United States District Court, District of Columbia
G. Sullivan United States District Judge
Congress passed the Refugee Act in 1980, it made its
intentions clear: the purpose was to enforce the
“historic policy of the United States to respond to the
urgent needs of persons subject to persecution in their
homelands.” Refugee Act of 1980, § 101(a), Pub. L.
No. 96-212, 94 Stat. 102 (1980). Years later, Congress
amended the immigration laws to provide for expedited removal
of those seeking admission to the United States. Under the
expedited removal process, an alien could be summarily
removed after a preliminary inspection by an immigration
officer, so long as the alien did not have a credible fear of
persecution by his or her country of origin. In creating this
framework, Congress struck a balance between an efficient
immigration system and ensuring that “there should be
no danger that an alien with a genuine asylum claim will be
returned to persecution.” H.R. Rep. No. 104-469, pt. 1,
at 158 (1996).
an opportunity for asylum, plaintiffs, twelve adults and
children, alleged accounts of sexual abuse, kidnappings, and
beatings in their home countries during interviews with
asylum officers. These interviews were designed to evaluate
whether plaintiffs had a credible fear of persecution by
their respective home countries. A credible fear of
persecution is defined as a “significant
possibility” that the alien “could establish
eligibility for asylum.” 8 U.S.C. §
1225(b)(1)(B)(v). Although the asylum officers found that
plaintiffs' accounts were sincere, the officers denied
their claims after applying the standards set forth in a
recent precedential immigration decision issued by
then-Attorney General, Jefferson B. Sessions, Matter of
A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
bring this action against the Attorney General alleging
violations of, inter alia, the Administrative
Procedure Act (“APA”) and the Immigration and
Nationality Act (“INA”), arguing that the
standards articulated in Matter of A-B-, and a
subsequent Policy Memorandum issued by the Department of
Homeland Security (“DHS”) (collectively
“credible fear policies”), unlawfully and
arbitrarily imposed a heightened standard to their credible
before the Court are: (1) plaintiffs' combined motions
for a preliminary injunction and cross-motion for summary
judgment; (2) plaintiffs' motion to consider evidence
outside the administrative record; (3) the government's
motion to strike exhibits supporting plaintiffs' motion
for summary judgment; and (4) the government's motion for
summary judgment. Upon consideration of the parties'
memoranda, the parties' arguments at the motions
hearings, the arguments of amici,  the
administrative record, the applicable law, and for the
reasons discussed below, the Court finds that several of the
new credible fear policies, as articulated in Matter of
A-B- and the Policy Memorandum, violate both the APA and
INA. As explained in this Memorandum Opinion, many of these
policies are inconsistent with the intent of Congress as
articulated in the INA. And because it is the will of
Congress-not the whims of the Executive-that determines the
standard for expedited removal, the Court finds that those
policies are unlawful.
of this Opinion sets forth background information necessary
to resolve plaintiffs' claims. In Part II, the Court
considers plaintiffs' motion to consider evidence outside
the administrative record and denies the motion in part. In
Part III, the Court considers the parties' cross-motions
for summary judgment. In Part III.A, the Court considers the
government's arguments that this case is not justiciable
and holds that this Court has jurisdiction to hear
plaintiffs' challenges to the credible fear policies. In
Part III.B, the Court addresses the legal standards that
govern plaintiffs' claims. In Part III.C, the Court turns
to the merits of plaintiffs' claims and holds that, with
the exception of two policies, the new credible fear policies
are arbitrary, capricious, and in violation of the
immigration laws. In Part III.D, the Court considers the
appropriate form of relief and vacates the unlawful credible
fear policies. The Court further permanently enjoins the
government from continuing to apply those policies and from
removing plaintiffs who are currently in the United States
without first providing credible fear determinations
consistent with the immigration laws. Finally, the Court
orders the government to return to the United States the
plaintiffs who were unlawfully deported and to provide them
with new credible fear determinations consistent with the
the claims in this action center on the expedited removal
procedures, the Court discusses those procedures, and the
related asylum laws, in detail.
