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O.A. v. Trump

United States District Court, District of Columbia

August 2, 2019

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.

          MEMORANDUM OPINION

          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 cases- O.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.

         I. BACKGROUND

         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 (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, Legislating Away, 37 Stan. J. Int'l L. at 132. The 1980 Act charged the Attorney General with establishing “a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum” and authorized the Attorney General to grant asylum in his discretion, provided that that the applicant was a refugee within the meaning of the INA. 8 U.S.C. § 1158(a) (1980). At the same time the 1980 Act established the asylum process, it amended the statutory scheme governing a related form of relief- “withholding of deportation”-to remove the Attorney General's discretion to decide whether to grant that form of relief. Cardoza-Fonseca, 480 U.S. at 428-29. As amended by the 1980 Act, the INA “requires the Attorney General to withhold deportation of an alien who demonstrates that his ‘life or freedom would be threatened' on account of one of [a list of factors] if he is deported.” Id. at 423 (emphasis added).

         Accordingly, as of 1980, the INA included two related, but distinct, forms of relief available to those subject to persecution in their country of origin: asylum and withholding of deportation. “[O]ne of the Congress' primary purposes” in enacting “the entire 1980 Act . . . was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees (“1967 Protocol”), 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.” Id. at 436-37. The Protocol, in turn, incorporated by reference the substantive provisions of the 1951 United Nations Convention Relating to the Status of Refugees (“1951 Convention”). See id. at 429; Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169 n.19 (1993). Among other parallels, “the definition of ‘refugee' that Congress adopted” in the 1980 Act “is virtually identical to the one proscribed by . . . the [1951] Convention.” Cardoza-Fonseca, 480 U.S. at 437.

         The next relevant amendment to the INA did not come until 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996). Among other changes, IIRIRA established two types of removal proceedings. Regular, or “formal, ” removal proceedings allow aliens to challenge their removal in administrative proceedings with various procedural guarantees, including the rights to written notice of the charge of removability, to counsel, to appear at a hearing before an immigration judge and to present evidence, to appeal an adverse decision to the Board of Immigration Appeals (“BIA”), and to seek judicial review. 8 U.S.C. §§ 1229(a)(1), 1229a(b)(4); 8 C.F.R. §§ 1003.1(b), 1240.11(a)(2), 1240.15. An alien placed in formal removal proceedings may avoid removal by establishing, through this adversarial process, that she is eligible for asylum, withholding of deportation, or some other form of relief.

         The second type of proceedings, called expedited removal, affords considerably less process to a subset of aliens-most notably, those arriving at the border and those who recently entered the United States without inspection.[2] Under expedited removal procedures, the Department of Homeland Security may remove an alien 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” supporting a claim to withholding of removal. 8 U.S.C. § 1225(b)(1)(A)(i). If “the alien indicates either an intention to apply for asylum . . . or a fear of persecution, the [immigration] officer [is required to] refer the alien for an interview by an asylum officer, ” who must determine whether the alien has a credible “fear of persecution.” Id. § 1225(b)(1)(A)(ii). For purposes of the asylum officer's assessment, a credible fear of persecution means “that there is a significant possibility . . . that the alien could establish eligibility for asylum.” Id. § 1225(b)(1)(B)(v).[3] If the asylum officer determines that the alien has a credible fear, “the alien [is] detained for further consideration of the application for asylum, ” id. § 1225(b)(1)(B)(ii), and is typically placed in formal removal proceedings. If, on the other hand, the asylum officer determines that the alien does not have a credible fear of persecution, “the officer shall order the alien removed from the United States without further hearing or review.” Id. § 1225(b)(1)(B)(iii)(I).

         An alien who is ineligible for asylum or is denied asylum may apply for other forms of relief, including withholding of removal in cases in which the alien can show “that it is more likely than not that he or she would be persecuted on account of” a protected ground if removed from the United States.[4] 8 C.F.R. § 1208.16(b)(2); see also 8 U.S.C. § 1231(b)(3). Withholding of removal, accordingly, requires a more substantial showing than the “well-founded fear of persecution” standard applicable in asylum cases, see Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007). Unlike asylum, moreover, withholding does not preclude the government from removing the alien to a third country where the alien would not face persecution, does not establish a pathway to lawful permanent resident status and citizenship, and does not afford derivative protection for the alien's family members. See 83 Fed. Reg. at 55, 939.

