Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA O.A., et al. ,
Plaintiffs , v. Civil Action No. 18-2718 (RDM) DONALD J. TRUMP, et al. ,
Defendants. S.M.S.R. et al. ,
Plaintiffs , v. Civil Action No. 18-2838 (RDM) DONALD J. TRUMP, et al. ,
Defendants. MEMORANDUM OPINION
On November 9, 2018, the Attorney General and the Secretary of Homeland Security jointly issued an interim final rule adding “a new mandatory bar on eligibility for asylum for certain aliens who are subject to a presidential proclamation suspending or imposing limitations on their entry into the United States . . . and who enter the United States in contravention of such a proclamation.” Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934, 55,939 (Nov. 9, 2018) (“the Rule” or “the Interim Final Rule”). That same day, the President issued a proclamation suspending for a period of ninety days “[t]he entry of any alien into the United States across the international boundary between the United States and Mexico,” except by aliens “who enter[] the United States at a port of entry and properly present[] for inspection” and entries by “lawful permanent resident[s] of the United States.” Addressing Mass Migration Through the Southern Border of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 15, 2018) (“the Proclamation”). Since that proclamation expired, the President has issued two subsequent proclamations suspending entries across the southern border, except at a port of entry, for additional ninety-day periods. See Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 3,665 (Feb. 12, 2019); Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 21,229 (May 13, 2019). It is uncontested that together, these actions make aliens (with the sole exception of lawful permanent residents) ineligible for asylum if they enter the United States from Mexico outside a designated port of entry.
Plaintiffs in these consolidated cases are nineteen individuals from Honduras, El Salvador, Nicaragua, and Guatemala who entered the United States from Mexico outside ports of entry after November 9, 2018, and two nonprofit organizations that provide legal services to refugees. All but one of the individual plaintiffs seek asylum, and the remaining plaintiff was granted asylum during the pendency of this proceeding but fears revocation if the Rule is enforced, Dkt. 80 at 3. Together, Plaintiffs challenge the lawfulness of the Rule on multiple grounds. First and foremost, they contend that the Rule runs afoul of the Immigration and Nationality Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 et seq .), which declares that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . .) irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158. In other words, aliens have a statutory right to seek asylum regardless of whether they enter the United States at a designated port of entry, and Defendants may not extinguish that statutory right by regulation or proclamation.
Beyond that core challenge, Plaintiffs also argue that the Rule: (1) circumvents the statutorily-mandated process for promulgating “additional limitations and conditions” on eligibility for asylum, which authorizes the Attorney General and Secretary of Homeland Security to add limitations and conditions “by regulation,” 8 U.S.C. § 1158(b)(2)(C), but does not authorize the President to do so by proclamation; (2) violates the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), Pub. L. No. 110-457, 122 Stat. 5044 (2008), by depriving unaccompanied children of the right to seek asylum in a non- adversarial setting, see 8 U.S.C. § 1158(b)(3)(C); (3) is “arbitrary and capricious” in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); and (4) was promulgated without the required opportunity for notice and public comment, also in violation of the APA, 5 U.S.C. § 553. Some of the plaintiffs also contend that the Rule violates the INA’s expedited removal scheme, 8 U.S.C. § 1225(b), by mandating a negative credible fear determination for those aliens who cross between ports of entry.
Several motions are currently before the Court. Plaintiffs in both consolidated cases—
O.A. v. Trump
, Civ. No. 18-2718 (“
O.A
.”) and
S.M.S.R. v. Trump
, Civ. No. 18-2838
(“
S.M.S.R
.”)—have moved for summary judgment and to certify a class of all asylum seekers
who entered or will enter the United States after November 9, 2018 by crossing the southern
border, except at a designated port of entry.
See
Dkt. 51; Dkt. 52. Defendants, in turn, oppose
those motions and cross-move for summary judgment, arguing that the Court lacks subject-
matter jurisdiction; that Plaintiffs lack standing to sue; that Plaintiffs’ claims fail on the merits;
and that the Court should not certify a class.
See
Dkt. 66. Also pending before the Court are the
O.A
. and
S.M.S.R
. Plaintiffs’ earlier-filed motions for temporary and preliminary injunctive
relief, Dkt. 6; Mot. for Temp. Restraining Order, Dkt. 6,
S.M.S.R. et al. v. Trump et al.
(No. 18-
2838), which the Court held in abeyance after the United States District Court for the Northern
District of California issued a nationwide preliminary injunction eliminating any risk of
imminent injury to any of the plaintiffs in these actions.
See
Minute Entry (Dec. 21, 2018);
see
also E. Bay Sanctuary Covenant v. Trump
,
As explained below, the Court first holds that it has subject-matter jurisdiction, and that
Plaintiffs have Article III and zone of interests standing to challenge the Rule. The Court also
holds that the Rule (in conjunction with the Proclamation) is inconsistent with 8 U.S.C. § 1158.
Those three conclusions end the required inquiry: Because the Rule is contrary to law and must,
as a result, be set aside, 5 U.S.C. § 706(2)(A), the Court need not consider Plaintiffs’ alternative
legal challenges. Nor need the Court resolve the parties’ dispute about the propriety of
nationwide injunctions. As the D.C. Circuit has explained, “‘[w]hen a reviewing court
determines that agency regulations are unlawful, the ordinary result is that the rules are
vacated—not that their application to the individual [plaintiffs] is proscribed.’”
Nat’l Mining
Ass’n v. U.S. Army Corps of Eng’rs
,
I. BACKGROUND
Statutory and Regulatory Background
Asylum is a form of discretionary relief that allows an otherwise removable alien who
qualifies as a refugee to remain in the United States.
[1]
Asylum also creates a path to lawful
permanent resident status and citizenship and confers other benefits, including the right to work
in the United States and to receive certain forms of financial assistance from the federal
government.
See
The Refugee Act of 1980 (“1980 Act”), Pub. L. No. 96-212, 94 Stat. 102 (codified at 8
U.S.C. §§ 1157–59 (1980)), introduced the nation’s first “uniform and systematic asylum
procedure” and “created the framework for the current asylum process.” Ramji,
Legislating
Away
, 37 Stan. J. Int’l L. at 132. The 1980 Act charged the Attorney General with establishing
“a procedure for an alien physically present in the United States or at a land border or port of
entry, irrespective of such alien’s status, to apply for asylum” and authorized the Attorney
General to grant asylum in his discretion, provided that that the applicant was a refugee within
the meaning of the INA. 8 U.S.C. § 1158(a) (1980). At the same time the 1980 Act established
the asylum process, it amended the statutory scheme governing a related form of relief—
“withholding of deportation”—to remove the Attorney General’s discretion to decide whether to
grant that form of relief.
Cardoza-Fonseca
,
Accordingly, as of 1980, the INA included two related, but distinct, forms of relief
available to those subject to persecution in their country of origin: asylum and withholding of
deportation. “[O]ne of the Congress’ primary purposes” in enacting “the entire 1980 Act . . . was
to bring United States refugee law into conformance with the 1967 United Nations Protocol
Relating to the Status of Refugees (“1967 Protocol”), 19 U.S.T. 6223, T.I.A.S. No. 6577, to
which the United States acceded in 1968.”
Id.
at 436–37. The Protocol, in turn, incorporated by
reference the substantive provisions of the 1951 United Nations Convention Relating to the
Status of Refugees (“1951 Convention”).
See id
. at 429;
Sale v. Haitian Ctrs. Council, Inc.
, 509
U.S. 155, 169 n.19 (1993). Among other parallels, “the definition of ‘refugee’ that Congress
adopted” in the 1980 Act “is virtually identical to the one proscribed by . . . the [1951]
Convention.”
Cardoza-Fonseca
,
The next relevant amendment to the INA did not come until 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996). Among other changes, IIRIRA established two types of removal proceedings. Regular, or “formal,” removal proceedings allow aliens to challenge their removal in administrative proceedings with various procedural guarantees, including the rights to written notice of the charge of removability, to counsel, to appear at a hearing before an immigration judge and to present evidence, to appeal an adverse decision to the Board of Immigration Appeals (“BIA”), and to seek judicial review. 8 U.S.C. §§ 1229(a)(1), 1229a(b)(4); 8 C.F.R. §§ 1003.1(b), 1240.11(a)(2), 1240.15. An alien placed in formal removal proceedings may avoid removal by establishing, through this adversarial process, that she is eligible for asylum, withholding of deportation, or some other form of relief.
The second type of proceedings, called expedited removal, affords considerably less process to a subset of aliens—most notably, those arriving at the border and those who recently entered the United States without inspection. [2] Under expedited removal procedures, the Department of Homeland Security may remove an alien from the United States “without further hearing or review[,] unless the alien indicates either an intention to apply for asylum under [8 U.S.C. § 1158] or a fear of persecution” supporting a claim to withholding of removal. 8 U.S.C. § 1225(b)(1)(A)(i). If “the alien indicates either an intention to apply for asylum . . . or a fear of persecution, the [immigration] officer [is required to] refer the alien for an interview by an asylum officer,” who must determine whether the alien has a credible “fear of persecution.” Id. § 1225(b)(1)(A)(ii). For purposes of the asylum officer’s assessment, a credible fear of persecution means “that there is a significant possibility . . . that the alien could establish eligibility for asylum.” Id. § 1225(b)(1)(B)(v). [3] If the asylum officer determines that the alien has a credible fear, “the alien [is] detained for further consideration of the application for asylum,” id. § 1225(b)(1)(B)(ii), and is typically placed in formal removal proceedings. If, on the other hand, the asylum officer determines that the alien does not have a credible fear of persecution, “the officer shall order the alien removed from the United States without further hearing or review.” Id. § 1225(b)(1)(B)(iii)(I).
An alien who is ineligible for asylum or is denied asylum may apply for other forms of
relief, including withholding of removal in cases in which the alien can show “that it is more
likely than not that he or she would be persecuted on account of” a protected ground if removed
from the United States.
[4]
8 C.F.R. § 1208.16(b)(2);
see also
8 U.S.C. § 1231(b)(3). Withholding
of removal, accordingly, requires a more substantial showing than the “well-founded fear of
persecution” standard applicable in asylum cases,
see Kouljinski v. Keisler
,
IIRIRA also amended the asylum provision of the INA, adding language relevant to Plaintiffs’ challenge here. Although the 1980 Act required the Attorney General to establish procedures for an alien “physically present in the United States . . . , irrespective of such alien’s status , to apply for asylum,” 8 U.S.C. § 1158(a) (1980) (emphasis added), IIRIRA clarified that:
[a]ny alien who is physically present in the United States or who arrives in the United States ( whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international waters or United States waters), irrespective of such alien’s status , may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title [which addresses expedited removal].
