Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CAPITAL AREA IMMIGRANTS’ RIGHTS
COALITION et al. ,
Plaintiffs , Civil Action No. 19-2117 (TJK) v. DONALD J. TRUMP et al. ,
Defendants .
I.A. et al. ,
Plaintiffs , v. Civil Action No. 19-2530 (TJK) WILLIAM P. BARR et al. ,
Defendants.
MEMORANDUM OPINION
Plaintiffs in these related cases are immigrant-services organizations and individual asylum applicants. They challenge an interim final rule that significantly changes the United States’ asylum procedures. The rule categorically disqualifies aliens arriving at the southern border from receiving asylum unless they have already unsuccessfully sought similar protection in another country on their way here. Plaintiffs allege that the rule is unlawful for several reasons, including that it is contrary to the Immigration and Nationality Act and the Trafficking Victims Protection Reauthorization Act, is arbitrary and capricious, and was issued without notice-and-comment procedures required under the Administrative Procedure Act (APA). Plaintiffs in the first-filed case, CAIR , also allege that the rule violates asylum applicants’ Fifth *2 Amendment due process rights. Defendants argue that this case is largely not justiciable, in part because the organizations lack standing, which deprives the Court of subject-matter jurisdiction over their claims.
Plaintiffs in CAIR moved for a temporary restraining order when they filed their complaint. At that time, Plaintiffs in that case included only nonprofit immigrant-services organizations. The Court denied their motion because they had not shown that, absent preliminary relief, they would suffer irreparable harm just because the rule would make it harder to serve asylum seekers. Those organizations then amended their complaint to add individual asylum applicants as plaintiffs and moved for a preliminary injunction. At about the same time, Plaintiffs in I.A .—a similar immigrant-services organization and individual asylum applicants as well—filed their suit and also moved for a preliminary injunction. After the Court consolidated the cases, all the parties jointly asked the Court to convert the motions for preliminary relief and the related briefing into cross-motions for summary judgment.
The Court holds that it has subject-matter jurisdiction over the claims brought by at least one organizational Plaintiff in each case. It also holds that Defendants unlawfully promulgated the rule without complying with the APA’s notice-and-comment requirements, because neither the “good cause” nor the “foreign affairs function” exceptions are satisfied on the record here. The Court thus need not reach Plaintiffs’ other claims concerning the validity of the rule. The Court will grant Plaintiffs’ motions for summary judgment, deny Defendants’ cross-motions, and vacate the rule.
Background
A. The Immigration and Nationality Act
The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , governs much of the United States’ immigration system. Two portions of it are relevant to this case: the standards applied to asylum applications, and the procedures for expedited removal.
1. Asylum
“Asylum is a form of discretionary relief that allows an otherwise removable alien who
qualifies as a refugee to remain in the United States.” O.A. v. Trump ,
Under the INA, any person physically in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). A person may file that application while she is in removal proceedings or independently. See id. §§ 8 U.S.C. 1225(b)(1)(A)(i), 1229a(c)(4). The former is sometimes called a defensive application and the latter an affirmative application. O.A. , 404 F. Supp. 3d at 121. Some persons are categorically ineligible for asylum, and several such categories are defined by statute in the INA. 8 U.S.C. § 1158(b)(2)(A). For example, an alien is ineligible if she committed certain crimes, is a danger to the community, or was firmly resettled in another country before arrival in the United States. Assuming an applicant is not ineligible for some
Additionally, as discussed below, the INA allows the Attorney General to create additional categories of ineligibility. 8 U.S.C. § 1158(b)(2)(C).
reason, under the INA, asylum may be granted only to an applicant physically present in the United States who is a “refugee,” i.e. , someone with “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1158(a)(1), (b)(1)(A); id. § 1101(a)(42)(A).
After a person applies for asylum, she receives an interview with an asylum officer. Id. § 1225(b)(1)(A)(ii), (B). That officer determines whether the person is eligible for asylum—that
is, first, whether she is categorically ineligible and, if not, second, whether she may be a refugee.
Id. § 1158(b)(1)(A), (B)(i). The latter determination involves deciding whether the applicant has
a “credible fear of persecution,” which exists when “there is a significant possibility” that a
person is a refugee. Id. § 1225(b)(1)(B)(v). If after interviewing the applicant the officer
determines that she has a credible fear of persecution, the applicant may be granted asylum in a
subsequent proceeding if an immigration judge finds that she is a “refugee” under the statute. Id. § 1158(b)(1); 8 C.F.R. § 208.30(f). On the other hand, if the applicant is either ineligible or does
not show a credible fear, the asylum officer enters a “negative credible fear determination.” 8 C.F.R. § 208.30(g)(1). The applicant may appeal that determination to an immigration judge.
§ 208.30(g)(2); see also
The Supreme Court has explained that an individual can qualify for asylum if she demonstrates
a ten percent likelihood that she will be persecuted on the basis of race, religion, nationality,
social group, or political opinion. INS v. Cardoza-Fonseca ,
An applicant found ineligible for asylum may pursue other, more difficult avenues to
avoid removal from the United States. First, she may seek withholding of removal under Section
241(b)(3) of the INA. See 8 U.S.C. § 1231(b)(3);
As a result, these alternative paths ultimately require “a more substantial showing” than
the standard in asylum cases. O.A. ,
2. Expedited Removal The INA sets up two types of removal proceedings: regular, under 8 U.S.C. § 1229a, and expedited, under 8 U.S.C. § 1225. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. The latter applies only to certain classes of individuals, including those who are screened out of the process by asylum officers. Expedited removal proceeds very quickly. As noted above, if an asylum officer enters a “negative credible fear determination” after interviewing an asylum applicant, the applicant may appeal that determination to an immigration judge. 8 C.F.R. § 208.30(g); id. § 1208.30(g). But if the immigration judge agrees with the asylum officer, the applicant is given a final order of removal. Id. § 1208.30(g)(2)(iv)(A). The entire process, by statute, takes no more than seven days. 8 U.S.C. § 1225(b)(1)(B)(iii)(III).
