APPEAL,CONSOL,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−02718−RDM

O.A. et al v. TRUMP et al Assigned to: Judge Randolph D. Moss Cases: 1:18−cv−03083−DLF
1:18−cv−02838−RDM Case in other court: USCA, 19−05272 Cause: 05:702 Administrative Procedure Act Plaintiff
O.A.

Date Filed: 11/20/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Ana C. Reyes WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 (202) 434−5276 Fax: (202) 434−5029 Email: areyes@wc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goodman Hentoff WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 202−434−5804 Email: thentoff@wc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anwen Hughes HUMAN RIGHTS FIRST 75 Broad Street 31st Floor New York, NY 10004 (212) 845−5200 Fax: (212) 845−5299 ATTORNEY TO BE NOTICED
Charles L. Mccloud ATTORNEY TO BE NOTICED
Charles G. Roth NATIONAL IMMIGRANT JUSTICE CENTER 208 S. LaSalle Street Suite 1300 Chicago, IL 60604 (312) 660−1613 Fax: (312) 660−1505 Email: croth@heartlandalliance.org ATTORNEY TO BE NOTICED
Eleni R. Bakst HUMAN RIGHTS FIRST 75 Broad Street 31st Floor New York, NY 10004 (212) 845−5200 Fax: (212) 845−5299

TERMINATED: 09/09/2019 ATTORNEY TO BE NOTICED
Ellen E. Oberwetter WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 (202) 434−5849 Email: eoberwetter@wc.com ATTORNEY TO BE NOTICED
Gianna Borroto NATIONAL IMMIGRANT JUSTICE CENTER 208 S. LaSalle Street Suite 1300 Chicago, IL 60604 (312) 660−1516 Email: GBorroto@heartlandalliance.org ATTORNEY TO BE NOTICED
Mary Beth Hickcox−Howard WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 (202) 434−5973 Email: mhickcox−howard@wc.com ATTORNEY TO BE NOTICED
Matthew David Heins WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 (202) 434−5000 Fax: (202) 434−5029 Email: mheins@wc.com ATTORNEY TO BE NOTICED
Patricia Stottlemyer HUMAN RIGHTS FIRST 805 15th Street, NW Suite 900 Washington, DC 20005 (202) 370−3317 Email: StottlemyerP@humanrightsfirst.org ATTORNEY TO BE NOTICED
Ruben Loyo NATIONAL IMMIGRANT JUSTICE CENTER 224 S Michigan Avenue Suite 600 Chicago, IL 60604 (312) 660−1312 Email: rloyo@heartlandalliance.org ATTORNEY TO BE NOTICED
Vanessa O. Omoroghomwan WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 (202) 434−5000 Fax: (202) 434−5029 ATTORNEY TO BE NOTICED

Plaintiff K.S.
Plaintiff A.V.

represented by Ana C. Reyes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goodman Hentoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anwen Hughes (See above for address) ATTORNEY TO BE NOTICED
Charles L. Mccloud (See above for address) ATTORNEY TO BE NOTICED
Charles G. Roth (See above for address) ATTORNEY TO BE NOTICED
Eleni R. Bakst (See above for address) TERMINATED: 09/09/2019 ATTORNEY TO BE NOTICED
Gianna Borroto (See above for address) ATTORNEY TO BE NOTICED
Mary Beth Hickcox−Howard (See above for address) ATTORNEY TO BE NOTICED
Matthew David Heins (See above for address) ATTORNEY TO BE NOTICED
Patricia Stottlemyer (See above for address) ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) ATTORNEY TO BE NOTICED
Vanessa O. Omoroghomwan (See above for address) ATTORNEY TO BE NOTICED
represented by Ana C. Reyes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goodman Hentoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff G.Z.

Anwen Hughes (See above for address) ATTORNEY TO BE NOTICED
Charles L. Mccloud (See above for address) ATTORNEY TO BE NOTICED
Charles G. Roth (See above for address) ATTORNEY TO BE NOTICED
Eleni R. Bakst (See above for address) TERMINATED: 09/09/2019 ATTORNEY TO BE NOTICED
Gianna Borroto (See above for address) ATTORNEY TO BE NOTICED
Mary Beth Hickcox−Howard (See above for address) ATTORNEY TO BE NOTICED
Matthew David Heins (See above for address) ATTORNEY TO BE NOTICED
Patricia Stottlemyer (See above for address) ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) ATTORNEY TO BE NOTICED
Vanessa O. Omoroghomwan (See above for address) ATTORNEY TO BE NOTICED
represented by Ana C. Reyes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goodman Hentoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anwen Hughes (See above for address) ATTORNEY TO BE NOTICED
Charles L. Mccloud (See above for address) ATTORNEY TO BE NOTICED
Charles G. Roth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff D.S.

Eleni R. Bakst (See above for address) TERMINATED: 09/09/2019 ATTORNEY TO BE NOTICED
Gianna Borroto (See above for address) ATTORNEY TO BE NOTICED
Mary Beth Hickcox−Howard (See above for address) ATTORNEY TO BE NOTICED
Matthew David Heins (See above for address) ATTORNEY TO BE NOTICED
Patricia Stottlemyer (See above for address) ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) ATTORNEY TO BE NOTICED
Vanessa O. Omoroghomwan (See above for address) ATTORNEY TO BE NOTICED
represented by Ana C. Reyes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goodman Hentoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anwen Hughes (See above for address) ATTORNEY TO BE NOTICED
Charles L. Mccloud (See above for address) ATTORNEY TO BE NOTICED
Charles G. Roth (See above for address) ATTORNEY TO BE NOTICED
Eleni R. Bakst (See above for address) TERMINATED: 09/09/2019 ATTORNEY TO BE NOTICED
Gianna Borroto (See above for address) ATTORNEY TO BE NOTICED
Mary Beth Hickcox−Howard (See above for address) ATTORNEY TO BE NOTICED

Plaintiff C.A.

Matthew David Heins (See above for address) ATTORNEY TO BE NOTICED
Patricia Stottlemyer (See above for address) ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) ATTORNEY TO BE NOTICED
Vanessa O. Omoroghomwan (See above for address) ATTORNEY TO BE NOTICED
represented by Ana C. Reyes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Goodman Hentoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anwen Hughes (See above for address) ATTORNEY TO BE NOTICED
Charles L. Mccloud (See above for address) ATTORNEY TO BE NOTICED
Charles G. Roth (See above for address) ATTORNEY TO BE NOTICED
Eleni R. Bakst (See above for address) TERMINATED: 09/09/2019 ATTORNEY TO BE NOTICED
Gianna Borroto (See above for address) ATTORNEY TO BE NOTICED
Mary Beth Hickcox−Howard (See above for address) ATTORNEY TO BE NOTICED
Matthew David Heins (See above for address) ATTORNEY TO BE NOTICED
Patricia Stottlemyer (See above for address) ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
S.M.S.R. 18−cv−02838

Vanessa O. Omoroghomwan (See above for address) ATTORNEY TO BE NOTICED
represented by Craig Alan Hoover HOGAN LOVELLS 555 13th Street, NW Washington, DC 20004−1161 (202) 637−5694 Fax: 202−637−5910 Email: craig.hoover@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty U.S. ATTORNEY'S OFFICE 1801 California Street Suite 1600 Denver, CO 80202 303−454−0101 Fax: 303−454−0411 Email: elizabeth.hagerty@usdoj.gov TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004 (202) 637−5485 Email: justin.bernick@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchell Pearsall Reich HOGAN LOVELLS US LLP 555 Thirteenth St. N.W. Washington, DC 20004 (202) 637−5833 Email: mitchell.reich@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Neal Kumar Katyal HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637−5528 Fax: (202) 637−5910 Email: neal.katyal@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
T. Clark Weymouth HOGAN LOVELLS US LLP 555 Thirteenth St. N.W. Washington, DC 20004 (202) 637−8633 Email: t.weymouth@hoganlovells.com LEAD ATTORNEY

Plaintiff
R.S.P.S. 18cv2838; On behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
Thomas P. Schmidt HOGAN LOVELLS US LLP 390 Madison Ave New York, NY 10017 212−918−5547 Email: thomas.schmidt@hoganlovells.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W. H. Best HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637−6473 Email: zachary.best@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum CAPITAL AREA IMMIGRANTS' RIGHTS (CAIR) COALITION 1612 K Street, NW Suite 204 Washington, DC 20006 202−899−1412 Fax: 202−331−3341 Email: adina@caircoalition.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kaitlin Welborn ACLU OF ALABAMA P.O. Box 6179 Montgomery, AL 36106 334−265−2754 Email: kwelborn@aclualabama.org TERMINATED: 04/24/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchell Pearsall Reich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION 18cv2838

Neal Kumar Katyal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
T. Clark Weymouth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary W. H. Best (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchell Pearsall Reich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Neal Kumar Katyal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
T. Clark Weymouth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary W. H. Best

Plaintiff
REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. 18cv2838

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah REFUGEE AND IMMIGRANT CENTER FOR EDUCATON AND LEGAL SERVICES 802 Kentucky Avenue San Antonio, TX 78201 United Sta 210−787−3745 Fax: 210−787−3745 Email: manoj.govindaiah@raicestexas.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchell Pearsall Reich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Neal Kumar Katyal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
T. Clark Weymouth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Z.A.G.G. TERMINATED: 01/04/2019 Plaintiff D.A.L.G. TERMINATED: 01/04/2019 Plaintiff L.C.V.R
Plaintiff C.S.C.C.
Plaintiff R.G.G.
Plaintiff N.A.G.A.

Zachary W. H. Best (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY

Plaintiff A.J.A.C.
Plaintiff A.J.E.A.M.
Plaintiff K.P.P.V.
Plaintiff R.D.P.V.
Plaintiff Y.A.L.P.
V. Defendant DONALD J. TRUMP as President of the United States

ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020
represented by Erez Reuveni U.S. DEPARTMENT OF JUSTICE

Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 307−4293 Fax: (202) 305−7000 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow U.S. DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation P.O. Box 868 Washington, DC 20044 (202) 598−2445 Email: joseph.a.darrow@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 307−6482 Fax: (202) 514−8071 Email: scott.g.stewart@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer US DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION P.O. Box 878 Ben Franklin Station Washington, DC 20044 202−598−8770 Email: christina.p.greer@usdoj.gov ATTORNEY TO BE NOTICED
Kathryne Marie Gray U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION Office of Immigration Litigation, District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20009 (202) 305−7386 Fax: (202) 305−7000 Email: kathryne.m.gray@usdoj.gov ATTORNEY TO BE NOTICED
Thomas Benton York UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, 450 5th Street NW Liberty Square Building Washington, DC 20001 (202) 598−6073 Email: Thomas.B.York@usdoj.gov

Defendant MATTHEW G. WHITAKER as Acting Attorney General
Defendant KIRSTJEN M. NIELSEN as Secretary of the Department of Homeland Security
Defendant L. FRANCIS CISSNA as Directory of United States Citizenship and Immigration Services

ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant JOHN LAFFERTY Asylum Division Chief, U.S. Citizenship and Immigration Services
Defendant KEVIN K. MCALEENAN 18cv2838; In his official capacity as Commissioner of U.S. Customs and Border Protection

Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address)

Defendant RONALD D. VITIELLO 18cv2838; In his official capacity as Acting Director of Immigration and Customs Enforcement
Defendant JAMES MCHENRY 18cv2838; In his official capacity as Director of the Executive Office for Immigration Review
Defendant U.S. DEPARTMENT OF JUSTICE 18cv2838

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. CITIZENSHIP AND IMMIGRATION SERVICES 18cv2838
Defendant U.S. CUSTOMS AND BORDER PROTECTION 18cv2838

Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. IMMIGRATION AND CUSTOM ENFORCEMENT 18cv2838
Defendant EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 18cv2838
Defendant U.S. DEPARTMENT OF HOMELAND SECURITY 18cv2838

Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address)

Amicus OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Amicus PATICK J. LEAHY Senator
Amicus RON WYDEN Senator
Amicus SHELDON WHITEHOUSE Senator
Amicus RICHARD BLUMENTHAL Senator

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryne Marie Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick William Pearsall ALLEN & OVERY LLP 1101 New York Avenue, NW Washington, DC 20005 202−683−3800 Fax: 202−683−3999 Email: patrick.pearsall@allenovery.com ATTORNEY TO BE NOTICED
Vaishalee V. Yeldandi JENNER & BLOCK LLP 353 North Clark Street Chicago, IL 60654−3456 (312) 840−7378 Fax: (312) 527−0484 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Susan Baker Manning MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004−2541 (202) 373−6172 Fax: (202) 373−6472 Email: susan.manning@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Baker Manning (See above for address)

Amicus JEFF MERKLEY
Amicus CORY BOOKER Senator
Amicus KAMALA D. HARRIS Senator
Amicus IMMIGRATION REFORM LAW INSTITUTE

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Baker Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence J. Joseph LAW OFFICE OF LAWRENCE J. JOSEPH 1250 Connecticut Avenue, NW Suite 700−1A Washington, DC 20036 (202) 355−9452 Fax: (202) 318−2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/20/2018
11/20/2018
11/20/2018 11/20/2018
11/20/2018 11/21/2018

# Docket Text
1 COMPLAINT against LEE FRANCIS CISSNA, JOHN LAFFERTY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, MATTHEW G. WHITAKER ( Filing fee $ 400, receipt number 4616095599) filed by K.S., G.Z., D.S., O.A., C.A., A.V.. (Attachments: # 1 Civil Cover Sheet)(ztd) (Entered: 11/21/2018)
2 MOTION to Proceed Under Pseudonym by A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Additional attachment(s) added on 11/21/2018: # 1 List, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Text of Proposed Order) (ztd). (Entered: 11/21/2018)
3 Memorandum and ORDER re 2 MOTION to Proceed Under Pseudonym filed by O.A., K.S., D.S., G.Z., A.V., C.A.. Signed by Chief Judge Beryl A. Howell on 11/20/18. (ztd) (Entered: 11/21/2018)
4 SEALED DOCUMENT (Main Document − List) filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration)(ztd) (Entered: 11/21/2018)
SUMMONS Not Issued as to LEE FRANCIS CISSNA, JOHN LAFFERTY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, MATTHEW G. WHITAKER (ztd) Modified date filed on 12/3/2018 (ztd). (Entered: 12/03/2018)
5 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.V., C.A., D.S., G.Z., K.S., O.A. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Text of Proposed Order, # 7 Certificate of

11/21/2018 11/21/2018 11/23/2018 11/23/2018
11/25/2018 11/26/2018 11/27/2018 11/29/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018
12/03/2018

Service)(Hentoff, Thomas) (Entered: 11/21/2018)
6 MOTION for Temporary Restraining Order by A.V., C.A., D.S., G.Z., K.S., O.A. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Text of Proposed Order)(Hentoff, Thomas). Added MOTION for Preliminary Injunction on 11/26/2018 (ztd). (Entered: 11/21/2018)
7 STANDING ORDER: The parties are hereby ORDERED to comply with the directives set forth in this Court's Standing Order. See document for details. Signed by Judge Randolph D. Moss on 11/21/2018. (lcrdm1, ) (Entered: 11/21/2018)
8 Unopposed MOTION for Briefing Schedule by O.A. (Attachments: # 1 Text of Proposed Order)(Oberwetter, Ellen) (Entered: 11/23/2018)
MINUTE ORDER: Upon consideration of Plaintiffs' unopposed motion for briefing schedule, Dkt. 8 , it is hereby ORDERED that the motion is GRANTED. Defendants' response shall be filed on or before Friday, December 7, 2018, and Plaintiffs' reply shall be filed on or before Friday, December 14, 2018. It is further ORDERED that the parties shall meet and confer about the date of a hearing on Plaintiffs' TRO motion and shall file proposed dates on or before Friday, November 30, 2018. Signed by Judge Randolph D. Moss on 11/23/2018. (lcrdm1, ) (Entered: 11/23/2018)
MINUTE ORDER: Upon consideration of Plaintiffs' Sealed Motion for Leave to File Document Under Seal, Dkt. 5 , it is hereby ORDERED that the motion is GRANTED. Signed by Judge Randolph D. Moss on 11/25/2018. (lcrdm1, ) (Entered: 11/25/2018)
Set/Reset Deadlines: Defendants' response shall be filed on or before 12/7/2018: Plaintiffs' reply shall be filed on or before 12/14/2018; Joint proposed dates regarding hearing on TRO motion due by 11/30/2018. (kt) (Entered: 11/26/2018)
9 REQUEST FOR SUMMONS TO ISSUE filed by K.S., G.Z., D.S., O.A., C.A., A.V..(Hentoff, Thomas) (Entered: 11/27/2018)
10 SUMMONS (5) Issued Electronically as to LEE FRANCIS CISSNA, JOHN LAFFERTY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, MATTHEW G. WHITAKER. (ztd) (Entered: 11/29/2018)
11 RESPONSE TO ORDER OF THE COURT re Order on Motion for Briefing Schedule,, Plaintiffs' Submission in Response to Court's November 23, 2018 Minute Order Regarding Proposed TRO Hearing Dates filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (Hentoff, Thomas) (Entered: 11/30/2018)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DONALD J. TRUMP served on 11/30/2018 (Hentoff, Thomas) (Entered: 11/30/2018)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KRISTJEN M. NIELSEN served on 11/30/2018 (Hentoff, Thomas) (Entered: 11/30/2018)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. LEE FRANCIS CISSNA served on 11/30/2018 (Hentoff, Thomas) (Entered: 11/30/2018)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JOHN LAFFERTY served on 11/30/2018 (Hentoff, Thomas) (Entered: 11/30/2018)
16 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/30/2018. (Hentoff, Thomas) (Entered: 11/30/2018)
MINUTE ORDER: Upon consideration of Plaintiffs' submission, Dkt. 11 , it is hereby ORDERED that the parties shall appear for a hearing on Plaintiffs' TRO motion on Monday, December 17, 2018, at 10:00 a.m. in Courtroom 21. It is further ORDERED that the date previously set for Plaintiffs to file their reply brief is VACATED, and Plaintiffs shall now file their reply brief on or before Wednesday, December 12, 2018. Signed by Judge Randolph D. Moss on 11/30/2018. (lcrdm1, ) (Entered: 11/30/2018)
Set/Reset Deadlines/Hearings: Motion Hearing re: 6 Motion for Temporary Restraining Order set for 12/17/2018, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. Plaintiff's reply brief due by 12/12/2018. (kt) (Entered:

