O.A. v. Trump

Citation404 F.Supp.3d 109
Decision Date02 August 2019
Docket Number Civil Action No. 18-2838 (RDM),Civil Action No. 18-2718 (RDM)
Parties O.A., et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. S.M.S.R. et al., Plaintiffs, v. Donald J. Trump, et al., Defendants.
CourtU.S. District Court — District of Columbia

Ana C. Reyes, Thomas Goodman Hentoff, Ellen E. Oberwetter, Mary Beth Hickcox-Howard, Matthew David Heins, Vanessa O. Omoroghomwan, Williams & Connolly LLP, Patricia Stottlemyer, Human Rights First, Washington, DC, Anwen Hughes, Eleni R. Bakst, Human Rights First, New York, NY, Charles G. Roth, Gianna Borroto, Ruben Loyo, National Immigrant Justice Center, Chicago, IL, Charles L. McCloud, for Plaintiffs O.A., K.S., A.V., G.Z., D.S., C.A.

Craig Alan Hoover, Elizabeth Hagerty, Justin Bernick, Kaitlin Welborn, Pro Hac Vice, Mitchell Pearsall Reich, Pro Hac Vice, Neal Kumar Katyal, T. Clark Weymouth, Zachary W. H. Best, Hogan Lovells US LLP, Adina Appelbaum, Pro Hac Vice, Capital Area Immigrants' Rights Coalition, Washington, DC, Thomas P. Schmidt, Hogan Lovells US LLP, New York, NY, Manoj Govindaiah, Refugee and Immigrant Center for Education and Legal Services, San Antonio, TX, for Plaintiffs S.M.S.R., R.S.P.S., Capital Area Immigrants' Rights Coalition, Refugee and Immigrant Center for Education and Legal Services, L.C.V.R., C.S.C.C., R.G.G., N.A.G.A., A.J.A.C., A.J.E.A.M., K.P.P.V., R.D.P.V., Y.A.L.P.

Erez Reuveni, Joseph Anton Darrow, Scott Grant Stewart, Christina Greer, Kathryne Marie Gray, Thomas Benton York, U.S. Department of Justice, Washington, DC, for Defendants.


RANDOLPH D. MOSS, United States District Judge

On November 9, 2018, the Attorney General and the Secretary of Homeland Security jointly issued an interim final rule adding "a new mandatory bar on eligibility for asylum for certain aliens who are subject to a presidential proclamation suspending or imposing limitations on their entry into the United States ... and who enter the United States in contravention of such a proclamation." Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934, 55,939 (Nov. 9, 2018) ("the Rule" or "the Interim Final Rule"). That same day, the President issued a proclamation suspending for a period of ninety days "[t]he entry of any alien into the United States across the international boundary between the United States and Mexico," except by aliens "who enter[ ] the United States at a port of entry and properly present[ ] for inspection" and entries by "lawful permanent resident[s] of the United States." Addressing Mass Migration Through the Southern Border of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 15, 2018) ("the Proclamation"). Since that proclamation expired, the President has issued two subsequent proclamations suspending entries across the southern border, except at a port of entry, for additional ninety-day periods. See Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 3,665 (Feb. 12, 2019) ; Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 21,229 (May 13, 2019). It is uncontested that together, these actions make aliens (with the sole exception of lawful permanent residents) ineligible for asylum if they enter the United States from Mexico outside a designated port of entry.

Plaintiffs in these consolidated cases are nineteen individuals from Honduras, El Salvador, Nicaragua, and Guatemala who entered the United States from Mexico outside ports of entry after November 9, 2018, and two nonprofit organizations that provide legal services to refugees. All but one of the individual plaintiffs seek asylum, and the remaining plaintiff was granted asylum during the pendency of this proceeding but fears revocation if the Rule is enforced, Dkt. 80 at 3. Together, Plaintiffs challenge the lawfulness of the Rule on multiple grounds. First and foremost, they contend that the Rule runs afoul of the Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 et seq. ), which declares that "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...) irrespective of such alien's status, may apply for asylum." 8 U.S.C. § 1158. In other words, aliens have a statutory right to seek asylum regardless of whether they enter the United States at a designated port of entry, and Defendants may not extinguish that statutory right by regulation or proclamation.