Another feature of expedited removal is the limited availability of judicial review. Congress in the IIRIRA significantly curtailed federal courts’ jurisdiction to review challenges to an individual’s order of removal from expedited removal proceedings. See generally 8 U.S.C. § 1252. And the IIRIRA includes several “channeling rules” which consolidate before the courts of appeals challenges that either seek review of a removal order or that involve questions arising from a removal action or proceeding. § 1252(a)(5), (b)(9); see also O.A. , 404 F. Supp. 3d at 126–38.
B. The Rule
Last year, the Departments of Justice and Homeland Security (“Departments”) jointly
published an interim final rule entitled “Asylum Eligibility and Procedural Modifications,” 84
Fed. Reg. 33,829 (July 16, 2019) (“Rule”). As discussed above, the INA authorizes the Attorney
General to “by regulation establish additional limitations and conditions, consistent with this
section, under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). Relying
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on this provision, the Rule renders aliens seeking to enter the United States at its southern border
categorically ineligible for asylum unless they first applied for similar protection in a third
country they transited through (other than the country they fled) and were rejected there. 84 Fed.
Reg. at 33,835. The Rule does not limit an alien’s ability to seek withholding of removal under
either Section 241(b)(3) of the INA or the CAT.
When issuing the Rule, the Departments explained that it is intended to curb the strain on the United States’ immigration system “by more efficiently identifying aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture.” Id. at 33,831. It also “aims to further the humanitarian purposes of asylum.” Id. According to the Departments, the Rule will deter aliens whose claims lack merit and will instead prioritize those who have no other options or have experienced more extreme forms of human trafficking. Id. The Rule also seeks to combat human smuggling by diminishing “the incentive for aliens without an urgent or genuine need for asylum to cross the border.” Id. And the Departments add that the Rule “will better position the United States as it engages in ongoing diplomatic negotiations with Mexico and the Northern Triangle countries.”
The Rule excludes: (1) an alien who, while in transit to the United States, applied for and was denied protection for individuals fleeing persecution or torture; (2) an alien who is a “victim of a severe form of human trafficking,” 8 C.F.R. § 214.11; or (3) an alien who transited only through “a country or countries that were not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the CAT.” Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835 (July 16, 2019).
The Rule took effect the day it was published. Id. at 33,830. The Departments invoked
two exceptions to the APA’s usual requirements that regulations be published at least 30 days
before they take effect and that the public be offered the opportunity to comment, 5 U.S.C. § 553
(b)–(d). According to the Departments, dispensing with the notice-and-comment period was
“essential to avoid a surge of aliens who would have strong incentives to seek to cross the border
during pre-promulgation notice and comment or during the 30-day delay in the effective date.”
C. Procedural History
Capital Area Immigrants’ Rights Coalition (CAIR) and the Refugee and Immigrant
Center for Education and Legal Services filed the first of these two actions, challenging the Rule
on the same day it took effect. Capital Area Immigrants’ Rights Coal. (CAIR) v. Trump, No. 19-
cv-2117, ECF No. 1 (D.D.C. July 16, 2019). They immediately moved for a temporary
restraining order. CAIR ECF No. 3. About a week later, the Court denied their motion. See CAIR ,
Later, Plaintiffs in CAIR filed an amended complaint adding as new plaintiffs nine individuals and one additional organization. CAIR ECF No. 37 (“ CAIR Compl.”). The *9 individual Plaintiffs, proceeding under pseudonyms, see CAIR ECF No. 36, are women and children who fled persecution and violence in Central America, Cuba, and Angola and transited through Mexico without applying for asylum there before crossing the United States’ southern border after the Rule took effect. CAIR Compl. ¶¶ 13–63. The organizational Plaintiffs remain immigrant-services nonprofits that assist asylum seekers in the United States. Id. ¶¶ 64–66. These Plaintiffs name as Defendants President Donald J. Trump, Attorney General William P. Barr, Acting Secretary of Homeland Security Chad F. Wolf, 4 and related government agencies and leaders. ¶¶ 67–79. About a month after the Rule was promulgated, the Tahirih Justice Center (“Tahirih”), another immigrant-services organization, and another group of individual asylum seekers brought a similar challenge to the Rule against most of the same defendants. I.A. v. Barr , No. 19-cv-2530, ECF No. 1 (D.D.C. Aug. 21, 2019). The I.A. Plaintiffs later filed an amended complaint adding more asylum seekers. See I.A. ECF No. 23 (“ I.A. Compl.”). 5
Plaintiffs in these cases bring mostly the same claims. They contend that the Rule violates the APA because it contradicts the INA and the Trafficking Victims Protection Reauthorization Act (TVPRA); is arbitrary and capricious for several reasons; and that the Departments issued it without the required notice-and-comment procedures. CAIR Compl. ¶¶ 224–47, 256–63; I.A. Compl. ¶¶ 126–40. Plaintiffs in the CAIR suit also allege that the Rule violates asylum seekers’ Fifth Amendment due process rights. CAIR Compl. ¶¶ 248–55. Upon assuming office in November 2019, Chad Wolf was automatically substituted for Kevin McAleenan under Federal Rule of Civil Procedure 25(d). The individual Plaintiffs in both cases, in accompanying declarations filed under seal, represent
that they are fleeing threats of political persecution, severe violence, or death, and they state that they would fear for their own safety and that of their families if their names were disclosed as a result of their participation in this lawsuit. CAIR ECF No. 36; I.A. ECF No. 26.
