Grace v. Sessions

• Court: District Court, District of Columbia
• Decided: December 19, 2018
• Docket: Civil Action No. 2018-1853
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) GRACE, et al., ) ) Plaintiffs, ) v. ) ) No. 18-cv-01853 (EGS) ) MATTHEW G. WHITAKER, 1 Acting ) Attorney General of the United ) States, et al., ) ) Defendants. )

MEMORANDUM OPINION

When Congress passed the Refugee Act in 1980, it made its

intentions clear: the purpose was to enforce the “historic

policy of the United States to respond to the urgent needs of

persons subject to persecution in their homelands.” Refugee Act

of 1980, § 101(a), Pub. L. No. 96–212, 94 Stat. 102 (1980).

Years later, Congress amended the immigration laws to provide

for expedited removal of those seeking admission to the United

States. Under the expedited removal process, an alien could be

summarily removed after a preliminary inspection by an

immigration officer, so long as the alien did not have a

credible fear of persecution by his or her country of origin. In

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes the current Acting Attorney General as the defendant in this case. “Plaintiffs take no position at this time regarding the identity of the current Acting Attorney General of the United States.” Civil Statement, ECF No. 101. creating this framework, Congress struck a balance between an

efficient immigration system and ensuring that “there should be

no danger that an alien with a genuine asylum claim will be

returned to persecution.” H.R. REP. NO. 104-469, pt. 1, at 158

(1996).

Seeking an opportunity for asylum, plaintiffs, twelve

adults and children, alleged accounts of sexual abuse,

kidnappings, and beatings in their home countries during

interviews with asylum officers. 2 These interviews were designed

to evaluate whether plaintiffs had a credible fear of

persecution by their respective home countries. A credible fear

of persecution is defined as a “significant possibility” that

the alien “could establish eligibility for asylum.” 8 U.S.C.

§ 1225(b)(1)(B)(v). Although the asylum officers found that

plaintiffs’ accounts were sincere, the officers denied their

claims after applying the standards set forth in a recent

precedential immigration decision issued by then-Attorney

General, Jefferson B. Sessions, Matter of A-B-, 27 I. & N. Dec.

316 (A.G. 2018).

Plaintiffs bring this action against the Attorney General

alleging violations of, inter alia, the Administrative Procedure

Act (“APA”) and the Immigration and Nationality Act (“INA”),

2 Plaintiffs Grace, Carmen, Gio, Gina, Maria, Mina, Nora, and Mona are proceeding under pseudonyms. 2 arguing that the standards articulated in Matter of A-B-, and a

subsequent Policy Memorandum issued by the Department of

Homeland Security (“DHS”) (collectively “credible fear

policies”), unlawfully and arbitrarily imposed a heightened

standard to their credible fear determinations.

Pending before the Court are: (1) plaintiffs’ combined

motions for a preliminary injunction and cross-motion for

summary judgment; (2) plaintiffs’ motion to consider evidence

outside the administrative record; (3) the government’s motion

to strike exhibits supporting plaintiffs’ motion for summary

judgment; and (4) the government’s motion for summary judgment.

Upon consideration of the parties’ memoranda, the parties’

arguments at the motions hearings, the arguments of amici, 3 the

administrative record, the applicable law, and for the reasons

discussed below, the Court finds that several of the new

credible fear policies, as articulated in Matter of A-B- and the

Policy Memorandum, violate both the APA and INA. As explained in

this Memorandum Opinion, many of these policies are inconsistent

with the intent of Congress as articulated in the INA. And

because it is the will of Congress—not the whims of the

Executive—that determines the standard for expedited removal,

the Court finds that those policies are unlawful.

3 The Court appreciates the illuminating analysis provided by the amici. 3 Part I of this Opinion sets forth background information

necessary to resolve plaintiffs’ claims. In Part II, the Court

considers plaintiffs’ motion to consider evidence outside the

administrative record and denies the motion in part. In Part

III, the Court considers the parties’ cross-motions for summary

judgment. In Part III.A, the Court considers the government’s

arguments that this case is not justiciable and holds that this

Court has jurisdiction to hear plaintiffs’ challenges to the

credible fear policies. In Part III.B, the Court addresses the

legal standards that govern plaintiffs’ claims. In Part III.C,

the Court turns to the merits of plaintiffs’ claims and holds

that, with the exception of two policies, the new credible fear

policies are arbitrary, capricious, and in violation of the

immigration laws. In Part III.D, the Court considers the

appropriate form of relief and vacates the unlawful credible

fear policies. The Court further permanently enjoins the

government from continuing to apply those policies and from

removing plaintiffs who are currently in the United States

without first providing credible fear determinations consistent

with the immigration laws. Finally, the Court orders the

government to return to the United States the plaintiffs who

were unlawfully deported and to provide them with new credible

fear determinations consistent with the immigration laws.

4 I. Background

Because the claims in this action center on the expedited

removal procedures, the Court discusses those procedures, and

the related asylum laws, in detail.

A. Statutory and Regulatory Background

The Refugee Act

In 1980, Congress passed the Refugee Act, Pub. L. No. 96-

212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-414, 66

Stat. 163 (1952)(codified as amended in sections of 8 U.S.C.).

The “motivation for the enactment of the Refugee Act” was the

“United Nations Protocol Relating to the Status of Refugees

[“Protocol”],” INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987),

“to which the United States had been bound since 1968,” id. at

432–33. Congress was clear that its intent in promulgating the

Refugee Act was to bring the United States’ domestic laws in

line with the Protocol. See id. at 437 (stating it is “clear

from the legislative history of the new definition of ‘refugee,’

and indeed the entire 1980 Act . . . that one of Congress’

primary purposes was to bring United States refugee law into

conformance with the [Protocol].”). The Board of Immigration

Appeals (“BIA”), has also recognized that Congress’ intent in

enacting the Refugee Act was to align domestic refugee law with

the United States’ obligations under the Protocol, to give

statutory meaning to “our national commitment to human rights

5 and humanitarian concerns,” and “to afford a generous standard

for protection in cases of doubt.” In Re S-P-, 21 I. & N. Dec.

486, 492 (B.I.A. 1998)(quoting S. REP. NO. 256, 96th Cong., 2d

Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141, 144).

The Refugee Act created a statutory procedure for refugees

seeking asylum and established the standards for granting such

requests; the INA currently governs that procedure. The INA

gives the Attorney General discretion to grant asylum to

removable aliens. 8 U.S.C. § 1158(b)(1)(A). However, that relief

can only be granted if the alien is a “refugee.” Id. The term

“refugee” is defined as:

[A]ny 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)(A). “Thus, the ‘persecution or well-

founded fear of persecution’ standard governs the Attorney

General’s determination [of] whether an alien is eligible for

asylum.” Cardoza-Fonseca, 480 U.S. at 428. To establish refugee

status, the alien must show he or she is someone who: (1) has

suffered persecution (or has a well-founded fear of persecution)

(2) on account of (3) one of five specific protected grounds:

6 race, religion, nationality, membership in a particular social

group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A). An

alien fearing harm by non-governmental actors is eligible for

asylum if the other criteria are met, and the government is

“unable or unwilling to control” the persecutor. Matter of

Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) overruled on other

grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

Expedited Removal Process

Before seeking asylum through the procedures outlined

above, however, many aliens are subject to a streamlined removal

process called “expedited removal.” 8 U.S.C. § 1225. Prior to

1996, every person who sought admission into the United States

was entitled to a full hearing before an immigration judge, and

had a right to administrative and judicial review. See Am.

Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 41 (D.D.C.

1998)(describing prior system for removal). The Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”) amended the INA to provide for a summary removal

process for adjudicating the claims of aliens who arrive in the

United States without proper documentation. As described in the

IIRIRA Conference Report, the purpose of the expedited removal

procedure

is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted . . . , while

7 providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims.

H.R. REP. NO. 104–828, at 209–10 (1996)(“Conf. Rep.”).

Consistent with that purpose, Congress carved out an

exception to the expedited removal process for individuals with

a “credible fear of persecution.” See 8 U.S.C.

§ 1225(b)(1)(B)(ii). If an alien “indicates either an intention

to apply for asylum . . . or a fear of persecution,” the alien

must be referred for an interview with a U.S. Citizenship and

Immigration Services (“USCIS”) asylum officer. Id.

§ 1225(b)(1)(A)(ii). During this interview, the asylum officer

is required to “elicit all relevant and useful information

bearing on whether the applicant has a credible fear of

persecution or torture[.]” 8 C.F.R. § 208.30(d). The asylum

officer must “conduct the interview in a nonadversarial manner.”

Id.

Expediting the removal process, however, risks sending

individuals who are potentially eligible for asylum to their

respective home countries where they face a real threat, or have

a credible fear of persecution. Understanding this risk,

Congress intended the credible fear determinations to be

governed by a low screening standard. See 142 CONG. REC. S11491-02

(“The credible fear standard . . . is intended to be a low

8 screening standard for admission into the usual full asylum

process”); see also H.R. REP. NO. 104-469, pt. 1, at 158

(1996)(stating “there should be no danger that an alien with a

genuine asylum claim will be returned to persecution”). A

credible fear is defined as a “significant possibility, taking

into account the credibility of the statements made by the alien

in support of the alien’s claim and such other facts as are

known to the officer, that the alien could establish eligibility

for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).

If, after a credible fear interview, the asylum officer

finds that the alien does have a “credible fear of persecution”

the alien is taken out of the expedited removal process and

referred to a standard removal hearing before an immigration

judge. See 8 U.S.C. § 1225(b)(1)(B)(ii), (v). At that hearing,

the alien has the opportunity to develop a full record with

respect to his or her asylum claim, and may appeal an adverse

decision to the BIA, 8 C.F.R. § 208.30(f), and then, if

necessary, to a federal court of appeals, see 8 U.S.C.

§ 1252(a)-(b).

If the asylum officer renders a negative credible fear

determination, the alien may request a review of that

determination by an immigration judge. 8 U.S.C.

§ 1225(b)(1)(B)(iii)(III). The immigration judge’s decision is

“final and may not be appealed” 8 C.F.R. § 1208.30(g)(2)(iv)(A),

9 except in limited circumstances. See 8 U.S.C. § 1252(e).

Judicial Review

Section 1252 delineates the scope of judicial review of

expedited removal orders and limits judicial review of orders

issued pursuant to negative credible fear determinations to a

few enumerated circumstances. See 8 U.S.C. § 1252(a). The

section provides that “no court shall have jurisdiction to

review . . . the application of [section 1225(b)(1)] to

individual aliens, including the [credible fear] determination

made under section 1225(b)(1)(B).” 8 U.S.C.

§ 1252(a)(2)(A)(iii). Moreover, except as provided in section

1252(e), the statute prohibits courts from reviewing: (1) “any

individual determination or to entertain any other cause or

claim arising from or relating to the implementation or

operation of an [expedited removal] order;” (2) “a decision by

the Attorney General to invoke” the expedited removal regime;

and (3) the “procedures and policies adopted by the Attorney

General to implement the provisions of section 1225(b)(1).” Id.

§ 1252(a)(2)(A)(i), (ii) & (iv).

Section 1252(e) provides for judicial review of two types

of challenges to removal orders pursuant to credible fear

determinations. The first is a habeas corpus proceeding limited

to reviewing whether the petitioner was erroneously removed

because he or she was, among other things, lawfully admitted for

10 permanent residence, or had previously been granted asylum.

8 U.S.C. § 1252(e)(2)(C). As relevant here, the second

proceeding available for judicial review is a systemic challenge

to the legality of a “written policy directive, written policy

guideline, or written procedure issued by or under the authority

of the Attorney General to implement” the expedited removal

process. Id. § 1252(e)(3)(A)(ii). Jurisdiction to review such a

systemic challenge is vested solely in the United States

District Court for the District of Columbia. Id.

§ 1252(e)(3)(A).

B. Executive Guidance on Asylum Claims

Precedential Decision

The Attorney General has the statutory and regulatory

authority to make determinations and rulings with respect to

immigration law. See, e.g., 8 U.S.C. § 1103(a)(1). This

authority includes the ability to certify cases for his or her

review and to issue binding decisions. See 8 C.F.R.

§§ 1003.1(g)-(h)(1)(ii).

On June 11, 2018, then-Attorney General Sessions did

exactly that when he issued a precedential decision in an asylum

case, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). In Matter

of A-B-, the Attorney General reversed a grant of asylum to a

Salvadoran woman who allegedly fled several years of domestic

violence at the hands of her then-husband. Id. at 321, 346.

11 The decision began by overruling another case, Matter of A-

R-C-G-, 27 I. & N. Dec. 388 (BIA 2014). Id. at 319. In A-R-C-G-,

the BIA recognized “married women in Guatemala who are unable to

leave their relationship” as a “particular social group” within

the meaning of the asylum statute. 27 I. & N. Dec. at 392. The

Attorney General’s rationale for overruling A-R-C-G- was that it

incorrectly applied BIA precedent, “assumed its conclusion and

did not perform the necessary legal and factual analysis”

because, among other things, the BIA accepted stipulations by

DHS that the alien was a member of a qualifying particular

social group. Matter of A-B-, 27 I. & N. Dec. at 319. In so

doing, the Attorney General made clear that “[g]enerally, claims

by aliens pertaining to domestic violence or gang violence

perpetrated by non-governmental actors will not qualify for

asylum,” id. at 320, 4 and “[a]ccordingly, few such claims would

satisfy the legal standard to determine whether an alien has a

credible fear of persecution.” Id. at 320 n.1 (citing 8 U.S.C.

§ 1225(b)(1)(B)(v)).

The Attorney General next reviewed the history of BIA

precedent interpreting the “particular social group” standard

and again explained, at length, why A-R-C-G- was wrongly

4 Although Matter of A-B- discusses gang-related violence at length, the applicant in Matter of A-B- never claimed gang members had any involvement in her case. Id. at 321 (describing persecution related to domestic violence). 12 decided. In so ruling, the Attorney General articulated legal

standards for determining asylum cases based on persecution from

non-governmental actors on account of membership in a particular

social group, focusing principally on claims by victims of

domestic abuse and gang violence. He specifically stated that

few claims pertaining to domestic or gang violence by non-

governmental actors could qualify for asylum or satisfy the

credible fear standard. See id. at 320 n.1.

The Attorney General next focused on the specific elements

of an asylum claim beginning with the standard for membership in

a “particular social group.” The Attorney General declared that

“[s]ocial groups defined by their vulnerability to private

criminal activity likely lack the particularity required” under

asylum laws since “broad swaths of society may be susceptible to

victimization.” Id. at 335.

The Attorney General next examined the persecution

requirement, which he described as having three elements: (1) an

intent to target a belief or characteristic; (2) severe harm;

and (3) suffering inflicted by the government or by persons the

government was unable or unwilling to control. Id. at 337. With

respect to the last element, the Attorney General stated that an

alien seeking to establish persecution based on the violent

conduct of a private actor may not solely rely on the

government’s difficulty in controlling the violent behavior. Id.

13 Rather, the alien must show “the government condoned the private

actions or at least demonstrated a complete helplessness to

protect the victims.” Id. (citations and internal quotation

marks omitted).

The Attorney General concluded with a discussion of the

requirement that an asylum applicant demonstrate that the

persecution he or she suffered was on account of a membership in

a “particular social group.” Id. at 338–39. He explained that

“[i]f the ill-treatment [claimed by an alien] was motivated by

something other than” one of the five statutory grounds for

asylum, then the alien “cannot be considered a refugee for

purpose of asylum.” Id. at 338 (citations omitted). He continued

to explain that when private actors inflict violence based on

personal relationships with a victim, the victim’s membership in

a particular social group “may well not be ‘one central reason’

for the abuse.” Id. Using Matter of A-R-C-G- as an example, the

Attorney General stated that there was no evidence that the

alien was attacked because her husband was aware of, and hostile

to, her particular social group: women who were unable to leave

their relationship. Id. at 338-39. The Attorney General remanded

the matter back to the immigration judge for further proceedings

consistent with his decision. Id. at 346.

