That
said, unlike the district court, which in addition to finding the
condoned-or-completely-helpless standard and choice-of-law
policy arbitrary and capricious, enjoined them as contrary to
law, we have not reached the latter issue. Instead, our decision
rests on the agency’s failure to satisfy the APA’s “requirement
of reasoned decisionmaking.” Fogo De Chao (Holdings) Inc.
v. DHS, 769 F.3d 1127, 1141 (D.C. Cir. 2014). Accordingly,
nothing in this opinion necessarily precludes USCIS or the
Attorney General from attempting to “remedy[] deficiencies in
[their] explanation[s]” for these challenged policies and
reissuing them. Shays v. Federal Election Commission, 414
F.3d 76, 112 (D.C. Cir. 2005). Should that occur, and should
the new policies be challenged, the “contrary to law” question
will be squarely before the court.
During the course of this appeal, it has come to our
attention—though, regrettably, not through any effort of the
parties—that the Departments of Justice and Homeland
Security, acting pursuant to a Centers for Disease Control
order, have severely circumscribed newly-arrived aliens’
45
ability to seek asylum. See Notice of Order Under Sections 362
and 365 of the Public Health Services Act Suspending
Introduction of Certain Persons From Countries Where A
Communicable Disease Exists, 85 Fed. Reg. 17,060, 17,061
(Mar. 26, 2020) (suspending, with limited exceptions, the
admission of noncitizens traveling from Mexico and Canada).
We have also learned that the two Departments, citing A-B-,
have jointly proposed new regulations that would, among other
things, “provide clear parameters for evaluating cognizable
‘particular social groups.’” Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 Fed. Reg. 36,264, 36,278, 36,279 (proposed June
15, 2020). Our obligation, however, is to resolve the issues
before us on the record the parties have presented. Having done
just that, we reverse the district court’s grant of summary
judgment with respect to the circularity rule and the statements
regarding domestic- and gang-violence claims, vacate the
injunction insofar as it pertains to those issues, and remand to
the district court for further proceedings consistent with this
opinion. In all other respects, we affirm.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
The Congress created the expedited removal system to ensure
the swift removal of aliens unquestionably inadmissible into
the United States. See Am. Immigration Lawyers Ass’n v. Reno,
199 F.3d 1352, 1354 (D.C. Cir. 2000); see also DHS v.
Thuraissigiam, No. 19-161, 2020 WL 3454809, at *1 (U.S.
June 25, 2020) (“[W]hen Congress enacted the [expedited
removal system], it crafted a system for weeding out patently
meritless claims and expeditiously removing the aliens making
such claims from the country.”). Accordingly, it sharply
circumscribed the availability of judicial review related to
expedited removal, see generally 8 U.S.C. § 1252(a)(2)(A),
providing only a narrow path for challenges to the expedited
removal system in the United States District Court for the
District of Columbia, see id. § 1252(e)(3), and for limited
habeas review in all federal district courts, see id. § 1252(e)(2).
Moreover, the Congress expressly forbade any court from
reviewing “credible fear determinations” or providing
equitable relief not specifically authorized in the same
subsection. See id. §§ 1252(a)(2)(A)(iii), (e)(1)(A).
Despite these constraints, the district court used section
1252(e)(3) to abrogate individual credible fear determinations
and issue a sweeping universal injunction purporting to prevent
the immigration authorities from applying the United States
Attorney General’s interpretation of the law. We now reverse
the district court’s interpretation of the expedited removal
statute in all respects and vacate much of its order. In the
meantime, however, asylum officers have been forced to make
tens of thousands of credible fear determinations without the
benefit of the United States Attorney General’s legal views or
the guidance of the United States Department of Homeland
Security (DHS). The consequence is that thousands of aliens
have been detained for full removal proceedings and released
into the United States, despite there being little doubt that they
are not entitled to asylum.
2
In short, the district court’s actions represent precisely the
type of judicial meddling in removal decisions the Congress
sought to prevent when it created the expedited removal
system. Rather than halt the district court’s overreach, my
colleagues sanction it and embark on a new experiment in
judicial interference with the immigration system—vacating
the Attorney General’s interpretation of the immigration
statutes pursuant to section 1252(e)(3). Accordingly, I
respectfully dissent.
I.
Setting out the relevant statutory and procedural
background.
A.
An alien who is “physically present” or “arrives” in the
United States may seek asylum. 8 U.S.C. § 1158(a)(1). To
qualify, an alien must be a “refugee.” Id. § 1158(b)(1)(A). With
certain exceptions inapplicable here, a “refugee” is an
individual “who is outside any country of such person’s
nationality . . . who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection
of, that country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
See 8 U.S.C. § 1101(a)(42)(A).
Typically, an alien may pursue two paths in seeking
asylum. Using the first path, he must submit an application
under 8 U.S.C. § 1158. An application must be made within
one year of the alien’s arrival in the United States (unless
certain exemptions apply). See id. § 1158(a)(1), (a)(2)(B).
