Grace v. Sessions ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GRACE, et al., )
)
Plaintiffs, )
v. )
) No. 18-cv-01853 (EGS)
)
MATTHEW G. WHITAKER, 1 Acting )
Attorney General of the United )
States, et al., )
)
Defendants. )
MEMORANDUM OPINION
When Congress passed the Refugee Act in 1980, it made its
intentions clear: the purpose was to enforce the “historic
policy of the United States to respond to the urgent needs of
persons subject to persecution in their homelands.” Refugee Act
of 1980, § 101(a), Pub. L. No. 96–212, 94 Stat. 102 (1980).
Years later, Congress amended the immigration laws to provide
for expedited removal of those seeking admission to the United
States. Under the expedited removal process, an alien could be
summarily removed after a preliminary inspection by an
immigration officer, so long as the alien did not have a
credible fear of persecution by his or her country of origin. In
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
the Court substitutes the current Acting Attorney General as the
defendant in this case. “Plaintiffs take no position at this
time regarding the identity of the current Acting Attorney
General of the United States.” Civil Statement, ECF No. 101.
creating this framework, Congress struck a balance between an
efficient immigration system and ensuring that “there should be
no danger that an alien with a genuine asylum claim will be
returned to persecution.” H.R. REP. NO. 104-469, pt. 1, at 158
(1996).
Seeking an opportunity for asylum, plaintiffs, twelve
adults and children, alleged accounts of sexual abuse,
kidnappings, and beatings in their home countries during
interviews with asylum officers. 2 These interviews were designed
to evaluate whether plaintiffs had a credible fear of
persecution by their respective home countries. A credible fear
of persecution is defined as a “significant possibility” that
the alien “could establish eligibility for asylum.” 8 U.S.C.
§ 1225(b)(1)(B)(v). Although the asylum officers found that
plaintiffs’ accounts were sincere, the officers denied their
claims after applying the standards set forth in a recent
precedential immigration decision issued by then-Attorney
General, Jefferson B. Sessions, Matter of A-B-, 27 I. & N. Dec.
316 (A.G. 2018).
Plaintiffs bring this action against the Attorney General
alleging violations of, inter alia, the Administrative Procedure
Act (“APA”) and the Immigration and Nationality Act (“INA”),
2 Plaintiffs Grace, Carmen, Gio, Gina, Maria, Mina, Nora, and
Mona are proceeding under pseudonyms.
2
arguing that the standards articulated in Matter of A-B-, and a
subsequent Policy Memorandum issued by the Department of
Homeland Security (“DHS”) (collectively “credible fear
policies”), unlawfully and arbitrarily imposed a heightened
standard to their credible fear determinations.
Pending before the Court are: (1) plaintiffs’ combined
motions for a preliminary injunction and cross-motion for
summary judgment; (2) plaintiffs’ motion to consider evidence
outside the administrative record; (3) the government’s motion
to strike exhibits supporting plaintiffs’ motion for summary
judgment; and (4) the government’s motion for summary judgment.
Upon consideration of the parties’ memoranda, the parties’
arguments at the motions hearings, the arguments of amici, 3 the
administrative record, the applicable law, and for the reasons
discussed below, the Court finds that several of the new
credible fear policies, as articulated in Matter of A-B- and the
Policy Memorandum, violate both the APA and INA. As explained in
this Memorandum Opinion, many of these policies are inconsistent
with the intent of Congress as articulated in the INA. And
because it is the will of Congress—not the whims of the
Executive—that determines the standard for expedited removal,
the Court finds that those policies are unlawful.
3 The Court appreciates the illuminating analysis provided by the
amici.
3
Part I of this Opinion sets forth background information
necessary to resolve plaintiffs’ claims. In Part II, the Court
considers plaintiffs’ motion to consider evidence outside the
administrative record and denies the motion in part. In Part
III, the Court considers the parties’ cross-motions for summary
judgment. In Part III.A, the Court considers the government’s
arguments that this case is not justiciable and holds that this
Court has jurisdiction to hear plaintiffs’ challenges to the
credible fear policies. In Part III.B, the Court addresses the
legal standards that govern plaintiffs’ claims. In Part III.C,
the Court turns to the merits of plaintiffs’ claims and holds
that, with the exception of two policies, the new credible fear
policies are arbitrary, capricious, and in violation of the
immigration laws. In Part III.D, the Court considers the
appropriate form of relief and vacates the unlawful credible
fear policies. The Court further permanently enjoins the
government from continuing to apply those policies and from
removing plaintiffs who are currently in the United States
without first providing credible fear determinations consistent
with the immigration laws. Finally, the Court orders the
government to return to the United States the plaintiffs who
were unlawfully deported and to provide them with new credible
fear determinations consistent with the immigration laws.
4
I. Background
Because the claims in this action center on the expedited
removal procedures, the Court discusses those procedures, and
the related asylum laws, in detail.
A. Statutory and Regulatory Background
The Refugee Act
In 1980, Congress passed the Refugee Act, Pub. L. No. 96-
212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-414, 66
Stat. 163 (1952)(codified as amended in sections of 8 U.S.C.).
The “motivation for the enactment of the Refugee Act” was the
“United Nations Protocol Relating to the Status of Refugees
[“Protocol”],” INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987),
“to which the United States had been bound since 1968,” id. at
432–33. Congress was clear that its intent in promulgating the
Refugee Act was to bring the United States’ domestic laws in
line with the Protocol. See id. at 437 (stating it is “clear
from the legislative history of the new definition of ‘refugee,’
and indeed the entire 1980 Act . . . that one of Congress’
primary purposes was to bring United States refugee law into
conformance with the [Protocol].”). The Board of Immigration
Appeals (“BIA”), has also recognized that Congress’ intent in
enacting the Refugee Act was to align domestic refugee law with
the United States’ obligations under the Protocol, to give
statutory meaning to “our national commitment to human rights
5
and humanitarian concerns,” and “to afford a generous standard
for protection in cases of doubt.” In Re S-P-, 21 I. & N. Dec.
486, 492 (B.I.A. 1998)(quoting S. REP. NO. 256, 96th Cong., 2d
Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141, 144).
The Refugee Act created a statutory procedure for refugees
seeking asylum and established the standards for granting such
requests; the INA currently governs that procedure. The INA
gives the Attorney General discretion to grant asylum to
removable aliens. 8 U.S.C. § 1158(b)(1)(A). However, that relief
can only be granted if the alien is a “refugee.” Id. The term
“refugee” is defined as:
[A]ny person who is outside any country of
such person's nationality or, in the case of
a person having no nationality, is outside any
country in which such person last habitually
resided, and 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.
8 U.S.C. § 1101(a)(42)(A). “Thus, the ‘persecution or well-
founded fear of persecution’ standard governs the Attorney
General’s determination [of] whether an alien is eligible for
asylum.” Cardoza-Fonseca, 480 U.S. at 428. To establish refugee
status, the alien must show he or she is someone who: (1) has
suffered persecution (or has a well-founded fear of persecution)
(2) on account of (3) one of five specific protected grounds:
6
race, religion, nationality, membership in a particular social
group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A). An
alien fearing harm by non-governmental actors is eligible for
asylum if the other criteria are met, and the government is
“unable or unwilling to control” the persecutor. Matter of
Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) overruled on other
grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
Expedited Removal Process
Before seeking asylum through the procedures outlined
above, however, many aliens are subject to a streamlined removal
process called “expedited removal.” 8 U.S.C. § 1225. Prior to
1996, every person who sought admission into the United States
was entitled to a full hearing before an immigration judge, and
had a right to administrative and judicial review. See Am.
Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 41 (D.D.C.
1998)(describing prior system for removal). The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) amended the INA to provide for a summary removal
process for adjudicating the claims of aliens who arrive in the
United States without proper documentation. As described in the
IIRIRA Conference Report, the purpose of the expedited removal
procedure
is to expedite the removal from the United
States of aliens who indisputably have no
authorization to be admitted . . . , while
7
providing an opportunity for such an alien who
claims asylum to have the merits of his or her
claim promptly assessed by officers with full
professional training in adjudicating asylum
claims.
H.R. REP. NO. 104–828, at 209–10 (1996)(“Conf. Rep.”).
Consistent with that purpose, Congress carved out an
exception to the expedited removal process for individuals with
a “credible fear of persecution.” See 8 U.S.C.
§ 1225(b)(1)(B)(ii). If an alien “indicates either an intention
to apply for asylum . . . or a fear of persecution,” the alien
must be referred for an interview with a U.S. Citizenship and
Immigration Services (“USCIS”) asylum officer. Id.§ 1225(b)(1)(A)(ii). During this interview, the asylum officer
is required to “elicit all relevant and useful information
bearing on whether the applicant has a credible fear of
persecution or torture[.]” 8 C.F.R. § 208.30(d). The asylum
officer must “conduct the interview in a nonadversarial manner.”
Id.Expediting the removal process, however, risks sending
individuals who are potentially eligible for asylum to their
respective home countries where they face a real threat, or have
a credible fear of persecution. Understanding this risk,
Congress intended the credible fear determinations to be
governed by a low screening standard. See 142 CONG. REC. S11491-02
(“The credible fear standard . . . is intended to be a low
8
screening standard for admission into the usual full asylum
process”); see also H.R. REP. NO. 104-469, pt. 1, at 158
(1996)(stating “there should be no danger that an alien with a
genuine asylum claim will be returned to persecution”). A
credible fear is 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.” 8 U.S.C. § 1225(b)(1)(B)(v).
If, after a credible fear interview, the asylum officer
finds that the alien does have a “credible fear of persecution”
the alien is taken out of the expedited removal process and
referred to a standard removal hearing before an immigration
judge. See 8 U.S.C. § 1225(b)(1)(B)(ii), (v). At that hearing,
the alien has the opportunity to develop a full record with
respect to his or her asylum claim, and may appeal an adverse
decision to the BIA, 8 C.F.R. § 208.30(f), and then, if
necessary, to a federal court of appeals, see 8 U.S.C.
§ 1252(a)-(b).
If the asylum officer renders a negative credible fear
determination, the alien may request a review of that
determination by an immigration judge. 8 U.S.C.
§ 1225(b)(1)(B)(iii)(III). The immigration judge’s decision is
“final and may not be appealed” 8 C.F.R. § 1208.30(g)(2)(iv)(A),
9
except in limited circumstances. See 8 U.S.C. § 1252(e).
Judicial Review
Section 1252 delineates the scope of judicial review of
expedited removal orders and limits judicial review of orders
issued pursuant to negative credible fear determinations to a
few enumerated circumstances. See 8 U.S.C. § 1252(a). The
section provides that “no court shall have jurisdiction to
review . . . the application of [section 1225(b)(1)] to
individual aliens, including the [credible fear] determination
made under section 1225(b)(1)(B).” 8 U.S.C.
§ 1252(a)(2)(A)(iii). Moreover, except as provided in section
1252(e), the statute prohibits courts from reviewing: (1) “any
individual determination or to entertain any other cause or
claim arising from or relating to the implementation or
operation of an [expedited removal] order;” (2) “a decision by
the Attorney General to invoke” the expedited removal regime;
and (3) the “procedures and policies adopted by the Attorney
General to implement the provisions of section 1225(b)(1).” Id.§ 1252(a)(2)(A)(i), (ii) & (iv).
Section 1252(e) provides for judicial review of two types
of challenges to removal orders pursuant to credible fear
determinations. The first is a habeas corpus proceeding limited
to reviewing whether the petitioner was erroneously removed
because he or she was, among other things, lawfully admitted for
10
permanent residence, or had previously been granted asylum.
8 U.S.C. § 1252(e)(2)(C). As relevant here, the second
proceeding available for judicial review is a systemic challenge
to the legality of a “written policy directive, written policy
guideline, or written procedure issued by or under the authority
of the Attorney General to implement” the expedited removal
process. Id. § 1252(e)(3)(A)(ii). Jurisdiction to review such a
systemic challenge is vested solely in the United States
District Court for the District of Columbia. Id.
§ 1252(e)(3)(A).
B. Executive Guidance on Asylum Claims
Precedential Decision
The Attorney General has the statutory and regulatory
authority to make determinations and rulings with respect to
immigration law. See, e.g., 8 U.S.C. § 1103(a)(1). This
authority includes the ability to certify cases for his or her
review and to issue binding decisions. See 8 C.F.R.
§§ 1003.1(g)-(h)(1)(ii).
On June 11, 2018, then-Attorney General Sessions did
exactly that when he issued a precedential decision in an asylum
case, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). In Matter
of A-B-, the Attorney General reversed a grant of asylum to a
Salvadoran woman who allegedly fled several years of domestic
violence at the hands of her then-husband. Id. at 321, 346.
11
The decision began by overruling another case, Matter of A-
R-C-G-, 27 I. & N. Dec. 388 (BIA 2014). Id. at 319. In A-R-C-G-,
the BIA recognized “married women in Guatemala who are unable to
leave their relationship” as a “particular social group” within
the meaning of the asylum statute. 27 I. & N. Dec. at 392. The
Attorney General’s rationale for overruling A-R-C-G- was that it
incorrectly applied BIA precedent, “assumed its conclusion and
did not perform the necessary legal and factual analysis”
because, among other things, the BIA accepted stipulations by
DHS that the alien was a member of a qualifying particular
social group. Matter of A-B-, 27 I. & N. Dec. at 319. In so
doing, the Attorney General made clear that “[g]enerally, claims
by aliens pertaining to domestic violence or gang violence
perpetrated by non-governmental actors will not qualify for
asylum,” id. at 320, 4 and “[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 (citing 8 U.S.C.
§ 1225(b)(1)(B)(v)).
The Attorney General next reviewed the history of BIA
precedent interpreting the “particular social group” standard
and again explained, at length, why A-R-C-G- was wrongly
4 Although Matter of A-B- discusses gang-related violence at
length, the applicant in Matter of A-B- never claimed gang
members had any involvement in her case. Id. at 321 (describing
persecution related to domestic violence).
12
decided. In so ruling, the Attorney General articulated legal
standards for determining asylum cases based on persecution from
non-governmental actors on account of membership in a particular
social group, focusing principally on claims by victims of
domestic abuse and gang violence. He specifically stated that
few claims pertaining to domestic or gang violence by non-
governmental actors could qualify for asylum or satisfy the
credible fear standard. See id. at 320 n.1.
The Attorney General next focused on the specific elements
of an asylum claim beginning with the standard for membership in
a “particular social group.” The Attorney General declared that
“[s]ocial groups defined by their vulnerability to private
criminal activity likely lack the particularity required” under
asylum laws since “broad swaths of society may be susceptible to
victimization.” Id. at 335.
The Attorney General next examined the persecution
requirement, which he described as having three elements: (1) an
intent to target a belief or characteristic; (2) severe harm;
and (3) suffering inflicted by the government or by persons the
government was unable or unwilling to control. Id. at 337. With
respect to the last element, the Attorney General stated that an
alien seeking to establish persecution based on the violent
conduct of a private actor may not solely rely on the
government’s difficulty in controlling the violent behavior. Id.
13
Rather, the alien must show “the government condoned the private
actions or at least demonstrated a complete helplessness to
protect the victims.” Id. (citations and internal quotation
marks omitted).
The Attorney General concluded with a discussion of the
requirement that an asylum applicant demonstrate that the
persecution he or she suffered was on account of a membership in
a “particular social group.” Id. at 338–39. He explained that
“[i]f the ill-treatment [claimed by an alien] was motivated by
something other than” one of the five statutory grounds for
asylum, then the alien “cannot be considered a refugee for
purpose of asylum.” Id. at 338 (citations omitted). He continued
to explain that when private actors inflict violence based on
personal relationships with a victim, the victim’s membership in
a particular social group “may well not be ‘one central reason’
for the abuse.” Id. Using Matter of A-R-C-G- as an example, the
Attorney General stated that there was no evidence that the
alien was attacked because her husband was aware of, and hostile
to, her particular social group: women who were unable to leave
their relationship. Id. at 338-39. The Attorney General remanded
the matter back to the immigration judge for further proceedings
consistent with his decision. Id. at 346.