Beyond that core challenge, Plaintiffs also argue that the Rule: (1) circumvents the statutorily-mandated process for promulgating "additional limitations and conditions" on eligibility for asylum, which authorizes the Attorney General and Secretary of Homeland Security to add limitations and conditions "by regulation," 8 U.S.C. § 1158(b)(2)(C), but does not authorize the President to do so by proclamation; (2) violates the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), Pub. L. No. 110-457, 122 Stat. 5044 (2008), by depriving unaccompanied children of the right to seek asylum in a non-adversarial setting, see 8 U.S.C. § 1158(b)(3)(C) ; (3) is "arbitrary and capricious" in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) ; and (4) was promulgated without the required opportunity for notice and public comment, also in violation of the APA, 5 U.S.C. § 553. Some of the plaintiffs also contend that the Rule violates the INA's expedited removal scheme, 8 U.S.C. § 1225(b), by mandating a negative credible fear determination for those aliens who cross between ports of entry.

Several motions are currently before the Court. Plaintiffs in both consolidated casesO.A. v. Trump , Civ. No. 18-2718 ("O.A. ") and S.M.S.R. v. Trump , Civ. No. 18-2838 ("S.M.S.R. ")—have moved for summary judgment and to certify a class of all asylum seekers who entered or will enter the United States after November 9, 2018 by crossing the southern border, except at a designated port of entry. See Dkt. 51; Dkt. 52. Defendants, in turn, oppose those motions and cross-move for summary judgment, arguing that the Court lacks subject-matter jurisdiction; that Plaintiffs lack standing to sue; that Plaintiffs' claims fail on the merits; and that the Court should not certify a class. See Dkt. 66. Also pending before the Court are the O.A. and S.M.S.R. Plaintiffs' earlier-filed motions for temporary and preliminary injunctive relief, Dkt. 6; Mot. for Temp. Restraining Order, Dkt. 6, S.M.S.R. et al. v. Trump et al. (No. 18-2838), which the Court held in abeyance after the United States District Court for the Northern District of California issued a nationwide preliminary injunction eliminating any risk of imminent injury to any of the plaintiffs in these actions. See Minute Entry (Dec. 21, 2018); see also E. Bay Sanctuary Covenant v. Trump , 354 F. Supp. 3d 1094 (N.D. Cal. 2018).

As explained below, the Court first holds that it has subject-matter jurisdiction, and that Plaintiffs have Article III and zone of interests standing to challenge the Rule. The Court also holds that the Rule (in conjunction with the Proclamation) is inconsistent with 8 U.S.C. § 1158. Those three conclusions end the required inquiry: Because the Rule is contrary to law and must, as a result, be set aside, 5 U.S.C. § 706(2)(A), the Court need not consider Plaintiffs' alternative legal challenges. Nor need the Court resolve the parties' dispute about the propriety of nationwide injunctions. As the D.C. Circuit has explained, " [w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual [plaintiffs] is proscribed.’ " Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs , 145 F.3d 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. Thornburgh , 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) ). As a result, vacatur—i.e. , nullification—of the Interim Final Rule obviates any need for the issuance of an injunction. Should future events dictate otherwise, Plaintiffs are free to return to the Court to seek appropriate relief at that time. Finally, although it is unclear that class certification will serve any significant purpose given vacatur of the Rule, the Court finds that Plaintiffs have met their burden under Rule 23(a) and Rule 23(b)(2) for certification of a class.

A. Statutory and Regulatory Background

Asylum is a form of discretionary relief that allows an otherwise removable alien who qualifies as a refugee to remain in the United States.1 Asylum also creates a path to lawful permanent resident status and citizenship and confers other benefits, including the right to work in the United States and to receive certain forms of financial assistance from the federal government. See 83 Fed. Reg. at 55,936. Prior to 1980, "the U.S. refugee program consisted of ad hoc responses to various crises." Jaya Ramji, Legislating Away International Law: The Refugee Provisions of the Illegal Immigration Reform and Immigrant Responsibility Act , 37 Stan. J. Int'l L. 117, 132 (2001) (hereinafter "Legislating Away"). In addition to legislative responses to discrete concerns, see, e.g. , Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400; Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 79 Stat. 913, the Attorney General was authorized to use his general parole authority to provide protection for refugees within the United States, see INS v. Cardoza-Fonseca , 480 U.S. 421, 427 n.4, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

The Refugee Act of 1980 ("1980 Act"), Pub. L. No. 96-212, 94 Stat. 102 (codified at 8 U.S.C. §§ 1157 – 59 (1980) ), introduced the nation's first "uniform and systematic asylum procedure" and "created the framework for the current asylum process." Ramji, ...

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