Kiakombua v. McAleenanKiakombua v. McAleenan
MEMORANDUM OPINION
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................ 1
II. BACKGROUND ............................................................................................................. 5
A. Credible Fear Screenings And The U.S. Asylum Process.......................................... 5
B. USCIS‘s “Lesson Plan On Credible Fear Of Persecution And Torture Determinations” ........................................................................................................ 10
C. Plaintiffs’ Asylum-Related Experiences ................................................................ 12
1. Maria Kiakombua............................................................................................ 13
2. “Sofia” and “Julia” .......................................................................................... 14
3. “Ana” and “Emma” ........................................................................................ 16
D. Procedural History ................................................................................................. 17
1. Plaintiffs’ Legal Claims................................................................................... 18
2. The Parties’ Cross-Motions For Summary Judgment ..................................... 20
III. LEGAL STANDARDS.................................................................................................. 24
A. Motions To Dismiss Under
B.
IV. ANALYSIS..................................................................................................................... 27
A. Plaintiffs Have Article III Standing To Challenge The Lesson Plan, And Defendants Have Not Established That Plaintiffs’ Claims Are Moot ................... 29
1. Plaintiffs Suffered An Injury In Fact, Which Is Fairly Traceable To The Lesson Plan, And May Be Redressed By An Order Vacating The Lesson Plan And Requiring New Credible Fear Determinations........................ 29
2. Defendants Have Not Persuasively Demonstrated Mootness ........................... 34
B. This Court Has Subject-Matter Jurisdiction To Review Agency Action That Allegedly Violates Provisions Of The INA ................................................... 40
1.
2. Plaintiffs’ Claims Are Not Time-Barred.......................................................... 50
C. The Lesson Plan Violates The INA And Its Implementing Regulations................... 53
1. The INA And Its Regulations Plainly Establish A Two-Stage Framework To Demonstrate Asylum Eligibility In The Expedited Removal Context, And Provide Standards For Making The Required Assessment At Each Stage Of The Process....................................................... 55
2. Certain Provisions Of The Lesson Plan Conflate The Initial Credible Fear Screening Standards With The Requirements For Asylum Eligibility, And Are Thus Manifestly Inconsistent With The INA‘s Express Prescriptions ........................................................................................ 60
a. The
b. The Lesson Plan Imports Factors That Are Relevant For Asylum Relief During The Full Removal Proceeding Stage Into The Initial Credible Fear Determination Process ...................................................... 62
c. The Lesson Plan Places A Burden On The Asylum Seeker Who Suffered Past Persecution To Show Unchanged Country Conditions And The Unavailability Of Internal Relocation As Prerequisites For A Favorable Credible Fear Determination.......................................... 65
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3. Certain Provisions Of The Lesson Plan Are Based Upon An Unreasonable Interpretation Of The INA‘s Asylum Review Process ......... 67
a. The Lesson Plan‘s Mandate That Noncitizens Provide “Evidence” And “Facts” That Pertain To “Every Element” Of Their Asylum Claim Is Plainly Unreasonable Given The Statutory Requirements..... 67
b. The Lesson Plan Unreasonably Permits Asylum Officers To Require Corroboration In The Context Of The Credible Fear Interview Process ....................................................................................... 70
c. The Lesson Plan Unreasonably Requires The Screening Officer To Consider Whether The Noncitizen‘s Home Government Has “Abdicated Its Responsibility” To Control Persecution .......................... 73
D. The Unlawful Provisions Of The Lesson Plan Cannot Be Severed From The Remainder Of The Document, So The Court Will Exercise Its Equitable Authority To Vacate The Entire Lesson Plan And Will Also Order New Credible Fear Determinations For These Plaintiffs............................................... 76
1. Vacatur Is An Appropriate Remedy Under These Circumstances ................... 78
2. The Unlawful Provisions Of The Lesson Plan Are Not Severable From The Remainder Of The Document, Such That Vacatur Of The Entire Lesson Plan Is Required ................................................................ 87
3. Plaintiffs Are Entitled To New Credible Fear Determinations....................... 92
V. CONCLUSION ............................................................................................................... 95
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I. INTRODUCTION
The Department of Homeland Security (“DHS“)—and, in particular, DHS‘s sub-agency, the United States Citizenship and Immigration Services (“USCIS“)—is tasked with the responsibility of training federal employees to make sensitive and consequential judgments concerning the asylum eligibility of noncitizens seeking refuge in the United States.1 Federal law specifically prescribes the substantive standards that front-line asylum officers apply in order to identify those noncitizens designated for expedited removal who have a “credible fear of persecution” in their home countries and are thus entitled to a more probing evaluation of their asylum request in the context of a full removal hearing. See, e.g.,
credible fear determination consistent with the statutory provisions, regulations, policies, and procedures that govern whether the applicant has established a credible fear of persecution or a credible fear of torture.” (Id.)
The instant action challenges that proposition. Plaintiffs Maria Kiakombua, Ana, Emma, Sofia, and Julia (collectively “Plaintiffs“) are noncitizens subject to expedited removal who allege that, sometime between May and June of 2019, USCIS screening officers made adverse credible fear determinations with respect to each of them pursuant to the Lesson Plan‘s directives. (See Suppl. First Am. Compl. (“Am. Compl.“), ECF No. 62-2, ¶¶ 8, 14, 21, 23, 25, 27.) Plaintiffs assert, inter alia, that the current version of the Lesson Plan is unlawfully designed “to drive down the rate at which asylum seekers pass the screenings and avoid summary deportation[,]” and that it does so by, among other things, directing asylum officers to make credible fear determinations in a manner that is manifestly inconsistent with the governing statutory and regulatory requirements. (Id. ¶ 72; see, e.g., id. ¶ 85 (“[T]he Lesson Plan misrepresents the substantive law to be considered by the asylum officer to evaluate potential eligibility for asylum or other humanitarian protection[.]“).) For example, according to Plaintiffs, the Lesson Plan “converts the credible fear determination from an inquiry into whether an asylum seeker could establish eligibility for relief in the future” (id. ¶ 81), as the Immigration and Nationality Act (“INA“) provides, see
2 unlawful corroboration requirement; requir[es] the asylum seeker to present more than significant evidence of eligibility . . . ; and plac[es] the onus on the asylum seeker to produce testimony that is in fact the officer‘s duty to elicit.” (Id. ¶ 83 (internal quotation marks omitted).)
Plaintiffs’ three-count lawsuit, which has been filed against the Attorney General, DHS, USCIS, the Refugee, Asylum, and International Operations (“RAIO“) Directorate, and United States Customs and Border Protection (“CBP“) (collectively, “Defendants“), claims that: (1) the current Lesson Plan is inconsistent with the provisions of certain immigration-related statutes, other federal laws, and customary international law (see Am. Compl. ¶¶ 89–98 (“First Claim for Relief“)); (2) Defendants failed to follow notice-and-comment rulemaking procedures when they crafted the current Lesson Plan, in violation of the procedural requirements of the Administrative Procedure Act (“APA“) (id. ¶¶ 99–103
Before this Court at present are the parties’ cross motions for summаry judgment concerning Plaintiffs’ legal claims. (See Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mot.“), ECF No. 31-1; Pls.’ Mem. in Supp. of Cross-Mot. for Summ. J. and in Opp‘n to Defs.’ Mot. (“Pls.’ Mot.“), ECF No. 36-1; Defs.’ Mem. of Law in Opp‘n to Pls.’ Mot. and Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply“), ECF No. 49; Pls.’ Reply Mem. of Law in Supp. of Pls.’ Mot. (“Pls.’ Reply“), ECF No. 60.) In their motion, Defendants make a host of threshold arguments, including that Plaintiffs lack Article III
3 standing (see Defs.’ Mot. at 24), that Plaintiffs’ claims are moot (see Defs.’ Reply at 13), and that the Court does not have subject-matter jurisdiction over the claims in Plaintiffs’ pleading (see Defs.’ Mot. at 30–31). Defendants also contend that “the Lesson Plan is not actionable under either the APA or the INA” (id. at 37) and that Plaintiffs’ claims fail on the merits in any event (id. at 47). Defendants further maintain that, even if the Court finds that Plaintiffs’ claims are meritorious, the only available remedy is a declaration that the Lesson Plan is unlawful. (Id. at 63.) Plaintiffs’ filings counter each of Defendants’ threshold arguments (see, e.g., Pls.’ Mot. at 22-23, 32), and insist that there are “numerous independent grounds” for concluding that the Lesson Plan is unlawful (id. at 39 (asserting that the Lesson Plan contradicts the INA, was revised in an arbitrary and capricious manner, was not amended through notice-and-comment rulemaking, and/or violates the Due Process Clause)). Plaintiffs also maintain that the INA does not curtail this Court‘s authority to issue any appropriate equitable remedy. (See id. at 63.)
For the reasons explained fully below, the Court concludes that there is no threshold impediment to its reaching the merits of Plaintiffs’ legal claims, and that certain provisions of the Lesson Plan are manifestly inconsistent with the INA and its implementing regulations as a matter of law. Moreover, because the unlawful provisions of the Lesson Plan cannot be severed from the remainder of the document, this Court finds that the entire document must be vacated, which is a remedy that the Court retains full equitable power to order under the circumstances presented in this case. In addition, to remedy the application of unlawful standards in the context of the screening processes that USCIS undertook to evaluate Plaintiffs’ asylum eligibility, the
4 Court will require USCIS to provide new credible fear determinations for each Plaintiff.
Thus, Plaintiffs’ motion for summary judgment will be GRANTED with respect to their first claim for relief, and Defendant‘s cross-motion for summary judgment will be DENIED. Furthermore, the Lesson Plan will be VACATED in its entirety, and Defendants will be ENJOINED to void each Plaintiff‘s existing credible fear determination and provide Plaintiffs with new credible fear interviews, as necessary for Defendants to make a lawful determination regarding whether each Plaintiff has a credible fear of persecution that entitles her to a full removal hearing. A separate Order consistent with this Memorandum Opinion will follow.
II. BACKGROUND
A. Credible Fear Screenings And The U.S. Asylum Process
For almost a century, Congress has recognized that citizens of foreign states are sometimes forced to flee from persecution
5 homelands,” and “encourage[s] all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible[,]”
In keeping with this well-settled policy, over the course of the last four decades, Congress has codified various procedures that govern how the United States will evaluate and process the admission requests of refugees. Federal law provides that “any person who is outside any country of such person‘s nationality” and who is “unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” qualifies as a “refugee[.]”