Statutory and Regulatory Background
The Refugee Act
1980, Congress passed the Refugee Act, Pub. L. No. 96-212, 94
Stat. 102, which amended the INA, Pub. L. No. 82-414, 66
Stat. 163 (1952)(codified as amended in sections of 8
U.S.C.). The “motivation for the enactment of the
Refugee Act” was the “United Nations Protocol
Relating to the Status of Refugees [“Protocol”],
” INS v. Cardoza-Fonseca, 480 U.S. 421, 424
(1987), “to which the United States had been bound
since 1968, ” id. at 432-33. Congress was
clear that its intent in promulgating the Refugee Act was to
bring the United States' domestic laws in line with the
Protocol. See Id. at 437 (stating it is “clear
from the legislative history of the new definition of
‘refugee,' and indeed the entire 1980 Act . . .
that one of Congress' primary purposes was to bring
United States refugee law into conformance with the
[Protocol].”). The Board of Immigration Appeals
(“BIA”), has also recognized that Congress'
intent in enacting the Refugee Act was to align domestic
refugee law with the United States' obligations under the
Protocol, to give statutory meaning to “our national
commitment to human rights and humanitarian concerns, ”
and “to afford a generous standard for protection in
cases of doubt.” In Re S-P-, 21 I. & N.
Dec. 486, 492 (B.I.A. 1998)(quoting S. Rep. No. 256, 96th
Cong., 2d Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141,
Refugee Act created a statutory procedure for refugees
seeking asylum and established the standards for granting
such requests; the INA currently governs that procedure. The
INA gives the Attorney General discretion to grant asylum to
removable aliens. 8 U.S.C. § 1158(b)(1)(A). However,
that relief can only be granted if the alien is a
“refugee.” Id. The term
“refugee” is defined as:
[A]ny 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). “Thus, the
‘persecution or well-founded fear of persecution'
standard governs the Attorney General's determination
[of] whether an alien is eligible for asylum.”
Cardoza-Fonseca, 480 U.S. at 428. To establish
refugee status, the alien must show he or she is someone who:
(1) has suffered persecution (or has a well-founded fear of
persecution) (2) on account of (3) one of five specific
protected grounds: race, religion, nationality, membership in
a particular social group, or political opinion. See
8 U.S.C. § 1101(a)(42)(A). An alien fearing harm by
non-governmental actors is eligible for asylum if the other
criteria are met, and the government is “unable or
unwilling to control” the persecutor. Matter
of Acosta, 19 I. & N. Dec. 211, 222 (BIA
1985) overruled on other grounds by
Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
Expedited Removal Process
seeking asylum through the procedures outlined above,
however, many aliens are subject to a streamlined removal
process called “expedited removal.” 8 U.S.C.
§ 1225. Prior to 1996, every person who sought admission
into the United States was entitled to a full hearing before
an immigration judge, and had a right to administrative and
judicial review. See Am. Immigration Lawyers Ass'n v.
Reno, 18 F.Supp.2d 38, 41 (D.D.C. 1998)(describing prior
system for removal). The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”)
amended the INA to provide for a summary removal process for
adjudicating the claims of aliens who arrive in the United
States without proper documentation. As described in the
IIRIRA Conference Report, the purpose of the expedited
is to expedite the removal from the United States of aliens
who indisputably have no authorization to be admitted . . .,
while providing an opportunity for such an alien who claims
asylum to have the merits of his or her claim promptly
assessed by officers with full professional training in
adjudicating asylum claims.
H.R. Rep. No. 104-828, at 209-10 (1996)(“Conf.
with that purpose, Congress carved out an exception to the
expedited removal process for individuals with a
“credible fear of persecution.” See 8
U.S.C. § 1225(b)(1)(B)(ii). If an alien “indicates
either an intention to apply for asylum . . . or a fear of
persecution, ” the alien must be referred for an
interview with a U.S. Citizenship and Immigration Services
(“USCIS”) asylum officer. Id. §
1225(b)(1)(A)(ii). During this interview, the asylum officer
is required to “elicit all relevant and useful
information bearing on whether the applicant has a credible
fear of persecution or torture[.]” 8 C.F.R. §
208.30(d). The asylum officer must “conduct the
interview in a nonadversarial manner.” Id.
the removal process, however, risks sending individuals who
are potentially eligible for asylum to their respective home
countries where they face a real threat, or have a credible
fear of persecution. Understanding this risk, Congress
intended the credible fear determinations to be governed by a
low screening standard. See 142 Cong. Rec. S11491-02
(“The credible fear standard . . . is intended to be a
low screening standard for admission into the usual full
asylum process”); see also H.R. Rep. No.
