A.B.-B. v. Morgan

• Decision Date: 29 August 2020
• Docket Number: Civil Case No. 20-cv-846 (RJL)
• Citation: 548 F.Supp.3d 209
• Parties: A.B.-B., et al., Plaintiffs, v. Mark A. MORGAN, Acting Commissioner, U.S. Customs and Border Protection, et al., Defendants.
• Court: U.S. District Court — District of Columbia

548 F.Supp.3d 209

A.B.-B., et al., Plaintiffs,

v.Mark A. MORGAN, Acting Commissioner, U.S. Customs and Border Protection, et al., Defendants.

Civil Case No. 20-cv-846 (RJL)

United States District Court, District of Columbia.

Signed August 29, 2020

Filed August 31, 2020

Brian Rene Frazelle, Brianne Jenna Gorod, Elizabeth Wydra, Constitutional Accountability Center, Washington, DC, Julie M. Carpenter, Richard P. Caldarone, Pro Hac Vice, Tahirih Justice Center, Falls Church, VA, for Plaintiffs.

Joseph F. Carilli, Jr., U.S. Attorney's Office, Rebecca Marie Cutri-Kohart, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants Chad F. Wolf, Kenneth T. Cuccinelli, II, Andrew J. Davidson, William P. Barr, Troy Miller.

MEMORANDUM OPINION

[Dkt. #12]

RICHARD J. LEON, United States District Judge

Plaintiffs are four mothers and their seven children from Honduras, Ecuador, and Mexico who seek asylum in the United States based on fears of kidnapping, rape, torture, and murder by individuals connected to politicians or drug cartels in their home countries. With their lives potentially on the line, they challenge a January 30, 2020 Memorandum of Agreement delegating authority from U.S. Citizenship and Immigration Services ("CIS") to allow agents from U.S. Customs and Border Protection ("CBP") to conduct "credible fear" interviews for asylum seekers. Plaintiffs contend that the Memorandum of Agreement (1) was issued in violation of the Federal Vacancies Reform Act, (2) violates the Homeland Security Act's delegation of asylum authority to CIS, (3) violates the Immigration and Nationality Act's requirements for the asylum process, (4) is arbitrary and capricious in violation of the Administrative Procedure Act, (5) violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution, and (6) violates the U.N. Convention Against Torture's protection against refoulement.

Plaintiffs faced imminent removal from the United States after their negative "credible fear" determinations by CBP agents were upheld by immigration judges. As such, they sought a temporary restraining order preventing their removal and, as relevant here, preliminary injunctive relief barring CBP agents from conducting further credible fear interviews pursuant to the January 30, 2020 Memorandum of Agreement. While plaintiffs raise many important claims, I need address only one of them here because plaintiffs have shown a likelihood of success on the merits of their claim that the use of CBP agents who receive substantially less training than CIS asylum officers to conduct asylum interviews violates the Immigration and Nationality Act. Weighing the preliminary injunction factors, I find that plaintiffs are entitled to preliminary injunctive relief. Accordingly, the Court hereby GRANTS plaintiffs’ motion for a preliminary injunction [Dkt. #12].

BACKGROUND

I. The Expedited Removal System

Prior to 1996, noncitizens who entered the United States without valid authorization generally received a full hearing in immigration court before they could be removed. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), amending the Immigration and Nationality Act ("INA") to establish an "expedited removal" process through which certain noncitizens seeking admission to the United States could be removed "without further hearing or review," 8 U.S.C. § 1225(b)(1)(A)(i). See Pub. L. No. 104-208, 110 Stat. 3009– 546 (1996) (codified as amended in scattered sections of 8 U.S.C.). Under the expedited removal framework, an alien "who is arriving in the United States" or "certain other aliens" shall be ordered "removed from the United States without further hearing or review." 8 U.S.C. § 1225(b)(1)(A). However, the IIRIRA created an exception for individuals who indicate "an intention to apply for asylum" or "a fear of persecution" upon returning to their home countries. Id. Under this exception, an immigration officer "shall refer the alien for an interview by an asylum officer," id. § 1225(b)(1)(A)(ii), to determine whether the alien "has a credible fear of persecution," id. § 1225(b)(1)(B)(ii). A "credible fear of persecution" 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." Id. § 1225(b)(1)(B)(v). To establish eligibility for asylum, an applicant must show that there is at least a 10% chance that he or she will be persecuted based on one of the five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. INS v. Cardoza-Fonseca , 480 U.S. 421, 439–40, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

In the INA, Congress requires that asylum officers conducting these interviews must have "professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators" of asylum applications. 8 U.S.C. § 1225(b)(1)(E). They must also be "supervised by an officer" who has the requisite training and "has had substantial experience adjudicating asylum applications." Id. The asylum interview is designed 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 therefore "conduct the interview in a nonadversarial manner" and provide an interpreter if the asylum officer "is unable to proceed competently in [the] language" of the interviewee. Id.