6
Significantly for present purposes, federal immigration law plainly establishes that, for those noncitizens who are designated for expedited removal—such as the five individual plaintiffs in this case—applying for asylum is a two-stage process.
7 other facts as are known to the officer, that the alien could establish eligibility for asylum[.]”
The applicable statute, i.e., section 1225(b) of Title 8 of the United States Code, also plainly addresses the consequences of a positive or adverse credible fear finding during this initial screening process. If the asylum officer determines that the noncitizen has a credible fear of persecution, the individual “shall be detained for further consideration of the application for asylum,”
8 the immigration judge‘s review is a “highly expedited” affair that “is meant to conclude within 24 hours.” Make the Rd. New York v. Wolf (“MTRNY II“), 962 F.3d 612, 619 (D.C. Cir. 2020).
Ultimately, if the immigration judge concludes that the noncitizen has a credible fear of persecution, the asylum officer‘s negative credible fear determination will be vacated, and the agency will place the individual into full removal proceedings, see
9
B. USCIS‘s “Lesson Plan On Credible Fear Of Persecution And Torture Determinations”
Given the significance of the credible fear determination with respect to the asylum process, it is not surprising that Congress has authorized the agency that is responsible for executing immigration policy (that is, DHS) to “establish such regulations” as it deems “necessary for carrying out” the asylum-screening process described above, see
10
In accordance with its statutory and regulatory obligation to train its asylum officers, USCIS publishes а guidance document that it calls the “Lesson Plan on Credible Fear of Persecution and Torture Determinations.” (See Lesson Plan at 2–38.) To this Court‘s knowledge, there have been at least six versions of this particular Lesson Plan, dated April 14, 2006 (see ECF No. 61-3, at 2), March 7, 2013 (see ECF No. 61-5, at 2–40), February 28, 2014
The April 2019 Lesson Plan is 37 pages long, and is divided into eleven sections. At the outset, the document purports “to explain how to determine whether an alien subject to expedited removal or an arriving stowaway has a credible fear of persecution or torture[,]” so that asylum officers “will be able to correctly make a credible fear determination consistent with the statutory provisions, regulations, policies, and procedures that govern whether the applicant has established a credible fear of persecution or a credible fear of torture.” (Lesson Plan at 2.) The Lesson Plan then proceeds to instruct asylum officers how to “[i]dentify which persons are subject to expedited removal” (id.; see id. at 7–10), and then discusses the function of the credible
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fear screening (see id. at 10), followed by a description of the concept of a “credible fear” of persecution or torture that also addresses the standard of proof required to establish a credible fear (see id. 10–14). In this regard, the Lesson Plan specifically instructs that “the credible fear significant possibility standard of proof . . . requires the applicant to identify more than significant evidence that the applicant is a refugee entitled to asylum” (id. at 13 (internal quotation marks omitted)), and that, “even where the officer might otherwise find the testimony credible[,]” an asylum officer can require the credible fear interviewee to “provide evidence that corroborates the applicant‘s testimony” (id. at 12). The Lesson Plan focuses next on the procedures for making a credible fear determination: it directs asylum officers how to evaluate credibility in a credible fear interview (see id. at 14–18), and identifies the “elements” that are necessary for establishing a credible fear of persecution (see id. at 19–26) or a credible fear of torture (see id. at 26–32). The document also states that, “[i]n order to establish a credible fear of persecution, the applicant must establish each one of the elements” of her asylum claim. (Id. at 20.) It then moves on to addressing auxiliary matters such as the applicability of bars to asylum (see id. at 32–33), and the treatment of dependents (see id. at 33–34), before closing with a summary overview (see id. at 35–38).
C. Plaintiffs’ Asylum-Related Experiences
Beginning in the spring of 2019, at around the same time as the USCIS issued the April 2019 version of the Lesson Plan, the five individual plaintiffs in this case were deemed subject to expedited removal, after which they expressed an intention to apply for asylum. Each Plaintiff then proceeded to have a credible fear screening interview with a USCIS asylum officer, and each was found not to have a credible fear of
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persecution, notwithstanding the alleged circumstances under which
1. Maria Kiakombua
Plaintiff Maria Kiakombua allegedly “fled her home in Angola to escape her boyfriend, a member of the country‘s military, who beat her—sometimes with a machete—and threatened to kill her if she left him” (Compl., ECF No. 1, ¶ 8), and to find refuge from “repeated attacks . . . at the hands of government officials” (id.), who were “associated with Ms. Kiakombua‘s boyfriend [and] came to her home and raped her in the presence of her children, due in part to her failure to abide by societal norms regarding the proper role and behavior of women” (id. ¶ 12). According to the complaint, Kiakombua “reached the U.S. border and sought asylum” in April of 2019, “but an asylum officer found that she lacked a credible fear under the Lesson Plan.” (Id. ¶¶ 8, 12.) In May of 2019, “[a]n immigration judge subsequently agreed” with the asylum officer‘s conclusion (id. ¶ 13), and Kiakombua was then “detained in the custody of the Department of Homeland Security” pending removal to Angola (id. ¶ 12). On June 6, 2019, through “the assistance of pro bono immigration consultant[,]” Kiakombua sought “reconsideration of the asylum officer‘s negative credible fear determination” (Am. Compl. ¶ 15), but that request was denied after a follow-up interview (see id. ¶ 16).
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Kiakombua filed the instant lawsuit on June 25, 2019. (See id. ¶ 17.) The following day Kiakombua (through counsel) “requested that Defendants voluntarily agree to stay [her] expedited removal, to obviate the need for Ms. Kiakombua to request that relief from the Court” (id. ¶ 18), and one day later, on June 27, 2019, USCIS notified Kiakombua that the agency “had sua sponte reconsidered its prior denial of her June 6, 2019[,] request for reconsideration, and had found that Ms. Kiakombua has a credible fear” (id. ¶ 19). Kiakombua remains detained in USCIS custody (see id. ¶ 13), and has apparently been served with a Notice to Appear for full removal proceedings at a date and time “TBD” (see Sealed Ex. D to Defs.’ Reply (“Kiakombua NTA“), ECF No. 4, at 2).
On June 28, 2019, Kiakombua‘s counsel filed an amended complaint that names four additional plaintiffs, each of whom is proceeding under a pseudonym. (See Am. Compl. ¶¶ 20, 22, 24, 26.)6
2. “Sofia” and “Julia”
Sofia is a Cuban “medical doctor” who is married to a U.S. lawful permanent resident. (Id. ¶ 24.) Sofia allegedly “opposes Cuba‘s ruling party, [and] has made her views known through her political positions and refusal to acquiesce in demands of government officials.” (Id.) According to the amended complaint, the Cuban government “has accused [Sofia] of being anti-revolutionary and subjected her to
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surveillance, threats, and detention[,]” and “[t]he fear and stress Sofia experienced as a
According to the amended complaint, Julia has also been deported back to her home country (El Salvador) after a negative credible fear determination in May of 2019 that was subsequently affirmed by an immigration judge. (See id. ¶ 27.) Julia allegedly “fled El Salvador after witnessing the murder of a neighbor committed by gang members” and after receiving multiple death threats from that gang “if she reported their crime to the police.” (Id. ¶ 26.) The amended complaint alleges that Julia came to the United States seeking protection in April of 2019, but an asylum officer determined that she “lacked a credible fear of persecution or torture” under the newly revised Lesson Plan. (Id. ¶¶ 26–27.)
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3. “Ana” and “Emma”
Ana was allegedly “forced to flee El Salvador after receiving death threats from gang members who targeted her husband, [who is] a landowner, and his family.” (Id. ¶ 20.) According to the amended complaint, “[i]n addition to sending death threats to [Ana], the gang members threatened several other family members and shot her husband and her nine-year-old granddaughter, although both survived.” (Id.) The local “police were of little assistance” and, therefore, in May of 2019, Ana sought refuge in the United States. (Id.) After “an asylum officer determined[,]” allegedly pursuant to the Lesson Plan, “that Ana lacked a credible fear of persecution or torture[,]” and “[a]n immigration judge subsequently agreed[,]” Ana was detained pending removal. (Id. ¶ 21.)
Emma also allegedly “fled El Salvador fearing for her life and came to the United States seeking protection in May [of] 2019.” (Id. ¶ 22.) According to the amended complaint, Emma was “beaten and sexually abused by her brother[,]” and was also “threatened and emotionally and physically abused by the father of her daughter[,]” but she was unable to report him to the local authorities because of his “close associations with the police.” (Id.) The amended complaint alleges that, in June of 2019, an asylum officer determined pursuant to the Lesson Plan “that Emma lacked a credible fear of persecution or torture[,]” and Emma has been ordered detained pending “her hearing with an immigration judge, who will review the negative decision issued by the asylum officer.” (Id. ¶ 23.)
On July 8, 2019, Plaintiffs Ana and Emma filed an emergency motion for an administrative stay of their impending removals (see Pls.’ Mot. for Admin. Stay of
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Removal, ECF No. 13, at 1), which this Court granted—over Defendants’ objection on jurisdictional grounds (see Defs.’ Opp‘n to Pls.’ Mot. for Admin. Stay of Removal, ECF No. 16)—“pending resolution of th[e] Court‘s determination of whether it has jurisdiction to enter a stay of removal in
D. Procedural History
As mentioned above, Kiakombua filed her original complaint on June 25, 2019 (see Compl., ECF No. 1), and Ana, Emma, Sofia, and Julia joined with Kiakombua to file an amended complaint three days later (see First Am. Compl., ECF No. 6), which was subsequently supplemented and superseded (see Suppl. First Am. Compl. (“Am. Compl.“), ECF No. 62-2).7 Their pleading alleges that the asylum officers who
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undertook to make their credible fear determinations relied on the April 2019 Lesson Plan (see id. ¶¶ 14, 21, 23, 25, 27), and that the Lesson Plan‘s credible fear guidance is unlаwful for three “independent” reasons (Pls.’ Mot. at 39).