8 U.S.C. § 1158(a) (emphasis added). In addition, IIRIRA added a number of restrictions and limitations on asylum. It precludes aliens from applying for asylum, for example, (1) “if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality . . .) in which the alien’s life or freedom would not be threatened,” id . § 1158(a)(2)(A); (2) if the alien cannot “demonstrate[] by clear and convincing evidence” that she filed her asylum application within 1 year after their date of arrival in the United States, subject to certain exceptions, id. § 1158(a)(2)(B); or (3) if the alien, again subject to certain exceptions, “previously applied for asylum and had such application denied,” id. § 1158(a)(2)(C).
Although the Attorney General’s authority to grant or to deny an asylum application had long been discretionary—subject only to the limitation, added in 1990, that “[a]n alien who ha[d] been convicted of an aggravated felony” could “not apply for or be granted asylum,” Immigration Act of 1990, Pub. L. No. 101–649, 104 Stat 4978 (codified at 8 U.S.C. § 1158(d))— IIRIRA added a number of further statutory limitations on the Attorney General’s discretion to grant relief. See 8 U.S.C. § 1158(b)(2). The Attorney General, for example, may not grant asylum to an alien who “participated in the persecution of any person,” who has “been convicted by a final judgment of a particularly serious crime,” or who poses “a danger to the security of the United States.” Id . § 1158(b)(2)(A)(i)–(ii), (iv). Finally, of particular relevance here, Congress granted the Attorney General authority to issue regulations “establish[ing] additional limitations and conditions, consistent with [8 U.S.C. § 1158,] under which an alien shall be ineligible for asylum.” Id. § 1158(b)(2)(C).
In general, an alien may apply for asylum in one of three ways: (1) if she is not in any kind of removal proceeding, she may file an affirmative application for asylum, see 8 U.S.C. § 1158(a)(1); 8 C.F.R. § 208.1(a)(1); (2) if she is subject to regular removal proceedings under 8 U.S.C. § 1229a, she may file a defensive application for asylum as a defense to removal, see 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 208.2(b); or (3) if she is subject to expedited removal proceedings under 8 U.S.C. § 1225, she may also file a defensive application for asylum as a defense to expedited removal, see 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 208.30(f). Special procedures, however, apply to unaccompanied minors. Under the TVPRA, an “unaccompanied alien child” that the Department of Homeland Security seeks to remove from the United States is entitled to the procedural protections afforded by formal—as opposed to expedited—removal proceedings, 8 U.S.C. § 1232(a)(5)(D), but is also entitled to present her claims in the first instance in a non-adversarial setting, see id. § 1158(b)(3)(C).
Challenged Actions
On November 9, 2018, the Attorney General and the Secretary of Homeland Security
promulgated the Interim Final Rule.
See
Rather than enact this regulatory change entirely through the Interim Final Rule, however, the Departments of Justice and Homeland Security and the President adopted the new policy in two steps. As the first step, the Attorney General and the Secretary of Homeland Security amended two regulations relating to the eligibility for asylum. As noted above, when Congress enacted IIRIRA, it granted the Attorney General—and, now, the Secretary of Homeland Security—authority to establish, by regulation, “additional limitations and conditions, consistent with [8 U.S.C. § 1158], under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). The first regulation the Rule amended deals with eligibility for asylum as a general matter, applicable irrespective of how an alien applies for asylum. See 8 C.F.R. § 208.13 (“Establishing asylum eligibility”). Among other things, that regulation sets forth certain “mandatory” grounds for denial of asylum applications. Id. § 208.13(c). The Rule adds the following “[a]dditional limitation on eligibility for asylum” to the existing list of mandatory grounds for denial:
For applications filed after November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other presidential order suspending or limiting entry of aliens along the southern border with Mexico that is issued pursuant to [8 U.S.C. § 1185(a)(1) or 8 U.S.C. § 1182(f)] on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order.
In addition, and consistent with Defendants’ “anticipat[ion] that a large number of aliens
who would be subject to a proclamation-based ineligibility bar would be subject to expedited-
removal proceedings,”
As the second step in adopting the regulatory change, the President issued a proclamation
entitled “Addressing Mass Migration Through the Southern Border of the United States,” 83
Fed. Reg. 57,661, on the same day the Rule was promulgated.
[5]
Although entry into the United
States outside of a designated port of entry is already unlawful, 8 U.S.C. § 1325(a), the
Proclamation declares that “[t]he entry of any alien into the United States across the international
boundary between the United States and Mexico is hereby suspended and limited” for a period of
ninety days or until “an agreement permits the United States to remove aliens to Mexico”
pursuant to 8 U.S.C. § 1158(a)(2)(A).
All agree that, taken together, the Rule and the Proclamation create a categorical bar to asylum for aliens who have entered the United States from Mexico outside a port of entry after November 9, 2018.
East Bay Sanctuary Covenant Litigation
The same day the Rule and the Proclamation were issued, a group of nonprofit
organizations that provide legal and social services to immigrants filed suit in the Northern
District of California, challenging the Rule and seeking a temporary restraining order.
See
Complaint,
E. Bay Sanctuary Covenant v. Trump
, No. 18-6810 (“
East Bay
”) (N.D. Cal. Nov. 9,
2018), Dkt. 1; Motion for Temporary Restraining Order,
E. Bay Sanctuary Covenant v. Trump
,
No. 18-6810 (N.D. Cal. Nov. 13, 2018), Dkt. 8. On November 19, 2018, following expedited
briefing and a hearing, the district court granted a nationwide temporary restraining order barring
implementation of the Rule until December 19, 2018, when that court was scheduled to hold a
hearing on the plaintiffs’ motion for a preliminary injunction.
E. Bay Sanctuary Covenant v.
Trump
,
Ninth Circuit denied that motion.
See E. Bay Sanctuary Covenant v. Trump
,
This Proceeding
The day after the Northern District of California issued the temporary restraining order in East Bay I , a group of asylum seekers who crossed the southern border outside ports of entry after November 9, 2018, brought suit in this Court. See Complaint for Declaratory and Injunctive Relief, O.A. v. Trump , No. 18-2718 (“ O.A .”) (D.D.C. Nov. 20, 2018), Dkt. 1. The next day, November 21, 2018, those plaintiffs moved for a temporary restraining order and preliminary injunction. See Dkt. 6. Before briefing was complete on those motions, a second group of individual plaintiffs—this time joined by two organizations, the Capital Area Immigrants’ Rights Coalition (“CAIR Coalition”) and Refugee and Immigrant Center for Education and Legal Services, Inc. (“RAICES”)—brought suit, see Complaint, S.M.S.R. v. Trump , No. 18-2838 (“ S.M.S.R. ”) (D.D.C. Dec. 3, 2018), Dkt. 3, and also moved for a temporary restraining order and preliminary injunction, see id. , Dkt. 6. Unlike the original O.A. complaint, the S.M.S.R. complaint included class allegations. See id. , Dkt. 3 at 43–44 (Compl. ¶¶ 175–77).
The Court held a hearing on the pending motions on December 17, 2018. See Minute Entry (Dec. 17, 2018). At the conclusion of the hearing, the Court noted that a nationwide temporary restraining order was then in effect; that the Ninth Circuit had declined to stay that order pending appeal; that a stay application was pending before the Supreme Court; and that the U.S. District Court for the Northern District of California was likely to decide in the next two days whether to grant a nationwide preliminary injunction. Dkt. 41 at 123–25 (Dec. 17, 2018 Hrg. Tr.). In light of this state of affairs and the fact that Plaintiffs would not face any risk of imminent injury while an injunction issued by another court remained in effect, the Court directed that the parties meet and confer about whether to proceed by way of expedited briefing on cross-motions for summary judgment rather than motions for preliminary relief. Id . (Dec. 17, 2018 Hrg. Tr.). The Court also consolidated the O.A. and S.M.S.R . cases and set December 18, 2018, as the deadline for Plaintiffs to amend their complaints. See Minute Order (Dec. 17, 2018); S.M.S.R ., Minute Order (Dec. 17, 2018). Both sets of plaintiffs timely amended and joined additional individual plaintiffs, and the O.A. Plaintiffs added class allegations to their complaint. See Dkt. 39 ( S.M.S.R. Amend. Compl.); Dkt. 40 ( O.A. Amend. Compl.). Following a telephonic status conference on December 21, 2018, the Court set a schedule for expedited briefing on cross-motions for summary judgment and class certification. See Minute Entry (Dec. 21, 2018). Pending resolution of those motions, and barring any intervening need to act, the Court has held the O.A. and S.M.S.R. motions for temporary restraining orders and preliminary injunctions in abeyance. Id .
The parties’ cross-motions for summary judgment and Plaintiffs’ motions to certify a class, Dkt. 51; Dkt. 52; Dkt. 66, along with Plaintiffs’ previously-filed motions for preliminary relief, Dkt. 6; Mot. for Temp. Restraining Order, Dkt. 6, S.M.S.R. et al. v. Trump et al. (No. 18- 2838), are currently before the Court.
II. LEGAL STANDARD
In the normal course, summary judgment may be granted “if the pleadings, the discovery
and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as matter of law.”
Air
Transp. Ass’n. of Am., Inc. v. Nat’l Mediation Bd.
,
III. ANALYSIS
Plaintiffs raise a host of challenges to the Rule, principally under the APA, and they seek to proceed on behalf of a nationwide class of “[a]ll noncitizen asylum-seekers who have entered or will enter the United States through the southern border but outside ports of entry after November 9, 2018,” Dkt. 52-13 at 1; Dkt. 51-16 at 1. Among other things, they contend that the Rule violates the INA’s mandate that an alien present in the United States is entitled to seek asylum “whether or not” the alien arrived in the United States “at a designated port of arrival,” and “irrespective of [the] alien’s status.” 8 U.S.C. § 1158(a)(1). They further contend that the Rule violates a range of laws designed to protect the rights of aliens and unaccompanied alien children to seek asylum and the right of the public to participate in the regulatory process. Before reaching any of these questions, however, the Court must address a series of threshold issues, including statutory jurisdiction, Article III standing, and zone of interests standing. After resolving those issues, the Court will turn to the merits. Finally, the Court will consider the appropriate remedy and Plaintiffs’ motions for class certification.