After the interview, if the asylum officer determines that the alien has a credible fear of persecution, the alien shall be detained pending further consideration of his or her asylum application. 8 U.S.C. § 1225(b)(1)(B)(ii). If not, the alien shall be ordered "removed from the United States without further hearing or review." Id. § 1225(b)(1)(B)(iii). However, any determination that an alien does not have a credible fear of persecution shall receive "prompt review by an immigration judge" at the alien's request. Id. § 1225(b)(1)(B)(iii)(III).

II. U.S. Department of Homeland Security

This expedited removal process falls within the jurisdiction of the U.S. Department of Homeland Security and its constituent agencies. The Department of Homeland Security ("DHS") is a cabinet-level department of the federal government with responsibility for domestic security, including issues of terrorism, border security, immigration, cybersecurity, and disaster prevention and management. See Nat'l Treasury Emps. Union v. Chertoff , 452 F.3d 839, 845 (D.C. Cir. 2006). Congress created DHS in the Homeland Security Act ("HSA") of 2002, after the terrorist attacks of September 11, 2001 raised "concerns regarding a federal system that diffused the responsibility for domestic security among numerous separate and independent agencies." Nat'l Treasury Emps. Union v. Chertoff , 385 F. Supp. 2d 1, 5–6 (D.D.C. 2005) ; see Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified as amended in scattered sections of 6 U.S.C.). In the resulting agency reorganization, Congress eliminated the Immigration and Naturalization Service ("INS") and replaced it with three sub-agencies that report to DHS: the Bureau of Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement. See Kaur v. Chertoff , 489 F. Supp. 2d 52, 55 n.5 (D.D.C. 2007). Other sub-agencies within DHS include the Transportation Security Administration, the Federal Emergency Management Agency, the U.S. Coast Guard, and the U.S. Secret Service, among others.

As relevant here, the Bureau of Citizenship and Immigration Services ("CIS") succeeded the INS in administering the United States’ immigration and naturalization adjudication system. See 6 U.S.C. § 271. In the HSA, Congress gave the Director of CIS authority over adjudications of immigrant visa petitions, naturalization petitions, asylum and refugee applications, and any other issues previously adjudicated by the INS. Id. § 271(b). By regulation, the Refugee, Asylum, and International Operations ("RAIO") Directorate within CIS has jurisdiction over asylum applications and credible fear determinations. 8 C.F.R. § 208.2(a).

U.S. Customs and Border Protection ("CBP"), on the other hand, is a law enforcement agency that manages border control, including enforcing U.S. immigration and customs regulations, interdicting persons or goods illegally entering or exiting, collecting import duties, and regulating international trade. See 6 U.S.C. § 211. CBP agents are "highly trained law enforcement personnel" who conduct screenings at the border for illegal immigration, narcotics smuggling, and illegal importation, and apprehend individuals for suspected violations of U.S. law. See Border Security, U.S. Customs & Border Prot., https://www.cbp.gov/border-security (last visited Aug. 29, 2020).

III. January 2020 Memorandum of Agreement

Since 2002, trained asylum officers from CIS's RAIO Directorate have conducted all asylum interviews and made all credible fear determinations.¹ However, on June 25, 2019, Acting CIS Director Ken Cuccinelli issued DHS delegation 2019-001, which delegated authority to CBP agents to conduct credible fear interviews. See Defs.’ Opp'n, Ex. 4, Decl. of Stephen Dove, Ex. 1, Dep't of Homeland Sec., Delegation to the Commissioner of U.S. Customs and Border Protection Regarding Credible Fear Determinations ("June CIS Delegation") (June 25, 2019) [Dkt. #17-4]. The June CIS Delegation states that it is "[s]ubject to the terms of a separate Memorandum of Agreement" between Acting CIS Director Cuccinelli and the highest ranking official at CBP. Id. ¶ II.

On July 10, 2019, Acting CIS Director Cuccinelli and Acting CBP Commissioner Mark Morgan entered into such a Memorandum of Agreement implementing the June 25, 2019 delegation. See Pls.’ Mot. for...