GRACE, ET AL., APPELLEES v. WILLIAM P. BARR, ATTORNEY GENERAL OF THE UNITED STATES, IN HIS OFFICIAL CAPACITY, ET AL., APPELLANTS
No. 19-5013
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2019; Decided July 17, 2020
Erez Reuveni, Assistant Director, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Susan Bennett Green, Senior Litigation Counsel, and Christina P. Greer, Trial Attorney.
Michael M. Hethmon was on the brief for amicus curiae Immigration Reform Law Institute in support of defendants-appellants.
Cody Wofsy argued the cause for appellees. With him on the brief were Jennifer Chang Newell, Katrina Eiland, Julie Veroff, Judy Rabinovitz, Omar C. Jadwat, Celso J. Perez, Eunice Lee, Karen Musalo, Anne Dutton, Blaine Bookey, Sandra S. Park, Scott Michelman, Arthur B. Spitzer, and Thomas Buser-Clancy.
Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Lewis T. Preston, Assistant Attorney General, were on the brief for amici curiae The District of Columbia, et al. in support of appellees.
Paul M. Thompson, Julie Carpenter, and Richard Caldarone were on the brief for amici curiae The Tahirih Justice Center, et al. in support of appellees and affirmance.
Derek T. Ho was on the brief for amici curiae Administrative Law Professors in support of plaintiffs-appellees.
Thomas K. Ragland was on the brief for amici curiae Immigration Law Professors in support of plaintiffs-appellees.
Alexander J. Kasner was on the brief for amicus curiae United Nations High Commissioner for Refugees in support of plaintiffs-appellees.
Before: HENDERSON, TATEL, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge HENDERSON.
TATEL, Circuit Judge: Twelve asylum seekers challenge a host of executive-branch policies adopted to implement the expedited-removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended in scattered sections of
I.
In IIRIRA, Congress established a comprehensive scheme for distinguishing between aliens with potentially valid asylum claims and those “who indisputably have no authorization to be admitted [to the United States].” American Immigration Lawyers Ass‘n v. Reno, 199 F.3d 1352, 1355 (D.C. Cir. 2000) (quoting H.R. Rep. 104-828, 209 (1996) (Conf. Rep.)). Under IIRIRA, which amended the INA, newly-arrived aliens who lack valid authorization to enter the United States but express an “intention to apply for asylum,” or indicate to immigration officers that they “fear persecution” if returned to their home countries, must be interviewed by trained asylum officers.
The stakes are high. An alien found to have a credible fear of persecution receives a full-blown asylum hearing before an immigration judge, an employee of the Department of Justice (DOJ), and has a
This case concerns the credible-fear interview. At this “screening” stage, “[t]he applicant need not show that he or she is in fact eligible for asylum.” Thuraissigiam, 140 S. Ct. at 1965. Instead, IIRIRA defines “[c]redible fear of persecution” 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 under [8 U.S.C.] section 1158.”
The INA nowhere defines “particular social group.” But in a line of decisions beginning with Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board has long defined the term to mean “a group of persons all of whom share a common, immutable characteristic,” one they “either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. at 233; see also Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230–31 (BIA 2014) (same); In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996) (same). This basic definition is well-accepted by the courts. See, e.g., S.E.R.L. v. Attorney General, 894 F.3d 535, 545–49 (3d Cir. 2018) (describing the Board‘s efforts to refine Acosta‘s core framework); Reyes v. Lynch, 842 F.3d 1125, 1134 (9th Cir. 2016) (same). As the Seventh Circuit has explained, “if the ‘members’ have no common characteristics they can‘t constitute a group, and if they can change [their common] characteristics—that is, cease to belong to the group—without significant hardship, they should be required to do so rather than be allowed to resettle in [the United States] if they do not meet the ordinary criteria for immigration to this country.” Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009). Significantly for this case, moreover, a social group must exist independently of the harm suffered by the asylum applicant, i.e., “the persecution cannot be what defines the contours of the group.” Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005). For this reason, the Board has “resist[ed] efforts to classify people who are targets of persecution as members of a particular social group when they have little or nothing in common beyond being targets.” Gatimi, 578 F.3d at 616. The parties refer to this principle as the circularity rule.
Narrowing our focus even further, the agency action at issue in this case addresses persecution by non-governmental actors, like gangs and spouses. Under longstanding administrative and judicial precedent, the term “persecution,” undefined in the INA, encompasses harm inflicted by non-state actors. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1060 (9th Cir. 2017) (en banc) (explaining that “[t]he concept of persecution by non-state actors is ‘inherent’ in . . . the Refugee Act,” which amended the INA); Deborah Anker, Law of Asylum in the United States § 4:10 (2019 ed.) (“In U.S. law, recognition of the non-state actor doctrine is long-standing, pre-dating the 1980 incorporation of the international refugee definition into the [INA].“). In order to obtain asylum based on persecution by non-state actors, applicants must show that their governments were “unable or unwilling to control” the persecutors. See, e.g., Bringas-Rodriguez, 850 F.3d at 1062–68 (collecting cases applying the “unable or unwilling” standard).
This case traces its roots to the asylum petition of an El Salvadoran mother, A.B., who entered the United States unlawfully and claimed that she suffered persecution on account of her membership in the “purported particular social group of El Salvadoran women who are unable to leave their domestic relationships where they have children in common with their partners.” Matter of A-B-, 27 I. & N. Dec. 316, 321 (2018) (internal quotation marks omitted). In support, A.B. produced evidence that “her ex-husband, with whom she share[d] three children, repeatedly abused her physically, emotionally, and sexually during and after their marriage.” Id. An immigration judge denied A.B.‘s asylum application, but the Board reversed, finding that A.B.‘s social group was “substantially similar” to the group “married women in Guatemala who are unable to leave their relationship“—a group it had approved in an earlier case, Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). A-B-, 27 I. & N. Dec. at 321. (internal quotation marks omitted). The Board also found “that the El Salvadoran government was unwilling or unable to protect [A.B.]” from abuse and thus concluded that she satisfied the requirements for asylum. Id.