Threshold Issues
1. Statutory Jurisdiction
Defendants devote the lion’s share of their briefing to the question of this Court’s statutory jurisdiction over the individual plaintiffs’ claims. [6] In Defendants’ view, the individual plaintiffs will have an opportunity to challenge the Rule if they are eventually subject to final orders of removal; they cannot, however, short-circuit the process that Congress established for judicial review in the courts of appeals only after issuance of a final order of removal. The individual plaintiffs are bound to follow that process, Defendants contend, because all but one of the individual plaintiffs are now in full removal proceedings, and the one plaintiff who is no longer in removal proceedings has received asylum and, thus, no longer has standing to challenge the Rule. As a result, according to Defendants, each of the individual plaintiffs with a live claim is subject to two relevant statutory provisions: 8 U.S.C. § 1252(a)(5), which mandates that “a petition for review filed with an appropriate court of appeals [pursuant to the Hobbs Act] shall be the sole and exclusive means for judicial review of an order of removal,” and 8 U.S.C. § 1252(b)(9), which consolidates “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” into “judicial review of a final order” of removal. As Defendants read these provisions, this Court lacks statutory jurisdiction to consider any challenge to an agency action (1) that occurs in the course of removal proceedings, or (2) that the individual plaintiffs could challenge in those proceedings. Dkt. 22 at 27; see also Dkt. 66 at 34–35. On this telling, the individual plaintiffs
brought their challenge in the wrong place (in this Court, as opposed to a court of appeals) and at the wrong time (prior to receiving any final order of removal).
Plaintiffs, for their part, understand the nature of their lawsuit and the judicial review provisions of the INA in very different terms. As they explain it, this suit does not challenge any order of removal, nor does it “arise from” any removal proceeding. Rather, they challenge the validity of the Rule on its face, without regard to any particular application, based on a host of substantive and procedural flaws in the rulemaking. Nor, in Plaintiffs’ view, is the Rule itself inextricably tied to removal proceedings, as Defendants contend. To the contrary, the Rule affects anyone seeking asylum, whether the asylum seeker applies affirmatively—that is, outside of any removal proceeding—or defensively—that is, within the confines of either a formal or expedited removal proceeding. Indeed, Plaintiffs argue, many of the individual plaintiffs “were in neither expedited nor ordinary removal proceedings when they filed this suit.” See, e.g. , Dkt. 52-1 at 24–25 & n.8. As a result, as Plaintiffs see it, § 1252’s channeling rules, which apply only to claims arising from actions taken and decisions rendered in removal proceedings, have nothing to do with this case.
But even if that view of § 1252’s jurisdictional provisions is incorrect, Plaintiffs contend that this Court has jurisdiction to consider at least some of the individual plaintiffs’ claims under 8 U.S.C. § 1252(e)(3), which authorizes judicial review in this Court to determine whether “any regulation issued to implement” the expedited removal provision of the INA is “consistent with the applicable provisions” of the statute. Defendants concede that at least one of the individual plaintiffs, A.V., was in expedited removal proceedings at the time the original complaint and amended complaint were filed. See Dkt. 22 at 29; Dkt. 90 at 11 (Defs’ SUMF ¶ 46). It was only after suit was brought that the government inexplicably moved her from expedited removal to full removal—without conducting an initial credible fear interview—on the eve of oral argument. This matters, according to Plaintiffs, because jurisdiction must be assessed at the time an action is commenced. And, finally, even putting that principle aside, Plaintiffs argue that two individual plaintiffs—an unaccompanied minor who is entitled to present his asylum request in the first instance to an asylum officer outside the context of full removal proceedings and a plaintiff who received asylum, but fears that the government will revoke that status if the Rule is allowed to stand—are not subject to full removal proceedings (and thus are not subject to the channeling rules Defendants invoke) even to this day.
“Within constitutional bounds, Congress decides what cases the federal courts have
jurisdiction to consider.”
Bowles v. Russell
,
a. 8 U.S.C. 1252(a)(5)
Defendants do not contend that § 1252(a)(5), standing alone, divests this Court of jurisdiction but, rather, argue that it does so in conjunction with § 1252(b)(9). A close reading of § 1252(a)(5), however, reveals that it adds little to Defendants’ argument.
The Court starts, as it must, with the statute’s text. See BP Am. Prod. Co. v. Burton , 549 U.S. 84, 91 (2006). Section 1252 begins with § 1252(a)(1), which provides that “[j]udicial review of a final order of removal . . . is governed only by [the Hobbs Act, 28 U.S.C. §§ 2341– 51], except as provided in subsection (b) and except that the court [of appeals] may not order the taking of additional evidence under [28 U.S.C. § 2374(c)].” 8 U.S.C. § 1252(a)(1) (emphasis added). Under the Hobbs Act, in turn, the federal courts of appeals—and not the district courts—are vested with exclusive jurisdiction to determine “the validity of” and to enjoin or to set aside, “in whole or in part, the order of the agency” at issue. 28 U.S.C. § 2349. As a result, one need read no further than the first sentence of § 1252 to find that the “only” way to obtain judicial review of a final order of removal is by filing a petition in the appropriate court of appeals. 8 U.S.C. § 1252(a)(1).
Section 1252(a)(5) clarifies that the § 1252(a)(1) process is the “exclusive means of review” of an order of removal. 8 U.S.C. § 1252(a)(5). That provision provides:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and [the Mandamus and All Writs Acts], a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal [with the exception of expedited removal orders]. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms ‘judicial review’ and ‘jurisdiction to review’ include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, [the Mandamus and All Writs Act], and review pursuant to any other provision of law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5). Taken together, § 1252(a)(1) and § 1252(a)(5) establish a comprehensive rule: Section 1252(a)(1) defines the only means for obtaining “[j]udicial review of a final order of removal,” 8 U.S.C. § 1252(a)(1), and § 1252(a)(5) provides that “a petition for review filed with an appropriate court of appeals” is “the sole and exclusive means for judicial review of an order of removal,” 8 U.S.C. § 1252(a)(5). An aggrieved party cannot circumvent the Hobbs Act procedure by filing a petition for a writ of habeas corpus, a mandamus petition, an All Writs Act action, or any other statutory or nonstatutory claim in federal district court. The exclusive means of obtaining judicial review of an order of removal is the Hobbs Act. That much is clear.
The work that § 1252(a)(5) does in clarifying that the Hobbs Act remedy is exclusive and not subject to circumvention, however, does nothing to advance the inquiry here. Congress did not declare that any legal challenge relating to the immigration laws and regulations must be brought under the Hobbs Act. Instead, at least as far as § 1252(a)(1) and § 1252(a)(5) go, Congress provided an “exclusive means for judicial review of an order of removal .” 8 U.S.C. § 1252(a)(5) (emphasis added); see also 8 U.S.C. § 1252(a)(1) (providing procedure for “[j]udicial review of a final order or removal”). Here, however, Plaintiffs do not seek review of an “order or removal,” nor do they challenge anything that has occurred in the course of a removal proceeding. Rather, they bring a facial challenge to the validity of a regulation of general applicability based on the administrative record generated in the rulemaking. The plain language of § 1252(a) and § 1252(a)(5) makes clear that those provisions do not, standing alone, apply to Plaintiffs’ challenge.
This reading of § 1252(a)(5) invites an obvious retort: If § 1252(a)(1) provides that
judicial review of a final order of removal is subject to review “only” under the Hobbs Act, what
function does § 1252(a)(5) perform? The answer to that question is found in the statutory history
of the INA. At one time, a petition for a writ of habeas corpus provided the sole means of
challenging the lawfulness of an deportation order.
[7]
See Heikkila v. Barber
,
Congress did not enact § 1252(a)(5) until 2005, following the Supreme Court’s decision
in
INS v. St. Cyr
,
a removal proceeding. Rather, it merely reaffirms that Congress has provided a single means for obtaining judicial review of removal orders.
Because Plaintiffs do not seek review of a removal order—or, indeed, of any decision or action taken in the course of a removal proceeding—§ 1252(a)(5) has no bearing on the Court’s statutory jurisdiction.
b. 8 U.S.C. § 1252(b)(9)
Defendants rely primarily on § 1252(b)(9), which channels “[j]udicial review of all
questions of law and fact . . . arising from any action taken or proceeding brought to remove an
alien” into “judicial review of [the] final order” of removal. Courts have, at times, described
§ 1252(b)(9) as “‘vise-like’ in grip[,] . . . swallow[ing] up virtually all claims that are tied to
removal proceedings.”
J.E.F.M. v. Lynch
,
The Court begins, once again, with the statutory text, see BP Am. Prod. Co. , 549 U.S. at 91, which provides in relevant part:
(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection (a)(1), the following requirements apply:
. . . .
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under [28 U.S.C. § 2241] or any other habeas provision, by [28 U.S.C. § 1361 (mandamus) or § 1651 (All Writs Act)], or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9). The Supreme Court has characterized § 1252(a)(9) “as a ‘zipper clause,’”
which “consolidate[s] ‘judicial review’ of immigration proceedings into one action in the court
of appeals.”
St. Cyr
,
The first question focuses on the import of § 1252(b)’s introductory clause. As the Supreme Court observed in St. Cyr , this clause limits the reach of § 1252(b)(9); it applies “only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” Id. (quoting § 1252(b)(9)). Read literally, that language might dispose of Defendants’ § 1252(b)(9) defense for precisely the same reason that § 1252(a)(5) does not apply: Plaintiffs do not seek review of “an order of removal.” But, as the St. Cyr dissent explains, that reading of the statute proves too much and would, among other things, render § 1252(b)(9) meaningless. Id . at 332 (Scalia, J., dissenting). That is, if § 1252(b)(9) applies only to the review of final orders of removal, what work is done by its channeling of “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien” into review of the “final order” of removal? 8 U.S.C. § 1252(b)(9).
The answer to that question is relatively straightforward: If an alien subject to a removal
proceeding wants to challenge “any action taken” to “remove” her from the United States, she
may do so only by seeking “judicial review of [the] final order” of removal.
