1 F.4th 1100
D.C. Cir.2021Background
- Plaintiffs: ~126 inadmissible aliens who received adverse credible-fear determinations after expedited-removal interviews; they challenge eleven sub-regulatory interview "policies" (not the Transit Rule itself).
- Alleged policies include inadequate guidance/training, predecisional interviews, inadequate records, adversarial procedures, lack of notice/counsel, misapplication of precedent, automatic fraud review, inadequate explanations, and harsh interviews of children.
- District court dismissed most claims for lack of jurisdiction because ten challenged policies were unwritten (and thus not reviewable under 8 U.S.C. § 1252(a)(2)(A)(iv)) or were time-barred under § 1252(e)(3)(B)’s 60-day limit; one policy (fraud-review) was timely only as to a subset of plaintiffs.
- The court also denied joinder of later plaintiffs whose challenges were untimely and entered final judgment under Rule 54(b) for dismissed plaintiffs; those plaintiffs appealed.
- The D.C. Circuit affirmed: unwritten practices are barred from review by § 1252(a)(2)(A)(iv) (except for written regulations/policies), the 60-day filing deadline is jurisdictional and barred the CBP-interviewer challenge, and later-added plaintiffs’ challenges to the fraud-review policy were untimely so joinder was futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "policies adopted" under §1252(a)(2)(A)(iv) include unwritten practices | Unwritten recurring practices are "adopted" and thus reviewable; the written-policy exception shouldn't immunize routine practices | "Adopted" policies subject to the bar can be unwritten; subsection (e) permits review only of written regulations/policy directives/guidelines/procedures | Bar covers unwritten practices; only written regulations/policies fall within §1252(e)(3) review exception. |
| Timeliness of challenge to CBP agents conducting interviews (written July 10, 2019 agreement) | Implementation for plaintiffs occurred Sept 9 at their facility, so suit filed Sept 16 was timely | Implementation began July 10/15 when agreement took effect or was first used, so §1252(e)(3)(B)’s 60-day clock ran earlier | Challenge was untimely; the 60-day deadline is jurisdictional and not subject to equitable tolling. |
| Whether later-added plaintiffs can piggyback timely plaintiff’s suit re: fraud-review policy; joinder and relation-back | FAIR rule lets plaintiffs seeking same relief rely on one timely plaintiff; Rule 15(c) relation back saves late plaintiffs | Each plaintiff must satisfy §1252(e)(3)(B)’s 60-day filing requirement; AILA controls; relation back/time-bar cannot be cured | Later-added plaintiffs’ claims were untimely; joinder denied as futile; district court properly dismissed those claims. |
| Do First Amendment / APA labels avoid §1252(a)(2)(A)(iv) bar? | Constitutional or procedural APA claims fall outside the policy-review bar | The bar targets the nature of the action; label (First Amendment/APA) does not avoid it | Bar applies irrespective of claim label; First Amendment and APA challenges to the policies were jurisdictionally barred. |
Key Cases Cited
- DCH Reg'l Med. Ctr. v. Azar, 925 F.3d 503 (D.C. Cir. 2019) (presumption of reviewability can be overcome by clear statutory language)
- American Immigration Lawyers Ass'n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) (60-day filing requirement for expedited-removal policy challenges is jurisdictional and individual plaintiffs must meet it)
- Bowles v. Russell, 551 U.S. 205 (2007) (jurisdictional filing deadlines are not subject to equitable tolling)
- DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) (aliens apprehended at the border have only the process Congress provides; §1252’s bar does not violate due process)
- United States v. Kwai Fun Wong, 575 U.S. 402 (2015) (time limits are jurisdictional only if Congress clearly indicates they are)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (statutory requirements are jurisdictional if they are threshold ingredients of jurisdiction)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (constitutional-doubt canon inapplicable where statute is unambiguous)
- Attias v. CareFirst, Inc., 969 F.3d 412 (D.C. Cir. 2020) (discussing appropriateness of Rule 54(b) certifications and finality considerations)