D.A.M. v. Barr

Decision Date15 September 2020
Docket NumberCase No. 20-cv-1321 (CRC)
Citation486 F.Supp.3d 404
Parties D.A.M., et al., Petitioners, v. William BARR in his official capacity as Attorney General of the United States, et al., Respondents.
CourtU.S. District Court — District of Columbia

Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, for Petitioners D.A.M., a Minor, J.S.P., L.O.R., J.S.M., S.L.V.

Caroline Heller, Pro Hac Vice, Greenberg Traurig P.A., Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, for Petitioner All Plaintiffs.

Christopher Charles Hair, Erez Reuveni, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Respondents.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Petitioners in this case are asylum seekers from several countries who were issued orders of expedited removal after entering the United States. Most of the petitioners were denied asylum pursuant to an interim rule known as the "Transit Ban." Petitioners originally sought a writ of habeas corpus and a temporary restraining order ("TRO") preventing Immigration and Customs Enforcement ("ICE") from carrying out their removal during the COVID-19 pandemic. Doing so, petitioners argued, would expose them to attendant health risks in violation of their substantive due process rights. The Court denied the TRO motion. While the habeas petition was pending before this Court, however, another court in this district vacated the Transit Ban, finding that it was improperly promulgated under the Administrative Procedure Act ("APA"). Petitioners then amended their habeas petition, adding a claim that the vacatur of the Transit Ban makes it unlawful for the government to remove them without affording them all the procedures that were available to asylum seekers prior to the Transit Ban's issuance. Petitioners have now filed a second TRO motion to block their imminent deportation on that basis.

In the abstract, there may well be merit to petitioners’ contention that deporting them based on removal orders issued under the now-vacated Transit Ban would violate their due process rights. However, the Court concludes that it very likely lacks jurisdiction to rule on this issue. Petitioners’ claim is ultimately a challenge to the implementation of their final orders of expedited removal. With limited exceptions that do not apply here, Congress has specifically barred such claims under 8 U.S.C. § 1252, the section of the Immigration and Nationality Act ("INA") limiting judicial review of removal orders. That policy choice is consistent with the Suspension Clause of the Constitution, even if it sometimes produces troubling results. Petitioners therefore are not likely to succeed on the merits of their Transit Ban claims, and the other TRO factors do not outweigh their failure to show a likelihood of success. Accordingly, the Court will deny the pending TRO motion and lift the administrative stay of removal that the Court imposed while the motion was pending.

I. Background

Much of the background relevant to this case was set forth in an earlier Memorandum Opinion denying petitioners’ first TRO motion. See D.A.M. v. Barr ("D.A.M. I"), No. 20-cv-1321 (CRC), 474 F.Supp.3d 45 (D.D.C. July 23, 2020). Here, the Court will review only what is necessary for purposes of the present motion.

A. Petitioners’ Administrative Proceedings

Petitioners are families from Guatemala, Honduras, El Salvador, Haiti, Mexico, Ecuador, Brazil, Colombia, Chile, Nicaragua, and Peru. They traveled to the U.S. without valid entry documents and asserted that they were seeking protection from persecution in their home countries.

Upon their arrival in the U.S., petitioners were placed into expedited removal proceedings under 8 U.S.C. § 1225(b). In the expedited removal process, arriving noncitizens without valid entry documents who indicate no intention to apply for asylum or fear of persecution are issued orders of removal "without further hearing or review." 8 U.S.C. § 1225(b)(1)(A)(i). Those who do seek asylum or express fear of persecution are interviewed by an asylum officer. Id. § 1225(b)(1)(A)(ii). The asylum officer determines whether the noncitizen has demonstrated a "credible fear of persecution"—i.e., "a significant possibility ... that the alien could establish eligibility for asylum." Id. § 1225(b)(1)(B)(v). If the asylum officer finds no credible fear, the noncitizen is denied asylum and issued an order of removal, which is subject to expedited review by an immigration judge. Id. § 1225(b)(1)(B)(iii). In addition to pursuing asylum, noncitizens may seek withholding of removal under § 241(b)(3)(B) of the INA or the Convention Against Torture ("CAT"). See 8 C.F.R. § 1208.16(a). But to obtain withholding of removal on those bases, noncitizens must meet a significantly higher standard than "credible fear." Specifically, noncitizens seeking withholding of removal under the CAT must show that they are "more likely than not" to be tortured if removed. Id. § 1208.16(c)(2). Those seeking withholding of removal under § 241(b)(3) of the INA similarly must show that they are "more likely than not" to be persecuted on a protected ground in the future, or that they have suffered such persecution in the past. Id. § 1208.16(b).