See St. Cyr
, 533
U.S. at 332 (Scalia, J., dissenting). The zipper clause applies “[w]ith respect to review of an
order of removal,”
id.
at 313 (majority opinion), because it folds all precedent challenges
“arising from” the removal “proceeding” or “action taken . . . to remove [the] alien” into review
of the final “order of removal,” 8 U.S.C. § 1252(b)(9). Although offered by the
St. Cyr
dissent,
that reading of the statute is not inconsistent with the majority’s conclusion that actions that are
not
ever
subject to judicial review under § 1252(a)(1) are also not subject to § 1252(b)(9)’s
channeling rule,
St. Cyr
,
The second question focuses on the meaning of the phrase “arising from any action taken
or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9). The
Supreme Court recently considered the meaning of that phrase in
Jennings v. Rodriguez
, 138 S.
Ct. 830 (2018), and
Nielsen v. Preap
,
As Justice Alito explained for the
Jennings
plurality, “when confronted with capacious
phrases like ‘arising from,’” the Court has “eschewed ‘uncritical literalism’ leading to results that
‘no sensible person could have intended.’”
Having recognized that the phrase “arising from” does not sweep in every action or
decision connected in any way with the removal process, neither
Jennings
nor
Preap
endeavored
to announce a test that would govern in all cases. The Court did, however, hold in both cases
that § 1252(b)(9) did not “present a jurisdictional bar” because the respondents in those cases (1)
were “not asking for review of an order of removal;” (2) were “not challenging the decision to
detain them in the first place or to seek removal;” and (3) were “not even challenging any part of
the process by which their removability will be determined.”
Jennings
,
Against the backdrop of St. Cyr , AADC , Preap , and Jennings , the Court concludes that § 1252(b)(9) does not divest this Court of jurisdiction to adjudicate individual plaintiffs’ claims for several reasons:
First, the plain language of § 1252(b)(9) applies only to claims arising from “any
action
taken
or
proceeding brought
to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9)
(emphasis added). In
Jennings
, the concurrence concluded (and the plurality assumed) that
detention typically “is an ‘action taken . . . to remove’ an alien.”
Here, in contrast, Plaintiffs do not challenge any aspect of the removal process. They do
not challenge or seek to set aside an order of removal, a decision to initiate removal proceedings,
the rejection of any defensive asylum claim, or a detention order. Rather, they bring a series of
facial challenges to a regulation that applies equally to affirmative and defensive applications for
asylum, seeking to set aside the regulation itself.
[8]
The challenged Rule is not an “action
taken . . . to remove an alien from the United States,” and was not promulgated as part of a
removal “proceeding.” 8 U.S.C. § 1252(b)(9). Just as it was “implausible” in
AADC
to construe
“the mention of three discrete events along the way the road to deportation” in § 1252(g) as “a
shorthand way of referring to all claims arising from deportation proceedings,”
Second, for similar reasons, this is not a case in which Plaintiffs seek judicial review of a
question of law or fact “arising from” an action taken or proceeding brought to remove an alien.
8 U.S.C. § 1252(b)(9). Even assuming that the individual plaintiffs’ removal proceedings, and
not the challenged Rule, are the “action[s] taken . . . to remove” them for purposes of §
1252(b)(9), the relevant question is “whether the legal questions in this case
arise from
such an
action,”
Jennings
,
Defendants’ attempts to sidestep this clear textual limitation are unavailing. In
Defendants’ view, § 1252(b)(9) divests the district courts of jurisdiction to adjudicate “all issues
arising from removal proceedings
or that can be raised in those proceedings
.” Dkt. 22 at 27
(emphasis added);
see also
Dkt. 66 at 31. Because the individual plaintiffs are now in removal
proceedings and
could
seek to bring their procedural and substantive challenges to the Rule in
those individual proceedings, Defendants contend that they are obligated to do so. But, even
aside from the fact that an immigration judge lacks the authority to set aside a regulation
promulgated by the Attorney General and the Secretary of Homeland Security,
see Jafarzadeh
,
AADC
,
Jennings
, and
Preap
all make clear that the phrase “arising from” cannot be
divorced from the terms it modifies, thereby transforming a defined restriction on § 1331
jurisdiction into an amorphous limitation on most, if not all, APA review of immigration rules.
As the
Jennings
plurality explained, the phrase “arising from” appears in both § 1252(b)(9) and
§ 1252(g)—and if courts must “read th[at] language” in § 1252(g) “to refer to just th[e] three
specific actions” listed in § 1252(g), courts must read § 1252(b)(9) in a similar manner. 138 S.
Ct. at 840–41 (plurality opinion). True, the specific actions listed in § 1252(b)(9)—“any action
taken or proceeding brought to remove an alien from the United States”—are more expansive
than those listed in § 1252(g)—a “decision or action . . . to commence proceedings, adjudicate
cases, or execute removal orders against any alien.” But the operative phrase—“arising from”—
must mean the same thing in both subsections,
see Gustafson v. Alloyd Co.,
Third, consideration of other portions of § 1252 confirms that Congress did not intend § 1252(b)(9) to sweep in the sort of APA challenges to a rulemaking that Plaintiffs bring here. Most notably, § 1252(b)(4)(A) specifies that the record in cases governed by §1252(a) and § 1252(b)(9) “shall” consist of “only . . . the administrative record on which the order of removal is based .” 8 U.S.C. § 1252(b)(4)(A) (emphasis added). Although that record might have some bearing on an individual plaintiff’s standing to sue in any particular case, it has nothing to do with the challenges Plaintiffs have brought in this case. Instead, the relevant record here consists of the materials the Attorney General and the Secretary of Homeland Security considered in deciding whether to issue the Rule and in considering whether to invoke the APA’s exceptions to the usual notice-and-comment and advanced-publication requirements. Without that record, which § 1252(b)(4)(A) precludes the courts of appeals from considering, it is difficult to fathom how meaningful judicial review of individual plaintiffs’ claims could occur. Similarly, § 1252(b)(4) sets forth the governing standards of review, which treat “administrative findings of fact” as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); treat “a decision that an alien is not eligible for admission” as “conclusive unless manifestly contrary to law,” id. § 1252(b)(4)(C); and accord “conclusive” weight to “the Attorney General’s discretionary judgment whether to grant” asylum to an applicant “unless manifestly contrary to the law and an abuse of discretion,” id . § 1252(b)(4)(D). These standards, unique to the removal process, would leave no room for the courts of appeals to evaluate the lawfulness of the Rule under APA standards.
Fourth, the Supreme Court has recognized—in similar circumstances and interpreting a
similar statutory provision—that district courts have jurisdiction over “general collateral
challenges to [unlawful] practices and policies used by [immigration authorities].”
McNary v.
Haitian Refugee Ctr.
,
McNary
premised its holding on two relevant considerations, both of which apply in the
present context with equal or greater force. First, and most significantly, the Supreme Court
focused on the words of the jurisdiction-limiting provision, which applied only to judicial review
“‘of
a determination
respecting
an application
’ for SAW status,” and which channeled only
“‘judicial review of
such a denial
’” into the Hobbs Act procedures for reviewing final exclusion
or deportation orders.
Id.
at 492 (quoting 8 U.S.C. § 1160(e)(1) and (e)(3)). Like the provision
at issue in
McNary
, § 1252(b)(9) applies to challenges to specific actions—that is, “any
action
taken
or
proceeding brought
to remove an alien from the United States,” 8 U.S.C. § 1252(b)(9)
(emphasis added)—and not to challenges of the type Plaintiffs press here.
[9]
Jafarzadeh
, 270 F.
Supp. 3d at 309. Second, the Supreme Court stressed that the statutory scheme at issue in
McNary
limited review to the “administrative record,” and specified that “‘the findings of fact
and determinations contained in such record shall be conclusive unless the applicant can
establish abuse of discretion or that the findings are directly contrary to clear and convincing
facts contained in the record considered as a whole.’”
McNary
,
The D.C. Circuit’s “cases interpreting
McNary
hew to [the] distinction between collateral
and particularized claims” and hold that similar jurisdiction-limiting provisions “only bar
claimants from circumventing statutory provisions that give appellate courts jurisdiction to hear
their . . . challenges.”
Gen. Elec. Co.
,
Adopting Defendants’ position here “could” deprive some or all of the individual
plaintiffs of “meaningful judicial review.”
Thunder Basin Coal Co
.,
Plaintiffs’ challenges are also “wholly collateral,”
Free Enter. Fund
,
Finally, for similar reasons, Plaintiffs’ challenges “are also outside the . . . competence
and expertise” of asylum officers, immigration judges, and the BIA.
Free Enter. Fund
, 561 U.S.
at 478. Nothing within the expertise of these decisionmakers will have any bearing on the claims
Plaintiffs assert. To the contrary, because Plaintiffs challenge the Rule—and not its
implementation—the relevant facts, expert judgments, and theory of statutory interpretation that
the Court must review reside in the Administrative Record and in the Rule itself.
See SEC v.
Chenery Corp
.,
For all of these reasons, the Court concludes that it has federal question jurisdiction over the individual plaintiffs’ claims under 28 U.S.C. § 1331, and that nothing in § 1252(a)(5) or § 1252(b)(9) divests this Court of that jurisdiction.
c. 8 U.S.C. § 1252(e)(3)
The parties have also devoted considerable attention to whether the Court has jurisdiction over at least some of the individual plaintiffs’ claims, in any event, under 8 U.S.C. § 1252(e)(3). That provision confers original jurisdiction on the United States District Court for the District of Columbia to review “determinations” made in the implementation of the expedited removal provisions of the INA, including jurisdiction to decide “whether . . . any regulation issued to implement [the expedited removal provision] is . . . in violation of law.” 8 U.S.C.
§ 1252(e)(3)(A). Any such challenge must be brought “no later than 60 days after the date the
challenged . . . regulation is first implemented,”
id.
§ 1252(e)(3)(b), and the court may not
“certify a class under Rule 23,”
id.
§ 1252(e)(1)(B). Section 1252(e)(3) is potentially relevant
here because the Rule amends both the general regulation applicable to asylum eligibility and the
regulation specifically applicable in expedited removal proceedings.