1. Plaintiffs’ Legal Claims
Plaintiffs’ “First Claim for Relief” (see Am. Compl. ¶¶ 89–98) is brought under
Plaintiffs’ “Second Claim for Relief” (id. ¶¶ 99–103) invokes
Plaintiffs’ “Third Claim for Relief” invokes the
Based on these alternative grounds for relief, Plaintiffs seek various remedies (see Am. Compl. at 26–27 (“Prayer for Relief“)), including: (1) a declaration that the Lesson Plan, all related guidance documents, and all credible fear proceedings undertaken pursuant to the Lesson Plan are not consistent with the
2. The Parties’ Cross-Motions For Summary Judgment
Following this Court‘s administrative stay of Plaintiffs Ana‘s and Emma‘s removals (see Order, ECF No. 18), the parties agreed to file cross-motions for summary judgment in lieu of separately briefing various jurisdictional issues that Defendants intended to raise concerning these Plaintiffs’ request for a stay of removal (see Defs.’ Mot., ECF No. 31-1; Pls.’ Mot., ECF No. 36-1). The parties’ cross-motions ripened on October 10, 2019. (See Defs.’ Reply, ECF No. 49; Pls.’ Reply, ECF No. 60.)8
In their motion for summary judgment, which takes a kitchen-sink approach, Defendants first raise a number of threshold arguments concerning Plaintiffs’ lack of Article III standing and the Court‘s lack of subject-matter jurisdiction over Plaintiffs’ claims. They argue, for example, that this Court “should dismiss the Amended Complaint because no Plaintiff has standing to challenge the Lesson Plan.” (Defs.’ Mot. at 24.) They also maintain that “the
With respect to the merits of Plaintiffs’ claims, Defendants generally contend that “the Lesson Plan is not actionable under either the APA or the
Plaintiffs’ cross-motion for summary judgment argues that each Plaintiff has “the personal stake necessary to establish standing” under Article III, because each has received a negative credible fear determination, and because “all five had their protection claims evaluated under the Lesson Plan” that is being challenged in this action. (Pls.’ Mot. at 32.) Thus, Plaintiffs say that their injuries are “traceable” to the Lesson Plan and can be remedied by the Court. (Id.) Plaintiffs also argue that this Court has jurisdiction over their claims, either pursuant to the express terms of
The Court held a motions hearing on October 22, 2019 (see Minute Entry of Oct.
III. LEGAL STANDARDS
Although Defendants’ motion is formally styled as a motion for summary judgment (see Defs.’ Mot. at 1), Defendants vigorously contend, as threshold matter, that “the Court lacks jurisdiction over this case and should dismiss it” (id. at 36). Consequently, Defendants’ cross-motion is best construed as a motion to dismiss for lack of subject-matter jurisdiction under
A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(1)
The doctrines of standing, mootness, and ripeness are “[t]hree inter-related” doctrines that determine the “constitutional boundaries” of a court‘s jurisdiction. Worth v. Jackson, 451 F.3d 854, 855, 857 (D.C. Cir. 2006). Indeed, “the defect of standing is a defect in subject matter jurisdiction[,]” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987), and so, too, is a motion to dismiss for mootness “properly brought under
When ruling on a
B. Rule 56 Motions For Summary Judgment With Respect To Legal Claims That Assail Agency Action Under The APA And Otherwise
Pursuant to
Notably, with respect to cross-motions for summary judgment concerning legal claims that challenge agency action under the APA, the respective duties of the agency and the court are well established: “it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Catholic Health Initiatives v. Sebelius, 658 F. Supp. 2d 113, 117 (D.D.C. 2009) (internal quotation marks
IV. ANALYSIS
The central question at issue in the instant case is whether the Lesson Plan‘s various pronouncements concerning the manner in which USCIS asylum officers are to make credible fear determinations are irreconcilable with the statutory and regulatory provisions that govern those screenings (see Am. Compl. ¶¶ 89–98) or, alternatively, whether USCIS has violated other procedural or constitutional requirements (see id. ¶¶ 99–108) with respect to the Lesson Plan‘s promulgation or its contents. As now happens with fair frequency, Defendants have presented a slew of arguments concerning various potential threshold impediments to the Court‘s consideration of the merits of Plaintiffs’ legal claims (see generally Defs.’ Mot. at 24–36)—sometimes all within a single paragraph.9 The Court‘s evaluation of these sometimes conflated contentions has required a methodical analysis of myriad legal issues, some of which the D.C. Circuit has recently considered as well.
Ultimately, as explained below, the Court has determined that each of Defendants’ threshold arguments fails, and that several provisions of the Lesson Plan are patently at odds with the credible fear screening scheme that Congress has crafted. Notably this fundamental flaw in the agency‘s training materials manifests itself in various ways—e.g., at times, USCIS has imported the standards and burdens that apply only during full removal proceedings into the expedited removal screening process; at other times, the agency makes
A. Plaintiffs Have Article III Standing To Challenge The Lesson Plan, And Defendants Have Not Established That Plaintiffs’ Claims Are Moot
1. Plaintiffs Suffered An Injury In Fact, Which Is Fairly Traceable To The Lesson Plan, And May Be Redressed By An Order Vacating The Lesson Plan And Requiring New Credible Fear Determinations
Defendants’ opening salvo is the contention that “no Plaintiff has standing to challenge the Lesson Plan.” (Defs.’ Mot. at 24.) Thus, the Court begins by assessing whether any Plaintiff has, in fact, demonstrated the “irreducible constitutional minimum” circumstances necessary to invoke a federal court‘s subject-matter jurisdiction over a lawsuit, Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotation marks and citation omitted), which consist of three elements: injury in fact, causation, and redressability, see Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012); see also J.D. v. Azar, 925 F.3d 1291, 1323–24 (D.C. Cir. 2019) (“It is settled that in a case involving joined, individual plaintiffs bringing a shared claim seeking a single remedy, Article III‘s case-or-controversy requirement is satisfied if one plaintiff can establish injury and standing.” (internal citation omitted)). As further explained below, Plaintiffs are asylum seekers who underwent credible fear interviews and who maintain that USCIS evaluators applied the unlawful provisions contained in the Lesson Plan to determine that each Plaintiff lacked a credible fear. Therefore, it is clear to this Court that Plaintiffs have suffered an injury in fact that is fairly traceable to the challenged Lesson Plan and that is likely to be redressed by a favorable ruling of this Court.
To start, there is no serious dispute that these Plaintiffs—who, again, allege that USCIS officers evaluated their asylum requests pursuant to unlawful Lesson Plan provisions, after which each Plaintiff was slated for expedited removal from the United States based upon the officers’ negative credible fear determinations—have adequately identified an injury in fact. This is because it is well established that a plaintiff has standing to bring a claim concerning a procedural injury if she can show that the agency failed to abide by a procedural requirement that was “designed to protect some threatened concrete interest” of the plaintiff. Lujan v. Defs. of Wildlife, 504 U.S. 555, 573 n.8 (1992); see also, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (concluding that an applicant for admission had standing to challenge a university‘s affirmative action admissions program even though the applicant “had been unable to prove that he would have been admitted in the absence of the [challenged] program“); Grace v. Whitaker (”Grace I“), 344 F. Supp. 3d 96, 119 (D.D.C. 2018), aff‘d in relevant part, Grace II, 965 F.3d 883 (holding that plaintiffs had suffered an injury in fact because they alleged that new “credible fear policies impermissibly raise their burden and deny plaintiffs a fair opportunity to seek asylum and escape the
Consequently, Defendants’ primary arguments with respect to Article III standing are that these Plaintiffs’ alleged procedural injuries are not fairly traceable to the Lesson Plan, and that, in any event, an order from this Court vacating the Lesson Plan and requiring USCIS to undertake new credible fear determinations for these Plaintiffs would not actually redress those injuries. (See Defs.’ Mot. at 27–29; see also Defs.’ Reply at 10–12.). On the traceability front, Defendants attempt to assail the factual basis for Plaintiffs’ claim that it was the Lesson Plan that caused Plaintiffs’ alleged injuries; in this regard, Defendants argue that “Plaintiffs have produced zero evidence that the Lesson Plan, and the new standards it allegedly pronounced, played any role in Plaintiffs’ negative credible fear determinations.” (Defs.’ Mot. at 27.) But “[a] plaintiff who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the [proper] procedure the substantive result would have been altered.” Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 94 (D.C. Cir. 2002). Instead, “[a]ll that is necessary is to show that the procedural step was connected to the substantive result.” Id. at 95 (emphasis added). And, here, there is ample record evidence that connects the allegedly unlawful Lesson Plan provisions to the credible fear determinations that the agency rendered with respect to each Plaintiff.
