Grace v. William BarrGrace v. William Barr
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
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 right to review by the Board of Immigration Appeals—also housed within DOJ—and then the appropriate circuit court of appeals. See DHS v. Thuraissigiam, 140 S. Ct. 1959, 1965 (2020) (“If the asylum officer finds an applicant’s asserted fear to be credible, the applicant will receive ‘full consideration’ of his asylum claim in a standard removal hearing.” (quoting
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”
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
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
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
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
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.
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
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 section 1225, the provision governing expedited removal, the Guidance instructs “all USCIS employees” on how to apply A-B- “consistent[ly]” throughout several types of proceedings, including “credible fear . . . adjudications.” Id. In its brief, moreover, the government explains that the Guidance “alerts USCIS officers to new binding precedent and tells them how to operationalize that precedent in various contexts, including expedited removal.” Appellants’ Br. 31. As described by both USCIS in the Guidance and the government in its brief, then, the Guidance qualifies as a “written policy directive” or “guideline” that “implement[s]” section 1225(b).
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
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
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 General’s statement regarding domestic and gang violence claims—are contained in both the Guidance and A-B-, meaning that we must address the district court’s jurisdiction to review the latter.
B. A-B-
Recall that section 1252(e)(3) authorizes review of “a . . . written policy directive, written policy guideline, or
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 Attorney General to implement the provisions of section 1225(b)(1),” channels facial challenges to expedited-removal policies to the district court for the District of Columbia.
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
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.
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
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
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
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 is simply “unwilling or unable” to protect its citizens. Take, for example, the facts of a recent First Circuit decision, where a Mexican man sought asylum after his son was murdered by individuals he believed to be organized criminals. Evidence at the applicant‘s removal hearing demonstrated that after the murder, federal police visited “the scene where [his son‘s] body was recovered” and “took statements from [him] and his wife” and that “an autopsy was performed.” Rosales Justo v. Sessions, 895 F.3d 154, 159 (1st Cir. 2018). Although this was sufficient to establish that some “police took an immediate and active interest in [the applicant‘s] son‘s murder,” other evidence—corruption among state and local police, local residents’ “lack [of] faith” in police, and high homicide rates—showed that organized criminals generally operated with impunity within the applicant‘s home state. Id. at 159–60. Under the unwilling-or-unable standard, the applicant would qualify for asylum because, though the police investigation demonstrated his home government‘s willingness to intervene, the evidence of criminal impunity demonstrated its inability to offer him effective protection. See id. at 167 (concluding that “country condition
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-
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 decisionmaking 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)).
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:
a. disagreement among the United States Circuit Courts of Appeal as to the proper interpretation of a legal issue; or,
b. the claim otherwise raises an unresolved issue of law; and,
c. 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-
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 of 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.
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
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
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).
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.
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
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
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.”
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
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-.
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, simply “remarked” “that asylum claims based on gang and domestic violence [have] historically foundered on the requirements for particular social group, nexus, and persecution.” Appellants’ Br. 17, 56.
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
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 APA section 553. Id. at 1319. As the asylum seekers point out, in that case we rejected EPA‘s argument that its “discretion to deviate” from the model transformed it into a nonbinding policy statement. Id. at 1320. Critical to our ruling, however, the language EPA used to announce the model “strongly suggested” that the agency intended to treat it as a “binding norm” and EPA‘s “later conduct“—namely, treating the model as “conclusively disposing of certain issues“—“confirm[ed] [the model‘s] binding character.” Id. at 1320, 1321. Here, by contrast, the challenged statements are qualified by the words “general” and “generally.” And, as explained above, other parts of both A-B- and the Guidance make clear that asylum officers must “analyze each case on its own merits in the context of the society where the claim arises,” Guidance 3, J.A. 355. In other words, the record in this case does not support the asylum seekers’ argument that USCIS and the Attorney General have erected a rule against asylum claims involving allegations of domestic and/or gang violence.
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 section 1252(f)(1), which provides:
[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 section 1252(e)(1)(A), which provides that “no court may . . . enter declaratory, injunctive, or other equitable relief in an action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection.”
This reading of section 1252(e)(1)(A) is confirmed by section 1252(e)(3). The latter provision does not, in the words of section 1252(e)(1)(A), “specifically authorize[]” any relief. Accordingly, were the government correct that section
Further confirming that the government is mistaken about the meaning of “determination,” subsection (e)(2), mirroring subsection (e)(3), provides that “[j]udicial review” of expedited-removal orders “is available in habeas corpus proceedings, but shall be limited to determinations of . . . whether the petitioner is an alien,” “whether the petitioner was ordered removed under [section 1225(b)(1)],” and “whether the petitioner can prove” lawful permanent residence or refugee or asylee status.