14 Policy Memorandum

Two days after the Attorney General issued Matter of A-B-,

USCIS issued Interim Guidance instructing asylum officers to

apply Matter of A-B- to credible fear determinations. Asylum

Division Interim Guidance -- Matter of A-B-, 27 I. & N. Dec. 316

(A.G. 2018) (“Interim Guidance”), ECF No. 100 at 15–18. 5 On July

11, 2018, USCIS issued final guidance to asylum officers for use

in assessing asylum claims and credible fear determinations in

light of Matter of A-B-. USCIS Policy Mem., Guidance for

Processing Reasonable Fear, Credible Fear, Asylum, and Refugee

Claims in Accordance with Matter of A-B-, July 11, 2018 (PM-602-

0162) (“Policy Memorandum”), ECF No. 100 at 4–13.

The Policy Memorandum adopts the standards set forth in

Matter of A-B- and adds new directives for asylum officers.

First, like Matter of A-B-, the Policy Memorandum invokes the

expedited removal statute. Id. at 4 (citing section 8 U.S.C.

§ 1225 as one source of the Policy Memorandum’s authority). The

Policy Memorandum further acknowledges that “[a]lthough the

alien in Matter of A-B- claimed asylum and withholding of

removal, the Attorney General’s decision and this [Policy

Memorandum] apply also to refugee status adjudications and

5 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed docket. 15 reasonable fear and credible fear determinations.” Id. n.1

(citations omitted).

The Policy Memorandum also adopts the standard for

“persecution” set by Matter of A-B-: In cases of alleged

persecution by private actors, aliens must demonstrate the

“government is unwilling or unable to control” the harm “such

that the government either ‘condoned the behavior or

demonstrated a complete helplessness to protect the victim.’”

Id. at 5 (citing Matter of A-B-, 27 I. & N. Dec. at 337). After

explaining the “condoned or complete helplessness” standard, the

Policy Memorandum explains that:

In general, in light of the [standards governing persecution by a non-government actor], claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non- government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.

Id. at 9 (emphasis in original).

Furthermore, the Policy Memorandum made clear that because

Matter of A-B- “explained the standards for eligibility for

asylum . . . based on a particular social group . . . if an

applicant claims asylum based on membership in a particular

social group, then officers must factor [the standards explained

in Matter of A-B-] into their determination of whether an

16 applicant has a credible fear . . . of persecution.” Id. at 12

(citations and internal quotation marks omitted).

The Policy Memorandum includes two additional directives

not found in Matter of A-B-. First, it instructs asylum officers

to apply the “case law of the relevant federal circuit court, to

the extent that those cases are not inconsistent with Matter of

A-B-.” Id. at 11. Second, although acknowledging that the

“relevant federal circuit court is the circuit where the removal

proceedings will take place if the officer makes a positive

credible fear or reasonable fear determination,” the Policy

Memorandum instructs asylum officers to “apply precedents of the

Board, and, if necessary, the circuit where the alien is

physically located during the credible fear interview.” Id. at

11–12. (emphasis added).

The Policy Memorandum concludes with the directive that

“[asylum officers] should be alert that under the standards

clarified in Matter of A-B-, few gang-based or domestic-violence

claims involving particular social groups defined by the

members’ vulnerability to harm may . . . pass the ‘significant

probability’ test in credible-fear screenings.” Id. at 13.

C. Factual and Procedural Background

Each of the plaintiffs, twelve adults and children, came to

the United States fleeing violence from Central America and

seeking refuge through asylum. Plaintiff Grace fled Guatemala

17 after having been raped, beaten, and threatened for over twenty

years by her partner who disparaged her because of her

indigenous heritage. Grace Decl., ECF No. 12-1 ¶ 2. 6 Her

persecutor also beat, sexually assaulted, and threatened to kill

several of her children. Id. Grace sought help from the local

authorities who, with the help of her persecutor, evicted her

from her home. Id.

Plaintiff Carmen escaped from her country with her young

daughter, J.A.C.F., fleeing several years of sexual abuse by her

husband, who sexually assaulted, stalked, and threatened her,

even after they no longer resided together. Carmen Decl., ECF

No. 12-2 ¶ 2. In addition to Carmen’s husband’s abuse, Carmen

and her daughter were targeted by a local gang because they knew

she lived alone and did not have the protection of a family. Id.

¶ 24. She fled her country of origin out of fear the gang would

kill her. Id. ¶ 28.

Plaintiff Mina escaped from her country after a gang

murdered her father-in-law for helping a family friend escape

from the gang. Mina Decl., ECF No. 12-3 ¶ 2. Her husband went to

the police, but they did nothing. Id. at ¶ 10. While her husband

was away in a neighboring town to seek assistance from another

police force, members of the gang broke down her door and beat

6 The plaintiffs’ declarations have been filed under seal. 18 Mina until she could no longer walk. Id. ¶ 15. She sought asylum

in this country after finding out she was on a “hit list”

compiled by the gang. Id. ¶¶ 17–18.

The remaining plaintiffs have similar accounts of abuse

either by domestic partners or gang members. Plaintiff Gina fled

violence from a politically-connected family who killed her

brother, maimed her son, and threatened her with death. Gina

Decl., ECF No. 12-4 ¶ 2. Mona fled her country after a gang

brutally murdered her long-term partner—a member of a special

military force dedicated to combating gangs—and threatened to

kill her next. Mona Decl., ECF No. 12-5 ¶ 2. Gio escaped from

two rival gangs, one of which broke his arm and threatened to

kill him, and the other threatened to murder him after he

refused to deal drugs because of his religious convictions. Gio

Decl., ECF No. 12-6 ¶ 2. Maria, an orphaned teenage girl,

escaped a forced sexual relationship with a gang member who

targeted her after her Christian faith led her to stand up to

the gang. Maria Decl., ECF No. 12-7 ¶ 2. Nora, a single mother,

together with her son, A.B.A., fled an abusive partner and

members of his gang who threatened to rape her and kill her and

her son if she did not submit to the gang’s sexual advances.

Nora Decl., ECF No. 12-8 ¶ 2. Cindy, together with her young

child, A.P.A., fled rapes, beatings, and shootings

19 . Cindy Decl., ECF No. 12-9 ¶ 2. 7

Each plaintiff was given a credible fear determination

pursuant to the expedited removal process. Despite finding that

the accounts they provided were credible, the asylum officers

determined that, in light of Matter of A-B-, their claims lacked

merit, resulting in a negative credible fear determination.

Plaintiffs sought review of the negative credible fear

determinations by an immigration judge, but the judge affirmed

the asylum officers’ findings. Plaintiffs are now subject to

final orders of removal or were removed pursuant to such orders

prior to commencing this suit. 8

Facing imminent deportation, plaintiffs filed a motion for

preliminary injunction, ECF No. 10, and an emergency motion for

stay of removal, ECF No. 11, on August 7, 2018. In their motion

for stay of removal, plaintiffs sought emergency relief because

two of the plaintiffs, Carmen and her daughter J.A.C.F., were

“subject to imminent removal.” ECF No. 11 at 1.

The Court granted the motion for emergency relief as to the

plaintiffs not yet deported. The parties have since filed cross-

7 Each plaintiffs’ harrowing accounts were found to be believable during the plaintiffs’ credible fear interviews. Oral Arg. Hr’g Tr., ECF No. 102 at 37. 8 Since the Court’s Order staying plaintiffs’ removal, two

plaintiffs have moved for the Court to lift the stay and have accordingly been removed. See Mot. to Lift Stay, ECF Nos. 28 (plaintiff Mona), 60 (plaintiff Gio). 20 motions for summary judgment related to the Attorney General’s

precedential decision and the Policy Memorandum issued by DHS.

Further, plaintiffs have filed an opposed motion to consider

evidence outside the administrative record.

II. Motion to Consider Extra Record Evidence

Plaintiffs attach several exhibits to their combined

application for a preliminary injunction and cross-motion for

summary judgment, see ECF Nos. 10–2 to 10–7, 12-1 to 12-9, 64-3

to 64-8, which were not before the agency at the time it made

its decision. These exhibits include: (1) declarations from

plaintiffs; (2) declarations from experts pertaining to whether

the credible fear policies are new; (3) government training

manuals, memoranda, and a government brief; (4) third-party

country reports or declarations; (5) various newspaper articles;

and (6) public statements from government officials. Pls.’ Evid.

Mot., ECF No. 66-1 at 7–16. The government moves to strike these

exhibits, arguing that judicial review under the APA is limited

to the administrative record, which consists of the “materials

that were before the agency at the time its decision was made.”

Defs.’ Mot. to Strike, ECF No. 88-1 at 20.

A. Legal Standard

“[I]t is black-letter administrative law that in an APA

case, a reviewing court ‘should have before it neither more nor

less information than did the agency when it made its

21 decision.’” Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709

F.3d 44, 47 (D.C. Cir. 2013)(quoting Walter O. Boswell Mem'l

Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). This is

because, under the APA, the court is confined to reviewing “the

whole record or those parts of it cited by a party,” 5 U.S.C.

§ 706, and the administrative record only includes the

“materials ‘compiled’ by the agency that were ‘before the agency

at the time the decision was made,’” James Madison Ltd. by Hecht

v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)(citations

omitted).

Accordingly, when, as here, plaintiffs seek to place before

the court additional materials that the agency did not review in

making its decision, a court must exclude such material unless

plaintiffs “can demonstrate unusual circumstances justifying

departure from th[e] general rule.” Am. Wildlands v. Kempthorne,

530 F.3d 991, 1002 (D.C. Cir. 2008)(citation omitted). Aa court

may appropriately consider extra-record materials: (1) if the

agency “deliberately or negligently excluded documents that may

have been adverse to its decision,” (2) if background

information is needed to “determine whether the agency

considered all of the relevant factors,” or (3) if the agency

“failed to explain [the] administrative action so as to

frustrate judicial review.” Id.

Plaintiffs make three arguments as to why the Court should

22 consider their proffered extra-record materials: (1) to evaluate

whether the government’s challenged policies are an

impermissible departure from prior policies; (2) to consider

plaintiffs’ due process cause of action 9; and (3) to evaluate

plaintiffs’ request for permanent injunctive relief. Pls.’ Evid.

Mot., ECF No. 66-1 at 2–12. The Court considers each argument in

turn.

B. Analysis

Evidence of Prior Policies

Plaintiffs first argue that the Court should consider

evidence of the government’s prior policies as relevant to

determining whether the policies in Matter of A-B- and the

subsequent guidance deviated from prior policies without

explanation. Id. at 8–11. The extra-record materials at issue

include government training manuals, memoranda, and a government

brief, see Decl. of Sarah Mujahid (“Mujahid Decl.”), ECF No. 10-

3 Exs. E–J; Second Decl. of Sarah Mujahid (“Second Mujahid

Decl.”), ECF No. 64-4, Exs. 1–3, and declarations from third

parties explaining the policies are new, Decl. of Rebecca Jamil

and Ethan Nasr, ECF No. 65-5.

The Court will consider the government training manuals,

9 The Court does not reach plaintiffs’ due process claims, and therefore will not consider the extra-record evidence related to that claim. See Second Mujahid Decl., ECF No. 64-4, Exs. 4–7; Second Mujahid Decl., ECF No. 64-4, Exs. 8-9; ECF No. 64-5. 23 memoranda, and government brief, but not the declarations

explaining them. Plaintiffs argue that the credible fear

policies are departures from prior government policies, which

the government changed without explanation. Pls.’ Evid. Mot.,

ECF No. 66-1 at 7–11. The government’s response is the credible

fear policies are not a departure because they do not articulate

any new rules. See Defs.’ Mot., ECF No. 57-1 at 17. Whether the

credible fear policies are new is clearly an “unresolved factual

issue” that the “administrative record, on its own, . . . is not

sufficient to resolve.” See United Student Aid Funds, Inc. v.

Devos, 237 F. Supp. 3d 1, 6 (D.D.C. 2017). The Court cannot

analyze this argument without reviewing the prior policies,

which are not included in the administrative record. Under these

circumstances, it is “appropriate to resort to extra-record

information to enable judicial review to become effective.” Id.

at 3 (citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir.

1989)).

The government agrees that “any claim that A-B- or the

[Policy Memorandum] breaks with past policies . . . is readily

ascertainable by simply reviewing the very ‘past policies.’”

Defs.’ Mot. to Strike, ECF No. 88-1 at 24. However, the

government disagrees with the types of documents that are

considered past policies. Id. According to the government, the

only “past policies” at issue are legal decisions issued by the

24 Attorney General, BIA, or courts of appeals. Id. The Court is

not persuaded by such a narrow interpretation of the evidence

that can be considered as past policies. See Leadership

Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 255

(D.D.C. 2005)(finding training manual distributed as informal

guidance “at a minimum” reflected the policy of the “Elections

Crimes Branch if not the Department of Justice”).

Admitting third party-declarations from a retired immigration

officer and former immigration judge, on the other hand, are not

necessary for the Court in its review. Declarations submitted by

third-parties regarding putative policy changes would stretch

the limited extra-record exception too far. Accordingly, the

Court will not consider these declarations when determining

whether the credible fear policies constitute an unexplained

change of position.

Evidence Supporting Injunctive Relief

The second category of information plaintiffs ask the Court

to consider is extra-record evidence in support of their claim

that injunctive relief is appropriate. Pls.’ Evid. Mot., ECF No.

66-1 at 13–16. The evidence plaintiffs present includes

plaintiffs’ declarations, ECF Nos. 12-1 to 12-9 (filed under

seal); several reports describing the conditions of plaintiffs’

native countries, Mujahid Decl., ECF No. 10-3, Exs. K-T; and

four United Nations High Commissioner for Refugees (“UNHCR”)

25 reports, Second Mujahid Decl., ECF No. 64-4 Exs. 10–13. The

materials also include three declarations regarding humanitarian

conditions in the three home countries. Joint Decl. of Shannon

Drysdale Walsh, Cecilia Menjívar, and Harry Vanden (“Honduras

Decl.”), ECF No. 64-6; Joint Decl. of Cecilia Menjívar, Gabriela

Torres, and Harry Vanden (“Guatemala Decl.”), ECF No. 64-7;

Joint Decl. of Cecilia Menjívar and Harry Vanden (“El Salvador

Decl.”), ECF No. 64-8.

The government argues that the Court need not concern itself

with the preliminary injunction analysis because the Court’s

decision to consolidate the preliminary injunction and summary

judgment motions under Rule 65 renders the preliminary

injunction moot. Defs.’ Mot. to Strike, ECF No. 88-1 at 12 n.1.

The Court concurs, but nevertheless must determine if plaintiffs

are entitled to a permanent injunction, assuming they prevail on

their APA and INA claims. Because plaintiffs request specific

injunctive relief with respect to their expedited removal orders

and credible fear proceedings, the Court must determine whether

plaintiffs are entitled to the injunctive relief sought. See Eco

Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 370, n.7

(D.D.C. 2017)(“it will often be necessary for a court to take

new evidence to fully evaluate” claims “of irreparable harm . .

. and [claims] that the issuance of the injunction is in the

public interest.”)(citation omitted). Thus, the Court will

26 consider plaintiffs’ declarations, the UNHCR reports, and the

country reports only to the extent they are relevant to

plaintiffs’ request for injunctive relief. 10

In sum, the Court will consider extra-record evidence only to

the extent it is relevant to plaintiffs’ contentions that the

government deviated from prior policies without explanation or

to their request for injunctive relief. The Court will not

consider any evidence related to plaintiffs’ due process claim.

Accordingly, the Court will not consider the following

documents: (1) evidence related to the opinions of immigration

judges and attorneys, Second Mujahid Decl., ECF No. 64-4, Exs.

8–9, 14–17 and ECF No. 64-5; (2) statements of various public

officials, Second Mujahid Decl., ECF No. 64-4, Exs. 4–7; and

(3) various newspaper articles, Mujahid Decl., ECF No. 10-3,

Exs. R-T, and Second Mujahid Decl., ECF No. 64-4, Exs. 14–17.

III. Motion for Summary Judgment

A. Justiciability

The Court next turns to the government’s jurisdictional

arguments that: (1) the Court lacks jurisdiction to review

plaintiffs’ challenge to Matter of A-B-; and (2) because the

Court lacks jurisdiction to review Matter of A-B-, the

10The Court will not consider three newspaper articles, Mujahid Decl., ECF No. 10-3, Exs. R–T, however, since they are not competent evidence to be considered at summary judgment. See Fed. R. Civ. P. 56(c). 27 government action purportedly causing plaintiffs’ alleged harm,

the plaintiffs lack standing to challenge the Policy Memorandum.