Petitioners here were determined to lack a credible fear of persecution. However, the process through which most of the petitioners received these determinations differed from the usual process under 8 U.S.C. § 1225(b). Specifically, most of the petitioners were subjected to the so-called Transit Ban, an interim rule jointly issued last year by the Department of Homeland Security ("DHS") and the Department of Justice ("DOJ").1 With limited exceptions, the Transit Ban rendered migrants seeking admission to the U.S. at the border with Mexico categorically ineligible for asylum unless they first applied for and were denied similar protection in a third country through which they traveled. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835 (July 16, 2019). Therefore, for petitioners covered by the Transit Ban, asylum officers automatically made negative credible-fear determinations, regardless of how likely it appeared that those petitioners would face persecution after removal. Petitioners thus faced expedited removal unless they could satisfy the higher standard for withholding of removal under INA § 241(b)(3) or the CAT.

Ultimately, each petitioner was issued an order of expedited removal. Many of them are now being detained by ICE at either the South Texas Family Residential Facility in Dilley, Texas or the Berks County Residential Center in Leesport, Pennsylvania. Others have been released for medical or other reasons.

B. Procedural History
1. Surrounding Litigation

Two other recent actions in this district provide necessary context for the present suit.

a. CAIR v. Trump

Shortly after DHS and DOJ promulgated the Transit Ban, immigrant-services organizations filed a lawsuit challenging the interim rule under the APA. The plaintiffs claimed that the Transit Ban was arbitrary and capricious, that it violated the INA, and that it was improperly issued without notice-and-comment procedures. Capital Area Immigrants’ Rights Coal. v. Trump ("CAIR"), No. 19-cv-2117 (TJK), 471 F.Supp.3d 25, 31–32 (D.D.C. Jun. 30, 2020).

In June 2020, Judge Timothy Kelly granted summary judgment for the plaintiffs, finding that the government's failure to advance the interim rule through notice-and-comment procedures rendered it invalid under the APA. Id. As a remedy, Judge Kelly vacated the Transit Ban. In doing so, he rejected the government's argument that the court should limit any relief to the parties in CAIR. Id. at 58–59. He also concluded that vacatur of the interim rule would "not result in prohibitively disruptive consequences," partly because the southern border was already "effectively closed" to new asylum seekers due to the COVID-19 pandemic. Id. The government has appealed Judge Kelly's ruling to the D.C. Circuit. Notice of Appeal, Capital Area Immigrants’ Rights Coal. v. Trump, No. 19-cv-2117 (TJK) (D.D.C. Aug. 28, 2020).

b. M.M.V. v. Barr

Last year, a group of plaintiffs including some of the petitioners here filed a lawsuit challenging what they described as regulations, directives, and procedures adopted to implement the Transit Ban. See M.M.V. v. Barr ("M.M.V. I"), No. 19-cv-2773 (ABJ), 456 F.Supp.3d 193, 199–200 (D.D.C. Apr. 27, 2020). They invoked the court's jurisdiction under 8 U.S.C. § 1252(e)(3), which authorizes federal court challenges to "written" policies "implementing" the INA's expedited removal provisions under certain circumstances. The case was initially assigned to Judge Kelly as related to CAIR. However, Judge Kelly determined that the cases were not related, based in part on the M.M.V. plaintiffs’ representation that their complaint did not challenge the Transit Ban itself. Order at 2, M.M.V. v. Barr, No. 19-cv-2773 (TJK) (D.D.C. Sept. 25, 2019). M.M.V. was then randomly reassigned to Judge Amy Berman Jackson.

In April 2020, Judge Jackson dismissed the bulk of the plaintiffs’ claims, finding that most of the alleged policies that they challenged were not written and that the INA stripped the court of jurisdiction to review unwritten policies. M.M.V. I, 456 F.Supp.3d at 209–21. She also denied several motions to join the suit by would-be plaintiffs (also petitioners here) because they either were not subject to the one written (and thus reviewable) policy or failed to challenge it within sixty days of its implementation, as required by the statute. Id. at 221–24.

Judge Jackson's ruling is now pending on appeal. The D.C. Circuit denied an emergency motion to stay the plaintiffs’ removals during the appeal. Order, M.M.V. v. Barr, No. 20-5106, 2020 WL...

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