Grace v. Barr, 071720 FEDDC, 19-5013

Docket Nº:19-5013
Opinion Judge:TATEL CIRCUIT JUDGE
Party Name:Grace, et al., Appellees v. William P. Barr, Attorney General of the United States, in his Official Capacity, et al., Appellants
Attorney:Erez Reuveni, Assistant Director, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Susan Bennett Green, Senior Litigation Counsel, and Christina P. Greer, Trial Attorney. Michael M. Hethmon was on the brief for amicus curiae Immigration Reform Law Institute...
Judge Panel:Before: Henderson, Tatel, and Griffith, Circuit Judges. Karen LeCraft Henderson, Circuit Judge, dissenting
Case Date:July 17, 2020
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Grace, et al., Appellees

v.

William P. Barr, Attorney General of the United States, in his Official Capacity, et al., Appellants

No. 19-5013

United States Court of Appeals, District of Columbia Circuit

July 17, 2020

Argued December 9, 2019

Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-01853)

Erez Reuveni, Assistant Director, U.S. Department of Justice, argued the cause for appellants.

With him on the briefs were Susan Bennett Green, Senior Litigation Counsel, and Christina P. Greer, Trial Attorney.

Michael M. Hethmon was on the brief for amicus curiae Immigration Reform Law Institute in support of defendants-appellants.

Cody Wofsy argued the cause for appellees. With him on the brief were Jennifer Chang Newell, Katrina Eiland, Julie Veroff, Judy Rabinovitz, Omar C. Jadwat, Celso J. Perez, Eunice Lee, Karen Musalo, Anne Dutton, Blaine Bookey, Sandra S. Park, Scott Michelman, Arthur B. Spitzer, and Thomas Buser-Clancy.

Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Lewis T. Preston, Assistant Attorney General, were on the brief for amici curiae The District of Columbia, et al. in support of appellees.

Elizabeth B. Wydra, Brianne J. Gorod, and Brian R. Frazelle were on the brief for amici curiae Current Members of Congress and Bipartisan Former Members of Congress in support of plaintiffs-appellees.

Paul M. Thompson, Julie Carpenter, and Richard Caldarone were on the brief for amici curiae The Tahirih Justice Center, et al. in support of appellees and affirmance.

Derek T. Ho was on the brief for amici curiae Administrative Law Professors in support of plaintiffs-appellees.

Thomas K. Ragland was on the brief for amici curiae Immigration Law Professors in support of plaintiffs-appellees.

Alexander J. Kasner was on the brief for amicus curiae United Nations High Commissioner for Refugees in support of plaintiffs-appellees.

Before: Henderson, Tatel, and Griffith, Circuit Judges.

OPINION

TATEL CIRCUIT JUDGE

Twelve asylum seekers challenge a host of executive-branch policies adopted to implement the expedited-removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C.). Broadly speaking, the challenged policies concern how asylum officers determine whether an alien has demonstrated a "credible fear" of persecution, a threshold showing that permits an alien who would otherwise be immediately deported to seek asylum in the United States. The asylum seekers principally argue that the policies raise the bar for demonstrating a credible fear of persecution far above what Congress intended and that the Attorney General and various agencies violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., by failing to adequately address important factors bearing on the policies' adoption. Largely on these grounds, the district court found the policies inconsistent with IIRIRA, the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq., and the APA, and enjoined their enforcement. For the reasons set forth in this opinion, we affirm in part and reverse in part.

I.

In IIRIRA, Congress established a comprehensive scheme for distinguishing between aliens with potentially valid asylum claims and those "'who indisputably have no authorization to be admitted [to the United States].'" American Immigration Lawyers Ass 'n v. Reno, 199 F.3d 1352, 1355 (D.C. Cir. 2000) (quoting H.R Rep. 104-828, 209 (1996) (Conf. Rep.)). Under IIRIRA, which amended the INA, newly-arrived aliens who lack valid authorization to enter the United States but express an "intention to apply for asylum," or indicate to immigration officers that they "fear persecution" if returned to their home countries, must be interviewed by trained asylum officers. 8 U.S.C. § 1225(b)(1)(A)(i)-(ii), (b)(1)(E). Such officers are employees of the United States Citizenship and Immigration Service (USCIS), an agency of the Department of Homeland Security (DHS). Asylum officers determine, in a "nonadversarial" interview, whether an alien's "fear of persecution" is "credible." 8 C.F.R. § 208.30(d)-(e).

