M.M.V. v. Barr

• Citation: 456 F.Supp.3d 193
• Decision Date: 27 April 2020
• Docket Number: Civil Action No. 19-2773 (ABJ)
• Parties: M.M.V., et al., Plaintiffs, v. William BARR, in his official capacity as Attorney General of the United States, et al., Defendants.
• Court: U.S. District Court — District of Columbia

456 F.Supp.3d 193

M.M.V., et al., Plaintiffs,

v.William BARR, in his official capacity as Attorney General of the United States, et al., Defendants.

Civil Action No. 19-2773 (ABJ)

United States District Court, District of Columbia.

Signed April 27, 2020

Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, Caroline Heller, Pro Hac Vice, Greenberg Traurig P.A., Elora Mukherjee, Pro Hac Vice, Morningside Heights Legal Services, Inc., New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, Amy Maldonado, Pro Hac Vice, Law Office of Amy Maldonado, East Lansing, MI, Bridget Cambria, Pro Hac Vice, Cambria & Kline, P.C., Reading, PA, Hassan Minhaj Ahmad, The HMA Law Firm PLLC, McClean, VA, for Plaintiffs.

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

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiffs, proceeding under pseudonyms, are seeking asylum in the United States. That process is now governed by a new regulation, referred to as the Transit Ban, which requires asylum seekers to apply first in another country on the way here. See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019). The ban restricts asylum eligibility to those who have applied for protection in another country while in transit to the United States and were denied protection in that country.

This lawsuit does not challenge the Transit Ban directly; plaintiffs challenge what they allege are written regulations, directives, or procedures that have been issued by the administration to implement and enforce the new asylum restrictions. Second Am. Compl. [Dkt. # 54] ¶¶ 1, 3.

Plaintiffs are mothers and their children who are detained at the South Texas Family Residential Center who have been issued negative credible fear and reasonable fear determinations and have received orders to be removed from the United States. Id. ¶ 12. Defendants are William P. Barr, the Attorney General of the United States; James McHenry, the Director of the Executive Office for Immigration Review; Chad F. Wolf, the Acting Secretary of the Department of Homeland Security; Matthew T. Albence, the Acting Director of Immigrations and Customs Enforcement; Mark Morgan, the Acting Commissioner of Customs and Border Protection; Kenneth T. Cuccinelli, the Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services; and Andrew Davidson, the Acting USCIS Asylum Division Chief. Id. ¶¶ 112–18.

Plaintiffs claim that the new policies are unlawful under the Administrative Procedure Act, 5 U.S.C. §§ 553, 706(2), because they are contrary to law, arbitrary and capricious, and the Department of Homeland Security ("DHS") failed to employ appropriate notice and comment procedures in enacting them. Second Am. Compl. ¶¶ 174–82, 189–93. Plaintiffs also claim that the new procedures are unconstitutional because they do not afford the necessary due process to non-citizens and violate their rights under the First and Fifth Amendments. Id. ¶¶ 183–88. Plaintiffs seek equitable relief in the form of an order enjoining defendants from issuing expedited removal orders and continuing to apply the new policies and procedures, as well as a declaratory judgment stating that the new policies are contrary to law. Id. at 66–67, Prayer for Relief.

Plaintiffs moved for a temporary restraining order on September 25, 2019. Pls.' First Mot. for TRO [Dkt. # 13] ("Pls.' First TRO Mot."). Defendants opposed the motion, Defs.' Mem. in Opp. to Pls.' First TRO Mot. [Dkt. # 26] ("Defs. Opp. to First TRO Mot."), and they moved to dismiss the case in part for lack of subject matter jurisdiction on February 14, 2020. Defs.' Partial Mot. to Dismiss [Dkt. # 72] ("Defs.' Mot."). For the reasons stated below, defendants' partial motion to dismiss will be granted.