         IIRIRA also amended the asylum provision of the INA, adding language relevant to Plaintiffs' challenge here. Although the 1980 Act required the Attorney General to establish procedures for an alien “physically present in the United States . . ., irrespective of such alien's status, to apply for asylum, ” 8 U.S.C. § 1158(a) (1980) (emphasis added), IIRIRA clarified 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 and including an alien who is brought to the United States after having been interdicted in international waters or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title [which addresses expedited removal].

8 U.S.C. § 1158(a) (emphasis added). In addition, IIRIRA added a number of restrictions and limitations on asylum. It precludes aliens from applying for asylum, for example, (1) “if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality . . .) in which the alien's life or freedom would not be threatened, ” id. § 1158(a)(2)(A); (2) if the alien cannot “demonstrate[] by clear and convincing evidence” that she filed her asylum application within 1 year after their date of arrival in the United States, subject to certain exceptions, id. § 1158(a)(2)(B); or (3) if the alien, again subject to certain exceptions, “previously applied for asylum and had such application denied, ” id.§ 1158(a)(2)(C).

         Although the Attorney General's authority to grant or to deny an asylum application had long been discretionary-subject only to the limitation, added in 1990, that “[a]n alien who ha[d] been convicted of an aggravated felony” could “not apply for or be granted asylum, ” Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat 4978 (codified at 8 U.S.C. § 1158(d))- IIRIRA added a number of further statutory limitations on the Attorney General's discretion to grant relief. See 8 U.S.C. § 1158(b)(2). The Attorney General, for example, may not grant asylum to an alien who “participated in the persecution of any person, ” who has “been convicted by a final judgment of a particularly serious crime, ” or who poses “a danger to the security of the United States.” Id. § 1158(b)(2)(A)(i)-(ii), (iv). Finally, of particular relevance here, Congress granted the Attorney General authority to issue regulations “establish[ing] additional limitations and conditions, consistent with [8 U.S.C. § 1158, ] under which an alien shall be ineligible for asylum.” Id. § 1158(b)(2)(C).

         In general, an alien may apply for asylum in one of three ways: (1) if she is not in any kind of removal proceeding, she may file an affirmative application for asylum, see 8 U.S.C. § 1158(a)(1); 8 C.F.R. § 208.1(a)(1); (2) if she is subject to regular removal proceedings under 8 U.S.C. § 1229a, she may file a defensive application for asylum as a defense to removal, see 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 208.2(b); or (3) if she is subject to expedited removal proceedings under 8 U.S.C. § 1225, she may also file a defensive application for asylum as a defense to expedited removal, see 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 208.30(f). Special procedures, however, apply to unaccompanied minors. Under the TVPRA, an “unaccompanied alien child” that the Department of Homeland Security seeks to remove from the United States is entitled to the procedural protections afforded by formal-as opposed to expedited-removal proceedings, 8 U.S.C. § 1232(a)(5)(D), but is also entitled to present her claims in the first instance in a non-adversarial setting, see Id. § 1158(b)(3)(C).

         B. Challenged Actions

         On November 9, 2018, the Attorney General and the Secretary of Homeland Security promulgated the Interim Final Rule. See 83 Fed. Reg. at 55, 934. The Rule explains, by way of background, that “the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum . . . and are subsequently placed into removal proceedings in immigration court.” 83 Fed. Reg. at 55, 935. According to the Rule, “[m]ost of these aliens unlawfully enter the country between ports of entry along the southern border” and the need to “surveil, apprehend, . . . process, ” and detain these individuals has placed strains on the Justice Department and the Department of Homeland Security. Id. Moreover, by entering the United States between ports of entry along the southern border, these aliens “engage in conduct that seriously endangers themselves, any children traveling with them, and the U.S. Customs and Border Protection (‘CBP') agents who seek to apprehend them.” Id. The purpose of the Rule is to encourage aliens entering the United States along the southern border to do so at a designated port of entry, where they-and their applications for asylum-can be processed in an orderly and efficient fashion. Id. at 55, 936. The solution to that problem, according to the Rule, is to treat aliens who enter at the southern border between ports of entry as categorically ineligible for asylum. Id.

