M.M.V. v. Garland

• Decision Date: 18 June 2021
• Docket Number: No. 20-5106,C/w 20-5129,20-5106
• Citation: 1 F.4th 1100
• Parties: M.M.V., et al., Appellants v. Merrick B. GARLAND, Attorney General of the United States, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

1 F.4th 1100

M.M.V., et al., Appellants

v.Merrick B. GARLAND, Attorney General of the United States, et al., Appellees

No. 20-5106

C/w 20-5129

United States Court of Appeals, District of Columbia Circuit.

Argued September 11, 2020

Decided June 18, 2021

Caroline J. Heller argued the cause for appellants. With her on the briefs were Gregory P. Copeland, Sarah T. Gillman, Steven G. Barringer, and James E. Gillenwater.

Erez Reuveni, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, and R. Craig Lawrence and Christopher C. Hair, Assistant U.S. Attorneys.

Before: Srinivasan, Chief Judge, Katsas, Circuit Judge, and Ginsburg, Senior Circuit Judge.

Katsas, Circuit Judge:

The plaintiffs here seek to challenge eleven alleged policies on how asylum officers conduct interviews in expedited-removal proceedings. As to ten of the policies, the district court lacked jurisdiction because either the policy was unwritten or the challenges to it were time-barred. As to the only other policy, which some plaintiffs had timely challenged, the district court permissibly declined to add new plaintiffs with parallel but untimely challenges.

I

A

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) sets forth expedited procedures to remove certain inadmissible aliens arriving at the border. 8 U.S.C. § 1225(b)(1). Aliens subject to expedited removal may either claim a fear of persecution or seek to apply for asylum. Id . § 1225(b)(1)(A)(i). If an alien does either, an asylum officer must interview the alien and determine whether he has a "credible fear of persecution." Id. § 1225(b)(1)(A)(ii), (B)(ii). If the asylum officer finds such a credible fear, the alien must receive a full removal proceeding before an immigration judge, subject to further review in the Board of Immigration Appeals and a court of appeals. Id. §§ 1225(b)(1)(B)(ii), 1229a ; Grace v. Barr , 965 F.3d 883, 887–88 (D.C. Cir. 2020). If the asylum officer finds no credible fear of persecution, the alien may seek review before an immigration judge. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). If the judge then disagrees with the asylum officer, the alien is placed in full removal proceedings. See id. § 1225(b)(1)(B)(ii) ; 8 C.F.R. § 1208.30(g)(2)(iv)(B), (C). If the judge agrees with the asylum officer, the alien may be removed without further review. See 8 U.S.C. § 1225(b)(1)(B)(iii)(I) ; 8 C.F.R. § 1208.30(g)(2)(iv)(A).¹

The Attorney General and the Secretary of Homeland Security "may by regulation establish additional limitations and conditions ... under which an alien shall be ineligible for asylum." 8 U.S.C. § 1158(b)(2)(C). Invoking this authority, the Attorney General and the Secretary jointly published regulations establishing new requirements for seeking asylum. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019) (Transit Rule). The Transit Rule provides that aliens seeking to enter the United States at the southern border are ineligible for asylum unless they have already applied for asylum in a country through which they traveled while en route. See id. at 33,843. The Transit Rule does not bar aliens claiming to fear persecution from seeking other relief such as withholding of removal or protection under the Convention Against Torture. See id. at 33,837 –38.²

B

The original plaintiffs in this case are 126 inadmissible aliens caught trying to enter the country across the southern border. Each of them seeks asylum or claims to fear persecution but has received an adverse credible-fear determination. The plaintiffs do not challenge the Transit Rule itself. Instead, they challenge the government's administration of credible-fear interviews under IIRIRA and the Transit Rule, as allegedly reflected in eleven sub-regulatory policies. The plaintiffs allege the following:

1. Aliens receive no meaningful guidance on how interviews are conducted.

2. Interviewers are improperly trained.

3. Interviewers make decisions before the interview is complete.

4. Interviewers do not produce an adequate record.

5. Interviews are adversarial.

6. Interviews occur without adequate notice.

7. Interviews occur without access to counsel.

8. Interviewers do not apply the proper circuit precedent.

9. Credible-fear determinations are automatically reviewed for fraud.

10. Interviewers do not adequately state the basis for their decisions.

11. Children are subjected to long, adversarial interviews.

The plaintiffs argue that these policies violate the Immigration and Nationality Act, the Administrative Procedure Act, and the First and Fifth Amendments.