Once an alien applies for asylum, he is interviewed by an
asylum officer. See 8 C.F.R. 208.9. If the asylum officer
3
decides not to grant an application and the applicant otherwise
has a valid status, the officer simply denies the application. See
id. § 208.14(c)(2). There is no avenue for appeal from such a
denial. On the other hand, if the asylum officer denies the
application and it appears that the applicant is removable, the
asylum officer must place the applicant in removal proceedings
in immigration court. See id. § 208.14(c)(1). Using the second
path, after the applicant is placed in removal proceedings
(either following referral by the asylum officer or after DHS
initiates removal proceedings on its own), he may raise his
asylum request as a defense to removal. See id. § 1208.14(a),
(c). The immigration court then adjudicates the alien’s claim in
an adversarial proceeding, see generally 8 U.S.C. § 1229a,
from which both the government and the alien may appeal to
the Board of Immigration Appeals (BIA), see 8 C.F.R.
§ 1003.1(b). The Attorney General, in his discretion, may also
certify a decision for his review. See id. § 1003.1(h). After an
alien exhausts the administrative process, including any review
by the Attorney General, a final order of removal issues. The
alien may then petition for review in the appropriate court of
appeals. See 8 U.S.C. § 1252(a)(1), (a)(5), (b), (d).
The Attorney General and the DHS Secretary retain
ultimate authority to grant or deny asylum. See id. §§ 1103,
1158. Moreover, the Attorney General may adopt policies and
issue precedential decisions that are binding on immigration
judges and asylum officers. See id. § 1103(a)(1)
(“[D]etermination[s] and ruling[s] by the Attorney General
with respect to all questions of law shall be controlling.”). The
Attorney General has delegated authority to the BIA to issue
precedential asylum decisions. 8 C.F.R. § 1003.1(d)(1), (h).
4
B.
There is also a third, irregular, path by which an alien can
seek asylum. In response to a surge in the level of illegal
immigration and asylum applications during the mid-1990s,
the Congress enacted the provisions now codified at 8 U.S.C.
§ 1225(b)(1) in order to “expedite the removal from the United
States of aliens who indisputably have no authorization to be
admitted . . . .” H.R. Rep. No. 104-828, at 209 (1996) (Conf.
Rep.); see also Thuraissigiam, No. 19-161, 2020 WL 3454809,
at *1 (“It was Congress’s judgment that detaining all asylum
seekers until the full-blown removal process is completed
would place an unacceptable burden on our immigration
system and that releasing them would present an undue risk that
they would fail to appear for removal proceedings.”). The
Congress mandated that “[i]f an immigration officer
determines that an alien” who is “arriving in the United States”
or otherwise designated by the Attorney General is
inadmissible because he lacks immigration papers or
misrepresents facts related to his eligibility for admission, the
alien is “order[ed] . . . removed from the United States without
further hearing.” 1 See 8 U.S.C. § 1225(b)(1)(A)(i). The
Congress included a procedure for an alien with a non-
1
Originally the Attorney General (now the DHS Secretary) was
authorized in his “sole and unreviewable discretion” to so designate
“any or all aliens” so long as they “have not been admitted or paroled
into the United States” and cannot show that they have been
“physically present in the United States continuously for the 2-year
period immediately prior to the date of the determination of
inadmissibility.” See id. § 1225(b)(1)(A)(iii). The DHS Secretary
exercised his discretion to require the expedited removal of all aliens
whose removal is statutorily required. See Designating Aliens for
Expedited Removal, 84 Fed. Reg. 35,409, 35,409–14 (July 23,
2019).
5
frivolous asylum claim to pursue it. See id. § 1225(b)(1)(B). If
an alien who is otherwise immediately removable expresses an
intent to apply for asylum based on, inter alia, a “fear of
persecution,” he is interviewed by an asylum officer. Id.
§ 1225(b)(1)(A)(ii). The asylum officer must determine
whether the alien has a “credible fear of persecution,” defined
as “a significant possibility, taking into account the credibility
of the statements made by the alien in support of the alien’s
claim and such other facts as are known to the officer, that the
alien could establish eligibility for asylum under [section §
1158].” Id. § 1225(b)(1)(B)(v). If the asylum officer finds that
the alien has a “credible fear of persecution,” the alien follows
the standard removal process before an immigration judge. Id.
§ 1225(b)(1)(B)(ii); see also id. § 1229a (setting out procedures
for standard removal proceedings). If, on the other hand, the
asylum officer finds that an alien does not have a credible fear
of persecution, the alien may seek review by an immigration
judge. Id. § 1225(b)(1)(B)(iii). If the immigration judge affirms
the asylum officer’s determination, the alien must be
immediately removed. 2 Id. The Congress has expressly
precluded further administrative or judicial review of a
negative credible fear determination. See id.
§§ 1225(b)(1)(B)(iii)(I); 1252(a)(2)(A)(iii).
Critical to this case, the Congress also set out in 8 U.S.C.
§ 1252(a)(2) specific “[m]atters not subject to judicial review”
2
The DHS Secretary must provide for review of a removal
order issued to “an alien who claims under oath, or as permitted
under penalty of perjury under section 1746 of title 28, after having
been warned of the penalties for falsely making such claim under
such conditions, to have been lawfully admitted for permanent
residence, to have been admitted as a refugee under section 1157 of
this title, or to have been granted asylum under section 1158 of this
title.” See 8 U.S.C. § 1225(b)(1)(C).