12/06/2018 12/06/2018 12/06/2018
12/06/2018 12/07/2018
12/07/2018 12/07/2018 12/07/2018
12/12/2018 12/13/2018
12/14/2018 12/14/2018
12/14/2018 12/14/2018

12/03/2018)
17 NOTICE of Appearance by Thomas Benton York on behalf of All Defendants (York, Thomas) (Main Document 17 replaced on 12/7/2018) (ztd). (Entered: 12/06/2018)
18 NOTICE of Appearance by Patrick William Pearsall on behalf of OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (Pearsall, Patrick) (Entered: 12/06/2018)
19 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Vaishalee V. Yeldandi, :Firm− Jenner & Block LLP, :Address− 353 N. Clark Street, Chicago, IL 60654. Phone No. − 312−840−7378. Fax No. − 312−527−0484 Filing fee $ 100, receipt number 0090−5826292. Fee Status: Fee Paid. by OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Pearsall, Patrick) (Entered: 12/06/2018)
20 Unopposed MOTION for Leave to File Brief as Amicus Curiae by OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order)(Pearsall, Patrick) (Entered: 12/06/2018)
MINUTE ORDER: Upon consideration of the unopposed motion of the Office of the United Nations High Commissioner for Refugees for leave to file brief as amicus curiae, Dkt. 20 , the motion is hereby GRANTED. The brief, Dkt. [20−1], shall be deemed FILED. Signed by Judge Randolph D. Moss on 12/7/2018. (lcrdm1, ) (Entered: 12/07/2018)
MINUTE ORDER: Upon consideration of the motion for leave to appear pro hac vice, Dkt. 19 , it is hereby ORDERED that the motion is GRANTED. Vaishalee V. Yeldandi is hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 12/7/2018. (lcrdm1, ) (Entered: 12/07/2018)
21 AMICUS BRIEF by OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES. (ztd) (Entered: 12/07/2018)
22 Memorandum in opposition to re 6 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by L. FRANCIS CISSNA, JOHN LAFFERTY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, MATTHEW G. WHITAKER. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration, # 8 Declaration, # 9 Declaration, # 10 Text of Proposed Order)(Reuveni, Erez) (Entered: 12/07/2018)
23 REPLY to opposition to motion re 6 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (Hentoff, Thomas) (Entered: 12/12/2018)
24 MOTION for Leave to File Brief as Amici Curiae by PATRICK J. LEAHY, RON WYDEN, SHELDON WHITEHOUSE, RICHARD BLUMENTHAL, JEFF MERKLEY, CORY BOOKER, KAMALA D. HARRIS (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order)(Manning, Susan); Modified text on 12/14/2018 (tth). (Entered: 12/13/2018)
25 NOTICE of Appearance by Susan Baker Manning on behalf of PATRICK J. LEAHY (Manning, Susan); Modified text on 12/14/2018 (ztth). (Entered: 12/14/2018)
MINUTE ORDER: Upon consideration of the unopposed motion of Senators Patrick J. Leahy, Ron Wyden, Sheldon Whitehouse, Richard Blumenthal, Jeff Merkley, Cory Booker, and Kamala D. Harris for leave to file brief as amicus curiae, Dkt. 24 , the motion is hereby GRANTED. The brief, Dkt. [24−1], shall be deemed FILED. Signed by Judge Randolph D. Moss on 12/14/2018. (lcrdm1, ) (Entered: 12/14/2018)
26 NOTICE of Appearance by Susan Baker Manning on behalf of RICHARD BLUMENTHAL, CORY BOOKER, KAMALA D. HARRIS, JEFF MERKLEY, SHELDON WHITEHOUSE, RON WYDEN (Manning, Susan) Modified text to correct spelling on 12/14/2018 (ztd). (Entered: 12/14/2018)
27 NOTICE of Appearance by Scott Grant Stewart on behalf of All Defendants (Stewart, Scott) (Entered: 12/14/2018)

12/14/2018 12/15/2018 12/15/2018 12/15/2018 12/15/2018 12/15/2018 12/17/2018 12/17/2018
12/17/2018 12/18/2018 12/18/2018 12/18/2018
12/18/2018

34 AMICUS BRIEF by RICHARD BLUMENTHAL, CORY BOOKER, KAMALA D. HARRIS, PATICK J. LEAHY, JEFF MERKLEY, SHELDON WHITEHOUSE, RON WYDEN. (ztd) (Entered: 12/17/2018)
28 NOTICE of Certification Pursuant to LCvR 83.2(g) −− Eleni Rebecca Bakst by A.V., C.A., D.S., G.Z., K.S., O.A. (Hentoff, Thomas) (Entered: 12/15/2018)
29 NOTICE of Certification Pursuant to LCvR 83.2(g) −− Gianna Borroto by A.V., C.A., D.S., G.Z., K.S., O.A. (Hentoff, Thomas) (Entered: 12/15/2018)
30 NOTICE of Certification Pursuant to LCvR 83.2(g) −− Matthew D. Heins by A.V., C.A., D.S., G.Z., K.S., O.A. (Hentoff, Thomas) (Entered: 12/15/2018)
31 NOTICE of Certification Pursuant to LCvR 83.2(g) −− Anwen Hughes by A.V., C.A., D.S., G.Z., K.S., O.A. (Hentoff, Thomas) (Entered: 12/15/2018)
32 NOTICE of Certification Pursuant to LCvR 83.2(g) −− Charles George Roth by A.V., C.A., D.S., G.Z., K.S., O.A. (Hentoff, Thomas) (Entered: 12/15/2018)
33 NOTICE of Appearance by Christina Greer on behalf of L. FRANCIS CISSNA, JOHN LAFFERTY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, MATTHEW G. WHITAKER (Greer, Christina) (Entered: 12/17/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Motion Hearing held on 12/17/2018 re: 6 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by O.A., K.S., D.S., G.Z., A.V., C.A. The 6 Motion is HELD IN ABEYANCE. The Court ORDERS that this case and case no. 18cv2838 be CONSOLIDATED, with this case being designated as the lead case. The parties shall meet and confer as to a proposed schedule going forward. Plaintiffs to file an Amended Complaint by end of day on 12/18/2018. (Court Reporter: Jeff Hook.) (kt) (Entered: 12/17/2018)
MINUTE ORDER: The parties are hereby ORDERED to appear for a status conference at 10:00 a.m. on Friday, December 21, 2018, in Courtroom 21 to discuss further proceedings in this matter. Signed by Judge Randolph D. Moss on 12/17/2018. (lcrdm1, ) (Entered: 12/17/2018)
Set/Reset Hearings: Status Conference set for 12/21/2018, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 12/18/2018)
35 NOTICE of Appearance by Ana C. Reyes on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (Reyes, Ana) (Entered: 12/18/2018)
36 NOTICE of filing of Plaintiffs' notices of appearance and order of expedited removal by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER (Reuveni, Erez) (Entered: 12/18/2018)
37 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Form I−860 Order of Expedited Removal, # 2 Exhibit Form I−213 Record of Removable Alien, # 3 Exhibit Notice to Appear, # 4 Exhibit Notice to Appear, # 5 Exhibit Notice to Appear, # 6 Exhibit Notice to Appear, # 7 Exhibit Notice to Appear, # 8 Exhibit Notice to Appear, # 9 Exhibit Notice to Appear, # 10 Exhibit Additional Hearing Notices)(Reuveni, Erez) (Entered: 12/18/2018)

12/18/2018 12/18/2018 12/18/2018
12/18/2018 12/18/2018
12/19/2018 12/19/2018
12/19/2018 12/19/2018 12/20/2018 12/21/2018

38 ENTERED IN ERROR. . . . .NOTICE of Certification Pursuant to LCvR 83.2(g) −− Vanessa O. Omoroghomwan by A.V., C.A., D.S., G.Z., K.S., O.A. (Hentoff, Thomas) Modified on 12/19/2018 (ztd). (Entered: 12/18/2018)
MINUTE ORDER: Upon consideration of Defendants' sealed motion for leave to file under seal, Dkt. 37 , the motion is hereby GRANTED. Signed by Judge Randolph D. Moss on 12/18/2018. (lcrdm1, ) (Entered: 12/18/2018)
39 AMENDED COMPLAINT against All Defendants filed by R.S.P.S., S.M.S.R., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, S.M.S.R., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., R.S.P.S..Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Bernick, Justin) (Entered: 12/18/2018)
40 AMENDED COMPLAINT against L. FRANCIS CISSNA, JOHN LAFFERTY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, MATTHEW G. WHITAKER filed by G.Z., O.A., K.S., D.S., C.A., A.V..(Hentoff, Thomas) (Entered: 12/18/2018)
44 SEALED DOCUMENT filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 12/19/2018)
NOTICE OF ERROR re 38 Notice (Other); emailed to thentoff@wc.com, cc'd 25 associated attorneys −− The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. Please refile document, 3. Each attorney must use their own CMECF password to electronically file. (ztd, ) (Entered: 12/19/2018)
41 TRANSCRIPT OF MOTION HEARING before Judge Randolph D. Moss held on December 17, 2018. Page Numbers: 1 − 155. Date of Issuance: December 19, 2018. Court Reporter: Jeff Hook. Contact Information: 202−354−3373 / jeff_hook@dcd.uscourts.gov. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 1/9/2019. Redacted Transcript Deadline set for 1/19/2019. Release of Transcript Restriction set for 3/19/2019.(Hook, Jeff) (Entered: 12/19/2018)
42 REQUEST FOR SUMMONS TO ISSUE filed by G.Z., O.A., K.S., D.S., C.A., A.V..(Hentoff, Thomas) (Entered: 12/19/2018)
43 SUMMONS (1) Issued Electronically for Amended Complaint as to U.S. Attorney (ztd) (Entered: 12/19/2018)
45 NOTICE of Appearance by Mary Beth Hickcox−Howard on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (Hickcox−Howard, Mary Beth) (Entered: 12/20/2018)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 12/21/2018. The 6 Motion for Temporary Restraining Order and Preliminary Injunction are HELD IN ABEYANCE. The parties may file supplemental

12/21/2018 12/26/2018 12/26/2018 12/27/2018
01/02/2019

briefs/additional motions on or before 12/28/2018; Opposition briefs due 1/11/2019; Replies due by 1/17/2019. If there are any other developments, the parties shall confer and file a joint status report. (Court Reporter: Jeff Hook.) (kt) (Entered: 12/21/2018)
MINUTE ORDER: In light of the telephone conference with the parties on December 21, 2018, the following schedule shall govern further proceedings in this case: (1) Plaintiffs shall file their combined motions for summary judgment and motions with respect to class certification on or before January 4, 2019 (limited to 30 pages for each Plaintiff group); (2) Defendants shall file their combined opposition to Plaintiffs' motions and and their cross−motion on or before January 18, 2019 (limited to 60 pages); (3) Plaintiffs shall file their combined opposition to Defendants' cross−motion and reply on or before February 1, 2019 (limited to 30 pages for each Plaintiff group); and (4) Defendants shall file their final reply in support of their cross−motion on or before February 8, 2019 (limited to 30 pages). Defendants shall promptly provide Plaintiffs with a copy of the administrative record, and shall file a certified copy of the administrative record with the Court on or before January 4, 2019. Signed by Judge Randolph D. Moss on 12/21/2018. (lcrdm1, ) Modified on 12/26/2018 to correct date/year for one of the deadlines (kt). (Entered: 12/21/2018)
Set/Reset Deadlines: Plaintiffs shall file their combined motions for summary judgment and motions with respect to class certification on or before 1/4/2019; Defendants shall file their combined opposition to Plaintiffs' motions and and their cross−motion on or before 1/18/2019; Plaintiffs shall file their combined opposition to Defendants' cross−motion and reply on or before 2/1/2019; Defendants shall file their final reply in support of their cross−motion on or before 2/8/2019; Defendants certified copy of the administrative record due on or before 1/4/2019. (kt) (Entered: 12/26/2018)
46 MOTION to Stay by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER (Attachments: # 1 Text of Proposed Order)(Reuveni, Erez) (Entered: 12/26/2018)
MINUTE ORDER: Upon consideration of Defendants' Motion to Stay, Dkt. 46 , it is hereby ordered that the motion is GRANTED in part and DENIED in part. The motion is GRANTED with respect to Defendants' request to stay production of the certified administrative record, on the understanding that the record will be identical to that produced in the East Bay litigation. With respect to Defendants' request to stay current briefing deadlines, the motion is DENIED. Although the Court is mindful of the current lapse in appropriations, where there is "some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property," government functions may continue. 43 Op. Att'y Gen. 293 (January 16, 1981). Plaintiffs allege that this is just such a case. The Court further notes that, according to government reports, 48% of employees from the Executive Office for Immigration Review are excepted "to process all immigration cases and appeals involving detained aliens," U.S. Department of Justice FY 2019 Contingency Plan at 5; see also id. at 12, and approximately 91% of Customs and Border Protection employees and 81% of Immigration and Customs Enforcement employees will be retained during a lapse in appropriations. See U.S. Department of Homeland Security, Procedures Relating to a Lapse in Appropriations, at 35−37 (Dec. 17, 2018). Signed by Judge Randolph D. Moss on 12/27/2018. (lcrdm1, ) (Entered: 12/27/2018)
47 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Adina Appelbaum, :Firm− CAIR Coalition, :Address− 1612 K Street NW Suite 204, Washington, DC 20006. Phone No. − 202−899−1412. Fax No. − 202−331−3341 Filing fee $ 100, receipt number 0090−5866257. Fee Status: Fee Paid. by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R. (Attachments: # 1 Declaration of Adina Appelbaum)(Welborn, Kaitlin) (Entered: 01/02/2019)

01/03/2019 01/03/2019 01/04/2019 01/04/2019 01/04/2019
01/04/2019
01/04/2019
01/04/2019 01/04/2019 01/04/2019 01/04/2019 01/04/2019

48 NOTICE of Voluntary Dismissal re Z.A.G.G. & D.A.L.G. (Bernick, Justin) (Entered: 01/03/2019)
MINUTE ORDER: Upon consideration of the motion for leave to appear pro hac vice, Dkt. 47 , it is hereby ORDERED that the motion is GRANTED. Adina Appelbaum is hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 1/3/2019. (lcrdm1, ) (Entered: 01/03/2019)
MINUTE ORDER: Upon consideration of the notice of voluntary dismissal, Dkt. 48 , it is hereby ORDERED that Plaintiffs Z.A.G.G. and D.A.L.G. are dismissed from this matter without prejudice. Signed by Judge Randolph D. Moss on 1/4/2019. (lcrdm1, ) (Entered: 01/04/2019)
49 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/28/2018. Answer due for ALL FEDERAL DEFENDANTS by 2/26/2019. (Heins, Matthew) (Entered: 01/04/2019)
50 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.V., C.A., D.S., G.Z., K.S., O.A. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Plaintiff OA (Original), # 2 Declaration of Plaintiff OA (Supplemental), # 3 Declaration of Plaintiff AV (Original), # 4 Declaration of Plaintiff AV (Supplemental), # 5 Declaration of Plaintiff GZ (Original), # 6 Declaration of Plaintiff GZ (Supplemental), # 7 Declaration of Plaintiff DS (Original), # 8 Declaration of Plaintiff DS (Supplemental), # 9 Declaration of Plaintiff DR, # 10 Declaration of Plaintiff PR, # 11 Declaration of Plaintiff GR, # 12 Text of Proposed Order Granting Motion to File Under Seal)(Hentoff, Thomas) (Entered: 01/04/2019)
51 MOTION to Certify Class , MOTION for Summary Judgment by A.V., C.A., D.S., G.Z., K.S., O.A. (Attachments: # 1 Statement of Facts, # 2 Declaration of Plaintiff OA (Redacted Original), # 3 Declaration of Plaintiff OA (Redacted Supplemental), # 4 Declaration of Plaintiff AV (Redacted Original), # 5 Declaration of Plaintiff AV (Redacted Supplemental), # 6 Declaration of Plaintiff GZ (Redacted Original), # 7 Declaration of Plaintiff GZ (Redacted Supplemental), # 8 Declaration of Plaintiff DS (Redacted Original), # 9 Declaration of Plaintiff DS (Redacted Supplemental), # 10 Declaration of Plaintiff DR, # 11 Declaration of Plaintiff PR, # 12 Declaration of Plaintiff GR, # 13 Declaration of Ana C. Reyes, # 14 Declaration of Hardy Vieux, # 15 Declaration of Charles G. Roth, # 16 Text of Proposed Order Granting Class Certification and Summary Judgment)(Hentoff, Thomas) (Entered: 01/04/2019)
52 MOTION to Certify Class , MOTION for Summary Judgment by A.J.A.C., A.J.E.A.M., C.S.C.C., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, K.P.P.V., L.C.V.R, N.A.G.A., R.D.P.V., R.G.G., R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., Y.A.L.P. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Decl. of LCVR, # 4 Declaration Decl. of RGG, # 5 Declaration Decl. of AJAC, # 6 Declaration Decl. of KPPV, # 7 Declaration Decl. of YALP, # 8 Declaration Decl. of K. Welborn, # 9 Declaration Decl. of J. Bernick, # 10 Declaration Decl. of M. Govindaiah, # 11 Declaration Decl. of A. Appelbaum, # 12 Declaration Decl. of S. Fluharty, # 13 Text of Proposed Order, # 14 Certificate of Service)(Bernick, Justin) (Entered: 01/04/2019)
53 NOTICE of Appearance pursuant to 83.2(g) by Matthew D. Heins on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
54 NOTICE of Appearance pursuant to 83.2(g) by Ruben Loyo on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
55 NOTICE of Appearance pursuant to 83.2(g) by Vanessa O. Omoroghomwan on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
56 NOTICE of Appearance pursuant to 83.2(g) by Charles L. Mccloud on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
57 NOTICE of Appearance pursuant to 83.2(g) by Gianna Borroto on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)