         Rather than enact this regulatory change entirely through the Interim Final Rule, however, the Departments of Justice and Homeland Security and the President adopted the new policy in two steps. As the first step, the Attorney General and the Secretary of Homeland Security amended two regulations relating to the eligibility for asylum. As noted above, when Congress enacted IIRIRA, it granted the Attorney General-and, now, the Secretary of Homeland Security-authority to establish, by regulation, “additional limitations and conditions, consistent with [8 U.S.C. § 1158], under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). The first regulation the Rule amended deals with eligibility for asylum as a general matter, applicable irrespective of how an alien applies for asylum. See 8 C.F.R. § 208.13 (“Establishing asylum eligibility”). Among other things, that regulation sets forth certain “mandatory” grounds for denial of asylum applications. Id. § 208.13(c). The Rule adds the following “[a]dditional limitation on eligibility for asylum” to the existing list of mandatory grounds for denial:

For applications filed after November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other presidential order suspending or limiting entry of aliens along the southern border with Mexico that is issued pursuant to [8 U.S.C. § 1185(a)(1) or 8 U.S.C. § 1182(f)] on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order.

83 Fed. Reg. at 55, 952; 8 C.F.R. § 208.13(c)(3). This limitation on eligibility depends on the promulgation of an applicable presidential proclamation.

         In addition, and consistent with Defendants' “anticipat[ion] that a large number of aliens who would be subject to a proclamation-based ineligibility bar would be subject to expedited-removal proceedings, ” 83 Fed. Reg. at 55, 936, the Rule also amended the regulation governing credible fear determinations in expedited removal proceedings, 8 C.F.R. § 208.30. Under the pre-existing regulation, an asylum officer is required to “conduct [an] interview [of the applicant] in a nonadversarial manner . . . to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture” and must find that the alien has a credible fear of persecution “if there is a significant possibility . . . the alien can establish eligibility for asylum . . . or for withholding of removal.” Id. § 208.30(d), (e)(2). As amended by the Rule, however, the regulation now directs an asylum officer to make a “negative credible fear determination” if the alien is “described in [8 C.F.R.] § 208.13(c)(3).” Id. § 208.30(e)(5)(ii). As a result, an alien subject to the new Rule automatically receives a negative credible fear determination. Under those circumstances, the applicant is ineligible for asylum-although she can still attempt to satisfy the more demanding threshold standard for withholding of removal. Id.

         As the second step in adopting the regulatory change, the President issued a proclamation entitled “Addressing Mass. Migration Through the Southern Border of the United States, ” 83 Fed. Reg. 57, 661, on the same day the Rule was promulgated.[5] Although entry into the United States outside of a designated port of entry is already unlawful, 8 U.S.C. § 1325(a), the Proclamation declares that “[t]he entry of any alien into the United States across the international boundary between the United States and Mexico is hereby suspended and limited” for a period of ninety days or until “an agreement permits the United States to remove aliens to Mexico” pursuant to 8 U.S.C. § 1158(a)(2)(A). 83 Fed. Reg. at 57, 663, Proclamation § 1. The Proclamation applies only prospectively, does not apply to aliens who enter at a designated port of entry or who are lawful permanent residents of the United States, and does not limit the right of any alien to be “considered for withholding of removal.” Id. § 2(b)-(c). The President issued subsequent proclamations extending this suspension on entry for additional ninety-day periods on February 7, 2019, see 84 Fed. Reg. 3, 665, and on May 13, 2019, see 84 Fed. Reg. 21, 229. Even if the President declines to renew the Proclamation at some point in the future, however, the bar will remain in place for those who entered the United States during the designated period. 83 Fed. Reg. at 55, 941 (stating that aliens will not overcome ineligibility “merely because a proclamation has subsequently ceased to have effect”).

         All agree that, taken together, the Rule and the Proclamation create a categorical bar to asylum for aliens who have entered the United States from Mexico outside a port of entry after November 9, 2018.