See
According to Defendants, § 1252(e)(3) does not provide this Court with jurisdiction
because none of the individual plaintiffs are currently in expedited removal proceedings. Dkt. 81
at 2–3. That contention, however, disregards the maxim that, at least for cases originally filed in
federal court, subject matter jurisdiction “depends upon the state of things at the time the action
is brought,”
Mollan v. Torrance
,
Although the parties dispute whether a number of the individual plaintiffs (D.R., P.R., G.R., L.C.V.R., C.S.C.C., R.G.G., N.A.G.A., K.P.P.V., R.D.P.V., and Y.A.L.P.) remained in expedited removal proceedings on December 18, 2018—the day the O.A. and S.M.S.R. Plaintiffs filed their amended complaints—Defendants concede that at least one plaintiff, A.V., was in expedited removal proceedings until at least May 24, 2019. [11] See Dkt. 90 at 11 (Defs’ SUMF ¶ 46) (“After entering the United States on November 11, 2018, Plaintiff A.V. was issued a Notice and Order of Expedited Removal under 8 U.S.C. § 1225(b)(1) on November 12, 2018.”); Dkt. 22 at 29; Dkt. 66 at 19. Indeed, as of May 29, 2019—the day the Court held oral argument—“the government had not notified either A.V. or [her counsel] that she had been issued a Notice to Appear and placed into ordinary removal proceedings.” Dkt. 80-1 at 4 (Walsh Decl. ¶ 15). Thus, on the day A.V. filed suit and on the day she filed her amended complaint, she was in expedited removal proceedings under § 1225.
Defendants do not take issue with the rule that statutory jurisdiction is, in the usual
course, decided based on the facts as they existed at the time the complaint or amended
complaint was filed. That rule, moreover, is entirely sensible. It would hardly promote “the just,
speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, for
example, for one court—properly vested with statutory jurisdiction—to spend weeks, months, or
years adjudicating a case, only to yield jurisdiction to an entirely different court based on
intervening events, and for the second court to need to start from square one. Departing from the
established rule would also invite forum shopping and other mischief, at least to the extent that
one or more of the parties to the litigation is able to affect the court’s statutory jurisdiction based
on their post-complaint actions. The usual rule, moreover, dates back to the early days of the
republic,
see Mollan
,
Defendants argue that A.V.’s claims do not implicate that usual rule because she is no longer in expedited removal proceedings and, thus, will never receive a “‘determination’ under section 1225(b).” Dkt. 81 at 10. That fact, in Defendants’ view, does more than alter the initial jurisdictional terrain—it means that A.V. will never be subject to a “determination” under the expedited removal provision, and it means that the Court cannot afford her any relief with respect to a “determination” ordering her expedited removal. Id . (quoting 8 U.S.C.
§ 1252(e)(3)). In other words, according to Defendants, the government’s decision to move A.V. from expedited to full removal proceedings has “mooted” her right to invoke this Court’s jurisdiction under § 1252(e)(3). That contention is flawed in a number of respects.
First, Defendants’ argument misunderstands the mootness doctrine. It is a claim, and not jurisdiction, that can become moot based on changed circumstances, and, here, A.V.’s claim is premised on the APA, not on § 1252(e)(3). To the extent Defendants implicitly disagree, they fail to identify any feature of § 1252(e)(3) suggesting that it provides a cause of action, much less an exclusive cause of action for claims brought challenging implementation of the expedited removal statute.
Second, to the extent Defendants contend that § 1252(e)(3) vests this Court with
jurisdiction only after the Department of Homeland Security makes a “determination” respecting
expedited removal and that, because A.V. is no longer in expedited removal proceedings, this
predicate will never be satisfied, they misread the statute. The language of § 1252(e)(3) is plain:
it applies to both “judicial review of determinations” made under the expedited removal
provision
and
to judicial review of the “implementation” of that provision.
[12]
Any suggestion that
review is nonetheless unavailable unless and until the Department makes a final determination of
expedited removal is both unsupported by the text and at odds with the fact that a challenge must
be brought within sixty days of the “first implement[ation]” of a challenged regulation,
see Am.
Immigration Lawyers Ass’n v. Reno
,
Third, Defendants’ argument proves too much. At oral argument, counsel conceded that, under Defendants’ reading of the statute, this Court would lose jurisdiction under § 1252(e)(3) if the government moves the plaintiff from expedited to full removal proceedings—up to the moment the Court enters final judgment. Dkt. 79 at 58–59 (May 29, 2019 Hrg. Tr.). That reading of the statute would attribute to Congress an intent to empower the government to avoid an unfavorable decision at any time, so long as the government acts before the Court enters final judgment. Considered against the backdrop of the usual rule, which fixes statutory jurisdiction at the time the complaint is filed, that contention is a step too far. There is no reason to believe that Congress intended to cede to the government the unique capacity to shift fora at its whim.
Notwithstanding these problems with Defendants’ argument, the Court is unpersuaded that § 1252(e)(3) applies here, for essentially the same reasons that it is unpersuaded that § 1252(a)(5) and § 1252(b)(9) apply. Most importantly, § 1252(e)(3) is about challenges to expedited removal orders and the implementation of the expedited removal provisions that Congress enacted in IIRIRA. This case, in contrast, presents neither a challenge to a removal order nor a challenge to the statutory or regulatory system for expedited removal. Rather, as explained in greater detail above, Plaintiffs assert a facial challenge to a rule governing eligibility for asylum, whether sought in a defensive or affirmative application. That is why § 1252—as a whole—does not apply to Plaintiffs’ challenges, and it is why the Court has statutory jurisdiction. But, even if Defendants were correct that § 1252 had some bearing on this case, the bottom line would be the same. That is because § 1252(e)(3) sweeps, if anything, more broadly than § 1252(a)(5) and § 1252(b)(9)—it does not apply merely to removal proceedings and actions taken to remove an alien, but to the implementation of the expedited removal provisions of IIRIRA—and the government’s post-complaint decision to move A.V. from expedited to full removal proceedings would not divest the Court of whatever jurisdiction it had at the time the complaints were filed.
* * *
The Court, accordingly, concludes that it has statutory jurisdiction under 28 U.S.C. § 1331 to consider the Plaintiffs’ claims, because § 1252 does not divest the Court of jurisdiction over the individual plaintiffs’ claims and because Defendants raise no statutory, jurisdictional defense to the organizational plaintiffs’ claims.
2.
Article III Standing and Zone of Interests Standing
Defendants next argue that the organizational plaintiffs lack Article III and prudential (or
“zone of interests”) standing and that the individual plaintiffs lack Article III standing.
[13]
“Because Article III limits federal judicial jurisdiction to cases and controversies,
see
U.S. Const.
art. III, § 2, federal courts are without authority” to decide disputes unless the plaintiff has
standing—that is, “‘a personal stake in the outcome of the controversy [sufficient] to
warrant
his
invocation of federal-court jurisdiction.’”
Chamber of Commerce v. EPA
, 642 F.3d
192, 199 (D.C. Cir. 2011) (quoting
Summers v. Earth Island Inst.
,
a. Organizational Plaintiffs
The Court begins with the organizational plaintiffs. An organization “can assert standing
on its own behalf, on behalf of its members or both.”
Equal Rights Ctr. v. Post Props., Inc.,
633
F.3d 1136, 1138 (D.C. Cir. 2011). Here, the organizational plaintiffs rely on the first approach,
“which requires [them], like an individual plaintiff, to show ‘actual or threatened injury in fact
that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court
decision.’”
Id.
(quoting
Spann v. Colonial Village, Inc.
,
The D.C. Circuit “has applied
Havens Realty
to justify organizational standing in a wide
range of circumstances.”
Abigail All. for Better Access to Developmental Drugs v. Eschenbach
,
Plaintiffs have met this burden. Both CAIR Coalition and RAICES have identified various ways that the Rule would frustrate their missions of providing direct legal services to asylum seekers. Dkt. 39 at 46–56 ( S.M.S.R. Amend. Compl. ¶¶ 213–255). The declaration of CAIR Coalition’s litigation director, for example, describes the organization’s mission in detail and explains how the Rule will interfere with that mission and will, if allowed to take effect, impose substantial, tangible costs on the organization. See Dkt. 6-5 at 2–11 (Cubas Decl. ¶¶ 3– 39), S.M.S.R. et al. v. Trump et al. (No. 18-2838). In particular, according to the declaration, the Rule will either dramatically reduce the number of clients that CAIR Coalition can serve or will require it to “raise more funds to serve the same number of clients.” Id . at 5 (Cubas Decl. ¶ 14). To take just one example, if CAIR Coalition’s clients are ineligible for asylum, the organization will need to assist them in seeking withholding of removal, which requires that applicants meet a substantially more demanding test (“reasonable fear” as compared to “credible fear”), and will, as a result, require “double th[e] time [to] prepar[e]” them for interviews. Id. at 7 (Cubas Decl. ¶ 22). More cases, moreover, will “move directly to trial at immigration court,” which will further tax CAIR Coalition’s resources. Id . at 10 (Cubas Decl. ¶¶ 33–34). And at the same time that the Rule will impose these additional demands on the organization, it will diminish a portion of CAIR Coalition’s funding, which “is tied [in part] to the number of adult clients that the organization serves each year.” Id . at 11 (Cubas Decl. ¶ 38).
Similarly, RAICES attests that the Rule will frustrate its mission and will impose substantial, tangible burdens on the organization. Dkt. 39 at 52 ( S.M.S.R. Amend. Compl. ¶ 238). The declaration of RAICES’s chief legal programs officer describes the mission of the organization and explains how the Rule will undermine that mission and will impose additional costs on the organization. See Dkt. 6-6 at 2–11 (Garza Pareja Decl. ¶¶ 3–36), S.M.S.R. et al. v. Trump et al. (No. 18-2838). According to the declaration, the Rule will require RAICES “to divert scarce resources—including staff time—to: (1) creating new intake procedures for detained families; (2) preparing [affected] asylum seekers for more onerous reasonable fear interviews; (3) preparing children of [affected] asylum seekers for reasonable fear interviews . . . ; (4) appealing more negative determinations to immigration court and beyond; (5) preparing unaccompanied minors to testify and be cross-examined in immigration court, rather than at the non-adversarial Asylum Office; (6) assisting families to prepare multiple applications for relief, instead of one application with derivative family members; (7) creating new resources and policies to implement these changes; (8) training staff on these new policies; and (9) retraining staff from certain programs to move into new roles to implement these policies.” Id. at 9–10 (Garza Pareja Decl. ¶ 32). The organization, as a result, will “be unable to represent the same number of clients that it does currently,” will need to “spend more resources on each individual case,” and will be “force[d] . . . to divert scarce resources away from other important programs.” Id. at 3 (Garza Pareja Decl. ¶ 6).
These uncontested declarations demonstrate that the Rule directly conflicts with the
missions of the organizational plaintiffs and that it will require them to use substantial “resources
to counteract that injury.”
ASPCA
,
Defendants also argue that the organizational plaintiffs fail the zone of interests test. Dkt.