Pursuant to DOJ regulations, the Attorney General, then Jefferson Sessions, “direct[ed] the Board to refer” A.B.‘s case to him for review,
In his opinion, the Attorney General first reviewed the Board‘s social-group caselaw, explaining that applicants seeking asylum based on particular social group membership must establish “that [the group] exists independently of the alleged ... harm[] [and] demonstrate that their persecutors harmed them on account of their membership in that group rather
Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.
Id. at 320 (footnote omitted). “Accordingly,” he added, “few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution,” citing the IIRIRA provision that governs credible-fear interviews. Id. at 320 n.1 (citing
USCIS then issued a policy memorandum to provide guidance to asylum officers “for determining whether a petitioner is eligible for asylum ... status in light of the Attorney General‘s decision in Matter of A-B-.” USCIS, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B- 1, PM-602-0162 (July 11, 2018), Joint Appendix (J.A.) 353 (“Guidance“). In addition to summarizing and restating A-B-, especially its discussion of asylum claims based on persecution by non-state actors on account of an applicant‘s membership in a particular social group, the Guidance announced that, in making credible-fear determinations, officers should apply the law of “the circuit where the alien is physically located during the credible fear interview.” Id. at 9, J.A. 361. Until then, USCIS had generally applied the circuit law most favorable to applicants. We shall have much more to say about this later.
With this background in mind, we turn to the facts of this particular case. Twelve asylum seekers challenged both A-B- and the Guidance in the district court, alleging that several of the policies announced by the Attorney General and USCIS violate the INA, the APA, and the U.S. Constitution. Compl. ¶¶ 6–11. The asylum seekers, most from Central America, all testified to asylum officers that they suffered, or faced threats of, sexual abuse or physical violence at the hands of romantic partners or gangs. Id. ¶¶ 15–23. Cindy Ardon Mejia, for example, testified that she “fled her home in Central America with her young daughter . . . after suffering rape, physical beatings, and shootings carried out by her daughter‘s father and members of his gang” and that she “repeatedly sought police protection” in her home country but never received it. Id. ¶ 23. An asylum officer nonetheless found that Ardon Mejia had failed to demonstrate a significant possibility that she would qualify for asylum—that is, that she lacked a “credible fear of persecution“—and after an immigration judge agreed, she was removed to her home country. Id. The other asylum seekers alleged similar experiences. Although asylum officers found each asylum seeker credible, all were nonetheless ordered removed from the United States.
In their lawsuit, the asylum seekers challenged four specific policies: (1) the
The district court began by finding that it had jurisdiction to review both A-B- and the Guidance. It then ruled that three of the policies—the non-state actor standard, the choice-of-law policy, and the “categorical ban” on domestic- and gang-violence claims—are contrary to law and arbitrary and capricious. See Grace v. Whitaker, 344 F. Supp. 3d 96, 126, 146 (D.D.C. 2018). It also found the Guidance‘s directive regarding how asylum officers should analyze claims of persecution “on account of... membership in a particular social group” arbitrary and capricious on the ground that it departed from agency policy without explanation. Id. at 132–33. The court granted summary judgment in the asylum seekers’ favor, declared the four policies unlawful, vacated them, and permanently enjoined defendants—the Attorney General, the DHS Secretary, the USCIS Director, and the Director of the Executive Office for Immigration Appeals—and their agents from applying them in credible-fear proceedings. See Order, Grace v. Whitaker, No. 18-cv-1853 (D.D.C. June 3, 2019). The court never reached the asylum seekers’ constitutional claims, Grace, 344 F. Supp. 3d at 141 n.27, and they do not press them here. The government now appeals. Our review is de novo. See Aamer v. Obama, 742 F.3d 1023, 1028 (D.C. Cir. 2014) (reviewing the district court‘s subject-matter jurisdiction ruling de novo); Purepac Pharmaceutical Co. v. Thompson, 354 F.3d 877, 883 (D.C. Cir. 2004) (“Because the district court entered a summary judgment, we review its decision de novo and therefore, in effect, review directly the decision of the agency.” (alteration omitted)).
II.
We start with the government‘s argument that
As our court recently explained, although much of section 1252 “limits and channels judicial relief directly into the federal appellate courts or habeas corpus proceedings,” subsection (e)(3) expressly “provide[s] in the expedited removal context for more traditional judicial review of ‘challenges on validity of the system,‘” Make the Road, 2020 WL 3421904, at *6 (quoting
Judicial review of determinations under section 1225(b) [governing expedited removal] 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 ... whether such a regulation, or a written policy directive, written policy guideline, or 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.
The parties agree that the reference to the Attorney General includes the DHS Secretary. And because the asylum seekers challenged A-B- and the Guidance within the sixty-day period, the only question before us is whether the Guidance and A-B- qualify as “regulation[s], . . . written policy directive[s], written policy guideline[s], or written procedure[s] issued . . . to implement . . . section [1225(b)].”
A. The Guidance
Using language mirroring section 1252(e)(3), the Guidance describes itself as a “policy memorandum” that “provides guidance” to USCIS officers. Guidance 1, J.A. 353 (emphasis added). And citing
The government nonetheless insists that the Guidance falls outside section 1252(e)(3)‘s scope because it “implement[s] A-B-, which in turn[] implements [section 1158]” and “thus does not implement section 1225(b)(1).” Appellants’ Br. 31 (internal quotation marks omitted); see also Dissenting Op. at 16–17. As the government sees it, section 1158 addresses the “substantive content of asylum law,” whereas section 1225(b) establishes procedures for implementing the expedited-removal system. Appellants’ Br. 25 (emphasis omitted). So according to the government, the Guidance “implements” section 1158‘s substantive asylum standards, not section 1225(b)‘s expedited-removal system.
This substance-procedure distinction finds no support in the statute‘s text. Section 1225(b) expressly links the credible-fear standard to the statutory requirements for asylum by defining “credible fear” as “a significant possibility . . . that the alien could establish eligibility for asylum under section 1158.”