         C. East Bay Sanctuary Covenant Litigation

         The same day the Rule and the Proclamation were issued, a group of nonprofit organizations that provide legal and social services to immigrants filed suit in the Northern District of California, challenging the Rule and seeking a temporary restraining order. See Complaint, E. Bay Sanctuary Covenant v. Trump, No. 18-6810 (“East Bay”) (N.D. Cal. Nov. 9, 2018), Dkt. 1; Motion for Temporary Restraining Order, E. Bay Sanctuary Covenant v. Trump, No. 18-6810 (N.D. Cal. Nov. 13, 2018), Dkt. 8. On November 19, 2018, following expedited briefing and a hearing, the district court granted a nationwide temporary restraining order barring implementation of the Rule until December 19, 2018, when that court was scheduled to hold a hearing on the plaintiffs' motion for a preliminary injunction. E. Bay Sanctuary Covenant v. Trump, 349 F.Supp.3d 838 (N.D. Cal. 2018) (“East Bay I ”). The government promptly filed an emergency motion to stay the district court's temporary restraining order pending appeal, and the Ninth Circuit denied that motion. See E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018) (“East Bay II). The Supreme Court, in turn, also declined to stay the temporary restraining order pending appeal. Trump v. E. Bay Sanctuary Covenant, 139 S.Ct. 782 (U.S. Dec. 21, 2018). On December 19, 2018, the district court granted the plaintiffs' request for a preliminary injunction, E. Bay Sanctuary Covenant v. Trump, 354 F.Supp.3d 1094, 1102 (N.D. Cal. 2018) (“East Bay III), and that order is currently on appeal to the Ninth Circuit, E. Bay Sanctuary Covenant v. Trump, appeal docketed, No. 18-17274 (9th Cir. Nov. 27, 2018) (initially docketed with respect to district court's order granting temporary restraining order).

         D. This Proceeding

         The day after the Northern District of California issued the temporary restraining order in East Bay I, a group of asylum seekers who crossed the southern border outside ports of entry after November 9, 2018, brought suit in this Court. See Complaint for Declaratory and Injunctive Relief, O.A. v. Trump, No. 18-2718 (“O.A.”) (D.D.C. Nov. 20, 2018), Dkt. 1. The next day, November 21, 2018, those plaintiffs moved for a temporary restraining order and preliminary injunction. See Dkt. 6. Before briefing was complete on those motions, a second group of individual plaintiffs-this time joined by two organizations, the Capital Area Immigrants' Rights Coalition (“CAIR Coalition”) and Refugee and Immigrant Center for Education and Legal Services, Inc. (“RAICES”)-brought suit, see Complaint, S.M.S.R. v. Trump, No. 18-2838 (“S.M.S.R.”) (D.D.C. Dec. 3, 2018), Dkt. 3, and also moved for a temporary restraining order and preliminary injunction, see id, Dkt. 6. Unlike the original O.A. complaint, the S.M.S.R. complaint included class allegations. See id, Dkt. 3 at 43-44 (Compl. ¶¶ 175-77).

         The Court held a hearing on the pending motions on December 17, 2018. See Minute Entry (Dec. 17, 2018). At the conclusion of the hearing, the Court noted that a nationwide temporary restraining order was then in effect; that the Ninth Circuit had declined to stay that order pending appeal; that a stay application was pending before the Supreme Court; and that the U.S. District Court for the Northern District of California was likely to decide in the next two days whether to grant a nationwide preliminary injunction. Dkt. 41 at 123-25 (Dec. 17, 2018 Hrg. Tr.). In light of this state of affairs and the fact that Plaintiffs would not face any risk of imminent injury while an injunction issued by another court remained in effect, the Court directed that the parties meet and confer about whether to proceed by way of expedited briefing on cross-motions for summary judgment rather than motions for preliminary relief. Id. (Dec. 17, 2018 Hrg. Tr.). The Court also consolidated the O.A. and S.M.S.R. cases and set December 18, 2018, as the deadline for Plaintiffs to amend their complaints. See Minute Order (Dec. 17, 2018); S.M.S.R., Minute Order (Dec. 17, 2018). Both sets of plaintiffs timely amended and joined additional individual plaintiffs, and the O.A. Plaintiffs added class allegations to their complaint. See Dkt. 39 (S.M.S.R. Amend. Compl.); Dkt. 40 (O.A. Amend. Compl.). Following a telephonic status conference on December 21, 2018, the Court set a schedule for expedited briefing on cross-motions for summary judgment and class certification. See Minute Entry (Dec. 21, 2018). Pending resolution of those motions, and barring any intervening need to act, the Court has held the O.A. and S.M.S.R. motions for temporary restraining orders and preliminary injunctions in abeyance. Id.