31 at 33–34. The Court, once again, disagrees. Zone of interests standing is not a jurisdictional
doctrine but, rather, requires that the “plaintiff’s complaint falls within the zone of interests
protected by the law invoked.”
Lexmark Int’l
,
The organizational plaintiffs easily meet this permissive test. To start, the organizational
plaintiffs’ interest in providing legal assistance to as many asylum seekers as they can is
consistent with the INA’s purpose to “establish[ ] . . . [the] statutory procedure for granting
asylum to refugees.”
Cardoza-Fonseca
,
The Court, accordingly, concludes that the interests that the organizational plaintiffs seek to protect are at least “arguably” within the zone of interests protected by the INA and that, as a result, the organizational plaintiffs’ claims satisfy the zone of interests test. [14]
b. Individual Plaintiffs
There is no doubt that asylum is a valuable form of relief from removal and that it affords
the asylee benefits above and beyond avoiding removal, including, most notably, a path to lawful
permanent resident status and citizenship. Nor is there any doubt that the Rule, by definition,
applies to each of the individual plaintiffs and that it, by definition, would render each of the
plaintiffs categorically ineligible for asylum.
See Lujan
,
Defendants disagree, arguing that because of the
East Bay
preliminary injunction, “the
challenged rule has not been applied to” any of the individual plaintiffs and that, at least as long
as the preliminary injunction remains in place, the individual plaintiffs “cannot show any
possibility of imminent injury.” Dkt. 66 at 25. Although the government’s appeal of the
preliminary injunction is pending, Defendants contend that the “hypothetical future vacation of
the [
East Bay
] injunction is inadequate” to establish the possibility of imminent injury. Dkt. 76
at 16. That is incorrect. As the Supreme Court has held, preliminary injunctive relief does not
defeat Article III standing; the relief is by definition temporary, leaving the threat of future injury
in place.
See Preap
,
That threat of future injury, moreover, is apparent here: the President himself has
confirmed by proclamation that “[t]he United States is appealing th[e] [preliminary] injunction,”
and, “[s]hould the injunction be lifted, aliens who enter the United States unlawfully through the
southern border in contravention of this proclamation will be ineligible to be granted asylum
under th[e] interim final rule.”
Defendants also press this same point in a different way, arguing that the
East Bay
injunction “has, in effect, provided Plaintiffs with the full relief they seek from this Court.” Dkt.
66 at 40. But, regardless of whether this issue is best considered as one of standing or mootness,
the Court is unconvinced. Although the
East Bay
court had entered a temporary restraining order
at the time the
O.A.
and
S.M.S.R
suits were commenced, that court did not enter the existing
preliminary injunction until December 19, 2018,
see East Bay III,
Merits
That all amounts to a very long backstroke for a relatively short putt. Plaintiffs challenge the Rule on a variety grounds, several of which have considerable force. The Court need only consider the first of Plaintiffs’ challenges, however, because it is sufficient to resolve the case. That challenge boils down to one question: Is the Rule, which renders all aliens who enter the United States across the southern border after November 9, 2018, except at a designated port of entry , ineligible for asylum, consistent with 8 U.S.C. § 1158(a)(1), which provides that “[a]ny alien who is physically present in the United States or who arrives in the United States ( whether or not at a designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum”? According to Plaintiffs, the inconsistency between the Rule and statute is self-evident. According to Defendants, the Rule is consistent with the statute because a bar on “eligibility” for asylum (as specified in the Rule) is different than a bar on “applying” asylum (as precluded by the statute). For the reasons explained below, the Court agrees with Plaintiffs and concludes that Defendants’ reading of the statute is untenable.
Neither party explicitly invokes the familiar
Chevron
framework and, for present
purposes, the Court need not decide whether
Chevron
applies to an interim final rule which lacks
the benefit of public comment,
see United States v. Mead Corp.
,
The Court, moreover, need not pause over the fact that presidential actions are not
themselves subject to APA review,
see Franklin v. Massachusetts
,
The Court starts, once again, with the statutory text,
see Ross v. Blake
,
The language at issue here was enacted as part of IIRIRA in 1996. Prior to that time, the relevant provision of the INA merely required the Attorney General to establish “a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum.” 8 U.S.C. § 1158(a) (1980). In its current form, § 1158(a)(1) now provides:
Any alien who is physically present in the United States or who arrives in the United States ( whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
8 U.S.C. § 1158(a)(1) (emphasis added). The other paragraph relevant to the present dispute was also introduced in IIRIRA, and it provides:
The Attorney General [and now the Secretary of Homeland Security] may by regulation establish additional limitations and conditions, consistent with this section , under which an alien shall be ineligible for asylum under paragraph (1). 8 U.S.C. § 1158(b)(2)(C) (emphasis added). All agree that a regulation barring all aliens who enter the United States from Mexico outside a designated port of entry from applying for asylum would be “inconsistent with” § 1158(a)(1) and, thus, ultra vires . But, according to the government, that is not what the Rule does. Instead, it treats those aliens as ineligible for asylum. And, in its view, “the instruction that aliens ‘ may apply ’ for asylum regardless of whether they entered at a port of entry does not require that an alien must be eligible for or be able to ‘receive’ asylum.” Dkt. 66 at 42 (emphasis added).
As a matter of plain language, the government’s distinction is, to say the least, a fine one. The word “ineligible” means “legally or officially unable to be considered for a benefit.” Ineligible , Oxford English Dictionary, https://www.lexico.com/en/definition/ineligible (last visited Aug. 2, 2019). Defendants never explain, nor could they, how that differs from “legally or officially unable to apply for a benefit.” Whether framed as a restriction on who may apply or on who is eligible, the government must consider whether the restriction at issue is applicable; provide the alien with some opportunity to be heard; and render a decision, which is then subject to review by an immigration judge. 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 208.13, 208.14. As a matter of common usage, no one would draw a meaningful distinction, for example, between a rule providing that children may not apply for a driver’s license and one providing that children are not eligible to receive a driver’s license. Both locutions mean the same thing.
Moreover, even if one might hypothesize
some
circumstance in which the phrases “may
not apply” and “are ineligible” do not mean the same thing, this is not such a case. Under the
government’s theory, § 1158 is divided into two discrete realms. Section 1158(a), which
includes the right to apply for asylum “whether or not” the applicant arrived in the United States
“at a designated port of arrival,” defines who may—and who may not—“apply” for asylum,
while § 1158(b), which includes the Attorney General and Secretary of Homeland Security’s
authority to promulgate regulations “consistent with” § 1158, defines who is—and who is not—
“eligible” for asylum. But that purported distinction is at odds with the Rule itself, as well as the
Department of Homeland Security’s implementing regulations. As the Rule explains, in the
context of expedited removal proceedings, an asylum officer must “ask
threshold
questions to
elicit whether an alien is ineligible for a grant of asylum pursuant to [the] proclamation bar,” and
if “an alien lacks a significant possibility of eligibility” under the bar, the asylum officer must
make a negative credible fear determination.
Other regulatory provisions confirm that the government itself treats the “bars
to applying
for,
or
being granted
, asylum” as interchangeable. 8 C.F.R. § 208.30(e)(5)(i) (emphasis added).
Thus, in addition to § 208.30(e)(5), § 208.13(c), which the Rule also amends, provides that “an
applicant shall not qualify for asylum if” § 1158(a)(2) (who may apply) or § 1158(b)(2) (who is
eligible) “applies to the applicant.” 8 C.F.R. § 208.13(c)(1). Notably, in the government’s own
words, if the applicant fails to “qualify” under
either
paragraph of § 1158, he shall be “found to
be
ineligible
for asylum.”
Id
. (emphasis added) (“If the applicant is found to be ineligible for
asylum under either” § 1158(a)(2) or § 1158(b)(2)). Against this regulatory backdrop, the
distinction Defendants would have the Court draw between limitations on who may apply and
who is eligible for asylum not only “strains credulity,”
East Bay I
,
But the Court need not go that far to conclude that the Rule is contrary to law. Even
assuming that the phrases “may not apply” and “are ineligible” reflect some subtle distinction in
meaning, the relevant question is not whether the Rule uses the exact same words as in the
statutory prohibition. The question, instead, is whether the Rule is “consistent with,” 8 U.S.C.
§ 1158(b)(2)(C), the statutory mandate that any alien present in the United States “may apply for
asylum,” regardless of “whether or not” the alien entered the United States “at a designated port
of arrival,” 8 U.S.C. § 1158(a)(1). Defendants do not even attempt to satisfy that test, nor could
they. As the Ninth Circuit put it, “[t]he technical differences between applying for and eligibility
for asylum are of no consequence to a refugee when the bottom line—no possibility of asylum—
is the same.”
East Bay II
,
None of Defendants’ counterarguments are persuasive. Defendants first invoke the final clause of § 1158(a)(1), which qualifies an alien’s right to apply for asylum with the condition that the alien must do so “in accordance with this section or, where applicable, section 1225(b) of” the INA. Dkt. 76 at 18. In Defendants’ view, this qualification “makes clear that an individual’s ability to apply for asylum is always subject to the discretion afforded to the Attorney General and the Secretary of Homeland Security to determine asylum eligibility.” Id. But that construction of the statute turns the relevant allocation of authority on its head. Congress has defined who may apply for asylum, specifying that “[a]ny alien who is physically present in the United States” may do so, regardless of “whether or not” the alien arrived “at a designated port of arrival.” 8 U.S.C. § 1158(a)(1). Congress also granted the Attorney General and the Secretary of Homeland Security authority to promulgate regulations establishing “additional limitations and conditions” on eligibility for asylum, but only to the extent “ consistent with ” § 1158. Id . § 1158(b)(2)(C) (emphasis added). As a result, if any incongruity exists between the terms of the statute and a regulation, the statutory text prevails—not vice versa.