Federal district courts are courts of limited jurisdiction. See

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). A court must therefore resolve any challenge to its

jurisdiction before it may proceed to the merits of a claim. See

Galvan v. Fed. Prison Indus., 199 F.3d 461, 463 (D.C. Cir.

1999). The Court addresses each argument in turn.

The Court has Jurisdiction under Section 1252(e)(3)

a. Matter of A-B-

The government contends that section 1252 forecloses

judicial review of plaintiffs’ claims with respect to Matter of

A-B-. Defs.’ Mot., ECF No. 57-1 at 30–34. Plaintiffs argue that

the statute plainly provides jurisdiction for this Court to

review their claims. Pls.’ Mot., ECF No. 64-1 at 26–30. The

parties agree that to the extent jurisdiction exists to review a

challenge to a policy implementing the expedited removal system,

it exists pursuant to subsection (e) of the statute.

Under section 1252(a)(2)(A), no court shall have

jurisdiction over “procedures and policies adopted by the

Attorney General to implement the provisions of section

1225(b)(1)” except “as provided in subsection [1252](e).”

Section 1252(e)(3) vests exclusive jurisdiction in the United

States District Court for the District of Columbia to review

28 “[c]hallenges [to the] validity of the [expedited removal]

system.” Id. § 1252(e)(3)(A). Such systemic challenges include

challenges to the constitutionality of any provision of the

expedited removal statute or to its implementing regulations.

See id. § 1252(e)(3)(A)(i). They also include challenges

claiming that a given regulation or written policy directive,

guideline, or procedure is inconsistent with law. Id. §

1252(e)(3)(A)(ii). Systemic challenges must be brought within

sixty days of the challenged statute or regulation’s

implementation. Id. § 1252(e)(3)(B); see also Am. Immigration

Lawyers Ass'n, 18 F. Supp. 2d at 47 (holding that “the 60–day

requirement is jurisdictional rather than a traditional

limitations period”).

Both parties agree that the plain language of section

1252(e)(3) is dispositive. It reads as follows:

(3) Challenges on validity of the system

(A) In general

Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of--

(i) whether such section, or any regulation issued to implement such section, is constitutional; or

(ii) whether such a regulation, or a written policy directive, written policy guideline, or

29 written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.

8 U.S.C. § 1252(e)(3).

The government first argues that Matter of A-B- does not

implement section 1225(b), as required by section 1252(e)(3).

Defs.’ Mot., ECF No. 57-1 at 30–32. Instead, the government

contends Matter of A-B- was a decision about petitions for

asylum under section 1158. Id. The government also argues that

Matter of A-B- is not a written policy directive under the Act,

but rather an adjudication that determined the rights and duties

of the parties to a dispute. Id. at 32.

The government’s argument that Matter of A-B- does not

“implement” section 1225(b) is belied by Matter of A-B- itself.

Although A-B- sought asylum, the Attorney General’s decision

went beyond her claims explicitly addressing “the legal standard

to determine whether an alien has a credible fear of

persecution” under 8 U.S.C. section 1225(b). Matter of A-B-, 27

I. & N. Dec. at 320 n.1 (citing standard for credible fear

determinations). In the decision, the Attorney General

articulated the general rule that claims by aliens pertaining to

either domestic violence, like the claim in Matter of A-B-, or

gang violence, a hypothetical scenario not at issue in Matter of

A-B-, would likely not satisfy the credible fear determination

30 standard. Id. (citing 8 U.S.C. § 1225(b)). Because the Attorney

General cited section 1225(b) and the standard for credible fear

determinations when articulating the new general legal standard,

the Court finds that Matter of A-B- implements section 1225(b)

within the meaning of section 1252(e)(3).

The government also argues that, despite Matter of A-B-’s

explicit invocation of section 1225 and articulation of the

credible fear determination standard, Matter of A-B- is an

“adjudication” not a “policy,” and therefore section 1252(e)(3)

does not apply. Defs.’ Mot., ECF No. 57-1 at 32–34. However, it

is well-settled that an “administrative agency can, of course,

make legal-policy through rulemaking or by adjudication.” Kidd

Commc’ns v. F.C.C., 427 F.3d 1, 5 (D.C. Cir. 2005)(citing SEC v.

Chenery Corp., 332 U.S. 194, 202–03 (1947)). Moreover, “[w]hen

an agency does [make policy] by adjudication, because it is a

policymaking institution unlike a court, its dicta can represent

an articulation of its policy, to which it must adhere or

adequately explain deviations.” Id. at 5. Matter of A-B- is a

sweeping opinion in which the Attorney General made clear that

asylum officers must apply the standards set forth to subsequent

credible fear determinations. See NRLB v. Wyman Gordon Co., 394

U.S. 759, 765 (1969)(“Adjudicated cases may and do, of course,

serve as vehicles for the formulation of agency policies, which

are applied and announced therein.”).

31 Indeed, it is difficult to reconcile the government’s

argument with the language in Matter of A-B-: “When confronted

with asylum cases based on purported membership in a particular

social group, the Board, immigration judges, and asylum officers

must analyze the requirements as set forth in this opinion,

which restates and where appropriate, elaborates upon, the

requirements [for asylum].” 27 I. & N. Dec. at 319 (emphasis

added). This proclamation, coupled with the directive to asylum

officers that claims based on domestic or gang-related violence

generally would not “satisfy the standard to determine whether

an alien has a credible fear of persecution,” id. at 320 n.1, is

clearly a “written policy directive” or “written policy

guidance” sufficient to bring Matter of A-B- under the ambit of

section 1252(e)(3). See Kidd, 427 F.3d at 5 (stating agency can

“make legal-policy through rulemaking or by adjudication”).

Indeed, one court has regarded Matter of A-B- as such. See

Moncada v. Sessions, 2018 WL 4847073 *2 (2d Cir. Oct. 5,

2018)(characterizing Matter of A-B- as providing “substantial

new guidance on the viability of asylum ‘claims by aliens

pertaining to . . . gang violence’”)(emphasis added)(citation

The government also argues that because the DHS Secretary,

rather than the Attorney General, is responsible for

implementing most of the provisions in section 1225, the

32 Attorney General lacks the requisite authority to implement

section 1225. Defs.’ Reply, ECF No. 85 at 25. Therefore, the

government argues, Matter of A-B- cannot be “issued by or under

the authority of the Attorney General to implement [section

1225(b)]” as required by the statute. See 8 U.S.C.

§ 1252(e)(3)(A)(ii). The government fails to acknowledge,

however, that the immigration judges who review negative

credible fear determinations are also required to apply Matter

of A-B-. 8 C.F.R. § 1208.30(g)(2); 8 C.F.R. § 103.10(b)(stating

decisions of the Attorney General shall be binding on

immigration judges). And it is the Attorney General who is

responsible for the conduct of immigration judges. See, e.g., 8

U.S.C. § 1101(b)(4)(“An immigration judge shall be subject to

such supervision and shall perform such duties as the Attorney

General shall prescribe.”). Therefore, the Attorney General

clearly plays a significant role in the credible fear

determination process and has the authority to “implement”

section 1225.

Finally, the Court recognizes that even if the

jurisdictional issue was a close call, which it is not, several

principles persuade the Court that jurisdiction exists to hear

plaintiffs’ claims. First, there is the “familiar proposition

that only upon a showing of clear and convincing evidence of a

contrary legislative intent should the courts restrict access to

33 judicial review.” Bd. of Governors of the Fed. Reserve Sys. v.

MCorp. Fin., Inc., 502 U.S. 32, 44 (1991)(citations and internal

quotation marks omitted). Here, there is no clear and convincing

evidence of legislative intent in section 1252 that Congress

intended to limit judicial review of the plaintiffs’ claims. To

the contrary, Congress has explicitly provided this Court with

jurisdiction to review systemic challenges to section 1225(b).

See 8 U.S.C. § 1252(e)(3).

Second, there is also a “strong presumption in favor of

judicial review of administrative action.” INS v. St. Cyr, 533

U.S. 289, 298 (2001). As the Supreme Court has recently

explained, “legal lapses and violations occur, and especially so

when they have no consequence. That is why [courts have for] so

long applied a strong presumption favoring judicial review of

administrative action.” Weyerhaeuser Co. v. United States Fish

and Wildlife Servs., 586 U.S. __,__ (2018)(slip op., at 11).

Plaintiffs challenge the credible fear policies under the APA

and therefore this “strong presumption” applies in this case.

Third, statutory ambiguities in immigration laws are

resolved in favor of the alien. See Cardoza–Fonseca, 480 U.S. at

449. Here, any doubt as to whether 1252(e)(3) applies to

plaintiffs’ claims should be resolved in favor of plaintiffs.

See INS v. Errico, 385 U.S. 214, 225 (1966)(“Even if there were

some doubt as to the correct construction of the statute, the

34 doubt should be resolved in favor of the alien.”).

In view of these three principles, and the foregoing

analysis, the Court concludes that section 1252(a)(2)(A) does

not eliminate this Court's jurisdiction over plaintiffs’ claims,

and that section 1252(e)(3) affirmatively grants jurisdiction.

b. Policy Memorandum

The government also argues that the Court lacks

jurisdiction to review the Policy Memorandum under section

1252(e) for three reasons. First, according to the government,

the Policy Memorandum “primarily addresses the asylum standard”

and therefore does not implement section 1225(b) as required by

the statute. Defs.’ Reply, ECF No. 85 at 30. Second, since the

Policy Memorandum “merely explains” Matter of A-B-, the

government argues, it is not reviewable for the same reasons

Matter of A-B- is not reviewable. Id. Finally, the government

argues that sections 1225 and 1252(e)(3) “indicate” that

Congress only provided judicial review of agency guidelines,

directives, or procedures which create substantive rights as

opposed to interpretive documents, like the Policy Memorandum,

which merely explain the law to government officials. Id. at 31–

33.

The Court need not spend much time on the government’s

first two arguments. First, the Policy Memorandum, entitled

“Guidance for Processing Reasonable Fear, Credible Fear, Asylum,

35 and Refugee Claims in Accordance with Matter of A-B-” expressly

applies to credible fear interviews and provides guidance to

credible fear adjudicators. Policy Memorandum, ECF No. 100 at 4

n.1 (“[T]he Attorney General’s decision and this [Policy

Memorandum] apply also to . . . credible fear determinations.”).

Furthermore, it expressly invokes section 1225 as the authority

for its issuance. Id. at 4. The government’s second argument

that the Policy Memorandum is not reviewable for the same

reasons Matter of A-B- is not, is easily dismissed because the

Court has already found that Matter of A-B- falls within section

1252(e)(3)’s jurisdictional grant. See supra, at 27-38.

The government’s third argument is that section 1252(e)(3)

only applies when an agency promulgates legislative rules and

not interpretive rules. Defs.’ Reply, ECF No. 85 at 30–33.

Although not entirely clear, the argument is as follows: (1) the

INA provides DHS with significant authority to create

legislative rules; (2) Congress barred judicial review of such

substantive rules in section 1252(a); (3) therefore Congress

must have created a mechanism to review these types of

legislative rules, and only legislative rules, in section

1252(e)(3)). Id. at 30–31. Folded into this reasoning is also a

free-standing argument that because the Policy Memorandum is not

a final agency action, it is not reviewable under the APA. Id.

at 32.

36 Contrary to the government’s assertions, section 1252(e)(3)

does not limit its grant of jurisdiction over a “written policy

directive, written policy guideline, or written procedure” to

only legislative rules or final agency action. Nowhere in the

statute did Congress exclude interpretive rules. Cf. 5 U.S.C.

§ 553(b)(3)(A)(stating subsection of statute does not apply to

“interpretative rules, general statements of policy, or rules of

agency organization, procedure, or practice.”). Rather, Congress

used broader terms such as policy “guidelines,” “directives,” or

“procedures” which do not require notice and comment rulemaking

or other strict procedural prerequisites. See 8 U.S.C.

§ 1252(e)(3). There is no suggestion that Congress limited the

application of section 1252(e)(3) to only claims involving

legislative rules or final agency action, and this Court will

not read requirements into the statute that do not exist. See

Keene Corp. v. U.S., 508 U.S. 200, 208 (1993)(stating courts

have a “duty to refrain from reading a phrase into the statute

when Congress has left it out”).

In sum, section 1252(a)(2)(A) is not a bar to this Court's

jurisdiction because plaintiffs’ claims fall well within section

1252(e)(3)’s grant of jurisdiction. Both Matter of A-B- and the

Policy Memorandum expressly reference credible fear

determinations in applying the standards articulated by the

Attorney General. Because Matter of A-B- and the Policy

37 Memorandum are written policy directives and guidelines issued

by or under the authority of the Attorney General, section

1252(e)(3) applies, and this Court has jurisdiction to hear

plaintiffs’ challenges to the credible fear policies.

Plaintiffs have Standing to Challenge the Policy Memorandum

The government next challenges plaintiffs’ standing to

bring this suit with respect to their claims against the Policy

Memorandum only. Defs.’ Mot., ECF No. 57-1 at 35–39. To

establish standing, a plaintiff “must, generally speaking,

demonstrate that he has suffered ‘injury in fact,’ that the

injury is ‘fairly traceable’ to the actions of the defendant,

and that the injury will likely be redressed by a favorable

decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997)(citing

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Valley

Forge Christian Coll. v. Ams. United for Separation of Church

and State, Inc., 454 U.S. 464, 471–72 (1982)). Standing is

assessed “upon the facts as they exist at the time the complaint

is filed.” Natural Law Party of U.S. v. Fed. Elec. Comm'n, 111

F. Supp. 2d 33, 41 (D.D.C. 2000).

As a preliminary matter, the government argues that

plaintiffs lack standing to challenge any of the policies in the

Policy Memorandum that rest on Matter of A-B- because the Court

does not have jurisdiction to review Matter of A-B-. See Defs.’

38 Mot., ECF No. 57-1 at 35, 37–39. Therefore, the government

argues, plaintiffs’ injuries would not be redressable or

traceable to the Policy Memorandum since they stem from Matter

of A-B-. This argument fails because the Court has found that it

has jurisdiction to review plaintiffs’ claims related to Matter

of A-B- under 1252(e)(3). See supra, at 27-38.

The government also argues that because plaintiffs do not

have a legally protected interest in the Policy Memorandum—an

interpretive document that creates no rights or obligations—

plaintiffs do not have an injury in fact. Defs.’ Reply, ECF No.

85 at 33. The government’s argument misses the point. Plaintiffs

do not seek to enforce a right under a prior policy or

interpretive guidance. See Pls.’ Reply, ECF No. 92 at 17–18.

Rather, they challenge the validity of their credible fear

determinations pursuant to the credible fear policies set forth

in Matter of A-B- and the Policy Memorandum. Because the

credible fear policies impermissibly raise their burden and deny

plaintiffs a fair opportunity to seek asylum and escape the

persecution they have suffered, plaintiffs argue, the policies

violate the APA and immigration laws. See id.

The government also argues that even if the Court has

jurisdiction, all the claims, with the exception of one, are

time-barred and therefore not redressable. Defs.’ Mot., ECF No.

57-1 at 39–41. The government argues that none of the policies

39 are in fact new and each pre-date the sixty days in which

plaintiffs are statutorily required to bring their claims. Id.

at 39–41. The government lists each challenged policy and relies

on existing precedent purporting to apply the same standard

espoused in the Policy Memorandum prior to its issuance. See id.

at 39–41. The challenge in accepting this theory of standing is

that it would require the Court to also accept the government’s

theory of the case: that the credible fear policies are not

“new.” In other words, the government’s argument “assumes that

its view on the merits of the case will prevail.” Defs. of

Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008). This

is problematic because “in reviewing the standing question, the

court must be careful not to decide the questions on the merits

for or against the plaintiff, and must therefore assume that on

the merits the plaintiffs would be successful in their claims.”

City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.

2003)(citations omitted).

Whether the credible fear policies differ from the

standards articulated in the pre-policy cases cited by the

government, and are therefore new, is a contested issue in this

case. And when assessing standing, this Court must “be careful

not to decide the questions on the merits” either “for or

against” plaintiffs, “and must therefore assume that on the

merits the plaintiffs would be successful in their claims.” Id.

40 Instead, the Court must determine whether an order can redress

plaintiffs’ injuries in whole or part. Gutierrez, 532 F.3d at

925. There is no question that the challenged policies impacted

plaintiffs. See Defs.’ Mot., ECF No. 57-1 at 28 (stating an

“asylum officer reviewed each of [plaintiffs] credible fear

claims and found them wanting in light of Matter of A-B-”).