The government also argues that the asylum seekers’ suit is barred by section 1252(a)(2)(A)(iii), which withdraws district-court jurisdiction over “‘the application of’ section 1225(b)(1) ‘to individual aliens, including the determination made under section 1225(b)(1)(B).‘” Appellants’ Br. 30 (quoting
The Supreme Court reached a similar conclusion in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), which involved a virtually identical INA provision that prohibited “judicial review of a determination respecting an application for adjustment of status.” Id. at 491 (quoting
As the asylum seekers point out, the government‘s view of section 1252(a)(2)(A)(iii) could leave no one able to challenge the policies at issue in this suit. Although the dissent thinks this is irrelevant, see Dissenting Op. at 16, we view it as further evidence that our interpretation best “comports with our obligation to interpret the statute‘s provisions“—here, section 1252(a)(2)(A)(iii) and section 1252(e)(3)—“in harmony with each other,” James Madison Limited by Hecht v. Ludwig, 82 F.3d 1085, 1093 (D.C. Cir. 1996). Our reading gives full effect to the two provisions, which are best understood to address different matters: section 1252(a)(2)(A)(iii) restricts judicial authority to review how immigration officials apply credible-fear policies in individual cases, while section 1252(e)(3) preserves judicial authority over challenges to the underlying policies themselves. By contrast, the dissent‘s reading would “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.” Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 489 (1947).
The dissent insists that “the standard petition for review procedure” offers “an alternative avenue for judicial review of Matter of A-B- and the Guidance.” Dissenting Op. at 15 n.7 (referring to Hobbs Act review of a removal order issued after full consideration of an asylum claim in a standard removal hearing). Not quite. Two of the policies the asylum seekers challenge appear only in the Guidance, and, as best we can tell, are unreviewable through the standard petition-for-review procedure. The first, the choice-of-law policy, applies only at the credible-fear stage, so any aliens eligible to file petitions for review will have suffered no injury from it; they either received positive credible-fear determinations or were not subject to the policy at all. The second, the circularity rule, also applies in interviews conducted by USCIS asylum officers in connection with affirmative asylum applications. See
The dissent also contends that courts interpreting section 1252 have “adopted” a “consistent understanding of ‘review‘” that “necessarily means that the plaintiffs ask for ‘review’ of their credible fear determinations.” Dissenting Op. at 13 n.6. But the cases the dissent cites in support of this claim mention neither credible-fear interviews nor expedited removal, so those courts had no need to harmonize the provisions at issue with section 1252(e)(3). For example, in Zhu v. Gonzalez, 411 F.3d 292 (D.C. Cir. 2005), we found judicial review barred by section 1252(a)(2)(B)(ii), which withdraws jurisdiction over challenges to “any. . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in [their] discretion,”
Changing tack, the government argues that the district court‘s “sweeping nationwide injunction . underscores the serious error in [its] exercise of jurisdiction to begin with.” Appellants’ Br. 32. But the government concedes that the district court has authority to “[declare] any reviewable action unlawful and set it aside.” Reply Br. 9. Given this, whether the district court had authority to enter an injunction has no bearing on its jurisdiction to review the Guidance since, as the government acknowledges, the court had authority to order other relief. See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality opinion) (explaining that “[w]hether the [district] court had jurisdiction to enter . . . a[] [classwide] injunction is irrelevant because [it] had jurisdiction to entertain the plaintiffs’ request for declaratory relief“); Make the Road, 2020 WL 3421904, at *15 (same).
We thus see no jurisdictional obstacle to the district court‘s review of the choice-of-law policy and the circularity rule, as they appear only in the Guidance. But the other two challenged policies—the condoned-or-completely-helpless standard and the Attorney
B. A-B-
Recall that section 1252(e)(3) authorizes review of “a... written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement [section 1225(b)].”
To begin with, the decision expressly references the credible-fear standard and asylum officers’ role in implementing the expedited-removal system. It declares that “[w]hen confronted with asylum cases based on purported membership in a particular social group . . . asylum officers must analyze the requirements as set forth in this opinion, which restates and where appropriate, elaborates upon, the requirements [for asylum].” A-B-, 27 I. & N. Dec. at 319 (emphasis added). It also states that “few [domestic violence and gang violence] claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution,” citing the statutory provision governing credible-fear interviews. Id. at 320 n.1 (citing
Arguing to the contrary, the government points out that A-B- “was an adjudication in full removal proceedings under
The dissent offers an additional argument based on section 1252‘s structure. According to the dissent, “if section [1252(e)(3)] grants our district court jurisdiction to review [A-B-] . . ., it follows from the parallel language of sections 1252(e)(3)(A)(ii) and 1252(a)(2)(A)(iv) that the latter provision bars a court of appeals from reviewing any adjudicatory decision by the Attorney General or the BIA that touches on asylum.” Dissenting Op. at 19. We respectfully disagree. Section 1252(a)(2)(A)(iv), which provides that “except as provided in subsection (e),” “no court shall have jurisdiction to review . . . procedures and policies adopted by the
Another point bears mention. We do not hold today that a plaintiff may seek review of every BIA or Attorney General decision regarding asylum. Far from it, we hold only that the district court had jurisdiction to review this Guidance and that such jurisdiction extended to A-B- to the extent the Guidance incorporates A-B-.
Finally, even were section 1252 “reasonably susceptible to divergent interpretation,” circuit precedent requires that we “adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.” Make the Road, 2020 WL 3421904, at *6 (internal quotation marks omitted); see also id. at *5–6 (expressly rejecting the argument that this “strong presumption” is inapplicable to section 1252 (internal quotation marks omitted)). Applying that presumption here would “dispel[]” “[a]ny lingering doubt about the proper interpretation of” section 1252. Kucana v. Holder, 558 U.S. 233, 251 (2010). Having assured ourselves of the district court‘s jurisdiction, and accordingly our own, we turn to the merits. See Make the Road, 2020 WL 3421904, at *5 (noting appellate jurisdiction pursuant to
question jurisdiction over APA challenge to Secretary‘s memorandum).
III.
