Professional Documents
Culture Documents
)
GRACE, et al., )
)
Plaintiffs, )
v. )
) No. 18-cv-01853 (EGS)
)
MATTHEW G. WHITAKER, 1 Acting )
Attorney General of the United )
States, et al., )
)
Defendants. )
MEMORANDUM OPINION
(1996).
arguments that this case is not justiciable and holds that this
that, with the exception of two policies, the new credible fear
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I. Background
212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-414, 66
The “motivation for the enactment of the Refugee Act” was the
“to which the United States had been bound since 1968,” id. at
enacting the Refugee Act was to align domestic refugee law with
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status, the alien must show he or she is someone who: (1) has
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1996, every person who sought admission into the United States
procedure
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Id.
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§ 1252(a)-(b).
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Judicial Review
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§ 1252(e)(3)(A).
Precedential Decision
§§ 1003.1(g)-(h)(1)(ii).
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§ 1225(b)(1)(B)(v)).
13
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Rather, the alien must show “the government condoned the private
marks omitted).
alien was attacked because her husband was aware of, and hostile
to, her particular social group: women who were unable to leave
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Policy Memorandum
11, 2018, USCIS issued final guidance to asylum officers for use
(citations omitted).
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the extent that those cases are not inconsistent with Matter of
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after having been raped, beaten, and threatened for over twenty
several of her children. Id. Grace sought help from the local
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
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
police force, members of the gang broke down her door and beat
Mina until she could no longer walk. Id. ¶ 15. She sought asylum
brother, maimed her son, and threatened her with death. Gina
Decl., ECF No. 12-4 ¶ 2. Mona fled her country after a gang
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
the gang. Maria Decl., ECF No. 12-7 ¶ 2. Nora, a single mother,
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
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plaintiffs not yet deported. The parties have since filed cross-
plaintiffs have moved for the Court to lift the stay and have
accordingly been removed. See Mot. to Lift Stay, ECF Nos. 28
(plaintiff Mona), 60 (plaintiff Gio).
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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
Mot., ECF No. 66-1 at 7–16. The government moves to strike these
that were before the agency at the time its decision was made.”
A. Legal Standard
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Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). This is
at the time the decision was made,’” James Madison Ltd. by Hecht
omitted).
the court additional materials that the agency did not review in
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Mot., ECF No. 66-1 at 2–12. The Court considers each argument in
turn.
B. Analysis
brief, see Decl. of Sarah Mujahid (“Mujahid Decl.”), ECF No. 10-
Decl.”), ECF No. 64-4, Exs. 1–3, and declarations from third
9 The Court does not reach plaintiffs’ due process claims, and
therefore will not consider the extra-record evidence related to
that claim. See Second Mujahid Decl., ECF No. 64-4, Exs. 4–7;
Second Mujahid Decl., ECF No. 64-4, Exs. 8-9; ECF No. 64-5.
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any new rules. See Defs.’ Mot., ECF No. 57-1 at 17. Whether the
1989)).
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officer and former immigration judge, on the other hand, are not
change of position.
native countries, Mujahid Decl., ECF No. 10-3, Exs. K-T; and
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reports, Second Mujahid Decl., ECF No. 64-4 Exs. 10–13. The
The government argues that the Court need not concern itself
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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
Exs. R-T, and Second Mujahid Decl., ECF No. 64-4, Exs. 14–17.
A. Justiciability
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
Galvan v. Fed. Prison Indus., 199 F.3d 461, 463 (D.C. Cir.
a. Matter of A-B-
A-B-. Defs.’ Mot., ECF No. 57-1 at 30–34. Plaintiffs argue that
review their claims. Pls.’ Mot., ECF No. 64-1 at 26–30. The
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limitations period”).
(A) In general
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8 U.S.C. § 1252(e)(3).
asylum under section 1158. Id. The government also argues that
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General cited section 1225(b) and the standard for credible fear
does not apply. Defs.’ Mot., ECF No. 57-1 at 32–34. However, it
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omitted).