There is also no question that an order from this Court

declaring the policies unlawful and enjoining their use would

redress those injuries. See Carpenters Indus. Council v. Zinke,

854 F.3d 1, 6 n.1 (D.C. Cir. 2017)(stating when government

actions cause an injury, enjoining that action will usually

redress the injury).

Because plaintiffs have demonstrated that they have:

(1) suffered an injury; (2) the injury is fairly traceable to

the credible fear policies; and (3) action by the Court can

redress their injuries, plaintiffs have standing to challenge

the Policy Memorandum. Therefore, the Court may proceed to the

merits of plaintiffs’ claims.

B. Legal Standard for Plaintiffs’ Claims

Although both parties have moved for summary judgment, the

parties seek review of an administrative decision under the APA.

See 5 U.S.C. § 706. Therefore, the standard articulated in

Federal Rule of Civil Procedure 56 is inapplicable because the

Court has a more limited role in reviewing the administrative

41 record. Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C.

2011)(internal citation omitted). “[T]he function of the

district court is to determine whether or not as a matter of law

the evidence in the administrative record permitted the agency

to make the decision it did.” See Sierra Club v. Mainella, 459

F. Supp. 2d 76, 90 (D.D.C. 2006)(internal quotation marks and

citations omitted). “Summary judgment thus serves as the

mechanism for deciding, as a matter of law, whether the agency

action is supported by the administrative record and otherwise

consistent with the APA standard of review.” Wilhelmus, 796 F.

Supp. 2d at 160 (internal citation omitted).

Plaintiffs bring this challenge to the alleged new credible

fear policies arguing they violate the APA and INA. Two

separate, but overlapping, standards of APA review govern the

resolution of plaintiffs’ claims. First, under 5 U.S.C. §

706(2)(a), agency action must not be “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

To survive an arbitrary and capricious challenge, an agency

action must be “the product of reasoned decisionmaking.” Fox v.

Clinton, 684 F.3d 67, 74–75 (D.C. Cir. 2012). The reasoned

decisionmaking requirement applies to judicial review of agency

adjudicatory actions. Id. at 75. A court must not uphold an

adjudicatory action when the agency’s judgment “was neither

adequately explained in its decision nor supported by agency

42 precedent.” Id. (citing Siegel v. SEC, 592 F.3d 147, 164 (D.C.

Cir. 2010)). Thus, review of Matter of A-B- requires this Court

to determine whether the decision was the product of reasoned

decisionmaking. See id. at 75.

Second, plaintiffs’ claims also require this Court to

consider the degree to which the government’s interpretation of

the various relevant statutory provisions in Matter of A-B- is

afforded deference. The parties disagree over whether this Court

is required to defer to the agency’s interpretations of the

statutory provisions in this case. “Although balancing the

necessary respect for an agency’s knowledge, expertise, and

constitutional office with the courts’ role as interpreter of

laws can be a delicate matter,” the familiar Chevron framework

offers guidance. Id. at 75 (citing Gonzales v. Oregon, 546 U.S.

243, 255 (2006)).

In reviewing an agency's interpretation of a statute it is

charged with administering, a court must apply the framework of

Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). See Halverson v. Slater, 129 F.3d 180, 184

(D.C. Cir. 1997). Under the familiar Chevron two-step test, the

first step is to ask “whether Congress has directly spoken to

the precise question at issue. If the intent of Congress is

clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed

43 intent of Congress.” Chevron, 467 U.S. at 842–43. In making that

determination, the reviewing court “must first exhaust the

‘traditional tools of statutory construction’ to determine

whether Congress has spoken to the precise question at issue.”

Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 572

(2000)(citation omitted). The traditional tools of statutory

construction include “examination of the statute’s text,

legislative history, and structure . . . as well as its

purpose.” Id. (internal citations omitted). If these tools lead

to a clear result, “then Congress has expressed its intention as

to the question, and deference is not appropriate.” Id.

If a court finds that the statute is silent or ambiguous

with respect to a particular issue, then Congress has not spoken

clearly on the subject and a court is required to proceed to the

second step of the Chevron framework. Chevron, 467 U.S. at 843.

Under Chevron step two, a court’s task is to determine if the

agency’s approach is “based on a permissible construction of the

statute.” Id. To make that determination, a court again employs

the traditional tools of statutory interpretation, including

reviewing the text, structure, and purpose of the statute. See

Troy Corp. v. Browder, 120 F.3d 277, 285 (D.C. Cir. 1997)(noting

that an agency’s interpretation must “be reasonable and

consistent with the statutory purpose”). Ultimately, “[n]o

matter how it is framed, the question a court faces when

44 confronted with an agency's interpretation of a statute it

administers is always, simply, whether the agency has stayed

within the bounds of its statutory authority.” District of

Columbia v. Dep’t of Labor, 819 F.3d 444, 459 (D.C. Cir.

2016)(citation omitted).

The scope of review under both the APA’s arbitrary and

capricious standard and Chevron step two are concededly narrow.

See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983)(stating “scope of review

under the ‘arbitrary and capricious’ standard is narrow and a

court is not to substitute its judgment for that of the

agency”); see also Judulang v. Holder, 565 U.S. 42, 52 n.7

(2011)(stating the Chevron step two analysis overlaps with

arbitrary and capricious review under the APA because under

Chevron step two a court asks “whether an agency interpretation

is ‘arbitrary or capricious in substance’”). Although this

review is deferential, “courts retain a role, and an important

one, in ensuring that agencies have engaged in reasoned decision

making.” Judulang, 565 U.S. at 53; see also Daley, 209 F.3d at

755 (stating that although a court owes deference to agency

decisions, courts do not hear cases “merely to rubber stamp

agency actions”).

With these principles in mind, the Court now turns to

plaintiffs’ claims that various credible fear policies based on

45 Matter of A-B-, the Policy Memorandum, or both, are arbitrary

and capricious and in violation of the immigration laws.

C. APA and Statutory Claims

Plaintiffs challenge the following alleged new credible

fear policies: (1) a general rule against credible fear claims

related to domestic or gang-related violence; (2) a heightened

standard for persecution involving non-governmental actors; (3)

a new rule for the nexus requirement in asylum; (4) a new rule

that “particular social group” definitions based on claims of

domestic violence are impermissibly circular; (5) the

requirements that an alien articulate an exact delineation of

the specific “particular social group” at the credible fear

determination stage and that asylum officers apply discretionary

factors at that stage; and (6) the Policy Memorandum’s

requirement that adjudicators ignore circuit court precedent

that is inconsistent with Matter of A-B-, and apply the law of

the circuit where the credible fear interview takes place. The

Court addresses each challenged policy in turn.

1. The General Rule Foreclosing Domestic Violence and Gang-Related Claims Violates the APA and Immigration Laws

Plaintiffs argue that the credible fear policies establish

an unlawful general rule against asylum petitions by aliens with

credible fear claims relating to domestic and gang violence.

Pls.’ Mot., ECF No. 64-1 at 28.

46 A threshold issue is whether the Chevron framework applies

to this issue at all. “Not every agency interpretation of a

statute is appropriately analyzed under Chevron.” Alabama Educ.

Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006). The

government acknowledges that the alleged new credible fear

policies are not “entitled to blanket Chevron deference.” Defs.’

Reply, ECF No. 85 at 39 (emphasis in original). Rather,

according to the government, the Attorney General is entitled to

Chevron deference when he “interprets any ambiguous statutory

terms in the INA.” Id. (emphasis in original). The government

also argues that the Attorney General is entitled to Chevron

deference to the extent Matter of A-B- states “long-standing

precedent or interpret[s] prior agency cases or regulations

through case-by-case adjudication.” Id. at 40.

To the extent Matter of A-B- was interpreting the

“particular social group” requirement in the INA, the Chevron

framework clearly applies. The Supreme Court has explained that

“[i]t is clear that principles of Chevron deference are

applicable” to the INA because that statute charges the Attorney

General with administering and enforcing the statutory scheme.

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (quoting

8 U.S.C. §§ 1103(a)(1), 1253(h)). In addition to Chevron

deference, a court must also afford deference to an agency when

it is interpreting its own precedent. U.S. Telecom Ass’n v.

47 F.C.C., 295 F.3d 1326, 1332 (D.C. Cir. 2002)(“We [] defer to an

agency’s reasonable interpretation of its own rules and

precedents.”).

In this case, the Attorney General interpreted a provision

of the INA, a statute that Congress charged the Attorney General

with administering. See 8 U.S.C. § 1103(a)(1). Matter of A-B-

addressed the issue of whether an alien applying for asylum

based on domestic violence could establish membership in a

“particular social group.” Because the decision interpreted a

provision of the INA, the Chevron framework applies to Matter of

A-B-. 11 See Negusie v. Holder, 555 U.S. 511, 516 (2009)(stating

it “is well settled” that principles of Chevron deference apply

to the Attorney General’s interpretation of the INA).

a. Chevron Step One: The Phrase “Particular Social Group” is Ambiguous

The first question within the Chevron framework is whether,

using the traditional tools of statutory interpretation

including evaluating the text, structure, and the overall

11The Policy Memorandum is not subject to Chevron deference. The Supreme Court has warned that agency “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” Christensen v. Harris Cnty, 529 U.S. 576, 587 (2000). Rather, interpretations contained in such formats “are entitled to respect . . . only to the extent that those interpretations have the power to persuade.” Id. (citations omitted). 48 statutory scheme, as well as employing common sense, Congress

has “supplied a clear and unambiguous answer to the interpretive

question at hand.” Pereira v. Sessions, 138 S. Ct. 2105, 2113

(2018)(citation omitted). The interpretive question at hand in

this case is the meaning of the term “particular social group.”

Under the applicable asylum provision, an “alien who is

physically present in the United States or who arrives in the

United States . . . irrespective of such alien’s status” may be

granted asylum at the discretion of the Attorney General if the

“Attorney General determines that such alien is a refugee within

the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158. The

term “refugee” is defined in section 1101(a)(42)(A) as, among

other things, an alien who is unable or unwilling to return to

his or her home 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)(A). At the credible

fear stage, an alien needs to show that there is a “significant

possibility . . . that the alien could establish eligibility for

asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).

The INA itself does not shed much light on the meaning of

the term “particular social group.” The phrase “particular

social group” was first included in the INA when Congress

enacted the Refugee Act of 1980. Pub. L. No. 96-212, 94 Stat.

49 102 (1980). The purpose of the Refugee Act was to protect

refugees, i.e., individuals who are unable to protect themselves

from persecution in their native country. See id. § 101(a)(“The

Congress declares that it is the historic policy of the United

States to respond to the urgent needs of persons subject to

persecution in their homelands, including . . . humanitarian

assistance for their care and maintenance in asylum areas.”).

While the legislative history of the Act does not reveal the

specific meaning the members of Congress attached to the phrase

“particular social group,” the legislative history does make

clear that Congress intended “to bring United States refugee law

into conformance with the [Protocol], 19 U.S.T. 6223, T.I.A.S.

No. 6577, to which the United States acceded in 1968.” Cardoza-

Fonseca, 480 U.S. at 436-37. Indeed, when Congress accepted the

definition of “refugee” it did so “with the understanding that

it is based directly upon the language of the Protocol and it is

intended that the provision be construed consistent with the

Protocol.” Id. at 437 (citations omitted). It is therefore

appropriate to consider what the phrase “particular social

group” means under the Protocol. See id.

In interpreting the Refugee Act in accordance with the

meaning intended by the Protocol, the language in the Act should

be read consistently with the United Nations’ interpretation of

the refugee standards. See id. at 438–39 (relying on UNHCR’s

50 interpretation in interpreting the Protocol’s definition of

“well-founded fear”). The UNHCR defined the provisions of the

Convention and Protocol in its Handbook on Procedures and

Criteria for Determining Refugee Status (“UNHCR Handbook”). 12 Id.

As the Supreme Court has noted, the UNHCR Handbook provides

“significant guidance in construing the Protocol, to which

Congress sought to conform . . . [and] has been widely

considered useful in giving content to the obligations that the

protocol establishes.” Id. at 439 n.22 (citations omitted). The

UNHCR Handbook codified the United Nations’ interpretation of

the term “particular social group” at that time, construing the

term expansively. The UNHCR Handbook states that “a ‘particular

social group’ normally comprises persons of similar background,

habits, or social status.” UNHCR Handbook at Ch. II B(3)(e)

¶ 77.

The clear legislative intent to comply with the Protocol

and Congress’ election to not change or add qualifications to

the U.N.’s definition of “refugee” demonstrates that Congress

intended to adopt the U.N.’s interpretation of the word

“refugee.” Moreover, the UNHCR’s classification of “social

12Handbook of Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, available at http://www.unhcr.org/4d93528a9.pdf. 51 group” in broad terms such as “similar background, habits, or

social status” suggests that Congress intended an equally

expansive construction of the same term in the Refugee Act.

Furthermore, the Refugee Act was enacted to further the

“historic policy of the United States to respond to the urgent

needs of persons subject to persecution in their homelands . . .

. [and] it is the policy of the United States to encourage all

nations to provide assistance and resettlement opportunities to

refugees to the fullest extent possible.” Maharaj v. Gonzales,

450 F.3d 961, 983 (9th Cir. 2006)(O’Scannlain, J. concurring in

part)(citing Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat.

102).

Although the congressional intent was clear that the

meaning of “particular social group” should not be read too

narrowly, the Court concludes that Congress has not “spoken

directly” on the precise question of whether victims of domestic

or gang-related persecution fall into the particular social

group category. Therefore, the Court proceeds to Chevron step

two to determine whether the Attorney General’s interpretation,

which generally precludes domestic violence and gang-related

claims at the credible fear stage, is a permissible

interpretation of the statute.

52 b. Chevron Step Two: Precluding Domestic and Gang- Related Claims at the Credible Fear Stage is an Impermissible Reading of the Statute and is Arbitrary and Capricious

As explained above, the second step of the Chevron analysis

overlaps with the arbitrary and capricious standard of review

under the APA. See Nat'l Ass'n of Regulatory Util. Comm'rs v.

ICC, 41 F.3d 721, 726 (D.C. Cir. 1994)(“[T]he inquiry at the

second step of Chevron overlaps analytically with a court's task

under the [APA].”). “To survive arbitrary and capricious review,

an agency action must be the product of reasoned

decisionmaking.” Fox v. Clinton, 684 F.3d 67, 74–75 (D.C. Cir.

2012). “Thus, even though arbitrary and capricious review is

fundamentally deferential—especially with respect to matters

relating to an agency's areas of technical expertise—no

deference is owed to an agency action that is based on an

agency's purported expertise where the agency's explanation for

its action lacks any coherence.” Id. at 75 (internal citations

and alterations omitted).

Plaintiffs argue that the Attorney General’s near-blanket

rule against positive credible fear determinations based on

domestic violence and gang-related claims is arbitrary and

capricious for several reasons. First, they contend that the

rule has no basis in immigration law. Pls.’ Mot., ECF No. 64-1

at 39–40. Plaintiffs point to several cases in which immigration

53 judges and circuit courts have recognized asylum petitions based

on gang-related or gender-based claims. See id. at 38–39 (citing

cases). Second, plaintiffs argue that the general prohibition is

arbitrary and capricious and contrary to the INA because it

constitutes an unexplained change to the long-standing

recognition that credible fear determinations must be

individualized based on the facts of each case. Id. at 40–41.

The government’s principal response is straightforward: no

such general rule against domestic violence or gang-related

claims exists. Defs.’ Reply, ECF No. 85 at 44–47. The government

emphasizes that the only change to the law in Matter of A-B- is

that Matter of A-R-C-G- was overruled. Id. at 43. The government

also argues that Matter of A-B- only required the BIA to assess

each element of an asylum claim and not rely on a party’s

concession that an element is satisfied. Id. at 45. Thus,

according to the government, the Attorney General simply

“eliminated a loophole created by A-R-C-G-.” Id. at 45. The

government dismisses the rest of Matter of A-B- as mere

“comment[ary] on problems typical of gang and domestic violence

related claims.” Id. at 46.

