M.M.V. v. BARR, 456 F.Supp.3d 193

Background

Plaintiffs are mothers and children detained at the South Texas Family Residential Center who sought asylum and received negative credible- or reasonable-fear determinations; they challenge implementation practices (not the Transit Ban itself) that they say improperly altered the credible-fear process.
The challenged implementation arose after the July 16, 2019 "Transit Ban" regulation, which bars asylum for most entrants crossing the southern land border unless they first sought protection in a third country; the rule also directs asylum officers to apply the reasonable-fear standard in certain cases.
Plaintiffs identify eleven "Challenged Actions" (e.g., failure to orient applicants, inadequate training, CBP officers conducting interviews, summary negative determinations, adversarial interrogation tactics, limited consultation, applying RFI standards without protections, not applying favorable precedent, mandatory FDNS review of positive findings, withholding facts in write-ups, abandoned child-sensitive practices).
Defendants moved to partially dismiss for lack of subject-matter jurisdiction under IIRIRA § 1252(a)(2)(A)(iv); they also argued many alleged actions are unwritten (thus not reviewable under § 1252(e)(3)) and that the § 1252(e)(3)(B) 60-day filing limit bars late challenges.
The court held that § 1252(a)(2)(A)(iv) generally precludes review of "procedures and policies" implementing § 1225(b)(1), that most challenged actions were unwritten practices outside the § 1252(e)(3) exception, dismissed those claims for lack of jurisdiction, found only the FDNS-concurrence claim (Challenged Action #9) implicated a written policy timely as to earlier plaintiffs, and denied joinder/added plaintiffs as untimely or misjoined.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1252(a)(2)(A)(iv) bars judicial review of the challenged implementation actions	The challenged actions are unlawful and fall within federal-question/APA review; some alleged written policies are invalid because USCIS Acting Director was unlawfully appointed	§ 1252(a)(2)(A)(iv) strips courts of jurisdiction to review procedures/policies implementing § 1225(b)(1) (with limited exceptions)	The court found § 1252(a)(2)(A)(iv) limits jurisdiction and must be applied despite challenges to the Acting Director’s appointment
Whether unwritten practices are reviewable under the § 1252(e)(3) exception	Practices in operation are effectively written or otherwise reviewable; denying review of unwritten practices would leave unconstitutional actions unchecked	§ 1252(e)(3) permits review only of regulations or written policy directives/guidelines/procedures; unwritten practices fall outside the exception	The court held plaintiffs failed to show written directives for seven challenged actions and so those claims are not reviewable under § 1252(e)(3)
Whether plaintiffs’ claims invoking written policies satisfy § 1252(e)(3)(B)’s 60-day filing requirement	Some written materials exist but were effectively first implemented after July 16; equitable tolling or plaintiff discovery excuses apply	The 60-day clock runs from "first implementation" (fixed date) and is jurisdictional; many claims were filed too late	The court held several written-policy claims were untimely and dismissed late claims; only the FDNS-review policy (challenged action #9) was timely for original plaintiffs
Standing and joinder for plaintiffs not affected by the remaining written-policy claim	All joined plaintiffs have related injuries from implementation practices and may proceed together	Only plaintiffs actually subjected to the specific written FDNS-review procedure suffered the injury relevant to the surviving claim; others are misjoined and untimely	The court dismissed those not subject to FDNS review for misjoinder (Rule 20/21) and denied joinder motions for late proposed plaintiffs as futile/untimely

Key Cases Cited

Negusie v. Holder, 555 U.S. 511 (2009) (discussing statutory protections for refugees and non-refoulement principles)
INS v. Stevic, 467 U.S. 407 (1984) (explaining standards for asylum/withholding and "well-founded fear")
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining the lower "well-founded fear" standard for asylum credibly)
Am. Immigration Lawyers Ass'n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) (interpreting § 1252(e)(3) and holding unwritten practices outside the statutory exception)
Khan v. Holder, 608 F.3d 325 (7th Cir. 2010) (upholding that courts may review written regulations but not unwritten agency practices under § 1252)
Utility Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) (statutory interpretation principles; consider text, structure, context)
Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) (permanent injunction requiring application of the most favorable precedent in credible-fear proceedings)
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (standing burden; plaintiff must establish injury-in-fact)