As both sides acknowledge, it is “well settled that principles of Chevron deference are applicable” to the Attorney General‘s interpretation of the INA. Negusie v. Holder, 555 U.S. 511, 516 (2009) (internal quotation marks omitted). Accordingly, to the extent the challenged policies represent the Attorney General‘s interpretations of that statute, we ask “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). “If the intent of Congress is clear, that is the end of the matter; for [we], as well as the [Attorney General], must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43.
For those policies that are “not . . . interpretation[s] of any statutory language,” however, “the more apt analytic framework . . . is standard ‘arbitrary [or] capricious’ review under the APA.” Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011) (alterations in original). “Under this narrow standard of review, a court is not to substitute its judgment for that of the agency, but instead to assess only whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” DHS v. Regents of the University of California, 140 S. Ct. 1891, 1905 (2020) (internal quotation marks omitted) (citation omitted). “That task involves examining the reasons for agency decisions—or, as the case may be, the absence of such reasons.” Judulang, 565 U.S. at 53.
A. Condoned or Completely Helpless
Citing A-B-, the Guidance instructs officers that “[i]n cases where the persecutor is a non-government actor, the applicant must show the harm or suffering was inflicted by persons or an organization that his or her home government is unwilling or unable to control, such that the government either ‘condoned the behavior or demonstrated a complete helplessness to protect the victim.‘” Guidance 2, J.A. 354 (quoting A-B-, 27 I. & N. Dec. at 337). The asylum seekers argue that the term “persecution,”
The INA nowhere defines the term “persecution,” let alone addresses the standards for government conduct, and nothing in the statute otherwise speaks directly “to the precise question at issue,” Chevron, 467 U.S. at 842—the level of government culpability required to qualify for asylum. The asylum seekers insist that the statute‘s silence makes no difference because “[the unwilling-or-unable] standard has been a settled construction of the term ‘persecution’ since before Congress established the modern asylum system in 1980,” i.e., the year it enacted the Refugee Act, the source of
They first rely on a handbook issued by the United Nations High Commissioner for Refugees, which states that “persecution” includes harm by non-governmental actors “if . . . knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.” U.N. High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 65 (1979) (“Handbook“). Urging us to import the Handbook‘s standard into the statute, the asylum seekers cite INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), in which the Supreme Court relied on the Handbook as evidence of the meaning of the phrase “well-founded fear of persecution.” See id. at 438–39 (“In interpreting . . . ‘refugee’ [in the United Nations Protocol Relating to the Status of Refugees] we are further guided by the analysis set forth in the [Handbook].“). There, however, the Court used the Handbook to “confirm[]” “the message conveyed by the plain language of the Act.” Id. at 432 (emphasis added). In this case, the asylum seekers ask us to do the opposite—use the Handbook to divine clarity from ambiguous
The asylum seekers next argue that “domestic law at the time of the Refugee Act” had settled the meaning of the term “persecution” and that “Congress intended to adopt this judicial and administrative construction.” Appellees’ Br. 43 (internal quotation marks omitted); see also Grace, 344 F. Supp. 3d at 128 (finding it “clear at the time the Act was passed” that
Congress intended to adopt the “unable or unwilling” standard). But the “domestic law” they cite—a single circuit court decision and two Board decisions—is far too sparse for us to conclude that when Congress enacted the Refugee Act, it “would have surveyed the jurisprudential landscape and necessarily concluded that the courts had already settled the question.” Lightfoot v. Cendant Mortgage Corp., 137 S. Ct. 553, 564 (2017); cf. Banister v. Davis, 140 S. Ct. 1698, 1706–07 (2020) (finding that one Supreme Court decision and multiple court of appeals decisions established a “legal backdrop“); Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (finding statute‘s meaning “settled” where Office of Legal Counsel opinion, twelve judicial decisions, and multiple federal agencies interpreted term consistently and “[a]ll indications [we]re that Congress was well aware of th[at] position” when it incorporated that term into the statute). In any event, the decisions the asylum seekers cite are themselves ambiguous regarding the non-government persecutor standard. See Rosa v. INS, 440 F.2d 100, 102 (1st Cir. 1971) (not discussing the precise standard for determining when non-governmental persecutors “[have] sufficient . . . power to carry out [their] purposes without effective hindrance“); Matter of Eusaph, 10 I. & N. Dec. 453, 454–55 (BIA 1964) (using the terms “unable,” “sponsored,” “tolerated,” and “condone” without distinguishing among them); Matter of Stojkovic, 10 I. & N. Dec. 281, 287 (BIA 1963) (“not consider[ing]” “whether intentional physical harm . . . by a riotous mob, acting without the sanction of the Dominican Government, would amount to physical persecution“).
Alternatively, the asylum seekers argue that the condoned-or-completely-helpless standard is arbitrary and capricious. Specifically, they contend that the Board has historically required applicants to demonstrate only that their governments are “unwilling or unable” to protect them, and that the Attorney
General and USCIS adopted the new, more demanding standard “without acknowledging and explaining the change[,] violat[ing] the rule that ‘[an] agenc[y] may not depart from a prior policy sub silentio.‘” Appellees’ Br. 48 (emphasis omitted) (quoting American Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017)). The government insists that no change occurred, that is, that the two standards are identical. The asylum seekers have the better of the argument.
To begin with, as a matter of plain language, the two formulations are hardly interchangeable. A government that “condones” or is “completely helpless” in the face of persecution is obviously more culpable, or more incompetent, than one that
reports . . . combined with [the applicant‘s] testimony about the particular circumstances of his case[] were sufficient to support the . . . finding that the police in [the applicant‘s home state] would be unable to protect Rosales from persecution by organized crime“). By contrast, under the condoned-or-completely-helpless standard, the applicant‘s asylum claim would fail because his home government, far from condoning the violence or being completely helpless in response to the murder, responded to the crime scene, took statements from the asylum seeker and his wife, and autopsied the body.