14
Policy Memorandum
Two days after the Attorney General issued Matter of A-B-,
USCIS issued Interim Guidance instructing asylum officers to
apply Matter of A-B- to credible fear determinations. Asylum
Division Interim Guidance -- Matter of A-B-, 27 I. & N. Dec. 316(A.G. 2018) (“Interim Guidance”), ECF No. 100 at 15–18. 5 On July
11, 2018, USCIS issued final guidance to asylum officers for use
in assessing asylum claims and credible fear determinations in
light of Matter of A-B-. USCIS Policy Mem., Guidance for
Processing Reasonable Fear, Credible Fear, Asylum, and Refugee
Claims in Accordance with Matter of A-B-, July 11, 2018 (PM-602-
0162) (“Policy Memorandum”), ECF No. 100 at 4–13.
The Policy Memorandum adopts the standards set forth in
Matter of A-B- and adds new directives for asylum officers.
First, like Matter of A-B-, the Policy Memorandum invokes the
expedited removal statute. Id. at 4 (citing section 8 U.S.C.
§ 1225 as one source of the Policy Memorandum’s authority). The
Policy Memorandum further acknowledges that “[a]lthough the
alien in Matter of A-B- claimed asylum and withholding of
removal, the Attorney General’s decision and this [Policy
Memorandum] apply also to refugee status adjudications and
5 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed docket.
15
reasonable fear and credible fear determinations.” Id. n.1
(citations omitted).
The Policy Memorandum also adopts the standard for
“persecution” set by Matter of A-B-: In cases of alleged
persecution by private actors, aliens must demonstrate the
“government is unwilling or unable to control” the harm “such
that the government either ‘condoned the behavior or
demonstrated a complete helplessness to protect the victim.’”
Id. at 5 (citing Matter of A-B-, 27 I. & N. Dec. at 337). After
explaining the “condoned or complete helplessness” standard, the
Policy Memorandum explains that:
In general, in light of the [standards
governing persecution by a non-government
actor], 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.
Id. at 9 (emphasis in original).
Furthermore, the Policy Memorandum made clear that because
Matter of A-B- “explained the standards for eligibility for
asylum . . . based on a particular social group . . . if an
applicant claims asylum based on membership in a particular
social group, then officers must factor [the standards explained
in Matter of A-B-] into their determination of whether an
16
applicant has a credible fear . . . of persecution.” Id. at 12
(citations and internal quotation marks omitted).
The Policy Memorandum includes two additional directives
not found in Matter of A-B-. First, it instructs asylum officers
to apply the “case law of the relevant federal circuit court, to
the extent that those cases are not inconsistent with Matter of
A-B-.” Id. at 11. Second, although acknowledging that the
“relevant federal circuit court is the circuit where the removal
proceedings will take place if the officer makes a positive
credible fear or reasonable fear determination,” the Policy
Memorandum instructs asylum officers to “apply precedents of the
Board, and, if necessary, the circuit where the alien is
physically located during the credible fear interview.” Id. at
11–12. (emphasis added).
The Policy Memorandum concludes with the directive that
“[asylum officers] should be alert that under the standards
clarified in Matter of A-B-, few gang-based or domestic-violence
claims involving particular social groups defined by the
members’ vulnerability to harm may . . . pass the ‘significant
probability’ test in credible-fear screenings.” Id. at 13.
C. Factual and Procedural Background
Each of the plaintiffs, twelve adults and children, came to
the United States fleeing violence from Central America and
seeking refuge through asylum. Plaintiff Grace fled Guatemala
17
after having been raped, beaten, and threatened for over twenty
years by her partner who disparaged her because of her
indigenous heritage. Grace Decl., ECF No. 12-1 ¶ 2. 6 Her
persecutor also beat, sexually assaulted, and threatened to kill
several of her children. Id. Grace sought help from the local
authorities who, with the help of her persecutor, evicted her
from her home. Id.
Plaintiff Carmen escaped from her country with her young
daughter, J.A.C.F., fleeing several years of sexual abuse by her
husband, who sexually assaulted, stalked, and threatened her,
even after they no longer resided together. Carmen Decl., ECF
No. 12-2 ¶ 2. In addition to Carmen’s husband’s abuse, Carmen
and her daughter were targeted by a local gang because they knew
she lived alone and did not have the protection of a family. Id.
¶ 24. She fled her country of origin out of fear the gang would
kill her. Id. ¶ 28.
Plaintiff Mina escaped from her country after a gang
murdered her father-in-law for helping a family friend escape
from the gang. Mina Decl., ECF No. 12-3 ¶ 2. Her husband went to
the police, but they did nothing. Id. at ¶ 10. While her husband
was away in a neighboring town to seek assistance from another
police force, members of the gang broke down her door and beat
6 The plaintiffs’ declarations have been filed under seal.
18
Mina until she could no longer walk. Id. ¶ 15. She sought asylum
in this country after finding out she was on a “hit list”
compiled by the gang. Id. ¶¶ 17–18.
The remaining plaintiffs have similar accounts of abuse
either by domestic partners or gang members. Plaintiff Gina fled
violence from a politically-connected family who killed her
brother, maimed her son, and threatened her with death. Gina
Decl., ECF No. 12-4 ¶ 2. Mona fled her country after a gang
brutally murdered her long-term partner—a member of a special
military force dedicated to combating gangs—and threatened to
kill her next. Mona Decl., ECF No. 12-5 ¶ 2. Gio escaped from
two rival gangs, one of which broke his arm and threatened to
kill him, and the other threatened to murder him after he
refused to deal drugs because of his religious convictions. Gio
Decl., ECF No. 12-6 ¶ 2. Maria, an orphaned teenage girl,
escaped a forced sexual relationship with a gang member who
targeted her after her Christian faith led her to stand up to
the gang. Maria Decl., ECF No. 12-7 ¶ 2. Nora, a single mother,
together with her son, A.B.A., fled an abusive partner and
members of his gang who threatened to rape her and kill her and
her son if she did not submit to the gang’s sexual advances.
Nora Decl., ECF No. 12-8 ¶ 2. Cindy, together with her young
child, A.P.A., fled rapes, beatings, and shootings
19
. Cindy Decl., ECF No. 12-9 ¶ 2. 7
Each plaintiff was given a credible fear determination
pursuant to the expedited removal process. Despite finding that
the accounts they provided were credible, the asylum officers
determined that, in light of Matter of A-B-, their claims lacked
merit, resulting in a negative credible fear determination.
Plaintiffs sought review of the negative credible fear
determinations by an immigration judge, but the judge affirmed
the asylum officers’ findings. Plaintiffs are now subject to
final orders of removal or were removed pursuant to such orders
prior to commencing this suit. 8
Facing imminent deportation, plaintiffs filed a motion for
preliminary injunction, ECF No. 10, and an emergency motion for
stay of removal, ECF No. 11, on August 7, 2018. In their motion
for stay of removal, plaintiffs sought emergency relief because
two of the plaintiffs, Carmen and her daughter J.A.C.F., were
“subject to imminent removal.” ECF No. 11 at 1.
The Court granted the motion for emergency relief as to the
plaintiffs not yet deported. The parties have since filed cross-
7 Each plaintiffs’ harrowing accounts were found to be believable
during the plaintiffs’ credible fear interviews. Oral Arg. Hr’g
Tr., ECF No. 102 at 37.
8 Since the Court’s Order staying plaintiffs’ removal, two
plaintiffs have moved for the Court to lift the stay and have
accordingly been removed. See Mot. to Lift Stay, ECF Nos. 28
(plaintiff Mona), 60 (plaintiff Gio).
20
motions for summary judgment related to the Attorney General’s
precedential decision and the Policy Memorandum issued by DHS.
Further, plaintiffs have filed an opposed motion to consider
evidence outside the administrative record.
II. Motion to Consider Extra Record Evidence
Plaintiffs attach several exhibits to their combined
application for a preliminary injunction and cross-motion for
summary judgment, see ECF Nos. 10–2 to 10–7, 12-1 to 12-9, 64-3
to 64-8, which were not before the agency at the time it made
its decision. These exhibits include: (1) declarations from
plaintiffs; (2) declarations from experts pertaining to whether
the credible fear policies are new; (3) government training
manuals, memoranda, and a government brief; (4) third-party
country reports or declarations; (5) various newspaper articles;
and (6) public statements from government officials. Pls.’ Evid.
Mot., ECF No. 66-1 at 7–16. The government moves to strike these
exhibits, arguing that judicial review under the APA is limited
to the administrative record, which consists of the “materials
that were before the agency at the time its decision was made.”
Defs.’ Mot. to Strike, ECF No. 88-1 at 20.
A. Legal Standard
“[I]t is black-letter administrative law that in an APA
case, a reviewing court ‘should have before it neither more nor
less information than did the agency when it made its
21
decision.’” Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709
F.3d 44, 47 (D.C. Cir. 2013)(quoting Walter O. Boswell Mem'l
Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). This is
because, under the APA, the court is confined to reviewing “the
whole record or those parts of it cited by a party,” 5 U.S.C.
§ 706, and the administrative record only includes the
“materials ‘compiled’ by the agency that were ‘before the agency
at the time the decision was made,’” James Madison Ltd. by Hecht
v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)(citations
omitted).
Accordingly, when, as here, plaintiffs seek to place before
the court additional materials that the agency did not review in
making its decision, a court must exclude such material unless
plaintiffs “can demonstrate unusual circumstances justifying
departure from th[e] general rule.” Am. Wildlands v. Kempthorne,
530 F.3d 991, 1002 (D.C. Cir. 2008)(citation omitted). Aa court
may appropriately consider extra-record materials: (1) if the
agency “deliberately or negligently excluded documents that may
have been adverse to its decision,” (2) if background
information is needed to “determine whether the agency
considered all of the relevant factors,” or (3) if the agency
“failed to explain [the] administrative action so as to
frustrate judicial review.” Id.Plaintiffs make three arguments as to why the Court should
22
consider their proffered extra-record materials: (1) to evaluate
whether the government’s challenged policies are an
impermissible departure from prior policies; (2) to consider
plaintiffs’ due process cause of action 9; and (3) to evaluate
plaintiffs’ request for permanent injunctive relief. Pls.’ Evid.
Mot., ECF No. 66-1 at 2–12. The Court considers each argument in
turn.
B. Analysis
Evidence of Prior Policies
Plaintiffs first argue that the Court should consider
evidence of the government’s prior policies as relevant to
determining whether the policies in Matter of A-B- and the
subsequent guidance deviated from prior policies without
explanation. Id. at 8–11. The extra-record materials at issue
include government training manuals, memoranda, and a government
brief, see Decl. of Sarah Mujahid (“Mujahid Decl.”), ECF No. 10-
3 Exs. E–J; Second Decl. of Sarah Mujahid (“Second Mujahid
Decl.”), ECF No. 64-4, Exs. 1–3, and declarations from third
parties explaining the policies are new, Decl. of Rebecca Jamil
and Ethan Nasr, ECF No. 65-5.
The Court will consider the government training manuals,
9 The Court does not reach plaintiffs’ due process claims, and
therefore will not consider the extra-record evidence related to
that claim. See Second Mujahid Decl., ECF No. 64-4, Exs. 4–7;
Second Mujahid Decl., ECF No. 64-4, Exs. 8-9; ECF No. 64-5.
23
memoranda, and government brief, but not the declarations
explaining them. Plaintiffs argue that the credible fear
policies are departures from prior government policies, which
the government changed without explanation. Pls.’ Evid. Mot.,
ECF No. 66-1 at 7–11. The government’s response is the credible
fear policies are not a departure because they do not articulate
any new rules. See Defs.’ Mot., ECF No. 57-1 at 17. Whether the
credible fear policies are new is clearly an “unresolved factual
issue” that the “administrative record, on its own, . . . is not
sufficient to resolve.” See United Student Aid Funds, Inc. v.
Devos, 237 F. Supp. 3d 1, 6 (D.D.C. 2017). The Court cannot
analyze this argument without reviewing the prior policies,
which are not included in the administrative record. Under these
circumstances, it is “appropriate to resort to extra-record
information to enable judicial review to become effective.” Id.at 3 (citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir.
1989)).
The government agrees that “any claim that A-B- or the
[Policy Memorandum] breaks with past policies . . . is readily
ascertainable by simply reviewing the very ‘past policies.’”
Defs.’ Mot. to Strike, ECF No. 88-1 at 24. However, the
government disagrees with the types of documents that are
considered past policies. Id. According to the government, the
only “past policies” at issue are legal decisions issued by the
24
Attorney General, BIA, or courts of appeals. Id. The Court is
not persuaded by such a narrow interpretation of the evidence
that can be considered as past policies. See Leadership
Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 255
(D.D.C. 2005)(finding training manual distributed as informal
guidance “at a minimum” reflected the policy of the “Elections
Crimes Branch if not the Department of Justice”).
Admitting third party-declarations from a retired immigration
officer and former immigration judge, on the other hand, are not
necessary for the Court in its review. Declarations submitted by
third-parties regarding putative policy changes would stretch
the limited extra-record exception too far. Accordingly, the
Court will not consider these declarations when determining
whether the credible fear policies constitute an unexplained
change of position.
Evidence Supporting Injunctive Relief
The second category of information plaintiffs ask the Court
to consider is extra-record evidence in support of their claim
that injunctive relief is appropriate. Pls.’ Evid. Mot., ECF No.
66-1 at 13–16. The evidence plaintiffs present includes
plaintiffs’ declarations, ECF Nos. 12-1 to 12-9 (filed under
seal); several reports describing the conditions of plaintiffs’
native countries, Mujahid Decl., ECF No. 10-3, Exs. K-T; and
four United Nations High Commissioner for Refugees (“UNHCR”)
25
reports, Second Mujahid Decl., ECF No. 64-4 Exs. 10–13. The
materials also include three declarations regarding humanitarian
conditions in the three home countries. Joint Decl. of Shannon
Drysdale Walsh, Cecilia Menjívar, and Harry Vanden (“Honduras
Decl.”), ECF No. 64-6; Joint Decl. of Cecilia Menjívar, Gabriela
Torres, and Harry Vanden (“Guatemala Decl.”), ECF No. 64-7;
Joint Decl. of Cecilia Menjívar and Harry Vanden (“El Salvador
Decl.”), ECF No. 64-8.
The government argues that the Court need not concern itself
with the preliminary injunction analysis because the Court’s
decision to consolidate the preliminary injunction and summary
judgment motions under Rule 65 renders the preliminary
injunction moot. Defs.’ Mot. to Strike, ECF No. 88-1 at 12 n.1.
The Court concurs, but nevertheless must determine if plaintiffs
are entitled to a permanent injunction, assuming they prevail on
their APA and INA claims. Because plaintiffs request specific
injunctive relief with respect to their expedited removal orders
and credible fear proceedings, the Court must determine whether
plaintiffs are entitled to the injunctive relief sought. See Eco
Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 370, n.7
(D.D.C. 2017)(“it will often be necessary for a court to take
new evidence to fully evaluate” claims “of irreparable harm . .
. and [claims] that the issuance of the injunction is in the
public interest.”)(citation omitted). Thus, the Court will
26
consider plaintiffs’ declarations, the UNHCR reports, and the
country reports only to the extent they are relevant to
plaintiffs’ request for injunctive relief. 10
In sum, the Court will consider extra-record evidence only to
the extent it is relevant to plaintiffs’ contentions that the
government deviated from prior policies without explanation or
to their request for injunctive relief. The Court will not
consider any evidence related to plaintiffs’ due process claim.
Accordingly, the Court will not consider the following
documents: (1) evidence related to the opinions of immigration
judges and attorneys, Second Mujahid Decl., ECF No. 64-4, Exs.
8–9, 14–17 and ECF No. 64-5; (2) statements of various public
officials, Second Mujahid Decl., ECF No. 64-4, Exs. 4–7; and
(3) various newspaper articles, Mujahid Decl., ECF No. 10-3,
Exs. R-T, and Second Mujahid Decl., ECF No. 64-4, Exs. 14–17.
III. Motion for Summary Judgment
A. Justiciability
The Court next turns to the government’s jurisdictional
arguments that: (1) the Court lacks jurisdiction to review
plaintiffs’ challenge to Matter of A-B-; and (2) because the
Court lacks jurisdiction to review Matter of A-B-, the
10The Court will not consider three newspaper articles, Mujahid
Decl., ECF No. 10-3, Exs. R–T, however, since they are not
competent evidence to be considered at summary judgment. See
Fed. R. Civ. P. 56(c).
27
government action purportedly causing plaintiffs’ alleged harm,
the plaintiffs lack standing to challenge the Policy Memorandum.
Federal district courts are courts of limited jurisdiction. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). A court must therefore resolve any challenge to its
jurisdiction before it may proceed to the merits of a claim. See
Galvan v. Fed. Prison Indus., 199 F.3d 461, 463 (D.C. Cir.