104-469, pt. 1, at 158 (1996)(stating “there should be
no danger that an alien with a genuine asylum claim will be
returned to persecution”). A credible fear is defined
as a “significant possibility, taking into account the
credibility of the statements made by the alien in support of
the alien's claim and such other facts as are known to
the officer, that the alien could establish eligibility for
asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).
after a credible fear interview, the asylum officer finds
that the alien does have a “credible fear of
persecution” the alien is taken out of the expedited
removal process and referred to a standard removal hearing
before an immigration judge. See 8 U.S.C. §
1225(b)(1)(B)(ii), (v). At that hearing, the alien has the
opportunity to develop a full record with respect to his or
her asylum claim, and may appeal an adverse decision to the
BIA, 8 C.F.R. § 208.30(f), and then, if necessary, to a
federal court of appeals, see 8 U.S.C. §
asylum officer renders a negative credible fear
determination, the alien may request a review of that
determination by an immigration judge. 8 U.S.C. §
1225(b)(1)(B)(iii)(III). The immigration judge's decision
is “final and may not be appealed” 8 C.F.R.
§ 1208.30(g)(2)(iv)(A), except in limited circumstances.
See 8 U.S.C. § 1252(e).
1252 delineates the scope of judicial review of expedited
removal orders and limits judicial review of orders issued
pursuant to negative credible fear determinations to a few
enumerated circumstances. See 8 U.S.C. §
1252(a). The section provides that “no court shall have
jurisdiction to review . . . the application of [section
1225(b)(1)] to individual aliens, including the [credible
fear] determination made under section 1225(b)(1)(B).”
8 U.S.C. § 1252(a)(2)(A)(iii). Moreover, except as
provided in section 1252(e), the statute prohibits courts
from reviewing: (1) “any individual determination or to
entertain any other cause or claim arising from or relating
to the implementation or operation of an [expedited removal]
order;” (2) “a decision by the Attorney General
to invoke” the expedited removal regime; and (3) the
“procedures and policies adopted by the Attorney
General to implement the provisions of section
1225(b)(1).” Id. § 1252(a)(2)(A)(i), (ii)
1252(e) provides for judicial review of two types of
challenges to removal orders pursuant to credible fear
determinations. The first is a habeas corpus proceeding
limited to reviewing whether the petitioner was erroneously
removed because he or she was, among other things, lawfully
admitted for permanent residence, or had previously been
granted asylum. 8 U.S.C. § 1252(e)(2)(C). As relevant
here, the second proceeding available for judicial review is
a systemic challenge to the legality of a “written
policy directive, written policy guideline, or written
procedure issued by or under the authority of the Attorney
General to implement” the expedited removal process.
Id. § 1252(e)(3)(A)(ii). Jurisdiction to review
such a systemic challenge is vested solely in the United
States District Court for the District of Columbia.
Id. § 1252(e)(3)(A).
Executive Guidance on Asylum Claims
Attorney General has the statutory and regulatory authority
to make determinations and rulings with respect to
immigration law. See, e.g., 8 U.S.C. §
1103(a)(1). This authority includes the ability to certify
cases for his or her review and to issue binding decisions.
See 8 C.F.R. §§ 1003.1(g)-(h)(1)(ii).
11, 2018, then-Attorney General Sessions did exactly that
when he issued a precedential decision in an asylum case,
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
In Matter of A-B-, the Attorney General reversed a
grant of asylum to a Salvadoran woman who allegedly fled
several years of domestic violence at the hands of her
then-husband. Id. at 321, 346.
decision began by overruling another case, Matter of
A-R-C-G-, 27 I. & N. Dec. 388 (BIA 2014).
Id. at 319. In A-R-C-G-, the BIA recognized
“married women in Guatemala who are unable to leave
their relationship” as a “particular social
group” within the meaning of the asylum statute. 27 I.