The plaintiffs sought a temporary restraining order barring their removal. The district court granted an administrative stay, but never actually ruled on the TRO. While the administrative stay was in effect, the plaintiffs filed two amended complaints adding some 129 new plaintiffs to the case. They also filed five motions to join 65 additional plaintiffs. For its part, the government filed a motion to dismiss most of the claims by most of the actual and proposed plaintiffs.

The district court granted the motion to dismiss, denied the joinder motions, and lifted the administrative stay for all but 18 of the plaintiffs. M.M.V. v. Barr , 456 F. Supp. 3d 193 (D.D.C. 2020). The court held that it lacked jurisdiction to review all but one of the alleged policies, either because the policy was unwritten or because the challenge to it was untimely. Id. at 209–20. As to the ninth challenged policy, the court held that only 18 of the plaintiffs had both timely challenged the policy and been themselves subjected to it. The court thus dismissed the challenges made by all other plaintiffs, and it refused to join the would-be plaintiffs. Id. at 220–23. The court then entered final judgment under Federal Rule of Civil Procedure 54(b) on the claims of the dismissed plaintiffs. Those plaintiffs appealed, and we have jurisdiction under 28 U.S.C. § 1291.³

II

The district court held that IIRIRA barred its review of ten of the eleven alleged policies because either the policy was unwritten or the challenges to it were untimely. We agree.

A

In a section titled "Matters not subject to judicial review," IIRIRA states that "[n]otwithstanding any other provision of law ... no court shall have jurisdiction to review" four specified categories of agency action. 8 U.S.C. § 1252(a)(2)(A). The fourth of these covers, "except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title." Id. § 1252(a)(2)(A)(iv). Subsection (e), the referenced exception, permits judicial review of any "regulation, or a written policy directive, written policy guideline, or written procedure issued" under section 1225(b). Id. § 1252(e)(3)(A)(ii).

The bar on review of "procedures and policies adopted" to implement section 1225(b)(1) plainly extends to the alleged policies at issue here, which govern credible-fear interviews in expedited-removal proceedings under section 1225(b)(1). The plaintiffs object that if the policies are unwritten, they cannot be "adopted" within the meaning of section 1252(a)(2)(A)(iv). But adoption does not require a writing, as the plaintiffs’ own cited dictionary confirms. Adopt , Merriam-Webster's Collegiate Dictionary (10th ed. 1999) ("to accept formally and put into effect"). Moreover, the statutory exception permits review of any "written policy directive, written policy guideline, or written procedure" to implement section 1225(b). 8 U.S.C. § 1252(e)(3)(A)(ii) (emphases added). A bar on reviewing "adopted" policies, subject to an exception permitting review of "written" policies, would make no sense if all "adopted" policies had to be written, for the exception would then be coextensive with the rule.

The plaintiffs also contend that the challenged policies fall outside section 1252(a)(2)(A)(iv) because they were not lawfully adopted. The plaintiffs invoke district-court decisions holding that the then-Acting Director of USCIS was unlawfully appointed, L.M.-M. v. Cuccinelli , 442 F. Supp. 3d 1, 24–29 (D.D.C. 2020), and that the Transit Rule was unlawfully promulgated, Capital Area Immigrants’ Rights Coalition v. Trump , 471 F. Supp. 3d 25, 44–57 (D.D.C. 2020). But section 1252(a)(2)(A)(iv) requires only that the disputed policies be "adopted." And its bar on judicial review of certain "policies adopted" would be ineffective if "adopted" were construed to mean "lawfully adopted" as determined by a reviewing court.

Next, the plaintiffs argue that the alleged policies fall within the exception permitting review of written procedures or policies. But they identify no written documents implementing alleged policies 1, 3, 4, 5, 7, 8, 10, and 11 in their list above. The plaintiffs argue that a writing is unnecessary because subsection (e) permits review of regulations as well as written policy directives, guidelines, and procedures. But the subsection permits review of "such a regulation," and that phrase references "any regulation issued to implement" section 1225(b). 8 U.S.C. § 1252(e)(3)(A). Because issued regulations must be published in the Federal Register, they must be written. See 5 U.S.C. § 552(a)(1). Moreover, this reading best harmonizes "such a regulation" with the following phrase "or a written policy directive, written policy guideline, or written procedure," which covers only written items. See Yates v. United States , 574 U.S. 528, 543, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) ("a word is known by the company it keeps").

The plaintiffs invoke the presumption of reviewability. "Although we presume that agency action is judicially reviewable, that presumption, like all presumptions used in interpreting statutes, may be overcome by specific language that is a reliable indicator of congressional intent." DCH...