1999). The Court addresses each argument in turn.
The Court has Jurisdiction under Section 1252(e)(3)
a. Matter of A-B-
The government contends that section 1252 forecloses
judicial review of plaintiffs’ claims with respect to Matter of
A-B-. Defs.’ Mot., ECF No. 57-1 at 30–34. Plaintiffs argue that
the statute plainly provides jurisdiction for this Court to
review their claims. Pls.’ Mot., ECF No. 64-1 at 26–30. The
parties agree that to the extent jurisdiction exists to review a
challenge to a policy implementing the expedited removal system,
it exists pursuant to subsection (e) of the statute.
Under section 1252(a)(2)(A), no court shall have
jurisdiction over “procedures and policies adopted by the
Attorney General to implement the provisions of section
1225(b)(1)” except “as provided in subsection [1252](e).”
Section 1252(e)(3) vests exclusive jurisdiction in the United
States District Court for the District of Columbia to review
28
“[c]hallenges [to the] validity of the [expedited removal]
system.” Id. § 1252(e)(3)(A). Such systemic challenges include
challenges to the constitutionality of any provision of the
expedited removal statute or to its implementing regulations.
See id. § 1252(e)(3)(A)(i). They also include challenges
claiming that a given regulation or written policy directive,
guideline, or procedure is inconsistent with law. Id. §
1252(e)(3)(A)(ii). Systemic challenges must be brought within
sixty days of the challenged statute or regulation’s
implementation. Id. § 1252(e)(3)(B); see also Am. Immigration
Lawyers Ass'n, 18 F. Supp. 2d at 47 (holding that “the 60–day
requirement is jurisdictional rather than a traditional
limitations period”).
Both parties agree that the plain language of section
1252(e)(3) is dispositive. It reads as follows:
(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under
section 1225(b) 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--
(i) whether such section, or any regulation
issued to implement such section, is
constitutional; or
(ii) whether such a regulation, or a written
policy directive, written policy guideline, or
29
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.
8 U.S.C. § 1252(e)(3).
The government first argues that Matter of A-B- does not
implement section 1225(b), as required by section 1252(e)(3).
Defs.’ Mot., ECF No. 57-1 at 30–32. Instead, the government
contends Matter of A-B- was a decision about petitions for
asylum under section 1158. Id. The government also argues that
Matter of A-B- is not a written policy directive under the Act,
but rather an adjudication that determined the rights and duties
of the parties to a dispute. Id. at 32.
The government’s argument that Matter of A-B- does not
“implement” section 1225(b) is belied by Matter of A-B- itself.
Although A-B- sought asylum, the Attorney General’s decision
went beyond her claims explicitly addressing “the legal standard
to determine whether an alien has a credible fear of
persecution” under 8 U.S.C. section 1225(b). Matter of A-B-, 27
I. & N. Dec. at 320 n.1 (citing standard for credible fear
determinations). In the decision, the Attorney General
articulated the general rule that claims by aliens pertaining to
either domestic violence, like the claim in Matter of A-B-, or
gang violence, a hypothetical scenario not at issue in Matter of
A-B-, would likely not satisfy the credible fear determination
30
standard. Id. (citing 8 U.S.C. § 1225(b)). Because the Attorney
General cited section 1225(b) and the standard for credible fear
determinations when articulating the new general legal standard,
the Court finds that Matter of A-B- implements section 1225(b)
within the meaning of section 1252(e)(3).
The government also argues that, despite Matter of A-B-’s
explicit invocation of section 1225 and articulation of the
credible fear determination standard, Matter of A-B- is an
“adjudication” not a “policy,” and therefore section 1252(e)(3)
does not apply. Defs.’ Mot., ECF No. 57-1 at 32–34. However, it
is well-settled that an “administrative agency can, of course,
make legal-policy through rulemaking or by adjudication.” Kidd
Commc’ns v. F.C.C., 427 F.3d 1, 5 (D.C. Cir. 2005)(citing SEC v.
Chenery Corp., 332 U.S. 194, 202–03 (1947)). Moreover, “[w]hen
an agency does [make policy] by adjudication, because it is a
policymaking institution unlike a court, its dicta can represent
an articulation of its policy, to which it must adhere or
adequately explain deviations.” Id. at 5. Matter of A-B- is a
sweeping opinion in which the Attorney General made clear that
asylum officers must apply the standards set forth to subsequent
credible fear determinations. See NRLB v. Wyman Gordon Co., 394
U.S. 759, 765 (1969)(“Adjudicated cases may and do, of course,
serve as vehicles for the formulation of agency policies, which
are applied and announced therein.”).
31
Indeed, it is difficult to reconcile the government’s
argument with the language in Matter of A-B-: “When confronted
with asylum cases based on purported membership in a particular
social group, the Board, immigration judges, and asylum officers
must analyze the requirements as set forth in this opinion,
which restates and where appropriate, elaborates upon, the
requirements [for asylum].” 27 I. & N. Dec. at 319 (emphasis
added). This proclamation, coupled with the directive to asylum
officers that claims based on domestic or gang-related violence
generally would not “satisfy the standard to determine whether
an alien has a credible fear of persecution,” id. at 320 n.1, is
clearly a “written policy directive” or “written policy
guidance” sufficient to bring Matter of A-B- under the ambit of
section 1252(e)(3). See Kidd, 427 F.3d at 5 (stating agency can
“make legal-policy through rulemaking or by adjudication”).
Indeed, one court has regarded Matter of A-B- as such. See
Moncada v. Sessions, 2018 WL 4847073 *2 (2d Cir. Oct. 5,
2018)(characterizing Matter of A-B- as providing “substantial
new guidance on the viability of asylum ‘claims by aliens
pertaining to . . . gang violence’”)(emphasis added)(citation
omitted).
The government also argues that because the DHS Secretary,
rather than the Attorney General, is responsible for
implementing most of the provisions in section 1225, the
32
Attorney General lacks the requisite authority to implement
section 1225. Defs.’ Reply, ECF No. 85 at 25. Therefore, the
government argues, Matter of A-B- cannot be “issued by or under
the authority of the Attorney General to implement [section
1225(b)]” as required by the statute. See 8 U.S.C.
§ 1252(e)(3)(A)(ii). The government fails to acknowledge,
however, that the immigration judges who review negative
credible fear determinations are also required to apply Matter
of A-B-. 8 C.F.R. § 1208.30(g)(2); 8 C.F.R. § 103.10(b)(stating
decisions of the Attorney General shall be binding on
immigration judges). And it is the Attorney General who is
responsible for the conduct of immigration judges. See, e.g., 8
U.S.C. § 1101(b)(4)(“An immigration judge shall be subject to
such supervision and shall perform such duties as the Attorney
General shall prescribe.”). Therefore, the Attorney General
clearly plays a significant role in the credible fear
determination process and has the authority to “implement”
section 1225.
Finally, the Court recognizes that even if the
jurisdictional issue was a close call, which it is not, several
principles persuade the Court that jurisdiction exists to hear
plaintiffs’ claims. First, there is the “familiar proposition
that only upon a showing of clear and convincing evidence of a
contrary legislative intent should the courts restrict access to
33
judicial review.” Bd. of Governors of the Fed. Reserve Sys. v.
MCorp. Fin., Inc., 502 U.S. 32, 44 (1991)(citations and internal
quotation marks omitted). Here, there is no clear and convincing
evidence of legislative intent in section 1252 that Congress
intended to limit judicial review of the plaintiffs’ claims. To
the contrary, Congress has explicitly provided this Court with
jurisdiction to review systemic challenges to section 1225(b).
See 8 U.S.C. § 1252(e)(3).
Second, there is also a “strong presumption in favor of
judicial review of administrative action.” INS v. St. Cyr, 533
U.S. 289, 298 (2001). As the Supreme Court has recently
explained, “legal lapses and violations occur, and especially so
when they have no consequence. That is why [courts have for] so
long applied a strong presumption favoring judicial review of
administrative action.” Weyerhaeuser Co. v. United States Fish
and Wildlife Servs., 586 U.S. __,__ (2018)(slip op., at 11).
Plaintiffs challenge the credible fear policies under the APA
and therefore this “strong presumption” applies in this case.
Third, statutory ambiguities in immigration laws are
resolved in favor of the alien. See Cardoza–Fonseca, 480 U.S. at
449. Here, any doubt as to whether 1252(e)(3) applies to
plaintiffs’ claims should be resolved in favor of plaintiffs.
See INS v. Errico, 385 U.S. 214, 225 (1966)(“Even if there were
some doubt as to the correct construction of the statute, the
34
doubt should be resolved in favor of the alien.”).
In view of these three principles, and the foregoing
analysis, the Court concludes that section 1252(a)(2)(A) does
not eliminate this Court's jurisdiction over plaintiffs’ claims,
and that section 1252(e)(3) affirmatively grants jurisdiction.
b. Policy Memorandum
The government also argues that the Court lacks
jurisdiction to review the Policy Memorandum under section
1252(e) for three reasons. First, according to the government,
the Policy Memorandum “primarily addresses the asylum standard”
and therefore does not implement section 1225(b) as required by
the statute. Defs.’ Reply, ECF No. 85 at 30. Second, since the
Policy Memorandum “merely explains” Matter of A-B-, the
government argues, it is not reviewable for the same reasons
Matter of A-B- is not reviewable. Id. Finally, the government
argues that sections 1225 and 1252(e)(3) “indicate” that
Congress only provided judicial review of agency guidelines,
directives, or procedures which create substantive rights as
opposed to interpretive documents, like the Policy Memorandum,
which merely explain the law to government officials. Id. at 31–
33.
The Court need not spend much time on the government’s
first two arguments. First, the Policy Memorandum, entitled
“Guidance for Processing Reasonable Fear, Credible Fear, Asylum,
35
and Refugee Claims in Accordance with Matter of A-B-” expressly
applies to credible fear interviews and provides guidance to
credible fear adjudicators. Policy Memorandum, ECF No. 100 at 4
n.1 (“[T]he Attorney General’s decision and this [Policy
Memorandum] apply also to . . . credible fear determinations.”).
Furthermore, it expressly invokes section 1225 as the authority
for its issuance. Id. at 4. The government’s second argument
that the Policy Memorandum is not reviewable for the same
reasons Matter of A-B- is not, is easily dismissed because the
Court has already found that Matter of A-B- falls within section
1252(e)(3)’s jurisdictional grant. See supra, at 27-38.
The government’s third argument is that section 1252(e)(3)
only applies when an agency promulgates legislative rules and
not interpretive rules. Defs.’ Reply, ECF No. 85 at 30–33.
Although not entirely clear, the argument is as follows: (1) the
INA provides DHS with significant authority to create
legislative rules; (2) Congress barred judicial review of such
substantive rules in section 1252(a); (3) therefore Congress
must have created a mechanism to review these types of
legislative rules, and only legislative rules, in section
1252(e)(3)). Id. at 30–31. Folded into this reasoning is also a
free-standing argument that because the Policy Memorandum is not
a final agency action, it is not reviewable under the APA. Id.
at 32.
36
Contrary to the government’s assertions, section 1252(e)(3)
does not limit its grant of jurisdiction over a “written policy
directive, written policy guideline, or written procedure” to
only legislative rules or final agency action. Nowhere in the
statute did Congress exclude interpretive rules. Cf. 5 U.S.C.
§ 553(b)(3)(A)(stating subsection of statute does not apply to
“interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice.”). Rather, Congress
used broader terms such as policy “guidelines,” “directives,” or
“procedures” which do not require notice and comment rulemaking
or other strict procedural prerequisites. See 8 U.S.C.
§ 1252(e)(3). There is no suggestion that Congress limited the
application of section 1252(e)(3) to only claims involving
legislative rules or final agency action, and this Court will
not read requirements into the statute that do not exist. See
Keene Corp. v. U.S., 508 U.S. 200, 208 (1993)(stating courts
have a “duty to refrain from reading a phrase into the statute
when Congress has left it out”).
In sum, section 1252(a)(2)(A) is not a bar to this Court's
jurisdiction because plaintiffs’ claims fall well within section
1252(e)(3)’s grant of jurisdiction. Both Matter of A-B- and the
Policy Memorandum expressly reference credible fear
determinations in applying the standards articulated by the
Attorney General. Because Matter of A-B- and the Policy
37
Memorandum are written policy directives and guidelines issued
by or under the authority of the Attorney General, section
1252(e)(3) applies, and this Court has jurisdiction to hear
plaintiffs’ challenges to the credible fear policies.
Plaintiffs have Standing to Challenge the Policy
Memorandum
The government next challenges plaintiffs’ standing to
bring this suit with respect to their claims against the Policy
Memorandum only. Defs.’ Mot., ECF No. 57-1 at 35–39. To
establish standing, a plaintiff “must, generally speaking,
demonstrate that he has suffered ‘injury in fact,’ that the
injury is ‘fairly traceable’ to the actions of the defendant,
and that the injury will likely be redressed by a favorable
decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997)(citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Valley
Forge Christian Coll. v. Ams. United for Separation of Church
and State, Inc., 454 U.S. 464, 471–72 (1982)). Standing is
assessed “upon the facts as they exist at the time the complaint
is filed.” Natural Law Party of U.S. v. Fed. Elec. Comm'n, 111
F. Supp. 2d 33, 41 (D.D.C. 2000).
As a preliminary matter, the government argues that
plaintiffs lack standing to challenge any of the policies in the
Policy Memorandum that rest on Matter of A-B- because the Court
does not have jurisdiction to review Matter of A-B-. See Defs.’
38
Mot., ECF No. 57-1 at 35, 37–39. Therefore, the government
argues, plaintiffs’ injuries would not be redressable or
traceable to the Policy Memorandum since they stem from Matter
of A-B-. This argument fails because the Court has found that it
has jurisdiction to review plaintiffs’ claims related to Matter
of A-B- under 1252(e)(3). See supra, at 27-38.
The government also argues that because plaintiffs do not
have a legally protected interest in the Policy Memorandum—an
interpretive document that creates no rights or obligations—
plaintiffs do not have an injury in fact. Defs.’ Reply, ECF No.
85 at 33. The government’s argument misses the point. Plaintiffs
do not seek to enforce a right under a prior policy or
interpretive guidance. See Pls.’ Reply, ECF No. 92 at 17–18.
Rather, they challenge the validity of their credible fear
determinations pursuant to the credible fear policies set forth
in Matter of A-B- and the Policy Memorandum. Because the
credible fear policies impermissibly raise their burden and deny
plaintiffs a fair opportunity to seek asylum and escape the
persecution they have suffered, plaintiffs argue, the policies
violate the APA and immigration laws. See id.
The government also argues that even if the Court has
jurisdiction, all the claims, with the exception of one, are
time-barred and therefore not redressable. Defs.’ Mot., ECF No.
57-1 at 39–41. The government argues that none of the policies
39
are in fact new and each pre-date the sixty days in which
plaintiffs are statutorily required to bring their claims. Id.
at 39–41. The government lists each challenged policy and relies
on existing precedent purporting to apply the same standard
espoused in the Policy Memorandum prior to its issuance. See id.
at 39–41. The challenge in accepting this theory of standing is
that it would require the Court to also accept the government’s
theory of the case: that the credible fear policies are not
“new.” In other words, the government’s argument “assumes that
its view on the merits of the case will prevail.” Defs. of
Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008). This
is problematic because “in reviewing the standing question, the
court must be careful not to decide the questions on the merits
for or against the plaintiff, and must therefore assume that on
the merits the plaintiffs would be successful in their claims.”
City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003)(citations omitted).
Whether the credible fear policies differ from the
standards articulated in the pre-policy cases cited by the
government, and are therefore new, is a contested issue in this
case. And when assessing standing, this Court must “be careful
not to decide the questions on the merits” either “for or
against” plaintiffs, “and must therefore assume that on the
merits the plaintiffs would be successful in their claims.” Id.40
Instead, the Court must determine whether an order can redress
plaintiffs’ injuries in whole or part. Gutierrez, 532 F.3d at
925. There is no question that the challenged policies impacted
plaintiffs. See Defs.’ Mot., ECF No. 57-1 at 28 (stating an
“asylum officer reviewed each of [plaintiffs] credible fear
claims and found them wanting in light of Matter of A-B-”).
There is also no question that an order from this Court
declaring the policies unlawful and enjoining their use would
redress those injuries. See Carpenters Indus. Council v. Zinke,
854 F.3d 1, 6 n.1 (D.C. Cir. 2017)(stating when government
actions cause an injury, enjoining that action will usually
redress the injury).