And even if a general rule does exist, the government

contends that asylum claims based on “private crime[s]” such as

domestic and gang violence have been the center of controversy

for decades. Defs.’ Reply, ECF No. 85 at 44. Therefore, the

54 government concludes, that Matter of A-B- is a lawful

interpretation and restatement of the asylum laws, and is

entitled to deference. Id. Finally, the government argues that

Congress designed the asylum statute as a form of limited

relief, not to “provide redress for all misfortune.” Id.

The Court is not persuaded that Matter of A-B- and the

Policy Memorandum do not create a general rule against positive

credible fear determinations in cases in which aliens claim a

fear of persecution based on domestic or gang-related violence.

Matter of A-B- mandates that “[w]hen confronted with asylum

cases based on purported membership in a particular social group

. . . immigration judges, and asylum officers must analyze the

requirements as set forth” in the decision. 27 I. & N. Dec. at

319. The precedential decision further explained that

“[g]enerally, claims by aliens pertaining to domestic violence

or gang violence perpetrated by non-governmental actors will not

qualify for asylum.” Id. at 320. Matter of A-B- also requires

asylum officers to “analyze the requirements as set forth in”

Matter of A-B- when reviewing asylum related claims including

whether such claims “would satisfy the legal standard to

determine whether an alien has a credible fear of persecution.”

Id. at 320 n.1 (citing 8 U.S.C. § 1225(b)). Furthermore, the

Policy Memorandum also makes clear that the sweeping statements

in Matter of A-B- must be applied to credible fear

55 determinations: “if an applicant claims asylum based on

membership in a particular social group, then officers must

factor the [standards explained in Matter of A-B-] into their

determination of whether an applicant has a credible fear or

reasonable fear of persecution.” Policy Memorandum, ECF No. 100

at 12 (emphasis added).

Not only does Matter of A-B- create a general rule against

such claims at the credible fear stage, but the general rule is

also not a permissible interpretation of the statute. First, the

general rule is arbitrary and capricious because there is no

legal basis for an effective categorical ban on domestic

violence and gang-related claims. Second, such a general rule

runs contrary to the individualized analysis required by the

INA. Under the current immigration laws, the credible fear

interviewer must prepare a case-specific factually intensive

analysis for each alien. See 8 C.F.R. § 208.30(e)(requiring

individual analysis including material facts stated by the

applicant, and additional facts relied upon by officer).

Credible fear determinations, like requests for asylum in

general, must be resolved based on the particular facts and

circumstances of each case. Id.

A general rule that effectively bars the claims based on

certain categories of persecutors (i.e. domestic abusers or gang

members) or claims related to certain kinds of violence is

56 inconsistent with Congress' intent to bring “United States

refugee law into conformance with the [Protocol].” Cardoza-

Fonseca, 480 U.S. at 436-37. The new general rule is thus

contrary to the Refugee Act and the INA. 13 In interpreting

“particular social group” in a way that results in a general

rule, in violation of the requirements of the statute, the

Attorney General has failed to “stay[] within the bounds” of his

statutory authority. 14 District of Columbia v. Dep’t of Labor,

819 F.3d at 449.

The general rule is also arbitrary and capricious because

it impermissibly heightens the standard at the credible fear

stage. The Attorney General’s direction to deny most domestic

violence or gang violence claims at the credible fear

13 The new rule is also a departure from previous DHS policy. See Mujahid Decl., Ex. F (“2017 Credible Fear Training”) (“Asylum officers should evaluate the entire scope of harm experienced by the applicant to determine if he or she was persecuted, taking into account the individual circumstances of each case.”). It is arbitrary and capricious for that reason as well. Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013)(“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.”)(emphasis added). 14 The Court also notes that domestic law may supersede

international obligations only by express abrogation, Chew Heong v. United States, 112 U.S. 536, 538 (1884), or by subsequent legislation that irrevocably conflicts with international obligations, Reid v. Covert, 354 U.S. 1, 18 (1957). Congress has not expressed any intention to rescind its international obligations assumed through accession to the 1967 Protocol via the Refugee Act of 1980. 57 determination stage is fundamentally inconsistent with the

threshold screening standard that Congress established: an

alien’s removal may not be expedited if there is a “significant

possibility” that the alien could establish eligibility for

asylum. 8 U.S.C. § 1225(b)(1)(B)(v). The relevant provisions

require that the asylum officer “conduct the interview in a

nonadversarial manner” and “elicit all relevant and useful

information bearing on whether the applicant has a credible fear

of persecution or torture.” 8 C.F.R. § 208.30(d). As plaintiffs

point out, to prevail at a credible fear interview, the alien

need only show a “significant possibility” of a one in ten

chance of persecution, i.e., a fraction of ten percent. See

8 U.S.C. § 1225(b)(1)(B)(v); Cardoza-Fonseca, 480 U.S. at 439–40

(describing a well-founded fear of persecution at asylum stage

to be satisfied even when there is a ten percent chance of

persecution). The legislative history of the IIRIRA confirms

that Congress intended this standard to be a low one. See 142

CONG. REC. S11491-02 (“[t]he credible fear standard . . . is

intended to be a low screening standard for admission into the

usual full asylum process”). The Attorney General’s directive to

broadly exclude groups of aliens based on a sweeping policy

applied indiscriminately at the credible fear stage, was neither

adequately explained nor supported by agency precedent.

Accordingly, the general rule against domestic violence and

58 gang-related claims during a credible fear determination is

arbitrary and capricious and violates the immigration laws.

2. Persecution: The “Condoned or Complete Helplessness” Standard Violates the APA and Immigration Laws

Plaintiffs next argue that the government’s credible fear

policies have heightened the legal requirement for all credible

fear claims involving non-governmental persecutors. Pls.’ Mot.,

ECF No. 64-1 at 48.

To be eligible for asylum, an alien must demonstrate either

past “persecution or a well-founded fear of persecution.”

8 U.S.C. § 1101(a)(42)(A). When a private actor, rather than the

government itself, is alleged to be the persecutor, the alien

must demonstrate “some connection” between the actions of the

private actor and “governmental action or inaction.” See Rosales

Justo v. Sessions, 895 F.3d 154, 162 (1st Cir. 2018). To

establish this connection, a petitioner must show that the

government was either “unwilling or unable” to protect him or

her from persecution. See Burbiene v. Holder, 568 F.3d 251, 255

(1st Cir. 2009).

Plaintiffs argue that Matter of A-B- and the Policy

Memorandum set forth a new, heightened standard for government

involvement by requiring an alien to “show the government

condoned the private actions or at least demonstrated a complete

helplessness to protect the victim.” Matter of A-B-, 27 I. & N.

59 Dec. at 337; Policy Memorandum, ECF No. 100 at 9. The government

argues that the “condone” or “complete helplessness” standard is

not a new definition of persecution; and, in any event, such

language does not change the standard. Defs.’ Reply, ECF No. 85

at 55.

a. Chevron Step One: The Term “Persecution” is Not Ambiguous 15

Again, the first question under the Chevron framework is

whether Congress has “supplied a clear and unambiguous answer to

the interpretive question at hand.” Pereira, 138 S. Ct. at 2113.

Here, the interpretive question at hand is whether the word

“persecution” in the INA requires a government to condone the

persecution or demonstrate a complete helplessness to protect

the victim.

The Court concludes that the term “persecution” is not

ambiguous and the government’s new interpretation is

inconsistent with the INA. The Court is guided by the

longstanding principle that Congress is presumed to have

incorporated prior administrative and judicial interpretations

of language in a statute when it uses the same language in a

subsequent enactment. See Sekhar v. United States, 570 U.S. 729,

733 (2013)(explaining that “if a word is obviously transplanted

15Because the government is interpreting a provision of the INA, the Chevron framework applies. 60 from another legal source, whether the common law or other

legislation, it brings the old soil with it”); Lorillard v.

Pons, 434 U.S. 575, 580 (1978)(stating Congress is aware of

interpretations of a statute and is presumed to adopt them when

it re-enacts them without change).

The seminal case on the interpretation of the term

“persecution,” Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985),

is dispositive. In Matter of Acosta, the BIA recognized that

harms could constitute persecution if they were inflicted

“either by the government of a country or by persons or an

organization that the government was unable or unwilling to

control.” Id. at 222 (citations omitted). The BIA noted that

Congress carried forward the term “persecution” from pre-1980

statutes, in which it had a well-settled judicial and

administrative meaning: “harm or suffering . . . inflicted

either by the government of a country or by persons or an

control.” Id. Applying the basic rule of statutory construction

that Congress carries forward established meanings of terms, the

BIA adopted the same definition. Id. at 223.

The Court agrees with this approach. When Congress uses a

term with a settled meaning, its intent is clear for purposes of

Chevron step one. cf. B & H Med., LLC v. United States, 116 Fed.

Cl. 671, 685 (2014)(a term with a “judicially settled meaning”

61 is “not ambiguous” for purposes of deference under Auer v.

Robbins, 519 U.S. 452 (1997)). As explained in Matter of Acosta,

Congress adopted the “unable or unwilling” standard when it used

the word “persecution” in the Refugee Act. 19 I. & N. Dec. at

222, see also Shapiro v. United States, 335 U.S. 1, 16

(1948)(Congress presumed to have incorporated “settled judicial

construction” of statutory language through re-enactment).

Indeed, the UNHCR Handbook stated that persecution included

“serious discriminatory or other offensive acts . . . committed

by the local populace . . . if they are knowingly tolerated by

the authorities, or if the authorities refuse, or prove unable,

to offer effective protection.” See UNHCR Handbook ¶ 65

(emphasis added). It was clear at the time that the Act was

passed by Congress that the “unwilling or unable” standard did

not require a showing that the government “condoned” persecution

or was “completely helpless” to prevent it. Therefore, the

government’s interpretation of the term “persecution” to mean

the government must condone or demonstrate complete helplessness

to help victims of persecution fails at Chevron step one.

The government relies on circuit precedent that has used

the “condoned” or “complete helplessness” language to support

its argument that the standard is not new. Defs.’ Reply, ECF No.

85 at 55. There are several problems with the government’s

argument. First, upon review of the cited cases it is apparent

62 that, although the word “condone” was used, in actuality, the

courts were applying the “unwilling or unable” standard. For

example, in Galina v. INS, 213 F.3d 955 (7th Cir. 2005), an

asylum applicant was abducted and received threatening phone

calls in her native country. Id. at 957. The applicant’s husband

called the police to report the threatening phone calls, and

after the police located one of the callers, the calls stopped.

Id. The Court recognized that a finding of persecution

ordinarily requires a determination that the government condones

the violence or demonstrated a complete helplessness to protect

the victims. Id. at 958. However, relying on the BIA findings,

the Court found that notwithstanding the fact “police might take

some action against telephone threats” the applicant would still

face persecution if she was sent back to her country of origin

because she could have been killed. Id. Therefore, the Court

ultimately concluded that an applicant can still meet the

persecution threshold when the police are unable to provide

effective help, but fall short of condoning the persecution. Id.

at 958. Despite the language it used to describe the standard,

the court did not apply the heightened “condoned or complete

helplessness” persecution standard pronounced in the credible

fear policies here.

Second, and more importantly, under the government’s

formulation of the persecution standard, no asylum applicant who

63 received assistance from the government, regardless of how

ineffective that assistance was, could meet the persecution

requirement when the persecutor is a non-government actor. 16 See

Policy Memorandum, ECF No. 100 at 17 (stating that in the

context of credible fear interviews, “[a]gain, the home

government must either condone the behavior or demonstrate a

complete helplessness to protect victims of such alleged

persecution”). That is simply not the law. For example, in

Rosales Justo v. Sessions, the United States Court of Appeals

for the First Circuit held that a petitioner satisfied the

“unable or unwilling” standard, even though there was a

significant police response to the claimed persecution. 895 F.3d

154, 159 (1st Cir. 2018). The petitioner in Rosales Justo fled

Mexico after organized crime members murdered his son. Id. at

157–58. Critically, the “police took an immediate and active

interest in the [petitioner’s] son's murder.” Id. The Court

noted that the petitioner “observed seven officers and a

forensic team at the scene where [the] body was recovered, the

police took statements from [petitioner] and his wife, and an

16The Court notes that this persecution requirement applies to all asylum claims not just claims based on membership in a “particular social group” or claims related to domestic or gang- related violence. See Matter of A-B-, 27 I. & N. Dec. at 337 (describing elements of persecution). Therefore, such a formulation heightens the standard for every asylum applicant who goes through the credibility determination process. 64 autopsy was performed.” Id. The Court held that, despite the

extensive actions taken by the police, the “unwilling or unable”

standard was satisfied because although the government was

willing to protect the petitioner, the evidence did not show

that the government was able to make the petitioner and his

family any safer. Id. at 164 (reversing BIA’s conclusion that

the immigration judge clearly erred in finding that the police

were willing but unable to protect family). As Rosales Justo

illustrates, a requirement that police condone or demonstrate

complete helplessness is inconsistent with the current standards

under immigration law. 17

Furthermore, the Court need not defer to the government’s

interpretation to the extent it is based on an interpretation of

court precedent. Indeed, in “case after case, courts have

affirmed this fairly intuitive principle, that courts need not,

and should not, defer to agency interpretations of opinions

written by courts.” Citizens for Responsibility & Ethics in

17This departure is also wholly unexplained. As the Supreme Court has held, “[u]nexplained inconsistency is . . . a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the [APA].” See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46–57 (1983). The credible fear policies do not acknowledge a change in the persecution standard and are also arbitrary and capricious for that reason. See Fox Television Stations, Inc., 556 U.S. at 514, 515 (2009)(“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing [its] position.”). 65 Washington v. Fed. Election Comm'n, 209 F. Supp. 3d 77, 87

(D.D.C. 2016)(listing cases). “There is therefore no reason for

courts—the supposed experts in analyzing judicial decisions—to

defer to agency interpretations of the Court's opinions.” Univ.

of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002);

see also Judulang, 565 U.S. at 52 n.7 (declining to apply

Chevron framework because the challenged agency policy was not

“an interpretation of any statutory language”).

To the extent the credible fear policies established a new

standard for persecution, it did so in purported reliance on

circuit opinions. The Court gives no deference to the

government’s interpretation of judicial opinions regarding the

proper standard for determining the degree to which government

action, or inaction, constitutes persecution. Univ. of Great

Falls, 278 F.3d at 1341. The “unwilling or unable” persecution

standard was settled at the time the Refugee Act was codified,

and therefore the Attorney General’s “condoned” or “complete

helplessness” standard is not a permissible construction of the

persecution requirement.

3. Nexus: The Credible Fear Policies Do Not Pose a New Standard for the Nexus Requirement

Plaintiffs next argue that the formulation of the nexus

requirement articulated in Matter of A-B-that when a private

actor inflicts violence based on a personal relationship with

66 the victim, the victim’s membership in a larger group may well

not be “one central reason” for the abuse—violates the INA,

Refugee Act, and APA. The nexus requirement in the INA is that a

putative refugee establish that he or she was persecuted “on

account of” a protected ground such as a particular social

group. 18 See 8 U.S.C. § 1158(b)(1)(B)(i).

The parties agree that the precise interpretive issue is

not ambiguous. The parties also endorse the “one central reason”

standard and the need to conduct a “mixed-motive” analysis when

there is more than one reason for persecution. See Defs.’ Mot.,

57-1 at 47; Pls.’ Mot., ECF No. 64-1 at 53–54. The INA expressly

contemplates mixed motives for persecution when it specifies

that a protected ground must be “one central reason” for the

persecution. 8 U.S.C. § 1158(b)(1)(B)(i). Where the parties

disagree is whether the credible fear policies deviate from this

standard.

With respect to the nexus requirement, the government’s

reading of Matter of A-B- on this issue is reasonable. In Matter

of A-B-, the Attorney General relies on the “one central reason”

standard and provides examples of a criminal gang targeting

people because they have money or property or “simply because

18Similar to the Attorney General’s directives related to the “unwilling or unable” standard, this directive applies to all asylum claims, not just claims related to domestic or gang- related violence. 67 the gang inflicts violence on those who are nearby.” 27 I. & N.

Dec. at 338–39. The decision states that “purely personal”

disputes will not meet the nexus requirement. Id. at 339 n.10.

The Court discerns no distinction between this statement and the

statutory “one central reason” standard.

Similarly, the Policy Memorandum states that “when a

private actor inflicts violence based on a personal relationship

with the victim, the victim’s membership in a larger group often

will not be ‘one central reason’ for the abuse.” Policy

Memorandum, ECF No. 100 at 9 (citing Matter of A-B-, 27 I. & N.