For one thing, it is clear that the April 2019 Lesson Plan was binding guidance for USCIS asylum officers at the time that Plaintiffs’ interviews were conducted. Cf. Fed. Forest Res. Coal. v. Vilsack, 100 F. Supp. 3d 21, 35 (D.D.C. 2015). Indeed, the April 2019 Lesson Plan became effective on April 30, 2019 (see Lesson Plan at 2), and Plaintiffs’ credible fear determinations took place between May and June of 2019 (see Am. Compl., ¶¶ 8, 14, 21, 23, 25, 27). Moreover, according to DHS, when making credible fear assessments, “Asylum Officers must continue to refer to the latest applicable RAIO Lesson Plans for the most recent guidance on determining asylum eligibility.” (Ex. 3 to Admin. Record, ECF No. 61-3, at 3.) Plaintiffs have also offered the sworn declaration of a retired USCIS supervisory asylum officer as proof that the officers do, in fact, reference the Lesson Plan when making credible fear determinations; the declarant explains that the agency “requires” officers to follow the Lesson Plan, and that USCIS uses it not only as a training material but also for disciplinary purposes. (Ex. B to Pls.’ Mot., ECF No. 36-3, at 76–78.) Internal memoranda from DHS further reveal that USCIS performs a quality assurance “review of [credible fear] determinations based on the revised lesson plan[.]” (Ex. 28 to Admin. Record, ECF No. 61-25, at 3 (emphasis added).) Thus, the Court finds that the record evidence is sufficient to show that the challenged version of the Lesson Plan was in effect at the time that Plaintiffs’ credible fear determinations were made, and that the Lesson Plan‘s prescriptions are binding on USCIS asylum officers, who use them to determine whether asylum seekers have a credible fear as is necessary to establish their asylum eligibility. Accordingly, Plaintiffs have demonstrated the requisite connection between the Lesson Plan and their alleged harm, and have therefore established traceability
Defendants’ redressability argument is likewise unavailing. Again, Plaintiffs are not asking the Court to require “DHS [to] reach any particular decision” about their credible fear of persecution or torture; instead, they are merely requesting that this Court order that the agency afford the procedures and “the consideration that they are due under the statute.” Ramirez v. I.C.E., 338 F. Supp. 3d 1, 31 (D.D.C. 2018). Defendants argue nevertheless that Plaintiffs’ allеged injury is not redressable, because even if the Court requires USCIS asylum officers to evaluate Plaintiffs’ asylum eligibility without reference to the allegedly tainted Lesson Plan provisions, such an order does not pertain to the immigration judge‘s subsequent review of the asylum officer‘s determination, and thus addresses “only one of two government actions that both independently produce the same alleged harm.” Kaspersky Lab, Inc. v. Dep‘t of Homeland Sec., 311 F. Supp. 3d 187, 219 (D.D.C. 2018). (See also Defs.’ Mot. at 29 (emphasizing that “it was the Immigration Judge—not a USCIS asylum officer—who made the ultimate call on whether each Plaintiff had a negative credible fear of persecution or torture“).) In so arguing, Defendants once again misconstrue the relevant injury, which is not the substantive determination regarding each Plaintiff‘s lack of a credible fear, but the asylum officer‘s application of the allegedly unlawful Lesson Plan when each Plaintiff‘s credible fear determination was made. See Ctr. for Biological Diversity v. E.P.A., 861 F.3d 174, 184–85 (D.C. Cir. 2017). And that harm occurred at the point in which the asylum officer referenced the allegedly unlawful Lesson Plan provisions, so it would be fully redressed by a court order that requires new credible fear interviews for these Plaintiffs conducted by officers who do not rely upon such allegedly unlawful standards when Plaintiffs’ asylum eligibility is assessed.11
In short, if Plaintiffs’ claim that the USCIS asylum officers who undertook to determine whether they each had a credible fear of persecution or torture could not lawfully reference the Lesson Plan when making that determination—as the Court must assume for the purpose of evaluating standing, see City of Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C. Cir. 2003)—then these Plaintiffs (to whom the Lesson Plan was applied with respect to the adverse credible fear determination that each asylum
2. Defendants Have Not Persuasively Demonstrated Mootness
In the realm of threshold jurisdictional contentions, Defendants also insist that subsequent developments with respect to each Plaintiff have mooted all of the claims that appear in Plaintiffs’ complaint. (See Defs.’ Reply at 12; see also Defs.’ Mootness Notice at 1.) To hear Defendants tell it, “the challenged Lesson Plan is no longer causing” Plaintiffs Kiakombua, Emma, and Ana “any legally cognizable injury[,]” because they have “each received the relief they requested” (Defs.’ Reply at 12–13; see also Defs.’ Mootness Notice at 1–4) insofar as USCIS has placed them “into full
First of all, Defеndants have not demonstrated that Kiakombua, Emma, and Ana have actually been placed into full removal proceedings. The relevant statutory and regulatory provisions plainly establish not only that “[e]very removal proceeding . . . is commenced by the filing of a notice to appear with the immigration court[,]”
The cases that Defendants rely upon to support their mootness assertion with respect to these Plaintiffs are non-binding precedents from other jurisdictions and are also wholly inapposite. In Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), for example, the Fifth Circuit held that a noncitizen could not challenge the immigration judge‘s jurisdiction on appeal on the grounds that a statutorily defective Notice to Appear had been filed with the immigration court. Although the panel held that, under the applicable regulations, a Notice to Appear that lacks time-and-place information may be sufficient to vest jurisdiction in the immigration court, see id. at 689–90, that holding says nothing about whether, per the INA and its implementing regulations, the agency must provide notice of the time and place of the full removal hearing and file that notice with the immigration court in order for a noncitizen to be deemed to have been placed in full removal proceedings, see
Even if one assumes that the statutorily defective Notices to Appear that were issued to Kiakombua, Ana, and Emma after commencement of the instant case were sufficient to trigger full removal proceedings for these Plaintiffs, it is not at all clear that the legal claims concerning the Lesson Plan have bеen mooted as a result. See O.A. v. Trump, 404 F. Supp. 3d 109, 139–40 (D.D.C. 2019) (holding that the issuance of a Notice to Appear after a complaint has been filed does not moot a plaintiff‘s section 1252(e)(3) challenge). If there is any possibility that the prior adverse credible fear determination could be used to thwart Plaintiffs’ efforts to obtain full consideration of their asylum applications, then their claims are not moot, and, here, the credible fear findings appear to remain a part of each Plaintiff‘s record. (See Ex. 8 to Admin. Record, ECF No. 61-8, at 19–20 (explaining that USCIS maintains “A-files of detained aliens[,]” which include the asylum officer‘s “Interview Notes—non-Q&A and Q&A format, both handwritten and typed[,]” “Comments . . . regarding negative credible fear determination[,]” and a “Memo of Adverse Information, if any.“); Ex. 11 to Admin. Record, ECF No. 61-10, at 3 (showing that, as part of USCIS‘s “Record of Determination/Credible Fear Worksheet” (Form I-870), asylum officers inform noncitizens that “[t]he statements [they] make today [at the credible fear interview] may be used in deciding [their] claim and in any future immigration proceedings“).) The Court also agrees with Plaintiffs’ argument that, by focusing exclusively on the purported limitations on USCIS‘s ability to switch these Plaintiffs’ statuses unilaterally at this point in the process (without making any similar representations concerning the power of any other defendant-agency to do so (see Defs.’ Mootness Notice at 3; Defs.’
Reply at 14)), “Defendants have failed to carry their burden of proving that there is no possibility that the women could be returned to expedited removal” (Pls.’ Reply at 16). Cf. United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)
Furthermore, to be clear: it is not Plaintiffs’ responsibility to establish a non-speculative possibility of their being returned to expedited removal status, as Defendants suggest. (See Defs.’ Mootness Notice at 3.) Rather, “a court may not conclude that a defendant‘s voluntary cessation of disputed conduct renders a case moot unless the party urging mootness demonstrates[,]” among other things, that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Zukerman v. U.S.P.S., 961 F.3d 431, 442–46 (D.C. Cir. 2020) (emphasis added) (internal quotation marks and citation omitted); see also Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980 (D.C. Cir. 2016) (rejecting the “tactic” of “attempting to foist [the] burden onto” plaintiffs to establish that a case is not moot). And not only have Defendants failed to make such showing under the instant circumstances, but Plaintiffs’ counsel avers that there have, in fact, been instances where “DHS has taken individuals in
Defendants’ argument that Sofia‘s and Julia‘s removals from the United States have mooted their legal claims is even less persuasive. The D.C. Circuit permits the continuation of similar challenges by noncitizens whom the government has already removed. See, e.g., Am. Immigr. Laws. Ass‘n v. Reno (”AILA II“), 199 F.3d 1352, 1363 (D.C. Cir. 2000) (noting that, “[w]hen an alien returned to his native country, nothing prevented him from bringing suit here” under
Moreover, this Court has little doubt that it could grant Sofia and Julia effective relief notwithstanding the fact that they have been returned to their home countries; for instance, the Court could order “the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with new credible feаr determinations consistent with the immigration laws.” Grace I, 344 F. Supp. 3d at 105, aff‘d in relevant part, Grace II, 965 F.3d at 909. It is also clear that the Court‘s alleged lack of authority to issue the requested relief does not render a legal claim moot. The scope of relief “goes to the meaning of the [applicable statute] and the legal availability of a certain kind of relief[,]” and it “confuses mootness with the merits” to argue that the case no longer presents a live controversy because the court does not have the authority to grant the requested relief. Chafin, 568 U.S. at 174.
Finally, this Court notes that moving a noncitizen from expedited removal to full removal proceedings does not necessarily portend dismissal (on mootness grounds) of a noncitizen‘s challenge to expedited removal procedures. In the immigration context, courts have consistently recognized the compelling concern that an agency whose removal practices are challenged in court can effectively insulate itself from judicial review by acting quickly to issue Notices to Appear or to expedite removal, and then arguing that the court thereby lacks jurisdiction over those plaintiffs’ legal claims. See O.A., 404 F. Supp. 3d at 140 (rejecting the argument that the court “would lose jurisdiction under
As Plaintiffs note (see Pls.’ Resp. to Defs.’ Mootness Notice at 7 n.6), Defendants issued Notices to Appear to Kiakombua first, and then to Ana and Emma, within days of learning about this lawsuit, presumably in an effort to moot their claims, which is precisely what the “capable of repetition yet evading review” exception seeks to avoid. See Del Monte, 570 F.3d at 322 (holding that a plaintiff may avoid dismissal by demonstrating that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again” (internal quotation marks, citation, and alteration omitted)).
B. This Court Has Subject-Matter Jurisdiction To Review Agency Action That Allegedly Violates Provisions Of The INA
The final threshold disagreement between the parties in this case centers around the scope and meaning of
Defendants respond that, while the Court might otherwise have had subject-matter jurisdiction over Plaintiffs’ claims under
Defendants are correct to observe, at the outset, that
(e) Judicial review of orders under
section 1225(b)(1) . . .
(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under
section 1225(b) 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—(i) whether such section, or any regulation issued to implement such section, is constitutional; or
(ii) 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.
(B) Deadlines for bringing actions
Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented.
1. Section 1252(e)(3)(A) Of The INA Preserves This Court‘s Subject-Matter Jurisdiction Under 28 U.S.C. § 1331 In These Circumstances
The scope and purpose of the judicial review that the text of
Of course, Defendants contend that Plaintiffs’ challenges to the Lesson Plan do not fit within
Grace involved a challenge to “a host of executive-branch policies adopted to implement the expedited-removal provisions” of the INA, including a ruling by the Attorney General and a guidance document that USCIS issued concerning that adjudication. Grace II, 965 F.3d at 887, 889–90 (addressing Matter of A-B-, 27 I. & N. Dec. 316, 321 (A.G. 2018), wherein the Attorney General had laid out new policies concerning asylum claims based on persecution by non-state actors on account of an applicant‘s membership in a particular social group). With respect to the Attorney General‘s ruling, the D.C. Circuit held that A-B- qualified as an “implementation” of
Drawing from the D.C. Circuit‘s analysis in Grace II, it is clear to this Court that the Lesson Plan also qualifies as a “written policy directive, written policy guideline, or written procedure” that
Here, government counsel struggles valiantly to suggest that USCIS asylum officers do have such freedom: he points out that the Lesson Plan “do[es] not carry the force of law” (Defs.’ Mot. at 22), and argues that it “does not ordain or enact any policy” (Defs.’ Reply at 15), but is merely an “interpretive material” that “just states the law, as pronounced by statutes, regulations, and case law” (Defs.’ Mot. at 32-33). Those assertions (which contradict the position that the government took in Grace II) are difficult to square with internal DHS memoranda that plainly indicate that the agency itself understands the Lesson Plan to be binding on asylum officers. (See, e.g., Ex. 28 to Admin. Record, ECF No. 61-25, at 3; Ex. 3 to Admin. Record, ECF No. 61-3, at 3.) Defendants fail to point to a single piece of evidence that supports their current contention that the Lesson Plan is not binding on the officers that are required to apply its prescriptions when they make credible fear determinations—and, to the contrary, all of the evidence in front of this Court—including DHS internal memoranda—suggests otherwise. See CropLife Am. v. E.P.A., 329 F.3d 876, 883 (D.C. Cir. 2003) (“[T]he agency‘s characterization of its own action is not controlling if it self-servingly disclaims any intention to create a rule with the ‘force of law,’ but the record indicates otherwise.“). And to the extent that the Lesson Plan‘s provisions are binding on asylum officers, they are not reasonably characterized as something other than a written policy directive, guidance, or procedure, as Defendants now maintain.
