Grace v. Whitaker

• Citation: 344 F.Supp.3d 96
• Decision Date: 17 December 2018
• Docket Number: No. 18-cv-01853 (EGS),18-cv-01853 (EGS)
• Parties: GRACE, et al., Plaintiffs, v. Matthew G. WHITAKER, Acting Attorney General of the United States, et al., Defendants.
• Court: U.S. District Court — District of Columbia

344 F.Supp.3d 96

GRACE, et al., Plaintiffs,

v.Matthew G. WHITAKER,¹ Acting Attorney General of the United States, et al., Defendants.

No. 18-cv-01853 (EGS)

United States District Court, District of Columbia.

Signed December 17, 2018

Filed December 19, 2018

[344 F.Supp.3d 104]

Anne Kathleen Scholten Dutton, Pro Hac Vice, Hastings College of the Law, Eunice Lee, UC Hastings Center for Gender and Refugee Studies, Cody H. Wofsy, Pro Hac Vice, Jennifer Chang Newell, Katrina Eiland, Pro Hac Vice, American Civil Liberties Union Foundation, San Francisco, CA, Celso Perez, Lenora M. Lapidus, ACLU Immigrants' Rights Project, Emma Jane Roth, Judy Rabinovitz, Pro Hac Vice, Omar C. Jadwat, Pro Hac Vice, Sandra Shin-Young Park, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Scott Michelman, Arthur B. Spitzer, American Civil Liberties Union of the District of Columbia, Washington, DC, Andre Ivan Segura, Pro Hac Vice, Thomas Paul Buser-Clancy, Pro Hac Vice, American Civil Liberties Union Foundation of Texas, Houston, TX, for Plaintiffs.

Erez Reuveni, Joseph Anton Darrow, Joshua Samuel Press, United States Department of Justice, Christina Greer, U.S. Department of Justice, Civil Division Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

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 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

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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"), 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.

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.

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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

1. 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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), "to which the United States had been bound since 1968," id. at 432–33, 107 S.Ct. 1207. 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, 107 S.Ct. 1207 (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 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, 107 S.Ct. 1207. 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: 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).

2. Expedited Removal Process

Before seeking asylum through the procedures outlined above, however, many

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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 (...