Dec. at 338–39). Critically, the Policy Memorandum explains that

in “a particular case, the evidence may establish that a victim

of domestic violence was attacked based solely on her

preexisting personal relationship with her abuser.” Id.

(emphasis added). This statement is no different than the

statement of the law in Matter of A-B-. Because the government’s

interpretation is not inconsistent with the statute, the Court

finds the government’s interpretation to be reasonable.

The Court reiterates that, although the nexus standard

forecloses cases in which purely personal disputes are the

impetus for the persecution, it does not preclude a positive

credible fear determination simply because there is a personal

relationship between the persecutor and the victim, so long as

the one central reason for the persecution is a protected

68 ground. See Aldana Ramos v. Holder, 757 F.3d 9, 18–19 (1st Cir.

2014)(recognizing that “multiple motivations [for persecution]

can exist, and that the presence of a non-protected motivation

does not render an applicant ineligible for refugee status”); Qu

v. Holder, 618 F.3d 602, 608 (6th Cir. 2010)(“[I]f there is a

nexus between the persecution and the membership in a particular

social group, the simultaneous existence of a personal dispute

does not eliminate that nexus.”). Indeed, courts have routinely

found the nexus requirement satisfied when a personal

relationship exists—including cases in which persecutors had a

close relationship with the victim. See, e.g., Bringas-

Rodriguez, 850 F.3d at 1056 (persecution by family members and

neighbor on account of applicant’s perceived homosexuality);

Nabulwala v. Gonzalez, 481 F.3d 1115, 1117–18 (8th Cir.

2007)(applicant’s family sought to violently “change” her sexual

orientation).

Matter of A-B- and the Policy Memorandum do not deviate

from the “one central reason” standard articulated in the

statute or in BIA decisions. See 8 U.S.C. § 1158(b)(1)(B)(i).

Therefore, the government did not violate the APA or INA with

regards to its interpretation of the nexus requirement.

4. Circularity: The Policy Memorandum’s Interpretation of the Circularity Requirement Violates the APA and Immigration Laws

Plaintiffs argue that the Policy Memorandum establishes a

69 new rule that “particular social group” definitions based on

claims of domestic violence are impermissibly circular and

therefore not cognizable as a basis for persecution in a

credible fear determination. Pls.’ Mot., ECF No. 64-1 at 56–59.

Plaintiffs argue that this new circularity rule is inconsistent

with the current legal standard and therefore violates the

Refugee Act, INA, and is arbitrary and capricious. 19 Id. at 57.

The parties agree that the formulation of the anti-circularity

rule set forth in Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242

(BIA 2014)—“that a particular social group cannot be defined

exclusively by the claimed persecution”—is correct. See Defs.’

Reply, ECF No. 85 at 62; Pls.’ Reply., ECF No. 92 at 30–31.

Accordingly, the Court begins with an explanation of that

opinion.

19The government contends that plaintiffs’ argument on this issue has evolved from the filing of the complaint to the filing of plaintiffs’ cross-motion for summary judgment. Defs.’ Reply, ECF No. 85 at 61. In plaintiffs’ complaint, they objected to the circularity issue by stating the new credible fear policies erroneously conclude “that groups defined in part by the applicant’s inability to leave the relationship are impermissibly circular.” ECF No. 54 at 24. In their cross-motion for summary judgment, plaintiffs argue that the government’s rule is inconsistent with well-settled law that the circularity standard only applies when the group is defined exclusively by the feared harm. Pls.’ Mot., ECF No. 64-1 at 57. The Court finds that plaintiffs’ complaint was sufficient to meet the notice pleading standard. See 3E Mobile, LLC v. Glob. Cellular, Inc., 121 F. Supp. 3d 106, 108 (D.D.C. 2015)(explaining that the notice-pleading standard does not require a plaintiff to “plead facts or law that match every element of a legal theory”). 70 The question before the BIA in Matter of M-E-V-G-, was

whether the respondent had established membership in a

“particular social group,” namely “Honduran youth who have been

actively recruited by gangs but who have refused to join because

they oppose the gangs.” 26 I. & N. Dec. at 228. The BIA

clarified that a person seeking asylum on the ground of

membership in a particular social group must show that the group

is: (1) composed of members who share an immutable

characteristic; (2) defined with particularity; and (3) socially

distinct within the society in question. Id. at 237. In

explaining the third element for membership, the BIA confirmed

the rule that “a social group cannot be defined exclusively by

the fact that its members have been subjected to harm.” Id. at

242. The BIA explained that for a particular social group to be

distinct, “persecutory conduct alone cannot define the group.”

The BIA provided the instructive example of former

employees of an attorney general. Id. The BIA noted that such a

group may not be valid for asylum purposes because they may not

consider themselves a group, or because society may not consider

the employees to be meaningfully distinct in society in general.

Id. The BIA made clear, however, that “such a social group

determination must be made on a case-by-case basis, because it

is possible that under certain circumstances, the society would

71 make such a distinction and consider the shared past experience

to be a basis for distinction within that society.” Id. “Upon

their maltreatment,” the BIA explained “it is possible these

people would experience a sense of ‘group’ and society would

discern that this group of individuals, who share a common

immutable characteristic, is distinct in some significant way.”

Id. at 243 (recognizing that “[a] social group cannot be defined

merely by the fact of persecution or solely by the shared

characteristic of facing dangers in retaliation for actions they

took against alleged persecutors . . . but that the shared trait

of persecution does not disqualify an otherwise valid social

group”)(citations and internal quotation marks omitted). The BIA

further clarified that the “act of persecution by the government

may be the catalyst that causes the society to distinguish [a

group] in a meaningful way and consider them a distinct group,

but the immutable characteristic of their shared past experience

exists independent of the persecution.” Id. at 243. Thus, such a

group would not be circular because the persecution they faced

was not the sole basis for their membership in a particular

social group. Id.

With this analysis in mind, the Court now focuses on the

dispute at issue. Here, plaintiffs do not challenge Matter of A-

B-’s statements with regard to the rule against circularity, but

rather challenge the Policy Memorandum’s articulation of the

72 rule. Pls.’ Mot., ECF No, 64-1 at 57–58. Specifically, they

challenge the Policy Memorandum’s mandate that domestic

violence-based social groups that include “inability to leave”

are not cognizable. Id. at 58 (citations and internal quotation

marks omitted). The Policy Memorandum states that “married women

. . . who are unable to leave their relationship” are a group

that would not be sufficiently particular. Policy Memorandum,

ECF No. 100 at 6. The Policy Memorandum explained that “even if

‘unable to leave’ were particular, the applicant must show

something more than the danger of harm from an abuser if the

applicant tried to leave because that would amount to circularly

defining the particular social group by the harm on which the

asylum claim is based.” Id.

The Policy Memorandum’s interpretation of the rule against

circularity ensures that women unable to leave their

relationship will always be circular. This conclusion appears to

be based on a misinterpretation of the circularity standard and

faulty assumptions about the analysis in Matter of A-B-. First,

as Matter of M-E-V-G- made clear, there cannot be a general rule

when it comes to determining whether a group is distinct because

“it is possible that under certain circumstances, the society

would make such a distinction and consider the shared past

experience to be a basis for distinction within that society.”

26 I. & N. Dec. at 242. Thus, to the extent the Policy

73 Memorandum imposes a general circularity rule foreclosing such

claims without taking into account the independent

characteristics presented in each case, the rule is arbitrary,

capricious, and contrary to immigration law.

Second, the Policy Memorandum changes the circularity rule

as articulated in settled caselaw, which recognizes that if the

proposed social group definition contains characteristics

independent from the feared persecution, the group is valid

under asylum law. Matter of M-E-V-G-, 26 I. & N. Dec. at 242

(Particular social group may be cognizable if “immutable

characteristic of their shared past experience exists

independent of the persecution.”). Critically, the Policy

Memorandum does not provide a reasoned explanation for, let

alone acknowledge, the change. See F.C.C. v. Fox Television

Stations, Inc., 556 U.S. 502, 514 (2009)(“[T]he requirement that

an agency provide reasoned explanation for its action would

ordinarily demand that it display awareness that it is changing

[its] position.”). Matter of A-B- criticized the BIA for failing

to consider the question of circularity in Matter of A-R-C-G-

and overruled the decision based on the BIA’s reliance on DHS’s

concession on the issue. 27 I. & N. Dec. at 334-35, 33.

Moreover, Matter of A-B- suggested only that the social group at

issue in Matter of A-R-C-G- might be “effectively” circular. Id.

at 335. The Policy Memorandum’s formulation of the circularity

74 standard goes well beyond the Attorney General’s explanation in

Matter of A-B-. As such, it is unmoored from the analysis in

Matter of M-E-V-G- and has no basis in Matter of A-B-. It is

therefore, arbitrary, capricious, and contrary to immigration

law.

5. Discretion and Delineation: The Credible Fear Policies Do Not Contain a Discretion Requirement, but the Policy Memorandum’s Delineation Requirement is Unlawful

Plaintiffs next argue that the credible fear policies

“unlawfully import two aspects of the ordinary removal context

into credible fear proceedings.” Pls.’ Reply, ECF No. 92 at 32.

The first alleged requirement is for aliens to delineate the

“particular social group” on which they rely at the credible

fear stage. Id. The second alleged requirement is that asylum

adjudicators at the credible fear stage take into account

certain discretionary factors when making a fair credibility

determination and exercise discretion to deny relief. 20 Id. at

32–33.

20These discretionary factors include but are not limited to: “the circumvention of orderly refugee procedures; whether the alien passed through any other countries or arrived in the United States directly from her country; whether orderly refugee procedures were in fact available to help her in any country she passed through; whether he or she made any attempts to seek asylum before coming to the United States; the length of time the alien remained in a third country; and his or her living conditions, safety, and potential for long-term residency there.” Policy Memorandum, ECF No. 100 at 10. 75 The government agrees that a policy which imposes a duty to

delineate a particular social group at the credible fear stage

would be a violation of existing law. Defs.’ Reply, ECF No. 85

at 67. The government also agrees that requiring asylum officers

to consider the exercise of discretion at the credible fear

stage “would be inconsistent with section 1225(b)(1)(B)(v).” Id.

at 68. The government, however, argues that no such directives

exist. Id. at 67–69.

The Court agrees with the government. There is nothing in

the credible fear policies that support plaintiffs’ arguments

that asylum officers are to exercise discretion at the credible

fear stage. The Policy Memorandum discusses discretion only in

the context of when an alien has established that he or she is

eligible for asylum. Policy Memorandum, ECF No. 100 at 5 (“[I]f

eligibility is established, the USCIS officer must then consider

whether or not to exercise discretion to grant the

application.”). Matter of A-B- also discusses the discretionary

factors in the context of granting asylum. 27 I. & N. Dec. at

345 n.12 (stating exercising discretion should not be glossed

over “solely because an applicant otherwise meets the burden of

proof for asylum eligibility under the INA”)(emphasis added).

Eligibility for asylum is not established, nor is an asylum

application granted, at the credible fear stage. See 8 U.S.C.

§ 1225(b)(1)(B)(ii)(stating if an alien receives a positive

76 credibility determination, he or she shall be detained for

“further consideration of the application of asylum”). Since the

credible fear policies only direct officers to use discretion

once an officer has determined that an applicant is eligible for

asylum, they do not direct officers to consider discretionary

factors at the credible fear stage. See Policy Memorandum, ECF

No. 100 at 10.

The Court also agrees that, with respect to Matter of A-B-,

the decision does not impose a delineation requirement during a

credible fear determination. The decision only requires an

applicant seeking asylum to clearly indicate “an exact

delineation of any proposed particular social group” when the

alien is “on the record and before the immigration judge.” 27 I.

& N. Dec. at 344. Any delineation requirement therefore would

not apply to the credible fear determination which is not on the

record before an immigration judge.

The Policy Memorandum, however, goes further than the

decision itself and incorporates the delineation requirement

into credible fear determinations. Unlike the mandate to use

discretion, the Policy Memorandum does not contain a limitation

that officers are to apply the delineation requirement to asylum

interviews only, as opposed to credible fear interviews. In

fact, it does the opposite and explicitly requires asylum

officers to apply that requirement to credible fear

77 determinations. Policy Memorandum, ECF No. 100 at 12. The Policy

Memorandum makes clear that “if an applicant claims asylum based

on membership in a particular social group, then officers must

factor the [standards explained in Matter of A-B-] into their

reasonable fear of persecution.” Id. at 12. In directing asylum

officers to apply Matter of A-B- to credible fear

determinations, the Policy Memorandum refers back to all the

requirements explained by Matter of A-B- including the

delineation requirement. See id. (referring back to section

explaining delineation requirement). In light of this clear

directive to “factor” in the standards set forth in Matter of A-

B-, into the “determination of whether an applicant has a

credible fear” and its reference to the delineation requirement,

it is clear that the Policy Memorandum incorporates that

requirement into credible fear determinations. See id. 21

The government argues, that to the extent the Policy

Memorandum is ambiguous, the Court should defer to its

21The Policy Memorandum also reiterates that “few gang-based or domestic-violence claims involving particular social groups defined by the members’ vulnerability to harm may . . . pass the ‘significant possibility’ test in credible-fear screenings.” Policy Memorandum, ECF No. 100 at 10. For this proposition, the Policy Memorandum refers to the “standards clarified in Matter of A-B-.” Id. This requirement for an alien to explain how they fit into a particular social group independent of the harm they allege, further supports the fact that there is a delineation requirement at the credible fear stage. 78 interpretation as long as it is reasonable. The government cites

no authority to support its claim that deference is owed to an

agency’s interpretations of its policy documents like the Policy

Memorandum. However, the Court acknowledges the government’s

interpretation is “entitled to respect . . . only to the extent

that those interpretations have the ‘power to persuade.’”

Christensen v. Harris Cnty, 529 U.S. 576, 587 (2000)(citation

omitted). For the reasons stated above, however, such a narrow

reading of the Policy Memorandum is not persuasive. Because the

Policy Memorandum requires an alien—at the credible fear stage—

to present facts that clearly identify the alien’s proposed

particular social group, contrary to the INA, that policy is

arbitrary and capricious.

6. The Policy Memorandum’s Requirements Related to Asylum Officer’s Application of Circuit Law are Unlawful

Plaintiffs’ final argument is that the Policy Memorandum’s

directives instructing asylum officers to ignore applicable

circuit court of appeals decisions is unlawful. Pls.’ Mot., ECF

No. 64-1 at 63.

The relevant section of the Policy Memorandum reads as

follows:

When conducting a credible fear or reasonable fear interview, an asylum officer must determine what law applies to the applicant’s claim. The asylum officer should apply all applicable precedents of the Attorney General and the BIA, Matter of E-L-H-, 23 I&N Dec.

79 814, 819 (BIA 2005), which are binding on all immigration judges and asylum officers nationwide. The asylum officer should also apply the case law of the relevant federal circuit court, to the extent that those cases are not inconsistent with Matter of A-B-. See, e.g., Matter of Fajardo Espinoza, 26 I&N Dec. 603, 606 (BIA 2015). The relevant federal circuit court is the circuit where the removal proceedings will take place if the officer makes a positive credible fear determination. See Matter of Gonzalez, 16 I&N Dec. 134, 135– 36 (BIA 1977); Matter of Waldei, 19 I&N Dec. 189 (BIA 1984). But removal proceedings can take place in any forum selected by DHS, and not necessarily the forum where the intending asylum applicant is located during the credible fear or reasonable fear interview. Because an asylum officer cannot predict with certainty where DHS will file a Notice to appear . . . the asylum officer should faithfully apply precedents of the Board and, if necessary, the circuit where the alien is physically located during the credible fear interview.

Policy Memorandum, ECF No. 100 at 11–12. Plaintiffs make two

independent arguments regarding this policy. First, they argue

that the Policy Memorandum’s directive to disregard circuit law

contrary to Matter of A-B-, violates the APA, INA, and the

separation of powers. Pls.’ Mot., ECF No. 64-1 at 64–68. Second,

plaintiffs argue that the Policy Memorandum’s directive

requiring asylum officers to apply the law of the circuit where

the alien is physically located during the credible fear

interview violates the APA and INA. Id. 68–71.