Nor does it matter that the Lesson Plan is part of the “Asylum Division Officer Training Course,” and that training materials are not explicitly listed as reviewable documents under
The Court is also compelled to conclude that the Lesson Plan “implements” the expedited removal statute for the purpose of
In any event, even if Defendants are right that intentionality is required for implementation under
2. Plaintiffs’ Claims Are Not Time-Barred
In their reply brief, Defendants pivot to yet another potential basis for asserting that
First of all, per the plain text of
Plaintiffs’ legal action unquestionably fits within that timeframe. The original
There is really no basis in law or logic for Defendants to suggest otherwise. Nevertheless, Defendants argue that
Nothing in the statute requires this result. In particular,
C. The Lesson Plan Violates The INA And Its Implementing Regulations
Having determined that Plaintiffs have Article III standing to bring the claims in this lawsuit, that Plaintiffs’ claims are not moot, and that the Court has subject-matter jurisdiction to consider Plaintiffs’ legal challenge (see supra Sections IV.A–B), the Court now turns to the merits of the complaint‘s contention that the Lesson Plan is unlawful. As a reminder, Plaintiffs have cited alternative and independent grounds for this proposition, beginning with the contention that certain provisions of the Lesson Plan are “not consistent with the governing [immigration] statutes and regulations”
To substantiate this particular claim, Plaintiffs’ complaint sets out various examples of ways in which the Lesson Plan allegedly transgresses the INA and its implementing regulations. (See, e.g., Am. Compl. ¶ 85(c) (asserting that the Lesson Plan “directs asylum officers to make negative credible fear determinations based on what are actually discretionary factors, not eligibility criteria” (emphasis omitted)); id. ¶ 83 (arguing that the Lesson Plan “increases the evidentiary burden the asylum seeker must carry to pass a credible fear screening“); see also Pls.’ Mot. at 39–50 (expounding further upon the alleged conflict between the credible fear standards in the Lesson Plan and those established by the INA and its related regulations).) For their part, Defendants argue that there is no inconsistency between the provisions of the Lesson Plan and the relevant substantive statutes and regulations. (See generally Defs.’ Mot. at 48-54; Defs.’ Reply at 32–40.)
As explained below, this Court finds that Plaintiffs have the better of this argument. In reaching that conclusion, the Court has applied the well-worn deference framework that governs a federal court‘s determination of whether or not an agency has faithfully interpreted the law in relation to its own pronouncements. See Grace II, 965 F.3d at 896 (noting that it is “well settled” that traditional principles of agency deference “are applicable to the Attorney General‘s interpretation of the INA” and its implementing regulations (internal quotation marks and citation omitted)). Thus, to the extent Plaintiffs are challenging Defendants’ interpretation of the INA, the Court asks “whether Congress has directly spoken to the precise question at issue[,]” because courts “must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court [becomes] whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843. And where Plaintiffs seek to challenge Defendants’ interpretation of regulations that implement the INA, the Court asks whether the regulation is “genuinely” or “truly” ambiguous, “even after a court has resorted to all the standard tools of interpretation.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). If it is, then the relevant question bеcomes whether Defendants’ interpretation is “reasonable” or “within the zone of ambiguity the court has
When this Court applies these standards to evaluate the bulk of the provisions of the Lesson Plan that Plaintiffs point to as examples of the unlawful nature of this guidance, the Court concludes that USCIS has unlawfully required screening officers to make credible fear determinations in a manner that is manifestly inconsistent with the two-stage asylum eligibility framework that the INA plainly establishes. In addition, the Court finds that certain Lesson Plan provisions speak to aspects of the credible fear process that neither Congress nor DHS has expressly addressed, but in so doing USCIS improperly relies on unreasonable interpretations of the established statutory scheme. Therefore, the Court concludes that various aspects of the Lesson Plan cannot be squared with the INA‘s mandates.
1. The INA And Its Regulations Plainly Establish A Two-Stage Framework To Demonstrate Asylum Eligibility In The Expedited Removal Context, And Provide Standards For Making The Required Assessment At Each Stage Of The Process
To start, it bears repeating that, under the INA, DHS may designate certain noncitizens for expedited removal, see
Moreover, and importantly, the legal standard for whether or not a noncitizen clears the first hurdle in this two-stage process—i.e., whether she is entitled to a positive credible fear determination or an adverse one—is specifically addressed in the INA.
For purposes of this subparagraph, the term “credible fear of persecution” means that there is 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 section 1158 of this title.
During this credible fear interview, the noncitizen “may present other evidence” concerning “whether the applicant has a credible fear of persecution or torture[,]”
(2d Cir. 2009). Moreover, the interviewee “is not represented by counsel, and may be completely unfamiliar with United States immigration laws and the elements necessary to demonstrate eligibility for asylum.” Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004) (Sotomayor, J.). Thus, this first stage of the asylum eligibility process is intended to be a mere “screening interview[,]” Thuraissigiam, 140 S. Ct. at 1965, during which “[t]he applicant need not show that he or she is in fact eligible for asylum—a ‘credible fear’ equates to only a ‘significant possibility’ that the alien would be eligible.” Id. (emphasis in original); see also Ferreira v. Lynch, 831 F.3d 803, 809 (7th Cir. 2016) (“[T]he credible-fear interview is not meant to be a detailed account of the events supporting an applicant‘s asylum claim[.]“).15
It is also important to note that the noncitizens who are found to have a credible fear of persecution after the credible fear interview are statutorily entitled to proceed to the next stage of the process:
With respect to the second stage of the asylum-eligibility process, asylum seekers have a full hearing before an immigration judge, see
Finally, the INA and its implementing regulations make clear that even those noncitizens who establish that they are eligible for asylum because they qualify as refugees are not entitled to asylum under U.S. law. In other words, at the end of the day, asylum is discretionary relief that the federal government ”may grant” to anyone the agency “determines... is a refugee” in the context of full removal proceedings.
2. Certain Provisions Of The Lesson Plan Conflate The Initial Credible Fear Screening Standards With The Requirements For Asylum Eligibility, And Are Thus Manifestly Inconsistent With The INA‘s Express Prescriptions
a. The Lesson Plan Requires That A Noncitizen “Identify More Than Significant Evidence That The Applicant Is A Refugee Entitled To Asylum” In Order To Pass The Credible Fear Screening
The Lesson Plan specifically instructs USCIS asylum officers that “the
First of all, the INA only requires that a credible fear interviewee have a “significant possibility” of establishing her eligibility for asylum,
Second, and similarly, applicants have a credible fear under the INA if there is a significant possibility that they “could establish” that they are refugees during the nextstage of the process,
Third, because even those noncitizens who ultimately manage to establish that they qualify as refugees under the statute are thereby only rendered eligible for asylum, see
b. The Lesson Plan Imports Factors That Are Relevant For Asylum Relief During The Full Removal Proceeding Stage Into The Initial Credible Fear Determination Process
Under the INA, a noncitizen “who has suffered past persecution or who has a well-founded fear of being persecuted in the future is eligible for asylum,” Gutierrez-Rogue v. I.N.S., 954 F.2d 769, 771 (D.C. Cir. 1992) (internal quotation marks and citation omitted); yet, the ultimate “decision whether to grant asylum is within the discretion of the Attorney General[,]” id. The INA‘s regulations identify particular grounds for the discretionary denial of asylum to established refugees who suffered persecution in the past, including “a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution” or the ability to “avoid future persecution by relocating to another part of the applicant‘s country of nationality[.]”
For instance, according to the Lesson Plan, if “internal relocation is reasonable, the applicant does not have a credible fear of persecution.” (Lesson Plan at 16; see also id. at 20 (making “a significant possibility that the applicant cannot reasonably internally relocate within his or her country” one of the required elements for a positive credible fear determination).) The Lesson Plan also specifically instructs USCIS asylum officers that the following findings, taken together, “are sufficient to satisfy the credible fear standard“: “(1) there is a significant possibility that the applicant experienced past persecution on account of a protected charactеristic, (2) the conditions that gave rise to such persecution continue to exist in the applicant‘s home country, and (3) the applicant could not avoid such persecution by relocating within his or her home country[.]” (Id. at 19; see also id. at 36 (same).) And the Lesson Plan further indicatesthat, “if the evidence does not establish ... reasons why internal relocation is not possible, a negative credible fear determination is appropriate.” (Id. at 19.)