Plaintiffs in both cases moved for a preliminary injunction on the same day. CAIR ECF
No. 41; I.A. ECF No. 6. But after the Supreme Court stayed a nationwide injunction entered in
the Northern District of California, see Barr v. East Bay Sanctuary Covenant ,
D. East Bay Sanctuary Covenant Litigation
The same day the Rule was issued, another group of immigrant-services organizations
challenged the Rule in the Northern District of California. See Complaint, East Bay Sanctuary
Covenant v. Barr , No. 19-cv-4073-JST (N.D. Cal. July 16, 2019). The plaintiffs in that case
moved the next day for a temporary restraining order, which the district court converted to a
motion for a preliminary injunction. East Bay Sanctuary Covenant v. Barr ,
Legal Standard
Summary judgment is usually appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as matter of law.” Air Transp. Ass’n.
of Am. v. Nat’l Mediation Bd. ,
Plaintiffs argue—and Defendants contest—that the Court may consider evidence outside the administrative record. CAIR ECF No. 59 at 1–2; I.A. ECF No. 50 at 10; CAIR ECF No. 58; I.A. ECF No. 48 (“Defs.’ Supp. Br.”). The Court need not decide this question because it finds the Rule procedurally deficient based only on the information in the administrative record.
Analysis
As described above, Plaintiffs allege that the Rule is unlawful for several reasons, and
Defendants argue, as a threshold matter, that the Court lacks subject-matter jurisdiction over the
organizational Plaintiffs’ claims. First, as it must, the Court considers Defendants’ justiciability
arguments and concludes that at least one organizational Plaintiff in each case has standing, and
that their claims fall within the INA’s zone of interests. Second, the Court turns to Plaintiffs’
claims and holds that because Defendants unlawfully failed to comply with the APA’s notice-
and-comment requirements, the Rule must be vacated. For that reason, it need not consider
Plaintiffs’ other challenges to the Rule. Nat’l Family Planning & Reprod. Health Ass’n v.
Sullivan ,
A. Justiciability
Defendants advance several challenges to the Court’s power to hear this case. With
respect to the organizational Plaintiffs in both cases, Defendants argue that: (1) they lack
standing to sue, and (2) their claims fall outside the relevant zone of interests. The Court
addresses each in turn. Because the Court finds that at least one organization in each case has
standing, it need not consider whether the individual Plaintiffs also have standing. Town of
Chester v. Laroe Estates, Inc. ,
1. Standing
An organization may assert standing “on its own behalf, on behalf of its members or
both.” Equal Rights Ctr. v. Post Props., Inc. ,
The organizational Plaintiffs “bear[] the burden of establishing these elements,” which
they must support “with the manner and degree of evidence required at the successive stages of
the litigation.” Lujan v. Defs. of Wildlife ,
Defendants argue that the organizational Plaintiffs in both cases lack standing because
they have not suffered a legally cognizable injury. To satisfy the injury-in-fact requirement, an
organization must allege that it suffered a “concrete and demonstratable injury to [its]
activities—with the consequent drain on [its] resources—[that] constitutes far more than simply
a setback to the organization’s abstract social interests.” Havens Realty Corp. v. Coleman , 455
U.S. 363, 379 (1982). The D.C. Circuit has articulated a two-prong test for determining whether
an organization meets this standard. First, an organization must show that the challenged
conduct “perceptibly impair[s] the organization’s ability to provide services.” Food & Water
Watch, Inc. v. Vilsack ,
At least one organizational Plaintiff in each case has met this burden. Specifically, both
CAIR and Tahirih have shown how the Rule will frustrate their ability to provide legal services
directly to asylum applicants, a core component of their respective missions. CAIR ECF No. 41-
2 (“Cubas PI Decl.”) ¶¶ 3–7, 19–22; I.A. ECF No. 6-1 (“Cutlip-Mason Decl.”) ¶¶ 6, 12–13, 19–
24. As discussed above, the Rule is intended to bar many individuals from qualifying for
asylum.
These declarations—the substance of which Defendants do not contest—show that the
Rule both conflicts with these organizations’ missions and inhibits their daily activities. See Ctr.
for Responsible Sci. v. Gottlieb ,
Defendants make several arguments to the contrary, but ultimately none carries the day.
First, they argue that organizations like CAIR and Tahirih have no cognizable interest under the
INA; thus, they say, Havens is inapplicable. See CAIR ECF No. 43, I.A. ECF No. 17 (“Defs.’
Cross Mtn”) at 12. They appear to argue that the INA’s channeling provisions, 8 U.S.C.
§ 1252(a)(5) and (b)(9), together with the lack of a private statutory right of action, mean that
these organizations cannot challenge the Rule even to the extent that it affects them. id. The
Court is unpersuaded. To begin with, Defendants have cited no case in which a court precluded
an organization from challenging an immigration-related rule under the APA as a matter of law
in this way. Indeed, the case law stands in stark contrast. More fundamentally, the text of
Section 1252 provides no support for the proposition that organizations may not facially
See, e.g. , O.A. ,
challenge under the APA immigration-related regulations that harm their own interests. And the
specific channeling provisions cited by Defendants apply to challenges that either seek review of
a removal order or involve questions arising from a removal action or proceeding. O.A. , 404
F. Supp. 3d at 126–38; see Dep’t of Homeland Sec. v. Regents of the Univ. of California , No. 18-
587,
Second, Defendants argue that CAIR and Tahirih lack third-party standing to challenge the Rule on behalf of aliens who might be removed. Defs.’ Cross Mtn at 12–13. But these organizations are not claiming standing on behalf of their clients, or any other individual asylum applicants. They are not challenging an immigration enforcement decision. Nor are they arguing they have standing because more of their clients may ultimately be denied asylum. Rather, the organizational Plaintiffs argue that the Rule will directly injure them by making it harder for them to conduct their own basic activities. Indeed, Defendants’ position would seem to preclude an organization from bringing an APA challenge to any rule that even tangentially relates to immigration.