80 a. The Policy Memorandum’s Directive to Disregard Contrary Circuit Law Violates Brand X

Plaintiffs’ first argument is that the Policy Memorandum’s

directive that asylum officers who process credible fear

interviews ignore circuit law contrary to Matter of A-B- is

unlawful. Pls.’ Mot., ECF No. 64-1 at 63–68. Because the policy

requires officers to disregard all circuit law regardless of

whether the provision at issue is entitled to deference,

plaintiffs maintain that the policy exceeds an agency’s limited

ability to displace circuit precedent on a specific question of

law to which an agency decision is entitled to deference. Id.

An agency’s ability to disregard a court’s interpretation

of an ambiguous statutory provision in favor of the agency’s

interpretation stems from the Supreme Court’s decision in Nat’l

Cable & Telecomm’s Ass’n v. Brand X Internet Servs., 545 U.S.

967 (2005). At issue in Brand X was the proper classification of

broadband cable services under Title II of the Communications

Act of 1934, as amended by the Telecommunications Act of 1996.

Id. at 975. The Federal Communications Commission (“Commission”)

had issued a Declaratory Rule providing that broadband internet

service was an “information service” but not a

“telecommunication service” under the Act, such that certain

regulations would not apply to cable companies that provided

broadband service. Id. at 989. The circuit court vacated the

81 Declaratory Rule because a prior circuit court opinion held that

a cable modem service was in fact a telecommunications service.

Id. (citing AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir.

2000). The Supreme Court concluded that the circuit court erred

in relying on a prior court’s interpretation of the statute

without first determining if the Commission’s contrary

interpretation was reasonable. Id. at 982.

The Supreme Court’s holding relied on the same principles

underlying the Chevron deference cases. Id. at 982 (stating that

the holding in Brand X “follows from Chevron itself”). The Court

reasoned that Congress had delegated to the Commission the

authority to enforce the Communications Act, and under the

principles espoused in Chevron, a reasonable interpretation of

an ambiguous provision of the Act is entitled to deference. Id.

at 981. Therefore, regardless of a circuit court’s prior

interpretation of a provision, the agency’s interpretation is

entitled to deference as long as the court’s prior construction

of the provision does not “follow[] from the unambiguous terms

of the statute and thus leaves no room for agency discretion.”

Id. at 982. In other words, an agency’s interpretation of a

provision may override a prior court’s interpretation if the

agency is entitled to Chevron deference and the agency’s

interpretation is reasonable. If the agency is not entitled to

deference or if the agency’s interpretation is unreasonable, a

82 court’s prior decision interpreting the same statutory provision

controls. See Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789

(D.C. Cir. 2012)(citation omitted)(finding that a court decision

interpreting a statute overrides the agency’s interpretation

only if it holds “that its construction follows from the

unambiguous terms of the statute and thus leaves no room for

agency discretion”).

The government argues that the Policy Memorandum’s mandate

to ignore circuit law contrary to Matter of A-B- is rooted in

statute and sanctioned by Brand X. Defs.’ Reply, ECF No. 85 at

70. Moreover, the government contends that the requirement

“simply states the truism that the INA requires all line

officers to follow binding decisions of the Attorney General.”

Id. (citing 8 U.S.C. § 1103(a))(“determination and ruling by the

Attorney General with respect to all questions of law shall be

controlling”). The government also argues that plaintiffs have

failed to point to any decisions that are inconsistent with

Matter of A-B-, and therefore any instruction for an officer to

apply Matter of A-B- notwithstanding prior circuit precedent to

the contrary is permissible. The Policy Memorandum, according to

the government, “simply require[s] line officers to follow

[Matter of A-B-] unless and until a circuit court of appeals

declares some aspect of it contrary to the plain text of the

INA.” Defs.’ Reply, ECF No. 85 at 72.

83 The government, again, minimizes the effect of the Policy

Memorandum. As an initial matter, Brand X would only allow an

agency’s interpretation to override a prior judicial

interpretation if the agency’s interpretation is entitled to

deference. Brand X, 545 U.S. at 982 (stating “agency

construction otherwise entitled to Chevron deference” may

override judicial construction under certain

circumstances)(emphasis added). In this case, the government

contends that Matter of A-B- only interprets one statutory

provision: “particular social group.” See Defs.’ Mot., ECF No.

57-1 at 56 (stating “[t]he language that the Attorney General

interpreted in [Matter of] A-B-, [is] the meaning of the phrase

‘particular social group’ as part of the asylum standard”). The

Policy Memorandum, however, directs officers to ignore federal

circuit law to the extent that the law is inconsistent with

Matter of A-B- in any respect, including Matter of A-B-’s

persecution standard. The directive requires officers performing

credible fear determinations to use Brand X as a shield against

any prior or future federal circuit court decisions inconsistent

with the sweeping proclamations made in Matter of A-B-

regardless of whether Brand X has any application under the

circumstances of that case.

There are several problems with such a broad interpretation

of Brand X to cover guidance from an agency when it is far from

84 clear that such guidance is entitled to deference. First, a

directive to ignore circuit precedent when doing so would

violate the principles of Brand X itself is clearly unlawful.

For example, when a court determines a provision is unambiguous,

as courts have done upon evaluating the “unwilling and unable”

definition, a court’s interpretation controls when faced with a

contrary agency interpretation. Brand X, 545 U.S. at 982. The

Policy Memorandum directs officers as a rule not to apply

circuit law if it is inconsistent with Matter of A-B-, without

regard to whether a specific provision in Matter of A-B- is

entitled to deference in the first place. Such a rule runs

contrary to Brand X.

Second, the government’s argument only squares with the

Brand X framework if every aspect of Matter of A-B- is both

entitled to deference and is a reasonable interpretation of a

relevant provision of the INA. Indeed, Brand X does not disturb

any prior judicial opinion that a statute is unambiguous because

Congress has spoken to the interpretive question at issue. Brand

X, 545 U.S. at 982 (“[A] judicial precedent holding that the

statute unambiguously forecloses the agency’s interpretation,

and therefore contains no gap for the agency to fill, displaces

a conflicting agency construction.”). If a Court does make such

a determination, the agency is not free to supplant the Court’s

85 interpretation for its own under Brand X. Id. 22 Unless an

agency’s interpretation of a statute is afforded deference, a

judicial construction of that provision binds the agency,

regardless of whether it is contrary to the agency’s view. The

Policy Memorandum does not recognize this principle and

therefore, the government’s reliance on Brand X is misplaced.

Cf., e.g., Matter of Marquez Conde, 27 I. & N. Dec. 251, 255

(BIA 2018)(examining whether the particular statutory question

fell within Brand X). 23

The government’s statutory justification fares no better.

It is true that pursuant to 8 U.S.C. § 1103(a), the Attorney

General’s rulings with respect to questions of law are

controlling; and they are binding on all service employees,

8 C.F.R. § 103.3(c). But plaintiffs do not dispute the fact that

22 Any assumption that the entirety of Matter of A-B- is entitled to deference also falters in light of the government’s characterization of most of the decision as dicta. Defs.’ Reply, ECF No. 85 at 44–47. (characterizing Matter of A-B- “comment[ary] on problems typical of gang and domestic violence related claims.”) According to the government, the only legal effect of Matter of A-B- is to overrule Matter of A-R-C-G-. Any other self-described dicta would not be entitled to deference under Chevron and therefore Brand X could not apply. Brand X, 545 U.S. at 982 (agency interpretation must at minimum be “otherwise entitled to deference” for it to supersede judicial construction). Simply put, Brand X is not a license for agencies to rely on dicta to ignore otherwise binding circuit precedent. 23 Matter of A-B- invokes Brand X only as to its interpretation

of particular social group. 27 I. & N. Dec. at 327. As the Court has explained above, that interpretation is not entitled to deference. 86 asylum officers must follow the Attorney General’s decisions.

The issue is that the Policy Memorandum goes much further than

that. Indeed, the government’s characterization of the Policy

Memorandum’s directive to ignore federal law only highlights the

flaws in its argument. According to the government, the

directive at issue merely instructs officers to listen to the

Attorney General. Defs.’ Reply, ECF No. 85 at 70. Such a mandate

would be consistent with section 1103 and its accompanying

regulations. In reality, however, the Policy Memorandum requires

officers conducting credible fear interviews to follow the

precedent of the relevant circuit only “to the extent that those

cases are not inconsistent with Matter of A-B-.” Policy

Memorandum, ECF No. 100 at 11. The statutory and regulatory

provisions cited by the government do not justify a blanket

mandate to ignore circuit law.

b. The Policy Memorandum’s Relevant Circuit Law Policy Violates the APA and INA

Plaintiffs next argue that the Policy Memorandum’s

directive to asylum officers to apply the law of the “circuit

where the alien is physically located during the credible fear

interview” violates the immigration laws. Pls.’ Mot., ECF No.

64-1, 68–71; Policy Memorandum, ECF No. 100 at 12. Specifically,

Plaintiffs argue that this policy conflicts with the low

screening standard for credible fear determinations established

87 by Congress, and therefore violates the APA and INA. Pls.’

Reply, ECF No. 92 at 35–36. The credible fear standard,

plaintiffs argue, requires an alien to be afforded the benefit

of the circuit law most favorable to his or her claim because

there is a possibility that the eventual asylum hearing could

take place in that circuit. Id.

The government responds by arguing that it is hornbook law

that the law of the jurisdiction in which the parties are

located governs the proceedings. Defs.’ Reply, ECF No. 85 at 73.

The government cites the standard for credible fear

determinations and argues that it contains no requirement that

an alien be given the benefit of the most favorable circuit law.

Id. The government also argues that, to the extent there is any

ambiguity, the government’s interpretation is entitled to some

deference, even if not Chevron deference. Id. at 74.

This issue turns on an interpretation of 8 U.S.C.

§ 1225(b)(1)(B)(v), which provides the standard for credible

fear determinations. That section explicitly defines a “credible

fear of persecution” as follows:

For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

88 8 U.S.C. § 1225(b)(1)(B)(v). Applicable regulations further

explain the manner in which the interviews are to be conducted.

Interviews are to be conducted in an “nonadversarial manner” and

“separate and apart from the general public.” 8 C.F.R.

§ 208.30(d). The purpose of the interview is to “elicit all

relevant and useful information bearing on whether the applicant

has a credible fear of persecution or torture[.]” Id.

The statute does not speak to which law should be applied

during credible fear interviews. See generally 8 U.S.C.

§ 1225(b)(1)(B)(v). However, the Court is not without guidance

regarding which law should be applied because Congress explained

its legislative purpose in enacting the expedited removal

provisions. 142 CONG. REC. S11491-02. When Congress established

expedited removal proceedings in 1996, it deliberately

established a low screening standard so that “there should be no

danger that an alien with a genuine asylum claim will be

returned to persecution.” H.R. REP. No. 104-469, pt. 1, at 158.

That standard “is a low screening standard for admission into

the usual full asylum process” and when Congress adopted the

standard it “reject[ed] the higher standard of credibility

included in the House bill.” 142 CONG. REC. S11491-02.

In light of the legislative history, the Court finds

plaintiffs’ position to be more consistent with the low

screening standard that governs credible fear determinations.

89 The statute does not speak to which law should be applied during

the screening, but rather focuses on eligibility at the time of

the removal proceedings. 8 U.S.C. § 1225(b)(1)(B)(v). And as the

government concedes, these removal proceedings could occur

anywhere in the United States. Policy Memorandum, ECF No. 100 at

12. Thus, if there is a disagreement among the circuits on an

issue, the alien should get the benefit of that disagreement

since, if the removal proceedings are heard in the circuit

favorable to the aliens’ claim, there would be a significant

possibility the alien would prevail on that claim. The

government’s reading would allow for an alien’s deportation,

following a negative credible fear determination, even if the

alien would have a significant possibility of establishing

asylum under section 1158 during his or her removal proceeding.

Thus, the government’s reading leads to the exact opposite

result intended by Congress. 24

The government does not contest that an alien with a

possibility of prevailing on his or her asylum claim could be

denied during the less stringent credible fear determination,

but rather claims that this Court should defer to the

24The government relies on BIA cases to support its argument that the law of the jurisdiction where the interview takes place controls. See Defs.’ Mot., ECF No. 57-1 at 49. These cases address the law that governs the removal proceedings, an irrelevant and undisputed issue. 90 government’s interpretation that this policy is consistent with

the statute. Defs.’ Reply, ECF No. 85 at 74–75. Under Skidmore

v. Swift & Co., the Court will defer to the government’s

interpretation to the extent it has the power to persuade. 25 See

323 U.S. 134, 140, (1944). However, the government’s arguments

bolster plaintiffs’ interpretation more than its own. As the

government acknowledges, and the Policy Memorandum explicitly

states, “removal proceedings can take place in any forum

selected by DHS, and not necessarily the forum where the

intending asylum applicant is located during the credible fear

or reasonable fear interview.” Policy Memorandum, ECF No. 100 at

12. Since the Policy Memorandum directive would lead to denial

of a potentially successful asylum applicant at the credible

fear determination, the Court concludes that the directive is

therefore inconsistent with the statute. H.R. REP. NO. 104-469 at

158 (explaining that there should be no fear that an alien with

a genuine asylum claim would be returned to persecution). 26

Because the government’s reading could lead to the exact

25 The government cannot claim the more deferential Auer deference because Auer applies to an agency’s interpretation of its own regulations, not to interpretations of policy documents like the Policy Memorandum. See Auer v. Robbins, 519 U.S. 452, 461 (1997)(holding agencies may resolve ambiguities in regulations). 26 The policy is also a departure from prior DHS policy without a

rational explanation for doing so. See Mujahid Decl., Ex. F (DHS training policy explaining that law most favorable to the applicant applies when there is a circuit split). 91 harm that Congress sought to avoid, it is arbitrary capricious

and contrary to law.

* * * * *

In sum, plaintiffs prevail on their APA and statutory

claims with respect to the following credible fear policies,

which this Court finds are arbitrary and capricious and contrary

to law: (1) the general rule against credible fear claims

relating to gang-related and domestic violence victims’

membership in a “particular social group,” as reflected in

Matter of A-B- and the Policy Memorandum; (2) the heightened

“condoned” or “complete helplessness” standard for persecution,

as reflected in Matter of A-B- and the Policy Memorandum;

(3) the circularity standard as reflected in the Policy

Memorandum; (4) the delineation requirement at the credible fear

stage, as reflected in the Policy Memorandum; and (5) the

requirement that adjudicators disregard contrary circuit law and

apply only the law of the circuit where the credible fear

interview occurs, as reflected in the Policy Memorandum. The

Court also finds that neither the Policy Memorandum nor Matter

of A-B- state an unlawful nexus requirement or require asylum

officers to apply discretionary factors at the credible fear

stage. The Court now turns to the appropriate remedy. 27

27Because the Court finds that the government has violated the INA and APA, it need not determine whether there was a 92 D. Relief Sought

Plaintiffs seek an Order enjoining and preventing the

government and its officials from applying the new credible fear

policies, or any other guidance implementing Matter of A-B- in

credible fear proceedings. Pls.’ Mot., ECF No. 64-1 at 71–72.

Plaintiffs also request that the Court vacate any credible fear

determinations and removal orders issued to plaintiffs who have

not been removed. Id. As for plaintiffs that have been removed,

plaintiffs request a Court Order directing the government to

return the removed plaintiffs to the United States. Id.

Plaintiffs also seek an Order requiring the government to

provide new credible fear proceedings in which asylum

adjudicators must apply the correct legal standards for all

plaintiffs. Id.

The government argues that because section 1252 prevents

all equitable relief the Court does not have the authority to

order the removed plaintiffs to be returned to the United

States. Defs.’ Reply, ECF No. 85 at 75–76. The Court addresses

each issue in turn.

constitutional violation in this case. See Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989)(per curiam)(stating courts should be wary of issuing “unnecessary constitutional rulings”). 93 1. Section 1252 Does Not Bar Equitable Relief

a. Section 1252(e)(1)

The government acknowledges that section 1252(e)(3)

provides for review of “systemic challenges to the expedited

removal system.” Defs.’ Mot., ECF No. 57-1 at 11. However, the

government argues 1252(e)(1) limits the scope of the relief that

may be granted in such cases. Defs.’ Reply, ECF No. 85 at 75–76.