The government emphasizes that several courts of appeals, despite reciting the condoned-or-completely-helpless standard, never actually required asylum applicants to meet that higher standard. See, e.g., Hor v. Gonzales, 421 F.3d 497, 502 (7th Cir. 2005) (finding military‘s inability to protect petitioner and court‘s inability to offer relief “strong evidence” that Algerian government was “incapable” of protecting petitioner); Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000) (finding that petitioner suffered persecution despite some police action in response to threatening phone calls). The Guidance, however, instructs asylum officers to follow the Guidance, emphasizing that it “applies to and shall be used to guide determinations by all USCIS employees.” Guidance 1, J.A. 353. And the Guidance requires asylum officers to apply the more demanding standard:
In a case where the alleged persecutor is not affiliated with the government, the applicant must show the government is unable or unwilling to protect him or her. When the harm is at the hands of a private actor, the applicant must show more than the government‘s difficulty controlling the private behavior. The applicant must show the government condoned
the private actions or at least demonstrated a complete helplessness to protect the victim.
Id. at 6, J.A. 358 (internal citations omitted); see also id. at 10, J.A. 362 (“Again, the home government must either condone the behavior or demonstrate a complete helplessness to protect victims of such alleged persecution.“). To be sure, as the government points out, the Guidance also includes the unwilling-or-unable language. See id. at 2, J.A. 354 (explaining that applicants must show that their home governments were “unwilling or unable to control [the persecutors], such that the government either ‘condoned the behavior or demonstrated a complete helplessness to protect [them]‘” (quoting A-B-, 27 I. & N. Dec. at 337)). But if the government is suggesting that asylum officers can choose between the two standards, then “[a]n alien appearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country.” Judulang, 565 U.S. at 58. This, the Supreme Court has warned, is precisely “what the APA‘s ‘arbitrary and capricious’ standard is designed to thwart.” Id. at 59.
In short, contrary to the government‘s arguments, the two standards differ. And putting all of its eggs in the “no change” basket, the government does not, in the alternative, defend the condoned-or-completely-helpless standard on the merits. That is, nowhere does it argue that even if the policy changed, the Attorney General or USCIS “provide[d] a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). Accordingly, we have no choice but to find the standard arbitrary and capricious. Because this, by itself, requires setting aside the new standard, we need not reach the asylum seekers’ alternative argument that the new standard conflicts with the Refugee Act‘s “well-
founded fear” standard and IIRIRA‘s “significant possibility” standard.
B. Choice of Law
This policy, which USCIS adopted on its own—i.e., not in response to A-B-—requires asylum officers conducting credible-fear interviews to “faithfully apply precedents of the Board and, if necessary, the circuit where the alien is physically located during the credible fear interview.” Guidance 9, J.A. 361 (emphasis added). By contrast, under USCIS‘s prior policy, officers generally applied “the interpretation most favorable to the applicant.” USCIS, Lesson Plan: Credible Fear of Persecution and Torture Determinations 17 (Feb. 13, 2017), J.A. 379 (“Lesson Plan“). According to the asylum seekers, the new policy is arbitrary and capricious because “it represents a dramatic, unacknowledged, and unexplained departure from years of prior agency practice.” Appellees’ Br. 30.
As our court recently explained, “[r]easoned decision-making requires that when departing from precedents or practices, an agency must ‘offer a reason to distinguish them or explain its apparent rejection of their approach.‘” Physicians for Social Responsibility v. Wheeler, 956 F.3d 634, 644 (D.C. Cir. 2020) (quoting Southwest Airlines Co. v. FERC, 926 F.3d 851, 856 (D.C. Cir. 2019)). Although “[not] every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009), “however the agency justifies its new position, what it may not do is ‘gloss[] over or swerve[] from prior precedents without discussion,‘” Southwest Airlines, 926 F.3d at 856 (alterations in original) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)).
According to the government, “the extent of any divergence” between its prior policy and the new policy is “debatable,” Reply Br. 15, thus making it “far from clear” that there was “any need” to acknowledge any change, Appellants’ Br. 39. We disagree.
The old policy appears in a USCIS Lesson Plan, which provides that:
Questions as to how the [credible-fear] standard is applied should be considered in light of the nature of the standard as a screening standard. . . . [W]here there is:
disagreement among the United States Circuit Courts of Appeal as to the proper interpretation of a legal issue; or, - the claim otherwise raises an unresolved issue of law; and,
- there is no DHS or Asylum Division policy or guidance on the issue, then
generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard.
Lesson Plan 17, J.A. 379 (original emphasis omitted and emphasis added). As the government emphasizes, the Lesson Plan contained an exception to the most-favorable-law rule: if there is “DHS or Asylum Division policy or guidance on the issue,” then officers should apply such guidance. Id. (emphasis omitted). But this makes no difference for our purposes because the new policy requires asylum officers to apply local circuit law in every circumstance, thus “eliminat[ing] the most-
favorable-interpretation rule on every issue,” not just on “specific issue[s]” for which the agency has issued guidance. Appellees’ Br. 36. In other words, even under the government‘s own telling, USCIS‘s new policy differs significantly from the old one.
Nothing in the Guidance acknowledges this change. In full, here is what the Guidance says about the choice-of-law policy:
[R]emoval 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 or Notice to Referral to Immigration Judge, and because there may not be removal proceedings if the officer concludes the alien does not have a credible fear or reasonable fear and the alien does not seek review from an immigration judge, 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.
Guidance 9, J.A. 361. From this, readers would have no idea that prior to issuing the Guidance, USCIS generally applied the law most favorable to applicants. Put in terms of our caselaw, the Guidance has “gloss[ed] over or swerve[d] from prior precedents without discussion,” “cross[ing] the line from the tolerably terse to the intolerably mute.” Greater Boston Television, 444 F.2d at 852.