The stakes are high. An alien found to have a credible fear of persecution receives a full-blown asylum hearing before an immigration judge, an employee of the Department of Justice (DOJ), and has a right to review by the Board of Immigration Appeals-also housed within DOJ-and then the appropriate circuit court of appeals. See DHS v. Thuraissigiam, 140 S.Ct. 1959, 1965 (2020) ("If the asylum officer finds an applicant's asserted fear to be credible, the applicant will receive 'full consideration' of his asylum claim in a standard removal hearing." (quoting 8 C.F.R. § 208.30(f))); see also 8 U.S.C. § 1225(b)(1)(B)(ii). An alien who receives a negative credible-fear determination may also seek review by an immigration judge, but if that judge affirms the negative finding, then "the asylum officer shall order the alien removed from the United States without further hearing or review." 8 U.S.C. § 1225(b)(1)(B)(iii)(I), (III); see also 8 C.F.R. § 1208.30(g). Aliens removed through this "highly expedited" process, which "is meant to conclude within 24 hours," Make the Road New York v. Wolf, No. 19-5298, 2020 WL 3421904, at *2 (June 23, 2020), are ineligible for admission to the United States for a period of five years, 8 U.S.C. § 1182(a)(9)(A)(i).

This case concerns the credible-fear interview. At this "screening" stage, "[t]he applicant need not show that he or she is in fact eligible for asylum." Thuraissigiam, 140 S.Ct. at 1965. Instead, IIRIRA defines "[c]redible fear of persecution" 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 under [8 U.S.C.] section 1158." 8 U.S.C. § 1225(b)(1)(B)(v). Under section 1158, an alien must demonstrate two things: first, "refugee" status, id. § 1158(b)(1)(B)(i), that is, either past persecution, or a "well-founded fear" of future persecution, "on account of" one or more of five statutorily-provided grounds-"race, religion, nationality, membership in a particular social group, or political opinion," id. § 1101(a)(42)(A); and second, that the ground "was or will be at least one central reason" for the persecution, id. § 1158(b)(1)(B)(i). Put differently, to gain asylum, the alien must prove that the alleged harm has a nexus to one of the enumerated grounds-in this case, "membership in a particular social group."

The INA nowhere defines "particular social group." But in a line of decisions beginning with Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board has long defined the term to mean "a group of persons all of whom share a common, immutable characteristic," one they "either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." Id. at 233; see also Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230-31 (BIA 2014) (same); In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996) (same). This basic definition is well-accepted by the courts. See, e.g., S.E.R.L. v. Attorney General, 894 F.3d 535, 545-49 (3d Cir. 2018) (describing the Board's efforts to refine Acosta's core framework); Reyes v. Lynch, 842 F.3d 1125, 1134 (9th Cir. 2016) (same). As the Seventh Circuit has explained, "if the 'members' have no common characteristics they can't constitute a group, and if they can change [their common] characteristics-that is, cease to belong to the group-without significant hardship, they should be required to do so rather than be allowed to resettle in [the United States] if they do not meet the ordinary criteria for immigration to this country." Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009). Significantly for this case, moreover, a social group must exist independently of the harm suffered by the asylum applicant, i.e., "the persecution cannot be what defines the contours of the group." Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005). For this reason, the Board has "resist[ed] efforts to classify people who are targets of persecution as members of a particular social group when they have little or nothing in common beyond being targets." Gatimi, 578 F.3d at 616. The parties refer to this principle as the circularity rule.

Narrowing our focus even further, the agency action at issue in this case addresses persecution by non-governmental actors, like gangs and spouses. Under longstanding administrative and judicial precedent, the term "persecution," undefined in the INA, encompasses harm inflicted by non-state actors. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1060 (9th Cir. 2017) (en banc) (explaining that "[t]he concept of persecution by non-state actors is 'inherent' in . . . the Refugee Act," which amended the INA); Deborah Anker, Law of Asylum in the United States § 4:10 (2019 ed.) ("In U.S. law, recognition of the non-state actor doctrine is long-standing, pre-dating the 1980 incorporation of the international refugee definition into the [INA]."). In order to obtain asylum based on persecution by non-state actors, applicants must show that their governments were "unable or unwilling to control" the persecutors. See, e.g.,

Bringas-Rodriguez, 850 F.3d at 1062-68 (collecting cases applying the "unable or unwilling" standard).

This case traces its roots to the asylum petition of an El Salvadoran mother, A.B., who entered...

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