Next, Defendants dispute that the Rule is “predicated upon the manner of an alien’s entry
pe se” and argue, instead, that it turns on “whether an alien has contravened a Presidential
proclamation concerning a particular crisis at the southern border at a particular time.” Dkt. 31
at 38. This matters, according to Defendants, because “[a]liens who contravene such a measure
have not merely violated the immigration laws, but have also undercut the efficacy of a measure
adopted by the President based on his determination of the national interest in matters that could
have significant implications for the foreign affairs of the United States.” 83 Fed. Reg. at
55,940. The Court does not doubt that the Proclamation reflects a determination by the President
that the influx of aliens entering the United States across the southern border outside the
designated ports of entry poses a “particular problem for the national interest.” Dkt. 41 at 93
(Dec. 17, 2018 Hrg. Tr.). But that assessment is neither sufficient to override a statutory
mandate permitting all aliens present in the United States to apply for asylum, regardless of
whether they arrived in the United States “at a designated port of arrival,” 8 U.S.C. § 1158(a)(1);
see Youngstown Sheet & Tube Co. v. Sawyer
,
Finally, Defendants argue that the government has, “for decades, considered whether an alien unlawfully entered the country in issuing discretionary asylum denials.” Dkt. 31 at 36. The principal BIA decision upon which they rely, however, Matter of Pula , 19 I. & N. Dec. 467 (BIA 1987), was decided almost a decade before Congress amended § 1158(a)(1) in IIRIRA to include the critical language (“whether or not at a designated port of arrival”) upon which Plaintiffs rely. Nor does that decision sweep as broadly as Defendants suggest. True, Pula recites that “an alien’s manner of entry or attempted entry is a proper and relevant discretionary factor to consider in adjudicating asylum applications.” Id. at 473. In Pula , however, the “manner of entry” was through the use of “a fraudulent document,” raising concerns unlike those at issue here. Id . at 474. But even putting that distinction aside, there is a vast difference between considering how the alien entered the United States as one, among many, factors in the exercise of a discretionary authority, and a categorial rule that disqualifies any alien who enters across the southern border outside a designated port of entry. Returning, once again, to our teenaged drivers, one might plausibly argue that it is permissible to consider a sixteen-year-old’s age, among other factors, in deciding whether she should receive a driver’s license. But it is something altogether different to maintain that no sixteen-year-old may receive a driver’s license, notwithstanding a statutory entitlement to apply for a license at age sixteen.
Because the Interim Final Rule exceeds the authority that Congress conferred on the Attorney General and the Secretary of Homeland Security to “establish additional limitations and conditions” on asylum that are “consistent with” § 1158, 8 U.S.C. § 1158(b)(2)(C), the Rule is “not in accordance with law” and “in excess of statutory . . . authority,” 5 U.S.C. § 706(2)(A), (C). Having concluded that the Rule is, therefore, “unlawful” within the meaning of the APA, id. § 706(2), the Court need not reach Plaintiffs’ remaining substantive and procedural challenges to the lawfulness of the Rule.
Remedy
This brings the Court to the question of remedy. The S.M.S.R. Plaintiffs urge the Court to issue “a declaration that the Rule is unlawful and an injunction prohibiting its enforcement against each member of the proposed class.” Dkt. 72 at 34. The O.A. Plaintiffs, likewise, argue that Plaintiffs are entitled to “[n]ationwide [r]elief,” contending that “there is nothing unusual about a court issuing an injunction that provides Plaintiffs complete relief and also prevents the [g]overnment from harming other similarly situated individuals.” Dkt. 73 at 29–31. Defendants disagree, arguing that “Article III and equitable principles require that relief be no broader than necessary to redress the Plaintiffs’ injuries” and that “a plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Dkt. 66 at 65 (quotation omitted). Relying on Justice Thomas’s concurrence in Trump v. Hawaii , Defendants contend that “[n]ationwide injunctions . . . ‘take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.’” Dkt. 66 at 66 (quoting 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring)). Thus, according to Defendants, “this Court has the authority to grant only declaratory relief[] and must limit the relief to remedying only the particular harms alleged by the specific plaintiffs properly before it—that is, a challenge to implementation of Section 1225(b)(1) by the sole Plaintiff subject to an expedited removal order, A.V.” Id. at 67.
Neither Plaintiffs’ nor Defendants’ view of the appropriate remedy is persuasive.
In several recent cases, the propriety of nationwide injunctive relief has been front and
center.
See
,
e.g
.,
Trump v. Hawaii
,
That reading of the APA is consistent with longstanding and consistent practice in this
circuit.
See
,
e.g
.,
Humane Soc’y of United States v. Zinke
,
To the extent Defendants argue that the vacatur remedy should be limited to the plaintiffs
in this case, that contention is both at odds with settled precedent and difficult to comprehend.
The D.C. Circuit has “made clear that ‘[w]hen a reviewing court determines that agency
regulations are unlawful, the ordinary result is that the rules are vacated—
not that their
application to the individual petitioners is proscribed
.’”
Nat’l Mining Ass’n
,
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule.
Lujan
,
Even without this controlling precedent, moreover, the Court would be at a loss to
understand what it would mean to vacate a regulation, but only as applied to the parties before
the Court. As a practical matter, for example, how could this Court vacate the Rule with respect
to the organizational plaintiffs in this case without vacating the Rule writ large? What would it
mean to “vacate” a rule as to some but not other members of the public? What would appear in
the Code of Federal Regulations? Fortunately, the Court need not engage in such logical
gymnastics because the language of the APA and the controlling D.C. Circuit precedent are
unambiguous. The Court, accordingly, concludes that the proper remedy is to set the Rule aside,
and the legal consequences of that result are not limited “to the individual” plaintiffs.
Nat’t
Mining Ass’n
,
That leaves the question whether issuance of an injunction is also warranted. The
Supreme Court has cautioned that a district court vacating an agency action under the APA
should not issue an injunction unless doing so would “have [a] meaningful practical effect
independent of its vacatur.”
Monsanto Co. v. Geertson Seed Farms
,
* * *
The Court, accordingly, will vacate the Rule but will decline Plaintiffs’ request that the Court enter an injunction.
Class Certification
Finally, the Court must consider whether to grant Plaintiffs’ motions for class
certification.
[16]
The question of class certification arises in an unusual posture in this case
because the Court directed that the parties brief the merits on an expedited basis (to obviate the
need for further litigation on Plaintiffs’ motions for preliminary relief) and because the parties
consolidated their briefing on class certification with the merits. It is also unclear that class
certification will serve any significant purpose, given the Court’s decision on the merits and the
relief that the Court has already ordered. But, because the law is unsettled on whether the Court
may, in its discretion, decline to certify a class (or may decline to decide whether to certify a
class) based on these prudential considerations, and because class certification could have some
bearing on future proceedings in this matter, the Court will resolve the pending motions.
Compare Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co
.,
To proceed on behalf of a class, a plaintiff or group of plaintiffs must clear two hurdles.
First, the putative class representatives must show that “(1) the class is so numerous that joinder
of all members is impractical; (2) there are questions of law or fact common to the class; (3) the
claims or defenses of the representative parties are typical of the claims or defenses of the class;
and (4) the representative parties will fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. (23)(a). These four “prerequisites,”
DL v. District of Columbia
,
1. Rule 23(a) and (b)
Here, the four “prerequisites” contained in Rule 23(a) are readily satisfied. First,
Defendants do not dispute—nor could they—that the proposed class, which consists of “[a]ll
noncitizen asylum-seekers who have entered or will enter the United States through the southern
border but outside ports of entry after November 9, 2018,” Dkt. 51 at 21–22; Dkt. 52 at 1–2,
satisfies the numerosity requirement. To meet this requirement, Plaintiffs need not clear any
“specific threshold,” although “courts in this jurisdiction have observed that a class of at least
forty members is sufficiently large to meet this requirement.”
Taylor v. D.C. Water & Sewer
Auth
.,
The second and third requirements, commonality and typicality, often overlap. The
second requirement is satisfied if “there are questions of law or fact common to the class,” Fed.
R. Civ. P. 23(a)(2), and the third is satisfied if “the claims or defenses of the representative
parties are typical of the claims or defenses of class,” Fed. R. Civ. P. 23(a)(3). The commonality
requirement is satisfied if class members’ claims “depend upon a common contention” that “is
capable of classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke.”
Dukes
,
Defendants disagree, arguing that “the proposed class includes disparate groups of
persons whose statutory and constitutional rights are distinct . . . and thus would be affected by
the Rule differently.” Dkt. 66 at 60–61. The Court is unpersuaded. Unlike in
Dukes
, where the
Supreme Court reasoned that no “glue” held together each of the purported acts of discrimination
alleged by a class of women,
Finally, Plaintiffs also satisfy Rule 23(a)’s adequacy of representation requirement. This requirement imposes two conditions on plaintiffs seeking to represent a class: first, “the named representative must not have antagonistic or conflicting interests with the unnamed members of the class,” and second, “the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. Disttrict of Columbia , 117 F.3d 571, 575 (D.C. Cir. 1997). Here, Defendants challenge only the first of these conditions, arguing that the named representatives “cannot vigorously prosecute the interests of the entire class, which [includes members in] diverse and disparate situations.” Dkt. 66 at 63–64. But that argument merely rehashes Defendants’ attack on the commonality and typicality of Plaintiffs’ claims. To be sure, each individual plaintiff and member of the putative class will have a unique interest in pursuing his or her own claim to asylum. That, however, is not what this case is about. It relates solely to whether the individual plaintiffs and putative class members will have an opportunity to pursue those claims, unencumbered by the Rule’s categorical ban.
Although Defendants do not dispute that Plaintiffs’ counsel are qualified to represent the class, the Court has considered that question sua sponte and concludes that current counsel is well-qualified to do so. As shown by the declarations submitted in support of class certification, current counsel are willing and have the ability vigorously to litigate this case and to protect the interests of absent class members. See Dkt. 51-13 (Reyes Decl.); Dkt. 51-14 (Vieux Decl.); Dkt. 51-15 (Roth Decl.); Dkt. 52-10 (Govindaiah Decl.); Dkt. 52-11 (Appelbaum Decl.). The Court, accordingly, concludes that the adequacy of representation requirement is satisfied.
The Court also concludes that Plaintiffs have shown that Rule 23(b)(2) is satisfied in this
case. Rule 23(b)(2) applies if “the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The
key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy
warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only
as to all of the class members or as to none of them.”
Dukes
,
Echoing their contentions that Plaintiffs have failed to satisfy the commonality,
typicality, and adequacy of representation requirements, Defendants contend that Rule 23(b)(2)
is not satisfied because a single remedy would not serve all members of the putative class. That
contention, once again, conflates Plaintiffs’ challenge to the categorical bar on eligibility for
asylum—which applies equally to all members of the putative class—with each putative member
of the class’s unique interest in seeking asylum, which is not at issue in this case. The relief
Plaintiffs seek is “generally applicable to the class” and is indivisible.
See Garcia Ramirez v.