& N. Dec. at 392. The Attorney General's rationale
for overruling A-R-C-G- was that it incorrectly
applied BIA precedent, “assumed its conclusion and did
not perform the necessary legal and factual analysis”
because, among other things, the BIA accepted stipulations by
DHS that the alien was a member of a qualifying particular
social group. Matter of A-B-, 27 I. & N. Dec. at
319. In so doing, the Attorney General made clear that
“[g]enerally, claims by aliens pertaining to domestic
violence or gang violence perpetrated by non-governmental
actors will not qualify for asylum, ” id. at
320,  and “[a]ccordingly, few such claims
would satisfy the legal standard to determine whether an
alien has a credible fear of persecution.” Id.
at 320 n.1 (citing 8 U.S.C. § 1225(b)(1)(B)(v)).
Attorney General next reviewed the history of BIA precedent
interpreting the “particular social group”
standard and again explained, at length, why
A-R-C-G- was wrongly decided. In so ruling, the
Attorney General articulated legal standards for determining
asylum cases based on persecution from non-governmental
actors on account of membership in a particular social group,
focusing principally on claims by victims of domestic abuse
and gang violence. He specifically stated that few claims
pertaining to domestic or gang violence by nongovernmental
actors could qualify for asylum or satisfy the credible fear
standard. See Id. at 320 n.1.
Attorney General next focused on the specific elements of an
asylum claim beginning with the standard for membership in a
“particular social group.” The Attorney General
declared that “[s]ocial groups defined by their
vulnerability to private criminal activity likely lack the
particularity required” under asylum laws since
“broad swaths of society may be susceptible to
victimization.” Id. at 335.
Attorney General next examined the persecution requirement,
which he described as having three elements: (1) an intent to
target a belief or characteristic; (2) severe harm; and (3)
suffering inflicted by the government or by persons the
government was unable or unwilling to control. Id.
at 337. With respect to the last element, the Attorney
General stated that an alien seeking to establish persecution
based on the violent conduct of a private actor may not
solely rely on the government's difficulty in controlling
the violent behavior. Id. Rather, the alien must
show “the government condoned the private actions or at
least demonstrated a complete helplessness to protect the
victims.” Id. (citations and internal
quotation marks omitted).
Attorney General concluded with a discussion of the
requirement that an asylum applicant demonstrate that the
persecution he or she suffered was on account of a membership
in a “particular social group.” Id. at
338-39. He explained that “[i]f the ill-treatment
[claimed by an alien] was motivated by something other
than” one of the five statutory grounds for asylum,
then the alien “cannot be considered a refugee for
purpose of asylum.” Id. at 338 (citations
omitted). He continued to explain that when private actors
inflict violence based on personal relationships with a
victim, the victim's membership in a particular social
group “may well not be ‘one central reason'
for the abuse.” Id. Using Matter of
A-R-C-G- as an example, the Attorney General stated that
there was no evidence that the alien was attacked because her
husband was aware of, and hostile to, her particular social
group: women who were unable to leave their relationship.
Id. at 338-39. The Attorney General remanded the
matter back to the immigration judge for further proceedings
consistent with his decision. Id. at 346.
days after the Attorney General issued Matter of
A-B-, USCIS issued Interim Guidance instructing asylum
officers to apply Matter of A-B- to credible fear
determinations. Asylum Division Interim Guidance --
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018)
(“Interim Guidance”), ECF No. 100 at
15-18. On July 11, 2018, USCIS issued final
guidance to asylum officers for use in assessing asylum
claims and credible fear determinations in light of
Matter of A-B-. USCIS Policy Mem., Guidance for
Processing Reasonable Fear, Credible Fear, Asylum, and
Refugee Claims in Accordance with Matter of A-B-,
July 11, 2018 (PM-602-0162) (“Policy
Memorandum”), ECF No. 100 at 4-13.
Policy Memorandum adopts the standards set forth in
Matter of A-B- and adds new directives for asylum
officers. First, like Matter of A-B-, the Policy
Memorandum invokes the expedited removal statute.
Id. at 4 (citing section 8 U.S.C. § 1225 as one
source of the Policy Memorandum's authority). The Policy
Memorandum further acknowledges that “[a]lthough the
alien in Matter of A-B- claimed asylum and
withholding of removal, the Attorney General's decision
and this [Policy Memorandum] apply also to refugee status
adjudications and reasonable fear and credible fear
determinations.” Id. n.1 (citations omitted).