         The parties' cross-motions for summary judgment and Plaintiffs' motions to certify a class, Dkt. 51; Dkt. 52; Dkt. 66, along with Plaintiffs' previously-filed motions for preliminary relief, Dkt. 6; Mot. for Temp. Restraining Order, Dkt. 6, S.M.S.R. et al. v. Trump et al. (No. 18-2838), are currently before the Court.

         II. LEGAL STANDARD

         In the normal course, summary judgment may be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as matter of law.” Air Transp. Ass'n. of Am., Inc. v. Nat'l Mediation Bd., 719 F.Supp.2d 26, 31-32 (D.D.C. 2010), aff'd, 663 F.3d 476 (D.C. Cir. 2011). “In a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the Court's role is limited to reviewing the administrative record, so the standard set forth in Rule 56(c) does not apply.” Id.

         In the APA context, “it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'” Catholic Health Initiatives v. Sebelius, 658 F.Supp.2d 113, 117 (D.D.C. 2009) (quoting Cottage Health Sys. v. Sebelius, 631 F.Supp.2d 80, 89-90 (D.D.C. 2009)). Summary judgment serves as “the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Id. (internal quotations omitted).

         III. ANALYSIS

         Plaintiffs raise a host of challenges to the Rule, principally under the APA, and they seek to proceed on behalf of a nationwide class of “[a]ll noncitizen asylum-seekers who have entered or will enter the United States through the southern border but outside ports of entry after November 9, 2018, ” Dkt. 52-13 at 1; Dkt. 51-16 at 1. Among other things, they contend that the Rule violates the INA's mandate that an alien present in the United States is entitled to seek asylum “whether or not” the alien arrived in the United States “at a designated port of arrival, ” and “irrespective of [the] alien's status.” 8 U.S.C. § 1158(a)(1). They further contend that the Rule violates a range of laws designed to protect the rights of aliens and unaccompanied alien children to seek asylum and the right of the public to participate in the regulatory process. Before reaching any of these questions, however, the Court must address a series of threshold issues, including statutory jurisdiction, Article III standing, and zone of interests standing. After resolving those issues, the Court will turn to the merits. Finally, the Court will consider the appropriate remedy and Plaintiffs' motions for class certification.

         A. Threshold Issues

         1. Statutory Jurisdiction

         Defendants devote the lion's share of their briefing to the question of this Court's statutory jurisdiction over the individual plaintiffs' claims.[6] In Defendants' view, the individual plaintiffs will have an opportunity to challenge the Rule if they are eventually subject to final orders of removal; they cannot, however, short-circuit the process that Congress established for judicial review in the courts of appeals only after issuance of a final order of removal. The individual plaintiffs are bound to follow that process, Defendants contend, because all but one of the individual plaintiffs are now in full removal proceedings, and the one plaintiff who is no longer in removal proceedings has received asylum and, thus, no longer has standing to challenge the Rule. As a result, according to Defendants, each of the individual plaintiffs with a live claim is subject to two relevant statutory provisions: 8 U.S.C. § 1252(a)(5), which mandates that “a petition for review filed with an appropriate court of appeals [pursuant to the Hobbs Act] shall be the sole and exclusive means for judicial review of an order of removal, ” and 8 U.S.C. § 1252(b)(9), which consolidates “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” into “judicial review of a final order” of removal. As Defendants read these provisions, this Court lacks statutory jurisdiction to consider any challenge to an agency action (1) that occurs in the course of removal proceedings, or (2) that the individual plaintiffs could challenge in those proceedings. Dkt. 22 at 27; see also Dkt. 66 at 34-35. On this telling, the individual plaintiffs brought their challenge in the wrong place (in this Court, as opposed to a court of appeals) and at the wrong time (prior to receiving any final order of removal).