Because plaintiffs have demonstrated that they have:
(1) suffered an injury; (2) the injury is fairly traceable to
the credible fear policies; and (3) action by the Court can
redress their injuries, plaintiffs have standing to challenge
the Policy Memorandum. Therefore, the Court may proceed to the
merits of plaintiffs’ claims.
B. Legal Standard for Plaintiffs’ Claims
Although both parties have moved for summary judgment, the
parties seek review of an administrative decision under the APA.
See 5 U.S.C. § 706. Therefore, the standard articulated in
Federal Rule of Civil Procedure 56 is inapplicable because the
Court has a more limited role in reviewing the administrative
41
record. Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C.
2011)(internal citation omitted). “[T]he function of the
district court is to determine whether or not as a matter of law
the evidence in the administrative record permitted the agency
to make the decision it did.” See Sierra Club v. Mainella, 459
F. Supp. 2d 76, 90 (D.D.C. 2006)(internal quotation marks and
citations omitted). “Summary judgment thus serves as the
mechanism for deciding, as a matter of law, whether the agency
action is supported by the administrative record and otherwise
consistent with the APA standard of review.” Wilhelmus, 796 F.
Supp. 2d at 160 (internal citation omitted).
Plaintiffs bring this challenge to the alleged new credible
fear policies arguing they violate the APA and INA. Two
separate, but overlapping, standards of APA review govern the
resolution of plaintiffs’ claims. First, under 5 U.S.C. §
706(2)(a), agency action must not be “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
To survive an arbitrary and capricious challenge, an agency
action must be “the product of reasoned decisionmaking.” Fox v.
Clinton, 684 F.3d 67, 74–75 (D.C. Cir. 2012). The reasoned
decisionmaking requirement applies to judicial review of agency
adjudicatory actions. Id. at 75. A court must not uphold an
adjudicatory action when the agency’s judgment “was neither
adequately explained in its decision nor supported by agency
42
precedent.” Id. (citing Siegel v. SEC, 592 F.3d 147, 164 (D.C.
Cir. 2010)). Thus, review of Matter of A-B- requires this Court
to determine whether the decision was the product of reasoned
decisionmaking. See id. at 75.
Second, plaintiffs’ claims also require this Court to
consider the degree to which the government’s interpretation of
the various relevant statutory provisions in Matter of A-B- is
afforded deference. The parties disagree over whether this Court
is required to defer to the agency’s interpretations of the
statutory provisions in this case. “Although balancing the
necessary respect for an agency’s knowledge, expertise, and
constitutional office with the courts’ role as interpreter of
laws can be a delicate matter,” the familiar Chevron framework
offers guidance. Id. at 75 (citing Gonzales v. Oregon, 546 U.S.
243, 255 (2006)).
In reviewing an agency's interpretation of a statute it is
charged with administering, a court must apply the framework of
Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). See Halverson v. Slater, 129 F.3d 180, 184
(D.C. Cir. 1997). Under the familiar Chevron two-step test, the
first step is to ask “whether Congress has directly spoken to
the precise question at issue. If the intent of Congress is
clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously expressed
43
intent of Congress.” Chevron, 467 U.S. at 842–43. In making that
determination, the reviewing court “must first exhaust the
‘traditional tools of statutory construction’ to determine
whether Congress has spoken to the precise question at issue.”
Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 572
(2000)(citation omitted). The traditional tools of statutory
construction include “examination of the statute’s text,
legislative history, and structure . . . as well as its
purpose.” Id. (internal citations omitted). If these tools lead
to a clear result, “then Congress has expressed its intention as
to the question, and deference is not appropriate.” Id.If a court finds that the statute is silent or ambiguous
with respect to a particular issue, then Congress has not spoken
clearly on the subject and a court is required to proceed to the
second step of the Chevron framework. Chevron, 467 U.S. at 843.
Under Chevron step two, a court’s task is to determine if the
agency’s approach is “based on a permissible construction of the
statute.” Id. To make that determination, a court again employs
the traditional tools of statutory interpretation, including
reviewing the text, structure, and purpose of the statute. See
Troy Corp. v. Browder, 120 F.3d 277, 285 (D.C. Cir. 1997)(noting
that an agency’s interpretation must “be reasonable and
consistent with the statutory purpose”). Ultimately, “[n]o
matter how it is framed, the question a court faces when
44
confronted with an agency's interpretation of a statute it
administers is always, simply, whether the agency has stayed
within the bounds of its statutory authority.” District of
Columbia v. Dep’t of Labor, 819 F.3d 444, 459 (D.C. Cir.
2016)(citation omitted).
The scope of review under both the APA’s arbitrary and
capricious standard and Chevron step two are concededly narrow.
See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)(stating “scope of review
under the ‘arbitrary and capricious’ standard is narrow and a
court is not to substitute its judgment for that of the
agency”); see also Judulang v. Holder, 565 U.S. 42, 52 n.7
(2011)(stating the Chevron step two analysis overlaps with
arbitrary and capricious review under the APA because under
Chevron step two a court asks “whether an agency interpretation
is ‘arbitrary or capricious in substance’”). Although this
review is deferential, “courts retain a role, and an important
one, in ensuring that agencies have engaged in reasoned decision
making.” Judulang, 565 U.S. at 53; see also Daley, 209 F.3d at
755 (stating that although a court owes deference to agency
decisions, courts do not hear cases “merely to rubber stamp
agency actions”).
With these principles in mind, the Court now turns to
plaintiffs’ claims that various credible fear policies based on
45
Matter of A-B-, the Policy Memorandum, or both, are arbitrary
and capricious and in violation of the immigration laws.
C. APA and Statutory Claims
Plaintiffs challenge the following alleged new credible
fear policies: (1) a general rule against credible fear claims
related to domestic or gang-related violence; (2) a heightened
standard for persecution involving non-governmental actors; (3)
a new rule for the nexus requirement in asylum; (4) a new rule
that “particular social group” definitions based on claims of
domestic violence are impermissibly circular; (5) the
requirements that an alien articulate an exact delineation of
the specific “particular social group” at the credible fear
determination stage and that asylum officers apply discretionary
factors at that stage; and (6) the Policy Memorandum’s
requirement that adjudicators ignore circuit court precedent
that is inconsistent with Matter of A-B-, and apply the law of
the circuit where the credible fear interview takes place. The
Court addresses each challenged policy in turn.
1. The General Rule Foreclosing Domestic Violence and
Gang-Related Claims Violates the APA and Immigration
Laws
Plaintiffs argue that the credible fear policies establish
an unlawful general rule against asylum petitions by aliens with
credible fear claims relating to domestic and gang violence.
Pls.’ Mot., ECF No. 64-1 at 28.
46
A threshold issue is whether the Chevron framework applies
to this issue at all. “Not every agency interpretation of a
statute is appropriately analyzed under Chevron.” Alabama Educ.
Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006). The
government acknowledges that the alleged new credible fear
policies are not “entitled to blanket Chevron deference.” Defs.’
Reply, ECF No. 85 at 39 (emphasis in original). Rather,
according to the government, the Attorney General is entitled to
Chevron deference when he “interprets any ambiguous statutory
terms in the INA.” Id. (emphasis in original). The government
also argues that the Attorney General is entitled to Chevron
deference to the extent Matter of A-B- states “long-standing
precedent or interpret[s] prior agency cases or regulations
through case-by-case adjudication.” Id. at 40.
To the extent Matter of A-B- was interpreting the
“particular social group” requirement in the INA, the Chevron
framework clearly applies. The Supreme Court has explained that
“[i]t is clear that principles of Chevron deference are
applicable” to the INA because that statute charges the Attorney
General with administering and enforcing the statutory scheme.
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (quoting
8 U.S.C. §§ 1103(a)(1), 1253(h)). In addition to Chevron
deference, a court must also afford deference to an agency when
it is interpreting its own precedent. U.S. Telecom Ass’n v.
47
F.C.C., 295 F.3d 1326, 1332 (D.C. Cir. 2002)(“We [] defer to an
agency’s reasonable interpretation of its own rules and
precedents.”).
In this case, the Attorney General interpreted a provision
of the INA, a statute that Congress charged the Attorney General
with administering. See 8 U.S.C. § 1103(a)(1). Matter of A-B-
addressed the issue of whether an alien applying for asylum
based on domestic violence could establish membership in a
“particular social group.” Because the decision interpreted a
provision of the INA, the Chevron framework applies to Matter of
A-B-. 11 See Negusie v. Holder, 555 U.S. 511, 516 (2009)(stating
it “is well settled” that principles of Chevron deference apply
to the Attorney General’s interpretation of the INA).
a. Chevron Step One: The Phrase “Particular Social
Group” is Ambiguous
The first question within the Chevron framework is whether,
using the traditional tools of statutory interpretation
including evaluating the text, structure, and the overall
11The Policy Memorandum is not subject to Chevron deference. The
Supreme Court has warned that agency “[i]nterpretations such as
those in opinion letters—like interpretations contained in
policy statements, agency manuals, and enforcement guidelines,
all of which lack the force of law—do not warrant Chevron-style
deference.” Christensen v. Harris Cnty, 529 U.S. 576, 587
(2000). Rather, interpretations contained in such formats “are
entitled to respect . . . only to the extent that those
interpretations have the power to persuade.” Id. (citations
omitted).
48
statutory scheme, as well as employing common sense, Congress
has “supplied a clear and unambiguous answer to the interpretive
question at hand.” Pereira v. Sessions, 138 S. Ct. 2105, 2113
(2018)(citation omitted). The interpretive question at hand in
this case is the meaning of the term “particular social group.”
Under the applicable asylum provision, an “alien who is
physically present in the United States or who arrives in the
United States . . . irrespective of such alien’s status” may be
granted asylum at the discretion of the Attorney General if the
“Attorney General determines that such alien is a refugee within
the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158. The
term “refugee” is defined in section 1101(a)(42)(A) as, among
other things, an alien who is unable or unwilling to return to
his or her home 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.” 8 U.S.C. § 1101(a)(42)(A). At the credible
fear stage, an alien needs to show that there is a “significant
possibility . . . that the alien could establish eligibility for
asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).
The INA itself does not shed much light on the meaning of
the term “particular social group.” The phrase “particular
social group” was first included in the INA when Congress
enacted the Refugee Act of 1980. Pub. L. No. 96-212, 94 Stat.
49102 (1980). The purpose of the Refugee Act was to protect
refugees, i.e., individuals who are unable to protect themselves
from persecution in their native country. See id. § 101(a)(“The
Congress declares that it is the historic policy of the United
States to respond to the urgent needs of persons subject to
persecution in their homelands, including . . . humanitarian
assistance for their care and maintenance in asylum areas.”).
While the legislative history of the Act does not reveal the
specific meaning the members of Congress attached to the phrase
“particular social group,” the legislative history does make
clear that Congress intended “to bring United States refugee law
into conformance with the [Protocol], 19 U.S.T. 6223, T.I.A.S.
No. 6577, to which the United States acceded in 1968.” Cardoza-
Fonseca, 480 U.S. at 436-37. Indeed, when Congress accepted the
definition of “refugee” it did so “with the understanding that
it is based directly upon the language of the Protocol and it is
intended that the provision be construed consistent with the
Protocol.” Id. at 437 (citations omitted). It is therefore
appropriate to consider what the phrase “particular social
group” means under the Protocol. See id.In interpreting the Refugee Act in accordance with the
meaning intended by the Protocol, the language in the Act should
be read consistently with the United Nations’ interpretation of
the refugee standards. See id. at 438–39 (relying on UNHCR’s
50
interpretation in interpreting the Protocol’s definition of
“well-founded fear”). The UNHCR defined the provisions of the
Convention and Protocol in its Handbook on Procedures and
Criteria for Determining Refugee Status (“UNHCR Handbook”). 12 Id.As the Supreme Court has noted, the UNHCR Handbook provides
“significant guidance in construing the Protocol, to which
Congress sought to conform . . . [and] has been widely
considered useful in giving content to the obligations that the
protocol establishes.” Id. at 439 n.22 (citations omitted). The
UNHCR Handbook codified the United Nations’ interpretation of
the term “particular social group” at that time, construing the
term expansively. The UNHCR Handbook states that “a ‘particular
social group’ normally comprises persons of similar background,
habits, or social status.” UNHCR Handbook at Ch. II B(3)(e)
¶ 77.
The clear legislative intent to comply with the Protocol
and Congress’ election to not change or add qualifications to
the U.N.’s definition of “refugee” demonstrates that Congress
intended to adopt the U.N.’s interpretation of the word
“refugee.” Moreover, the UNHCR’s classification of “social
12Handbook of Procedures and Criteria for Determining Refugee
Status Under the 1951 Convention and 1967 Protocol Relating to
the Status of Refugees, OFFICE OF THE UNITED NATIONS HIGH
COMMISSIONER FOR REFUGEES, available at
http://www.unhcr.org/4d93528a9.pdf.
51
group” in broad terms such as “similar background, habits, or
social status” suggests that Congress intended an equally
expansive construction of the same term in the Refugee Act.
Furthermore, the Refugee Act was enacted to further the
“historic policy of the United States to respond to the urgent
needs of persons subject to persecution in their homelands . . .
. [and] it is the policy of the United States to encourage all
nations to provide assistance and resettlement opportunities to
refugees to the fullest extent possible.” Maharaj v. Gonzales,
450 F.3d 961, 983 (9th Cir. 2006)(O’Scannlain, J. concurring in
part)(citing Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat.
102).
Although the congressional intent was clear that the
meaning of “particular social group” should not be read too
narrowly, the Court concludes that Congress has not “spoken
directly” on the precise question of whether victims of domestic
or gang-related persecution fall into the particular social
group category. Therefore, the Court proceeds to Chevron step
two to determine whether the Attorney General’s interpretation,
which generally precludes domestic violence and gang-related
claims at the credible fear stage, is a permissible
interpretation of the statute.
52
b. Chevron Step Two: Precluding Domestic and Gang-
Related Claims at the Credible Fear Stage is an
Impermissible Reading of the Statute and is
Arbitrary and Capricious
As explained above, the second step of the Chevron analysis
overlaps with the arbitrary and capricious standard of review
under the APA. See Nat'l Ass'n of Regulatory Util. Comm'rs v.
ICC, 41 F.3d 721, 726 (D.C. Cir. 1994)(“[T]he inquiry at the
second step of Chevron overlaps analytically with a court's task
under the [APA].”). “To survive arbitrary and capricious review,
an agency action must be the product of reasoned
decisionmaking.” Fox v. Clinton, 684 F.3d 67, 74–75 (D.C. Cir.
2012). “Thus, even though arbitrary and capricious review is
fundamentally deferential—especially with respect to matters
relating to an agency's areas of technical expertise—no
deference is owed to an agency action that is based on an
agency's purported expertise where the agency's explanation for
its action lacks any coherence.” Id. at 75 (internal citations
and alterations omitted).
Plaintiffs argue that the Attorney General’s near-blanket
rule against positive credible fear determinations based on
domestic violence and gang-related claims is arbitrary and
capricious for several reasons. First, they contend that the
rule has no basis in immigration law. Pls.’ Mot., ECF No. 64-1
at 39–40. Plaintiffs point to several cases in which immigration
53
judges and circuit courts have recognized asylum petitions based
on gang-related or gender-based claims. See id. at 38–39 (citing
cases). Second, plaintiffs argue that the general prohibition is
arbitrary and capricious and contrary to the INA because it
constitutes an unexplained change to the long-standing
recognition that credible fear determinations must be
individualized based on the facts of each case. Id. at 40–41.
The government’s principal response is straightforward: no
such general rule against domestic violence or gang-related
claims exists. Defs.’ Reply, ECF No. 85 at 44–47. The government
emphasizes that the only change to the law in Matter of A-B- is
that Matter of A-R-C-G- was overruled. Id. at 43. The government
also argues that Matter of A-B- only required the BIA to assess
each element of an asylum claim and not rely on a party’s
concession that an element is satisfied. Id. at 45. Thus,
according to the government, the Attorney General simply
“eliminated a loophole created by A-R-C-G-.” Id. at 45. The
government dismisses the rest of Matter of A-B- as mere
“comment[ary] on problems typical of gang and domestic violence
related claims.” Id. at 46.