Policy Memorandum also adopts the standard for
“persecution” set by Matter of A-B-: In
cases of alleged persecution by private actors, aliens must
demonstrate the “government is unwilling or unable to
control” the harm “such that the government
either ‘condoned the behavior or demonstrated a
complete helplessness to protect the victim.'”
Id. at 5 (citing Matter of A-B-, 27 I.
& N. Dec. at 337). After explaining the “condoned
or complete helplessness” standard, the Policy
Memorandum explains that:
In general, in light of the [standards governing persecution
by a non-government actor], claims based on membership in a
putative particular social group defined by the members'
vulnerability to harm of domestic violence or gang violence
committed by nongovernment actors will not establish the
basis for asylum, refugee status, or a credible or reasonable
fear of persecution.
Id. at 9 (emphasis in original).
the Policy Memorandum made clear that because Matter of
A-B- “explained the standards for eligibility for
asylum . . . based on a particular social group . . . if an
applicant claims asylum based on membership in a particular
social group, then officers must factor [the standards
explained in Matter of A-B-] into their
determination of whether an applicant has a credible fear . .
. of persecution.” Id. at 12 (citations and
internal quotation marks omitted).
Policy Memorandum includes two additional directives not
found in Matter of A-B-. First, it instructs asylum
officers to apply the “case law of the relevant federal
circuit court, to the extent that those cases are not
inconsistent with Matter of A-B-.”
Id. at 11. Second, although acknowledging that the
“relevant federal circuit court is the circuit where
the removal proceedings will take
place if the officer makes a positive credible
fear or reasonable fear determination, ” the Policy
Memorandum instructs asylum officers to “apply
precedents of the Board, and, if necessary, the circuit where
the alien is physically located
during the credible fear interview.” Id. at
11-12. (emphasis added).
Policy Memorandum concludes with the directive that
“[asylum officers] should be alert that under the
standards clarified in Matter of A-B-, few
gang-based or domestic-violence claims involving particular
social groups defined by the members' vulnerability to
harm may . . . pass the ‘significant probability'
test in credible-fear screenings.” Id. at 13.
Factual and Procedural Background
the plaintiffs, twelve adults and children, came to the
United States fleeing violence from Central America and
seeking refuge through asylum. Plaintiff Grace fled Guatemala
after having been raped, beaten, and threatened for over
twenty years by her partner who disparaged her because of her
indigenous heritage. Grace Decl., ECF No. 12-1 ¶
Her persecutor also beat, sexually assaulted, and threatened
to kill several of her children. Id. Grace sought
help from the local authorities who, with the help of her
persecutor, evicted her from her home. Id.
Carmen escaped from her country with her young daughter,
J.A.C.F., fleeing several years of sexual abuse by her
husband, who sexually assaulted, stalked, and threatened her,
even after they no longer resided together. Carmen Decl., ECF
No. 12-2 ¶ 2. In addition to Carmen's husband's
abuse, Carmen and her daughter were targeted by a local gang
because they knew she lived alone and did not have the
protection of a family. Id. ¶ 24. She fled her
country of origin out of fear the gang would kill her.
Id. ¶ 28.
Mina escaped from her country after a gang murdered her
father-in-law for helping a family friend escape from the
gang. Mina Decl., ECF No. 12-3 ¶ 2. Her husband went to
the police, but they did nothing. Id. at ¶ 10.
While her husband was away in a neighboring town to seek
assistance from another police force, members of the gang
broke down her door and beat Mina until she could no longer
walk. Id. ¶ 15. She sought asylum in this
country after finding out she was on a “hit list”
compiled by the gang. Id. ¶¶ 17-18.
remaining plaintiffs have similar accounts of abuse either by
domestic partners or gang members. Plaintiff Gina fled
violence from a politically-connected family who killed her
brother, maimed her son, and threatened her with death. Gina
Decl., ECF No. 12-4 ¶ 2. Mona fled her country after a
gang brutally murdered her long-term partner-a member of a
special military force dedicated to combating gangs-and
threatened to kill her next. Mona Decl., ECF No. 12-5 ¶
2. Gio escaped from two rival gangs, one of which broke his
arm and threatened to kill him, and the other threatened to
murder him after he refused to deal drugs because of his
religious convictions. Gio Decl., ECF No. 12-6 ¶ 2.