In sum, neither section 1252(f)(1) nor section 1252(e)(1) prohibited the district court from issuing an injunction. That said, unlike the district court, which in addition to finding the condoned-or-completely-helpless standard and choice-of-law policy arbitrary and capricious, enjoined them as contrary to law, we have not reached the latter issue. Instead, our decision rests on the agency‘s failure to satisfy the APA‘s “requirement of reasoned decisionmaking.” Fogo De Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1141 (D.C. Cir. 2014). Accordingly, nothing in this opinion necessarily precludes USCIS or the Attorney General from attempting to “remedy[] deficiencies in [their] explanation[s]” for these challenged policies and reissuing them. Shays v. Federal Election Commission, 414 F.3d 76, 112 (D.C. Cir. 2005). Should that occur, and should the new policies be challenged, the “contrary to law” question will be squarely before the court.
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’
So ordered.
The Congress created the expedited removal system to ensure the swift removal of aliens unquestionably inadmissible into the United States. See Am. Immigration Lawyers Ass‘n 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 section 1252(e)(3) to abrogate individual credible fear determinations and issue a sweeping universal injunction purporting to prevent the immigration authorities from applying the United States Attorney General‘s interpretation of the law. We now reverse the district court‘s interpretation of the expedited removal statute in all respects and vacate much of its order. In the meantime, however, asylum officers have been forced to make tens of thousands of credible fear determinations without the benefit of the United States Attorney General‘s legal views or the guidance of the United States Department of Homeland Security (DHS). The consequence is that thousands of aliens have been detained for full removal proceedings and released into the United States, despite there being little doubt that they are not entitled to asylum.
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
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
Critical to this case, the Congress also set out in
Notwithstanding any other provision of law . . . no court shall have jurisdiction to review—
(i) 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,
(ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section,
(iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or
(iv) 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-, issued two months before this case began, the Attorney General exercised his authority to issue a precedential decision. See 27 I. & N. Dec. 316 (2018). The decision began with a DHS formal proceeding to remove an alien under section 1229a. The alien claimed asylum as a defense to removal, arguing that she was a “refugee” because she was abused by her husband based on her being one of a group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”
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.
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 section 1225(b)(1). Because all of the plaintiffs expressed a “fear of persecution,” each had a credible fear interview pursuant to section 1225(b)(1)(A). Asylum officers determined that none of the twelve had a credible fear of persecution and an immigration judge agreed. All were ordered removed.
The plaintiffs then filed suit in district court against DHS, the Attorney General, USCIS and the Executive Office of Immigration Review, using section 1252(e)(3) as their jurisdictional hook. They challenged the validity of both
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” section 1225(b) and therefore it had jurisdiction to consider whether Matter of A-B- and the Guidance contravened the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA) pursuant to
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 section 1252(a)(2)(A)(iii). That provision commands that “no court shall have jurisdiction to review . . . the application of [section 1225(b)(1)] to individual aliens, including the determination made under section 1225(b)(1)(B) of this title.” Unlike the other jurisdictional bars contained in section 1252(a)(2)(A), section 1252(a)(2)(A)(iii) conspicuously does not include an
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
The language of section 1225(b)(1)(B) itself, enacted simultaneously with section 1252, confirms my understanding of section 1252(a)(2)(A)(iii), that is, that it bars any attempt to seek judicial review of a negative credible fear determination. Section 1225(b)(1)(B) provides that “[s]ubject to [review by an immigration judge], if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.”
Nevertheless, the plaintiffs argue that the first clause of section 1252(a)(2)(A)(iii) (“no court shall have jurisdiction to review . . . the application of such section to individual aliens“) requires that we read the second clause of section 1252(a)(2)(A)(iii) (“including the determination made under section 1225(b)(1)(B) of this title“) to bar review of credible fear determinations only to the extent that it prohibits a claimant to seek judicial review of whether an asylum officer correctly applied the law to the facts of the particular claimant‘s case. The plaintiffs mangle the plain text of the statute. The Congress made a point of specifically withholding jurisdiction to review “the determination made under section
The plaintiffs also argue that the most natural reading of section 1252(a)(2)(A)(iii) should be rejected because it would effectively prevent any individual from mounting a challenge pursuant to section 1252(e)(3). Appellee‘s Br. 23.7 That claim is doubly flawed. First, section 1252(a)(2)(A)(iii) bars review of “the application of [section 1225(b)(1)] to individual aliens” and credible fear determinations only. Under our precedent, see
B.