And even if a general rule does exist, the government
contends that asylum claims based on “private crime[s]” such as
domestic and gang violence have been the center of controversy
for decades. Defs.’ Reply, ECF No. 85 at 44. Therefore, the
54
government concludes, that Matter of A-B- is a lawful
interpretation and restatement of the asylum laws, and is
entitled to deference. Id. Finally, the government argues that
Congress designed the asylum statute as a form of limited
relief, not to “provide redress for all misfortune.” Id.
The Court is not persuaded that Matter of A-B- and the
Policy Memorandum do not create a general rule against positive
credible fear determinations in cases in which aliens claim a
fear of persecution based on domestic or gang-related violence.
Matter of A-B- mandates that “[w]hen confronted with asylum
cases based on purported membership in a particular social group
. . . immigration judges, and asylum officers must analyze the
requirements as set forth” in the decision. 27 I. & N. Dec. at
319. The precedential decision further explained that
“[g]enerally, claims by aliens pertaining to domestic violence
or gang violence perpetrated by non-governmental actors will not
qualify for asylum.” Id. at 320. Matter of A-B- also requires
asylum officers to “analyze the requirements as set forth in”
Matter of A-B- when reviewing asylum related claims including
whether such claims “would satisfy the legal standard to
determine whether an alien has a credible fear of persecution.”
Id. at 320 n.1 (citing 8 U.S.C. § 1225(b)). Furthermore, the
Policy Memorandum also makes clear that the sweeping statements
in Matter of A-B- must be applied to credible fear
55
determinations: “if an applicant claims asylum based on
membership in a particular social group, then officers must
factor the [standards explained in Matter of A-B-] into their
determination of whether an applicant has a credible fear or
reasonable fear of persecution.” Policy Memorandum, ECF No. 100
at 12 (emphasis added).
Not only does Matter of A-B- create a general rule against
such claims at the credible fear stage, but the general rule is
also not a permissible interpretation of the statute. First, the
general rule is arbitrary and capricious because there is no
legal basis for an effective categorical ban on domestic
violence and gang-related claims. Second, such a general rule
runs contrary to the individualized analysis required by the
INA. Under the current immigration laws, the credible fear
interviewer must prepare a case-specific factually intensive
analysis for each alien. See 8 C.F.R. § 208.30(e)(requiring
individual analysis including material facts stated by the
applicant, and additional facts relied upon by officer).
Credible fear determinations, like requests for asylum in
general, must be resolved based on the particular facts and
circumstances of each case. Id.A general rule that effectively bars the claims based on
certain categories of persecutors (i.e. domestic abusers or gang
members) or claims related to certain kinds of violence is
56
inconsistent with Congress' intent to bring “United States
refugee law into conformance with the [Protocol].” Cardoza-
Fonseca, 480 U.S. at 436-37. The new general rule is thus
contrary to the Refugee Act and the INA. 13 In interpreting
“particular social group” in a way that results in a general
rule, in violation of the requirements of the statute, the
Attorney General has failed to “stay[] within the bounds” of his
statutory authority. 14 District of Columbia v. Dep’t of Labor,
819 F.3d at 449.
The general rule is also arbitrary and capricious because
it impermissibly heightens the standard at the credible fear
stage. The Attorney General’s direction to deny most domestic
violence or gang violence claims at the credible fear
13 The new rule is also a departure from previous DHS policy. See
Mujahid Decl., Ex. F (“2017 Credible Fear Training”) (“Asylum
officers should evaluate the entire scope of harm experienced by
the applicant to determine if he or she was persecuted, taking
into account the individual circumstances of each case.”). It is
arbitrary and capricious for that reason as well. Lone Mountain
Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C.
Cir. 2013)(“[A]n agency changing its course must supply a
reasoned analysis indicating that prior policies and standards
are being deliberately changed, not casually ignored.”)(emphasis
added).
14 The Court also notes that domestic law may supersede
international obligations only by express abrogation, Chew Heong
v. United States, 112 U.S. 536, 538 (1884), or by subsequent
legislation that irrevocably conflicts with international
obligations, Reid v. Covert, 354 U.S. 1, 18 (1957). Congress has
not expressed any intention to rescind its international
obligations assumed through accession to the 1967 Protocol via
the Refugee Act of 1980.
57
determination stage is fundamentally inconsistent with the
threshold screening standard that Congress established: an
alien’s removal may not be expedited if there is a “significant
possibility” that the alien could establish eligibility for
asylum. 8 U.S.C. § 1225(b)(1)(B)(v). The relevant provisions
require that the asylum officer “conduct the interview in a
nonadversarial manner” and “elicit all relevant and useful
information bearing on whether the applicant has a credible fear
of persecution or torture.” 8 C.F.R. § 208.30(d). As plaintiffs
point out, to prevail at a credible fear interview, the alien
need only show a “significant possibility” of a one in ten
chance of persecution, i.e., a fraction of ten percent. See
8 U.S.C. § 1225(b)(1)(B)(v); Cardoza-Fonseca, 480 U.S. at 439–40
(describing a well-founded fear of persecution at asylum stage
to be satisfied even when there is a ten percent chance of
persecution). The legislative history of the IIRIRA confirms
that Congress intended this standard to be a low one. See 142
CONG. REC. S11491-02 (“[t]he credible fear standard . . . is
intended to be a low screening standard for admission into the
usual full asylum process”). The Attorney General’s directive to
broadly exclude groups of aliens based on a sweeping policy
applied indiscriminately at the credible fear stage, was neither
adequately explained nor supported by agency precedent.
Accordingly, the general rule against domestic violence and
58
gang-related claims during a credible fear determination is
arbitrary and capricious and violates the immigration laws.
2. Persecution: The “Condoned or Complete Helplessness”
Standard Violates the APA and Immigration Laws
Plaintiffs next argue that the government’s credible fear
policies have heightened the legal requirement for all credible
fear claims involving non-governmental persecutors. Pls.’ Mot.,
ECF No. 64-1 at 48.
To be eligible for asylum, an alien must demonstrate either
past “persecution or a well-founded fear of persecution.”
8 U.S.C. § 1101(a)(42)(A). When a private actor, rather than the
government itself, is alleged to be the persecutor, the alien
must demonstrate “some connection” between the actions of the
private actor and “governmental action or inaction.” See Rosales
Justo v. Sessions, 895 F.3d 154, 162 (1st Cir. 2018). To
establish this connection, a petitioner must show that the
government was either “unwilling or unable” to protect him or
her from persecution. See Burbiene v. Holder, 568 F.3d 251, 255
(1st Cir. 2009).
Plaintiffs argue that Matter of A-B- and the Policy
Memorandum set forth a new, heightened standard for government
involvement by requiring an alien to “show the government
condoned the private actions or at least demonstrated a complete
helplessness to protect the victim.” Matter of A-B-, 27 I. & N.
59
Dec. at 337; Policy Memorandum, ECF No. 100 at 9. The government
argues that the “condone” or “complete helplessness” standard is
not a new definition of persecution; and, in any event, such
language does not change the standard. Defs.’ Reply, ECF No. 85
at 55.
a. Chevron Step One: The Term “Persecution” is Not
Ambiguous 15
Again, the first question under the Chevron framework is
whether Congress has “supplied a clear and unambiguous answer to
the interpretive question at hand.” Pereira, 138 S. Ct. at 2113.
Here, the interpretive question at hand is whether the word
“persecution” in the INA requires a government to condone the
persecution or demonstrate a complete helplessness to protect
the victim.
The Court concludes that the term “persecution” is not
ambiguous and the government’s new interpretation is
inconsistent with the INA. The Court is guided by the
longstanding principle that Congress is presumed to have
incorporated prior administrative and judicial interpretations
of language in a statute when it uses the same language in a
subsequent enactment. See Sekhar v. United States, 570 U.S. 729,
733 (2013)(explaining that “if a word is obviously transplanted
15Because the government is interpreting a provision of the INA,
the Chevron framework applies.
60
from another legal source, whether the common law or other
legislation, it brings the old soil with it”); Lorillard v.
Pons, 434 U.S. 575, 580 (1978)(stating Congress is aware of
interpretations of a statute and is presumed to adopt them when
it re-enacts them without change).
The seminal case on the interpretation of the term
“persecution,” Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985),
is dispositive. In Matter of Acosta, the BIA recognized that
harms could constitute persecution if they were inflicted
“either by the government of a country or by persons or an
organization that the government was unable or unwilling to
control.” Id. at 222 (citations omitted). The BIA noted that
Congress carried forward the term “persecution” from pre-1980
statutes, in which it had a well-settled judicial and
administrative meaning: “harm or suffering . . . inflicted
either by the government of a country or by persons or an
organization that the government was unable or unwilling to
control.” Id. Applying the basic rule of statutory construction
that Congress carries forward established meanings of terms, the
BIA adopted the same definition. Id. at 223.
The Court agrees with this approach. When Congress uses a
term with a settled meaning, its intent is clear for purposes of
Chevron step one. cf. B & H Med., LLC v. United States, 116 Fed.
Cl. 671, 685 (2014)(a term with a “judicially settled meaning”
61
is “not ambiguous” for purposes of deference under Auer v.
Robbins, 519 U.S. 452 (1997)). As explained in Matter of Acosta,
Congress adopted the “unable or unwilling” standard when it used
the word “persecution” in the Refugee Act. 19 I. & N. Dec. at
222, see also Shapiro v. United States, 335 U.S. 1, 16
(1948)(Congress presumed to have incorporated “settled judicial
construction” of statutory language through re-enactment).
Indeed, the UNHCR Handbook stated that persecution included
“serious discriminatory or other offensive acts . . . committed
by the local populace . . . if they are knowingly tolerated by
the authorities, or if the authorities refuse, or prove unable,
to offer effective protection.” See UNHCR Handbook ¶ 65
(emphasis added). It was clear at the time that the Act was
passed by Congress that the “unwilling or unable” standard did
not require a showing that the government “condoned” persecution
or was “completely helpless” to prevent it. Therefore, the
government’s interpretation of the term “persecution” to mean
the government must condone or demonstrate complete helplessness
to help victims of persecution fails at Chevron step one.
The government relies on circuit precedent that has used
the “condoned” or “complete helplessness” language to support
its argument that the standard is not new. Defs.’ Reply, ECF No.
85 at 55. There are several problems with the government’s
argument. First, upon review of the cited cases it is apparent
62
that, although the word “condone” was used, in actuality, the
courts were applying the “unwilling or unable” standard. For
example, in Galina v. INS, 213 F.3d 955 (7th Cir. 2005), an
asylum applicant was abducted and received threatening phone
calls in her native country. Id. at 957. The applicant’s husband
called the police to report the threatening phone calls, and
after the police located one of the callers, the calls stopped.
Id. The Court recognized that a finding of persecution
ordinarily requires a determination that the government condones
the violence or demonstrated a complete helplessness to protect
the victims. Id. at 958. However, relying on the BIA findings,
the Court found that notwithstanding the fact “police might take
some action against telephone threats” the applicant would still
face persecution if she was sent back to her country of origin
because she could have been killed. Id. Therefore, the Court
ultimately concluded that an applicant can still meet the
persecution threshold when the police are unable to provide
effective help, but fall short of condoning the persecution. Id.
at 958. Despite the language it used to describe the standard,
the court did not apply the heightened “condoned or complete
helplessness” persecution standard pronounced in the credible
fear policies here.
Second, and more importantly, under the government’s
formulation of the persecution standard, no asylum applicant who
63
received assistance from the government, regardless of how
ineffective that assistance was, could meet the persecution
requirement when the persecutor is a non-government actor. 16 See
Policy Memorandum, ECF No. 100 at 17 (stating that in the
context of credible fear interviews, “[a]gain, the home
government must either condone the behavior or demonstrate a
complete helplessness to protect victims of such alleged
persecution”). That is simply not the law. For example, in
Rosales Justo v. Sessions, the United States Court of Appeals
for the First Circuit held that a petitioner satisfied the
“unable or unwilling” standard, even though there was a
significant police response to the claimed persecution. 895 F.3d
154, 159 (1st Cir. 2018). The petitioner in Rosales Justo fled
Mexico after organized crime members murdered his son. Id. at
157–58. Critically, the “police took an immediate and active
interest in the [petitioner’s] son's murder.” Id. The Court
noted that the petitioner “observed seven officers and a
forensic team at the scene where [the] body was recovered, the
police took statements from [petitioner] and his wife, and an
16The Court notes that this persecution requirement applies to
all asylum claims not just claims based on membership in a
“particular social group” or claims related to domestic or gang-
related violence. See Matter of A-B-, 27 I. & N. Dec. at 337
(describing elements of persecution). Therefore, such a
formulation heightens the standard for every asylum applicant
who goes through the credibility determination process.
64
autopsy was performed.” Id. The Court held that, despite the
extensive actions taken by the police, the “unwilling or unable”
standard was satisfied because although the government was
willing to protect the petitioner, the evidence did not show
that the government was able to make the petitioner and his
family any safer. Id. at 164 (reversing BIA’s conclusion that
the immigration judge clearly erred in finding that the police
were willing but unable to protect family). As Rosales Justo
illustrates, a requirement that police condone or demonstrate
complete helplessness is inconsistent with the current standards
under immigration law. 17
Furthermore, the Court need not defer to the government’s
interpretation to the extent it is based on an interpretation of
court precedent. Indeed, in “case after case, courts have
affirmed this fairly intuitive principle, that courts need not,
and should not, defer to agency interpretations of opinions
written by courts.” Citizens for Responsibility & Ethics in
17This departure is also wholly unexplained. As the Supreme
Court has held, “[u]nexplained inconsistency is . . . a reason
for holding an interpretation to be an arbitrary and capricious
change from agency practice under the [APA].” See Motor Vehicle
Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 46–57 (1983). The credible fear policies do
not acknowledge a change in the persecution standard and are
also arbitrary and capricious for that reason. See Fox
Television Stations, Inc., 556 U.S. at 514, 515 (2009)(“[T]he
requirement that an agency provide reasoned explanation for its
action would ordinarily demand that it display awareness that it
is changing [its] position.”).
65
Washington v. Fed. Election Comm'n, 209 F. Supp. 3d 77, 87
(D.D.C. 2016)(listing cases). “There is therefore no reason for
courts—the supposed experts in analyzing judicial decisions—to
defer to agency interpretations of the Court's opinions.” Univ.
of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002);
see also Judulang, 565 U.S. at 52 n.7 (declining to apply
Chevron framework because the challenged agency policy was not
“an interpretation of any statutory language”).
To the extent the credible fear policies established a new
standard for persecution, it did so in purported reliance on
circuit opinions. The Court gives no deference to the
government’s interpretation of judicial opinions regarding the
proper standard for determining the degree to which government
action, or inaction, constitutes persecution. Univ. of Great
Falls, 278 F.3d at 1341. The “unwilling or unable” persecution
standard was settled at the time the Refugee Act was codified,
and therefore the Attorney General’s “condoned” or “complete
helplessness” standard is not a permissible construction of the
persecution requirement.
3. Nexus: The Credible Fear Policies Do Not Pose a New
Standard for the Nexus Requirement
Plaintiffs next argue that the formulation of the nexus
requirement articulated in Matter of A-B-that when a private
actor inflicts violence based on a personal relationship with
66
the victim, the victim’s membership in a larger group may well
not be “one central reason” for the abuse—violates the INA,
Refugee Act, and APA. The nexus requirement in the INA is that a
putative refugee establish that he or she was persecuted “on
account of” a protected ground such as a particular social
group. 18 See 8 U.S.C. § 1158(b)(1)(B)(i).
The parties agree that the precise interpretive issue is
not ambiguous. The parties also endorse the “one central reason”
standard and the need to conduct a “mixed-motive” analysis when
there is more than one reason for persecution. See Defs.’ Mot.,
57-1 at 47; Pls.’ Mot., ECF No. 64-1 at 53–54. The INA expressly
contemplates mixed motives for persecution when it specifies
that a protected ground must be “one central reason” for the
persecution. 8 U.S.C. § 1158(b)(1)(B)(i). Where the parties
disagree is whether the credible fear policies deviate from this
standard.
With respect to the nexus requirement, the government’s
reading of Matter of A-B- on this issue is reasonable. In Matter
of A-B-, the Attorney General relies on the “one central reason”
standard and provides examples of a criminal gang targeting
people because they have money or property or “simply because
18Similar to the Attorney General’s directives related to the
“unwilling or unable” standard, this directive applies to all
asylum claims, not just claims related to domestic or gang-
related violence.
67
the gang inflicts violence on those who are nearby.” 27 I. & N.