01/04/2019 01/04/2019 01/04/2019 01/07/2019 01/07/2019
01/28/2019 01/28/2019 01/28/2019
02/01/2019
02/03/2019
02/04/2019
02/15/2019

58 NOTICE of Appearance pursuant to 83.2(g) by Anwen Hughes on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
59 NOTICE of Appearance pursuant to 83.2(g) by Eleni R. Bakst on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
60 NOTICE of Appearance pursuant to 83.2(g) by Charles G. Roth on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (ztd) (Entered: 01/11/2019)
NOTICE of Hearing: Telephone Conference set for 1/7/2019, at 4:00 PM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 01/07/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Telephone Conference held on 1/7/2019. Defendants shall provide immediate notice to this Court if the stay in the 9th Circuit is lifted or modified in any way, as well as if it files anything in another court related to this issue. Defendants shall also provide notice regarding expending appropriated funds with respect to the rule−making process. Defendants' 46 Motion to Stay is GRANTED, for the reasons stated on the record. (Court Reporter: Jeff Hook.) (kt) (Entered: 01/07/2019)
MINUTE ORDER: Given that funding has been restored for the Department of Justice, it is hereby ORDERED that the stay in this case is lifted. It is further ORDERED that the parties shall meet and confer and submit a joint status report, on or before Friday, February 1, 2019, that includes a proposed briefing schedule taking into account the duration of the lapse in appropriations. Signed by Judge Randolph D. Moss on 1/28/2019. (lcrdm1, ) (Entered: 01/28/2019)
Set/Reset Deadlines: Joint Status Report due by 2/1/2019. (kt) (Entered: 01/28/2019)
61 NOTICE concerning lapse in funding and other cases by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER re Telephone Conference,, Order, (Attachments: # 1 Notice in 18−18274, # 2 Notice in 17−17436)(Reuveni, Erez) (Entered: 01/28/2019)
62 Joint STATUS REPORT by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. (Reuveni, Erez) (Entered: 02/01/2019)
MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 62 , it is hereby ORDERED that the government shall serve a certified administrative record on Plaintiffs on or before February 18, 2019; the government shall file its opposition and cross−motion on or before February 25, 2019; Plaintiffs shall file their opposition and reply on or before March 18, 2019; and the government shall file its final reply on or before March 29, 2019. Signed by Judge Randolph D. Moss on 2/3/2019. (lcrdm1, ) (Entered: 02/03/2019)
63 NOTICE by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER (Attachments: # 1 Exhibit)(Reuveni, Erez) (Entered: 02/04/2019)
64 ADMINISTRATIVE RECORD Notice of Electronic Filing by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S.

02/25/2019 02/25/2019 02/25/2019 02/25/2019 02/26/2019

CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER, L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. (Attachments: # 1 Exhibit Index − Administrative Record, # 2 Exhibit EOIR Certification − Administrative Record, # 3 Exhibit DHS Certification − Administrative Record, # 4 Exhibit Administrative Record)Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Gray, Kathryne) (Entered: 02/15/2019)
65 Memorandum in opposition to re (52 in 1:18−cv−02718−RDM, 52 in 1:18−cv−02718−RDM) MOTION to Certify Class MOTION for Summary Judgment , (51 in 1:18−cv−02718−RDM, 51 in 1:18−cv−02718−RDM) MOTION to Certify Class MOTION for Summary Judgment filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN. (Attachments: # 1 Statement of Facts Response to Plaintiffs' Statements of Facts)Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Darrow, Joseph) (Entered: 02/25/2019)
66 Cross MOTION for Summary Judgment by JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER (Attachments: # 1 Statement of Facts Response to Plaintiffs' Statements of Facts)(Darrow, Joseph) (Entered: 02/25/2019)
67 SEALED DOCUMENT filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER re 65 Memorandum in Opposition,, 66 Cross MOTION for Summary Judgment (This document is SEALED and only available to authorized persons.)(Darrow, Joseph) (Entered: 02/25/2019)
68 SEALED DOCUMENT filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER re 65 Memorandum in Opposition,, 66 Cross MOTION for Summary Judgment (This document is SEALED and only available to authorized persons.)(Darrow, Joseph) (Entered: 02/25/2019)
69 SEALED DOCUMENT filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER re 65 Memorandum in Opposition,, 68 Sealed Document,, 66 Cross MOTION for Summary Judgment (This document is SEALED and only available to authorized persons.)(Darrow, Joseph) (Entered: 02/26/2019)

03/13/2019 03/15/2019 03/15/2019 03/18/2019 03/18/2019 03/18/2019 03/18/2019 03/29/2019
04/29/2019 05/08/2019 05/13/2019

70 Consent MOTION for Leave to File Amicus Brief in Support of Federal Defs by IMMIGRATION REFORM LAW INSTITUTE (Attachments: # 1 Memorandum in Support Proposed Amicus Brief, # 2 Text of Proposed Order Proposed Order)Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Joseph, Lawrence) (Entered: 03/13/2019)
MINUTE ORDER: Upon consideration of the consent motion of the Immigration Reform Law Institute for leave to file brief as amicus curiae, Dkt. 70 , it is hereby ORDERED that the motion is GRANTED. The brief, Dkt. [70−1], shall be deemed filed. Signed by Judge Randolph D. Moss on 3/15/2019. (lcrdm1, ) (Entered: 03/15/2019)
71 AMICUS BRIEF by IMMIGRATION REFORM LAW INSTITUTE. (ztd) (Entered: 03/15/2019)
72 REPLY to opposition to motion re 52 MOTION to Certify Class MOTION for Summary Judgment filed by A.J.A.C., A.J.E.A.M., C.S.C.C., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, K.P.P.V., L.C.V.R, N.A.G.A., R.D.P.V., R.G.G., R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., Y.A.L.P.. (Bernick, Justin) (Entered: 03/18/2019)
73 REPLY to opposition to motion re 51 MOTION to Certify Class MOTION for Summary Judgment filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (Attachments: # 1 Statement of Facts Reply Supporting Statement of Material Facts)(Hentoff, Thomas) (Entered: 03/18/2019)
74 Memorandum in opposition to re 66 Cross MOTION for Summary Judgment filed by A.J.A.C., A.J.E.A.M., C.S.C.C., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, K.P.P.V., L.C.V.R, N.A.G.A., R.D.P.V., R.G.G., R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., Y.A.L.P.. (See Docket Entry 72 to view document). (znmw) (Entered: 03/19/2019)
75 Memorandum in opposition to re 66 Cross MOTION for Summary Judgment filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (See Docket Entry 73 to view document). (znmw) (Entered: 03/19/2019)
76 REPLY to opposition to motion re (66 in 1:18−cv−02718−RDM) Cross MOTION for Summary Judgment filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER, L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. (Attachments: # 1 Exhibit A, NTAs for L.V.C.R. & C.S.C.C., # 2 Exhibit B, NTAs for R.G.G. & N.A.G.A., # 3 Exhibit C, Defendants Response to Plaintiffs Reply Concerning Statement of Material Facts)(York, Thomas) (Entered: 03/29/2019)
77 NOTICE of Change of Address by Elizabeth Hagerty (Hagerty, Elizabeth) (Entered: 04/29/2019)
MINUTE ORDER: The Court intends to hear oral argument on the parties' pending motions at 9:30 a.m. in Courtroom 21 on either May 29, 2019, or May 31, 2019. The Court requests that the parties be prepared to appear at these times, and will notify the parties regarding which day to appear as soon as possible. Signed by Judge Randolph D. Moss on 5/8/2019. (lcrdm1, ) (Entered: 05/08/2019)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear for oral argument on their pending motions on May 29, 2019, at 9:30 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 5/13/2019. (lcrdm1, ) (Entered: 05/13/2019)

05/14/2019 05/21/2019
05/21/2019 05/24/2019 05/24/2019 05/28/2019
05/29/2019

Set/Reset Hearings: Motion Hearing set for 5/29/2019, at 9:30 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 05/14/2019)
MINUTE ORDER: Local Rule 7(h) provides that no Statement of Material Facts is necessary in cases in which judicial review is based solely on the administrative record. LCvR 7(h)(2). Because the parties have taken positions as to justiciability that rely on facts outside of the administrative record, however, this is not such a case. See, e.g., Chesapeake Climate Action Network v. Export−Import Bank of the U.S., 78 F. Supp. 3d 208, 217 (D.D.C. 2015) ("Although judicial review of agency action is typically confined to the administrative record, where there is not sufficient evidence of standing in the record because the question was not before the agency, plaintiffs may submit extra−record evidence to establish standing."). Accordingly, it is hereby ORDERED that the Government shall file a response to Plaintiffs' statements of material facts not in dispute, Dkt. 51−1; Dkt. 52−2, on or before May 28, 2019, at 2:00 p.m. Signed by Judge Randolph D. Moss on 5/21/2019. (lcrdm1, ) (Entered: 05/21/2019)
Set/Reset Deadlines: Government's Response due by 5/28/2019, at 2:00 PM. (kt) (Entered: 05/21/2019)
MINUTE ORDER: In light of the parties' discussion of Pereira v. Sessions, 138 S. Ct. 2105 (2018), it is hereby ORDERED that the Government shall file any updated information regarding the Notices to Appear ("NTA") and/or notices of hearing dates for each of the Plaintiffs on or before May 28, 2019. The Court notes that for Plaintiffs D.R., P.R., G.R., L.C.V.R., C.S.C.C., R.G.G., N.A.G.A., K.P.P.V., R.D.P.V., A.J.E.A.M., and Y.A.L.P., the Government has not submitted documentation of notices of hearing dates, although it asserts that "each individual Plaintiff who was issued an NTA has also received a notice of hearing date." Dkt. 66 at 39. Signed by Judge Randolph D. Moss on 5/24/2019. (lcrdm1, ) (Entered: 05/24/2019)
Set/Reset Deadlines: The Government shall file any updated information regarding the Notices to Appear ("NTA") and/or notices of hearing dates for each of the Plaintiffs on or before 5/28/2019. (kt) (Entered: 05/24/2019)
78 SEALED DOCUMENT filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER re Order,, Order,,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Ex. A (D.S. & C.A. Hearing Notices), # 2 Exhibit Ex. B (Decl. of Burgus), # 3 Exhibit Ex. C (G.Z. Hearing Notices), # 4 Exhibit Ex. D − Decl. of Hale, # 5 Exhibit Ex. E D.R. Hearing Notices, # 6 Exhibit Ex. F Decl. of Johnson, # 7 Exhibit Ex. G P.R. Hearing Notices, # 8 Exhibit Ex. H G.R. Hearing Notices and Other Documents, # 9 Exhibit Ex. I NTA for A.V., # 10 Exhibit Ex. J S.M.S.R. and R.S.P.S. Worksheets and Hearing Notices, # 11 Exhibit Ex. K − L.V.C.R. and C.S.C.C. Worksheets and Hearing Notices, # 12 Exhibit Ex. L R.G.G. and N.A.G.A. Hearing Notices, # 13 Exhibit Ex. M − A.J.E.A.M. Worksheet and Hearing Notices, # 14 Exhibit Ex. N − K.P.P.V. and R.D.P.V. Worksheet and Hearing Notices, # 15 Exhibit Ex. O Y.A.L.P. Hearing Notices)(Gray, Kathryne) (Entered: 05/28/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Motion Hearing held on 5/29/2019 re: 51 MOTION to Certify Class MOTION for Summary Judgment filed by K.S., O.A., D.S., G.Z., A.V., C.A., 52 MOTION to Certify Class MOTION for Summary Judgment filed by A.J.A.C., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., K.P.P.V., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, N.A.G.A., S.M.S.R., R.S.P.S., Y.A.L.P., R.D.P.V., A.J.E.A.M., L.C.V.R, R.G.G., C.S.C.C., and 66 Cross MOTION for Summary Judgment filed by KEVIN K. MCALEENAN, DONALD J. TRUMP, KRISTJEN M. NIELSEN, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF JUSTICE, RONALD D. VITIELLO, JOHN LAFFERTY, MATTHEW G. WHITAKER, U.S. DEPARTMENT OF HOMELAND SECURITY, JAMES MCHENRY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. MATTERS TAKEN UNDER

06/04/2019
06/05/2019 06/12/2019
06/12/2019 06/14/2019 06/27/2019 06/27/2019

ADVISMENT. Plaintiff's Supplemental Brief, 10 pages or less, due by 6/5/2019; Government's Response, 10 pages or less, due by 6/12/2019. (Court Reporter Jeff Hook.) (kt) (Entered: 05/29/2019)
79 TRANSCRIPT OF MOTION HEARING before Judge Randolph D. Moss held on May 29, 2019. Page Numbers: 1 − 112. Date of Issuance: June 4, 2019. Court Reporter: Jeff Hook. Telephone number: 202−354−3373. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced a bove. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 6/25/2019. Redacted Transcript Deadline set for 7/5/2019. Release of Transcript Restriction set for 9/2/2019.(Hook, Jeff) (Entered: 06/04/2019)
80 SUPPLEMENTAL MEMORANDUM to re 51 MOTION to Certify Class MOTION for Summary Judgment filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (Attachments: # 1 Declaration Declaration of A. Welsh)(Hentoff, Thomas) (Entered: 06/05/2019)
81 SUPPLEMENTAL MEMORANDUM to Defendants' Cross−Motion for Summary Judgment filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER, L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Gray, Kathryne) (Entered: 06/12/2019)
82 SEALED DOCUMENT filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER re 81 Supplemental Memorandum,,, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Exhibit 2 to Defendants' Supplemental Brief)(Gray, Kathryne) (Entered: 06/12/2019)
83 NOTICE of Appearance by Patricia Stottlemyer on behalf of A.V., C.A., D.S., G.Z., K.S., O.A. (Stottlemyer, Patricia) (Entered: 06/14/2019)
84 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.V., C.A., D.S., G.Z., K.S., O.A. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Exhibit A to Statement Concerning Undisputed Facts)(Hentoff, Thomas) (Entered: 06/27/2019)
85 NOTICE of Statement Concerning Undisputed Facts by A.V., C.A., D.S., G.Z., K.S., O.A. (Attachments: # 1 Exhibit Exhibit A (Redacted))(Hentoff, Thomas) (Entered:

07/01/2019 07/01/2019 07/02/2019
07/17/2019 07/17/2019 07/31/2019 07/31/2019 07/31/2019
07/31/2019

06/27/2019)
MINUTE ORDER: Upon consideration of Plaintiffs' Sealed Motion for Leave to File Under Seal, Dkt. 84 , it is hereby ORDERED that the motion is GRANTED. Signed by Judge Randolph D. Moss on 7/1/2019. (lcrdm1, ) (Entered: 07/01/2019)
86 SEALED DOCUMENT (Exhibit A to Statement Concerning Undisputed Facts) filed by A.V., C.A., D.S., G.Z., K.S., O.A.. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 07/02/2019)
87 SUPPLEMENTAL MEMORANDUM to 85 in Response to O.A. PLAINTIFFS SUPPLEMENTAL STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER, L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Gray, Kathryne) Modified to add linkage on 7/3/2019 (ztd). (Entered: 07/02/2019)
MINUTE ORDER: Counsel is hereby directed promptly to review and, if appropriate, to respond to the Court's minute order just entered in Capital Area Immigrants' Rights Coalition, et al., v. Trump, et al., 19−cv−2117. Signed by Judge Randolph D. Moss on 7/17/2019. (lcrdm1, ) (Entered: 07/17/2019)
88 RESPONSE TO ORDER OF THE COURT by A.V., C.A., D.S., G.Z., K.S., O.A.. (Oberwetter, Ellen) Modified event title on 7/18/2019 (znmw). (Entered: 07/17/2019)
MINUTE ORDER: It is hereby ORDERED that Defendants shall either file their statement of material facts not in genuine dispute, Dkt. 78 , on the public docket, or shall indicate to the Court why it should remain under seal, by 5:00 p.m. today, July 31, 2019. While the Court understands that the exhibits to this statement contain sensitive information and should remain under seal, the statement itself does not appear to contain any such information. Signed by Judge Randolph D. Moss on 7/31/2019. (lcrdm1, ) (Entered: 07/31/2019)
Set/Reset Deadlines: Defendants' response to the court due by 5:00 PM, 7/31/2019. (kt) (Entered: 07/31/2019)
89 NOTICE OF SUPPLEMENTAL AUTHORITY by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER, L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER (Attachments: # 1 Exhibit A)Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Gray, Kathryne) (Entered: 07/31/2019)
90 RESPONSE re Order,, Defendants' Statement of Material Facts filed by L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS

08/02/2019
08/02/2019 08/02/2019 08/02/2019
08/02/2019 09/09/2019 09/30/2019

AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER, L. FRANCIS CISSNA, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN LAFFERTY, KEVIN K. MCALEENAN, JAMES MCHENRY, KRISTJEN M. NIELSEN, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, RONALD D. VITIELLO, MATTHEW G. WHITAKER. Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Gray, Kathryne) (Entered: 07/31/2019)
91 RESPONSE to Government's Notice of Supplemental Authority 89 by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., A.J.A.C., A.J.E.A.M., A.V., C.A., C.S.C.C., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.S., G.Z., K.P.P.V., K.S., L.C.V.R, N.A.G.A., O.A., R.D.P.V., R.G.G., R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., Y.A.L.P. Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Hentoff, Thomas) Modified to add linkage and title on 8/12/2019 (ztd). (Entered: 08/02/2019)
MINUTE ORDER: Upon consideration of Plaintiffs sealed motion for leave to file under seal, Dkt. 50 , it is hereby ORDERED that the motion is GRANTED. The following documents shall be deemed filed, under seal: Dkt. [50−1]; Dkt. [50−2]; Dkt. [50−3]; Dkt. [50−4]; Dkt. [50−5]; Dkt. [50−6]; Dkt. [50−7]; Dkt. [50−8]; Dkt. [50−9]; Dkt. [50−10]; and Dkt. [50−11]. Signed by Judge Randolph D. Moss on 8/2/2019. (lcrdm1, ) (Entered: 08/02/2019)
92 MEMORANDUM OPINION GRANTING in part and DENYING in part Plaintiffs' motions for summary judgment and class certification, Dkt. 51 ; Dkt. 52 ; DENYING Defendants' cross−motion for summary judgment, Dkt. 66 ; and DENYING as moot 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). See document for details. Signed by Judge Randolph D. Moss on 8/2/2019. (lcrdm1, ) (Entered: 08/02/2019)
93 ORDER: It is hereby ORDERED that (1) a class consisting 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," is certified pursuant to Fed. R. Civ. P. 23(b)(2); (2) named Plaintiffs O.A., A.V., K.S., G.Z., C.A., D.S. S.M.S.R., R.S.P.S., L.C.V.R., C.S.C.C., R.G.G., D.A.G.A., A.J.A.C. (on behalf of his minor son, A.J.E.A.M.), K.P.P.V., R.D.P.V., and Y.A.L.P. are designated as class representatives; and (3) counsel for Plaintiffs in the consolidated cases O.A. v. Trump and S.M.S.R. v. Trump are designated as co−counsel for the class. See document for details. Signed by Judge Randolph D. Moss on 8/2/2019. (lcrdm1, ) (Entered: 08/02/2019)
94 ORDER: It is hereby ORDERED that Plaintiffs' motions for summary judgment and class certification, Dkt. 51 ; Dkt. 52 , are GRANTED in part and DENIED in part; Defendants' cross−motion for summary judgment, Dkt. 66 , is DENIED; and 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), are DENIED as moot. See document for details. Signed by Judge Randolph D. Moss on 8/2/2019. (lcrdm1, ) (Entered: 08/02/2019)
95 NOTICE OF WITHDRAWAL OF APPEARANCE as to A.V., C.A., D.S., G.Z., K.S., O.A.. Attorney Eleni R. Bakst terminated. (ztd) (Entered: 09/12/2019)
96 NOTICE OF APPEAL TO DC CIRCUIT COURT by JAMES MCHENRY, KRISTJEN M. NIELSEN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, MATTHEW G. WHITAKER, KEVIN K. MCALEENAN, U.S. DEPARTMENT OF JUSTICE, U.S. CUSTOMS AND BORDER PROTECTION, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, L. FRANCIS CISSNA, U.S. DEPARTMENT OF HOMELAND SECURITY, RONALD D. VITIELLO, DONALD J. TRUMP, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT, JOHN LAFFERTY, U.S. DEPARTMENT OF

10/01/2019 10/11/2019
01/02/2020 04/24/2020 04/24/2020

HOMELAND SECURITY, KRISTJEN M. NIELSEN, U.S. CUSTOMS AND BORDER PROTECTION, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, RONALD D. VITIELLO, U.S. DEPARTMENT OF JUSTICE, MATTHEW G. WHITAKER, JAMES MCHENRY, DONALD J. TRUMP, L. FRANCIS CISSNA. Fee Status: No Fee Paid. Parties have been notified. Associated Cases: 1:18−cv−02718−RDM, 1:18−cv−02838−RDM(Gray, Kathryne) (Entered: 09/30/2019)
97 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 96 Notice of Appeal to DC Circuit Court,,,. (ztd) (Entered: 10/01/2019)
USCA Case Number 19−5272 for 96 Notice of Appeal to DC Circuit Court,,, filed by KEVIN K. MCALEENAN, DONALD J. TRUMP, KRISTJEN M. NIELSEN, U.S. CUSTOMS AND BORDER PROTECTION, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE, RONALD D. VITIELLO, JOHN LAFFERTY, MATTHEW G. WHITAKER, U.S. DEPARTMENT OF HOMELAND SECURITY, L. FRANCIS CISSNA, JAMES MCHENRY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (zrdj) (Entered: 10/16/2019)
98 NOTICE OF WITHDRAWAL OF APPEARANCE as to A.J.A.C., A.J.E.A.M., C.S.C.C., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, K.P.P.V., L.C.V.R, N.A.G.A., R.D.P.V., R.G.G., R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., Y.A.L.P.. Attorney Elizabeth Hagerty terminated. (Hagerty, Elizabeth) (Entered: 01/02/2020)
99 MOTION to Withdraw as Attorney Kaitlin Welborn by A.J.A.C., A.J.E.A.M., C.S.C.C., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, K.P.P.V., L.C.V.R, N.A.G.A., R.D.P.V., R.G.G., R.S.P.S., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., S.M.S.R., Y.A.L.P. (Welborn, Kaitlin) (Entered: 04/24/2020)
MINUTE ORDER: Upon consideration of the motion to withdraw as attorney, Dkt. 99 , it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that attorney Kaitlin Welborn may withdraw her appearance as co−counsel in this matter. Signed by Judge Randolph D. Moss on 4/24/2020. (lcrdm1) (Entered: 04/24/2020)

 
 Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

O.A., K.S., A.V., G.Z., D.S., C.A.,

Civil Action No. _______________

Plaintiffs,
v.
DONALD J. TRUMP as President of the United States 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500;

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

MATTHEW G. WHITAKER, as Acting Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530;
KIRSTJEN M. NIELSEN, as Secretary of the Department of Homeland Security U.S. Department of Homeland Security 245 Murray Lane, S.W., Washington, D.C. 20528;

LEE FRANCIS CISSNA, as Director of United States Citizenship and Immigration Services U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, N.W. Washington, D.C. 20529;

JOHN LAFFERTY, Asylum Division Chief, U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, N.W. Washington, D.C. 20529
Defendants.

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 2 of 34
PRELIMINARY STATEMENT 1. 7KLVFDVHFRQFHUQVWKH86JRYHUQPHQW¶Vunlawful attempt to deprive vulnerable individuals access to the protection that the QDWLRQ¶Vasylum system affords. 2. Under U.S. law, noncitizens are entitled to seek asylum irrespective of immigration status and without regard to manner of entry into the United States. See 8 U.S.C. § 1158(a)(1). 86ODZLQWKLVUHJDUGLVFRQVLVWHQWZLWKWKH8QLWHG6WDWHV¶WUHDW\REOLJDWLRQV under the Refugee Act of 1980. U.S. law also requires certain procedural safeguards during removal proceedings. See id. § 1225(b)(1). These safeguards are critical to ensuring that individuals who face persecution²including rape, kidnapping, torture, and even death²in their home countries are given a fair chance to establish their eligibility for asylum. 3. On November 9, 2018, the 'HSDUWPHQWRI-XVWLFH³'2-´DQGWKHDepartment of HRPHODQG6HFXULW\³'+6´SURPXOJDWHGDQ LQWHULP ILQDOUXOH ³WKH5XOH´, EOIR Docket No. 18±0501; A.G. Order No. 4327±2018, imposing new, significant limitations on who may seek asylum in the United States. On the same day, President Trump signed a presidential proclamation entitled ³Presidential Proclamation Addressing Mass Migration Through the Southern Border of WKH8QLWHG6WDWHV´³WKHPURFODPDWLRQ´What purports to suspend the entry of individuals who have entered the United States from across the U.S.±Mexico border without receiving inspection at a designated port of entry. Together, the Rule and the Proclamation render ineligible for asylum any noncitizen who enters the United States without inspection from across the U.S.±Mexico border. 7KLV GUDPDWLF FKDQJH WR WKH 1DWLRQ¶V DV\OXP ODZV shutters access to the asylum system for thousands of men, women, and children that the Administration concedes are likely to have meritorious asylum claims. The Rule is illegal in several respects.

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 3 of 34
4. First, the Rule contradicts the requirements of the Immigration and Nationality Act ³,1$´, specifically 8 U.S.C. § 1158(a)(1), which gives any noncitizen who is physically present in or who arrives in the United States a statutory right to seek asylum, irrespective of the LQGLYLGXDO¶VPDQQHURIHQWU\and requires the government to follow specific processes when an individual expresses a desire to seek asylum or fear of returning to his or her home country. The Rule is therefore contrary to law under the INA and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ³$3$´
5. Second, the Rule violates 8 U.S.C. § 1225 by mandating a denial of a credible fear determination, even in situations where a noncitizen in expedited removal proceedings shows a significant possibility that she could establish eligibility for asylum. For this reason, the Rule is again contrary to law under the INA and the APA.
6. Third, the Rule violates The William Wilberforce Trafficking Victims Protection Act, 8 U.S.C. § 1158 (b)(3)(C), by denying unaccompanied children the opportunity to first present the substance of their claims for asylum in a non-adversarial proceeding before an asylum officer.
7. Fourth, by adopting, without notice and the opportunity to comment, an interim final rule depriving certain asylum seekers of the statutory protection outlined in the INA simply because they enter the country without inspection, the responsible government officials have acted in excess of their statutorily prescribed authority, contrary to law, and arbitrarily and capriciously, all in violation of the APA.
8. Fifth, the promulgation of the Rule was invalid because the current Acting Attorney General who putatively authorized promulgation of the Rule is ineligible to serve in that role under 28 U.S.C. § 508 and the Appointments Clause of the United States Constitution, art. II, § 2, cl. 2.
2

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 4 of 34
9. Sixth, HYHQ DVVXPLQJ WKH FXUUHQW $FWLQJ $WWRUQH\ *HQHUDO¶V DSSRLQWPHQW ZDV lawful, the Rule violates the requirement under 8 U.S.C. § 1158(b)(2)(C) that any changes to the limitations and conditions imposed on asylum seekers be made by regulation²rather than by presidential decree. Because the Rule is predicated on an abdication of that responsibility, and simply incorporates by reference the consequence of Presidential proclamations, the Rule is invalid under the APA and is ultra vires.
10. If allowed to stand, the Rule would fundamentally reshape and constrict asylum ODZLQFRQWUDYHQWLRQRI86DQGLQWHUQDWLRQDOODZ7KLV&RXUW¶VLQWHUYHQWLRQLVQHFHVVDU\WRSXW DVWRSWRWKLV$GPLQLVWUDWLRQ¶VLOOHJDODFWLRQVDQGSUHYHQWLUUHSDUDEOHKDUPto thousands of asylum seekers who desperately need protection in this country.
11. Plaintiffs respectfully request a declaration that the Rule violates the APA, and an order enjoining the application of the Rule.
PARTIES 12. Plaintiffs are noncitizens who are presently in the United States and wish to seek asylum. 13. Plaintiff O.A. is a 23-year-old man from Honduras who the government contends is subject to the Proclamation. O.A. fled Honduras with his 4-year-old daughter, K.S., because a gang called Mara-18 (M-18), threatened to kill him and his family. They did so because M-18 had NLOOHG2$¶VEURWKHUDQGWKH\WKHQWDUJHWHG2$DQGKLVIDPLO\ZKHQ2$FRRSHUDWHGZLWKWKH SROLFHWRKHOSWKHPLQYHVWLJDWHKLVEURWKHU¶VGHDWK O.A. knew that the police in Honduras would not be willing or able to help him, and he decided to flee Honduras with his daughter. 14. Plaintiff K.S. is a 4-year-old girl from Honduras. O.A. is her father, and she entered the United States with him when he entered the United States after fleeing Honduras. .6¶VOLIH
3

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 5 of 34
was at risk in Honduras because her father cooperated with police to investigate the death of his brother, and she accompanied him when he fled Honduras to seek asylum in the United States.
15. Plaintiff A.V. is a 27-year-old woman from Honduras who crossed the border from Mexico into the United States other than at a port of entry on November 11, 2018. She has a credible fear of persecution in Honduras because she is a victim of repeated violent assaults by her partner (who is the father of her children), and because her partner is likely a member of gang and has threatened to kill her. A.V. has nowhere to turn for help in Honduras.
16. Plaintiff G.Z. is a 17-year-old unaccompanied minor from Honduras who the government alleges crossed the U.S.±Mexico border other than at a port of entry on November 10, 2018. In Honduras, G.Z. was the victim of recurring violence at the hands of his father, who is a police officer. G.Z. has no ability to seek protection from the police, because his father is one of them. In the weeks preceding his departure from Honduras, G.Z. also rebuffed efforts by MS-13 gang members to recruit him because he believes their activities to be morally wrong. GZ feared that if he did not leave Honduras he would be killed. He has a credible fear of persecution.
17. Plaintiff D.S. is an asylum seeker from Honduras. She fled Honduras because of severe domestic abuse by her partner, who is a security guard. She tried to report the violence, which at points required hospitalization, but the government did nothing in response to her complaint and did not pursue her partner when he failed to appear in judicial proceedings. D.S. also tried to relocate internally within Honduras but her partner tracked her down and threatened to kill her. D.S. made the difficult journey across Mexico with her son, C.A., over the course of two weeks, during which time she exhausted all of her financial resources. D.S., with her son, C.A., entered the United States other than at a port of entry on November 13, 2018, and they were apprehended by immigration officials on the U.S. side of the border.
4

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 6 of 34
18. Plaintiff C.A. is an asylum seeker from Honduras, whose mother is Plaintiff D.S. Plaintiff C.A. was regularly beaten by his father in Honduras and accompanied his mother, D.S., on her journey to the United States. With D.S., C.A. entered the United States other than at a port of entry on November 13, 2018, and they were apprehended by immigration officials on the U.S. side of the border.
19. Defendant Donald J. Trump is the President of the United States. On November 9, 2018, he issued the Proclamation. He is sued in his official capacity.
20. Defendant Matthew G. Whitaker was appointed to the position of Acting Attorney *HQHUDORIWKH8QLWHG6WDWHV³Acting $WWRUQH\*HQHUDO´ on November 7, 2018. The Attorney General is responsible for administering the INA, oversees the Executive Office for Immigration RevLHZ³(2,5´DQGLVHPSRZHUHGE\VWDWXWHWRJUDQWDV\OXPRUDQ\RWKHUUHOLHI+HLVVXHGLQ his official capacity.
21. 'HIHQGDQW .LUVWMHQ 0 1LHOVHQ LV WKH 6HFUHWDU\ RI '+6 ³WKH 6HFUHWDU\´  6KH GLUHFWV8QLWHG6WDWHV,PPLJUDWLRQDQG&XVWRPV(QIRUFHPHQW³ICE´8QLWHG6WDWHV&LWL]HQVKLS DQG,PPLJUDWLRQ6HUYLFHV³86&,6´DQG8QLWHG6WDWHV&XVWRPVDQG%RUGHU3URWHFWLRQ³&%3´ She is sued in her official capacity.
22. Defendant Lee Francis Cissna is Director of USCIS, which is the agency that employs the Asylum Officers who conduct credible fear screening interviews to determine whether individuals may apply for asylum before an immigration judge. He is sued in his official capacity.
23. Defendant John Lafferty, the Asylum Division Chief within USCIS, is responsible for overseeing the credible fear screening process and asylum adjudication within USCIS. He is sued in his official capacity.
5