These required findings, and the consequences of establishing them as set forth in the Lesson Plan, bear no relationship to the assessments that Congress has prescribed when credible fear determinations are made pursuant to the INA. Again, all that the statute requires for a determination that the noncitizen has a credible fear of persecution is a significant possibility that the asylum seeker could establish eligibility for asylum, see
This all means that USCIS is not free to add factors that the regulations recognize
The bottom line is this: the Lesson Plan plainly contradicts the unambiguous text of the INA and its implementing regulations in this significant regard, and nothing in Defendants’ motion or argument demonstrates that the Lesson Plan faithfully describes what the governing prescriptions establish regarding how USCIS asylum officers are supposed to identify a noncitizen who has a credible fear of persecution.
c. The Lesson Plan Places A Burden On The Asylum Seeker Who Suffered Past Persecution To Show Unchanged Country Conditions And The Unavailability Of Internal Relocation As Prerequisites For A Favorable Credible Fear Determination
The third example in the category of direct contradictions between the unambiguous text of the INA and the Lesson Plan is straightforward: the Lesson Plan not only impermissibly requires asylum officers making credible fear assessments to consider discretionary factors that are applicable only during the full asylum review process, but also places the burden of making these showings on the asylum seeker. To accomplish this, the Lesson Plan states that, unless the noncitizen “establish[es] each one of the elements below,” he or she “must receive a negative credible feardetermination” (Lesson Plan at 20), and one of the listed elements is “Future Fear (Well-Founded Fear)[,]” which the Lesson Plan says requires, among other things, a showing by the noncitizen that is sufficient to “demonstrate[]” either “past persecution based on continuing country conditions” or a “well-founded fear” of persecution (id.). Another element that noncitizens must establish to avoid a negative credible fear determination under the Lesson Plan concerns “Internal Relocation” (id. at 25); that is, when the noncitizen fears persecution by non-government actors, she bears the burden of demonstrating that there is “a significant possibility that the applicant cannot reasonably internally relocate within his or her country” (id. at 25; see also id. at 20 (“[I]f the evidence does not establish a significant possibility . . . [that] internal relocation is not possible, a negative credible fear determination is appropriate“)). In this regard, the Lesson Plan specifically requires asylum officers “to assess whether an applicant could relocate to another area of his or her home country in order to avoid the alleged persecution[,]” because, “[i]f such internal relocation is reasonable, the applicant does not have a credible fear of persecution.” (Id. at 16.)
These evidentiary burdens are plainly at odds with the regulations that
3. Certain Provisions Of The Lesson Plan Are Based Upon An Unreasonable Interpretation Of The INA‘s Asylum Review Process
In addition to those parts of the Lesson Plan that contradict the express requirements of the INA and its implementing regulations concerning what is necessary for noncitizens to be considered to have a credible fear such that they advance to full removal proceedings, as described above, other parts of the Lesson Plan establish unreasonable standards for the credible fear determination with respect to matters that Congress has not specifically addressed, given the thrust of what the INA and its regulations prescribe. Put in Chevron and Kisor parlance, the following Lesson Plan provisions can be said to be based on an unreasonable interpretation of the INA, and thereby exceeded the reasonable boundaries of any ambiguity to be found in the statute and related regulations.
a. The Lesson Plan‘s Mandate That Noncitizens Provide “Evidence” And “Facts” That Pertain To “Every Element” Of Their Asylum Claim Is Plainly Unreasonable Given The Statutory Requirements
During full removal proceedings, an asylum seeker must offer specific facts that pertain to every element necessary to show that she is a refugee. See
The Lesson Plan fills this gap by providing that “[t]he applicant bears the burden of proof to establish a credible fear of persecution” by “produc[ing] sufficiently
The task of determining whether the Lesson Plan‘s interpretation is a “permissible” or “reasonable” one, Chevron, 467 U.S. at 843–44; Kisor, 139 S. Ct. at 2416, necessarily requires the Court to focus on the purpose of credible fear interviews as Congress envisioned them, see Goldstein v. S.E.C., 451 F.3d 873, 881 (D.C. Cir. 2006) (explaining that, whether an agency‘s construction is reasonable depends, in part, “on the construction‘s fit with the statutory language, as well as its conformity to statutory purposes” (internal quotation marks and citation omitted)); see also Kisor, 139 S. Ct. at 2416 (same for regulatory provisions). As discussed above, it is clear beyond cavil that the credible fear evaluation is intended to be merely an initial screening interview that poses a relatively low bar for asylum applicants, see Thuraissigiam, 140 S. Ct. at 1965; see also Yang, 99 F. App‘x at 125 (explaining that “the credible fear interview does not require the level of detail expected of the petitioner for an asylum claim“); therefore, the required reasonableness analysis need not detain the Court for long.
Again,
In sum, it is entirely unreasonable for the Lesson Plan to demand that, during the credible fear interview, the noncitizen establish “facts” that “satisfy every element” of her future asylum claim as a prerequisite to getting a favorable credible fear determination. (Lesson Plan at 11.) Imposing such a requirement is tantamount to making asylum applicants prove that they are a refugee during their credible fear interviews, even though Congress has made abundantly clear that a noncitizen need only carry that burden after she has shown a credible fear of persecution and has been placed in full removal proceedings.
b. The Lesson Plan Unreasonably Permits Asylum Officers To Require Corroboration In The Context Of The Credible Fear Interview Process
The Lesson Plan erects another impermissible hurdle for noncitizens at the initial stage of the asylum eligibility process, to the extent that it provides that “the asylum officer is . . . entitled to determine that the applicant must provide evidence thatcorroborates the applicant‘s testimony, even where the officer might otherwise find the testimony credible.” (Lesson Plan at 12.) The Lesson Plan states that, “[i]n cases in which the asylum officer determines that the applicant must provide such evidence, the asylum officer must provide the applicant notice and the opportunity to submit evidence, and the applicant must provide the evidence unless the applicant cannot reasonably obtain the evidence.” (Id. (emphasis in the original).) To be sure, at the point in which the Lesson Plan provides this authority for asylum officers to mandate corroboration, it cites the general statutory and regulatory provisions that apply to credible fear determinations. (See id. (citing
Thus, once again, the question for this Court is whether it is reasonable for the agency to employ a standard that applies to full asylum proceedings—i.e., the authority to request corroboration—in the context of the credible fear process, given the INA‘s purposes and in light of relevant statutory and regulatory language. See Chevron, 467 U.S. at 843–44; Kisor, 139 S. Ct. at 2416. And for the reasons that follow, given both “the goals of the statute[,]” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011) (internal quotation marks and citation omitted), and the “statutory purposes[,]” Abbott Labs. v. Young, 920 F.2d 984, 988 (D.C. Cir. 1990), theCourt cannot discern a reasonable fit between the Lesson Plan‘s corroboration requirement and the credible fear process that Congress created.
The legislative history of the credible fear provision provides one lens through which to view Congress’ intent with respect to a noncitizen‘s burden during the credible fear stage of the asylum application process. An early draft of the 1996 amendments to the INA provided that, “in order to establish a credible fear of persecution, the applicant for asylum would need to establish that ‘it is more probable than not that the statements made by the alien in support of the alien‘s claim are true, and . . . there is a significant possibility, in light of such statements . . . that the alien could establish eligibility for asylum.‘” H. Rep. No. 104-469, at 529 (Mar. 4, 1996). However, certain members of the House of Representatives and the Senate believed that that was “simply too onerous a standard for an asylee to meet who has just escaped dangerous persecution.” Id. And, ultimately, Congress “struck a compromise by rejecting the higher standard
It is certainly true that “credible fear interviewees are [reasonably] asked to provide all of the reasons for their concern about being removed,” Zhang, 585 F.3d at 724 (emphasis in original), but “they are not required to give a detailed and specific account of the bases for their claims, as applicants for asylum must in their asylum application[,]” id. (internal quotation marks and citation omitted). Thus, the Lesson Plan‘s instruction that an asylum officer might require the interviewee to “provideevidence that corroborates the applicant‘s testimony, even where the officer might otherwise find the testimony credible” (Lesson Plan at 12 (emphasis added))—i.e., even when “the credibility of the statements made by the alien in support of the alien‘s claim” is not in question,
Consequently, this Court has little doubt that the Lesson Plan‘s authorization of demands for corroboration at the credible fear stage rests on an unreasonable interpretation of what the INA and its implementing regulations allow. (See Pls.’ Mot. at 46–47.)
c. The Lesson Plan Unreasonably Requires The Screening Officer To Consider Whether The Noncitizen‘s Home Government Has “Abdicated Its Responsibility” To Control Persecution
The Lesson Plan‘s effort to assist asylum officers with the core task of identifying when a noncitizen has a credible fear of persecution by defining the term “persecution“—which the INA does not specifically address—is impermissible for substantially similar reasons. At least ever since Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), the term “persecution” as it appears in the INA has been understood to refer to “harm or suffering . . . inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control[,]” id. at 222; see also generally Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062–69 (9th Cir. 2017) (collecting cases applying the “unable or unwilling” standard). InGrace II, the D.C. Circuit set aside the agency‘s attempts to recharacterize the “unable or unwilling” standard as referring solely to circumstances in which the noncitizen‘s home country has “condoned the behavior or demonstrated a complete helplessness to protect the victim.” Grace II, 965 F.3d at 897 (internal quotation marks and citation omitted).16 But USCIS continues in this impermissible vein with the language that it has adopted in the Lesson Plan: it explains that, “[f]or a credible fear of persecution, there must
This Court finds that the Lesson Plan‘s guidance is a departure from prior agency regulations and adjudications, and one that is not owed deference under Kisor, for largely the same reasons that D.C. Circuit expressed in Grace II. Specifically, a government need not entirely abdicate its protection duties in order to be unable to control persecution by third parties. (See Pls.’ Mot. at 47 (arguing that the Lesson Planimproperly “conflates the two prongs of the relevant standard—that the government be ‘unable or unwilling to control’ the persecutor“).) Moreover, that distinction is important, because the Lesson Plan‘s reformulation might well lead asylum officers to make an adverse credible fear determination in cases where it would be appropriate to find that the noncitizen does have a credible fear of persecution using the BIA‘s unable-or-unwilling standard.
To understand why this is so, consider the example that the D.C. Circuit contemplated in Grace II: where a person seeks asylum after the murder of their child due to the devastating impact of organized crime in their home community, the fact that the local authorities “responded to the crime scene, took statements from the asylum seeker and his wife, and autopsied the body[,]” Grace II, 965 F.3d at 899, indicates that the government had not necessarily “abdicated its responsibility to control persecution” (Lesson Plan at 24); however, if there is evidence that “organized criminals generally operated with impunity” in the community nonetheless, the government can rightly be said to be unable to offer its citizens protection, Grace II, 965 F.3d at 899. Consequently, USCIS cannot reasonably instruct its officers that the hallmark of “unwilling or unable” is that the government has abdicated its responsibility to protect its citizens without running afoul of its prior pronouncement that a credible fear of persecution can be established based on the government‘s inability to afford adequate protection. Cf. Kisor, 139 S. Ct. at 2417–18.