         Plaintiffs, for their part, understand the nature of their lawsuit and the judicial review provisions of the INA in very different terms. As they explain it, this suit does not challenge any order of removal, nor does it “arise from” any removal proceeding. Rather, they challenge the validity of the Rule on its face, without regard to any particular application, based on a host of substantive and procedural flaws in the rulemaking. Nor, in Plaintiffs' view, is the Rule itself inextricably tied to removal proceedings, as Defendants contend. To the contrary, the Rule affects anyone seeking asylum, whether the asylum seeker applies affirmatively-that is, outside of any removal proceeding-or defensively-that is, within the confines of either a formal or expedited removal proceeding. Indeed, Plaintiffs argue, many of the individual plaintiffs “were in neither expedited nor ordinary removal proceedings when they filed this suit.” See, e.g., Dkt. 52-1 at 24-25 & n.8. As a result, as Plaintiffs see it, § 1252's channeling rules, which apply only to claims arising from actions taken and decisions rendered in removal proceedings, have nothing to do with this case.

         But even if that view of § 1252's jurisdictional provisions is incorrect, Plaintiffs contend that this Court has jurisdiction to consider at least some of the individual plaintiffs' claims under 8 U.S.C. § 1252(e)(3), which authorizes judicial review in this Court to determine whether “any regulation issued to implement” the expedited removal provision of the INA is “consistent with the applicable provisions” of the statute. Defendants concede that at least one of the individual plaintiffs, A.V., was in expedited removal proceedings at the time the original complaint and amended complaint were filed. See Dkt. 22 at 29; Dkt. 90 at 11 (Defs' SUMF ¶ 46). It was only after suit was brought that the government inexplicably moved her from expedited removal to full removal-without conducting an initial credible fear interview-on the eve of oral argument. This matters, according to Plaintiffs, because jurisdiction must be assessed at the time an action is commenced. And, finally, even putting that principle aside, Plaintiffs argue that two individual plaintiffs-an unaccompanied minor who is entitled to present his asylum request in the first instance to an asylum officer outside the context of full removal proceedings and a plaintiff who received asylum, but fears that the government will revoke that status if the Rule is allowed to stand-are not subject to full removal proceedings (and thus are not subject to the channeling rules Defendants invoke) even to this day.

         “Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007). As a general rule, federal district courts have jurisdiction under 28 U.S.C. § 1331 over “all civil actions arising under the Constitution, law, or treaties of the United States.” But Congress may curtail that grant of jurisdiction “by establishing an alternative statutory scheme for administrative and judicial review.” Am. Fed'n of Gov't Emps., AFL-CIO v. Trump, No. 18-5289, 2019 WL 3122446 at *3 (D.C. Cir. July 16, 2019). Here, Defendants invoke two provisions of the INA-§ 1252(a)(5) and § 1252(b)(9)-and argue that, taken together, these provisions divest this Court of jurisdiction to adjudicate the individual plaintiffs' claims. For the reasons explained below, the Court concludes that the individual plaintiffs' claims fall “outside the text of [the] jurisdiction-channeling provision[s]” and, thus, “may proceed in the district court.” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 127 (D.C. Cir. 2010).

         a. 8 U.S.C. 1252(a)(5)

         Defendants do not contend that § 1252(a)(5), standing alone, divests this Court of jurisdiction but, rather, argue that it does so in conjunction with § 1252(b)(9). A close reading of § 1252(a)(5), however, reveals that it adds little to Defendants' argument.

         The Court starts, as it must, with the statute's text. See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Section 1252 begins with § 1252(a)(1), which provides that “[j]udicial review of a final order of removal . . . is governed only by [the Hobbs Act, 28 U.S.C. §§ 2341- 51], except as provided in subsection (b) and except that the court [of appeals] may not order the taking of additional evidence under [28 U.S.C. § 2374(c)].” 8 U.S.C. § 1252(a)(1) (emphasis added). Under the Hobbs Act, in turn, the federal courts of appeals-and not the district courts-are vested with exclusive jurisdiction to determine “the validity of” and to enjoin or to set aside, “in whole or in part, the order of the agency” at issue. 28 U.S.C. § 2349. As a result, one need read no further than the first sentence of § 1252 to find that the “only” way to obtain judicial review of a final order of removal is by filing a petition in the appropriate court of appeals. 8 U.S.C. § 1252(a)(1).

         Section 1252(a)(5) clarifies that the § 1252(a)(1) process is the “exclusive means of review” of an order of removal. 8 U.S.C. § 1252(a)(5). That provision provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and [the Mandamus and All Writs Acts], a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal [with the exception of expedited removal orders]. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms ‘judicial review' and ‘jurisdiction to review' include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, [the Mandamus and All Writs Act], and review pursuant to any other provision of law (statutory or nonstatutory).