U.S. Immigration & Customs Enf’t
,
The Court, accordingly, concludes that Plaintiffs have satisfied the requirements of Rule 23(a) and (b). Defendants argue that class certification is nonetheless inappropriate for two further reasons: (1) the Court allegedly lacks jurisdiction to certify a class, Dkt. 66 at 53–56; and (2) Plaintiffs’ proposed class is purportedly “overbroad and not ascertainable,” id . at 57–59.
2. Jurisdiction to Certify a Class
Defendants argue that the Court lacks jurisdiction to certify a class for two reasons. First, they argue that because “challenges to the Rule must be made either in a petition for review under 8 U.S.C. § 1252(b)(9) or under the requirements for expedited-removal challenges provided by 8 U.S.C. § 1252(e)(3),” Dkt. 66 at 53, the Court lacks jurisdiction to certify a class. That contention, however, merely repeats the jurisdictional arguments that the Court considered, and rejected, above. Because § 1252(b)(9) does not govern Plaintiffs’ claims, it has no bearing on class certification. Defendants are correct, though, that § 1252(e)(1) precludes certification of a class “in any action for which judicial review is authorized” by § 1252(e)(3). Although the Court has recognized that an argument can be made that § 1252(e)(3) applies to the claims of some of the individual plaintiffs, see supra 38–43, the Court has declined to embrace that contention. But, even if § 1252(e)(1) might apply to the claims of some of the individual plaintiffs, that would at most preclude those plaintiffs from serving as class representatives. Those plaintiffs who were never placed in expedited removal proceedings would be able to pursue their claims on behalf of the class.
Second, Defendants rely on 8 U.S.C. § 1252(f)(1), which states: Regardless of the nature of the action or claim of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings . . . have been initiated.
8 U.S.C. § 1252(f)(1). Because the Plaintiffs seek injunctive relief in addition to a declaration
that the Rule is invalid, and because the Supreme Court has made clear that § 1252(f)(1) bars
“classwide injunctive relief against the operation of §§ 1221–123[2],” Dkt. 66 at 54 (quoting
AADC
,
But, even if Plaintiffs did seek to enjoin the operation of removal proceedings,
Defendants’ reliance on § 1252(f) would fail. As the Ninth Circuit held in
Jennings
, and the
Supreme Court did not question, § 1252(f) does not affect a lower court’s “‘jurisdiction over . . .
statutory claims because those claims d[o] not ‘seek to enjoin the operation of the immigration
detention statutes, but to enjoin conduct . . . not authorized by the statutes.’”
Finally, even if § 1252(f) applied here, and even if it applied to claims that the
government has acted in excess of its statutory authority under the INA, it still would not
foreclose class treatment because it “only bars injunctive relief,” not declaratory relief.
Hamama
v. Adducci
,
3. Ascertainability
Finally, Defendants argue that because the class “potentially includes all aliens outside
the United States and extraterritorial aliens have no right to challenge laws that apply only to
those on U.S. soil,” Plaintiffs have failed to define an ascertainable class. Dkt. 66 at 58.
Defendants premise this contention on the theory that “[c]ourts in this Circuit have ‘grafted’ onto
Rule 23 an ‘implied’ requirement that a court should first determine whether a proposed class is
adequately defined such that its members are clearly ascertainable, before reaching the four
‘explicit’ prerequisites of Rule 23(a).”
Id
. at 57 (quoting
Brewer v. Lynch
, No. CV 08-1747-
BJR,
Out of an abundance of caution, the Court will assume for present purposes that such a
requirement exists.
See id.
But even with that assumption, Defendants’ argument fails. Where
the ascertainability requirement exists for Rule 23(b)(2) classes, the proponents of class
certification must demonstrate that “the general outlines of the members of the class are
determinable at the outset of the litigation” without engaging in burdensome individualized
determinations.
Brewer
,
The class members here are easily determined. The proposed class includes all asylum
seekers who are subject to the Rule’s categorical prohibition on asylum eligibility. It does not, as
Defendants claim, include unknown and unidentifiable aliens who are outside the United States.
Rather, aliens will only become members of the class
if and when
they enter the United States
through the southern border without inspection. Nor is it at all unusual or improper for a Rule
23(b)(2) class to include future members.
See
,
e.g
.,
Garcia Ramirez
,
* * *
The Court, accordingly, concludes that Plaintiffs have carried their burden of demonstrating that class treatment is warranted under Rule 23(b)(2). The Court will enter a separate order certifying the proposed class, designating the individual plaintiffs as class representatives, and appointing Plaintiffs’ counsel to serve as counsel for the class.
CONCLUSION
For the reasons set forth above, the Court will GRANT in part and DENY in part Plaintiffs’ motions for summary judgment and class certification, Dkt. 51; Dkt. 52, and will DENY Defendants’ cross-motion, Dkt. 66. The Court will DENY as moot Plaintiffs’ earlier- filed motions for temporary and preliminary injunctive relief, Dkt. 6; Mot. for Temp. Restraining Order, Dkt. 6, S.M.S.R. et al. v. Trump et al. (No. 18-2838). A separate order consistent with this Memorandum Opinion will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: August 2, 2019
Notes
[1] The INA defines a “refugee” as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, 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.” 8 U.S.C. § 1101(a)(42).
[2] Although IIRIRA permits the Department of Homeland Security to apply expedited removal procedures more broadly, 8 U.S.C. § 1225(b)(1)(A)(i), (iii), the Department has traditionally limited application of the expedited procedures to (1) arriving aliens; (2) aliens who arrived in the United States by sea within the last two years, who have not been admitted or paroled by immigration authorities; and (3) aliens found in the United States within 100 miles of the border within 14 days of entering the country, who have not been admitted or paroled by immigration authorities. See Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). On July 23, 2019, however, the Department issued a notice in the Federal Register outlining its intent to “exercise the full remaining scope of its statutory authority” to apply expedited removal procedures to all aliens determined inadmissible under 8 U.S.C. § 1182(a)(6)(C) or 8 U.S.C. § 1182(a)(7). See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (Jul. 23, 2019).
[3] The standard necessary to establish a “credible fear” is lower than the standard for obtaining
asylum itself. The Supreme Court has indicated that ultimately to prevail on an asylum claim,
applicants must establish that there is roughly a 10% chance that they will be persecuted on
account of a protected ground if they are returned to their country of origin.
See Cardoza-
Fonseca
,
[4] An alien can pursue withholding of removal either under the INA, 8 U.S.C. § 1231(b)(3), or
under regulations implementing U.S. obligations under Article 3 of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.
§ 1208.16(c).
[5] The Proclamation was issued after the Interim Final Rule and is therefore not a part of the Administrative Record. See Dkt. 64. The Court takes judicial notice of the Proclamation as a document or fact “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
[6] Defendants do not argue that this Court lacks statutory jurisdiction over the organizational plaintiffs’ claims.
[7] Prior to 1996, aliens who entered the country without inspection were deemed deportable and
placed into deportation proceedings. In contrast, aliens arriving at the border were deemed
excludable and placed into exclusion proceedings.
See Judulang v. Holder
,
[8] Because Plaintiffs challenge the lawfulness of the Rule—and not any individual asylum
application or order of removal—there is no merit to Defendants’ contention,
see
Dkt. 22 at 30,
that Plaintiffs fail to satisfy the final-agency-action requirement of the APA,
see
5 U.S.C. § 704.
Although the Attorney General and the Secretary of Homeland Security have invited public
comment on the Interim Final Rule, there is no doubt that the Rule “mark[s] the ‘consummation
of the agenc[ies’] decisionmaking process” and that “legal consequences will flow” from it.
Bennett
,
[9] The Court of Appeals for the Ninth Circuit observed that, in enacting IIRIRA, “Congress was
legislating against the backdrop of recent Supreme Court law,” and that
McNary
“offered a
blueprint for how Congress could draft a jurisdiction-channeling statute that would cover not
only individual challenges to agency decisions, but also broader challenges to agency policies
and practices.”
J.E.F.M
.,
[10] Although the Court need not decide for present purposes whether any post-
McNary
Supreme
Court precedent is to the contrary, the Court notes the D.C. Circuit has held: “Properly read, . . .
McNary
’s conclusion that the immigration statute’s jurisdiction-stripping provision presented no
bar to a pattern and practice suit did not depend on the unavailability of alternative means of
judicial review.”
Gen. Elec. Co.
,
[11] The parties disagree, for example, about when, as a factual matter, the Department of Homeland Security made final credible fear determinations as to plaintiffs D.R. and P.R., compare Dkt. 81 at 2 n.1, with Dkt. 85 at 1–2; and whether, as a legal matter, aliens remain in expedited removal proceedings until they receive a credible fear interview, until they receive a Notice to Appear without a time and date, until they receive a Notice to Appear with a time and date, or until their Notice to Appear is filed with the immigration court, compare Dkt. 85 at 2; Dkt. 80 at 7–8, with Dkt. 81 at 4. The Court notes, however, that the Department’s own regulations specify that full removal proceedings are not commenced until the Notice to Appear is filed with the immigration court. See 8 C.F.R. § 1239.1.
[12] Section 1252(e)(3) refers to “[j]udicial review of determinations under [§ 1225(b)] and its implementation.” 8 U.S.C. § 1252(e)(3). One might argue that “its implementation” refers to implementation of the removal order, and not to implementation of § 1225(b). That, however, is not the best reading of the provision. Among other things, the reference to “implementation” is in the singular, as is the reference to “section 1225(b),” while the reference to “determinations” is in the plural.
[13] Even though “zone of interests” standing is not jurisdictional,
see Lexmark Int’l, Inc. v. Static
Control Components, Inc.
,
[14] Neither
INS v. Legalization Assistance Project of the L.A. Cty. Fed’n of Labor
(“
LAP
”), 510
U.S. 1301, 1305 (1993) (O’Connor, J., in chambers) nor
Fed’n for Am. Immigration Reform, Inc.
v. Reno
(“
FAIR
”),
[15] Because the statutory text is plain, the Court need not consider whether Defendants’
interpretation is at odds with the established purpose of § 1158 and the
Charming Betsy
canon of
statutory interpretation,
see Schooner Charming Betsy
,
[16] Although mindful of the fact that Rule 23(c)(1) directs courts to resolve class certification
motions “[a]t an early practicable time,” Fed. R. Civ. P. 23(c)(1)(A), the Court notes that the rule
grants district courts “great discretion in determining the appropriate timing for such a ruling.”
Hyman v. First Union Corp.
,