6
(emphasis added). It gave special attention to expedited
removal in section 1252(a)(2)(A) as follows:
Notwithstanding any other provision of law . . .
no court shall have jurisdiction to review—
(i) except as provided in subsection
(e), any individual determination or to
entertain any other cause or claim
arising from or relating to the
implementation or operation of an order
of removal pursuant to section
1225(b)(1) of this title,
(ii) except as provided in subsection
(e), a decision by the Attorney General
to invoke the provisions of such section,
(iii) the application of such section to
individual aliens, including the
determination made under section
1225(b)(1)(B) of this title, or
(iv) except as provided in subsection
(e), procedures and policies adopted by
the Attorney General to implement the
provisions of section 1225(b)(1) of this
title.
Id. § 1252(a)(2)(A). In another provision, however, the
Congress allowed for swift resolution of any legal challenge to
the new system. Section 1252(e)(3) authorizes the United
States District Court for the District of Columbia to review
“determinations under 1225(b) . . . and its implementation,” id.
§ 1252(e)(3)(A)(i), but limits judicial review to “whether
[section 1225(b)], or any regulation issued to implement such
7
section, is constitutional” and “whether such a regulation, or
written policy guideline, or written procedure issued by or
under the authority of the Attorney General to implement such
section, is not consistent with applicable provisions of this
subchapter or is otherwise in violation of law,” id.
§ 1252(e)(3)(A)(ii). The Congress required any action brought
under section 1252(e)(3) to “be filed no later than 60 days after
the challenged section, regulation, directive, guideline, or
procedure . . . is first implemented,” id. § 1252(e)(3)(B), and
specified “the duty of the District Court, the Court of Appeals,
and the Supreme Court of the United States to advance on the
docket and to expedite to the greatest possible extent the
disposition of any case considered under this paragraph,”3 id.
§ 1252(e)(3)(D). The Congress also limited the remedies
available to the district court in section 1252(e) proceedings.
See id. § 1252(e)(1)(A) (providing that “declaratory,
injunctive, or other equitable relief” must be specifically
authorized therein).
C.
In Matter of A-B-, issued two months before this case
began, the Attorney General exercised his authority to issue a
precedential decision. See 27 I. & N. Dec. 316 (2018). The
decision began with a DHS formal proceeding to remove an
alien under section 1229a. The alien claimed asylum as a
defense to removal, arguing that she was a “refugee” because
she was abused by her husband based on her being one of a
group of “El Salvadoran women who are unable to leave their
domestic relationships where they have children in common.”
3
The Congress also provided for habeas review in all federal
district courts. See § 1252(e)(3), (4), (5); see also Thuraissigiam, No.
19-161, 2020 WL 3454809, at *6–9; Castro v. DHS, 835 F.3d 422,
427 (3d Cir. 2016).
8
Id. at 321. On appeal, the BIA held that she qualified for
asylum.4 Id. The Attorney General referred the BIA’s decision
to himself and reversed in a precedential decision rendered
under 8 U.S.C. § 1103.
Construing the definition of “refugee” in 8 U.S.C.
§ 1101(a)(42)(A), the Attorney General determined that the
BIA erred in finding that the alien was persecuted based on her
membership in a particular social group. Id. at 320. He
reasoned that “El Salvadoran women who are unable to leave
their domestic relationships where they have children in
common” is not a cognizable “particular social group” because,
among other reasons, “[t]o be cognizable, a particular social
group must ‘exist independently’ of the harm asserted in an
application for asylum or statutory withholding of removal.”
Id. at 334. He further held that A-B- was not “persecuted”
because she had not shown that the El Salvadoran government
was “unwilling or unable” to protect her. Id. at 344. The
Attorney General noted that:
Generally, claims by aliens pertaining to
domestic violence or gang violence perpetrated
by non-governmental actors will not qualify for
asylum. While I do not decide that violence
inflicted by non-governmental actors may never
serve as the basis for an asylum or withholding
application based on membership in a particular
social group, in practice such claims are
unlikely to satisfy the statutory grounds for
proving group persecution that the government
is unable or unwilling to address.
4
The alien appealed to the BIA after having been ordered
removed by an immigration judge. See 8 C.F.R. § 1003.1(b).
9
Id. at 320. In a footnote, he also noted that “[a]ccordingly, few
such claims would satisfy the legal standard to determine
whether an alien has a credible fear of persecution.” Id. at 320,
n.1.
Subsequently, the United States Customs and Immigration
Service 5 (USCIS) issued a “Guidance for Processing
Reasonable Fear, Credible Fear, Asylum, and Refugee Claims
in Accordance with Matter of A-B-” (Guidance). The Guidance
explained the implications of Matter of A-B- for asylum
decisions made by USCIS personnel and instructed asylum
officers to apply the law of the federal circuit in which an
asylum interview takes place in processing an asylum claim.
See USCIS, Guidance for Processing Reasonable Fear,
Credible Fear, Asylum, and Refugee Claims in Accordance
with Matter of A-B- 8–9, PM-602-0162 (July 11, 2018).