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 7 of 34
NATURE OF ACTION 24. This is an action arising under the ,PPLJUDWLRQ DQG 1DWLRQDOLW\ $FW ³,1$´  U.S.C. § 1101 et seq., and the Administrative Procedure Act ³$3$´, 5 U.S.C. § 551 et seq. 25. Plaintiffs seek a declaratory judgment that the interim final rule entitled ³Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,´ 83 Fed. Reg. 55,934 (Nov. 9, 2018) is arbitrary, capricious, contrary to law, and beyond the authority of the Acting Attorney General and the Secretary to promulgate under the APA and otherwise. Plaintiffs further seek an injunction prohibiting Defendants from enforcing the Rule and such additional and other relief as is just and proper.
JURISDICTION AND VENUE 26. This Court has jurisdiction under 28 U.S.C. § 1331, as the claims in this case arise under federal statutes, including the INA, 8 U.S.C. § 1101 et seq., and the APA, 5 U.S.C. § 701 et seq. 6SHFLILFDOO\ WKLV &RXUW KDV MXULVGLFWLRQ WR UHYLHZ 3ODLQWLIIV¶ FODLPV WKDW the Rule is inconsistent with the INA and thus ultra vires to it. 27. This Court further has jurisdiction to review this case as a challenge to changes in the expedited removal process under 8 U.S.C. § 1252(e)(3). Although courts generally lack jurisdiction to review challenges to the expedited removal process, judicial review under § 1225(b) is available to determine if any regulation issued to implement such section is constitutional or whether such regulation is otherwise in violation of law. This case falls squarely within this VWDWXWRU\H[FHSWLRQ3ODLQWLIIVSUHVHQWD FKDOOHQJH WRWKH³YDOLGLW\ RIWKHV\VWHP´ IRUH[SHGLWHG removal. See 8 U.S.C. § 1252(e)(3). The Rule and Proclamation are each D ³ZULWWHQ SROLF\ GLUHFWLYH ZULWWHQ SROLF\ JXLGHOLQH RU ZULWWHQ SURFHGXUH´ LVVXHG WR LPSOHPHQW WKH H[SHGLWHG removal procedures set forth in 8 U.S.C. § 1225(b). And Plaintiffs assert that the Rule and Proclamation impose FKDQJHV WR WKH H[SHGLWHG UHPRYDO DQG FUHGLEOH IHDU V\VWHP WKDW DUH ³QRW
6

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 8 of 34
consistent with applicable provisions of [8 U.S.C. § D@´DQG³RWKHUZLVHLQYLRODWLRQRI ODZ´ Id. § 1252(e)(3)(A)(ii).
28. The declaratory, injunctive and other relief sought by Plaintiffs are authorized by 28 U.S.C. §§ 2201 and 2202.
29. Venue in this District is proper pursuant to 5 U.S.C. § 703 and 8 U.S.C. § 1252(e). In addition, venue is proper pursuant to 28 U.S.C. § 1391(e) because a substantial part of the events or omissions giving rise to the claim occurred at or in this District. Defendants are headquartered LQ:DVKLQJWRQ'&DQGXSRQLQIRUPDWLRQDQGEHOLHI'HIHQGDQWV¶GHFLVLRQVUHJDUGLQJFKDQJHV to the expedited removal and credible fear processes have taken place and are being made in the District of Columbia.
FACTUAL ALLEGATIONS Legal Framework
30. &RQJUHVVHQDFWHGWKH5HIXJHH$FWRIWR³EULQJ8QLWHG6WDWHVUHIXJHHODZLQWR FRQIRUPDQFH´ZLWKLQWHUQDWLRQDOODZDVRXWOLQHGXQGHUWKH United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees. INS v. Cardoza-Fonseca, 480 U.S. 421, 436±37 (1987).
31. Among the treaty obligations undertaken by the United States was the promise that WKH ³&RQWUDFWLQJ 6WDWHV VKDOO DSSO\ WKH SURYLVLRQV RI WKLV &RQYHQWLRQ WR UHIXJHHV ZLWKRXW GLVFULPLQDWLRQ DV WR UDFH UHOLJLRQ RU FRXQWU\ RI RULJLQ´ Convention Relating to the Status of Refugees art. 3, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.1 )XUWKHU³[c]ontracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter
1 The text of the Convention is available online at http://www.unhcr.org/en-us/3b66c2aa10.
7

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 9 of 34
or are present in their territory without authorization, provided they present themselves without GHOD\WRWKHDXWKRULWLHVDQGVKRZJRRGFDXVHIRUWKHLULOOHJDOHQWU\RUSUHVHQFH´Id. at art. 31(1). This prohibition against restricting asylum access based on manner of entry is reiterated in the Introductory Note to the Refugee Convention, which states: ³7KH&RQYHQWLRQIXUWKHUVWLSXODWHV that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. 7KLVUHFRJQL]HVWKDWWKHVHHNLQJRIDV\OXPFDQUHTXLUHUHIXJHHVWREUHDFKLPPLJUDWLRQUXOHV´ Id. at Introductory Note.
32. The INA is the embodiment of these international law obligations. Its instructions regarding the asylum process are clear: ³$Q\DOLHQZKRLVSK\VLFDOO\SUHVHQWLQWKH8QLWHG6WDWHV 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 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´ 8 U.S.C. § 1158(a)(1) (emphases added).
33. While asylum is ultimately a discretionary remedy within the parameters set by statute, the duty to allow a noncitizen access to the process for seeking asylum is not discretionary, as the U.S. government has recognized. See, e.g.)HGHUDO'HIHQGDQW¶V5HSO\%ULHILQ6XSport of Motion for Summary Judgment and Dismissal for Lack of Jurisdiction, cited in Munyua v. United States, 2005 U.S. Dist. LEXIS 11499, at *16±19 (N.D. Cal. Jan.   ³>'@HIHQGDQW acknowledges that [the immigration officers] did not have the discretion to ignore a clear expression of fear of return or to coerce an alien into withdrawing an application for admission.´
34. For a noncitizen to be eligible for asylum, the noncitizen must establish that he or she is a refugee under the INA, defined as follows:
8

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 10 of 34
>$@Q\SHUVRQZKRLVRXWVLGHDQ\FRXQWU\RIVXFKSHUVRQ¶VQDWLRQDOLW\RULQWKHFDVHRID 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 wellfounded 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); see id. § 1158(a)(1). 35. To demonstrate a well-founded fear of persecution, a noncitizen need not show that harm is certain or even more likely than not; a 1 in 10 chance of persecution is sufficient under U.S. Supreme Court precedent. See Cardoza-Fonseca, 480 U.S. at 430.
Expedited Removal and Credible Fear 36. In 1996, Congress passed the Illegal Immigration Reform and Immigrant 5HVSRQVLELOLW\ $FW ³,,5,5$´ ZKLFK FUHDWHG DQ H[SHGLWHG UHPRYDO SURFHVV IRU LPPLJUDWLRQ officials to deport certain individuals deemed inadmissible under the INA. 37. Out of a concern that expedited removal would prevent individuals from seeking and applying for asylum²DQGWKHUHE\DEURJDWHWKH8QLWHG6WDWHV¶REOLJDWLRQVXQGHUGRPHVWLFDQG international law²IIRIRA implemented the ³credible fear´ screening process to ensure that individuals subject to expedited removal proceedings would be given meaningful access to the asylum process. 38. Under those provisions, if a noncitizen facing expedited removal indicates any fear of returning to his or her home country, an immigration officer must refer the asylum seeker for a ³FUHGLEOHIHDU´LQWHUYLHZSee 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 235.3(b)(4). This interview LVGHVLJQHGWR³HOLFLWDOOUHOHYDQWDQGXVHIXO LQIRUPDWLRQEHDULQJ RQZKHWKHUWKHDSSOLFDQW KDVD credible fear of persecution or WRUWXUH´&)5§ 208.30(d). 39. To satisfy the credible fear standard, an asylum seeker need only show a ³VLJQLILFDQWSRVVLELOLW\WDNLQJLQWRDFFRXQWWKHFUHGLELOLW\RIWKHVWDWHPHQWVPDGHE\WKHnoncitizen
9

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 11 of 34
and in support of the noncitizen¶VFODLPDQGVXFKRWKHUIDFWVDVDUHNQRZQWRWKHRIILFHUWKDWWKH noncitizen FRXOGHVWDEOLVKHOLJLELOLW\IRUDV\OXP´ 8 U.S.C. § 1225(b)(1)(B)(v). The standard used in this initial screening is intentionally lower than the standard used in the full asylum hearing that the applicant will later undergo if he or she passes the credible fear interview. The intentionally low threshold for demonstrating a credible fear accounts for the reality that credible fear interviews typically take place shortly after asylum seekers have completed their often traumatic journeys to the United States, in border processing centers or detention facilities where asylum seekers typically do not have access to attorneys. The standard also acknowledges that many asylum seekers arrive in the United States without the time, resources, or expertise to develop fully, upon arrival, the evidence necessary to prevail on their ultimate asylum application.
40. The credible fear process includes another important limitation. Recognizing the abbreviated nature of these interviews, if a person meets the definition of a refugee but may be subject to a bar to asylum, officers are required to flag those potential bars for future adjudication, but to refer the applicant for full removal proceedings. See 8 C.F.R. § 208.30(e)(5).
41. The requirement to refer an asylum seeker subject to expedited removal proceedings to an asylum officer for a credible fear interview is mandatory. See 8 U.S.C. § 1225(b)(1)(A)(ii) (immigration RIILFHU³shall refer the [noncitizen] for an interview by an asylum RIILFHU´ HPSKDVLV DGGHG); 8 C.F.R. § E ³[T]he inspecting officer shall not proceed further with removal of the [noncitizen] until the [noncitizen] has been referred for an interview by an asylum officer.´HPSKDVLVDGGHG).
42. If an applicant is found by an asylum officer to have a credible fear of persecution or torture, the applicant is taken out of the expedited removal process and placed in the regular removal process. The applicant thus obtains the ability to develop a full record in support of his
10

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 12 of 34
or her asylum claim; the right to present that claim before an immigration judge at a trial-like hearing; and the ability to appeal an adverse decision to the Board of Immigration Appeals and a federal court of appeals. See 8 U.S.C. § 1225(b)(1)(B)(ii).
43. The newly promulgated Rule and the accompanying Proclamation upend this detailed statutory scheme. Under the Rule, asylum seekers who enter without inspection from across the U.S.±Mexico border are barred from obtaining asylum and may only apply for ZLWKKROGLQJRIUHPRYDORUUHOLHIXQGHUWKH&RQYHQWLRQ$JDLQVW7RUWXUH³&$7´2EWDLQLQJHLWKHU of these forms of relief requires satisfying a different standard than credible fear interviews, UHTXLULQJDQLQGLYLGXDOWRGHPRQVWUDWHD³UHDVRQDEOHSRVVLELOLW\´RISHUVHFXWLRQ³RQDFFRXQWRI´D protected ground. 7KLV³UHDVRQDEOH IHDU´VWDQGDUG LVVLJQLILFDQWO\ KLJKHUWKDQWKH FUHGLEOH IHDU standard. That is so because the reasonable fear screening standard is the same standard required WRHVWDEOLVKD³ZHOO-IRXQGHGIHDU´RISHUVHFXWLRQLQWKHDV\OXPFRQWH[W7KHFUHGLEOHIHDUVWDQGDUG on the other hand, requires only a showing of a significant possibility that the well-founded fear will be established.
44. Moreover, unlike asylum, withholding of removal and CAT protection do not prohibit the government from removing the noncitizen to a third country; do not create a path to lawful permanent resident status and citizenship; do not allow the noncitizen to travel freely within the United States or internationally; and do not ensure family unity by permitting DQRQFLWL]HQ¶V family members to obtain lawful immigration status derivatively.
45. The Government contends that Plaintiffs are subject to the new Proclamation and Rule; Plaintiffs are suffering irreparable harm as a result. Plaintiffs suffered persecution that their KRPHFRXQWU\¶VJRYHUQPHQWZDVXQZLOOLQJDQGXQDEOHWRVWRSDQGKDYHFRme to the United States to seek refuge. The Proclamation and Rule effectively prevent Plaintiffs from applying for asylum
11

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 13 of 34
and the benefits that come with it, and place Plaintiffs at high risk of being returned to the country that perpetrated or sanctioned their oppression.
,PSOHPHQWDWLRQRI³=Hro-7ROHUDQFH´,PPLJUDWLRQ3ROLF\ 46. In April 2018, the U.S. governPHQWEHJDQLPSOHPHQWLQJD³]HUR-WROHUDQFH´SROLF\ on immigration. In announcing the policy, then-Attorney General Jefferson B. Sessions III stated without any evidence WKDW ³>W@KH VLWXDWLRQ DW RXU 6RXWKZHVW %RUGHU LV XQDFFHSWDEOH´ DQG ³QHFHVVLWDWH>G@ DQ HVFDODWHG HIIRUW WR SURVHFXWH WKRVH ZKR FKRRVH WR LOOHJDOO\ FURVV RXU ERUGHU´ 2 Mr. Sessions FRQWLQXHG  ³7R WKRVH ZKR ZLVK WR FKDOOHQJH WKH 7UXPS $GPLQLVWUDWLRQ¶V commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the 'HSDUWPHQWRI-XVWLFH´ 47. In accordance with this directive, the U.S. government took steps to deter immigration at the southern border, such as referring greater numbers of migrants, including asylum seekers, for criminal prosecution, detaining migrants (including children) in inhospitable conditions, and encouraging adjudication officers to deny asylum claims. 48. 7KH$GPLQLVWUDWLRQ¶V³zero-tolerance´ policy resulted in the forcible separation of child migrants from their parents, ostensibly so that the government could criminally prosecute the parents for illegal entry or reentry.3 Before federal courts enjoined the practice of separating families, the Department of Homeland Security had separated over 2,000 children from their parents.
2 DOJ, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018) <https://tinyurl.com/y96nsut6>. 3 See Miriam Jordan, How and Why “Zero-Tolerance” is Splitting Up Families, N.Y. TIMES, May 12, 2018 <https://tinyurl.com/y73urcyj>.
12

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 14 of 34
49. 7KH$GPLQLVWUDWLRQ¶V³zero-tolerance´ policy applied even to asylum seekers. In IDFW³]HUR-WROHUDQFH´OHGWRDVLJQLILFDQWLQFUHDVHLQcriminal prosecutions of individuals seeking such protection, including many parents who entered the United States without inspection because it was their only means of protecting their children from the persecution faced in their home countries.4
50. Nor did the Administration always permit asylum seekers to seek asylum through designated ports of entry; the Administration began to employ a policy of ³PHWHULQJ´DWWKH86± Mexico border to keep a caravan of asylum seekers from presenting themselves at the border to seek protection. The existence of this policy was confirmed by the Secretary, who stated in a May LQWHUYLHZ³:HDUHµPHWHULQJ¶ZKLFKPHDQVWKDWLIZHGRQ¶WKDYHWKHUHVRXUFHVWROHWWKHP LQ RQ D SDUWLFXODU GD\ WKH\ DUH JRLQJ WR KDYH WR FRPH EDFN´5 A September 27, 2018 Special 5HYLHZRIWKH$GPLQLVWUDWLRQ¶V³zero-tolerance´DQGIDPLO\VHSDUDWLRQSROLFLHVE\'+6¶V2IILFH RI,QVSHFWRU*HQHUDO³2,*5HSRUW´ VLPLODUO\DFNQRZOHGJHVWKDWWKH³PHWHULQJ´SURFHVVLQYROYHV CBP officers standing at the international border line in the middle of the bridges to the ports of entry; when an asylum seeker approaches the border line, officers confirm whether space is DYDLODEOHDQGSHUPLWWKHP³WRHQWHURQFHWKHUHLVVXIILFLHQWVSDFHDQGUHVRXUFHVWRSURFHVVWKHP´6
4 See Russell Berman, 85 Immigrants Sentenced Together Before One Judge, THE ATLANTIC, June 19, 2018 <https://tinyurl.com/ydh63e8u>. The need to escape the persecution they face in their home countries is frequently cited by asylum seekers as a primary reason for seeking safe harbor in the United States. See generally University of Washington, The Cycle of Violence: Migration from the Northern Triangle (2017) <https://tinyurl.com/yabyz9ax> (reporting that the increase of violence in Guatemala, Honduras, and El Salvador between 2011 and 2016 coincided ZLWKDGRXEOLQJRIWRWDOUHVSRQGHQWVOLVWLQJ³IOHHLQJYLROHQFH´DVWKHLUPDLQUHDVRQIRUPLJUDWLRQ 5 Fox News, Secretary Nielsen Talks Immigration, Relationship with Trump 03:20 (May 15, 2018) <https://tinyurl.com/y8buwakc>. 6 Dep¶WRI+RPHODQG6HFXULW\2IILFHRI,QVSHFWRU*HQHUDO6SHFLDO5HYLHZ- Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy, at 6 (Sept. 27, 2018)
13

