Pangea Legal Servs. v. U.S. Dep't of Homeland Sec.

• Decision Date: 19 November 2020
• Docket Number: Case No. 20-cv-07721-SI
• Citation: 501 F.Supp.3d 792
• Parties: PANGEA LEGAL SERVICES, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — Northern District of California

501 F.Supp.3d 792

PANGEA LEGAL SERVICES, et al., Plaintiffs,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Case No. 20-cv-07721-SI

United States District Court, N.D. California.

Signed November 19, 2020

Sirine Shebaya, Pro Hac Vice, Alice A. Wang, Pro Hac Vice, Chike Bascom Waugh Croslin, Pro Hac Vice, Tobias Loss-Eaton, Pro Hac Vice, Sidley Austin LLP, Cristina M. Velez, Pro Hac Vice, National Immigration Project of the National Lawyers Guild, Washington, DC, Jack Woodruff Pirozzolo, Pro Hac Vice, Kenyon Colli Hall, Pro Hac Vice, Sidley Austin LLP, Boston, MA, Leila Kang, Pro Hac Vice, Nabilah Siddiquee, Pro Hac Vice, Immigrant Defense Project, New York, NY, Philip L. Torrey, Pro Hac Vice, Sabrineh Ardalan, Pro Hac Vice, Sameer Ahmed, Harvard Law School Harvard Immigration and Refugee Clinical Program, Cambridge, MA, Naomi Ariel Igra, Sidley Austin LLP, San Francisco, CA, for Plaintiffs.

Erez R. Reuveni, Christina P. Greer, Craig Alan Newell, Jr., Scott G. Stewart, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE REGARDING PRELIMINARY INJUNCTION

Re: Dkt. No. 21

SUSAN ILLSTON, United States District Judge When Congress passed the Refugee Act of 1980, it "declare[d] that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands[.]" Pub. L. No. 96-212, § 101(a), 94 Stat. 102. As part of the law, Congress incorporated the internationally accepted definition of "refugee." H.R. Rep. No. 96-781 at 19 (1980). The Act also codified this country's procedures for determining eligibility for asylum. In doing so, Congress stated, "The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted." Id. § 101(b), 94 Stat. 102. The Act also codified exceptions to asylum eligibility that "paralleled" the exceptions to removal relief contained in our international treaties. E. Bay Sanctuary Covenant v. Barr , 964 F.3d 832, 840 (9th Cir. 2020).

Last month, the Department of Justice and the Department of Homeland Security jointly issued a final rule: Procedures for Asylum and Bars to Asylum Eligibility, 85 Fed. Reg. 67202 (Oct. 21, 2020) (amending 8 C.F.R. §§ 208.13, 208.16, 1208.13, and 1208.16 ) ("the Rule"). The Rule creates new categories that would bar individuals from being eligible for asylum. Congress has already written a long list of crimes that render one, if convicted, ineligible for asylum—drug trafficking, sex trafficking, money laundering, counterfeiting, and many more. The Rule adds new crimes to that list, with the stated goals of promoting the efficiency of asylum proceedings, discouraging lawless behavior, and protecting the community from danger. These goals, of course, are not problematic in and of themselves, and in any event, it is not this Court's role to pass judgment on the wisdom of the policies that executive agencies may craft in the administration of their duties.

The problem is that the Rule sweeps too broadly. In doing so, it both contradicts Congress's intent and exceeds the authority Congress gave to the executive agencies. It does so without sufficient explanation from the agencies for their reasoning and without adequate notice and opportunity for the public to comment on these changes. "Defendants have not shown that the Rule actually addresses" the problems that the Rule purports to fix.

E. Bay Sanctuary Covenant v. Trump , 354 F. Supp. 3d 1094, 1118 (N.D. Cal. 2018) (" EBSC I "), aff'd , 950 F.3d 1242 (9th Cir. 2020). "And even if it did so in some small measure, that would not justify the usurpation of Congressional authority. As the Ninth Circuit noted: ‘There surely are enforcement measures that ... the Attorney General can take to ameliorate the [immigration] crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.’ " Id. (citation omitted).