That provision provides that “no court may . . . enter

declaratory, injunctive, or other equitable relief in any action

pertaining to an order to exclude an alien in accordance with

section 1225(b)(1) of this title except as specifically

authorized in a subsequent paragraph of this subsection.” 8

U.S.C. § 1252(e)(1)(a). The government argues that since no

other subsequent paragraph of section 1252(e) specifically

authorizes equitable relief, this Court cannot issue an

injunction in this case. Defs.’ Reply, ECF No. 85 at 75–76.

Plaintiffs counter that section 1252(e)(1) has an exception

for “any action . . . specifically authorized in a subsequent

paragraph.” Since section 1252(e)(3) clearly authorizes “an

action” for systemic challenges, their claims fall within an

exception to the proscription of equitable relief. Pls.’ Reply,

ECF No. 92 at 38.

This issue turns on what must be “specifically authorized

in a subsequent paragraph” of section 1252(e). Plaintiffs argue

94 the “action” needs to be specifically authorized, and the

government argues that it is the “relief.” Section 1252(e)(1)

states as follows:

(e) Judicial review of orders under section 1225(b)(1)

(1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may--

(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or

(B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection.

The government contends that this provision requires that

any “declaratory, injunctive, or other equitable relief” must be

“specifically authorized in a subsequent paragraph” of

subsection 1252(e) for that relief to be available. Defs.’

Reply, ECF No. 85 at 75 (emphasis in original). The more natural

reading of the provision, however, is that these forms of relief

are prohibited except when a plaintiff brings “any action . . .

specifically authorized in a subsequent paragraph.” Id.

§ 1252(e)(1)(a). The structure of the statute supports this

view. For example, the very next subsection, 1252(e)(1)(b), uses

95 the same language when referring to an action: “[A court may not

certify a class] in any action for which judicial review is

authorized under a subsequent paragraph of this subsection.” Id.

§ 1252(e)(1)(b)(emphasis added).

A later subsection lends further textual support for the

view that the term “authorized” modifies the type of action, and

not the type of relief. Subsection 1252(e)(4) limits the remedy

a court may order when making a determination in habeas corpus

proceedings challenging a credible fear determination. 28 Under

section 1252(e)(2), a petitioner may challenge his or her

removal under section 1225, if he or she can prove by a

preponderance of the evidence that he or she is in fact in this

country legally. 29 See 8 U.S.C. § 1252(e)(2)(c). Critically,

section 1252(e)(4) limits the type of relief a court may grant

if the petitioner is successful: “the court may order no remedy

or relief other than to require that the petitioner be provided

a hearing.” Id. § 1252(e)(4)(B). If section 1252(e)(1)(a)

precluded all injunctive and equitable relief, there would be no

need for § 1252(e)(4) to specify that the court could order no

28 Habeas corpus proceedings, like challenges to the validity of the system under 1252(e)(3), are “specifically authorized in a subsequent paragraph of [1252(e)].” 8 U.S.C. § 1252(e)(1)(a). 29 To prevail on this type of claim a petitioner must establish

that he or she is an “alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158.” 8 U.S.C. § 1252(e)(2). 96 other form of relief. Furthermore, if the government’s reading

was correct, there should be a parallel provision in section

1252(e)(3) limiting the relief a prevailing party of a systemic

challenge could obtain to only relief specifically authorized by

that paragraph.

Indeed, under the government’s reading of the statute there

could be no remedy for a successful claim under paragraph

1252(e)(3) because that paragraph does not specifically

authorize any remedy. However, it does not follow that Congress

would have explicitly authorized a plaintiff to bring a suit in

the United States District Court for the District of Columbia

and provided this Court with exclusive jurisdiction to determine

the legality of the challenged agency action, but deprived the

Court of any authority to provide any remedy (because none are

specifically authorized), effectively allowing the unlawful

agency action to continue. This Court “should not assume that

Congress left such a gap in its scheme.” Jackson v. Birmingham

Bd. Of Educ., 544 U.S. 167, 180 (2005)(holding Title IX

protected against retaliation in part because “all manner of

Title IX violations might go umremedied” if schools could

retaliate freely).

An action brought pursuant to section 1252(e)(3) is an

action that is “specifically authorized in a subsequent

paragraph” of 1252(e). See 8 U.S.C. § 1252(e)(1). And 1252(e)(3)

97 clearly authorizes “an action” for systemic challenges to

written expedited removal policies, including claims concerning

whether the challenged policy “is not consistent with applicable

provisions of this subchapter or is otherwise in violation of

law.” Id. § 1252(e)(3). Because this case was brought under that

systemic challenge provision, the limit imposed on the relief

available to a court under 1252(e)(1)(a) does not apply. 30

b. Section 1252(f)

The government’s argument that section 1252(f) bars

injunctive relief fares no better. That provision states in

relevant part: “no court (other than the Supreme Court) shall

have jurisdiction or authority to enjoin or restrain the

operation of [sections 1221–1232] other than with respect to the

application of such provisions to an individual alien against

whom proceedings under such part have been initiated.” 8 U.S.C.

§ 1252(f)(1). The Supreme Court has explained that “Section

1252(f)(1) thus ‘prohibits federal courts from granting

30Plaintiffs also argue that section 1252(e)(1) does not apply to actions brought under section 1252(e)(3). Section 1252(e)(1), by its terms, only applies to an “action pertaining to an order to exclude an alien in accordance with section 1225(b)(1).” Plaintiffs argue that the plain reading of section 1252(e)(3) shows that an action under that provision does not pertain to an individual order of exclusion, but rather “challenges the validity of the system.” Pls.’ Reply, ECF No. 92 at 12 (citing 8 U.S.C. § 1252(e)(3)). Having found that section 1252(e)(3) is an exception to section 1252(e)(1)’s limitation on remedies, the Court need not reach this argument. 98 classwide injunctive relief against the operation of §§ 1221–

123[2].’” Jennings v. Rodriguez, 138 S. Ct. 830, 851

(2018)(citing Reno v. American–Arab Anti–Discrimination Comm.,

525 U.S. 471, 481 (1999)). The Supreme Court has also noted that

circuit courts have “held that this provision did not affect its

jurisdiction over . . . statutory claims because those claims

did not ‘seek to enjoin the operation of the immigration

detention statutes, but to enjoin conduct . . . not authorized

by the statutes.” Id. (citing Rodriguez v. Hayes, 591 F.3d 1105,

1120 (9th Cir. 2010)).

In this case, plaintiffs do not challenge any provisions

found in section 1225(b). They do not seek to enjoin the

operation of the expedited removal provisions or any relief

declaring the statutes unlawful. Rather, they seek to enjoin the

government’s violation of those provisions by the implementation

of the unlawful credible fear policies. An injunction in this

case does not obstruct the operation of section 1225. Rather, it

enjoins conduct that violates that provision. Therefore, section

1252(f) poses no bar. See R.I.L-R v. Johnson, 80 F. Supp. 3d

164, 184 (D.D.C. 2015)(holding section 1252(f) does not limit a

court’s ability to provide injunctive relief when the injunctive

relief “enjoins conduct that allegedly violates [the immigration

statute]”); see also Reid v. Donelan, 22 F. Supp. 3d 84, 90 (D.

Mass. 2014)(“[A]n injunction ‘will not prevent the law from

99 operating in any way, but instead would simply force the

government to comply with the statute.”)(emphasis in original)).

Finally, during oral argument, the government argued that

even if the Court has the authority to issue an injunction in

this case, it can only enjoin the policies as applied in

plaintiffs’ cases under section 1252(f). See Oral Arg. Hr’g Tr.,

ECF No. 102 at 63. In other words, according to the government,

the Court may declare the new credible fear policies unlawful,

but DHS may continue to enforce the policies in all other

credible fear interviews. To state this proposition is to refute

it. It is the province of the Court to declare what the law is,

see Marbury v. Madison, 5 U.S. 137, 177 (1803), and the

government cites no authority to support the proposition that a

Court may declare an action unlawful but have no power to

prevent that action from violating the rights of the very people

it affects. 31 To the contrary, such relief is supported by the

APA itself. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,

31During oral argument, the government argued for the first time that an injunction in this case was tantamount to class-wide relief, which the parties agree is prohibited under the statute. See Oral Arg. Hr’g Tr., ECF No. 102 at 63; 8 U.S.C. § 1252(e)(1)(b)(prohibiting class certification in actions brought under section 1252(e)(3)). The Court finds this argument unpersuasive. Class-wide relief would entail an Order requiring new credible fear interviews for all similarly situated individuals, and for the government to return to the United States all deported individuals who were affected by the policies at issue in this case. Plaintiffs do not request, and the Court will not order, such relief. 100 145 F.3d 1399, 1409-10 (D.C. Cir. 1998)(“We have 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.’”). Moreover section 1252(f) only applies when a

plaintiff challenges the legality of immigration laws and not,

as here, when a plaintiff seeks to enjoin conduct that violates

the immigration laws. In these circumstances, section 1252(f)

does not limit the Court’s power.

2. The Court Has the Authority to Order the Return of Plaintiffs Unlawfully Removed

Despite the government’s suggestion during the emergency

stay hearing that the government would return removed plaintiffs

should they prevail on the merits, TRO Hr’g Tr., Aug. 9, 2018,

ECF No. 23 at 13-14 (explaining that the Department of Justice

had previously represented to the Supreme Court that should a

Court find a policy that led to a plaintiffs’ deportation

unlawful the government “would return [plaintiffs] to the United

states at no expense to [plaintiffs]”), the government now

argues that the Court may not do so, see Defs.’ Reply, ECF No.

85 at 78–79.

In support of its argument, the government relies

principally on Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir 2009)

vacated, 130 S.Ct. 1235, reinstated in amended form, 605 F.3d

101 1046 (D.C. Cir. 2010). In Kiyemba, seventeen Chinese citizens,

determined to be enemy combatants, sought habeas petitions in

connection with their detention in Guantanamo Bay, Cuba. 555

F.3d at 1024. The petitioners sought release in the United

States because they feared persecution if they were returned to

China, but had not sought to comply with the immigration laws

governing a migrant’s entry into the United States. Id. After

failed attempts to find an appropriate country in which to

resettle, the petitioners moved for an order compelling their

release into the United States. Id. The district court, citing

exceptional circumstances, granted the motion. Id.

The United States Court of Appeals for the District of

Columbia Circuit reversed. The Court began by recognizing that

the power to exclude aliens remained in the exclusive power of

the political branches. Id. at 1025 (citations omitted). As a

result, the Court noted, “it is not within the province of any

court, unless expressly authorized by law, to review the

determination of the political branch of the Government to

exclude a given alien.” Id. at 1026 (citation and internal

quotation marks omitted). The critical question was “what law

expressly authorized the district court to set aside the

decision of the Executive Branch and to order these aliens

brought to the United States.” Id. at 1026 (internal quotation

102 In this case, the answer to that question is the

immigration laws. In fact, Kiyemba distinguished Supreme Court

cases which “rested on the Supreme Court’s interpretation not of

the Constitution, but of a provision in the immigration laws.”

Id. at 1028. The Court further elaborated on this point with the

following explanation:

it would . . . be wrong to assert that, by ordering aliens paroled into the country . . . the Court somehow undermined the plenary authority of the political branches over the entry and admission of aliens. The point is that Congress has set up the framework under which aliens may enter the United States. The Judiciary only possesses the power Congress gives it to review Executive action taken within that framework. Since petitioners have not applied for admission, they are not entitled to invoke that judicial power.

Id. at 1028 n.12.

The critical difference here is that plaintiffs have

availed themselves of the “framework under which aliens may

enter the United States.” Id. Because plaintiffs have done so,

this Court “possesses the power Congress gives it to review

Executive action taken within that framework.” Id. Because the

Court finds Kiyemba inapposite, the government’s argument that

this Court lacks authority to order plaintiffs returned to the

United States is unavailing.

It is also clear that injunctive relief is necessary for

the Court to fashion an effective remedy in this case. The

103 credible fear interviews of plaintiffs administered pursuant to

the policies in Matter of A-B- and the Policy Memorandum were

fundamentally flawed. A Court Order solely enjoining these

policies is meaningless for the removed plaintiffs who are

unable to attend the subsequent interviews to which they are

entitled. See, e.g., Walters v. Reno, 145 F.3d 1032, 1050–51

(9th Cir. 1998)(“[A]llowing class members to reopen their

proceedings is basically meaningless if they are unable to

attend the hearings that they were earlier denied.”).

3. Permanent Injunction Factors Require Permanent Injunctive Relief

A plaintiff seeking a permanent injunction must satisfy a

four-factor test. eBay Inc. v. MercExchange, L.L.C., 547 U.S.

388, 391 (2006). Plaintiffs must demonstrate they have:

(1) suffered an irreparable injury; (2) that traditional legal

remedies, such as monetary relief, are inadequate to compensate

for that injury; (3) the balance of hardships between the

parties warrants equitable relief; and (4) the injunction is not

contrary to the public interest. See Morgan Drexen, Inc. v.

Consumer Fin. Prot. Bureau, 785 F.3d 684, 695 (D.C. Cir. 2015).

Plaintiffs seek a permanent injunction, arguing that they

have been irreparably harmed and that the equities are in their

favor. Pls.’ Mot., ECF No. 64-1 at 73–74. The government has not

responded to these arguments on the merits, and rests on its

104 contention that the Court does not have the authority to order

such relief. Defs.’ Reply, ECF No. 85 at 75–78. Having found

that the Court does have the authority to order injunctive

relief, supra, at 93–104, the Court will explain why that relief

is appropriate.

Plaintiffs claim that the credible fear policies this Court

has found to be unlawful have caused them irreparable harm. It

is undisputed that the unlawful policies were applied to

plaintiffs’ credible fear determinations and thus caused

plaintiffs’ applications to be denied. See Defs.’ Mot., ECF No.

57-1 at 28 (stating an “asylum officer reviewed each of

[plaintiffs] credible fear claims and found them wanting in

light of Matter of A-B-”). Indeed, plaintiffs credibly alleged

at their credible fear determinations that they feared rape,

pervasive domestic violence, beatings, shootings, and death in

their countries of origin. Based on plaintiffs’ declarations

attesting to such harms, they have demonstrated that they have

suffered irreparable injuries. 32

The Court need spend little time on the second factor:

whether other legal remedies are inadequate. No relief short of

enjoining the unlawful credible fear policies in this case could

32The country reports support the accounts of the Plaintiffs. See Mujahid Decl., ECF No. 10-3, Exs. K-T; Second Mujahid Decl., ECF No. 64-4 Exs. 10–13; Honduras Decl., ECF No. 64-6; Guatemala Decl., ECF No. 64-7; El Salvador Decl., ECF No. 64-8. 105 provide an adequate remedy. Plaintiffs do not seek monetary

compensation. The harm they suffer will continue unless and

until they receive a credible fear determination pursuant to the

existing immigration laws. Moreover, without an injunction, the

plaintiffs previously removed will continue to live in fear

every day, and the remaining plaintiffs are at risk of removal.

The last two factors are also straightforward. The balance

of the hardships weighs in favor of plaintiffs since the

“[g]overnment ‘cannot suffer harm from an injunction that merely

ends an unlawful practice.’” R.I.L-R, 80 F. Supp. at 191 (citing

Rodriguez, 715 F.3d at 1145). And the injunction is not contrary

to the public interest because, of course, “[t]he public

interest is served when administrative agencies comply with

their obligations under the APA.” Id. (citations omitted).

Moreover, as the Supreme Court has stated, “there is a public

interest in preventing aliens from being wrongfully removed,

particularly to countries where they are likely to face

substantial harm.” Nken v. Holder, 556 U.S. 418, 436 (2009). No

one seriously questions that plaintiffs face substantial harm if

returned to their countries of origin. Under these

circumstances, plaintiffs have demonstrated they are entitled to

a permanent injunction in this case.

106 IV. Conclusion

For the foregoing reasons, the Court holds that it has

jurisdiction to hear plaintiffs’ challenges to the credible fear

policies, that it has the authority to order the injunctive

relief, and that, with the exception of two policies, the new

credible fear policies are arbitrary, capricious, and in

violation of the immigration laws.

Accordingly, the Court GRANTS in PART and DENIES in PART

plaintiffs' cross-motion for summary judgment and motion to

consider evidence outside the administrative record. The Court

also GRANTS plaintiffs’ motion for a permanent injunction. The

Court further GRANTS in PART and DENIES in PART the government’s

motion for summary judgment and motion to strike.

The Court will issue an appropriate Order consistent with

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 17, 2018