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 15 of 34
51. Although CBP does not maintain a wait list for those who have been turned away
due to metering, some asylum seekers have instituted an unofficial waitlist to keep track of those
awaiting entry. CBP will often refer migrants to the unofficial waitlist when metering. Due to
metering, the average wait time for asylum seekers at a port of entry can be up to several weeks.
Public Statements by Defendants
52. Public statements by the senior Executive Branch officials and the President both EHIRUH DQG DIWHU WKH LPSOHPHQWDWLRQ RI ³]HUR-WROHUDQFH´ UHLnforced the basic theme of the AGPLQLVWUDWLRQ¶VLPPLJUDWLRQSROLF\WRGHWHUDQ\DQGDOOLPPLJUDWLRQ
53. On October 12, 2017, then-Attorney General Sessions, in an address to the Executive Office for Immigration Review, stated, without any evidence  ³:H . . . have dirty
immigration lawyers who are encouraging their otherwise unlawfully present clients to make false
claims of asylum providing them with the magic words needed to trigger the credible fear SURFHVV´7
54. On January 16, 2018, Secretary Nielsen stated, before the U.S. Senate, WKDW ³ZH must tighten [our] case processing standards, including tKHµFUHGLEOH-IHDU¶VWDQGDUG´8
KWWSVWLQ\XUOFRP\UN]\H!  7KH $GPLQLVWUDWLRQ¶V FODLPV UHJDUGLQJ LWV limited capacity to process asylum applications are similarly unfounded. Senior CBP and ICE officials at the San <VLGURSRUWRIHQWU\VWDWHGLQLQWHUYLHZV³WKDW&%3KDVRQO\DFWXDOO\UHDFKHGLWVGHWHQWLRQFDSDFLW\ DFRXSOHRIWLPHVSHU\HDUDQGGXULQJµDYHU\VKRUWSHULRG¶LQ´$PQHVW\,QWHUQDWLRQDOUSA: ‘You Don’t Have Any Rights Here’: Illegal Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States (2018) <https://tinyurl.com/y8k4q54o>. The September 2018 OIG report VLPLODUO\VWDWHGWKDW³WKH2,*WHDPGLGQRWREVHUYHVHYHUHRYHUFURZGLQJDWWKHSRUWV RIHQWU\LWYLVLWHG´ 7 DOJ, Attorney General Sessions Delivers Remarks to the Executive Office of Immigration Review (Oct. 12, 2017) <https://tinyurl.com/y9n3alru>. 8 DHS, Written testimony of DHS Secretary Kirstjen Nielsen for a Senate Committee on the -XGLFLDU\ KHDULQJ WLWOHG ³2YHUVLJKW RI WKH 8QLWHG 6WDWHV 'HSDUWPHQW RI +RPHODQG 6HFXULW\´ <https://tinyurl.com/yc57pd6n>.
14

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 16 of 34
55. For his part, President Trump has made no secret of his disdain for the NDWLRQ¶V
duly-enacted immigration laws, including the asylum laws:
a. On June 21, 2018, WKH3UHVLGHQWWZHHWHG³:HVKRXOGQ¶WEHKLULQJMXGJHVE\ the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as WKHLUSDVVZRUG´
b. On June 24, 2018, the President tweeted³:HFDQQRWDOORZDOORIWKHVHSHRSOH to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents . . . .´
c. On June WKH3UHVLGHQWWZHHWHG³:KHQSHRSOHFRPHLQWRRXU&RXQWU\ illegally, we must IMMEDIATELY escort them back out without going WKURXJK\HDUVRIOHJDOPDQHXYHULQJ´
d. On July   WKH 3UHVLGHQW WZHHWHG  ³:KHQ SHRSOH ZLWK RU ZLWKRXW children, enter our Country, they must be told to leave without our Country being forced to endure a long and costly trial. Tell the SHRSOHµ287¶DQGWKH\ PXVWOHDYHMXVWDVWKH\ZRXOGLIWKH\ZHUHVWDQGLQJLQ\RXUIURQWODZQ´
e. On October WKH3UHVLGHQWWZHHWHG³0DQ\*DQJ0HPEHUVDQGVRPH very bad people are mixed into the Caravan heading to our Southern Border. Please go back, you will not be admitted into the United States unless you go through the legal process. This is an invasion of our Country and our Military LVZDLWLQJIRU\RX´
f. On November 1, 2018, President Trump delivered a speech regarding asylum policy. In that speech, the President again referred to migrants from Central $PHULFDDV³DQµLQYDVLRQ¶´DQGDFFXVHGWKRVHLQGLYLGXDOVRIXVLQJ³IUDXGXOHQW RUPHULWOHVVDV\OXPFODLPVWRJDLQHQWU\LQWRRXUJUHDWFRXQWU\´9
g. In the same speech, President Trump attacked the content of the asylum laws SDVVHGE\&RQJUHVV³7KLQNRILW6RPHERG\ZDONVLQWRRXUFRXQWU\UHDGVD statement given by a lawyer, and we have a three-and-a-half-year court case for RQH SHUVRQ´  7KH 3UHVLGHQW FDOOHG WKH ODZV WKDW &RQJUHVV Kas passed ³LQFRPSHWHQWYHU\YHU\VWXSLGODZV´DQGVDLGWKDWWKHLPPLJUDWLRQODZVDUH ³QRWDUFKDLFWKH\¶UHLQFRPSHWHQW,W¶VQRWWKDWWKH\¶UHROGWKH\¶UHMXVWEDG´
9 Remarks by President Trump on the Illegal Immigration Crisis and Border Security, The White House (Nov. 1, 2018) <https://tinyurl.com/y9x88wfj>.
15

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 17 of 34
56. The foregoing statements reflect a hostility amongst senior members of the Administration to the immigration system and to asylum claims, especially those filed by individuals from Central America. The statements also demonstrate the AGPLQLVWUDWLRQ¶VGHVLUH to shutter access to asylum by all possible means.
Effects of the Zero-Tolerance Policy 57. $VDUHVXOWRIWKH$GPLQLVWUDWLRQ¶V]HUR-tolerance policy, many migrants who arrive at ports of entry on the U.S.±Mexico border are rebuffed and left in limbo on the Mexican side of the border. 58. In recent years, violence in MH[LFRKDVLQFUHDVHGZDVOLVWHGDV³WKHGHDGOLHVW \HDULQ0H[LFR´ZLWKKRPLFLGH YLFWLPVDSHUFHQW LQFUHDVH IURP10 In January 2018, the U.S. State Department issued a Level Four³'RQRWWUDYHO´ZDUQLQJ²the highest-level travel warning²for the state of Tamaulipas, which incorporates Reynosa, Matamoros, and Nuevo Laredo, three major port of entry sites.11 Many of the other border states, such as Chihuahua, Coahuila, Nuevo León, and Sonora, are listed at Level Three³5HFRQVLGHUWUDYHO´GXH WRKLJKOHYHOVRI³>Y@LROHQWFULPHDQGJDQJDFWLYLW\´12 59. The violence faced by migrants and refugees like Plaintiffs while in Mexico is disproportionately high and serious. They face grave risks of kidnapping, disappearances, sexual assault, traffickLQJDQGRWKHUKDUPVLQ0H[LFR¶VQRUWKHUQERUGHUUHJLRQ7KH\DUHWDUJHWHGQRW
10 Human Rights First, Mexico: Still Not Safe for Refugees and Migrants (Mar. 2018) <https://tinyurl.com/y8b6flak>. 11 86'HS¶WRI6WDWHMexico Travel Advisory KWWSVWLQ\XUOFRP\FSQF[U!³9LROHQWFULPH such as murder, armed robbery, carjacking, kidnapping, extortion, and sexual assault, is common. Gang activity, including gun battles, is widespread. . . . Local law enforcement has limited capabilit\WRUHVSRQGWRYLROHQFHLQPDQ\SDUWVRIWKHVWDWH´ 12 Id.
16

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 18 of 34
only due to their inherent vulnerabilities as refugees and migrants, but also due to their nationality, race, gender, sexual orientation and gender identity. Additionally, they have limited or no financial resources or contacts in the region.
60. Long wait times for access to ports of entry²times which will only increase under the Rule²leave asylum-seekers especially vulnerable. Cartels and other criminal organizations prey on migrants in border towns and near ports of entry, with cartel members often waiting directly outside some ports of entry.13 $VDUHVXOW³HYLGHQFHRIPDVVJUDYHVand disappearances in Mexico suggest disproportionate killing of non-0H[LFDQPLJUDQWV´14 Attorneys and employees RIPLJUDQWVKHOWHUV LQ5H\QRVD0H[LFRUHSRUWWKDW³PRVW²if not all²migrants they encounter who had been turned away from the port of entry have EHHQNLGQDSSHGDQGKHOGIRUUDQVRP´15 And with migrant shelters frequently at capacity, many asylum-seekers have no other choice but to sleep on the streets or on the bridge itself while they await access to a port of entry.
61. 7KH$GPLQLVWUDWLRQ¶VSROLF\ RI³PHWHULQJ´ KDVDOVRFUHDWHGVWURQJ LQFHQWLYHVIRU legitimate asylum seekers to cross the border other than at authorized ports of entry. '+6¶V recent OIG Report confirmed this reality. The OIG reported ³evidence that limiting the volume of asylum-seekers entering at ports of entry leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally. According to one Border Patrol supervisor, the
13 Human Rights First, Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers, at 16 (May 2017) [hereinafter Crossing the Line] <https://tinyurl.com/y8rxsfmn>. 14 Josiah Heyman & Jeremy Slack, Blockading Asylum Seekers at Ports of Entry at the US–Mexico Border Puts Them at Increased Risk of Exploitation, Violence, and Death, Ctr. for Migration Studies (June 25, 2018) <https://tinyurl.com/yc5tgec3>. 15 Crossing the Line, supra n.13, at 16.
17

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 19 of 34
Border Patrol sees aQLQFUHDVHLQLOOHJDOHQWULHVZKHQDOLHQVDUHPHWHUHGDWSRUWVRIHQWU\´16 The 2,*5HSRUWIXUWKHUREVHUYHGWKDW³>W@KHIDFWWKDWERWKDOLHQVDQGWKH%RUGHU3DWUROUHSRUWHGWKDW metering leads to increased illegal border crossings strongly suggests a relationship between the WZR´17
Issuance of the Rule and Proclamation 62. On November 9, 2018, Defendants enacted the next phase of their ³]HUR-WROHUDQFH´ policy aimed at significantly reducing the availability of asylum. 63. The process began when Acting Attorney General Whitaker and the Secretary promulgated the Rule. The Rule makes three main changes to asylum law.
a. First, the Rule provides that noncitizens who apply for asylum after November 9, 2018 will be ineligible for asylum if they are ³VXEMHFW WR D presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) of 215(a)(1) of the Act on or after November 9, 2018´ and have entered the United States contrary to the terms of the proclamation or order. See Rule, 83 Fed. Reg. at 55,952 (to be codified at 8 C.F.R. §§ 208.13(c)(3), 1208.13(c)(3)).
b. Second, the Rule provides that noncitizens who are ineligible for asylum pursuant to §§ 2018.13(c)(3) and 1208.13(c)(3) will not be permitted to make a VKRZLQJ RI ³FUHGLEOH IHDU´ RI SHUVHFXWLRQ DV noncitizens seeking asylum presently may do. Under the Rule, DQRQFLWL]HQ¶V request for asylum is, from a
16 OIG Report, supra note 6, at 7. 17 Id. at n.15.
18

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 20 of 34
merits standpoint, summarily denied, because the asylum officer is directed to ³HQWHU D QHJDWLYH FUHGLEOH IHDU GHWHUPLQDWLRQ ZLWK UHVSHFW WR WKH DOLHQ¶V application IRU DV\OXP´  7KH noncitizen instead will be placed into ³SURFHHGLQJVXQGHUVHFWLRQRIWKH$FWIRUIXOOFRQVLGHUDWLRQRIWKHDOLHQ¶V claim for withholding of removal under section 241(b)(3) of the Act, or for withholding or deferral of removal under the Convention Against Torture if the DOLHQHVWDEOLVKHVDUHDVRQDEOHIHDURISHUVHFXWLRQRUWRUWXUH´Id. (to be codified at 8 C.F.R. § 208.30). c. Third, the Rule provides for what an immigration judge is to do with respect to the review of expedited removal orders following a negative credible or reasonable fear assessment. The Rule provides that an immigration judge is to review de novo the determination that a noncitizen falls within the scope of a Presidential proclamation that is described in 8 C.F.R. § 208.13(c)(3) or § 1208.13(c)(3). If the immigration judge determines that the noncitizen is not VXEMHFWWRDSURFODPDWLRQWKHQWKHDV\OXPRIILFHU¶VILQGLQJZLOOEHYDFDWHGDQG DHS may commence removal proceedings under Section 240 of the INA. If the judge agrees that the noncitizen is subject to a proclamation, the judge will WKHQ UHYLHZ WKH DV\OXP RIILFHU¶V GHWHUPLQDWLRQ WKDW WKH noncitizen lacks a reasonable fear of persecution pursuant to the procedures set forth in 8 C.F.R. § 1208.30(g)(2). 64. Put more succinctly, together the Rule and Proclamation prohibit anyone from obtaining asylum if they cross outside of a port of entry and make it more difficult for those people
19

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 21 of 34
to obtain other forms of relief. At the same time, as detailed above, the Administration has made it untenable for many, if not most, noncitizens to apply for asylum at a port of entry.
65. In support of the Rule, the Acting Attorney General and the Secretary cited 8 U.S.C. § E& ZKLFK DXWKRUL]HV WKH $WWRUQH\ *HQHUDO WR ³E\ UHJXODWLRQ HVWDEOLVK DGGLWLRQDO limitations and conditions, consistent with [the remainder of Section 1158], under which an alien VKDOOEHLQHOLJLEOHIRUDV\OXP´7KH$FWLQJ$WWRUQH\*HQHUDODQGWKH6HFUHWDU\DOVRUHOLHGRQ U.S.C. § 1158(d)(5)(B), which provides that the Attorney General may ³SURYLGHE\UHJXODWLRQIRU any other conditions or limitations on the consideration of an application for asylum not LQFRQVLVWHQWZLWKWKLVFKDSWHU´ 1RQHRIWKHRWKHU³OLPLWationVDQGFRQGLWLRQV´RQDV\OXPWKDWDUH present in Section 1158 relate to manner of entry, and a bar to asylum based on manner of entry is contrary to the plain language of Section 1158.
66. The Acting Attorney General and the Secretary acknowledged that in the previous year 1,889 migrants from the Northern Triangle (i.e., Guatemala, Honduras, and El Salvador), representing nearly 25% of those whose asylum applications were adjudicated on the merits, had been granted asylum. See Rule, 83 Fed. Reg. at 55,946. 7KH\IXUWKHUDFNQRZOHGJHGWKDW³>V@RPH of those asylum grants wouOGEHFRPHGHQLDOVIRUDOLHQVZKREHFDPHLQHOLJLEOHIRUDV\OXP´XQGHU the Rule. Id. at 55,948.
67. Although the APA requires an agency to allow for a period of public notice and comment (as well as a 30-day waiting period) before implementing a proposed regulation, see 5 U.S.C. §§ 553(b), (c), (d), the Rule became effective upon its publication. In explaining why they failed to follow the ordinary rulePDNLQJSURFHVV'2-DQG'+6FODLPHGWKDW³JRRGFDXVH´H[Lsted to bypass those procedures under 5 U.S.C. § 553(b)(B). DOJ and DHS also invoked the ³IRUHLJQ DIIDLUV´ exception to the notice and comment requirement set forth in 5 U.S.C. § 553(a)(1).
20

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 22 of 34
68. Also on November 9, 2018, President Trump issued the Proclamation pursuant to 8 U.S.C. §§ 1182(f) and 1185(a). The 3URFODPDWLRQSURYLGHVWKDWHQWU\ RI³DQ\DOLHQ´ LQWR WKH United States across the international boundary between the United States and Mexico is ³VXVSHQGHGDQGOLPLWHG´IRUDSHULRGRIGD\V3URFODPDWLRQ§ 1, at which point the President will decide whether to extend the suspension period, id. § 2(d). The suspension of entry applies WRDOLHQVZKRHQWHUWKH8QLWHG6WDWHVDIWHUWKHGDWHRIWKH3URFODPDWLRQDQGGRHVQRWDSSO\WR³DQ\ alien who enters the United States at a port of entry and properly presents for inspection, or to any ODZIXOSHUPDQHQWUHVLGHQW´ Id. §§ 2(a), (b).
69. In the Proclamation, President Trump openly prejudged asylum claims of intending migrants; he specifically stated that the Proclamation was meant to bar access to asylum for Central Americans, who, according to the President¶V XQVXSSRUWHG VD\-so ³KDYH QR ODZIXO EDVLV IRU DGPLVVLRQLQWRRXUFRXQWU\´
70. Taken together, the Rule and Proclamation eliminate asylum for a person who enters the United States along the southern border other than at a port of entry, even if she has a credible fear of persecution if returned to her home country and even if she ultimately crosses other than at DSRUWRIHQWU\EHFDXVH³PHWHULQJ´RURWKHUGHOD\VDWDSRUWRIHQWU\ have exhausted her financial resources or expose her to a continuing threat of crime and violence at the Mexican border.
71. The Administration purported to justify the Rule DQG3URFODPDWLRQE\ FLWLQJ³DQ XUJHQW VLWXDWLRQ DW WKH VRXWKHUQ ERUGHU´  5ule, 83 Fed. Reg. at 55,944. Contrary to assertions contained in the Rule, however, the available data show that migration across the U.S.±Mexico
21

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 23 of 34 border has, in fact, decreased since 2016.18 In 2017, the number of people apprehended by border officials after crossing irregularly was the lowest it has been in 46 years.19
20
72. According to CBP, when compared to 2016, there were, at the southern border, more than 60,000 fewer apprehensions of undocumented aliens from Mexico in 2017, and more
18 Douglas Massey, Today’s US–Mexico ‘Border Crisis’ in 6 Charts, THE CONVERSATION (Jun. 27, 2018) <https://tinyurl.com/ycn4czpl>; see also Max Bearak, Even Before Trump, More Mexicans Were Leaving the U.S. Than Arriving, WASH. POST, Jan. 27, 2017 <https://tinyurl.com/ybbrr348>. 19 U.S. Border Patrol, U.S. Customs & Border Protection, Southwest Border Sectors: Total Illegal Alien Apprehensions By Fiscal Year (Oct. 1st through Sept. 30th) [hereinafter Total Apprehensions] (Dec. 2017) <https://tinyurl.com/ybg3vkld>. 20 Rebecca Hersher, 3 Charts That Show What’s Actually Happening Along The Southern Border, NPR (June 22, 2018) <https://tinyurl.com/y8o7m7d2> (referencing United States Broder Patrol Data).
22