Maria, an orphaned teenage girl, escaped a forced sexual
relationship with a gang member who targeted her after her
Christian faith led her to stand up to the gang. Maria Decl.,
ECF No. 12-7 ¶ 2. Nora, a single mother, together with
her son, A.B.A., fled an abusive partner and members of his
gang who threatened to rape her and kill her and her son if
she did not submit to the gang's sexual advances. Nora
Decl., ECF No. 12-8 ¶ 2. Cindy, together with her young
child, A.P.A., fled rapes, beatings, and shootings
XXXXX. Cindy Decl., ECF No. 12-9
¶ 2.Each plaintiff was given a credible fear
determination pursuant to the expedited removal process.
Despite finding that the accounts they provided were
credible, the asylum officers determined that, in light of
Matter of A-B-, their claims lacked merit, resulting
in a negative credible fear determination. Plaintiffs sought
review of the negative credible fear determinations by an
immigration judge, but the judge affirmed the asylum
officers' findings. Plaintiffs are now subject to final
orders of removal or were removed pursuant to such orders
prior to commencing this suit.
imminent deportation, plaintiffs filed a motion for
preliminary injunction, ECF No. 10, and an emergency motion
for stay of removal, ECF No. 11, on August 7, 2018. In their
motion for stay of removal, plaintiffs sought emergency
relief because two of the plaintiffs, Carmen and her daughter
J.A.C.F., were “subject to imminent removal.” ECF
No. 11 at 1.
Court granted the motion for emergency relief as to the
plaintiffs not yet deported. The parties have since filed
cross- motions for summary judgment related to the Attorney
General's precedential decision and the Policy Memorandum
issued by DHS. Further, plaintiffs have filed an opposed
motion to consider evidence outside the administrative
Motion to Consider Extra Record Evidence
attach several exhibits to their combined application for a
preliminary injunction and cross-motion for summary judgment,
see ECF Nos. 10-2 to 10-7, 12-1 to 12-9, 64-3 to
64-8, which were not before the agency at the time it made
its decision. These exhibits include: (1) declarations from
plaintiffs; (2) declarations from experts pertaining to
whether the credible fear policies are new; (3) government
training manuals, memoranda, and a government brief; (4)
third-party country reports or declarations; (5) various
newspaper articles; and (6) public statements from government
officials. Pls.' Evid. Mot., ECF No. 66-1 at 7-16. The
government moves to strike these exhibits, arguing that
judicial review under the APA is limited to the
administrative record, which consists of the “materials
that were before the agency at the time its decision was
made.” Defs.' Mot. to Strike, ECF No. 88-1 at 20.
is black-letter administrative law that in an APA case, a
reviewing court ‘should have before it neither more nor
less information than did the agency when it made its
decision.'” Hill Dermaceuticals, Inc. v. Food
& Drug Admin., 709 F.3d 44, 47 (D.C. Cir.
2013)(quoting Walter O. Boswell Mem'l Hosp. v.
Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). This is
because, under the APA, the court is confined to reviewing
“the whole record or those parts of it cited by a
party, ” 5 U.S.C. § 706, and the administrative
record only includes the “materials
‘compiled' by the agency that were ‘before
the agency at the time the decision was made, '”
James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085,
1095 (D.C. Cir. 1996)(citations omitted).
when, as here, plaintiffs seek to place before the court
additional materials that the agency did not review in making
its decision, a court must exclude such material unless
plaintiffs “can demonstrate unusual circumstances
justifying departure from th[e] general rule.” Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir.
2008)(citation omitted). Aa court may appropriately consider
extra-record materials: (1) if the agency “deliberately
or negligently excluded documents that may have been adverse
to its decision, ” (2) if background information is
needed to “determine whether the agency considered all
of the relevant factors, ” or (3) if the agency
“failed to explain [the] administrative action so as to
frustrate judicial review.” Id.
make three arguments as to why the Court should consider
their proffered extra-record materials: (1) to evaluate
whether the government's challenged policies are an
impermissible departure from prior policies; (2) to consider
plaintiffs' due process cause of action; and (3) to
evaluate plaintiffs' request for permanent injunctive
relief. Pls.' Evid. Mot., ECF No. 66-1 at 2-12. The Court
considers each argument in turn.