Relatedly, Defendants also argue in passing that these organizational Plaintiffs lack standing to
challenge policies related to an agency’s discretionary enforcement decisions as they relate to a
third party. Defs.’ Cross Mtn at 12–13 (citing Linda R.S. v. Richard D. ,
Third, Defendants argue that while “the legal landscape may have partially changed”
because of the Rule, “the organizations can still provide legal services.” at 14. In
Defendants’ view, then, they have not suffered a cognizable injury. But under the law of this
Circuit, the injury requirement is not so demanding. O.A. ,
Fourth, Defendants argue that the injuries the organizational plaintiffs say the Rule will
cause “are speculative and self-inflicted.” Defs.’ Cross Mtn at 14. While it is true that an
organization may not base standing on “a ‘self-inflicted’ budgetary choice,” PETA , 797 F.3d at
1093 (citation omitted), that is not the case here. For example, these organizational Plaintiffs do
not rely on harm flowing from expenses related to these lawsuits or budgetary decisions related
to their advocacy. id. Rather, as discussed above, they explain how the Rule will make it
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harder for them to provide their core representational services. See also Equal Rights Ctr. , 633
F.3d at 1140 (noting that whether an injury is self-inflicted does not “depend on the voluntariness
or involuntariness of the plaintiffs’ expenditures,” but whether “they undertook the expenditures
in response to, and to counteract, the effects of the defendants’ alleged discrimination”).
Additionally, while the Court “may reject as overly speculative those links which are predictions
of future events,” Arpaio v. Obama ,
Fifth, Defendants argue that the organizational Plaintiffs have not suffered a cognizable injury just because they “must adapt to the new requirements by spending more time on their clients’ cases, adjusting staffing, . . . analyzing the new policy[,] and revising training and orientation materials.” Defs.’ Cross Mtn at 15. If that were all a plaintiff had to show, say Defendants, “then any legal services or advocacy organization could sue in federal court whenever there is a change in the law.” This argument has some intuitive appeal, but it is unsupported by D.C. Circuit precedent.
Indeed, the two cases that Defendants cite in support of this argument are inapposite.
The passage they quote from the first case, Food & Water Watch, instructs only that an agency
may not manufacture an injury by suing.
Finally, Defendants argue that the organizational Plaintiffs may not rely on harm related
to lack of notice and comment because they have not alleged a non-procedural injury. Defs.’
Cross Mtn at 16. Therefore, Defendants argue, they are impermissibly seeking to vindicate “a
procedural right in vacuo .” (citing Summers v. Earth Island Inst. ,
But as discussed above, CAIR and Tahirih have shown cognizable concrete injuries caused by
the Rule. Moreover, both have explained that they regularly submit comments to proposed rules
before they go into effect and they would have done so here if they had been given the
opportunity. Cubas TRO Decl. ¶ 40; Cutlip-Mason Decl. ¶ 25. Tahirih would have “explain[ed]
why the Rule is contrary to domestic law, contrary to international law, and factually
unsupported.” Cutlip-Mason Decl. ¶ 25. And CAIR would have “inform[ed] the Government of
the substantial and irreparable harms—both to the organization and its clients—that the policy
would create.” Cubas TRO Decl. ¶ 40. “The procedural right at stake here—the ability to
comment on [a rule which categorically bars a large number of people from qualifying for
asylum]—is quite obviously linked to their concrete interest, [providing assistance with asylum
applications].” Iyengar ,
For these reasons, the Court finds that at least one organizational Plaintiff in each case has standing, and thus, the Court has subject-matter jurisdiction to hear their claims.
2. Zone of Interests
Though not jurisdictional, the zone-of-interests test is a “tool for determining who may
invoke the cause of action” in a statute. Lexmark Int’l, Inc. v. Static Control Components, Inc. ,
See also Sugar Cane Growers Co-op. of Fla. v. Veneman ,
CAIR and Tahirih have no trouble clearing this low hurdle. First, their interests are
neither inconsistent with nor marginally related to the INA. The INA includes a “statutory
procedure for granting asylum to refugees,” INS v. Cardoza-Fonseca ,
§ 1158(d)(4). Similar statutory requirements exist throughout the INA to ensure that aliens in both expedited and regular removal proceedings can be represented by counsel. See id. § 1228(a)(2), (b)(4)(B); id. § 1362. The Court has little trouble concluding that the organizational Plaintiffs’ interests fall within the zone of interests protected by the INA.
All the same, Defendants cite two cases they assert instruct otherwise. First, they point to
a chambers opinion in which Justice O’Connor, sitting as a Circuit Justice, expressed her view
that a legal assistance organization that assisted undocumented aliens fell outside the zone of
interests of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99–603, 100 Stat.
3359. INS v. Legalization Assistance Project of Los Angeles Cty. Fed’n of Labor ( LAP ), 510
U.S. 1301, 1305 (1993) (O’Connor, J., in chambers) (noting that the “IRCA was clearly meant to
protect the interests of undocumented aliens, not the interests of organizations such as
respondents”). To begin with, LAP represents the opinion of only a single Justice on an
application for interim relief that arose under a statute other than the INA. O.A. , 404
F. Supp. 3d at 145; see also East Bay Sanctuary Covenant v. Trump ,
Defendants also rely on Federation for American Immigration Reform, Inc. v. Reno
( FAIR ),
For these reasons, the Court finds that the zone-of-interests test does not bar the Court from considering the organizational Plaintiffs’ claims.