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 24 of 34
than 40,000 fewer apprehensions of undocumented aliens from outside Mexico.21 In 2018, the number of people without legal status who have been apprehended attempting to enter the United States from Mexico has been roughly the same as it has been for the last five years.22
73. While President Trump in the Proclamation has taken the position that only a ³IUDFWLRQ´ RI DV\OXP DSSOLFDQWV ZKR FURVVHG WKH 86 ERUGHU KDYH YDOLG FODLPV IRU DV\OXP ³IUDFWLRQ´PHDQLQJOHVVWKDQthousands of refugees from Northern Triangle countries were found to have valid claims for asylum in 2016 alone. In 2016, 2,157 people from El Salvador, 1,505 from Honduras, and 1,949 from Guatemala were found by U.S. asylum officers and immigration judges to be eligible for asylum.23 $FFRUGLQJWR'+6¶VRZQVWDWLVWLFV(O6DOYDGRU and Guatemala were two leading countries of nationality of people granted asylum in the United States in 2016²the third being China²while El Salvador, Guatemala, and Honduras were four of the five leading nationalities of persons granted asylum by the immigration courts, the fifth, again, being China.24
21 Total Apprehensions, supra n.19. 22Linda Qiu, Fact Check of the Day: Border Crossings Have Been Declining for Years, Despite Claims of a ‘Crisis of Illegal Immigration’, N.Y. TIMES, June 20, 2018 <https://tinyurl.com/y7dhmlt6>; U.S. Customs & Border Protection, SW Border Migration FY 2018 (2018) <https://tinyurl.com/ycorhe4p>. 23 See Nadwa Mossad & Ryan Baugh, Refugee Asylees: 2016, Homeland Security: Office of Immigration Statistics (Jan. 2016) <https://tinyurl.com/y7n4bxqk> (Tables 4 and 5). 24 Id.
23

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 25 of 34
COUNTS COUNT ONE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: RULEMAKING CONTRARY TO LAW (8 U.S.C. § 1158) 74. Plaintiffs incorporate by reference paragraphs 1 through 73. 75. The Immigration and Nationality Act, 8 U.S.C. § 1158(a)(1), gives any noncitizen who is physically present in or who arrives in the United States a statutory right to seek asylum, UHJDUGOHVVRIWKDWLQGLYLGXDO¶VLPPLJUDWLRQVWDWXV and manner of entry. 76. By barring the plaintiffs from obtaining asylum based solely on the manner in which they entered the United States, the Rule violates the INA, which prohibits penalizing refugees for entering the country illegally and other than at a port of entry. 77. 8QGHUWKH$GPLQLVWUDWLYH3URFHGXUH$FWDFRXUW³VKDOOhold unlawful and set aside agency action, findings, and conclusions found to be . . QRWLQDFFRUGDQFHZLWKODZ´5 U.S.C. § 706. 78. The Rule is not in accordance with 8 U.S.C. § 1158(a)(1). The Rule is therefore contrary to law under the APA. 79. PlaintifIVKDYHEHHQKDUPHGDVDUHVXOWRI'HIHQGDQWV¶YLRODWLRQVRIWKH,1$ and the APA. In particular, Plaintiffs have been denied a meaningful opportunity to seek asylum, exposing them to multiple other harms including the threat of removal to their home countries and the persecution from which they fled. The Rule also deprives Plaintiffs of other benefits to which asylees are entitled. The harm to Plaintiffs is irreparable. 80. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
24

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 26 of 34
COUNT TWO VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT:
RULEMAKING CONTRARY TO LAW (8 U.S.C. § 1225(b)) 81. Plaintiffs incorporate by reference paragraphs 1 through 80. 82. The Immigration and Nationality Act, including 8 U.S.C. § 1225(b)(1) (expedited removal) and 8 U.S.C. § 1158 (asylum), affords noncitizens an opportunity to apply for asylum, by screening arriving noncitizens to determine whether their asylum claims are potentially viable. 83. Expedited removal procedures apply to certain noncitizens, including noncitizens who lack proper travel documents and either arrive at a port of entry or are apprehended within 14 days of their arrival and within 100 miles of the U.S. international border. See 69 Fed. Reg. 48,877 (Aug. 11, 2004). Under expedited removal procedures, an inspecting officer may summarily remove certain noncitizens. However, if the noncitizen expresses a fear of returning to her country RIRULJLQWKHRIILFHULVUHTXLUHGWRUHIHUKHUWRDQDV\OXPRIILFHUIRUD³FUHGLEOHIHDUGHWHUPLQDWLRQ´ See 8 U.S.C. § 1225(b)(1). 84. %\VWDWXWHDQDSSOLFDQWKDVD³FUHGLEOHIHDURISHUVHFXWLRQ´LIVKHFDQGHPRQVWUDWH ³DVLJQLILFDQWSRVVLELOLW\WDNLQJLQWRDFFRXQWWKHFUHGLELOLW\RIWKHVWDWHPHQWVPDGHE\WKHDOLHQLQ support of the DOLHQ¶VFODLPDQGVXFKRWKHUIDFWVDVDUHNQRZQWRWKHRIILFHUWKDWWKHDOLHQFRXOG HVWDEOLVKHOLJLELOLW\IRUDV\OXPXQGHUVHFWLRQRIWKLVWLWOH´ Id. § 1225(b)(1)(B)(v). 85. Under this Congressional design, a noncitizen in expedited removal proceedings² including a noncitizen who enters without inspection²should not fail a credible fear interview unless there is no significant possibility that that individual would ultimately prevail in her asylum claim. See 8 C.F.R. § 208.30(e)(5) (citing to 8 C.F.R. § 208.13(c)(3)). A credible fear interview is not an on-the-merits adjudication of the claim. To the contrary, the credible fear standard of
25

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 27 of 34
review is intended to be sufficiently low to ensure all bona fide asylum seekers receive a full hearing on their claims.
86. The Rule mandates a negative credible fear finding for anyone who enters without inspection, even in cases where there is a significant possibility that the noncitizen is eligible for asylum. This requirement violates the plain meaning of Section 1225.
87. Immigration judges are mandated to follow the same rules as those that are applicable to asylum officers in denying a credible fear finding for asylum seekers who are subject to the Rule. 8 C.F.R. § 1208.30(e). This also violates the plain text of Section 1225.
88. The Rule forbids a positive credible fear determination even if an asylum officer or DQ LPPLJUDWLRQ MXGJHGHWHUPLQHVWKDWWKHUH LVD ³VLJQLILFDQWSRVVLELOLW\´WKDW IHGHUDO FRXUWVZLOO determine that the individual has a right to seek asylum under the statute notwithstanding the regulations, and that the individual otherwise has a significant possibility of winning such a claim. See id. § 208.30(e)(5); id. § 1208.30(e)(5).
89. Under the Administrative Procedure $FWDFRXUW³VKDOOKROGXQODZIXODQGVHWDVLGH agency action, findings, and conclusions found to be . . QRWLQDFFRUGDQFHZLWKODZ´86& § 706.
90. 'HIHQGDQWV¶Rule is ³QRWFRQVLVWHQWZLWKDSSOLFDEOHSURYLVLRQV´RIWKHDV\OXPDQG expedited removal provisions and thus is ³LQYLRODWLRQRIODZ´8 U.S.C. § 1252(e)(3)(A)(ii). The Rule is therefore contrary to law under the APA.
91. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
26

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 28 of 34
COUNT THREE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: RULEMAKING CONTRARY TO THE TRAFFICKING VICTIMS PROTECTION
REAUTHORIZATION ACT OF 2008
92. Plaintiffs incorporate by reference paragraphs 1 through 91. 93. The William Wilberforce Trafficking VLFWLPV3URWHFWLRQ$FW³7935$´ provides specific asylum protections to children. See 8 U.S.C. § 1158 (b)(3)(C). 94. Under the TVPRA, unaccompanied children who enter without inspection are generally not subject to expedited removal provisions. See id. § 1232(a)(5)(D)(i). Instead, unaccompanied children are placed into regular removal proceedings before an immigration judge without having to pass a credible fear interview. Id. 95. However, the immigration judge is not the first person to whom an unaccompanied minor presents his or her application for asylum. Instead, the TVPRA provLGHVWKDW³>D@QDV\OXP officer . . . shall have initial jurisdiction over any asylum application filed by an unaccompanied DOLHQFKLOG´Id. 96. Under the TVPRA, if the asylum officer denies the application for asylum, the unaccompanied minor then has an opportunity to proceed before the immigration judge. 97. This sequencing implements an important objective of the statute. By allowing an unaccompanied child the opportunity to present an asylum claim to an asylum officer in the first instance, the TVPRA ensures that when a child recounts for the first time the traumatic and sensitive facts of the persecution underlying a claim for humanitarian protection, he or she may do so in a non-adversarial setting. 98. The Rule is contrary to the system established by the TVPRA. Under the Rule, unaccompanied children subject to the Proclamation are ineligible for asylum, and will be subject
27

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 29 of 34
to a mandatory negative credible fear finding. Because asylum officers do not have authority to order withholding of removal or protection under the Convention Against Torture, the asylum officer will, under the Rule, have no obvious basis to hear or assess the merits of the XQDFFRPSDQLHGPLQRU¶VFODLPVRISHUVHFXWLRQ
99. As a result, the first time an unaccompanied minor like GZ will be permitted to present and obtain any review of the traumatic and sensitive details of a claim for asylum is in the adversarial proceeding that occurs before an immigration judge. The Rule thus upends the nonadversarial process mandated by Congress in 8 U.S.C. § 1158 (b)(3)(C).
100. %HFDXVH 'HIHQGDQWV¶ DFWLRQV XQGHU WKH 5XOH DUH FRQWUDU\ WR WKH TVPRA, they violate APA Section $ EHFDXVH WKH\ DUH ³QRW LQ DFFRUGDQFH ZLWK ODZ´ DQG $3$ Section 706(2)(C) becausHWKH\H[FHHG'HIHQGDQWV¶VWDWXWRU\DXWKRULW\
101. Plaintiff GZ is irreparably harmed by losing his statutory right to participate in a non-adversarial process before an asylum officer. Plaintiff GZ therefore asks that this Court grant him declaratory and injunctive relief.
COUNT FOUR VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: RULEMAKING THAT IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION
AND OTHERWISE CONTRARY TO LAW 102. Plaintiffs incorporate by reference paragraphs 1 through 101. 103. The promulgation of the Rule constitutes agency action by the Acting Attorney General and the Secretary that is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law for a number of reasons. Among other things, the Rule is irrational and arbitrary. It is therefore unlawful under 5 U.S.C. § 706(2)(A).
28

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 30 of 34
COUNT FIVE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: CONTRARY TO 28 U.S.C. § 508 AND THE APPOINTMENTS CLAUSE 104. Plaintiffs incorporate by reference paragraphs 1 through 103. 105. President Trump fired former Attorney General Jefferson B. Sessions III on or about November 7, 2018. Mr. Sessions therefore was no longer the Attorney General at the time the Rule issued and could not have promulgated the Rule. 106. 'HIHQGDQW:KLWDNHU¶VDSSRLQWPHQWWRWKHSRVLWLRQ RI$FWLQJ$WWRUQH\*HQHUDO LV invalid because it violates the requirements of 28 U.S.C. § 508. Section UHTXLUHVWKDW³LQFDVH of a vacancy in the office of Attorney General, or his absence or his disability, the Deputy Attorney *HQHUDOPD\H[HUFLVHDOOWKHGXWLHVRIWKHRIILFH´ 28 U.S.C. § 508. If the Deputy Attorney General LVDOVRXQDYDLODEOHWKHQWKHGXWLHV³VKDOO´EHDVVXPHGE\WKH$VVRFLDWH$WWRUney General and the Attorney General may also designate the Solicitor General or the Assistant Attorneys General to assume the duties. Id. § 508(b). 107. Because Defendant Whitaker was not the Deputy Attorney General, Associate Attorney General, Solicitor General, or an Assistant Attorney General at the time of his appointment to the position of Acting Attorney General, his appointment is invalid under 28 U.S.C. § 508. 108. 'HIHQGDQW:KLWDNHU¶VDSSRLQWPHQWWRWKHSRVLWLRQ RI$FWLQJ$WWRUQH\*HQHUDO LV also invalid because it violates the Appointments Clause of the United States Constitution, art. II, § 2, cl. 2. 109. 7KH $SSRLQWPHQWV &ODXVH UHTXLUHV WKDW WKH 3UHVLGHQW REWDLQ ³WKe Advice and &RQVHQWRIWKH6HQDWH´EHIRUHDSSRLQWLQJSULQFLSDO³2IILFHUVRIWKH8QLWHG6WDWHV´ U.S. Const. art. II, § 2, cl. 2.
29

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 31 of 34
110. The Attorney General, as the chief law enforcement officer of the United States, the head of the Department of Justice, and a Cabinet level official who reports only to the President, is a principal officer under the Appointments Clause. See Morrison v. Olson, 487 U.S. 654, 670± 77 (1988). An Acting Attorney General must therefore be appointed by the President and confirmed by the Senate.
111. President Trump did not obtain the advice and consent of the Senate before appointing Defendant Whitaker to the position of Acting Attorney General. 'HIHQGDQW:KLWDNHU¶V appointment is thus in direct contravention of the Appointments Clause.
112. Because Defendant Whitaker lacked authority to promulgate the Rule due to his illegal appointment, the Rule is unlawful under the APA, 5 U.S.C. § 706(2)(C).
COUNT SIX VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: CONTRARY TO REQUIREMENT THAT ASYLUM LIMITS BE MADE BY
REGULATION 113. Plaintiffs incorporate by reference paragraphs 1 through 112. 114. (YHQLI'HIHQGDQW:KLWDNHU¶VDSSRLQWPHQWDV$FWLQJ$WWRUQH\*HQHUDOZDVODZIXO the Rule constitutes agency action in excess of the statutory authority conferred upon him. 115. In 8 U.S.C. § E&&RQJUHVVSURYLGHGWKDW³>W@KH$WWRUQH\*HQHUDOPD\ by Regulation establish additional limitations and conditions, consistent with this section, under ZKLFKDQDOLHQVKDOOEHLQHOLJLEOHIRUDV\OXP´ 116. The Rule violates the statutory requirement that additional limitations and conditions be established by regulation, because it automatically incorporates, without independent rulemaking process, the content of unspecified Presidential proclamations, so long as WKH SURFODPDWLRQ LQFOXGHV WHUPV WKDW ³VXVSHQG>@ RU OLPLW>@ WKH HQWU\ RI DOLHQV DORQJ WKH VRXWKHUQ
30

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 32 of 34
ERUGHUZLWK0H[LFR´DQG LV LVVXHGSXUVXDQW WRVXEVHFWLRQI RUD RIWKH INA on or after November 9, 2018.
117. The Rule is contrary to the statutory requirement that conditions and limitations on the availability of asylum be established by regulation. Instead, the Rule constitutes an abdication of that responsibility by allowing the President, by proclamation and without a rulemaking process, to add or change the conditions and limitations for asylum.
118. The Rule therefore exceeds WKH$FWLQJ$WWRUQH\*HQHUDO¶s statutory authority under 8 U.S.C. § 1158(b)(2)(C) and is invalid under the APA.
COUNT SEVEN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACTION:
NOTICE AND PUBLIC COMMENT PROVISIONS 119. Plaintiffs incorporate by reference paragraphs 1 through 118. 120. The Rule is illegal because the Administration promulgated the Rule without providing the notice and opportunity for public comment set forth in 5 U.S.C. §§ 553(a)±(d).
COUNT EIGHT VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT:
ULTRA VIRES RULEMAKING 121. Plaintiffs incorporate by reference paragraphs 1 through 120. 122. The Rule is illegal and so is ultra vires for the reasons provided in Counts One through Six. See, e.g., Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006); Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1172, 1175 (D.C. Cir. 2003).
31

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 33 of 34

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in its favor

and against Defendants, and to grant the following relief:

a. A declaratory judgment (1) that the Rule is arbitrary, capricious, and contrary to law within the meaning of 5 U.S.C. § 706; (2) that 'HIHQGDQW :KLWDNHU¶V DSSRLQWPHQW WR WKH

position of Acting Attorney General is unlawful, and the promulgation of the Rule therefore

constitutes agency action in excess of the statutory authority conferred upon the office of the Attorney General; (3) LQWKHHYHQWWKDWWKH&RXUWGHWHUPLQHV'HIHQGDQW:KLWDNHU¶VDSSRLQWPHQW

was lawful, that the promulgation of the Rule violates the requirement that additional limitations

on the availability of asylum be established by regulation; (4) that the Rule was promulgated in

violation of 5 U.S.C. § 553; and (5) the Rule is ultra vires because it is illegal.

b. Such preliminary injunctive and ancillary relief as may be necessary to avert the

likelihood of irreparable harm to Plaintiffs during the pendency of this action, including, but not

limited to, temporary and preliminary injunctions;

c. A permanent injunction forbidding Defendants from implementing or enforcing the

Rule; d.

