Capital Area Immigrants' Rights Coal. v. Trump

• Decision Date: 30 June 2020
• Docket Number: Civil Action No. 19-2117 (TJK), Civil Action No. 19-2530 (TJK)
• Parties: CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION et al., Plaintiffs, v. Donald J. TRUMP et al., Defendants. I.A. et al., Plaintiffs, v. William P. Barr et al., Defendants.
• Court: U.S. District Court — District of Columbia

471 F.Supp.3d 25

CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION et al., Plaintiffs,

v.Donald J. TRUMP et al., Defendants.

I.A. et al., Plaintiffs,

v.William P. Barr et al., Defendants.

Civil Action No. 19-2117 (TJK)

Civil Action No. 19-2530 (TJK)

United States District Court, District of Columbia.

Signed June 30, 2020

Neal Kumar Katyal, T. Clark Weymouth, Mitchell Pearsall Reich, Justin Bernick, Craig Alan Hoover, Hardy Vieux, Patricia Stottlemyer, Hogan Lovells US LLP, Washington, DC, Kaitlin Welborn, ACLU of Alabama, Montgomery, AL, Thomas P. Schmidt, Hogan Lovells US LLP, New York, NY, Elizabeth Hagerty, U.S. Attorney's Office, Denver, CO, for Plaintiff Capital Area Immigrants' Rights Coalition.

Craig Alan Hoover, Hardy Vieux, Patricia Stottlemyer, Neal Kumar Katyal, T. Clark Weymouth, Mitchell Pearsall Reich, Justin Bernick, Hogan Lovells US LLP, Washington, DC, Kaitlin Welborn, ACLU of Alabama, Montgomery, AL, Manoj Govindaiah, Refugee and Immigrant Center for Education and Legal Services, San Antonio, TX, Thomas P. Schmidt, Hogan Lovells US LLP, New York, NY, Elizabeth Hagerty, U.S. Attorney's Office, Denver, CO, for Plaintiff Refugee and Immigrant Center for Education and Legal Services, Inc.

Craig Alan Hoover, Justin Bernick, Hogan Lovells US LLP, Washington, DC, Kaitlin Welborn, ACLU of Alabama, Montgomery, AL, Thomas P. Schmidt, Hogan Lovells US LLP, New York, NY, Elizabeth Hagerty, U.S. Attorney's Office, Denver, CO, for Plaintiffs Z.B.M., C.C.R.O., Y.G.C., D.L.R., M.Y.R.B., N.G.R.L., Human Rights First, W.M.R.O., J.M.M., K.M.V.M.

Erez Reuveni, Scott Grant Stewart, Lauren Crowell Bingham, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge Plaintiffs in these related cases are immigrant-services organizations and individual asylum applicants. They challenge an interim final rule that significantly changes the United States’ asylum procedures. The rule categorically disqualifies aliens arriving at the southern border from receiving asylum unless they have already unsuccessfully sought similar protection in another country on their way here. Plaintiffs allege that the rule is unlawful for several reasons, including that it is contrary to the Immigration and Nationality Act and the Trafficking Victims Protection Reauthorization Act, is arbitrary and capricious, and was issued without notice-and-comment procedures required under the Administrative Procedure Act (APA). Plaintiffs in the first-filed case, CAIR , also allege that the rule violates asylum applicants’ Fifth Amendment due process rights. Defendants argue that this case is largely not justiciable, in part because the organizations lack standing, which deprives the Court of subject-matter jurisdiction over their claims.

Plaintiffs in CAIR moved for a temporary restraining order when they filed their complaint. At that time, Plaintiffs in that case included only nonprofit immigrant-services organizations. The Court denied their motion because they had not shown that, absent preliminary relief, they would suffer irreparable harm just because the rule would make it harder to serve asylum seekers. Those organizations then amended their complaint to add individual asylum applicants as plaintiffs and moved for a preliminary injunction. At about the same time, Plaintiffs in I.A. —a similar immigrant-services organization and individual asylum applicants as well—filed their suit and also moved for a preliminary injunction. After the Court consolidated the cases, all the parties jointly asked the Court to convert the motions for preliminary relief and the related briefing into cross-motions for summary judgment.

The Court holds that it has subject-matter jurisdiction over the claims brought by at least one organizational Plaintiff in each case. It also holds that Defendants unlawfully promulgated the rule without complying with the APA's notice-and-comment requirements, because neither the "good cause" nor the "foreign affairs function" exceptions are satisfied on the record here. The Court thus need not reach Plaintiffs’ other claims concerning the validity of the rule. The Court will grant Plaintiffs’ motions for summary judgment, deny Defendants’ cross-motions, and vacate the rule.