8 U.S.C. § 1252(a)(5). Taken together, § 1252(a)(1) and § 1252(a)(5) establish a comprehensive rule: Section 1252(a)(1) defines the only means for obtaining “[j]udicial review of a final order of removal, ” 8 U.S.C. § 1252(a)(1), and § 1252(a)(5) provides that “a petition for review filed with an appropriate court of appeals” is “the sole and exclusive means for judicial review of an order of removal, ” 8 U.S.C. § 1252(a)(5). An aggrieved party cannot circumvent the Hobbs Act procedure by filing a petition for a writ of habeas corpus, a mandamus petition, an All Writs Act action, or any other statutory or nonstatutory claim in federal district court. The exclusive means of obtaining judicial review of an order of removal is the Hobbs Act. That much is clear.

         The work that § 1252(a)(5) does in clarifying that the Hobbs Act remedy is exclusive and not subject to circumvention, however, does nothing to advance the inquiry here. Congress did not declare that any legal challenge relating to the immigration laws and regulations must be brought under the Hobbs Act. Instead, at least as far as § 1252(a)(1) and § 1252(a)(5) go, Congress provided an “exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5) (emphasis added); see also 8 U.S.C. § 1252(a)(1) (providing procedure for “[j]udicial review of a final order or removal”). Here, however, Plaintiffs do not seek review of an “order or removal, ” nor do they challenge anything that has occurred in the course of a removal proceeding. Rather, they bring a facial challenge to the validity of a regulation of general applicability based on the administrative record generated in the rulemaking. The plain language of § 1252(a) and § 1252(a)(5) makes clear that those provisions do not, standing alone, apply to Plaintiffs' challenge.

         This reading of § 1252(a)(5) invites an obvious retort: If § 1252(a)(1) provides that judicial review of a final order of removal is subject to review “only” under the Hobbs Act, what function does § 1252(a)(5) perform? The answer to that question is found in the statutory history of the INA. At one time, a petition for a writ of habeas corpus provided the sole means of challenging the lawfulness of an deportation order.[7] See Heikkila v. Barber, 345 U.S. 229, 230, 234-36 (1953). Then, for a period of time, the Supreme Court held that although the detailed hearing procedures specified by the APA did not apply to deportation hearings under the INA, see Marcello v. Bonds, 349 U.S. 302 (1955); Ardestani v. INS, 502 U.S. 129, 133 (1991), the APA's judicial review provisions did, see Shaughnessy v. Pedreiro, 349 U.S. 48, 50-52 (1955). In 1961, Congress introduced the Hobbs Act remedy for deportation orders, but explicitly retained habeas review of these orders. INS v. St. Cyr, 533 U.S. 289, 309-10 (2001). When Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), however, it repealed the provision permitting aliens to challenge deportation orders in habeas, and when Congress enacted IIRIRA later that year, it replaced the remaining jurisdictional rules that Congress enacted in 1961 with a version of the rules currently set forth in § 1252. Thus, as of 1996, the Hobbs Act provided the “only” process for obtaining judicial review of a final order of removal following full removal proceedings.

         Congress did not enact § 1252(a)(5) until 2005, following the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001). St. Cyr held that, notwithstanding § 1252(a)(1)'s declaration that “[j]udicial review of a final order of removal . . . is governed only by” the Hobbs Act, 8 U.S.C. § 1252(a)(1) (emphasis added), criminal aliens who were otherwise barred from obtaining judicial review could invoke the district court's habeas jurisdiction. 533 U.S. at 314. In response, Congress enacted § 1252(a)(5), along with other changes to § 1252, to offer a “clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of” certain claims, id. at 314. See H.R. Conf. Rep. 109-72 at 80-81. Understood in this light, § 1252(a)(5) does not expand the scope of § 1252(a)(1) or reach agency action unrelated to a removal proceeding. Rather, it merely reaffirms that Congress has provided a single means for obtaining judicial review of removal orders.

         Because Plaintiffs do not seek review of a removal order-or, indeed, of any decision or action taken in the course of a removal proceeding-§ 1252(a)(5) has no ...


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