In addition, I do not believe that section 1252(e)(3) vested jurisdiction in the district court. Section 1252(e)(3)(A) authorizes the district court to review “determinations under [section 1225(b)] and its implementation” but restricts that jurisdiction to “determination[s] of . . . whether [any regulation issued to implement section 1225(b)] 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.” Neither Matter of A-B- nor the Guidance construes section 1225(b). Instead, Matter of A-B- construes the definition of “refugee” contained
Section 1252(e)(3)(A)(ii) does not authorize judicial review of the Attorney General‘s interpretation of provisions other than section 1225(b), at least if his interpretation is included in an adjudicatory decision like Matter of A-B-. That becomes clear once the admittedly complex structure of section 1252 is understood. See Negusie v. Holder, 555 U.S. 511, 519 (2009) (“[W]e look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.“) (internal quotation marks and citations omitted). Judicial review of issues of law in immigration proceedings, including those related to asylum, is ordinarily through a petition for review of a final removal order. See generally
These two provisions differ in some respects—section 1252(a)(2)(A)(iv) bars judicial review of “procedures and policies” and section 1252(e)(3)(A)(ii) applies to “written policy directive[s], written policy guideline[s], [and] written procedure[s].” A policy must be “adopted by the Attorney General” to be covered by section 1252(a)(2)(A)(iv) but may be “issued by or under the authority of the Attorney General” to come within section 1252(e)(3)(A)(ii). A policy must implement “section 1225(b)(1)” to oust judicial review per section 1252(a)(2)(A)(iv) but may implement section 1225(b) more broadly and nonetheless be covered by section 1252(e)(3)(A)(ii)‘s grant. The overall effect, however, is that the two provisions mirror one another. What limited authority section 1252(e)(3)(A)(ii) grants to the United States District
That structural feature of section 1252 means that section 1252(e)(3)(A)(ii) cannot grant the district court jurisdiction to consider the plaintiffs’ claims. The majority reasons that Matter of A-B- constitutes a written policy “issued by or under the authority of the Attorney General to implement” section 1225(b) because it construes the asylum eligibility provisions of section 1158. Maj. Op. 18 (quoting
In holding otherwise, the district court emphasized that Matter of A-B- cited section 1225(b)(1)(B) in a short footnote, presumably indicating to that court that Matter of A-B- construed section 1225(b). Grace, 344 F. Supp. 3d at 116. The footnote is attached to the Attorney General‘s statement that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify asylum,” Matter of A-B-, 27 I. & N. Dec. at 320, and notes simply 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. At oral argument, the government counsel argued that the footnote “doesn‘t matter,” Oral Arg. at 7:25, and the plaintiffs’ counsel did not demur.
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 section 1225(b) and the determinations made in Matter of A-B- would have been the same without regard to section 1225(b). In other words, the footnote does not
The majority responds that section 1252(a)(2)(A)(iv) “leaves open the possibility that some such ‘procedures and policies’ might be ‘adopted by the Attorney General’ to ‘implement . . . section 1225(b)(1)’ and also for other purposes” so that the “policies could simultaneously be challenged in the district court for the District of Columbia pursuant to section 1252(e)(3) and also through a petition for review of a BIA decision.” Maj. Op. 19 (quoting
My colleagues also suggest that a sister circuit agrees with their understanding of the interplay between sections 1252(a)(2)(A)(iv) and (e)(3). See Maj. Op. 20 (citing Gonzalez-Veliz, 933 F.3d at 228). They are again mistaken. The Gonzalez-Veliz panel did not discuss section 1252(a)(2)(A)(iv) at all. The comment quoted by the majority comes from the Fifth Circuit‘s consideration of the effect of our district court‘s remedy on its review of a different plaintiff‘s final removal order. That court came to the sensible conclusion that its review of Matter of A-B- and the Guidance was not affected by our district court‘s order because the order was, by its own terms, limited to credible fear proceedings. See Gonzalez-Veliz, 933 F.3d at 228 (D.C. district court order did not affect its review because district court “vacated [Matter of] A-B- and the guidance memorandum as they pertain to credible-fear claims
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 largely restates Matter of A-B-. It has no independent legal effect apart from Matter of A-B- and, like Matter of A-B-, the Guidance mentions credible fear determinations only in passing.9 Because the Guidance adds nothing substantive to Matter of A-B- and Matter of A-B- is not a policy “issued . . . to implement” section 1225(b), it follows that neither is the Guidance.
In my view, section 1252(e)(3) does not permit judicial review of the plaintiffs’ challenge to Matter of A-B- or to the Guidance and I would dismiss their complaint under Rule 12(b)(1).