USCIS‘s failure to acknowledge the change in policy is especially egregious given its potential consequences for asylum seekers. Under the previous policy, applicants either got the benefit of the doubt—because officers applied the most favorable circuit law—or were at least treated equally across circuits because officers applied nationally uniform guidance. But under the new policy, “a noncitizen who would be eligible for asylum in the circuit where [removal] proceedings would ultimately take place can be issued a negative credible-fear determination and summarily removed, simply because the circuit in which the screening interview takes place happens to have unfavorable law.” Appellees’ Br. 32. USCIS has thus “fail[ed] to grapple with how [the new] policy affected its statutory . . . mandate[],” Physicians, 956 F.3d at 647—to ensure that aliens who demonstrate “a significant possibility . . . [of] eligibility for asylum under
The government argues that it had no obligation to acknowledge the change because the old policy appeared only in the USCIS Lesson Plan. In support, it cites our decision in Vietnam Veterans of America v. Secretary of the Navy, 843 F.2d 528 (D.C. Cir. 1988), in which we ruled that a servicemember could not challenge his military discharge on the ground that failed to comply with a Navy policy memorandum. See id. at 537–38 (“[T]he . . . [m]emorandum cannot reasonably be classified as a binding statement.“). But the policy involved in that case was quite different from the one at issue here. As explained in Vietnam Veterans’ very first paragraph, the policy at issue there was “not specific or
prescriptive enough . . . to bind agency discretion,” id. at 530, and there “[was] no evidence in the record that the Secretary,” who authored the policy, “ha[d] ever applied [it] in an inflexible fashion or used it to limit significantly the [military] review boards’ discretion,” id. at 539. Here, by contrast, the government nowhere claims that immigration officials were free to depart from USCIS‘s previous choice-of-law policy. Quite to the contrary, the Lesson Plan reminded asylum officers that they were expected to ”correctly make . . . credible fear determination[s] consistent with the . . . policies[] and procedures that govern . . . credible fear.” Lesson Plan 14, J.A. 363 (emphasis added).
Nor does it make any difference that the Lesson Plan was informal, as the government argues. Although the formality of a policy may be relevant in cases where the policy‘s existence or content is disputed, this is not such a case. The government acknowledges that the Lesson Plan reflected USCIS‘s “consistent practice,” which under our caselaw “sets the baseline from which future departures must be explained.” Southwest Airlines, 926 F.3d at 858; see also American Wild Horse, 873 F.3d at 925 (finding that an agency could not deny the existence of a policy that was “well documented in the administrative record, and . . . reconfirmed repeatedly by two decades of agency practice and official pronouncements“).
Alternatively, the government argues that the reasons USCIS offered for the rule—venue uncertainty and the Board‘s (not USCIS‘s) practice of applying the law of the circuit in which proceedings occur—“[were] sufficient to fulfill any obligation to explain.” Reply Br. 15. That might well be so if the statute‘s only goal were to ensure efficient removal of aliens with no lawful authorization to remain in the United States. But the statute has a second, equally important goal: ensuring that individuals with valid asylum claims are not
returned to countries where they could face persecution. Both purposes are evident in the system‘s design and are confirmed throughout the legislative history on which the government relies. See 142 Cong. Rec. 25,347 (1996) (“The [significant possibility] standard . . . is intended to be a low screening standard for admission into the usual full asylum process.“) (statement of Sen. Hatch); H.R. Rep. No. 104-469, pt. 1, at 158 (1995) (“Under this system, there should be no danger that an alien with a genuine asylum claim will be returned to persecution.“). Appearing to recognize this, the Lesson Plan instructs officers to apply the credible-fear standard “in light of the nature of the standard as a screening standard to identify persons who could qualify for asylum . . . , including when there is reasonable doubt regarding the outcome of a credible fear determination.” Lesson Plan 17, J.A. 379. And as explained above, the Guidance‘s choice-of-law policy could undermine this purpose were it to result in the expedited removal
In its brief, the government offers two additional justifications for the local-circuit-law policy: that “apply[ing] the law where the action takes place” “is consistent with the most basic and firmly established choice of law rule” and that requiring officers to apply the most favorable law would “result in significant operational burdens.” Appellants’ Br. 39–40, 41. These rationales, however, appear nowhere in the Guidance, and when “assessing the reasonableness of [an agency‘s action], we look only to what the agency said at the time of the [action]—not to its lawyers’ post-hoc rationalizations.” Good Fortune Shipping SA v. Commissioner of Internal Revenue Service, 897 F.3d 256, 263 (D.C. Cir. 2018) (internal quotation marks omitted).
Given our conclusion that the new choice-of-law policy is arbitrary and capricious due to USCIS‘s failure to acknowledge and explain its departure from past practice, we may affirm the district court‘s order on that basis alone, thus leaving us with no need to consider the asylum seekers’ alternative argument that the policy is contrary to law.
C. Circularity
As noted above, the circularity rule governs how immigration officials analyze asylum claims premised on an applicant‘s “membership in a particular social group.”
To understand the precise issue before us, we think it helpful to begin with a few examples that are not circular. One paradigmatic case involves persecution on account of sexual orientation—for example, a gay man fleeing a country where the police are known to assault homosexual men. See Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir. 2008) (collecting cases). Because the social group (gay men) exists independently of the harm alleged (assault), the group is not circular. Another example involves persecution on account of disability—for example, an individual who suffers from bipolar disorder fleeing a country whose government institutionalizes and tortures mentally-ill individuals. See Temu v. Holder, 740 F.3d 887, 892 (4th Cir. 2014) (discussing such a claim). Again, because the social group (mentally-ill individuals) exists independently of the harm alleged (torture), the group is not circular.
