Kiakombua v. Wolf, No. 19-cv-1872 (KBJ)

• Decision Date: 31 October 2020
• Docket Number: No. 19-cv-1872 (KBJ)
• Citation: 498 F.Supp.3d 1
• Parties: Maria M. KIAKOMBUA, et al., Plaintiffs, v. Chad F. WOLF, in his official capacity as Acting Secretary of the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

498 F.Supp.3d 1

Maria M. KIAKOMBUA, et al., Plaintiffs,

v.Chad F. WOLF, in his official capacity as Acting Secretary of the Department of Homeland Security, et al., Defendants.

No. 19-cv-1872 (KBJ)

United States District Court, District of Columbia.

Signed October 31, 2020

Deepa Alagesan, Kathryn S. Austin, Mariko Hirose, International Refugee Assistance Project, New York, NY, Justin B. Cox, Pro Hac Vice, International Refugee Assistance Project, Atlanta, GA, Manoj Govindaiah, Maria R. Osornio, Refugee and Immigrant Center for Education & Legal Services, San Antonio, TX, for PlaintiffMaria M. Kiakombua.

Deepa Alagesan, Kathryn S. Austin, International Refugee Assistance Project, New York, NY, Manoj Govindaiah, Maria R. Osornio, Refugee and Immigrant Center for Education & Legal Services, San Antonio, TX, Justin B. Cox, Pro Hac Vice, International Refugee Assistance Project, Atlanta, GA, for Plaintiffs Sofia, Ana, Julia, Emma.

Paul Cirino, Steven A. Platt, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION...9

II. BACKGROUND...11

A.Credible Fear Screenings And The U.S. AsylumProcess...11

B. USCIS's "Lesson Plan On Credible Fear Of Persecution And Torture Determinations"...14

C.Plaintiffs’ Asylum-RelatedExperiences...15

1.MariaKiakombua...16

2."Sofia" and "Julia"...16

3."Ana" and "Emma"...17

D.ProceduralHistory...18

1.Plaintiffs’ LegalClaims...18

2.The Parties’ Cross-Motions For Summary Judgment...19

III.LEGALSTANDARDS...21

A.Motions To Dismiss Under Federal Rule Of Civil Procedure12(b)(1)...21

B.Rule 56 Motions For Summary Judgment With Respect To Legal Claims That Assail Agency Action Under The APA AndOtherwise...22

IV. ANALYSIS...23

A.Plaintiffs Have Article III Standing To Challenge The Lesson Plan, And Defendants Have Not Established That Plaintiffs’ Claims Are Moot...24

1.Plaintiffs Suffered An Injury In Fact, Which Is Fairly Traceable To The Lesson Plan, And May Be Redressed By An Order Vacating The Lesson Plan And Requiring New Credible FearDeterminations...24

2.Defendants Have Not Persuasively DemonstratedMootness...27

B.This Court Has Subject-Matter Jurisdiction To Review Agency Action That Allegedly Violates Provisions Of TheINA...30

1.Section 1252(e)(3)(A) Of The INA Preserves This Court's Subject-Matter Jurisdiction Under 28 U.S.C. § 1331 In TheseCircumstances...31

2.Plaintiffs’ Claims Are Not Time-Barred...35

C.The Lesson Plan Violates The INA And Its ImplementingRegulations...36

1.The INA And Its Regulations Plainly Establish A Two-Stage Framework To Demonstrate Asylum Eligibility In The Expedited Removal Context, And Provide Standards For Making The Required Assessment At Each Stage Of TheProcess...38

2.Certain Provisions Of The Lesson Plan Conflate The Initial Credible Fear Screening Standards With The Requirements For Asylum Eligibility, And Are Thus Manifestly Inconsistent With The INA's ExpressPrescriptions...40 a. The Lesson Plan Requires That A Noncitizen "Identify More Than Significant Evidence That The Applicant Is A Refugee Entitled To Asylum" In Order To Pass The Credible FearScreening...40

b. The Lesson Plan Imports Factors That Are Relevant For Asylum Relief During The Full Removal Proceeding Stage Into The Initial Credible Fear DeterminationProcess...42

c. The Lesson Plan Places A Burden On The Asylum Seeker Who Suffered Past Persecution To Show Unchanged Country Conditions And The Unavailability Of Internal Relocation As Prerequisites For A Favorable Credible FearDetermination...43

3.Certain Provisions Of The Lesson Plan Are Based Upon An Unreasonable Interpretation Of The INA's Asylum ReviewProcess...44

a. The Lesson Plan's Mandate That Noncitizens Provide "Evidence" And "Facts" That Pertain To "Every Element" Of Their Asylum Claim Is Plainly Unreasonable Given The StatutoryRequirements...44

b. The Lesson Plan Unreasonably Permits Asylum Officers To Require Corroboration In The Context Of The Credible Fear InterviewProcess...46

c. The Lesson Plan Unreasonably Requires The Screening Officer To Consider Whether The Noncitizen's Home Government Has "Abdicated Its Responsibility" To ControlPersecution...47

D.The Unlawful Provisions Of The Lesson Plan Cannot Be Severed From The Remainder Of The Document, So The Court Will Exercise Its Equitable Authority To Vacate The Entire Lesson Plan And Will Also Order New Credible Fear Determinations For ThesePlaintiffs...49