D.
The plaintiffs are twelve nationals of various Central
American countries who were apprehended after illegally
crossing the United States border with Mexico. USCIS placed
each alien in an expedited removal proceeding pursuant to
section 1225(b)(1). Because all of the plaintiffs expressed a
“fear of persecution,” each had a credible fear interview
pursuant to section 1225(b)(1)(A). Asylum officers determined
that none of the twelve had a credible fear of persecution and
an immigration judge agreed. All were ordered removed.
The plaintiffs then filed suit in district court against DHS,
the Attorney General, USCIS and the Executive Office of
Immigration Review, using section 1252(e)(3) as their
jurisdictional hook. They challenged the validity of both
5
As part of DHS, see 6 U.S.C. § 271, USCIS administers much
of the removal system.
10
Matter of A-B- and the Guidance, alleging that they would have
received positive credible fear determinations had Matter of A-
B- and the Guidance not been applied to them. The plaintiffs
asked the district court to vacate Matter of A-B- and the
Guidance, enjoin the defendants from applying Matter of A-B-
and the Guidance, vacate their removal orders and order DHS
to grant each plaintiff a new credible fear determination. They
also asked the district court to allow those plaintiffs who had
been removed be paroled into the United States instead.
The district court granted the plaintiffs’ summary
judgment motion. See Grace v. Whitaker, 344 F. Supp. 3d 96,
146 (D.D.C. 2018). It held that Matter of A-B- and the
Guidance were policies “issued by or under the authority of the
Attorney General to implement” section 1225(b) and therefore
it had jurisdiction to consider whether Matter of A-B- and the
Guidance contravened the Immigration and Nationality Act
(INA) and the Administrative Procedure Act (APA) pursuant
to 8 U.S.C. § 1252(e)(3). Id. at 117. It declared that both Matter
of A-B- and the Guidance violated both the APA and “the
immigration laws insofar as those policies are applied in
credible fear proceedings,” vacated Matter of A-B- and the
Guidance and permanently enjoined “defendants and their
agents from apply[ing Matter of A-B- and the Guidance] with
respect to credible fear determinations, credible fear
interviews, or credible fear review hearings.” Order at 2–3,
ECF No. 105. It also vacated each individual plaintiff’s
credible fear determination and removal order and ordered the
defendants—if they sought to remove any of the plaintiffs
without a full removal hearing—to “provid[e] each of them a
new credible fear process consistent with the Court’s
Memorandum Opinion and free from” the policies contained in
Matter of A-B- and the Guidance. Id. at 3. As for those plaintiffs
who had been removed, it ordered the defendants to return
them to the United States. Id. The district court denied the
11
defendants’ requested stay pending appeal. See Grace v.
Whitaker, No. 18-1853, 2019 WL 329572, at *5 (D.D.C. Jan.
25, 2019). The defendants timely appealed, see FED. R. APP. P.
4(A)(1)(B), and our jurisdiction arises from 28 U.S.C. § 1291.
II.
I believe the district court was without jurisdiction to
review the plaintiffs’ claims, as is made plain by three separate
statutory provisions. See 8 U.S.C. §§ 1252(a)(2)(A)(i) (barring
district court from “entertain[ing] any other cause or claim
arising from or relating to the implementation or operation of
an order of removal pursuant to section 1225(b)(1)”);
1252(a)(2)(A)(iii) (barring judicial review of “the
determination made under section 1225(b)(1)(B)”); 1252(a)(5)
(“[A] petition for review filed with an appropriate court of
appeals . . . shall be the sole and exclusive means for judicial
review of an order of removal entered or issued under any
provision of this chapter, except as provided in [section
1252(e)]”). Nevertheless, my colleagues conclude that 8 U.S.C.
§ 1252(e)(3) authorizes the plaintiffs to challenge their credible
fear determinations, Matter of A-B- and the Guidance. I
disagree—section 1252(e)(3) does not vest jurisdiction in the
district court and, even assuming it does, section
1252(a)(2)(A)(iii) constitutes an independent bar to its review
of the plaintiffs’ claims.
A.
First, I believe the plaintiffs’ suit is barred by section
1252(a)(2)(A)(iii). That provision commands that “no court
shall have jurisdiction to review . . . the application of [section
1225(b)(1)] to individual aliens, including the determination
made under section 1225(b)(1)(B) of this title.” Unlike the
other jurisdictional bars contained in section 1252(a)(2)(A),
section 1252(a)(2)(A)(iii) conspicuously does not include an
12
exception for litigation brought pursuant to section 1252(e). If
the plaintiffs’ suit requires “review [of] . . . the determination
made under section 1225(b)(1)(B),” that is, the credible fear
determination, the district court is without jurisdiction to
entertain it. See Thuraissigiam, No. 19-161, 2020 WL
3454809, at *7 (quoting 8 U.S.C. § 1252(a)(2)(A)(iii))
(“[C]ourts may not review ‘the determination’ that an alien
lacks a credible fear of persecution.”).
I have no doubt that their suit does require such review.
