Vijender v. Wolf

• Decision Date: 22 April 2020
• Docket Number: Case No. 19-cv-3337 (APM)
• Parties: VIJENDER VIJENDER, et al., Plaintiffs, v. CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

VIJENDER VIJENDER, et al., Plaintiffs, v. CHAD F. WOLF, in his official capacity as Acting Secretary of

Homeland Security,¹ et al., Defendants.

Case No. 19-cv-3337 (APM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

April 22, 2020

MEMORANDUM OPINION

I.

Plaintiffs in this case are asylum seekers who were found to lack credible fear of persecution in their home countries and are therefore subject to expedited removal from the United States. Plaintiffs challenge an instructional document issued on April 30, 2019—which they term the "Lesson Plan"—that their asylum officers followed to make credible fear determinations. Plaintiffs assert jurisdiction under 8 U.S.C. § 1252(e)(3). That provision empowers the United States District Court for the District of Columbia to review actions challenging "a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement" the statutory provisions governing the expedited removal of arriving aliens. 8 U.S.C. § 1252(e)(3)(A)(ii). Any such action, however, must be brought within 60 days after the date the challenged policy or procedure is "first implemented." Id. § 1252(e)(3)(B). Plaintiffs do not contend that their action was filed within 60 days of the firstimplementation of the Lesson Plan, which was issued more than six months before they filed this lawsuit. Rather, they argue that the 60-day deadline is either non-jurisdictional or unconstitutional. For the reasons that follow, the court rejects both arguments and dismisses this action for lack of subject-matter jurisdiction.

II.

This suit commenced on November 5, 2019, when Vijender Vijender—an asylum seeker who has since dismissed his claims in full—filed a complaint against Defendants.² See Compl., ECF No. 1. The following day, on November 6, 2020, Vijender filed a motion for an emergency stay of removal, alleging that he was at risk of imminent removal from this country. See Emergency Mot. for an Administrative Stay of Removal, ECF No. 3, at 4. The court granted the temporary stay of removal, see Order, ECF No. 5, and directed the parties to submit expedited briefing regarding the court's jurisdiction over the matter, see November 7, 2020 Minute Order.

While briefing was proceeding, the court granted Vijender leave to amend his complaint twice, first adding Plaintiff Mukesh Mehla, see Dec. 17, 2019 Minute Order; Am. Compl., ECF No. 12, and subsequently adding Plaintiffs Ansier Rodriguez-Candelaria, Jagjot Singh, and Mantek Singh, see Dec. 23, 2019 Minute Order; Second Am. Compl., ECF No. 17 [hereinafter Second Am. Compl.]. The court temporarily enjoined Defendants from removing these additional plaintiffs pending the resolution of the jurisdictional question. See Order, ECF No. 10; Order, ECF No. 15. On February 13, 2020, Plaintiffs filed a motion to amend their Complaint a third time to join Prospective Plaintiff Sahil Sahil. See Pls.' Mot. to Add Pl., ECF No. 23 [hereinafterMot. to Add Pl.]. That motion is still pending. Vijender dismissed his claims without prejudice on March 9, 2020. See Notice of Voluntary Dismissal, ECF No. 28.

The remaining Plaintiffs are asylum seekers who have been determined to lack credible fear of persecution in their home countries and are therefore subject to expedited removal pursuant to 8 U.S.C. § 1225(b)(1) of the Immigration and Nationality Act ("INA"). See Second Am. Compl. ¶¶ 9-12, 28, 53. Prospective Plaintiff Sahil Sahil was also determined to lack a credible fear of persecution and was removed from the United States on or about February 14, 2020. See Pls.' Status Report Regarding Proposed Plaintiff Sahil, ECF No. 25, at 2; Mot. to Add Pl. ¶ 1. Plaintiffs and Prospective Plaintiff Sahil each contend that his respective asylum officer followed the Lesson Plan when making the negative credible fear determination. See Second Am. Compl. ¶¶ 9-12, 22, 35; Mot. to Add Pl. ¶¶ 1, 6.³ Plaintiffs claim that the Lesson Plan is contrary to law, arbitrary and capricious, and unconstitutional, and they seek an order striking down the Lesson Plan and permanently enjoining Defendants from removing Plaintiffs without conducting new credible fear determinations. See Second Am. Compl. at pp. 40-45.