B. The APA’s Notice-and-Comment Requirements
The APA generally requires substantive rules to be promulgated through notice-and-
comment rulemaking. 5 U.S.C. § 553. These procedures are not a mere formality. They
“are designed (1) to ensure that agency regulations are tested via exposure to diverse public
The Rule itself does not suggest, and Defendants do not claim, that it is covered by the APA’s
exception for non-legislative rules. See generally 84 Fed. Reg. 33,829; see also Clarian Health
W., LLC v. Hargan ,
comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity
to develop evidence in the record to support their objections to the rule and thereby enhance the
quality of judicial review.” Int’l Union, United Mine Workers v. Mine Safety & Health Admin. ,
Because the Rule was promulgated without these procedures, the question for the Court is
whether one of the APA’s exceptions to the usual requirements applies. Defendants assert that
two do. First, under the “good cause” exception, an agency need not provide notice and an
opportunity to comment “when the agency for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B).
Second, under the “foreign affairs function” exception, the normal notice-and-comment
Defendants briefly suggest that the Rule does not constitute final agency action or is otherwise
not ripe for review. Defs.’ Cross Mtn at 24–25. This argument appears only to apply to those
Plaintiffs who are individual aliens, but in any event, as applied to the organizational Plaintiffs, it
surely fails. Agency action is final if it (1) “mark[s] the consummation of the agency’s
decisionmaking process,” so that it is not “of a merely tentative or interlocutory nature,” and (2)
it is “one by which rights or obligations have been determined, or from which legal
consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co. ,
requirements do not apply “to the extent that there is involved . . . a military or foreign affairs function of the United States.” § 553(a)(1).
Despite their potentially broad sweep, the D.C. Circuit has instructed that these
exceptions must be “narrowly construed” and “reluctantly countenanced.” New Jersey , 626 F.2d
at 1045. The Circuit has also emphasized that the broader a rule’s reach, “the greater the
necessity for public comment.” American Fed’n of Gov’t Emps. v. Block ,
1. The Good Cause Exception
The APA permits an agency to dispense with notice-and-comment procedures when it
finds that doing so would be “impracticable, unnecessary, or contrary to the public interest,” an
exception said to require “good cause.” 5 U.S.C. § 553(b)(B). Here, Defendants assert that
providing notice and comment would have been both impracticable and contrary to the public
interest.
Even on top of the principles described above, the D.C. Circuit has set a high bar for
satisfying good cause. As it recently explained, review of an “agency’s legal conclusion of good
cause is de novo .” Sorenson Commc’ns Inc. v. FCC ,
The Circuit has found notice-and-comment procedures sufficiently impracticable only in
unusual cases, such as when “air travel security agencies would be unable to address threats
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posing ‘a possible imminent hazard to aircraft, persons, and property within the United States,’”
or when “a rule was of ‘life-saving importance’ to mine workers in the event of a mine
explosion.” Mack Trucks, Inc. v. EPA ,
Defendants argue that notice-and-comment rulemaking would have been impracticable
and contrary to the public interest because that process would have led to a surge of asylum
seekers at the southern border of the United States.
Common sense dictates that the announcement of a proposed rule may, at least to some
extent and in some circumstances, encourage those affected by it to act before it is finalized. But
*28
this rationale cannot satisfy the D.C. Circuit’s standard in this case unless it is adequately
supported by evidence in the administrative record suggesting that this dynamic might have led
to the consequences predicted by the Departments—consequences so dire as to warrant
dispensing with notice and comment procedures. See Sorenson ,
The evidence that Defendants rely on begins—and for the most part ends—with a single newspaper article in the Washington Post from October 2018; indeed, it is the only specific evidence the Departments cited when promulgating the Rule. 84 Fed. Reg. 33,841. That article includes several passages suggesting that: (1) after the United States abruptly stopped separating families who applied for asylum together in the spring of 2018, smugglers encouraged asylum seekers to bring their children and to speed up their efforts to reach the border; (2) those same smugglers may coach asylum seekers about what to tell interviewing officers so they can meet the credible fear standard; and (3) many months after the United States stopped separating families, a greater proportion of asylum applicants had brought children or other family members with them to the border. ECF No. 21-1 to 21-9 (“AR”) at 438–49.
Under Circuit precedent, this newspaper article alone does not provide good cause to bypass notice-and-comment rulemaking procedures for the reasons cited by Defendants. Even assuming that the Rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the Rule if notice-and-comment rulemaking had *29 proceeded. 14 In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them. Clearly, the article suggests that smugglers are not oblivious to major changes in United States’ immigration policy, and that they pass on the information they learn to some who may use it to game the asylum process. None of that is surprising. But at bottom, the article does little if anything to support Defendants’ prediction that undertaking notice-and-comment rulemaking would have led to a dramatic, immediate surge of asylum applicants at the border that would have had the impact they suggest. And other articles from the administrative record that Defendants cite either do not support, or even undermine , their prediction of such a surge. 15
Defendants offer no other data or information that persuasively supports their prediction of a surge. They point the Court to several charts that they argue support their invocation of good cause. Defs.’ Cross Mtn at 39–40. One shows the number of enforcement actions undertaken by Customs and Border Protection at the southwest border from October 2016 The process of travelling through Mexico to the southern border of the United States to seek asylum, as described in the article, is risky for a host of reasons that have nothing to do with the Rule. Those risks are not at issue here. The question is whether there is an adequate basis for the Departments’ prediction that, if notice-and-comment rulemaking had proceeded, a surge of asylum seekers would have jeopardized life and defeated the purpose of the Rule, such that Defendants’ invocation of the good cause exception was justified. For example, according to one article, about a month before the Rule was promulgated, the
President tweeted twice that Guatemala was preparing to sign an agreement that would force migrants crossing through it to apply for asylum there and block them from seeking asylum elsewhere, including in the United States. AR at 635. But nothing in the record suggests that those tweets caused a surge at the southern border. Another article noted that “migrants themselves don’t necessarily know what asylum is or why they might or might not qualify for it,” and that some migrants incorrectly believe asylum outcomes turn on whether they have relatives in the United States. AR at 681. A third reported that while migrants are aware of “the basics”—for example, they “know to request asylum” and that families are less likely to be detained—they “generally lack understanding of United States immigration law.” AR at 768. *30 through May 2019, broken down by the alien’s country of origin. See AR at 119. But the Court can glean little from that chart, other than that these enforcement actions decreased somewhat during the first six months of that period, increased gradually over the next few years, and then increased more sharply early in 2019. Defendants also point to a chart that depicts “Southwest Border Encounters of non-Mexican Aliens” each month from October 2012 to March 2019 and also contains some agency observations of that data. See AR at 208–20. But again, all this chart shows is that as of March 2019, more and more non-Mexican aliens were encountered at the southern border and that the agency projected the number to continue to rise for unspecified reasons. Interestingly, though, the agency’s observations reflect that even the relatively high number of encounters reported in March 2019 was not unprecedented; a higher number had been reported a decade earlier. AR at 210.