The plaintiffs contend that they do not seek “review” of any
credible fear determination because they mount instead a
“systemic challenge” to Matter of A-B- and the Guidance.
Appellee’s Br. 23. But the plaintiffs asked the district court to
accept that “as a result of [Matter of A-B- and the Guidance],
the immigration authorities summarily rejected [their] asylum
claims and ordered them removed,” to declare Matter of A-B-
and the Guidance “contrary to law,” “order that [their]
expedited removal orders be vacated and that they be provided
with a new credible fear process.” Complaint at 3, 5, ECF No.
3. In other words, the plaintiffs assert standard APA arguments
and ask for standard APA remedies regarding their individual
credible fear determinations. See 5 U.S.C. § 706 (“To the extent
necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action.”).
Their allegations and requested relief require “review” of a
determination as “review” is ordinarily used. See BLACK’S
LAW DICTIONARY (11th ed. 2019) (defining “review” as
“[c]onsideration, inspection, or reexamination of a subject or
thing.”). Moreover, we have held that an APA challenge to the
DHS Secretary’s discretionary decision constitutes “review” of
that decision within the meaning of section 1252(a)(2)(B)(ii)’s
jurisdictional bar. See Zhu v. Gonzales, 411 F.3d 292, 294–95
13
(D.C. Cir. 2005); see also Poursina v. USCIS, 936 F.3d 868
(9th Cir. 2019) (same); Bernardo ex rel. M & K Eng’s, Inc. v.
Johnson, 814 F.3d 481, 484–85 (1st Cir. 2016) (same); cf. INS
v. St. Cyr, 121 S. Ct. 2271, 2285–86 (2001) (statutes that
“preclude[] judicial review” historically construed to bar APA
suits). 6 And, interpreting the same provision, several sister
circuits have held that a suit purporting to challenge policies
that guide DHS in making its ultimate decision seeks “review”
of that decision. See Bakran v. DHS, 894 F.3d 557 (3d Cir.
2018); Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018);
Privett v. DHS, 865 F.3d 375, 380–81 (6th Cir. 2017); Bremer
v. Johnson, 834 F.3d 925, 929–32 (8th Cir. 2016); Lee v.
USCIS, 592 F.3d 612, 620 (4th Cir. 2010); Walid El-Baz
Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); but
cf. Musunuru v. Lynch, 831 F.3d 880, 887–88 (7th Cir. 2016)
(section 1252(a)(2)(B)(ii) does not prevent court from
considering whether immigration authorities complied with
procedure in making discretionary decision); Mantena v.
Johnson, 809 F.3d 721, 728 (2d Cir. 2015) (same); Kurapati v.
6
The majority discounts this precedent because it “mention[s]
neither credible-fear interviews nor expedited removal.” Maj. Op.
16. My colleagues miss the point of my discussion. I express no view
about the relationship between section 1252(a)(2)(B) and section
1252(a)(2)(A). In discussing section 1252(a)(2)(B), my point is that
the consistent understanding of “review” adopted by courts in
interpreting section 1252 necessarily means that the plaintiffs ask for
“review” of their credible fear determinations. The fact that neither
Zhu nor section 1252(a)(2)(B) involves expedited removal does not
rebut that point. Moreover, “read[ing] section 1252(a)(2)(A)(iii)’s
jurisdictional bar in tandem with section 1252(e)(3),” Maj. Op. 16,
which we must do of course, see Negusie v. Holder, 555 U.S. 511,
519 (2009) (“[W]e look not only to the particular statutory language,
but to the design of the statute as a whole and to its object and
policy.”) (internal quotation marks and citations omitted), does not
mean ignoring section 1252(a)(2)(A)(iii)’s plain text.
14
U.S. Bureau of Citizenship and Immigration Servs., 775 F.3d
1255, 1262 (11th Cir. 2014) (same). That the plaintiffs
characterize their suit as a challenge to Matter of A-B- and the
Guidance should not prevent us from recognizing what, in
reality, it is—an APA challenge to their respective credible fear
determinations. It follows that they seek judicial review of “the
determination made under section 1225(b)(1)(B),” review that
the Congress has expressly barred.
The language of section 1225(b)(1)(B) itself, enacted
simultaneously with section 1252, confirms my understanding
of section 1252(a)(2)(A)(iii), that is, that it bars any attempt to
seek judicial review of a negative credible fear determination.
Section 1225(b)(1)(B) provides that “[s]ubject to [review by an
immigration judge], if the officer determines that an alien does
not have a credible fear of persecution, the officer shall order
the alien removed from the United States without further
hearing or review.” 8 U.S.C. § 1225(b)(1)(B)(iii)(I) (emphasis
added). In other words, the Congress made clear in section
1225(b)(1)(B) that there is to be no judicial review of negative
credible fear determinations, whether framed as “systemic”
challenges or otherwise.