Dec. at 338–39. The decision states that “purely personal”
disputes will not meet the nexus requirement. Id. at 339 n.10.
The Court discerns no distinction between this statement and the
statutory “one central reason” standard.
Similarly, the Policy Memorandum states that “when a
private actor inflicts violence based on a personal relationship
with the victim, the victim’s membership in a larger group often
will not be ‘one central reason’ for the abuse.” Policy
Memorandum, ECF No. 100 at 9 (citing Matter of A-B-, 27 I. & N.
Dec. at 338–39). Critically, the Policy Memorandum explains that
in “a particular case, the evidence may establish that a victim
of domestic violence was attacked based solely on her
preexisting personal relationship with her abuser.” Id.
(emphasis added). This statement is no different than the
statement of the law in Matter of A-B-. Because the government’s
interpretation is not inconsistent with the statute, the Court
finds the government’s interpretation to be reasonable.
The Court reiterates that, although the nexus standard
forecloses cases in which purely personal disputes are the
impetus for the persecution, it does not preclude a positive
credible fear determination simply because there is a personal
relationship between the persecutor and the victim, so long as
the one central reason for the persecution is a protected
68
ground. See Aldana Ramos v. Holder, 757 F.3d 9, 18–19 (1st Cir.
2014)(recognizing that “multiple motivations [for persecution]
can exist, and that the presence of a non-protected motivation
does not render an applicant ineligible for refugee status”); Qu
v. Holder, 618 F.3d 602, 608 (6th Cir. 2010)(“[I]f there is a
nexus between the persecution and the membership in a particular
social group, the simultaneous existence of a personal dispute
does not eliminate that nexus.”). Indeed, courts have routinely
found the nexus requirement satisfied when a personal
relationship exists—including cases in which persecutors had a
close relationship with the victim. See, e.g., Bringas-
Rodriguez, 850 F.3d at 1056 (persecution by family members and
neighbor on account of applicant’s perceived homosexuality);
Nabulwala v. Gonzalez, 481 F.3d 1115, 1117–18 (8th Cir.
2007)(applicant’s family sought to violently “change” her sexual
orientation).
Matter of A-B- and the Policy Memorandum do not deviate
from the “one central reason” standard articulated in the
statute or in BIA decisions. See 8 U.S.C. § 1158(b)(1)(B)(i).
Therefore, the government did not violate the APA or INA with
regards to its interpretation of the nexus requirement.
4. Circularity: The Policy Memorandum’s Interpretation of
the Circularity Requirement Violates the APA and
Immigration Laws
Plaintiffs argue that the Policy Memorandum establishes a
69
new rule that “particular social group” definitions based on
claims of domestic violence are impermissibly circular and
therefore not cognizable as a basis for persecution in a
credible fear determination. Pls.’ Mot., ECF No. 64-1 at 56–59.
Plaintiffs argue that this new circularity rule is inconsistent
with the current legal standard and therefore violates the
Refugee Act, INA, and is arbitrary and capricious. 19 Id. at 57.
The parties agree that the formulation of the anti-circularity
rule set forth in Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242
(BIA 2014)—“that a particular social group cannot be defined
exclusively by the claimed persecution”—is correct. See Defs.’
Reply, ECF No. 85 at 62; Pls.’ Reply., ECF No. 92 at 30–31.
Accordingly, the Court begins with an explanation of that
opinion.
19The government contends that plaintiffs’ argument on this
issue has evolved from the filing of the complaint to the filing
of plaintiffs’ cross-motion for summary judgment. Defs.’ Reply,
ECF No. 85 at 61. In plaintiffs’ complaint, they objected to the
circularity issue by stating the new credible fear policies
erroneously conclude “that groups defined in part by the
applicant’s inability to leave the relationship are
impermissibly circular.” ECF No. 54 at 24. In their cross-motion
for summary judgment, plaintiffs argue that the government’s
rule is inconsistent with well-settled law that the circularity
standard only applies when the group is defined exclusively by
the feared harm. Pls.’ Mot., ECF No. 64-1 at 57. The Court finds
that plaintiffs’ complaint was sufficient to meet the notice
pleading standard. See 3E Mobile, LLC v. Glob. Cellular, Inc.,
121 F. Supp. 3d 106, 108 (D.D.C. 2015)(explaining that the
notice-pleading standard does not require a plaintiff to “plead
facts or law that match every element of a legal theory”).
70
The question before the BIA in Matter of M-E-V-G-, was
whether the respondent had established membership in a
“particular social group,” namely “Honduran youth who have been
actively recruited by gangs but who have refused to join because
they oppose the gangs.” 26 I. & N. Dec. at 228. The BIA
clarified that a person seeking asylum on the ground of
membership in a particular social group must show that the group
is: (1) composed of members who share an immutable
characteristic; (2) defined with particularity; and (3) socially
distinct within the society in question. Id. at 237. In
explaining the third element for membership, the BIA confirmed
the rule that “a social group cannot be defined exclusively by
the fact that its members have been subjected to harm.” Id. at
242. The BIA explained that for a particular social group to be
distinct, “persecutory conduct alone cannot define the group.”
Id.
The BIA provided the instructive example of former
employees of an attorney general. Id. The BIA noted that such a
group may not be valid for asylum purposes because they may not
consider themselves a group, or because society may not consider
the employees to be meaningfully distinct in society in general.
Id. The BIA made clear, however, that “such a social group
determination must be made on a case-by-case basis, because it
is possible that under certain circumstances, the society would
71
make such a distinction and consider the shared past experience
to be a basis for distinction within that society.” Id. “Upon
their maltreatment,” the BIA explained “it is possible these
people would experience a sense of ‘group’ and society would
discern that this group of individuals, who share a common
immutable characteristic, is distinct in some significant way.”
Id. at 243 (recognizing that “[a] social group cannot be defined
merely by the fact of persecution or solely by the shared
characteristic of facing dangers in retaliation for actions they
took against alleged persecutors . . . but that the shared trait
of persecution does not disqualify an otherwise valid social
group”)(citations and internal quotation marks omitted). The BIA
further clarified that the “act of persecution by the government
may be the catalyst that causes the society to distinguish [a
group] in a meaningful way and consider them a distinct group,
but the immutable characteristic of their shared past experience
exists independent of the persecution.” Id. at 243. Thus, such a
group would not be circular because the persecution they faced
was not the sole basis for their membership in a particular
social group. Id.
With this analysis in mind, the Court now focuses on the
dispute at issue. Here, plaintiffs do not challenge Matter of A-
B-’s statements with regard to the rule against circularity, but
rather challenge the Policy Memorandum’s articulation of the
72
rule. Pls.’ Mot., ECF No, 64-1 at 57–58. Specifically, they
challenge the Policy Memorandum’s mandate that domestic
violence-based social groups that include “inability to leave”
are not cognizable. Id. at 58 (citations and internal quotation
marks omitted). The Policy Memorandum states that “married women
. . . who are unable to leave their relationship” are a group
that would not be sufficiently particular. Policy Memorandum,
ECF No. 100 at 6. The Policy Memorandum explained that “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 is based.” Id.
The Policy Memorandum’s interpretation of the rule against
circularity ensures that women unable to leave their
relationship will always be circular. This conclusion appears to
be based on a misinterpretation of the circularity standard and
faulty assumptions about the analysis in Matter of A-B-. First,
as Matter of M-E-V-G- made clear, there cannot be a general rule
when it comes to determining whether a group is distinct because
“it is possible that under certain circumstances, the society
would make such a distinction and consider the shared past
experience to be a basis for distinction within that society.”
26 I. & N. Dec. at 242. Thus, to the extent the Policy
73
Memorandum imposes a general circularity rule foreclosing such
claims without taking into account the independent
characteristics presented in each case, the rule is arbitrary,
capricious, and contrary to immigration law.
Second, the Policy Memorandum changes the circularity rule
as articulated in settled caselaw, which recognizes that if the
proposed social group definition contains characteristics
independent from the feared persecution, the group is valid
under asylum law. Matter of M-E-V-G-, 26 I. & N. Dec. at 242
(Particular social group may be cognizable if “immutable
characteristic of their shared past experience exists
independent of the persecution.”). Critically, the Policy
Memorandum does not provide a reasoned explanation for, let
alone acknowledge, the change. See F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 514 (2009)(“[T]he requirement that
an agency provide reasoned explanation for its action would
ordinarily demand that it display awareness that it is changing
[its] position.”). Matter of A-B- criticized the BIA for failing
to consider the question of circularity in Matter of A-R-C-G-
and overruled the decision based on the BIA’s reliance on DHS’s
concession on the issue. 27 I. & N. Dec. at 334-35, 33.
Moreover, Matter of A-B- suggested only that the social group at
issue in Matter of A-R-C-G- might be “effectively” circular. Id.
at 335. The Policy Memorandum’s formulation of the circularity
74
standard goes well beyond the Attorney General’s explanation in
Matter of A-B-. As such, it is unmoored from the analysis in
Matter of M-E-V-G- and has no basis in Matter of A-B-. It is
therefore, arbitrary, capricious, and contrary to immigration
law.
5. Discretion and Delineation: The Credible Fear Policies
Do Not Contain a Discretion Requirement, but the
Policy Memorandum’s Delineation Requirement is
Unlawful
Plaintiffs next argue that the credible fear policies
“unlawfully import two aspects of the ordinary removal context
into credible fear proceedings.” Pls.’ Reply, ECF No. 92 at 32.
The first alleged requirement is for aliens to delineate the
“particular social group” on which they rely at the credible
fear stage. Id. The second alleged requirement is that asylum
adjudicators at the credible fear stage take into account
certain discretionary factors when making a fair credibility
determination and exercise discretion to deny relief. 20 Id. at
32–33.
20These discretionary factors include but are not limited to:
“the circumvention of orderly refugee procedures; whether the
alien passed through any other countries or arrived in the
United States directly from her country; whether orderly refugee
procedures were in fact available to help her in any country she
passed through; whether he or she made any attempts to seek
asylum before coming to the United States; the length of time
the alien remained in a third country; and his or her living
conditions, safety, and potential for long-term residency
there.” Policy Memorandum, ECF No. 100 at 10.
75
The government agrees that a policy which imposes a duty to
delineate a particular social group at the credible fear stage
would be a violation of existing law. Defs.’ Reply, ECF No. 85
at 67. The government also agrees that requiring asylum officers
to consider the exercise of discretion at the credible fear
stage “would be inconsistent with section 1225(b)(1)(B)(v).” Id.
at 68. The government, however, argues that no such directives
exist. Id. at 67–69.
The Court agrees with the government. There is nothing in
the credible fear policies that support plaintiffs’ arguments
that asylum officers are to exercise discretion at the credible
fear stage. The Policy Memorandum discusses discretion only in
the context of when an alien has established that he or she is
eligible for asylum. Policy Memorandum, ECF No. 100 at 5 (“[I]f
eligibility is established, the USCIS officer must then consider
whether or not to exercise discretion to grant the
application.”). Matter of A-B- also discusses the discretionary
factors in the context of granting asylum. 27 I. & N. Dec. at
345 n.12 (stating exercising discretion should not be glossed
over “solely because an applicant otherwise meets the burden of
proof for asylum eligibility under the INA”)(emphasis added).
Eligibility for asylum is not established, nor is an asylum
application granted, at the credible fear stage. See 8 U.S.C.
§ 1225(b)(1)(B)(ii)(stating if an alien receives a positive
76
credibility determination, he or she shall be detained for
“further consideration of the application of asylum”). Since the
credible fear policies only direct officers to use discretion
once an officer has determined that an applicant is eligible for
asylum, they do not direct officers to consider discretionary
factors at the credible fear stage. See Policy Memorandum, ECF
No. 100 at 10.
The Court also agrees that, with respect to Matter of A-B-,
the decision does not impose a delineation requirement during a
credible fear determination. The decision only requires an
applicant seeking asylum to clearly indicate “an exact
delineation of any proposed particular social group” when the
alien is “on the record and before the immigration judge.” 27 I.
& N. Dec. at 344. Any delineation requirement therefore would
not apply to the credible fear determination which is not on the
record before an immigration judge.
The Policy Memorandum, however, goes further than the
decision itself and incorporates the delineation requirement
into credible fear determinations. Unlike the mandate to use
discretion, the Policy Memorandum does not contain a limitation
that officers are to apply the delineation requirement to asylum
interviews only, as opposed to credible fear interviews. In
fact, it does the opposite and explicitly requires asylum
officers to apply that requirement to credible fear
77
determinations. Policy Memorandum, ECF No. 100 at 12. The Policy
Memorandum makes clear that “if an applicant claims asylum based
on membership in a particular social group, then officers must
factor the [standards explained in Matter of A-B-] into their
determination of whether an applicant has a credible fear or
reasonable fear of persecution.” Id. at 12. In directing asylum
officers to apply Matter of A-B- to credible fear
determinations, the Policy Memorandum refers back to all the
requirements explained by Matter of A-B- including the
delineation requirement. See id. (referring back to section
explaining delineation requirement). In light of this clear
directive to “factor” in the standards set forth in Matter of A-
B-, into the “determination of whether an applicant has a
credible fear” and its reference to the delineation requirement,
it is clear that the Policy Memorandum incorporates that
requirement into credible fear determinations. See id. 21
The government argues, that to the extent the Policy
Memorandum is ambiguous, the Court should defer to its
21The Policy Memorandum also reiterates that “few gang-based or
domestic-violence claims involving particular social groups
defined by the members’ vulnerability to harm may . . . pass the
‘significant possibility’ test in credible-fear screenings.”
Policy Memorandum, ECF No. 100 at 10. For this proposition, the
Policy Memorandum refers to the “standards clarified in Matter
of A-B-.” Id. This requirement for an alien to explain how they
fit into a particular social group independent of the harm they
allege, further supports the fact that there is a delineation
requirement at the credible fear stage.
78
interpretation as long as it is reasonable. The government cites
no authority to support its claim that deference is owed to an
agency’s interpretations of its policy documents like the Policy
Memorandum. However, the Court acknowledges the government’s
interpretation is “entitled to respect . . . only to the extent
that those interpretations have the ‘power to persuade.’”
Christensen v. Harris Cnty, 529 U.S. 576, 587 (2000)(citation
omitted). For the reasons stated above, however, such a narrow
reading of the Policy Memorandum is not persuasive. Because the
Policy Memorandum requires an alien—at the credible fear stage—
to present facts that clearly identify the alien’s proposed
particular social group, contrary to the INA, that policy is
arbitrary and capricious.
6. The Policy Memorandum’s Requirements Related to Asylum
Officer’s Application of Circuit Law are Unlawful
Plaintiffs’ final argument is that the Policy Memorandum’s
directives instructing asylum officers to ignore applicable
circuit court of appeals decisions is unlawful. Pls.’ Mot., ECF
No. 64-1 at 63.
The relevant section of the Policy Memorandum reads as
follows:
When conducting a credible fear or reasonable
fear interview, an asylum officer must
determine what law applies to the applicant’s
claim. The asylum officer should apply all
applicable precedents of the Attorney General
and the BIA, Matter of E-L-H-, 23 I&N Dec.
79814, 819 (BIA 2005), which are binding on all
immigration judges and asylum officers
nationwide. The asylum officer should also
apply the case law of the relevant federal
circuit court, to the extent that those cases
are not inconsistent with Matter of A-B-. See,
e.g., Matter of Fajardo Espinoza, 26 I&N Dec.
603, 606 (BIA 2015). The relevant federal
circuit court is the circuit where the removal
proceedings will take place if the officer
makes a positive credible fear determination.
See Matter of Gonzalez, 16 I&N Dec. 134, 135–
36 (BIA 1977); Matter of Waldei, 19 I&N Dec.
189 (BIA 1984). But removal 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 . . . 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.
Policy Memorandum, ECF No. 100 at 11–12. Plaintiffs make two
independent arguments regarding this policy. First, they argue
that the Policy Memorandum’s directive to disregard circuit law
contrary to Matter of A-B-, violates the APA, INA, and the
separation of powers. Pls.’ Mot., ECF No. 64-1 at 64–68. Second,
plaintiffs argue that the Policy Memorandum’s directive
requiring asylum officers to apply the law of the circuit where
the alien is physically located during the credible fear
interview violates the APA and INA. Id. 68–71.