Evidence of Prior Policies
first argue that the Court should consider evidence of the
government's prior policies as relevant to determining
whether the policies in Matter of A-B- and the
subsequent guidance deviated from prior policies without
explanation. Id. at 8-11. The extra-record materials
at issue include government training manuals, memoranda, and
a government brief, see Decl. of Sarah Mujahid
(“Mujahid Decl.”), ECF No. 10-3 Exs. E-J; Second
Decl. of Sarah Mujahid (“Second Mujahid Decl.”),
ECF No. 64-4, Exs. 1-3, and declarations from third parties
explaining the policies are new, Decl. of Rebecca Jamil and
Ethan Nasr, ECF No. 65-5.
Court will consider the government training manuals,
memoranda, and government brief, but not the declarations
explaining them. Plaintiffs argue that the credible fear
policies are departures from prior government policies, which
the government changed without explanation. Pls.' Evid.
Mot., ECF No. 66-1 at 7-11. The government's response is
the credible fear policies are not a departure because they
do not articulate any new rules. See Defs.'
Mot., ECF No. 57-1 at 17. Whether the credible fear policies
are new is clearly an “unresolved factual issue”
that the “administrative record, on its own, . . . is
not sufficient to resolve.” See United Student Aid
Funds, Inc. v. Devos, 237 F.Supp.3d 1, 6 (D.D.C. 2017).
The Court cannot analyze this argument without reviewing the
prior policies, which are not included in the administrative
record. Under these circumstances, it is “appropriate
to resort to extra-record information to enable judicial
review to become effective.” Id. at 3 (citing
Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir.
government agrees that “any claim that A-B- or
the [Policy Memorandum] breaks with past policies . . . is
readily ascertainable by simply reviewing the very
‘past policies.'” Defs.' Mot. to Strike,
ECF No. 88-1 at 24. However, the government disagrees with
the types of documents that are considered past policies.
Id. According to the government, the only
“past policies” at issue are legal decisions
issued by the Attorney General, BIA, or courts of appeals.
Id. The Court is not persuaded by such a narrow
interpretation of the evidence that can be considered as past
policies. See Leadership Conference on Civil Rights v.
Gonzales, 404 F.Supp.2d 246, 255 (D.D.C. 2005)(finding
training manual distributed as informal guidance “at a
minimum” reflected the policy of the “Elections
Crimes Branch if not the Department of Justice”).
third party-declarations from a retired immigration officer
and former immigration judge, on the other hand, are not
necessary for the Court in its review. Declarations submitted
by third-parties regarding putative policy changes would
stretch the limited extra-record exception too far.
Accordingly, the Court will not consider these declarations
when determining whether the credible fear policies
constitute an unexplained change of position.
Evidence Supporting Injunctive Relief
second category of information plaintiffs ask the Court to
consider is extra-record evidence in support of their claim
that injunctive relief is appropriate. Pls.' Evid. Mot.,
ECF No. 66-1 at 13-16. The evidence plaintiffs present
includes plaintiffs' declarations, ECF Nos. 12-1 to 12-9
(filed under seal); several reports describing the conditions
of plaintiffs' native countries, Mujahid Decl., ECF No.
10-3, Exs. K-T; and four United Nations High Commissioner for
Refugees (“UNHCR”) reports, Second Mujahid Decl.,
ECF No. 64-4 Exs. 10-13. The materials also include three
declarations regarding humanitarian conditions in the three
home countries. Joint Decl. of Shannon Drysdale Walsh,
Cecilia Menjívar, and Harry Vanden (“Honduras
Decl.”), ECF No. 64-6; Joint Decl. of Cecilia
Menjívar, Gabriela Torres, and Harry Vanden
(“Guatemala Decl.”), ECF No. 64-7; Joint Decl. of
Cecilia Menjívar and Harry Vanden (“El Salvador
Decl.”), ECF No. 64-8.