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section 1225.
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See INS v. Errico, 385 U.S. 214, 225 (1966)(“Even if there were
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b. Policy Memorandum
the statute. Defs.’ Reply, ECF No. 85 at 30. Second, since the
33.
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Court has already found that Matter of A-B- falls within section
at 32.
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not read requirements into the statute that do not exist. See
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bring this suit with respect to their claims against the Policy
assessed “upon the facts as they exist at the time the complaint
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of A-B-. This argument fails because the Court has found that it
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are in fact new and each pre-date the sixty days in which
theory of the case: that the credible fear policies are not
Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008). This
2003)(citations omitted).
case. And when assessing standing, this Court must “be careful
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the credible fear policies; and (3) action by the Court can
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fear policies arguing they violate the APA and INA. Two
Clinton, 684 F.3d 67, 74–75 (D.C. Cir. 2012). The reasoned
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precedent.” Id. (citing Siegel v. SEC, 592 F.3d 147, 164 (D.C.
467 U.S. 837 (1984). See Halverson v. Slater, 129 F.3d 180, 184
(D.C. Cir. 1997). Under the familiar Chevron two-step test, the
clear, that is the end of the matter; for the court, as well as
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Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 572
Troy Corp. v. Browder, 120 F.3d 277, 285 (D.C. Cir. 1997)(noting
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2016)(citation omitted).
See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
making.” Judulang, 565 U.S. at 53; see also Daley, 209 F.3d at
agency actions”).
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a new rule for the nexus requirement in asylum; (4) a new rule
the circuit where the credible fear interview takes place. The
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Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006). The
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precedents.”).
The INA itself does not shed much light on the meaning of
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While the legislative history of the Act does not reveal the
clear that Congress intended “to bring United States refugee law
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¶ 77.
102).
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rule has no basis in immigration law. Pls.’ Mot., ECF No. 64-1
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also argues that Matter of A-B- only required the BIA to assess
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at 12 (emphasis added).
such claims at the credible fear stage, but the general rule is
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13 The new rule is also a departure from previous DHS policy. See
Mujahid Decl., Ex. F (“2017 Credible Fear Training”) (“Asylum
officers should evaluate the entire scope of harm experienced by
the applicant to determine if he or she was persecuted, taking
into account the individual circumstances of each case.”). It is
arbitrary and capricious for that reason as well. Lone Mountain
Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C.
Cir. 2013)(“[A]n agency changing its course must supply a
reasoned analysis indicating that prior policies and standards
are being deliberately changed, not casually ignored.”)(emphasis
added).
14 The Court also notes that domestic law may supersede
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her from persecution. See Burbiene v. Holder, 568 F.3d 251, 255
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language does not change the standard. Defs.’ Reply, ECF No. 85
at 55.
the victim.
Chevron step one. cf. B & H Med., LLC v. United States, 116 Fed.
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(emphasis added). It was clear at the time that the Act was
its argument that the standard is not new. Defs.’ Reply, ECF No.
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after the police located one of the callers, the calls stopped.
the Court found that notwithstanding the fact “police might take
because she could have been killed. Id. Therefore, the Court
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154, 159 (1st Cir. 2018). The petitioner in Rosales Justo fled
forensic team at the scene where [the] body was recovered, the
autopsy was performed.” Id. The Court held that, despite the
that the government was able to make the petitioner and his
of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002);
standard was settled at the time the Refugee Act was codified,
persecution requirement.
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Refugee Act, and APA. The nexus requirement in the INA is that a
not ambiguous. The parties also endorse the “one central reason”
there is more than one reason for persecution. See Defs.’ Mot.,
57-1 at 47; Pls.’ Mot., ECF No. 64-1 at 53–54. The INA expressly
standard.
disputes will not meet the nexus requirement. Id. at 339 n.10.
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ground. See Aldana Ramos v. Holder, 757 F.3d 9, 18–19 (1st Cir.
orientation).