80
a. The Policy Memorandum’s Directive to Disregard
Contrary Circuit Law Violates Brand X
Plaintiffs’ first argument is that the Policy Memorandum’s
directive that asylum officers who process credible fear
interviews ignore circuit law contrary to Matter of A-B- is
unlawful. Pls.’ Mot., ECF No. 64-1 at 63–68. Because the policy
requires officers to disregard all circuit law regardless of
whether the provision at issue is entitled to deference,
plaintiffs maintain that the policy exceeds an agency’s limited
ability to displace circuit precedent on a specific question of
law to which an agency decision is entitled to deference. Id.An agency’s ability to disregard a court’s interpretation
of an ambiguous statutory provision in favor of the agency’s
interpretation stems from the Supreme Court’s decision in Nat’l
Cable & Telecomm’s Ass’n v. Brand X Internet Servs., 545 U.S.
967 (2005). At issue in Brand X was the proper classification of
broadband cable services under Title II of the Communications
Act of 1934, as amended by the Telecommunications Act of 1996.
Id. at 975. The Federal Communications Commission (“Commission”)
had issued a Declaratory Rule providing that broadband internet
service was an “information service” but not a
“telecommunication service” under the Act, such that certain
regulations would not apply to cable companies that provided
broadband service. Id. at 989. The circuit court vacated the
81
Declaratory Rule because a prior circuit court opinion held that
a cable modem service was in fact a telecommunications service.
Id. (citing AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir.
2000). The Supreme Court concluded that the circuit court erred
in relying on a prior court’s interpretation of the statute
without first determining if the Commission’s contrary
interpretation was reasonable. Id. at 982.
The Supreme Court’s holding relied on the same principles
underlying the Chevron deference cases. Id. at 982 (stating that
the holding in Brand X “follows from Chevron itself”). The Court
reasoned that Congress had delegated to the Commission the
authority to enforce the Communications Act, and under the
principles espoused in Chevron, a reasonable interpretation of
an ambiguous provision of the Act is entitled to deference. Id.
at 981. Therefore, regardless of a circuit court’s prior
interpretation of a provision, the agency’s interpretation is
entitled to deference as long as the court’s prior construction
of the provision does not “follow[] from the unambiguous terms
of the statute and thus leaves no room for agency discretion.”
Id. at 982. In other words, an agency’s interpretation of a
provision may override a prior court’s interpretation if the
agency is entitled to Chevron deference and the agency’s
interpretation is reasonable. If the agency is not entitled to
deference or if the agency’s interpretation is unreasonable, a
82
court’s prior decision interpreting the same statutory provision
controls. See Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789
(D.C. Cir. 2012)(citation omitted)(finding that a court decision
interpreting a statute overrides the agency’s interpretation
only if it holds “that its construction follows from the
unambiguous terms of the statute and thus leaves no room for
agency discretion”).
The government argues that the Policy Memorandum’s mandate
to ignore circuit law contrary to Matter of A-B- is rooted in
statute and sanctioned by Brand X. Defs.’ Reply, ECF No. 85 at
70. Moreover, the government contends that the requirement
“simply states the truism that the INA requires all line
officers to follow binding decisions of the Attorney General.”
Id. (citing 8 U.S.C. § 1103(a))(“determination and ruling by the
Attorney General with respect to all questions of law shall be
controlling”). The government also argues that plaintiffs have
failed to point to any decisions that are inconsistent with
Matter of A-B-, and therefore any instruction for an officer to
apply Matter of A-B- notwithstanding prior circuit precedent to
the contrary is permissible. The Policy Memorandum, according to
the government, “simply require[s] line officers to follow
[Matter of A-B-] unless and until a circuit court of appeals
declares some aspect of it contrary to the plain text of the
INA.” Defs.’ Reply, ECF No. 85 at 72.
83
The government, again, minimizes the effect of the Policy
Memorandum. As an initial matter, Brand X would only allow an
agency’s interpretation to override a prior judicial
interpretation if the agency’s interpretation is entitled to
deference. Brand X, 545 U.S. at 982 (stating “agency
construction otherwise entitled to Chevron deference” may
override judicial construction under certain
circumstances)(emphasis added). In this case, the government
contends that Matter of A-B- only interprets one statutory
provision: “particular social group.” See Defs.’ Mot., ECF No.
57-1 at 56 (stating “[t]he language that the Attorney General
interpreted in [Matter of] A-B-, [is] the meaning of the phrase
‘particular social group’ as part of the asylum standard”). The
Policy Memorandum, however, directs officers to ignore federal
circuit law to the extent that the law is inconsistent with
Matter of A-B- in any respect, including Matter of A-B-’s
persecution standard. The directive requires officers performing
credible fear determinations to use Brand X as a shield against
any prior or future federal circuit court decisions inconsistent
with the sweeping proclamations made in Matter of A-B-
regardless of whether Brand X has any application under the
circumstances of that case.
There are several problems with such a broad interpretation
of Brand X to cover guidance from an agency when it is far from
84
clear that such guidance is entitled to deference. First, a
directive to ignore circuit precedent when doing so would
violate the principles of Brand X itself is clearly unlawful.
For example, when a court determines a provision is unambiguous,
as courts have done upon evaluating the “unwilling and unable”
definition, a court’s interpretation controls when faced with a
contrary agency interpretation. Brand X, 545 U.S. at 982. The
Policy Memorandum directs officers as a rule not to apply
circuit law if it is inconsistent with Matter of A-B-, without
regard to whether a specific provision in Matter of A-B- is
entitled to deference in the first place. Such a rule runs
contrary to Brand X.
Second, the government’s argument only squares with the
Brand X framework if every aspect of Matter of A-B- is both
entitled to deference and is a reasonable interpretation of a
relevant provision of the INA. Indeed, Brand X does not disturb
any prior judicial opinion that a statute is unambiguous because
Congress has spoken to the interpretive question at issue. Brand
X, 545 U.S. at 982 (“[A] judicial precedent holding that the
statute unambiguously forecloses the agency’s interpretation,
and therefore contains no gap for the agency to fill, displaces
a conflicting agency construction.”). If a Court does make such
a determination, the agency is not free to supplant the Court’s
85
interpretation for its own under Brand X. Id. 22 Unless an
agency’s interpretation of a statute is afforded deference, a
judicial construction of that provision binds the agency,
regardless of whether it is contrary to the agency’s view. The
Policy Memorandum does not recognize this principle and
therefore, the government’s reliance on Brand X is misplaced.
Cf., e.g., Matter of Marquez Conde, 27 I. & N. Dec. 251, 255
(BIA 2018)(examining whether the particular statutory question
fell within Brand X). 23
The government’s statutory justification fares no better.
It is true that pursuant to 8 U.S.C. § 1103(a), the Attorney
General’s rulings with respect to questions of law are
controlling; and they are binding on all service employees,
8 C.F.R. § 103.3(c). But plaintiffs do not dispute the fact that
22 Any assumption that the entirety of Matter of A-B- is entitled
to deference also falters in light of the government’s
characterization of most of the decision as dicta. Defs.’ Reply,
ECF No. 85 at 44–47. (characterizing Matter of A-B-
“comment[ary] on problems typical of gang and domestic violence
related claims.”) According to the government, the only legal
effect of Matter of A-B- is to overrule Matter of A-R-C-G-. Any
other self-described dicta would not be entitled to deference
under Chevron and therefore Brand X could not apply. Brand X,
545 U.S. at 982 (agency interpretation must at minimum be
“otherwise entitled to deference” for it to supersede judicial
construction). Simply put, Brand X is not a license for agencies
to rely on dicta to ignore otherwise binding circuit precedent.
23 Matter of A-B- invokes Brand X only as to its interpretation
of particular social group. 27 I. & N. Dec. at 327. As the Court
has explained above, that interpretation is not entitled to
deference.
86
asylum officers must follow the Attorney General’s decisions.
The issue is that the Policy Memorandum goes much further than
that. Indeed, the government’s characterization of the Policy
Memorandum’s directive to ignore federal law only highlights the
flaws in its argument. According to the government, the
directive at issue merely instructs officers to listen to the
Attorney General. Defs.’ Reply, ECF No. 85 at 70. Such a mandate
would be consistent with section 1103 and its accompanying
regulations. In reality, however, the Policy Memorandum requires
officers conducting credible fear interviews to follow the
precedent of the relevant circuit only “to the extent that those
cases are not inconsistent with Matter of A-B-.” Policy
Memorandum, ECF No. 100 at 11. The statutory and regulatory
provisions cited by the government do not justify a blanket
mandate to ignore circuit law.
b. The Policy Memorandum’s Relevant Circuit Law Policy
Violates the APA and INA
Plaintiffs next argue that the Policy Memorandum’s
directive to asylum officers to apply the law of the “circuit
where the alien is physically located during the credible fear
interview” violates the immigration laws. Pls.’ Mot., ECF No.
64-1, 68–71; Policy Memorandum, ECF No. 100 at 12. Specifically,
Plaintiffs argue that this policy conflicts with the low
screening standard for credible fear determinations established
87
by Congress, and therefore violates the APA and INA. Pls.’
Reply, ECF No. 92 at 35–36. The credible fear standard,
plaintiffs argue, requires an alien to be afforded the benefit
of the circuit law most favorable to his or her claim because
there is a possibility that the eventual asylum hearing could
take place in that circuit. Id.
The government responds by arguing that it is hornbook law
that the law of the jurisdiction in which the parties are
located governs the proceedings. Defs.’ Reply, ECF No. 85 at 73.
The government cites the standard for credible fear
determinations and argues that it contains no requirement that
an alien be given the benefit of the most favorable circuit law.
Id. The government also argues that, to the extent there is any
ambiguity, the government’s interpretation is entitled to some
deference, even if not Chevron deference. Id. at 74.
This issue turns on an interpretation of 8 U.S.C.
§ 1225(b)(1)(B)(v), which provides the standard for credible
fear determinations. That section explicitly defines a “credible
fear of persecution” as follows:
For purposes of this subparagraph, the term
“credible fear of persecution” means that
there is 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 of
this title.
88
8 U.S.C. § 1225(b)(1)(B)(v). Applicable regulations further
explain the manner in which the interviews are to be conducted.
Interviews are to be conducted in an “nonadversarial manner” and
“separate and apart from the general public.” 8 C.F.R.
§ 208.30(d). The purpose of the interview is to “elicit all
relevant and useful information bearing on whether the applicant
has a credible fear of persecution or torture[.]” Id.The statute does not speak to which law should be applied
during credible fear interviews. See generally 8 U.S.C.
§ 1225(b)(1)(B)(v). However, the Court is not without guidance
regarding which law should be applied because Congress explained
its legislative purpose in enacting the expedited removal
provisions. 142 CONG. REC. S11491-02. When Congress established
expedited removal proceedings in 1996, it deliberately
established a low screening standard so that “there should be no
danger that an alien with a genuine asylum claim will be
returned to persecution.” H.R. REP. No. 104-469, pt. 1, at 158.
That standard “is a low screening standard for admission into
the usual full asylum process” and when Congress adopted the
standard it “reject[ed] the higher standard of credibility
included in the House bill.” 142 CONG. REC. S11491-02.
In light of the legislative history, the Court finds
plaintiffs’ position to be more consistent with the low
screening standard that governs credible fear determinations.
89
The statute does not speak to which law should be applied during
the screening, but rather focuses on eligibility at the time of
the removal proceedings. 8 U.S.C. § 1225(b)(1)(B)(v). And as the
government concedes, these removal proceedings could occur
anywhere in the United States. Policy Memorandum, ECF No. 100 at
12. Thus, if there is a disagreement among the circuits on an
issue, the alien should get the benefit of that disagreement
since, if the removal proceedings are heard in the circuit
favorable to the aliens’ claim, there would be a significant
possibility the alien would prevail on that claim. The
government’s reading would allow for an alien’s deportation,
following a negative credible fear determination, even if the
alien would have a significant possibility of establishing
asylum under section 1158 during his or her removal proceeding.
Thus, the government’s reading leads to the exact opposite
result intended by Congress. 24
The government does not contest that an alien with a
possibility of prevailing on his or her asylum claim could be
denied during the less stringent credible fear determination,
but rather claims that this Court should defer to the
24The government relies on BIA cases to support its argument
that the law of the jurisdiction where the interview takes place
controls. See Defs.’ Mot., ECF No. 57-1 at 49. These cases
address the law that governs the removal proceedings, an
irrelevant and undisputed issue.
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government’s interpretation that this policy is consistent with
the statute. Defs.’ Reply, ECF No. 85 at 74–75. Under Skidmore
v. Swift & Co., the Court will defer to the government’s
interpretation to the extent it has the power to persuade. 25 See
323 U.S. 134, 140, (1944). However, the government’s arguments
bolster plaintiffs’ interpretation more than its own. As the
government acknowledges, and the Policy Memorandum explicitly
states, “removal 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.” Policy Memorandum, ECF No. 100 at
12. Since the Policy Memorandum directive would lead to denial
of a potentially successful asylum applicant at the credible
fear determination, the Court concludes that the directive is
therefore inconsistent with the statute. H.R. REP. NO. 104-469 at
158 (explaining that there should be no fear that an alien with
a genuine asylum claim would be returned to persecution). 26
Because the government’s reading could lead to the exact
25 The government cannot claim the more deferential Auer
deference because Auer applies to an agency’s interpretation of
its own regulations, not to interpretations of policy documents
like the Policy Memorandum. See Auer v. Robbins, 519 U.S. 452,
461 (1997)(holding agencies may resolve ambiguities in
regulations).
26 The policy is also a departure from prior DHS policy without a
rational explanation for doing so. See Mujahid Decl., Ex. F (DHS
training policy explaining that law most favorable to the
applicant applies when there is a circuit split).
91
harm that Congress sought to avoid, it is arbitrary capricious
and contrary to law.
* * * * *
In sum, plaintiffs prevail on their APA and statutory
claims with respect to the following credible fear policies,
which this Court finds are arbitrary and capricious and contrary
to law: (1) the general rule against credible fear claims
relating to gang-related and domestic violence victims’
membership in a “particular social group,” as reflected in
Matter of A-B- and the Policy Memorandum; (2) the heightened
“condoned” or “complete helplessness” standard for persecution,
as reflected in Matter of A-B- and the Policy Memorandum;
(3) the circularity standard as reflected in the Policy
Memorandum; (4) the delineation requirement at the credible fear
stage, as reflected in the Policy Memorandum; and (5) the
requirement that adjudicators disregard contrary circuit law and
apply only the law of the circuit where the credible fear
interview occurs, as reflected in the Policy Memorandum. The
Court also finds that neither the Policy Memorandum nor Matter
of A-B- state an unlawful nexus requirement or require asylum
officers to apply discretionary factors at the credible fear
stage. The Court now turns to the appropriate remedy. 27
27Because the Court finds that the government has violated the
INA and APA, it need not determine whether there was a
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D. Relief Sought
Plaintiffs seek an Order enjoining and preventing the
government and its officials from applying the new credible fear
policies, or any other guidance implementing Matter of A-B- in
credible fear proceedings. Pls.’ Mot., ECF No. 64-1 at 71–72.
Plaintiffs also request that the Court vacate any credible fear
determinations and removal orders issued to plaintiffs who have
not been removed. Id. As for plaintiffs that have been removed,
plaintiffs request a Court Order directing the government to
return the removed plaintiffs to the United States. Id.Plaintiffs also seek an Order requiring the government to
provide new credible fear proceedings in which asylum
adjudicators must apply the correct legal standards for all
plaintiffs. Id.The government argues that because section 1252 prevents
all equitable relief the Court does not have the authority to
order the removed plaintiffs to be returned to the United
States. Defs.’ Reply, ECF No. 85 at 75–76. The Court addresses
each issue in turn.
constitutional violation in this case. See Am. Foreign Serv.
Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989)(per curiam)(stating
courts should be wary of issuing “unnecessary constitutional
rulings”).
93
1. Section 1252 Does Not Bar Equitable Relief
a. Section 1252(e)(1)
The government acknowledges that section 1252(e)(3)
provides for review of “systemic challenges to the expedited
removal system.” Defs.’ Mot., ECF No. 57-1 at 11. However, the
government argues 1252(e)(1) limits the scope of the relief that
may be granted in such cases. Defs.’ Reply, ECF No. 85 at 75–76.
That provision provides that “no court may . . . enter
declaratory, injunctive, or other equitable relief in any 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). The government argues that since no
other subsequent paragraph of section 1252(e) specifically
authorizes equitable relief, this Court cannot issue an
injunction in this case. Defs.’ Reply, ECF No. 85 at 75–76.