1.Vacatur Is An Appropriate Remedy Under TheseCircumstances...50

2.The Unlawful Provisions Of The Lesson Plan Are Not Severable From The Remainder Of The Document, Such That Vacatur Of The Entire Lesson Plan IsRequired...54

3.Plaintiffs Are Entitled To New Credible FearDeterminations...57

V. CONCLUSION...59

I.INTRODUCTION

The Department of Homeland Security("DHS")—and, in particular, DHS's sub-agency, the United States Citizenship and Immigration Services ("USCIS")—is tasked with the responsibility of training federal employees to make sensitive and consequential judgments concerning the asylum eligibility of noncitizens seeking refuge in the United States.¹Federal law specifically prescribes the substantive standards that front-line asylum officers apply in order to identify those noncitizens designated for expedited removal who have a "credible fear or persecution" in their home countries and are thus entitled to a more probing evaluation of their asylum request in the context of a full removal hearing.See, e.g. , 8 U.S.C. § 1225(b)(1)(B);8 C.F.R. § 208.30;see alsoIllegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, div. C,110 Stat. 3009-546(amending8 U.S.C. § 1101 et seq. ).USCIS has also developed a related training course for its screening officers, which utilizes a manual titled the "Lesson Plan on Credible Fear of Persecution and Torture Determinations."(Ex. 1 to Admin. Record ("Lesson Plan"), ECFNo. 61-1, at 2–38.)²That document—which the agency colloquially refers to as "the Lesson Plan"—purports "to explain [to asylum officers] how to determine whether an alien subject to expedited removal or an arriving stowaway has a credible fear of persecution or torture."(Id. at 2.)According to USCIS, the Lesson Plan enables asylum officers "to correctly make a credible fear determination consistent with the statutory provisions, regulations, policies, and procedures that govern whether the applicant has established a credible fear of persecution or a credible fear of torture."(Id. )

The instant action challenges that proposition.PlaintiffsMaria Kiakombua, Ana, Emma, Sofia, and Julia (collectively "Plaintiffs") are noncitizens subject to expedited removal who allege that, sometime between May and June of 2019, USCIS screening officers made adverse credible fear determinations with respect to each of them pursuant to the Lesson Plan's directives.(See Suppl.First Am. Compl.("Am. Compl."), ECFNo. 62-2, ¶¶ 8, 14, 21, 23, 25, 27.)Plaintiffs assert, inter alia , that the current version of the Lesson Plan is unlawfully designed "to drive down the rate at which asylum seekers pass the screenings and avoid summary deportation[,]" and that it does so by, among other things, directing asylum officers to make credible fear determinations in a manner that is manifestly inconsistent with the governing statutory and regulatory requirements.(Id.¶ 72;see, e.g. , id.¶ 85("[T]he Lesson Plan misrepresents the substantive law to be considered by the asylum officer to evaluate potential eligibility for asylum or other humanitarian protection[.]").)For example, according to Plaintiffs, the Lesson Plan "converts the credible fear determination from an inquiry into whether an asylum seeker could establish eligibility for relief in the future"(id.¶ 81), as the Immigration and Nationality Act("INA") provides, see8 U.S.C. § 1225(b)(1)(B)(v), "into an adjudication on whether the asylum seeker actually has established eligibility" during the initial screening phase (Am. Compl. ¶ 81).Similarly, Plaintiffs allege that the Lesson Plan "increases the evidentiary burden the asylum seeker must carry to pass a credible fear screening" insofar as it "impos[es] an unlawful corroboration requirement; requir[es] the asylum seeker to present more than significant evidence of eligibility ...; and plac[es] the onus on the asylum seeker to produce testimony that is in fact the officer's duty to elicit."(Id.¶ 83(internal quotation marks omitted).)

Plaintiffs’ three-count lawsuit, which has been filed against the Attorney General, DHS, USCIS, the Refugee, Asylum, and International Operations ("RAIO") Directorate, and United States Customs and Border Protection ("CBP")(collectively, "Defendants"), claims that: (1) the current Lesson Plan is inconsistent with the provisions of certain immigration-related statutes, other federal laws, and customary international law (seeAm. Compl. ¶¶ 89–98("First Claim for Relief")); (2)Defendants failed to follow notice-and-comment rulemaking procedures when they crafted the current Lesson Plan, in violation of the procedural requirements of the Administrative Procedure Act("APA")(id.¶¶ 99–103("Second Claim for Relief")); and (3) as it is currently constituted, the Lesson Plan transgresses the Due Process Clause of the Fifth Amendment to the United States Constitution(seeid.¶¶ 104–08("Third Claim for Relief")).

Before this Court at present are the parties’ cross motions for summary judgment concerning Plaintiffs’ legal claims.(SeeDefs.’ Mem. in Supp. of Mot. for Summ. J.("Defs.’Mot."), ECFNo. 31-1;Pls.’ Mem. in Supp. of Cross-Mot. for Summ. J. and in Opp'n to Defs.’ Mot. ("Pls.’Mot."), ECFNo. 36-1;Defs.’ Mem. of Law in Opp'n to Pls.’ Mot. and Reply in Supp. of Defs.’ Mot. ("Defs.’Reply"), ECF No. 49;Pls.’ Reply Mem. of Law in Supp. of Pls.’ Mot. ("Pls.’Reply"), ECF No. 60.)In their motion, Defendants make...