To obtain such relief, however, Plaintiffs must find a way around the restriction set forth in 8 U.S.C. § 1252(e)(3)(B). That statutory provision provides that any action challenging a written procedure or policy implementing 8 U.S.C. § 1225(b)—another provision of the INA, which governs expedited removal and parole of asylum seekers and other arriving aliens—must be filed "no later than 60 days after the date the challenged" policy is first implemented.⁴ Plaintiffsoffer two solutions. First, they contend that the 60-day limitation is a non-jurisdictional, claim-processing rule subject to equitable tolling. Pls.' Br. on the Question of the Court's Jurisdiction, ECF No. 7, at 4-19 [hereinafter Pls.' Br.]. Second, even if the 60-day period is jurisdictional, Plaintiffs continue, then it is an unconstitutional violation of their due process rights. Id. at 19-21. Unfortunately for Plaintiffs, neither argument is availing.

III.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, significantly amended the INA, "establish[ing] a system for expediting the removal of aliens who arrive at the border but are not eligible for admission." See Am. Immigration Lawyers Ass'n v. Reno (AILA), 199 F.3d 1352, 1354 (D.C. Cir. 2000). "Congress permitted judicial review of the new system, but set a deadline: all actions had to be 'filed no later than 60 days after the date the challenged section, regulation, directive, guidance, or procedure . . . is first implemented.'" Id. (quoting 8 U.S.C. § 1252(e)(3)(A)-(B)). That deadline is the focal point of this dispute.

IV.

A.

The court's analysis begins with the D.C. Circuit's decision in AILA. In that case, like this one, a group of plaintiffs brought a series of systemic challenges under § 1252(e)(3), but failed to raise them within 60 days of the first implementation of the challenged provisions as required by § 1252(e)(3)(B). The district court observed that "Congress designed the statute so that the 60 days ran from a fixed point, the initial implementation of the challenged provisions, rather than from the date of application of IIRIRA to a particular alien." Am. Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 47 (D.D.C. 1998). Based on this reading, the court concluded that "the 60-dayrequirement is jurisdictional rather than a traditional limitations period," and that the plaintiffs' challenges were "time barred" and not "properly before this Court." Id. The D.C. Circuit affirmed the district court's dismissal of the complaints of those plaintiffs "who filed late and for that reason had their claims dismissed." AILA, 199 F.3d at 1356-57. Citing that portion of the district court's opinion concluding that the 60-day time limit was jurisdictional, the circuit court wrote: "We see no reason to disturb the district court's analysis, and so we affirm the dismissal of these claims substantially for the reasons stated in the court's thorough opinion." Id.

The D.C. Circuit's reasoning in AILA is admittedly sparse, but it nevertheless constitutes binding precedent that this court must follow.⁵ "[D]istrict judges, like panels of [the D.C. Circuit], are obligated to follow controlling circuit precedent until either [the D.C. Circuit], sitting en banc, or the Supreme Court, overrule it." United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997). "Controlling precedent may be 'effectively overruled,' but only if a later Supreme Court decision 'eviscerates' its reasoning." Brookens v. Acosta, 297 F. Supp. 3d 40, 47 (D.D.C. 2018) (quoting Perry v. MSPB, 829 F.3d 760, 764 (D.C. Cir. 2016)), aff'd sub nom. Brookens v. Dep't of Labor, No. 18-5129, 2018 WL 5118489 (D.C. Cir. Sept. 19, 2018).

Contrary to what Plaintiffs suggest, see Pls.' Br. at 6-13, no subsequent precedent has "eviscerated" AILA's reasoning. To be sure, in the years since AILA was issued, the SupremeCourt has "pressed a stricter distinction between truly jurisdictional rules . . . and nonjurisdictional claim-processing rules," see Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (internal quotation marks omitted), and it has even observed that "most time bars are nonjurisdictional," United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015) (emphasis added). However, the Court has explained that there are "exceptional" instances in which a time bar is properly understood as jurisdictional, see Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 155 (2013) (citing Bowles v. Russell, 551 U.S. 205, 209 n.2 (2007)), and that Congress may imbue a time bar with jurisdictional properties by providing a "clear statement" to that effect, Kwai Fun Wong, 575 U.S. at 409-10. AILA discerned such a clear statement of jurisdictional intent in § 1252(e)(3)(B) by way of its affirmance of the district court's reasoning, which was that "Congress designed the statute so that the 60 days ran from a fixed point, the initial implementation of the challenged provisions, rather than from the date of application of IIRIRA to a particular alien." 18 F. Supp. 2d at 47. None of the Supreme Court's many opinions parsing the distinction between jurisdictional and non-jurisdictional statutory requirements has ever questioned AILA's holding or its rationale. Indeed, none has even discussed § 1252(e)(3)(B)'s time bar. Cf. Brookens, 297 F. Supp. 3d at 49 (holding that an opinion had not been eviscerated because, in part, "the Supreme Court's only discussion of the specific time bar at issue . . . is ambiguous at best"). AILA's holding that 8 U.S.C. § 1252(e)(3)(B) is jurisdictional therefore controls. Because Plaintiffs filed this case more than 60 days after the Lesson Plan was implemented, under AILA, this...