Plaintiffs in this case are non-profit immigration services organizations seeking a temporary restraining order ("TRO") to stay and enjoin the Rule from taking effect nationwide. The Rule is set to take effect November 20, 2020.

For the reasons that follow, the Court will GRANT plaintiffs’ motion for a TRO enjoining defendants from implementing and enforcing the Rule.

BACKGROUND

I. Relevant Legal Framework

To understand how the Rule would change asylum law, a brief overview of the history and current legal framework of the law is in order. "Our asylum law has its roots in the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (‘Convention’), and the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (‘Protocol’)." E. Bay Sanctuary Covenant v. Trump , 932 F.3d 742, 757 (9th Cir. 2018) (" EBSC II "). "The United States was an original signatory to both treaties and promptly ratified both." Id. In 1980, Congress passed the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. That Act brought U.S. law into conformity with its international obligations under the Convention and Protocol. See id. ; INS v. Cardoza-Fonseca , 480 U.S. 421, 427, 436-37, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "The Refugee Act of 1980 established a new statutory procedure for granting asylum to refugees[,]" by commanding that the Attorney General shall establish procedures for noncitizens to apply for asylum, thus codifying this country's international obligation to accept asylees. Cardoza-Fonseca , 480 U.S. at 427, 107 S.Ct. 1207 (citing 94 Stat. 105, then codified at 8 U.S.C. § 1158(a) ); EBSC II , 932 F.3d at 754.

At present, the statute states that "[t]he Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title." 8 U.S.C. § 1158(b)(1)(A). Section 1101(a)(42)(A), in turn, defines "refugee" as follows:

any 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). With certain exceptions, " Section 1158(a) makes three classes of aliens categorically ineligible to apply for asylum: those who may be removed to a ‘safe third country’ in which their ‘life or freedom would not be threatened’ and where they would have access to equivalent asylum proceedings; those who fail to file an application within one year of arriving in the United States; and those who have previously applied for asylum and been denied." EBSC II , 932 F.3d at 758 (quoting 8 U.S.C. § 1158(a)(2)(A)-(C) ). "The INA [Immigration and Nationality Act] further directs the Attorney General to ‘establish a procedure for the consideration of asylum applications filed under subsection (a).’ Id. § 1158(d)(1). The Attorney General's discretion in establishing such procedures is limited by the specifications of § 1158(b) and (d)." Id.

Broadly speaking, the asylum application process is as follows:

To obtain asylum status, applicants must clear three hurdles. First, applicants must establish that they qualify as refugees who have left their 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," id. § 1101(a)(42)(A), and that their status in one of those groups "was or will be at least one central reason" for the persecution, id. § 1158(b)(1)(A) ; see alsoid. § 1158(b)(1)(B).

Second, Congress has established a series of statutory bars to eligibility for asylum, such as an applicant's role in persecuting members of protected groups or "reasonable grounds for regarding the alien as a danger to the security of the United States." Id. § 1158(b)(2)(A). In addition, Congress authorized the Attorney General to "by regulation establish additional limitations and conditions, consistent with [ 8 U.S.C. § 1158 ], under which an alien shall be ineligible for asylum under [ id. § 1158(b)(1) ]." Id. § 1158(b)(2)(C). If "the evidence indicates" that one of these statutory or regulatory bars applies, the applicant bears the burden of proving that it does not. 8 C.F.R. § 1240.8(d).

Finally, even if an applicant satisfies those two requirements, the decision to grant asylum relief is ultimately left to the Attorney General's discretion, seeI.N.S. v. Aguirre-Aguirre , 526 U.S. 415, 420, 119 S. Ct. 1439, 143 L.Ed.2d 590 (1999) ; Delgado v. Holder , 648 F.3d 1095, 1101 (9th Cir. 2011), subject to the court of appeals’ review for whether the Attorney General's decision was "manifestly contrary to the law and an abuse of discretion," 8 U.S.C. § 1252(b)(4)(D).

If an alien is granted asylum status, the Attorney General must refrain from removing the alien and must grant the alien authorization to work in the United States. Id. § 1158(c)(1)(A)-(B). The alien's spouse and children may also "be granted the same status as the alien if accompanying, or following to join, such alien." Id. § 1158(b)(3)(A). Asylum status also provides a path to citizenship.[ ]

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