Therefore, the government did not violate the APA or INA with
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opinion.
the fact that its members have been subjected to harm.” Id. at
Id.
group may not be valid for asylum purposes because they may not
Id. The BIA made clear, however, that “such a social group
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law.
32–33.
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follows:
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unlawful. Pls.’ Mot., ECF No. 64-1 at 63–68. Because the policy
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Id. (citing AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir.
2000). The Supreme Court concluded that the circuit court erred
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controls. See Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789
agency discretion”).
“simply states the truism that the INA requires all line
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contrary to Brand X.
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The issue is that the Policy Memorandum goes much further than
precedent of the relevant circuit only “to the extent that those
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Id. The government also argues that, to the extent there is any
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the usual full asylum process” and when Congress adopted the
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The statute does not speak to which law should be applied during
rational explanation for doing so. See Mujahid Decl., Ex. F (DHS
training policy explaining that law most favorable to the
applicant applies when there is a circuit split).
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* * * * *
which this Court finds are arbitrary and capricious and contrary
apply only the law of the circuit where the credible fear
Court also finds that neither the Policy Memorandum nor Matter
27Because the Court finds that the government has violated the
INA and APA, it need not determine whether there was a
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D. Relief Sought
government and its officials from applying the new credible fear
Plaintiffs also request that the Court vacate any credible fear
not been removed. Id. As for plaintiffs that have been removed,
plaintiffs. Id.
all equitable relief the Court does not have the authority to
a. Section 1252(e)(1)
removal system.” Defs.’ Mot., ECF No. 57-1 at 11. However, the
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states as follows:
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the same language when referring to an action: “[A court may not
§ 1252(e)(1)(b)(emphasis added).
view that the term “authorized” modifies the type of action, and
that paragraph.
retaliate freely).
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law.” Id. § 1252(e)(3). Because this case was brought under that
b. Section 1252(f)
relevant part: “no court (other than the Supreme Court) shall
525 U.S. 471, 481 (1999)). The Supreme Court has also noted that
circuit courts have “held that this provision did not affect its
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plaintiffs’ cases under section 1252(f). See Oral Arg. Hr’g Tr.,
the Court may declare the new credible fear policies unlawful,
it. It is the province of the Court to declare what the law is,
prevent that action from violating the rights of the very people
APA itself. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,
31During oral argument, the government argued for the first time
that an injunction in this case was tantamount to class-wide
relief, which the parties agree is prohibited under the statute.
See Oral Arg. Hr’g Tr., ECF No. 102 at 63; 8 U.S.C.
§ 1252(e)(1)(b)(prohibiting class certification in actions
brought under section 1252(e)(3)). The Court finds this argument
unpersuasive. Class-wide relief would entail an Order requiring
new credible fear interviews for all similarly situated
individuals, and for the government to return to the United
States all deported individuals who were affected by the
policies at issue in this case. Plaintiffs do not request, and
the Court will not order, such relief.
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145 F.3d 1399, 1409-10 (D.C. Cir. 1998)(“We have made clear that
should they prevail on the merits, TRO Hr’g Tr., Aug. 9, 2018,
argues that the Court may not do so, see Defs.’ Reply, ECF No.
85 at 78–79.
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China, but had not sought to comply with the immigration laws
release into the United States. Id. The district court, citing
result, the Court noted, “it is not within the province of any
marks omitted).
102
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Id. at 1028. The Court further elaborated on this point with the
following explanation:
enter the United States.” Id. Because plaintiffs have done so,
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Consumer Fin. Prot. Bureau, 785 F.3d 684, 695 (D.C. Cir. 2015).
have been irreparably harmed and that the equities are in their
favor. Pls.’ Mot., ECF No. 64-1 at 73–74. The government has not
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contention that the Court does not have the authority to order
relief, supra, at 93–104, the Court will explain why that relief
is appropriate.
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IV. Conclusion
relief, and that, with the exception of two policies, the new
SO ORDERED.
107