Nevertheless, the plaintiffs argue that the first clause of
section 1252(a)(2)(A)(iii) (“no court shall have jurisdiction to
review . . . the application of such section to individual aliens”)
requires that we read the second clause of section
1252(a)(2)(A)(iii) (“including the determination made under
section 1225(b)(1)(B) of this title”) to bar review of credible
fear determinations only to the extent that it prohibits a
claimant to seek judicial review of whether an asylum officer
correctly applied the law to the facts of the particular claimant’s
case. The plaintiffs mangle the plain text of the statute. The
Congress made a point of specifically withholding jurisdiction
to review “the determination made under section
15
1225(b)(1)(B).” Id. § 1252(a)(2)(A)(iii). Whatever the
Congress intended by barring review of “the application of
[section 1225(b)(1)] to individual aliens,” it left no doubt that
review of “the determination made under section
1225(b)(1)(B)” is beyond judicial review. Id. And although the
use of “including” may suggest that the Congress viewed
“review . . . [of] the determination made under section
1225(b)(1)(B)” as one instance of the more generally forbidden
“review . . . [of] the application of [section 1225(b)(1)] to
individual aliens,” id., the obvious reading is that the Congress
regarded credible fear determinations as inherently
individualized. The Congress did not carve out an exception for
a so-called “systemic” challenge as the plaintiffs contend.
The plaintiffs also argue that the most natural reading of
section 1252(a)(2)(A)(iii) should be rejected because it would
effectively prevent any individual from mounting a challenge
pursuant to section 1252(e)(3). Appellee’s Br. 23.7 That claim
is doubly flawed. First, section 1252(a)(2)(A)(iii) bars review
of “the application of [section 1225(b)(1)] to individual aliens”
and credible fear determinations only. Under our precedent, see
7
The majority claims that “the government’s view of section
1252(a)(2)(A)(iii) could leave no one able to challenge the policies
at issue in this suit.” Maj. Op. 14. That is incorrect. Section
1252(a)(2)(A)(iii) prevents only the plaintiff who has received a
negative credible fear determination from challenging Matter of A-
B- and the Guidance. As several sister circuits have recognized,
however, an alternative avenue for judicial review of Matter of A-B-
and the Guidance exists—the standard petition for review procedure.
See Gonzalez-Veliz v. Barr, 938 F.3d 219, 233–36 (5th Cir. 2019).
Moreover, although this issue is not before us, my reading of section
1252(a)(2)(A)(iii) does not rule out the possibility of a plaintiff’s
challenge to a policy before receiving a negative credible fear
determination.
16
Am. Immigration Lawyers Ass’n, 199 F.3d at 1356–57
(upholding standing of two non-asylum seeking aliens
subjected to expedited removal to challenge policies
implementing section 1225(b)(1)), 8 an alien determined
inadmissible and ordered removed pursuant to section
1225(b)(1)(A) can challenge a policy “issued by . . . the
Attorney General to implement” section 1225(b)(1), 8 U.S.C.
§ 1252(e)(3)(A)(ii). Moreover, even if the plaintiffs are correct
that reading section 1252(a)(2)(A)(iii) as its text demands
would leave no plaintiff able to challenge a policy via section
1252(e)(3), that result can make no difference to our decision.
We must apply the statute as the Congress enacted it. See Baker
Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2169 (2015)
(“Our job is to follow the text even if doing so will supposedly
undercut a basic objective of the statute.”) (internal quotation
marks omitted).
B.
In addition, I do not believe that section 1252(e)(3) vested
jurisdiction in the district court. Section 1252(e)(3)(A)
authorizes the district court to review “determinations under
[section 1225(b)] and its implementation” but restricts that
jurisdiction to “determination[s] of . . . whether [any regulation
issued to implement section 1225(b)] or a written policy
directive, written policy guideline, or written procedure issued
by or under the authority of the Attorney General to implement
such section, is not consistent with applicable provisions of this
subchapter or is otherwise in violation of law.” Neither Matter
of A-B- nor the Guidance construes section 1225(b). Instead,
Matter of A-B- construes the definition of “refugee” contained
8
Critically, the plaintiffs in Am. Immigration Lawyers Ass’n
did not challenge a credible fear determination—they were
individual non-asylum seekers and organizations seeking to
vindicate aliens’ rights in general. See 199 F.3d at 1356–57.
17
in 8 U.S.C. § 1101(a)(42)(a). 27 I. & N. Dec. at 325–26. That
definition is connected to section 1225(b) circuitously—the
definition of “refugee” contained in section 1101 is used to
define eligibility for asylum in 8 U.S.C. § 1158. Section
1225(b)(1)(B)(v) in turn defines a “credible fear of
persecution” as “a significant possibility . . . that the alien could
establish eligibility for asylum under section 1158 of this title”
(emphasis added). That Matter of A-B- construes only sections
1101 and 1158, not section 1225(b), means, in my reading, that
the district court lacks jurisdiction to review both Matter of A-
B- and the Guidance.