I. Background

A. The Immigration and Nationality Act

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , governs much of the United States’ immigration system. Two portions of it are relevant to this case: the standards applied to asylum applications, and the procedures for expedited removal.

1. Asylum

"Asylum is a form of discretionary relief that allows an otherwise removable alien who qualifies as a refugee to remain in the United States." O.A. v. Trump , 404 F. Supp. 3d 109, 118 (D.D.C. 2019). Asylum provides individuals who qualify several distinct benefits: a path to citizenship, eligibility for certain government benefits, and the chance for family members to receive asylum as well. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,832 (July 16, 2019). There are other forms of relief granting removable aliens the right to stay in this country on humanitarian grounds, but none confer those same advantages. Id.

Under the INA, any person physically in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). A person may file that application while she is in removal proceedings or independently. See id. §§ 8 U.S.C. 1225(b)(1)(A)(i), 1229a(c)(4). The former is sometimes called a defensive application and the latter an affirmative application. O.A. , 404 F. Supp. 3d at 121. Some persons are categorically ineligible for asylum, and several such categories are defined by statute in the INA. See 8 U.S.C. § 1158(b)(2)(A). For example, an alien is ineligible if she committed certain crimes, is a danger to the community, or was firmly resettled in another country before arrival in the United States.¹ Id. Assuming an applicant is not ineligible for some reason, under the INA, asylum may be granted only to an applicant physically present in the United States who is a "refugee," i.e. , someone with "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1158(a)(1), (b)(1)(A) ; id. § 1101(a)(42)(A).

After a person applies for asylum, she receives an interview with an asylum officer. Id. § 1225(b)(1)(A)(ii), (B). That officer determines whether the person is eligible for asylum—that is, first, whether she is categorically ineligible and, if not, second, whether she may be a refugee. Id. § 1158(b)(1)(A), (B)(i). The latter determination involves deciding whether the applicant has a "credible fear of persecution," which exists when "there is a significant possibility" that a person is a refugee. Id. § 1225(b)(1)(B)(v).² If after interviewing the applicant the officer determines that she has a credible fear of persecution, the applicant may be granted asylum in a subsequent proceeding if an immigration judge finds that she is a "refugee" under the statute. Id. § 1158(b)(1) ; 8 C.F.R. § 208.30(f). On the other hand, if the applicant is either ineligible or does not show a credible fear, the asylum officer enters a "negative credible fear determination." See 8 C.F.R. § 208.30(g)(1). The applicant may appeal that determination to an immigration judge. Id. § 208.30(g)(2) ; see also 84 Fed. Reg. at 33,837 –38. But as described below, if the immigration judge agrees with the asylum officer, the applicant is issued a final order of removal. 8 C.F.R. § 1208.30(g)(2)(iv)(A).

An applicant found ineligible for asylum may pursue other, more difficult avenues to avoid removal from the United States. First, she may seek withholding of removal under Section 241(b)(3) of the INA. See 8 U.S.C. § 1231(b)(3) ; 84 Fed. Reg. at 33,834. Doing so, however, requires her to prove to an immigration judge that "it is more likely than not" that she would be persecuted on a protected ground. 8 C.F.R. § 1208.16(b)(2). Second, she may seek protection under the regulations implementing Article 3 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242(b), 112 Stat. 2681 ; 84 Fed. Reg. at 33,834. But doing so requires her to show that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).

As a result, these alternative paths ultimately require "a more substantial showing" than the standard in asylum cases. O.A. , 404 F. Supp. 3d at 120. And on either path, an immigration officer performing an initial screening interview must use a more demanding standard than in asylum cases—whether the alien has "a reasonable fear of persecution or torture," 8 C.F.R. § 208.30(e)(5) —which is satisfied only "if the alien establishes a reasonable possibility that he or she would be persecuted" because of a protected ground, id. § 208.31(c). See also 84 Fed. Reg. at 33,837 (explaining that the reasonable-fear screening standard is more demanding than the credible-fear standard applicable in asylum cases). Moreover, relief under either of these paths "does not preclude the government from removing the alien to a third country where the alien would not face persecution, does not establish a pathway to lawful permanent resident status and citizenship, and does not afford derivative protection for the alien's family members." O.A. , 404 F. Supp. 3d at 120.

2. Expedited Removal

The INA sets up two types of removal proceedings: regular, under 8 U.S.C. § 1229a, and expedited, under 8 U.S.C. § 1225. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. The latter applies only to certain classes of individuals, including those who are screened out of the process by asylum...