As far as providing a basis for predicting a surge of asylum seekers prompted by the
publishing of the Rule for notice and comment, these numbers would be meaningful if
Defendants explained that peaks or troughs in the data corresponded with regulatory or policy
changes in the United States. But Defendants have not done so, and the Court cannot find any
such analysis in the record. Achagzai v. Broad. Bd. of Governors ,
out, Defendants—“despite studying migration patterns closely”—have “failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.” I.A. ECF No. 21 at 18. That failure is striking.
The Circuit’s decision in Tennessee Gas Pipeline v. Federal Energy Regulatory
Commission ,
So too here. In Tennessee Gas Pipeline , the agency predicted a surge in potential pipeline construction; here, the Departments predicted a surge in potential asylum seekers. There, the agency thought that companies would act immediately to avoid more stringent regulatory requirements; here, the Departments say that so many asylum seekers would have acted so quickly to avoid more stringent requirements that a surge would have jeopardized their lives and the very purpose of the Rule. There, the agency fell back on its “ample practical experience,” id. ; here, the Departments also rely on their “experience.” See 84 Fed. Reg. 33,841. And in both cases, the agencies failed to provide meaningful factual support for their predictions. The evidence offered by Defendants in this case—a newspaper article—is similarly too “thin [a] reed on which to base a waiver of the APA’s important notice and comment requirements.” 969 F.2d at 1145.
Still, Defendants argue that this Court should defer to the Departments’ invocation of
good cause. See Defs.’ Supp. Br. at 4. Although the Circuit was clear in Sorenson that an
agency’s legal conclusion of good cause is subject to de novo review, Defendants point out that
in a footnote in that case, the Circuit acknowledged that courts should “defer to an agency’s
In Tennessee Gas Pipeline ,
The Sorenson footnote does not save Defendants’ good cause argument. To begin with,
the record contains no information suggesting that the agency sought to confirm the accuracy of
the article and so it is unclear whether the Court should afford it any deference. Cf. City of New
Orleans v. SEC ,
The question, though, is whether Defendants’ conclusory prediction of a surge in asylum
seekers so great and so rapid as to threaten life or defeat the very purpose of the Rule if notice-
and-comment procedures were followed is entitled to deference on this record. And Circuit
precedent commands that it is not. As explained above, in Tennessee Gas Pipeline , the court
found that there was “little factual basis” for the agency’s prediction, and thus did not defer to it,
even though it was “hesitant to discount such forecasts” because they “necessarily involve
deductions based on expert knowledge of the Agency.”
Sorenson itself provides another example of the Circuit declining to defer to an agency’s
predictive judgment without an adequate record or explanation. In that case, Judge Rogers
Brown, joined by Judges Griffith and Millett, rejected the agency’s invocation of good cause
because, after closely examining the record, they concluded that “there were no factual findings
supporting the reality of the threat”—a potential shortfall in a fund administered by the Federal
Communications Commission (FCC).
Defendants also point to East Bay Sanctuary Covenant v. Trump ,
That decision is unpersuasive for several reasons. First, Ninth Circuit precedent does not
require courts there to review an agency’s invocation of good cause de novo, as D.C. Circuit
precedent requires this Court to do. East Bay Sanctuary Covenant v. Trump ,
Finally, Defendants also cite the Supreme Court’s decision in Holder v. Humanitarian
Law Project ,
when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.” Id . at 35.
There are many circumstances in which the law appropriately commands, as in Holder , that courts defer to the Executive Branch’s national security judgments. But even putting aside the many other differences between that case and this one, the record in that case consisted of far more than a newspaper article. There, the basis for the judgments of both Congress and the Executive about the material support statute—the latter’s set forth in an affidavit of a State Department official—were thoroughly explained to the Court. Those judgments were informed by extensive experience with how terrorist groups fund their activities, and the specific designated terrorist organizations at issue, which the Executive asserted had killed thousands. at 29–30. Here, by contrast, the Departments rely on a single newspaper article that does not even directly address the key predictive judgment in question: the likelihood of a surge in asylum seekers so great and so rapid as to threaten human life or defeat the purpose of the Rule if notice- and-comment procedures were followed.
It bears emphasizing that in holding that the good cause exception does not apply, the Court does not suggest in any way that the Executive’s broader security concerns that prompted promulgation of the Rule were unfounded. The question for the Court is simply whether, on the record before it, the prediction of a surge offered by the Departments provided good cause to dispense with notice-and-comment procedures before the Rule took effect. For the reasons explained above, the Court holds that it did not.
The Departments cite several other past rulemakings in which they say they invoked § 553’s
good cause exception to avoid a similar surge.
2. The Foreign Affairs Function Exception The second exception Defendants invoke is the foreign affairs function exception. As noted above, notice-and-comment requirements do not apply “to the extent there is involved . . . a military or foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). Unlike the good cause exception, there is little case law in this Circuit, or elsewhere, to guide the Court’s application of this exception. Perhaps as a result, it presents a closer call. Still, the Court finds that Defendants’ arguments in favor of the exception come up short.