Defendants’ arguments to the contrary are not persuasive. Defendants maintain that, “when read in context and with the deference it is due,” the Lesson Plan does not unlawfully change the unable-or-unwilling standard; its “discussion of a governmentabdicating its responsibility to control a persecutor is simply explanatory, provided as a counterpoint to the explanation that it is not enough to merely show that the government lacks resources[.]” (Defs.’ Reply at 37 (emphasis added).) But, of course, an explanation that does not faithfully adhere to the statutory or regulatory standard that it purports to explicate is owed no deference. See Circus Circus Casinos, Inc. v. N.L.R.B., 961 F.3d 469, 483 (D.C. Cir. 2020) (“Courts do not defer to an agency‘s arbitrary and capricious interpretation of its own standard.“). And, here, as in Grace II, the agency‘s explanation portends a situation in which asylum officers “can choose between the two standards“—“unwilling or unable” versus abdication of the duty to protect—such that a noncitizen “appearing before one
Thus, this Court finds the Lesson Plan‘s effort to illuminate the meaning of “persecution” is not based on a reasonable interpretation of the “unable or unwilling” standard that the agency had previously announced in its adjudications interpreting that term, and is therefore impermissible.
D. The Unlawful Provisions Of The Lesson Plan Cannot Be Severed From The Remainder Of The Document, So The Court Will Exercise Its Equitable Authority To Vacate The Entire Lesson Plan And Will Also Order New Credible Fear Determinations For These Plaintiffs
Based on the prior discussion, the Court has concluded that certain parts of USCIS‘s “Lesson Plan on Credible Fear of Persecution and Torture Determinations” conflict with the INA and its implementing regulations in various ways, as Plaintiffsallege in their complaint. (See Section IV.C., supra.)17 Accordingly, Plaintiffs are entitled to summary judgment with respect to the first claim for relief in their complaint, given the Court‘s conclusion that certain parts of the Lesson Plan impermissibly conflict with the INA and its implementing regulations as a matter of law. (See Am. Compl. ¶¶ 90, 92–93.) Plaintiffs have presented the remaining claims for relief—including their contention that the Lesson Plan violates the notice-and-comment provisions of the APA—in the “alternative” (Pls.’ Mot. at 39); therefore, the Court need not proceed to evaluate Plaintiffs’ APA and constitutional claims at this juncture. Instead, the question now becomes what remedy is appropriately afforded to these Plaintiffs based upon their success in establishing their entitlement to relief with respect to their first claim.
In this regard, Defendants insist that, per the terms of
Lesson Plan‘s lawfulness, and lacks statutory authority to enjoin or vacate the Lesson Plan or stay removals.” (Defs.’ Mot. at 63.) The Court rejects this unfounded contention for the reasons explained below. To the contrary, it is well settled that federal courts have equitable power to order the vacatur of unlawful agency conduct—in whole or in part—and nothing in the INA restricts or withdraws that established authority. Furthermore, in the instant case, it is appropriate for the Court to vacate the Lesson Plan in its entirety, bеcause the unlawful provisions are not severable from the rest of the document. In addition, to ensure that Plaintiffs are made whole, the Court has determined that a limited injunction that requires USCIS to void Plaintiff‘s credible fear determinations, and provide new ones as necessary to evaluate their entitlement to press their asylum claims in full removal proceedings, is warranted.
1. Vacatur Is An Appropriate Remedy Under These Circumstances
It is blackletter law that vacatur is “a form of equitable relief that the Court may award, withhold, and craft to fit the circumstances of the case before it.” Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100, 1106 (E.D. Cal. 2013); see also 73A C.J.S. Public Administrative Law and Procedure § 552 (Sept. 2020) (explaining that “vacatur is a species of equitable relief“). Indeed, according to the D.C. Circuit, when a reviewing court declares that the challenged action of an administrative agency violates the law, vacatur is the “normal remedy,” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014), and the “ordinary result” that follows from the court‘s determination, Nat‘l Mining Ass‘n v. U.S. Army Corps of Eng‘rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998). In essence, a vacatur order takes the unlawful agency action “off the books[,]” AFL-CIO v. Chao, 496 F. Supp. 2d 76, 92 (D.D.C. 2007), which is an entirely appropriate response when a plaintiff successfully establishes that the agency‘s conduct violates the law, see, e.g., Int‘l Union, United Mine Workers of Am. v. Fed. Mine Safety and Health Admin., 920 F.2d 960, 966-67 (D.C. Cir. 1990).
It is notable that federal courts have equitable power to order vacatur even in the absence of a specific statutory authorization. See 73A C.J.S. Public Administrative Law and Procedure § 552 (Sept. 2020); see also Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 70-71 (1992) (“The general rule . . . is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.“). But the appropriateness of such relief is further underscored by the fact that Congress has specifically prescribed this particular remedy when agency action violates the law and the plaintiff brings her claim under the APA. See
Nothing in the INA divests the federal courts of their traditional power to vacate unlawful agency action. (But see Defs.’ Mot. at 62-67.) In support of the argument that this Court cannot vacate the Lesson Plan, Defendants first point to section
Defendants’ second statutory argument (see Defs.’ Mot. at 66) is similarly unpersuasive. The agency observes that section
Still, Defendants argue that, even if the INA itself does not place limits on this Court‘s remedial powers, a vacatur is not appropriate in this case as a matter of the equities. (See Defs.’ Mot. at 65 (citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm‘n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).) To be sure, courts “have commonly remanded without vacating an agency‘s rule or order where the failure lay in lack of reasoned decisionmaking, [and] also where the order was otherwise arbitrary and capricious[.]” Int‘l Union, 920 F.2d at 966; see also Allied-Signal, 988 F.2d at 150 (remanding without vacating where the agency action is “inadequately supported“). But where the agency action is “so crippled as to be unlawful[,]” and not simply “potentially lawful but insufficiently or inappropriately explained[,]” it is clear beyond cavil that the common “practice is to vacate the agency‘s order[.]” Radio-Television News Directors Ass‘n v. F.C.C., 184 F.3d 872, 888 (D.C. Cir. 1999). Thus, Defendants cannot reasonably dispute that vacatur is the norm where, as here, the deficiencies that the court has identified
Defendants’ other remedy-related contention (see Defs.’ Mot. at 63) is also baseless. They insist that, absent a class action—which Congress has expressly prohibited in this context, see
It suffices to note here that the argument that a court can only vacate the agency‘s unlawful conduct with respect to the particular plaintiffs who have filed the legal action that is before it has no grounding in the Article III doctrine or in any federal statute of which this Court is aware. This argument also conveniently ignores the fact that what is at issue in the lawsuit is the agency‘s unlawful conduct—here, its issuance of a binding instruction manual that contains provisions that conflict with the INA—and that conduct, when it was undertaken, was not directed at the Plaintiffs in this lawsuit. Thus, where the legal claim at issue is the unlawfulness of an agency action of general applicability, it makes no sense whatsoever to insist that a district court limit its vacatur to address solely the impact of the unlawful agency action on the plaintiffs. In fact, doing so is tantamount to transforming a facial challenge to agency conduct into an as applied claim. It defies both law and logic.
It is also worth observing that no less an authority than the Supreme Court has made it abundantly clear that injunctions and vacaturs are distinct remedies, and that the latter is considered substantially less intrusive. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165-66 (2010) (explaining that injunctive relief is “a drastic and extraordinary remedy, which should not be granted as a matter of course[,]” whereas a “partial or complete vacatur” of an agency‘s action is a different, “less drastic remedy” that, at times, might be “sufficient to redress” a plaintiff‘s injury); see also Dep‘t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1916 n.7 (2020) (recognizing this distinction by holding that affirmance of the “order vacating the [agency action] makes it unnecessary to examine the propriety of the nationwide scope of the injunctions“). And given the established and lengthy history of federal courts employing their equitable powers to vacate unlawful agency actions, Defendants’ professed concern that a vacatur would “reach[] the future credible fear
The Court notes further that this typical result has rarely been an issue, because an administrative agency that is acting in good faith and in the public‘s interest can be expected to heed the implications of the federal court‘s ruling and desist voluntarily from engaging in conduct that the court has deemed unlawful (at least pending its appeal of the court‘s determination) in any event. See Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1565 (D.C. Cir. 1984) (en banc) (Scalia, J., dissenting) (explaining that “it must be assumed that officers of the Executive Branch will honor their oath to uphold the laws of the United States[,]” and therefore “once a court takes it upon itself to pronounce that the actions challenged here are unlawful all of the adverse effects of injunction . . . ensue“); see also Alsea Valley All. v. Dep‘t of Commerce, 358 F.3d 1181, 1186 (9th Cir. 2004) (explaining that a vacatur “prohibits, as a practical matter, the enforcement” of an unlawful agency action, but is not actually “the practical equivalent of ‘enjoining‘” the agency, and noting that such reasoning, “[t]aken to its logical end,” would “classify as ‘injunctive’ all declaratory relief that deems an agency rule unlawful“). It has apparently only been in recent years that federal agencies have consistently and audaciously demanded an entitlement to persist in the unlawful conduct despite a federal court‘s ruling declaring that conduct unlawful, which has manifested itself in the strange argument that Defendants have presented here—i.e., that precisely because outsiders might benefit from a vacatur, the Court lacks the power to vacate the agency action and must instead craft a remedy that permits the agency to continue to act in flagrant violation of the law as the court has announced it to be with respect to anyone who has not been joined as a party in the case before the court.18
Therefore, in addition to declaring that certain provisions of the Lesson Plan are unlawful, this Court will proceed to vacate all or part of the Lesson Plan, as in the ordinary course, to ensure that USCIS implements the Court‘s determination with respect to the agency‘s unlawful action. Cf. A.B.-B., 2020 WL 5107548, at *9 (declaring that DHS‘s policy to allow CBP officers to conduct credible fear interviews instead of USCIS asylum officers violated the INA, and issuing a preliminary injunction under section
2. The Unlawful Provisions Of The Lesson Plan Are Not Severable From The Remainder Of The Document, Such That Vacatur Of The Entire Lesson Plan Is Required
The next question that must be answered is whether the Court needs to vacate the entire Lesson Plan, or whether the various unlawful provisions that Plaintiffs have successfully identified can be severed from the rest of the document. This Court ordered the parties to provide supplemental briefing on this issue (see Pls.’ Suppl. Brief on Severability, ECF No. 68; Defs.’ Suppl. Brief on Severability, ECF No. 69), and after a careful review of both the parties’ arguments and the governing legal standards, the Court has concluded that the unlawful parts of the Lesson Plan described in Section IV.C above cannot, and should not, be severed by the Court.