But whether a group exists independently of the harm alleged is not always so apparent. Consider, for example, the group “women who fear being forced into prostitution.” Stated that way, the group is defined by the harm alleged (forced prostitution). But if the women are targeted for forced prostitution because they share a common protected characteristic, such as their political views, then the group exists independently of the harm alleged and thus is not circular. Cf. Lushaj v. Holder, 380 F. App‘x 41, 43 (2d Cir. 2010) (discussing the group “women whom members of the Haklaj gang wished to kidnap and force into prostitution . . . to punish their family members for their political activities in Albania” (alterations omitted) (internal quotation marks omitted)). Consider another example, Somali women who have suffered female genital mutilation. See Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007) (describing such a group). At one level, the group is circular because it is defined in part by the harm alleged (female genital mutilation). But it could also
A-B- itself illustrates the difficulty in determining whether an applicant‘s proposed group is circular. The asylum seeker there alleged that she had been abused by her husband on account of her membership in the group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common with their partners.” A-B-, 27 I. & N. Dec. at 321 (internal quotation marks omitted). This
group, like the group “women who fear forced prostitution,” appears to be defined in part by the alleged harm (being unable to leave a relationship). On closer examination, however, this is not necessarily so. If A.B.‘s inability to leave her relationship stems from circumstances independent of the alleged harm—for example, legal constraints on divorce—then the group would not be circular because the “inability to leave” does not refer to harm at all. See De Pena-Paniagua, 957 F.3d at 93–94 (explaining that the “inability to leave a relationship may be the product of forces other than physical abuse,” such as “cultural, societal, religious, economic, or other factors“). In short, whether a given group is circular depends on the facts of the particular case.
With these examples in mind, we turn to the asylum seekers’ argument that the Guidance incorrectly describes the circularity rule as set forth in A-B-. There, the Attorney General explained:
[t]o be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum . . . . If a group is defined by the persecution of its members, then the definition of the group moots the need to establish actual persecution. For this reason, the individuals in the group must share a narrowing characteristic other than their risk of being persecuted.
A-B-, 27 I. & N. Dec. at 334–35 (citations omitted) (internal quotation marks omitted). Referring to an earlier case, the Attorney General also noted that the group “‘married women in Guatemala who are unable to leave their relationship’ [is] effectively defined to consist of women in Guatemala who are
victims of domestic abuse because the inability ‘to leave’ was created by harm or threatened harm.” Id. at 335.
The asylum seekers do not challenge A-B-‘s description of the circularity rule, arguing instead that “the Guidance departs from th[at] settled standard.” Appellees’ Br. 53. We disagree.
The Guidance explains that in A-B-, “[t]he Attorney General observed” that the group “‘married women in Guatemala who are unable to leave their relationship’ . . . ‘was effectively defined to consist of women in Guatemala who are victims of domestic abuse because the inability to leave was created by [the] harm or threatened harm.‘” Guidance 5, J.A. 357 (quoting A-B-, 27 I. & N. Dec. at 335–36). Focusing on the circularity rule‘s application to asylum claims founded on domestic violence, the Guidance explains:
[A-B-‘s] analysis casts doubt on whether a particular social group defined solely by the ability to leave a relationship can be sufficiently particular. 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 was based. Officers should carefully examine any proposed particular social group to ascertain whether it contains any attributes that “exist independently of the harm asserted.”
Id.
Unlike the asylum seekers, we detect no meaningful difference between A-B- and the Guidance regarding the circularity rule. Fairly read, the Guidance simply quotes or
paraphrases A-B- and betrays no intent to depart from the Attorney General‘s decision. Nor, contrary to the asylum seekers’ claim, does anything in the Guidance categorically bar groups based in part on applicants’ inability to leave a relationship. Instead, and read as a whole, the document directs officers to “analyze each case on its own merits in the context of the society where the claim arises,” and warns that “analysis of a proposed social group is incomplete whenever the defining terms of the proposed group are analyzed in isolation, rather than collectively.” Id. at 3, J.A. 355. This is exactly what A-B- requires and, as our hypotheticals demonstrate, exactly the analysis required to determine whether a particular claim is or is not circular.
So far, so good. But in its brief, the government asserts that “the group must be ‘separate’ from the harm, not consisting of the harm, even in part.” Reply Br. 23. As the asylum seekers point out, this statement of the rule is flatly inconsistent with both A-B- and the Guidance. Indeed, government counsel conceded as much at oral argument. Asked about the inaccurate statement in its brief, counsel agreed that asylum officers must not apply the social-group requirements formulaically and instead must go case-by-case. See Oral Arg. Rec. 24:00–03, 25:10–12 (describing how an “asylum officer would elicit further testimony” and “go through the steps” set forth in A-B- and the Guidance). And when asked specifically about the group “Guatemalan women unable to leave their relationships,” counsel acknowledged that it is “not categorically barred,” id. at 19:55–58, 21:34–35, and that its validity would turn on the specific factual circumstances of an applicant‘s claim, id. at 21:50–21:53 (“You could, in theory, have that group, if you checked the boxes.“). In sum, then, when viewed as a whole, the Guidance accurately restates the circularity rule as described in A-B-.
D. Domestic and Gang Violence
In bold font, the Guidance states that:
[i]n general, . . . 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.
Guidance 6, J.A. 358. A-B- likewise states that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” and “[a]ccordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.” 27 I. & N. Dec. at 320, n.1. Challenging these statements, the asylum seekers argue that they “establish[] a rule generally rejecting credible fear claims pertaining to domestic and gang violence” and thus violate the INA. Appellees’ Br. 14. The government responds that the asylum seekers misread A-B-, which, according to the government,
The problem with the government‘s argument is that both A-B- and the Guidance use the phrase “will not,” rather than “have not,” thus suggesting that the statements represent a new rule. That said, both statements also use the phrase “in general,” thus suggesting that asylum claims based on domestic and/or gang violence might, depending on the circumstances of the case, qualify for asylum. Indeed, at oral argument, government counsel assured us that there is no general rule
against such claims, calling it “crystal clear” that “none of these groups are categorically barred.” Oral Arg. Rec. 24:03–07. “[T]he only general rule that Matter of A-B- articulates,” counsel explained, is that “[asylum officers] have to go through the steps” for analyzing particular-social-group claims. Id. at 25:20–25. This explanation is perfectly consistent with the Guidance‘s instruction to asylum officers, explained above, that claims be analyzed on a case-by-case basis.
The asylum seekers argue that “an allowance for limited exceptions does not mean no rule exists.” Appellees’ Br. 55. In support, they cite McLouth Steel Product Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988), in which we found that an EPA model used to determine contamination levels constituted a “rule” within the meaning of
IV.