Plaintiffs urge a narrow reading of the foreign affairs function exception. They note that
several circuits have held that an agency may not invoke this exception just because a rule
“implicates foreign affairs.” I.A. ECF No. 6 at 24 (internal quotation and citation omitted); CAIR ECF No. 41-1 at 18 (internal quotation marks omitted) (citing Yassini v. Crosland , 618 F.2d
1356, 1360 n.4 (9th Cir. 1980)); see also Zhang v. Slattery ,
The Court starts, as it must, with the text of the statute: notice-and-comment procedures
are unnecessary “to the extent there is involved . . . a military or foreign affairs function of the
United States.” 5 U.S.C. § 553(a)(1). The first part of that phrase, “to the extent there is
involved,” applies to several other categories of rulemakings as well, including those involving
public benefits, 5 U.S.C. § 553(a)(2), and the D.C. Circuit has interpreted the phrase in that
context. Specifically, in Humana of South Carolina, Inc. v. Califano , the Circuit instructed—
consistent with the duty to “narrowly construe” and “reluctantly countenance” such exceptions,
New Jersey ,
The APA does not define the key terms in the second part of that phrase—“foreign affairs” or “function”—and so the Court turns to dictionaries in use at the time of the APA’s enactment. The definition of “foreign affairs” is reasonably straightforward: it refers to the conduct of international relations between sovereign states. See Webster’s New International Dictionary 988 (2d ed. 1945) (defining foreign affairs to include “matters having to do with international relations and with the interests of the home country in foreign countries”). The meaning of “function,” on the other hand, is less so. The 1945 version of Webster’s New International Dictionary defines it as “[t]he natural and proper action of anything; special activity,” “[t]he natural or characteristic action of any power or faculty,” or “[t]he course of action which peculiarly pertains to any public officer in church or state; the activity appropriate to any business or profession; official duty.” at 1019. “Function” thus appears to narrow the exception further; to be covered, a rule must involve activities or actions that are especially characteristic of foreign affairs. Applying these definitions, then, a “foreign affairs function” encompasses activities or actions characteristic to the conduct of international relations. And to sum up, to be covered by the foreign affairs function exception, a rule must clearly and directly involve activities or actions characteristic to the conduct of international relations.
PHH Corp. v. Consumer Fin. Prot. Bureau ,
As noted above, some circuits have adopted a test that would also permit the exception to
be invoked when notice-and-comment procedures “would provoke definitely undesirable
international consequences.” Am. Ass’n of Exps. ,
First, this test is unmoored from the legislative text; it is lifted from the House Report
relating to the APA. But as the Supreme Court has repeatedly instructed, “the authoritative
statement is the statutory text, not the legislative history or any other extrinsic material,” Exxon
Mobil Corp. v. Allapattah Servs., Inc. ,
missions,” which it characterized as “different.” City of New York ,
Thus, the foreign affairs function exception plainly covers heartland cases in which a rule
itself directly involves the conduct of foreign affairs. For example, the exception covers
scenarios in which a rule implements an international agreement between the United States and
another sovereign state. Indeed, that is the only circumstance to which the D.C. Circuit has
applied it. Specifically, in International Brotherhood of Teamsters v. Pena ,
Cir. 1994), the Circuit held that the foreign affairs function exception applied to a Federal
Highway Administration rule implementing a Memorandum of Understanding (MOU) between
the United States and Mexico about the countries’ reciprocal recognition of each other’s
commercial drivers’ licenses. The court noted that “the rule does no more” than carry out the
United States’ “obligations to a foreign nation.” Id. at 1486. The rule in that case merely “added
a sentence to [a] footnote” in a regulation specifying that the Administrator had determined that
Mexican commercial drivers’ licenses met the United States’ standards. Id. at 1481; see also Commercial Driver’s License Reciprocity With Mexico, 57 Fed. Reg. 31,454 (July 16, 1992)
(discussing the negotiations between the United States and Mexico and including the text of the
MOU itself). The exception also certainly covers rules that regulate foreign diplomats in the
United States. For example, in City of New York v. Permanent Mission of India to United
Nations , the Second Circuit held that the exception covered an action by the State Department
“exempt[ing] from real property taxes” any “property owned by foreign governments and used to
house the staff of permanent missions to the United Nations or the Organization of American
States or of consular posts.”
That Congress would categorically exclude rules like these from notice-and-comment
procedures is unsurprising. These procedures enhance the rulemaking process by exposing
proposed regulations to feedback from a broad set of interested parties. See Int’l Union , 407
F.3d at 1259. But comments are unlikely to impact a rule to which the United States has already
effectively committed itself through international agreement. Pena ,
Here, however, the foreign affairs function exception does not excuse the Departments from failing to engage in notice-and-comment rulemaking before promulgating the Rule. The Rule overhauls the procedure through which the United States decides whether aliens who arrive at our southern border are eligible for asylum here, no matter the country from which they originally fled. These changes to our asylum criteria do not “clearly and directly” involve activities or actions characteristic of the conduct of international relations. They do not, for example, themselves involve the mechanisms through which the United States conducts relations with foreign states. Nor were they the product of any agreement between the United States and another country, regardless of any ongoing negotiations. To be sure, Defendants say they intended that the Rule would have downstream effects in other countries, and perhaps on those negotiations. Obviously, they expected that the Rule would cause more aliens to apply for protection in other countries before arriving in the United States and seeking asylum here. But these indirect effects do not clear the high bar necessary to dispense with notice-and-comment rulemaking under the foreign affairs function exception.