government argues that the Court need not concern itself with
the preliminary injunction analysis because the Court's
decision to consolidate the preliminary injunction and
summary judgment motions under Rule 65 renders the
preliminary injunction moot. Defs.' Mot. to Strike, ECF
No. 88-1 at 12 n.1. The Court concurs, but nevertheless must
determine if plaintiffs are entitled to a permanent
injunction, assuming they prevail on their APA and INA
claims. Because plaintiffs request specific injunctive relief
with respect to their expedited removal orders and credible
fear proceedings, the Court must determine whether plaintiffs
are entitled to the injunctive relief sought. See Eco
Tour Adventures, Inc. v. Zinke, 249 F.Supp.3d 360, 370,
n.7 (D.D.C. 2017)(“it will often be necessary for a
court to take new evidence to fully evaluate” claims
“of irreparable harm . . . and [claims] that the
issuance of the injunction is in the public
interest.”)(citation omitted). Thus, the Court will
consider plaintiffs' declarations, the UNHCR reports, and
the country reports only to the extent they are relevant to
plaintiffs' request for injunctive relief.
the Court will consider extra-record evidence only to the
extent it is relevant to plaintiffs' contentions that the
government deviated from prior policies without explanation
or to their request for injunctive relief. The Court will not
consider any evidence related to plaintiffs' due process
claim. Accordingly, the Court will not consider the following
documents: (1) evidence related to the opinions of
immigration judges and attorneys, Second Mujahid Decl., ECF
No. 64-4, Exs. 8-9, 14-17 and ECF No. 64-5; (2) statements of
various public officials, Second Mujahid Decl., ECF No. 64-4,
Exs. 4-7; and (3) various newspaper articles, Mujahid Decl.,
ECF No. 10-3, Exs. R-T, and Second Mujahid Decl., ECF No.
64-4, Exs. 14-17.
Motion for Summary Judgment
Court next turns to the government's jurisdictional
arguments that: (1) the Court lacks jurisdiction to review
plaintiffs' challenge to Matter of A-B-; and (2)
because the Court lacks jurisdiction to review Matter of
A-B-, the government action purportedly causing
plaintiffs' alleged harm, the plaintiffs lack standing to
challenge the Policy Memorandum. Federal district courts are
courts of limited jurisdiction. See Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A court
must therefore resolve any challenge to its jurisdiction
before it may proceed to the merits of a claim. See
Galvan v. Fed. Prison Indus., 199 F.3d 461, 463 (D.C.
Cir. 1999). The Court addresses each argument in turn.
The Court has Jurisdiction under Section
Matter of A-B-
government contends that section 1252 forecloses judicial
review of plaintiffs' claims with respect to Matter
of A-B-. Defs.' Mot., ECF No. 57-1 at 30-34.
Plaintiffs argue that the statute plainly provides
jurisdiction for this Court to review their claims. Pls.'
Mot., ECF No. 64-1 at 26-30. The parties agree that to the
extent jurisdiction exists to review a challenge to a policy
implementing the expedited removal system, it exists pursuant
to subsection (e) of the statute.
section 1252(a)(2)(A), no court shall have jurisdiction over
“procedures and policies adopted by the Attorney
General to implement the provisions of section
1225(b)(1)” except “as provided in subsection
(e).” Section 1252(e)(3) vests exclusive
jurisdiction in the United States District Court for the
District of Columbia to review “[c]hallenges [to the]
validity of the [expedited removal] system.”
Id. § 1252(e)(3)(A). Such systemic challenges
include challenges to the constitutionality of any provision
of the expedited removal statute or to its implementing
regulations. See Id. § 1252(e)(3)(A)(i). They
also include challenges claiming that a given regulation or
written policy directive, guideline, or procedure is
inconsistent with law. Id. § 1252(e)(3)(A)(ii).
Systemic challenges must be brought within sixty days of the
challenged statute or regulation's implementation.
Id. § 1252(e)(3)(B); see also Am.
Immigration Lawyers Ass'n, 18 F.Supp.2d at 47
(holding that “the 60-day requirement is jurisdictional
rather than a traditional limitations period”).
parties agree that the plain language of section 1252(e)(3)
is dispositive. It reads as follows:
(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under section 1225(b) of
this title and its implementation is available in an action
instituted in the United States District Court for the
District of Columbia, but shall be limited to determinations
(i) whether such section, or any regulation issued to
implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy
directive, written policy guideline, or written procedure
issued by or under the authority of the Attorney General to
implement such section, is not consistent with applicable