Section 1252(e)(3)(A)(ii) does not authorize judicial
review of the Attorney General’s interpretation of provisions
other than section 1225(b), at least if his interpretation is
included in an adjudicatory decision like Matter of A-B-. That
becomes clear once the admittedly complex structure of section
1252 is understood. See Negusie v. Holder, 555 U.S. 511, 519
(2009) (“[W]e look not only to the particular statutory
language, but to the design of the statute as a whole and to its
object and policy.”) (internal quotation marks and citations
omitted). Judicial review of issues of law in immigration
proceedings, including those related to asylum, is ordinarily
through a petition for review of a final removal order. See
generally 8 U.S.C. § 1252(b); see also id. § 1252(a)(2)(D),
(a)(5). But the Congress sought to bar judicial review in
expedited removal proceedings and thus section 1252(a)(2)(A)
expressly bars “judicial review” of various actions related to
expedited removal, including removal orders. See id. §
1252(a)(2)(A)(i). Section 1252(a)(2)(A)(iv) contains one of
four statutory barriers to judicial review. It provides that
“[n]otwithstanding any other provision of law . . . no court shall
have jurisdiction to review . . . (iv) except as provided in
[section 1252(e)], procedures and policies adopted by the
Attorney General to implement the provisions of section
18
1225(b)(1) of this title.” The district court acknowledged that
section 1252(a)(2)(A)(iv) would bar the plaintiffs’ challenge to
Matter of A-B- and the Guidance unless section 1252(e)(3)
provides otherwise. See Grace, 344 F. Supp. 3d at 115. At the
same time, however, it disregarded the language of section
1252(a)(2)(A)(iv), which closely resembles the jurisdiction-
granting language of section 1252(e)(3)(A)(ii). Compare id. §
1252(a)(2)(A)(iv) (“Notwithstanding any other provision of
law . . . no court shall have jurisdiction to review . . . (iv)
except as provided in [section 1252(e)], procedures and
policies adopted by the Attorney General to implement the
provisions of section 1225(b)(1)”) with id. § 1252(e)(3)(A)(ii)
(“Judicial review of determinations under section 1225(b) . . .
is available . . . but shall be limited to determinations of . . .
whether . . . a written policy directive, written policy guideline,
or written procedure issued by or under the authority of the
Attorney General to implement such section, is not consistent
with applicable provisions of this subchapter or is otherwise in
violation of law.”).
These two provisions differ in some respects—section
1252(a)(2)(A)(iv) bars judicial review of “procedures and
policies” and section 1252(e)(3)(A)(ii) applies to “written
policy directive[s], written policy guideline[s], [and] written
procedure[s].” A policy must be “adopted by the Attorney
General” to be covered by section 1252(a)(2)(A)(iv) but may
be “issued by or under the authority of the Attorney General”
to come within section 1252(e)(3)(A)(ii). A policy must
implement “section 1225(b)(1)” to oust judicial review per
section 1252(a)(2)(A)(iv) but may implement section 1225(b)
more broadly and nonetheless be covered by section
1252(e)(3)(A)(ii)’s grant. The overall effect, however, is that
the two provisions mirror one another. What limited authority
section 1252(e)(3)(A)(ii) grants to the United States District
19
Court for the District of Columbia, section 1252(a)(2)(A)(iv)
withdraws from all other courts.
That structural feature of section 1252 means that section
1252(e)(3)(A)(ii) cannot grant the district court jurisdiction to
consider the plaintiffs’ claims. The majority reasons that
Matter of A-B- constitutes a written policy “issued by or under
the authority of the Attorney General to implement” section
1225(b) because it construes the asylum eligibility provisions
of section 1158. Maj. Op. 18 (quoting 8 U.S.C. §
1252(e)(3)(A)(ii)) (Matter of A-B- is a policy “issued . . . to
implement” section 1225(b) because “[t]he decision’s
overarching purpose . . . is to interpret section 1158[] . . . which
Congress incorporated into section 1225(b) by defining
‘credible fear of persecution’ as ‘a significant possibility . . .
that the alien could establish eligibility for asylum under
section 1158.’”). But if section 1252(e)(3)(A)(ii) grants our
district court jurisdiction to review the Attorney General’s
precedential adjudication interpreting the asylum statutes, as
the district court (and my colleagues) believe, it follows from
the parallel language of sections 1252(e)(3)(A)(ii) and
1252(a)(2)(A)(iv) that the latter provision bars a court of
appeals from reviewing any adjudicatory decision by the
Attorney General or the BIA that touches on asylum,
notwithstanding their authority to “review all questions of law
and fact” included in a petition for review from such decision.
See id. § 1252(b)(9). That reading of the judicial review
provisions—limited as they are—cannot be correct. Plainly,
the Congress did not intend the jurisdiction-stripping
provisions of section 1252(a)(2)(A) to bar judicial review of
every adjudicatory decision by the Attorney General applying
the asylum statutes. Reading 1252(a)(2)(A)(iv) to do so is
inconsistent with Supreme Court precedent and decisions of
our sister circuits. See Negusie, 555 U.S. at 513–14 (review of
BIA decision construing “refugee”); Gonzalez-Veliz v. Barr,
20
938 F.3d 219, 233–36 (5th Cir. 2019) (review of Attorney
General’s interpretation of “refugee” in Matter of A-B-). The
majority’s interpretation of section 1252(e)(3) suggests that
every court that has assessed whether the Attorney General or
the BIA correctly construed section 1158 or the section 1101
definition of “refugee” applied in section 1158 (not to mention
the other statutes cross-referenced in section 1158) did so in
contravention of the jurisdiction-stripping provisions of section
1252(a)(2)(A). In view of Supreme Court precedent and in line
with other circuits, I have to conclude that Matter of A-B- is not
a written policy “issued . . . to implement” section 1225(b) and,
accordingly, section 1252(e)(3) does not clothe the district
court with authority to review it.