Plaintiffs counter that section 1252(e)(1) has an exception
for “any action . . . specifically authorized in a subsequent
paragraph.” Since section 1252(e)(3) clearly authorizes “an
action” for systemic challenges, their claims fall within an
exception to the proscription of equitable relief. Pls.’ Reply,
ECF No. 92 at 38.
This issue turns on what must be “specifically authorized
in a subsequent paragraph” of section 1252(e). Plaintiffs argue
94
the “action” needs to be specifically authorized, and the
government argues that it is the “relief.” Section 1252(e)(1)
states as follows:
(e) Judicial review of orders under section
1225(b)(1)
(1) Limitations on relief
Without regard to the nature of the action or
claim and without regard to the identity of
the party or parties bringing the action, no
court may--
(A) enter declaratory, injunctive, or other
equitable relief in any 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, or
(B) certify a class under Rule 23 of the
Federal Rules of Civil Procedure in any action
for which judicial review is authorized under
a subsequent paragraph of this subsection.
The government contends that this provision requires that
any “declaratory, injunctive, or other equitable relief” must be
“specifically authorized in a subsequent paragraph” of
subsection 1252(e) for that relief to be available. Defs.’
Reply, ECF No. 85 at 75 (emphasis in original). The more natural
reading of the provision, however, is that these forms of relief
are prohibited except when a plaintiff brings “any action . . .
specifically authorized in a subsequent paragraph.” Id.§ 1252(e)(1)(a). The structure of the statute supports this
view. For example, the very next subsection, 1252(e)(1)(b), uses
95
the same language when referring to an action: “[A court may not
certify a class] in any action for which judicial review is
authorized under a subsequent paragraph of this subsection.” Id.
§ 1252(e)(1)(b)(emphasis added).
A later subsection lends further textual support for the
view that the term “authorized” modifies the type of action, and
not the type of relief. Subsection 1252(e)(4) limits the remedy
a court may order when making a determination in habeas corpus
proceedings challenging a credible fear determination. 28 Under
section 1252(e)(2), a petitioner may challenge his or her
removal under section 1225, if he or she can prove by a
preponderance of the evidence that he or she is in fact in this
country legally. 29 See 8 U.S.C. § 1252(e)(2)(c). Critically,
section 1252(e)(4) limits the type of relief a court may grant
if the petitioner is successful: “the court may order no remedy
or relief other than to require that the petitioner be provided
a hearing.” Id. § 1252(e)(4)(B). If section 1252(e)(1)(a)
precluded all injunctive and equitable relief, there would be no
need for § 1252(e)(4) to specify that the court could order no
28 Habeas corpus proceedings, like challenges to the validity of
the system under 1252(e)(3), are “specifically authorized in a
subsequent paragraph of [1252(e)].” 8 U.S.C. § 1252(e)(1)(a).
29 To prevail on this type of claim a petitioner must establish
that he or she is an “alien lawfully admitted for permanent
residence, has been admitted as a refugee under section 1157 of
this title, or has been granted asylum under section 1158.” 8
U.S.C. § 1252(e)(2).
96
other form of relief. Furthermore, if the government’s reading
was correct, there should be a parallel provision in section
1252(e)(3) limiting the relief a prevailing party of a systemic
challenge could obtain to only relief specifically authorized by
that paragraph.
Indeed, under the government’s reading of the statute there
could be no remedy for a successful claim under paragraph
1252(e)(3) because that paragraph does not specifically
authorize any remedy. However, it does not follow that Congress
would have explicitly authorized a plaintiff to bring a suit in
the United States District Court for the District of Columbia
and provided this Court with exclusive jurisdiction to determine
the legality of the challenged agency action, but deprived the
Court of any authority to provide any remedy (because none are
specifically authorized), effectively allowing the unlawful
agency action to continue. This Court “should not assume that
Congress left such a gap in its scheme.” Jackson v. Birmingham
Bd. Of Educ., 544 U.S. 167, 180 (2005)(holding Title IX
protected against retaliation in part because “all manner of
Title IX violations might go umremedied” if schools could
retaliate freely).
An action brought pursuant to section 1252(e)(3) is an
action that is “specifically authorized in a subsequent
paragraph” of 1252(e). See 8 U.S.C. § 1252(e)(1). And 1252(e)(3)
97
clearly authorizes “an action” for systemic challenges to
written expedited removal policies, including claims concerning
whether the challenged policy “is not consistent with applicable
provisions of this subchapter or is otherwise in violation of
law.” Id. § 1252(e)(3). Because this case was brought under that
systemic challenge provision, the limit imposed on the relief
available to a court under 1252(e)(1)(a) does not apply. 30
b. Section 1252(f)
The government’s argument that section 1252(f) bars
injunctive relief fares no better. That provision states in
relevant part: “no court (other than the Supreme Court) shall
have jurisdiction or authority to enjoin or restrain the
operation of [sections 1221–1232] 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). The Supreme Court has explained that “Section
1252(f)(1) thus ‘prohibits federal courts from granting
30Plaintiffs also argue that section 1252(e)(1) does not apply
to actions brought under section 1252(e)(3). Section 1252(e)(1),
by its terms, only applies to an “action pertaining to an order
to exclude an alien in accordance with section 1225(b)(1).”
Plaintiffs argue that the plain reading of section 1252(e)(3)
shows that an action under that provision does not pertain to an
individual order of exclusion, but rather “challenges the
validity of the system.” Pls.’ Reply, ECF No. 92 at 12 (citing 8
U.S.C. § 1252(e)(3)). Having found that section 1252(e)(3) is an
exception to section 1252(e)(1)’s limitation on remedies, the
Court need not reach this argument.
98
classwide injunctive relief against the operation of §§ 1221–
123[2].’” Jennings v. Rodriguez, 138 S. Ct. 830, 851
(2018)(citing Reno v. American–Arab Anti–Discrimination Comm.,
525 U.S. 471, 481 (1999)). The Supreme Court has also noted that
circuit courts have “held that this provision did not affect its
jurisdiction over . . . statutory claims because those claims
did not ‘seek to enjoin the operation of the immigration
detention statutes, but to enjoin conduct . . . not authorized
by the statutes.” Id. (citing Rodriguez v. Hayes, 591 F.3d 1105,
1120 (9th Cir. 2010)).
In this case, plaintiffs do not challenge any provisions
found in section 1225(b). They do not seek to enjoin the
operation of the expedited removal provisions or any relief
declaring the statutes unlawful. Rather, they seek to enjoin the
government’s violation of those provisions by the implementation
of the unlawful credible fear policies. An injunction in this
case does not obstruct the operation of section 1225. Rather, it
enjoins conduct that violates that provision. Therefore, section
1252(f) poses no bar. See R.I.L-R v. Johnson, 80 F. Supp. 3d
164, 184 (D.D.C. 2015)(holding section 1252(f) does not limit a
court’s ability to provide injunctive relief when the injunctive
relief “enjoins conduct that allegedly violates [the immigration
statute]”); see also Reid v. Donelan, 22 F. Supp. 3d 84, 90 (D.
Mass. 2014)(“[A]n injunction ‘will not prevent the law from
99
operating in any way, but instead would simply force the
government to comply with the statute.”)(emphasis in original)).
Finally, during oral argument, the government argued that
even if the Court has the authority to issue an injunction in
this case, it can only enjoin the policies as applied in
plaintiffs’ cases under section 1252(f). See Oral Arg. Hr’g Tr.,
ECF No. 102 at 63. In other words, according to the government,
the Court may declare the new credible fear policies unlawful,
but DHS may continue to enforce the policies in all other
credible fear interviews. To state this proposition is to refute
it. It is the province of the Court to declare what the law is,
see Marbury v. Madison, 5 U.S. 137, 177 (1803), and the
government cites no authority to support the proposition that a
Court may declare an action unlawful but have no power to
prevent that action from violating the rights of the very people
it affects. 31 To the contrary, such relief is supported by the
APA itself. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,
31During oral argument, the government argued for the first time
that an injunction in this case was tantamount to class-wide
relief, which the parties agree is prohibited under the statute.
See Oral Arg. Hr’g Tr., ECF No. 102 at 63; 8 U.S.C.
§ 1252(e)(1)(b)(prohibiting class certification in actions
brought under section 1252(e)(3)). The Court finds this argument
unpersuasive. Class-wide relief would entail an Order requiring
new credible fear interviews for all similarly situated
individuals, and for the government to return to the United
States all deported individuals who were affected by the
policies at issue in this case. Plaintiffs do not request, and
the Court will not order, such relief.
100
145 F.3d 1399, 1409-10 (D.C. Cir. 1998)(“We have made clear that
‘[w]hen a reviewing court determines that agency regulations are
unlawful, the ordinary result is that the rules are vacated –
not that their application to the individual petitioners is
proscribed.’”). Moreover section 1252(f) only applies when a
plaintiff challenges the legality of immigration laws and not,
as here, when a plaintiff seeks to enjoin conduct that violates
the immigration laws. In these circumstances, section 1252(f)
does not limit the Court’s power.
2. The Court Has the Authority to Order the Return of
Plaintiffs Unlawfully Removed
Despite the government’s suggestion during the emergency
stay hearing that the government would return removed plaintiffs
should they prevail on the merits, TRO Hr’g Tr., Aug. 9, 2018,
ECF No. 23 at 13-14 (explaining that the Department of Justice
had previously represented to the Supreme Court that should a
Court find a policy that led to a plaintiffs’ deportation
unlawful the government “would return [plaintiffs] to the United
states at no expense to [plaintiffs]”), the government now
argues that the Court may not do so, see Defs.’ Reply, ECF No.
85 at 78–79.
In support of its argument, the government relies
principally on Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir 2009)
vacated, 130 S.Ct. 1235, reinstated in amended form, 605 F.3d
1011046 (D.C. Cir. 2010). In Kiyemba, seventeen Chinese citizens,
determined to be enemy combatants, sought habeas petitions in
connection with their detention in Guantanamo Bay, Cuba. 555
F.3d at 1024. The petitioners sought release in the United
States because they feared persecution if they were returned to
China, but had not sought to comply with the immigration laws
governing a migrant’s entry into the United States. Id. After
failed attempts to find an appropriate country in which to
resettle, the petitioners moved for an order compelling their
release into the United States. Id. The district court, citing
exceptional circumstances, granted the motion. Id.
The United States Court of Appeals for the District of
Columbia Circuit reversed. The Court began by recognizing that
the power to exclude aliens remained in the exclusive power of
the political branches. Id. at 1025 (citations omitted). As a
result, the Court noted, “it is not within the province of any
court, unless expressly authorized by law, to review the
determination of the political branch of the Government to
exclude a given alien.” Id. at 1026 (citation and internal
quotation marks omitted). The critical question was “what law
expressly authorized the district court to set aside the
decision of the Executive Branch and to order these aliens
brought to the United States.” Id. at 1026 (internal quotation
marks omitted).
102
In this case, the answer to that question is the
immigration laws. In fact, Kiyemba distinguished Supreme Court
cases which “rested on the Supreme Court’s interpretation not of
the Constitution, but of a provision in the immigration laws.”
Id. at 1028. The Court further elaborated on this point with the
following explanation:
it would . . . be wrong to assert that, by
ordering aliens paroled into the country . .
. the Court somehow undermined the plenary
authority of the political branches over the
entry and admission of aliens. The point is
that Congress has set up the framework under
which aliens may enter the United States. The
Judiciary only possesses the power Congress
gives it to review Executive action taken
within that framework. Since petitioners have
not applied for admission, they are not
entitled to invoke that judicial power.
Id. at 1028 n.12.
The critical difference here is that plaintiffs have
availed themselves of the “framework under which aliens may
enter the United States.” Id. Because plaintiffs have done so,
this Court “possesses the power Congress gives it to review
Executive action taken within that framework.” Id. Because the
Court finds Kiyemba inapposite, the government’s argument that
this Court lacks authority to order plaintiffs returned to the
United States is unavailing.
It is also clear that injunctive relief is necessary for
the Court to fashion an effective remedy in this case. The
103
credible fear interviews of plaintiffs administered pursuant to
the policies in Matter of A-B- and the Policy Memorandum were
fundamentally flawed. A Court Order solely enjoining these
policies is meaningless for the removed plaintiffs who are
unable to attend the subsequent interviews to which they are
entitled. See, e.g., Walters v. Reno, 145 F.3d 1032, 1050–51
(9th Cir. 1998)(“[A]llowing class members to reopen their
proceedings is basically meaningless if they are unable to
attend the hearings that they were earlier denied.”).
3. Permanent Injunction Factors Require Permanent
Injunctive Relief
A plaintiff seeking a permanent injunction must satisfy a
four-factor test. eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006). Plaintiffs must demonstrate they have:
(1) suffered an irreparable injury; (2) that traditional legal
remedies, such as monetary relief, are inadequate to compensate
for that injury; (3) the balance of hardships between the
parties warrants equitable relief; and (4) the injunction is not
contrary to the public interest. See Morgan Drexen, Inc. v.
Consumer Fin. Prot. Bureau, 785 F.3d 684, 695 (D.C. Cir. 2015).
Plaintiffs seek a permanent injunction, arguing that they
have been irreparably harmed and that the equities are in their
favor. Pls.’ Mot., ECF No. 64-1 at 73–74. The government has not
responded to these arguments on the merits, and rests on its
104
contention that the Court does not have the authority to order
such relief. Defs.’ Reply, ECF No. 85 at 75–78. Having found
that the Court does have the authority to order injunctive
relief, supra, at 93–104, the Court will explain why that relief
is appropriate.
Plaintiffs claim that the credible fear policies this Court
has found to be unlawful have caused them irreparable harm. It
is undisputed that the unlawful policies were applied to
plaintiffs’ credible fear determinations and thus caused
plaintiffs’ applications to be denied. See Defs.’ Mot., ECF No.
57-1 at 28 (stating an “asylum officer reviewed each of
[plaintiffs] credible fear claims and found them wanting in
light of Matter of A-B-”). Indeed, plaintiffs credibly alleged
at their credible fear determinations that they feared rape,
pervasive domestic violence, beatings, shootings, and death in
their countries of origin. Based on plaintiffs’ declarations
attesting to such harms, they have demonstrated that they have
suffered irreparable injuries. 32
The Court need spend little time on the second factor:
whether other legal remedies are inadequate. No relief short of
enjoining the unlawful credible fear policies in this case could
32The country reports support the accounts of the Plaintiffs.
See Mujahid Decl., ECF No. 10-3, Exs. K-T; Second Mujahid Decl.,
ECF No. 64-4 Exs. 10–13; Honduras Decl., ECF No. 64-6; Guatemala
Decl., ECF No. 64-7; El Salvador Decl., ECF No. 64-8.
105
provide an adequate remedy. Plaintiffs do not seek monetary
compensation. The harm they suffer will continue unless and
until they receive a credible fear determination pursuant to the
existing immigration laws. Moreover, without an injunction, the
plaintiffs previously removed will continue to live in fear
every day, and the remaining plaintiffs are at risk of removal.
The last two factors are also straightforward. The balance
of the hardships weighs in favor of plaintiffs since the
“[g]overnment ‘cannot suffer harm from an injunction that merely
ends an unlawful practice.’” R.I.L-R, 80 F. Supp. at 191 (citing
Rodriguez, 715 F.3d at 1145). And the injunction is not contrary
to the public interest because, of course, “[t]he public
interest is served when administrative agencies comply with
their obligations under the APA.” Id. (citations omitted).
Moreover, as the Supreme Court has stated, “there is a public
interest in preventing aliens from being wrongfully removed,
particularly to countries where they are likely to face
substantial harm.” Nken v. Holder, 556 U.S. 418, 436 (2009). No
one seriously questions that plaintiffs face substantial harm if
returned to their countries of origin. Under these
circumstances, plaintiffs have demonstrated they are entitled to
a permanent injunction in this case.
106
IV. Conclusion
For the foregoing reasons, the Court holds that it has
jurisdiction to hear plaintiffs’ challenges to the credible fear
policies, that it has the authority to order the injunctive
relief, and that, with the exception of two policies, the new
credible fear policies are arbitrary, capricious, and in
violation of the immigration laws.
Accordingly, the Court GRANTS in PART and DENIES in PART
plaintiffs' cross-motion for summary judgment and motion to
consider evidence outside the administrative record. The Court
also GRANTS plaintiffs’ motion for a permanent injunction. The
Court further GRANTS in PART and DENIES in PART the government’s
motion for summary judgment and motion to strike.
The Court will issue an appropriate Order consistent with
this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
December 17, 2018
107