It is worth noting at the outset that this case is not about illegal immigrants. It is about women and children who have travelled great distances, under extraordinarily difficult circumstances, to request legal admission to this country of immigrants through the long-standing process of applying for asylum, and it is brought against the backdrop of the ongoing efforts of the current administration to erect new barriers to their entry and possibly close the door entirely. But as the plaintiffs in this case have consistently emphasized, this particular lawsuit is not the lawsuit challenging the Transit Ban. And this more limited lawsuit presents numerous complex jurisdictional issues under the Illegal Immigration Reform and Immigrant Responsibility Act, which places substantial limitations on the availability of judicial review. Therefore, even though the majority of the claims and the claimants will be dismissed, nothing in this opinion should be read as expressing any point of view about the lawfulness or the reasonableness of the ban itself, or the legitimacy of any unwritten policies related to its implementation.

BACKGROUND

Statutory and Regulatory Framework

The current asylum system was established by the Refugee Act of 1980, Pub. L. 96-212, 95 Stat. 102. The law was intended to implement the principles agreed to in the 1951 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 ("Refugee Convention"), and the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267. Negusie v. Holder , 555 U.S. 511, 535, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) ; Second Am. Compl. ¶ 119. The Refugee Convention established the principle of "non-refoulement "; the signatories agreed that "[n]o Contracting State shall expel or return (refouler ) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion."¹ Refugee Convention, art. 33(1), 189 U.N.T.S. 150. According to plaintiffs, the principle guarantees "procedural safeguards that prohibit removal or return of non-citizens to countries where their life or liberty may be threatened," Second Am. Compl. ¶ 124, citing INS v. Stevic , 467 U.S. 407, 426, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and it was codified as part of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681–822 (1998) (codified as Note to 8 U.S.C. § 1231 ).

Plaintiffs assert that pursuant to the Refugee Act, before 1996, non-citizens were generally entitled to a full hearing in immigration court before they could be removed. Second Am. Compl. ¶ 125. They were also entitled to administrative appellate review before the Board of Immigration Appeals ("BIA") and judicial review in federal court. Id. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, which established a truncated removal mechanism called "expedited removal" in which a non-citizen who has not been admitted or paroled into the United States, and who lacks valid entry documentation or makes material misrepresentations, shall be "order[ed] ... removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under [ 8 U.S.C. § 1158 ] or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i) ; see Second Am. Compl. ¶ 126. If an individual does not indicate a credible fear or intention to apply for asylum, a final order of expedited removal may be entered against the non-citizen. Id. § 1225(b)(1)(A)(i). But if an individual makes such an indication, he or she must undergo a "credible fear" interview. See id. § 1225(b)(1)(B)(ii).

To prevail at a credible fear interview, the applicant must show that there is a "significant possibility" that he or she could establish the well-founded fear of persecution necessary to be eligible for asylum under 8 U.S.C. § 1158. 8 U.S.C. § 1225(b)(1)(B)(v). For that, "it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility." INS v. Cardoza-Fonseca , 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), quoting Stevic , 467 U.S. at 424–25, 104 S.Ct. 2489. An objective showing that an applicant has even a ten percent chance of being shot, tortured, or persecuted can be a basis for the well-founded fear. Id.

The law provides certain procedural protections for those undergoing credible fear interviews. The asylum officer must "conduct the interview in a non-adversarial manner." 8 C.F.R. § 208.30(d). Asylum officers typically conduct the credible fear interviews, and Congress has required these officers to have "professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators." 8 U.S.C. § 1225(b)(1)(E) ; see also 8 C.F.R. § 208.1(b). The asylum officer must "consider whether the alien's case presents novel or unique issues that merit consideration in a full hearing before an immigration judge." 8 C.F.R. 208.30(e)(4). Furthermore, the interviewee is entitled to "information concerning the asylum interview" (i.e., what process and standards apply) and to "consult with a person or persons of the alien's choosing prior to the interview or any review." 8 U.S.C. § 1225(b)(1)(B)(iv).

If the asylum officer determines that the non-citizen has established a credible fear, the applicant is taken out of the expedited removal process. See 8 U.S.C. § 1225(b)(1)(B)(ii). He or she will be referred to a regular removal hearing under § 1229a, before an immigration judge, where there will be an opportunity to develop a full record and appeal an adverse decision to the BIA and a federal court. See id. § 1252(a)(1). If the asylum officer determines there is no credible fear, and a supervisory asylum officer...