This brings us, finally, to the government‘s challenge to the district court‘s remedy. The district court declared all four policies unlawful, vacated them, and permanently enjoined application of the policies in credible-fear proceedings. It also ordered the government to (1) “provide written guidance or instructions to all asylum officers and immigration judges . . . communicating that the [vacated policies] shall not be applied to any . . . credible fear proceedings,” and (2) provide new credible-fear interviews to the twelve asylum seekers who brought this case. Order at 3, Grace, No. 18-cv-1853 (D.D.C. June 3, 2019). The government does not challenge the latter requirement—indeed, the credible-fear interviews have already occurred. Instead, the government objects to the portions of the district court‘s order enjoining the challenged credible-fear policies. According to the government, the injunction runs afoul of
In support, the government first points to
[N]o 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. §§ 1221-31] , other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
The government also relies on
This reading of
Further confirming that the government is mistaken about the meaning of “determination,”
In sum, neither
V.
During the course of this appeal, it has come to our attention—though, regrettably, not through any effort of the parties—that the Departments of Justice and Homeland Security, acting pursuant to a Centers for Disease Control order, have severely circumscribed newly-arrived aliens’ ability to seek asylum. See Notice of Order Under Sections 362 and 365 of the Public Health Services Act Suspending Introduction of Certain Persons From Countries Where A Communicable Disease Exists,
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
The Congress created the expedited removal system to ensure the swift removal of aliens unquestionably inadmissible into the United States. See Am. Immigration Lawyers Assʼn v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000); see also DHS v. Thuraissigiam, No. 19-161, 2020 WL 3454809, at *1 (U.S. June 25, 2020) (” [W]hen Congress enacted the [expedited removal system], it crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims from the country.“). Accordingly, it sharply circumscribed the availability of judicial review related to expedited removal, see generally
Despite these constraints, the district court used
In short, the district court‘s actions represent precisely the type of judicial meddling in removal decisions the Congress sought to prevent when it created the expedited removal system. Rather than halt the district court‘s overreach, my colleagues sanction it and embark on a new experiment in judicial interference with the immigration system—vacating the Attorney General‘s interpretation of the immigration statutes pursuant to
I.
Setting out the relevant statutory and procedural background
A.
An alien who is “physically present” or “arrives” in the United States may seek asylum.
Typically, an alien may pursue two paths in seeking asylum. Using the first path, he must submit an application under
The Attorney General and the DHS Secretary retain ultimate authority to grant or deny asylum. See
B.
There is also a third, irregular, path by which an alien can seek asylum. In response to a surge in the level of illegal immigration and asylum applications during the mid-1990s, the Congress enacted the provisions now codified at
frivolous asylum claim to pursue it. See
Critical to this case, the Congress also set out in
Notwithstanding any other provision of law . . . no court shall have jurisdiction to review—
- except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to
section 1225(b)(1) of this title,- except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section,
- the application of such section to individual aliens, including the determination made under
section 1225(b)(1)(B) of this title, or- except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of
section 1225(b)(1) of this title.
C.
In Matter of A-B-, 27 I. & N. Dec. 316 (2018), issued two months before this case began, the Attorney General exercised his authority to issue a precedential decision. The decision began with a DHS formal proceeding to remove an alien under
Construing the definition of “refugee” in
Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such
claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.
Id. at 320. In a footnote, he also noted that “[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.
Subsequently, the United States Customs and Immigration Service5 (USCIS) issued a “Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-” (Guidance). The Guidance explained the implications of Matter of A-B- for asylum decisions made by USCIS personnel and instructed asylum officers to apply the law of the federal circuit in which an asylum interview takes place in processing an asylum claim. See USCIS, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B- 8–9, PM-602-0162 (July 11, 2018).
D.
The plaintiffs are twelve nationals of various Central American countries who were apprehended after illegally crossing the United States border with Mexico. USCIS placed each alien in an expedited removal proceeding pursuant to
The plaintiffs then filed suit in district court against DHS, the Attorney General, USCIS and the Executive Office of Immigration Review, using
The district court granted the plaintiffs’ summary judgment motion. See Grace v. Whitaker, 344 F. Supp. 3d 96, 146 (D.D.C. 2018). It held that Matter of A-B- and the Guidance were policies “issued by or under the authority of the Attorney General to implement”
II.
I believe the district court was without jurisdiction to review the plaintiffs’ claims, as is made plain by three separate statutory provisions. See
A.
First, I believe the plaintiffs’ suit is barred by
I have no doubt that their suit does require such review. The plaintiffs contend that they do not seek “review” of any credible fear determination because they mount instead a “systemic challenge” to Matter of A-B- and the Guidance. Appellee‘s Br. 23. But the plaintiffs asked the district court to accept that “as a result of [Matter of A-B- and the Guidance], the immigration authorities summarily rejected [their] asylum claims and ordered them removed,” to declare Matter of A-B- and the Guidance “contrary to law,” “order that [their] expedited removal orders be vacated and that they be provided with a new credible fear process.” Complaint at 3, 5, ECF No. 3. In other words, the plaintiffs assert standard APA arguments and ask for standard APA remedies regarding their individual credible fear determinations. See
That the plaintiffs characterize their suit as a challenge to Matter of A-B- and the Guidance should not prevent us from recognizing what, in reality, it is—an APA challenge to their respective credible fear determinations. It follows that they seek judicial review of “the determination made under
The language of
Nevertheless, the plaintiffs argue that the first clause of
The plaintiffs also argue that the most natural reading of
Am. Immigration Lawyers Ass‘n, 199 F.3d at 1356–57 (upholding standing of two non-asylum seeking aliens subjected to expedited removal to challenge policies implementing
B.
In addition, I do not believe that
That structural feature of
In holding otherwise, the district court emphasized that Matter of A-B- cited
And for good reason. The footnote simply makes an unremarkable observation about non-governmental violence‘s limited basis to support a credible fear determination. It does not construe
The majority responds that
My colleagues also suggest that a sister circuit agrees with their understanding of the interplay between
I believe that the district court also lacked jurisdiction to review the Guidance, at least to the extent that it addresses the substantive asylum standard. The Guidance
In my view,
Accordingly, I respectfully dissent.