Application of this standard severability analysis to the facts of the instant case compels the conclusion that the unlawful portions of the Lesson Plan that the Court discusses above are not severable for at least three reasons. First, the Lesson Plan‘s stated purpose is “to explain how to determine whether an alien subject to expedited removal or an arriving stowaway has a credible fear of persecution or torture” (Lesson Plan at 2), and the unlawful provisions that this Court has addressed speak directly to critical aspects of the credible fear assessment, such that the Court has “substantial doubt” that Defendants would have adopted a guidance document that excluded the directives concerning the credible fear determination that this Court has found to be unlawful. North Carolina, 730 F.2d at 796. Second, it is also hard to imagine how the Lesson Plan “could function sensibly as a freestanding” guidance document without the unlawful provisions. MD/DC/DE Broadcasters Ass‘n v. F.C.C. (“MD/DC/DE II“), 253 F.3d 732, 735 (D.C. Cir. 2001). The various directives are so interwoven that it is highly likely that severance would “severely distort” the binding instructions that the agency has issued concerning how to administer the complex system of credible fear determinations, resulting in a policy document that is “strikingly different” from prior versions of the Lesson Plan. MD/DC/DE I, 236 F.3d at 23. Third, and even more to the point, setting aside the post-hoc representations that Defendants have made in the severance brief that the Court required them to file during the course of this litigation (see, e.g., Defs.’ Suppl. Brief on Severability at 11), USCIS has not made any statement or given any other indication that it ever intended any of the Lesson Plan‘s provisions to function independently of the rest, see Sierra Club v. F.E.R.C., 867 F.3d 1357, 1366 (D.C. Cir. 2017). Cf. AFL-CIO v. N.L.R.B., No. 20-cv-0675, 2020 WL 3041384, at *19 (D.D.C. June 7, 2020) (observing that, by stating that it “would adopt each of these amendments individually, or in any combination, regardless of whether any of the other amendments were made[,]” the agency had specifically addressed severability in the challenged rule (internal citation omitted)).
Undaunted, Defendants assert that “[t]here is no doubt that USCIS would have issued the Lesson Plan” without the challenged provisions, because “USCIS
That said, this Court acknowledges the validity of Defendants’ concern that “completely vacating the Lesson Plan” with immediate effect “would leave USCIS without an up-to-date training document reflecting the latest legal developments, and instead force the agency to teach officers on materials that no longer reflect the law[.]” (Defs.’ Suppl. Brief on Severability at 16.) Of course, this Court has ruled that the current version of the training manual does not accurately reflect the law, and the inability to rely on an unlawful policy document is the ordinary impact of the vacatur of such agency action. Also, after more than a year of litigation over the particular provisions of the Lesson Plan that are specifically identified in Plaintiffs’ complaint, Defendants cannot reasonably complain that the Court‘s ruling catches them off guard.
The Court also finds it odd that USCIS argues both that a vacatur order would be substantially disruptive because it would create “a vacuum on guidance for any new developments in immigration law since 2017” (id. at 8), and that the provisions that the Court has found unlawful are discrete and severable, because the April 2019 version “has been included in several past iterations of the Lesson
Nor is this a case in which vacating the entire Lesson Plan would necessarily create confusion, see Chamber of Commerce v. S.E.C., 443 F.3d 890, 909 (D.C. Cir. 2006) (staying a vacatur order on this ground), or deprive one or more parties of significant rights, see Bauer v. DeVos, 332 F. Supp. 3d 181, 185 (D.D.C. 2018). The instant detailed opinion explains why various provisions of the Lesson Plan violate the INA, and thus should be sufficient to guide the agency‘s reconsideration and preparation of training materials that accurately describe the statutory and regulatory requirements. Furthermore, and importantly, the Court is ever mindful that, at bottom, the process of revising the Lesson Plan to conform with the INA and its regulations is quintessentially the agency‘s responsibility, and not this Court‘s. Cf. Regents, 140 S. Ct. at 1914 (noting that making “difficult decision[s]” concerning policy matters is the “agency‘s job“). This means that it would be less than prudent under the circumstances presented in this case for the Court to undertake its own amendment process, by identifying and striking only certain portions of the Lesson Plan; rather, given the integrated nature of the unlawful provisions and the lack of any indication that USCIS intended for any portion to be severable, the better course of action is for the Court to vacate the entire document, and thereby facilitate the agency‘s own decisionmaking processes concerning the necessary revisions. See, e.g., ACA Int‘l v. F.C.C., 885 F.3d 687, 708 (D.C. Cir. 2018).
3. Plaintiffs Are Entitled To New Credible Fear Determinations
Lastly, this Court has determined that vacatur of the Lesson Plan is not sufficient to redress Plaintiffs’ injuries fully, and that “specific injunctive relief” is necessary for each individual Plaintiff (Pls.’ Reply at 40), for several reasons.
First, the instant circumstances satisfy the familiar four-factor test for injunctive relief. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (holding that a grant of injunctive relief requires consideration of the plaintiff‘s irreparable injury, the adequacy of the remedies available at law, the parties’ balance of hardships, and the public interest). Plaintiffs’ sworn declarations establish the potential for irreparable injury, insofar as they detail the rapes, beatings, shootings, and family deaths that Plaintiffs experienced previously in their countries of origin and might experience again in the future if their asylum applications are not re-evaluated in accordance with the standards that the law prescribes, and if they are removed pursuant to such procedurally defective credible fear determinations. (See Exs. B-G to Pls.’ Mot., ECF No. 36-3, at 79-111.) It is also sufficiently clear that, “without an injunction, the plaintiffs previously removed will continue to live in fear every day, and the remaining plaintiffs are at risk of removal.” Grace I, 344 F. Supp. 3d at 146, aff‘d in relevant part, Grace II, 965 F.3d 883. In other words, an order vacating the Lesson Plan and deсlaring it unlawful would provide only partial relief to Julia and Sofia, who have already been removed, and to Kiakombua, Ana, and Emma, who seemingly remain subject to unlawful removal orders. The balance of the hardships favors injunctive relief for Plaintiffs’ benefit as well, because the government “cannot
Injunctive relief is also warranted because, given the Court‘s findings and conclusions regarding the unlawfulness of critical portions of the Lesson Plan and the need for vacatur of the entire document, “there is ‘only one rational course’ for the [a]gency to follow upon remand[,]” Berge v. United States, 949 F. Supp. 2d 36, 43 (D.D.C. 2013) (quoting Am. Fed‘n of Gov‘t Emps., AFL-CIO v. F.L.R.A., 778 F.2d 850, 862 n.19 (D.C. Cir. 1985)), which is to void the credible fear determination that were made with respect to each Plaintiff pursuant to the unlawful Lesson Plan, and to provide Plaintiffs with new credible fear determinations that do not apply the unlawful standards in that document. As noted above, Defendants’ argument that the Court lacks the authority to issue any kind of injunctive relief (see Defs.’ Mot. at 65) relies on an interpretation of the INA that has been rejected on numerous occasions, by all levels of the federal judiciary. See, e.g., R.I.L-R, 80 F. Supp. 3d at 184 (“[W]here a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of the statute, and
Notably, returning Plaintiffs Julia and Sofia (who have already been removed) to the status quo ante means that Defendants will have to facilitate the return of these Plaintiffs back to the United States, at no cost to Plaintiffs Julia and Sofia. See, e.g., Grace I, 344 F. Supp. 3d at 144 (holding that the Court has the authority to order the return of plaintiffs unlawfully removed, and doing so), aff‘d in relevant part, Grace II, 965 F.3d at 909. Consistent with this Court‘s Order, these Plaintiffs must be afforded every opportunity to meet with a properly trained USCIS asylum officer, and they must be interviewed in accordance with the standards and requirements of the INA and its implementing regulations. And they must not be made to fear the burden of having to find the means of making the journey back to the United States border, or having to incur the financial costs involved. Cf. Order, Grace v. Whitaker, No. 18-cv-01853, ECF No. 105, at 3 (Dec. 19, 2018) (ordering “defendants to bring back into the United States, at no expense to plaintiffs, any plaintiff who has been removed pursuant to an expedited removal order prior to this Order“).
With respect to Plaintiffs Kiakombua, Ana, and Emma, Defendants might opt to confirm (through the issuance of proper Notices to Appear) that these Plaintiffs have already cleared the credible fear hurdle,
V. CONCLUSION
The INA and the regulations that federal agencies have promulgated to govern the modern asylum application process plainly reflect “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands[.]”
As a result, this Court concludes that the parts of the Lesson Plan that conflict with the INA and related regulations—identified in Section IV.C, supra—must be DECLARED UNLAWFUL. Furthermore, because the unlawful parts are not severable from the remainder of the document, the Lesson Plan must be VACATED in its entirety, and the matter remanded to the agency for further consideration in light of this Court‘s opinion. In addition, as detailed in the accompanying Order, Defendants will be ENJOINED to void the credible fear determinations that were previously made with respect to each Plaintiff and to provide each Plaintiff with a new credible fear screening that does not rely in any respect on the unlawful policies in the vacated Lesson Plan.
DATE: October 31, 2020
Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
Notes
Defendants’ “Status Update on Mootness” (ECF No. 80) provides but one example of this muddled approach. In a document that purports to address the mootness of Plaintiffs’ claims, Defendants write:
The claims of the remaining two Plaintiffs, Sofia and Julia, are also moot because they have been removed, as Defendants have already explained. Additionally, Sofia and Julia no longer have standing separately for each claim she seeks to press and for form of relief sought. Sofia and Julia still need to have a live controversy as to them—i.e., that their alleged injuries would be cured by the Court vacating their credible fear determinations and ordering a new credible fear determination, based on one or more out of the nine challenged provisions being unlawful as applied to them. As previously explained, Sofia and Julia cannot identify what parts of the operative Lesson Plan will be applied to them, nor can they establish that they have a likelihood of receiving a negative credible fear determination from USCIS or from an immigration judge not following the Lesson Plan. Their claims are moot, and to the extent they are not, relief must be limited to the injuries Sofia and Julia can show (e.g., which of the nine challenged Lesson Plan provisions are injuring them).
(Defs.’ Mootness Notice at 4–5 (internal quotation marks, citations, and alterations omitted).) Each of these myriad assertions must be untangled from the others before it can be properly analyzed.