498 F.Supp.3d 1
D.D.C.2020Background
- Plaintiffs (five noncitizens) underwent USCIS credible-fear screenings in May–June 2019 under USCIS’s April 2019 “Lesson Plan on Credible Fear of Persecution and Torture Determinations” and received adverse credible-fear determinations. Two plaintiffs were later removed; others had proceedings or reconsiderations.
- The Lesson Plan is a USCIS training/guidance document intended to instruct asylum officers how to determine credible fear in expedited removal cases.
- Plaintiffs sued DHS, USCIS and other officials, alleging (1) the Lesson Plan conflicts with the INA and regulations (8 U.S.C. § 1225 et seq.), (2) it violated the APA’s notice-and-comment requirements, and (3) it violates due process.
- Defendants moved to dismiss or for summary judgment on threshold grounds (standing, mootness, jurisdiction under 8 U.S.C. § 1252), and on the merits arguing the Lesson Plan is nonbinding training material and consistent with law.
- The Court found plaintiffs had Article III standing, their claims were not moot, and the Court had jurisdiction to review the Lesson Plan under §1252(e)(3) and §1331. It held several Lesson Plan provisions conflicted with the INA/regulations, vacated the entire Lesson Plan as non-severable, and ordered new credible-fear determinations for these plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing and mootness: can plaintiffs challenge the Lesson Plan? | Plaintiffs: their adverse credible-fear findings resulted from the Lesson Plan; procedural injury is traceable and redressable by vacatur and new interviews. | Defendants: plaintiffs lack standing or are moot because some have been placed into §1229a proceedings or removed. | Court: plaintiffs have standing; defendants failed to show mootness (NTAs lacked time/place info; removals do not preclude relief). |
| Jurisdiction under §1252(e)(3) and §1331: is the Lesson Plan reviewable? | Plaintiffs: Lesson Plan is a written policy/guideline implementing §1225(b), so reviewable under §1252(e)(3); §1331 jurisdiction also available. | Defendants: §1252 bars district-court jurisdiction except as narrowed; Lesson Plan isn’t a written implementing policy or was not first implemented within 60 days. | Court: Lesson Plan is a written policy/guideline that implements expedited removal; the challenge was filed within 60 days of the April 2019 version; §1252(e)(3) preserves review. |
| Merits — consistency with INA/regulations: does the Lesson Plan lawfully interpret credible-fear standard? | Plaintiffs: Lesson Plan raises the burden (requires "more than significant evidence," imports full-hearing factors including internal relocation, shifts burdens to asylum seekers, allows corroboration demands, and alters "unable or unwilling" test) and thus conflicts with INA/regulations. | Defendants: Lesson Plan is interpretive/training material that accurately explains law; provisions are reasonable and permissibly implement statutes/regulations. | Court: Several provisions are unlawful—they conflate credible-fear (low-threshold, "significant possibility") with full-asylum burdens, improperly import discretionary/full-hearing factors and burdens (corroboration, internal relocation, proof of continuing country conditions), and unreasonably reinterpret "unable or unwilling" standard. |
| Remedy and severability: may court vacate Lesson Plan or issue injunctive relief limited to plaintiffs? | Plaintiffs: full vacatur and new credible-fear interviews for plaintiffs are needed; unlawful provisions are not severable. | Defendants: §1252 limits district court to declaratory relief only; vacatur or nationwide effect is improper absent a class; severability supports leaving most of the Plan intact. | Court: District court may vacate unlawful agency action; unlawful provisions are not severable, so vacatur of the entire Lesson Plan is appropriate; ordered vacatur and new credible-fear determinations for plaintiffs (and return/parole for removed plaintiffs if necessary). |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (agency construction standard under Chevron)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (deference to agency interpretations of genuinely ambiguous regulations)
- Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020) (credible-fear screening described as a low bar; screening vs full hearing)
- Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020) (§1252(e)(3) allows review of written policies implementing expedited removal; guidance treated as implementive)
- Make the Road New York v. McAleenan, 962 F.3d 612 (D.C. Cir. 2020) (treatment of §1252 and judicial-review principles in expedited-removal context)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTAs must provide time and place information to commence proceedings)
- Nken v. Holder, 556 U.S. 418 (2009) (factors for injunctive relief in immigration context)
- Allina Health Servs. v. Sebelius, 746 F.3d 1102 (D.C. Cir. 2014) (vacatur is the ordinary remedy for unlawful agency action)