In holding otherwise, the district court emphasized that
Matter of A-B- cited section 1225(b)(1)(B) in a short footnote,
presumably indicating to that court that Matter of A-B-
construed section 1225(b). Grace, 344 F. Supp. 3d at 116. The
footnote is attached to the Attorney General’s statement that
“[g]enerally, claims by aliens pertaining to domestic violence
or gang violence perpetrated by non-governmental actors will
not qualify asylum,” Matter of A-B-, 27 I. & N. Dec. at 320,
and notes simply that “[a]ccordingly, few such claims would
satisfy the legal standard to determine whether an alien has a
credible fear of persecution,” id. at 320 n.1. At oral argument,
the government counsel argued that the footnote “doesn’t
matter,” Oral Arg. at 7:25, and the plaintiffs’ counsel did not
demur.
And for good reason. The footnote simply makes an
unremarkable observation about non-governmental violence’s
limited basis to support a credible fear determination. It does
not construe section 1225(b) and the determinations made in
Matter of A-B- would have been the same without regard to
section 1225(b). In other words, the footnote does not
21
transform Matter of A-B- into a written policy “issued . . . to
implement” section 1225(b).
The majority responds that section 1252(a)(2)(A)(iv)
“leaves open the possibility that some such ‘procedures and
policies’ might be ‘adopted by the Attorney General’ to
‘implement . . . section 1225(b)(1)’ and also for other
purposes” so that the “policies could simultaneously be
challenged in the district court for the District of Columbia
pursuant to section 1252(e)(3) and also through a petition for
review of a BIA decision.” Maj. Op. 19 (quoting 8 U.S.C. §
1252(a)(2)(A)(iv)). The plain language of the statute refutes
that suggestion. The Congress was absolutely clear that if a
“procedure[] [or] [polic[y]” is “adopted by the Attorney
General” to “implement . . . section 1225(b)(1),” it is not
subject to judicial review outside a section 1252(e) proceeding,
regardless of any other purpose that policy might have. See 8
U.S.C. § 1252(a)(2)(A)(iv). The dual-track review procedure
the majority envisions is a mirage.
My colleagues also suggest that a sister circuit agrees with
their understanding of the interplay between sections
1252(a)(2)(A)(iv) and (e)(3). See Maj. Op. 20 (citing Gonzalez-
Veliz, 933 F.3d at 228). They are again mistaken. The
Gonzalez-Veliz panel did not discuss section 1252(a)(2)(A)(iv)
at all. The comment quoted by the majority comes from the
Fifth Circuit’s consideration of the effect of our district court’s
remedy on its review of a different plaintiff’s final removal
order. That court came to the sensible conclusion that its review
of Matter of A-B- and the Guidance was not affected by our
district court’s order because the order was, by its own terms,
limited to credible fear proceedings. See Gonzalez-Veliz, 933
F.3d at 228 (D.C. district court order did not affect its review
because district court “vacated [Matter of] A-B- and the
guidance memorandum as they pertain to credible-fear claims
22
in expedited removal proceedings only”). At no point did the
Fifth Circuit consider the merits of our district court’s reading
of section 1252(e)(3) or its implication, if any, for the Fifth
Circuit. The fact that the Fifth Circuit did not agree with our
district court’s interpretation of the section 1252(e)(3) cannot
be wheeled out as support for that interpretation. The Fifth
Circuit decision, together with that of the First Circuit also
cited by the majority, see Maj. Op. 20 (citing De Pena-
Paniagua v. Barr, 957 F.3d 88, 93 (1st Cir. 2020)), simply
serve to underline the fact that the majority’s interpretation of
section 1252(e)(3) is irreconcilable with the decisions of sister
circuits.
I believe that the district court also lacked jurisdiction to
review the Guidance, at least to the extent that it addresses the
substantive asylum standard. The Guidance largely restates
Matter of A-B-. It has no independent legal effect apart from
Matter of A-B- and, like Matter of A-B-, the Guidance mentions
credible fear determinations only in passing. 9 Because the
Guidance adds nothing substantive to Matter of A-B- and
Matter of A-B- is not a policy “issued . . . to implement” section
1225(b), it follows that neither is the Guidance.
In my view, section 1252(e)(3) does not permit judicial
review of the plaintiffs’ challenge to Matter of A-B- or to the
Guidance and I would dismiss their complaint under Rule
12(b)(1).
9
Because section 1252(a)(2)(A)(iii) independently bars the
plaintiffs’ suit, I leave aside the more difficult question whether the
Guidance’s instruction to asylum officers on the law they are to apply
in credible fear interviews—the only part of the Guidance other than
its reading of Matter of A-B- the plaintiffs challenge—itself qualifies
as a “written policy . . . issued . . . to implement” section 1225(b).
23
Accordingly, I respectfully dissent.