It may seem a quibble that the exception distinguishes between rules that “clearly and
directly” involve activities characteristic of the conduct of international relations and those that
have indirect international effects. And of course, the Court is bound to apply both Circuit
precedent and the statutory text as it is, “even if it thinks some other approach might accord with
*44
good policy.” Loving v. IRS ,
Defendants argue that the Rule falls within the exception for two broad reasons, but
neither passes muster. First, they say that the Rule implicates foreign affairs or the President’s
foreign policy agenda. For example, they note that “the flow of aliens across the southern border
directly implicates the foreign policy and national security of the United States.” Defs.’ Cross
Mtn at 41 (cleaned up). They explain that the Rule is “linked intimately with the Government’s
*45
overall political agenda concerning relations with another country.” Id. at 43 (quoting Am. Ass’n
of Exps. ,
Second, Defendants contend that notice-and-comment procedures would in some way
affect ongoing negotiations with other countries. For example, they assert that the Rule will
“facilitate ongoing diplomatic negotiations with foreign countries” about migration issues. at
41 (quoting
negotiating strategy. Id. at 42. And relatedly, they argue that the faster the Rule went into effect, the faster it would address the circumstances at our southern border, “thereby facilitating the likelihood of success in the United States’ ongoing negotiations with Mexico regarding regional and bilateral approaches to asylum, and supporting the President’s foreign-policy aims.” (cleaned up). This argument gets Defendants no further. As explained above, downstream effects on foreign affairs or negotiations with other countries—either positive or negative—do not bring the Rule under this exception. And while negative international effects could well satisfy the good cause exception, Defendants do not make that argument, or back it up with an appropriate factual record, such as sworn declarations from appropriate officials.
Defendants also argue that the Court should defer to the Departments’ conclusion that the
foreign affairs function exception applies. Defs.’ Supp. Br. at 4 (arguing that “principles of
deference are heightened in the context of Defendants’ invocation of the ‘foreign affairs’
exception”). But they do not point to any case law suggesting that agencies are entitled to
deference in interpreting the scope of the exception. That is hardly surprising. As this Circuit
has explained, “an agency has no interpretive authority over the APA.” Sorenson , 755 F.3d at
706; see also Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n ,
* * *
For all the above reasons, the Court finds that the Rule is not exempt from the APA’s notice-and-comment procedures. Because the Departments unlawfully dispensed with those requirements, they issued the Rule “without observance of procedure required by law,” 5 U.S.C. § 706.
C. Remedy
The APA commands that courts “hold unlawful and set aside agency action[s]” taken
“without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). And the D.C. Circuit
has held that “[f]ailure to provide the required notice and to invite public comment . . . is a
fundamental flaw that ‘normally’ requires vacatur of the rule.” Heartland Reg’l Med. Ctr. v.
Sebelius ,
Under Allied-Signal , to decide whether remand without vacatur is appropriate, courts
look to two factors: “the seriousness of the order’s deficiencies (and thus the extent of doubt
whether the agency chose correctly) and the disruptive consequences of an interim change that
may itself be changed.”
As to the first factor, deficient notice “almost always require[s] vacatur,” Allina Health
Servs. v. Sebelius ,
To be sure, courts in this Circuit have sometimes applied Allied-Signal , in one way or
another, to stay vacatur when vacating a rule immediately would create confusion, see Chamber
of Commerce v. SEC ,
Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17,060 (Mar. 26, 2020); Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act, Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31,503 (May 26, 2020); see also Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico, 85 Fed. Reg. 16,547 (Mar. 24, 2020); Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico, 85 Fed. Reg. 37,745 (June 24, 2020).
see Anacostia Riverkeeper, Inc. v. Jackson ,
Defendants also urge the Court to “limit any relief to the actual parties before the Court,”
Defs.’ Supp. Br. at 5, pointing to Justice Thomas’s concurrence in Trump v. Hawaii , 138 S. Ct.
2392 (2018), id. at 7. But there, Justice Thomas addressed the propriety of nationwide
injunctions, Trump , 138 S. Ct . at 2424–29, which is not the issue here. As the D.C. Circuit has
explained—and as Defendants concede, see Defs.’ Supp. Br. at 9 n.1—“[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.” Nat’l Min. Ass’n
v. U.S. Army Corps of Eng’rs ,
Defendants also contend that vacatur is prohibited by several provisions of the INA, but
again, the Court is not persuaded. They first argue that Section 1252(e)(1)’s prohibition on
“declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude
an alien in accordance with [expedited removal]” prohibits vacatur. Defs.’ Supp. Br. at 9–10.
Defendants’ reliance on the Fourth Circuit’s opinion in Virginia Soc’y for Human Life, Inc. v.
FEC ,
But the organizational Plaintiffs, like CAIR and Tahirih, are not challenging any specific order to
exclude an individual alien; they bring a facial challenge to the Rule. For that reason, Section
1252(e)(1) does not apply. Second, Defendants point to Section 1252(f)’s dictate that “no court
(other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the
operation of the provisions of [8 U.S.C. §§ 1221–32] other than with respect to the application of
such provisions to an individual alien against whom proceedings under such part have been
initiated.” Id. at 10–11. But again, that section does not apply here. The Rule was issued under
12 U.S.C. § 1158(b)(2)(c), see
Finally, Defendants argue that “in light of the Supreme Court’s order in Barr v. East Bay
Sanctuary Covenant ,”
Court’s one-paragraph order other than that a majority of Justices believed the factors meriting a
stay were satisfied.
For these reasons, the Court holds that vacatur is the appropriate remedy and that neither remand without vacatur nor a stay of vacatur is warranted.
Conclusion
For all these reasons, the Court will grant Plaintiffs’ Motions for Summary Judgment, CAIR ECF No. 41, I.A. ECF No. 6; deny Defendants’ Cross-Motions, CAIR ECF No. 43, I.A. ECF No. 17; and vacate the Rule. A separate order will issue.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: June 30, 2020