An order awarding Plaintiffs¶ FRVWV RI VXLW DQG UHDVRQDEOH DWWRUQH\V¶ IHHV DQG

expenses pursuant to any applicable law; and

31

Case 1:18-cv-02718-RDM Document 1 Filed 11/20/18 Page 34 of 34

 
 Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 1 of 69

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

S.M.S.R., R.S.P.S., Z.A.G.G., D.A.L.G., L.C.V.R., C.S.C.C., R.G.G., N.A.G.A., A.J.A.C., on behalf of his minor son, A.J.E.A.M., K.P.P.V., R.D.P.V., and Y.A.L.P., on behalf of themselves and all others similarly situated;
Capital Area Immigrants’ Rights Coalition, 1612 K Street NW, #204 Washington, DC 20006;
Refugee and Immigrant Center for Education and Legal Services, Inc., 1305 North Flores Street San Antonio, TX 78212;
Plaintiffs,
v.
Donald J. Trump, in his official capacity as President of the United States, 1600 Pennsylvania Avenue, NW Washington, DC 20500;
Matthew Whitaker, in his official capacity as Acting Attorney General of the United States, U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530;
Kirstjen M. Nielsen, in her official capacity as Secretary of Homeland Security, 25 Murray Lane SW Washington, DC 20528;
Lee Francis Cissna, in his official capacity as Director of U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue NW Room 4210, MS: 2120 Washington, DC 20529;

Civil Action No. 18-2838-RDM
[Consolidated with Civil Action No. 18-2718-RDM]
AMENDED CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 2 of 69
Kevin K. McAleenan, in his official capacity as Commissioner of U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW MS: 1345 Washington, DC 20229;
Ronald D. Vitiello, in his official capacity as Acting Director of Immigration and Customs Enforcement, 500 12th Street NW Washington, DC 20536;
James McHenry, in his official capacity as Director of the Executive Office for Immigration Review, U.S. Department of Justice 5107 Leesburg Pike Falls Church, VA 22041;
U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530;
U.S. Department of Homeland Security, 245 Murray Lane SW Mailstop 0485 Washington, DC 20528;
U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue NW Washington, DC 20529;
U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW Washington, DC 20229;
U.S. Immigration and Customs Enforcement, 500 12th Street SW Washington, DC 20530;
Executive Office for Immigration Review; U.S. Department of Justice 5107 Leesburg Pike Falls Church, VA 22041;
Defendants.
2

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 3 of 69
INTRODUCTION 1. Plaintiffs Capital Area Immigrants’ Rights Coalition (“CAIR Coalition”), Refugee and Immigrant Center for Education and Legal Services, Inc. (“RAICES”), and S.M.S.R., R.S.P.S., Z.A.G.G., D.A.L.G., L.C.V.R., C.S.C.C., R.G.G., N.A.G.A., A.J.A.C., on behalf of his minor son, A.J.E.A.M., K.P.P.V., R.D.P.V., and Y.A.L.P. (“Individual Plaintiffs”), on behalf of themselves and a class of all others similarly situated (collectively, “Plaintiffs”), bring this lawsuit to challenge the Government’s categorical bar on asylum eligibility for individuals and families entering the United States across the southern border outside designated ports of entry. 2. Our immigration laws, consistent with the United States’ international legal obligations, reflect Congress’s commitment to aid persons fleeing persecution regardless of their point of entry: “[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 “irrespective of such alien’s status,” has the right to apply for asylum. 8 U.S.C. § 1158(a)(1). 3. On November 9, 2018, directly countermanding that and other statutory guarantees, and without using the notice and comment procedures required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, the Acting Attorney General and Secretary of Homeland Security issued an interim final rule (the “Rule”) providing that any individuals subject to a presidential proclamation restricting entry through the southern border pursuant to Immigration and Nationality Act (“INA”) § 212(f), 8 U.S.C. § 1182(f), or INA § 215(a)(1), 8 U.S.C. § 1185(a)(1), are ineligible for asylum. See Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018).
3

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 4 of 69
4. The next day, the President signed a Proclamation1 suspending the entry of all persons entering the United States without inspection at the southern border with Mexico.
5. Taken together, the Rule and Proclamation create an unlawful “mandatory bar on eligibility for asylum,” 83 Fed. Reg. 55,939, that operates against many of those who need it most: migrants fleeing persecution and violence across the southern border of the United States. Such asylum seekers are disproportionately comprised of women, children, LGBT individuals, and other vulnerable populations at risk of violence in their home countries.
6. Plaintiffs respectfully ask the Court to issue an order declaring that the Rule and Proclamation violate the INA, the APA, and the Constitution, and enjoining their enforcement and implementation across the United States.
7. Because Individual Plaintiffs are at risk of deportation, and Plaintiffs CAIR Coalition and RAICES also will suffer irreparable harm absent an injunction against the Rule, Plaintiffs have moved for a temporary restraining order and a preliminary injunction.
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, the INA, the APA, and other federal statutes. 9. The Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the APA, 5 U.S.C. § 706; the Mandamus and Venue Act, 28 U.S.C. § 1361; Rules 23, 57, and 65 of the Federal Rules of Civil Procedure (“Federal Rules”); and the Court’s inherent equitable powers. 10. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)(2), (e)(1). Upon information and belief, a substantial part of the events giving rise to this claim occurred in this
1 “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” 83 Fed. Reg. 57,661 (Nov. 9, 2018) (the “Proclamation”).
4

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 5 of 69
District, including the decision to implement the policy changes challenged in this action. Each individual Defendant also is an officer of the United States sued in his or her official capacity, and the majority of Defendants reside in this District.
11. To the extent that Plaintiffs’ claims constitute “[j]udicial review of determinations under [8 U.S.C. § 1225(b)] and its implementation,” jurisdiction and venue also are proper under 8 U.S.C. § 1252(e)(3).
PARTIES S.M.S.R. and R.S.P.S. 12. Plaintiff S.M.S.R. is a young mother from Honduras seeking asylum in the United States. S.M.S.R. fled Honduras in October 2018 with her minor son, R.S.P.S., because members of the Mara Salvatrucha (“MS-13”) gang repeatedly attacked R.S.P.S. and threatened to kill both him and S.M.S.R. on at least four occasions in the past eight months. The gang members threatened to kill them because of S.M.S.R.’s refusal to live with the gang as their “wife,” and R.S.P.S.’s refusal to join the gang. S.M.S.R. told the gang that she could not act as their “wife” because of her Evangelical Christian beliefs. 13. Based on past observation, information, and belief, the police in Honduras would not help S.M.S.R. or her son if they reported MS-13’s violence and threats against them. S.M.S.R. has seen police officers receiving payments from gang members and greeting gang members in a friendly way, despite having received reports of gang-related murders in the area. S.M.S.R. also cannot be safe in other areas of Honduras, because MS-13 took pictures of her and told her they would find her. 14. S.M.S.R. decided to flee Honduras with her son the day after the most recent death threat that they received from MS-13 gang members in early October 2018. S.M.S.R. and
5

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 6 of 69
R.S.P.S. entered the United States without inspection on November 10, 2018, and were quickly detained by U.S. immigration officials.
15. On November 16, 2018, while detained at the South Texas Family Residential Center in Dilley, Texas, S.M.S.R. received an orientation in which she was provided with information about what a credible fear interview was. Based on this orientation, she understood that she would receive a “credible fear” interview, and upon a positive result, would be permitted to apply for asylum.
16. Plaintiff S.M.S.R. was interviewed by an asylum officer on November 19, 2018. S.M.S.R. confirmed to the asylum officer that she was testifying on behalf of herself and her son, R.S.P.S., and that she and her son wanted R.S.P.S. to be included in her claim for asylum protection. After S.M.S.R. indicated that she had entered outside a port of entry on November 10, 2018, the asylum officer told S.M.S.R. that she had entered the United States illegally and was ineligible for asylum based on a presidential proclamation and her entry outside a designated port of entry.
17. The asylum officer further told S.M.S.R. that she was not eligible for a credible fear interview based on the Proclamation, and that the purpose of the rest of the interview was to determine if she had a reasonable fear of persecution or torture. S.M.S.R. was confused about what constitutes a “reasonable fear” and did not receive any orientation on what a reasonable fear interview was, or why she could not apply for asylum in the United States.
18. Plaintiff R.S.P.S., the minor son of S.M.S.R., is a boy from Honduras seeking asylum in the United States. R.S.P.S. fled Honduras in October 2018 with his mother, S.M.S.R., because members of the MS-13 gang repeatedly attacked R.S.P.S. and threatened to kill both him and S.M.S.R. on at least four occasions in the past eight months. The gang members threatened
6

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 7 of 69
to kill them because of S.M.S.R.’s refusal to live with the gang as their “wife,” and R.S.P.S.’s refusal to join the gang. R.S.P.S. cannot do the things that the gang told him he would have to do—including using drugs and beating up and killing people—because of his Evangelical Christian beliefs.
19. Members of MS-13 have attacked R.S.P.S. three times, leaving him with a scar on his hand and bruises covering his chest and arm. The day before R.S.P.S. and his mother left Honduras, gang members told him that the next time they saw him they would not “warn” him again, and would kill him and his mother.
20. Based on past observation, information, and belief, the police in Honduras would not help R.S.P.S. or his mother if they reported MS-13’s violence and threats against them. In R.S.P.S.’s experience, the police have failed to respond to numerous gang-related murders reported in his neighborhood in Honduras. R.S.P.S. also has seen police officers ignore gang members using drugs in front of them.
21. R.S.P.S. entered the United States without inspection on November 10, 2018 with his mother, and they were quickly detained by U.S. immigration officials. R.S.P.S. was briefly questioned for “reasonable fear” by the asylum officer following his mother’s interview on November 19, 2018. R.S.P.S. told the asylum officer about three incidents of violence he had experienced from MS-13 gang members and that there is nowhere he and his mother could safely live in Honduras.
22. Plaintiffs S.M.S.R. and R.S.P.S. received supervised release from detention into the community. If they are returned to Honduras, both S.M.S.R. and R.S.P.S. fear persecution in the form of torture or death by MS-13 gang members.
7

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 8 of 69
23. On November 27, 2018, Plaintiffs S.M.S.R. and R.S.P.S. each were served with a document styled a Notice to Appear (“NTA”) for a hearing under INA § 240. The documents indicated that both S.M.S.R. and R.S.P.S. received positive credible fear determinations, but neither document included a date or time for a hearing.
24. Plaintiffs S.M.S.R. and R.S.P.S. subsequently were issued Notices of Hearing in Removal Proceedings dated December 15, 2018, setting a hearing for January 3, 2018.
Z.A.G.G. and D.A.L.G. 25. Plaintiff Z.A.G.G. is a mother from Guatemala seeking asylum in the United States. Z.A.G.G. fled Guatemala in October 2018 with her minor son, D.A.L.G., due to persecution based on her race and her son’s medical condition. 26. Z.A.G.G. has faced lifelong discrimination and violence on account of being a member of the K’iche indigenous group in Guatemala. When Z.A.G.G. was thirteen years old, she was raped because she is indigenous. Her attacker told her that she was dirty and did not need to be treated well because of her race. On another occasion, villagers threw rocks at her face, scarring her chin. Even Z.A.G.G.’s teachers would pull her hair, kick her, and tell her she did not deserve anything because she belongs to an indigenous group. 27. Z.A.G.G. fled Guatemala after non-indigenous people told her that before she knew it, she and her son would be dead. She fears that she and D.A.L.G. will be killed because one year ago, non-indigenous people in her village murdered an indigenous man for speaking K’iche. Plaintiffs Z.A.G.G. and D.A.L.G. speak some K’iche, particularly with family, and Z.A.G.G.’s K’iche noticeably affects the way she speaks Spanish. 28. Plaintiff D.A.L.G., the minor son of Z.A.G.G., is a two-year-old boy from Guatemala seeking asylum in the United States. D.A.L.G. fled Guatemala in October 2018 with
8

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 9 of 69
his mother, Z.A.G.G., because of the persecution he faces on account of his race and his medical condition, a “pigeon chest” that visibly affects the size of his chest and the way he speaks and walks.
29. Guatemalan society ostracizes D.A.L.G. because of his pigeon chest. Members of the community have pushed him and said they do not want him living in their town because he is sick. People refuse to go near D.A.L.G. because of the way his condition affects his gait and speech. The community hospital in their town refuses to treat D.A.L.G. and Z.A.G.G. because of their race.
30. Based on past observation, information, and belief, the police in Guatemala would not help Plaintiff Z.A.G.G. or her son. Z.A.G.G. has reported assaults by non-indigenous people to the police, but they ignored her because they inferred she is indigenous due to her appearance and the way she dresses.
31. Z.A.G.G. believes that there is nowhere in Guatemala that she and D.A.L.G. could be safe, because indigenous people face persecution and violence throughout the entire country. Nor could they move to an indigenous community; indigenous leaders refuse to talk to her and D.A.L.G. because of D.A.L.G.’s medical condition.
32. If they are returned to Guatemala, Z.A.G.G. and D.A.L.G. fear persecution in the form of torture or death on account of their race and D.A.L.G.’s medical condition.
33. Z.A.G.G. and D.A.L.G. entered the United States without inspection on November 18, 2018, and were quickly detained by U.S. immigration officials.
34. Z.A.G.G., on behalf of herself and her son, underwent a credible fear interview by an asylum officer on December 4, 2018.
9

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 10 of 69
35. After December 4, 2018, Z.A.G.G. and D.A.L.G. received documents styled NTAs for further proceedings under INA § 240, indicating that both received positive credible fear determinations. Neither document included a date or a time for a hearing.
L.C.V.R. and C.S.C.C. 36. Plaintiff L.V.C.R. is a mother from El Salvador seeking asylum in the United States. L.C.V.R. fled El Salvador in October 2018 with her minor son, C.S.C.C., because of death threats from MS-13 after she witnessed a crime and cooperated with the police. 37. Plaintiff C.S.C.C. is a two-year-old boy from El Salvador seeking asylum in the United States. C.S.C.C. fled El Salvador in October 2018 with his mother, L.V.C.R., because of death threats from MS-13 after she witnessed a crime and cooperated with the police. 38. In 2014, while L.C.V.R. was walking to a store, she witnessed several members of MS-13 commit a massacre. The gang members saw L.C.V.R. as she ran away. When the police found out that L.C.V.R. was a witness, they asked her to cooperate. L.C.V.R. identified three men who committed the murders. 39. The police kept L.C.V.R. in protective custody for several days. The police told L.C.V.R. to move away from her town immediately for her safety, so she moved to an island in another part of El Salvador. 40. In September 2018, a policeman told Plaintiff L.C.V.R. that one of the men she had identified was released from prison. 41. In October 2018, L.C.V.R. received a call from gang members telling her that she and her son would be killed. They said that because of her, they had been caught by the police, and now she would pay the price. L.C.V.R. also found out that gang members from the mainland contacted gang members on the island and told them to kill L.C.V.R. and C.S.C.C.
10

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 11 of 69
42. Based on past observation, information, and belief, the police in El Salvador would not help L.C.V.R. or her son. L.C.V.R. reported the October 2018 death threat to the police, but they told her that they could not help her because they feared for their own lives and did not have the resources to protect her. L.C.V.R. further knows that the gangs cooperate with the police. While in protective custody, L.C.V.R. twice heard the police telling gang members about raids so that the gang could avoid them.
43. Plaintiff L.C.V.R. believes that there is nowhere in El Salvador that she and C.S.C.C. could be safe, because MS-13 found and threatened her even though she had moved to a different part of the country.
44. If they are returned to El Salvador, Plaintiffs L.C.V.R. and C.S.C.C. fear persecution, torture, or death on account of L.C.V.R. cooperating as a witness against members of MS-13.
45. L.C.V.R. and C.S.C.C. entered the United States without inspection on November 18, 2018, and were quickly detained by U.S. immigration officials.
46. L.C.V.R., on behalf of herself and her son, underwent a credible fear interview by an asylum officer on December 1, 2018.
47. After December 1, 2018, L.C.V.R. and C.S.C.C. received documents styled NTAs indicating that both received positive credible fear determinations. Neither document included a date or a time for a hearing.
R.G.G. and N.A.G.A. 48. Plaintiff R.G.G. is a father from Guatemala seeking asylum in the United States. R.G.G. fled Guatemala in November 2018 with N.A.G.A., whom he considers his minor son, after suffering a lifetime of persecution because he is gay.
11

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 12 of 69
49. Plaintiff N.A.G.A. is a two-year-old boy from Guatemala seeking asylum in the United States. N.A.G.A. fled El Salvador in November 2018 with R.G.G., who has served as his father, because of persecution R.G.G. faced and death threats that they both received because of R.G.G.’s sexual orientation.
50. When R.G.G. was nine years old, two brothers in his neighborhood regularly raped him over a period of three months. Approximately three months after the rapes began, R.G.G. defended himself with a knife. In response, the brothers stopped raping R.G.G. but threatened him with death if he ever told anyone about their actions. Nevertheless, whenever the brothers saw R.G.G., they continued to threaten him and call him homophobic slurs.
51. These attacks caused R.G.G. years of fear and depression. At the age of 15, R.G.G. publicly acknowledged that he is gay. Upon coming out, R.G.G. became increasingly isolated from his family and the community in which he grew up. He left his hometown for Guatemala City, where he accepted a position as a waiter. Shortly after beginning work, he learned that his boss intended to prostitute him. R.G.G. was forced to perform sex work until he was eighteen years old.
52. At age 18, R.G.G. returned to his hometown to go back to school. But the two brothers who had raped him almost a decade earlier began threatening him again. Shortly after R.G.G. returned home, one of the brothers shot him in the leg.
53. The threats and violence continued for another four years. In 2018, R.G.G. began receiving threatening letters from the brothers that he needed to pay them extortion demands because he was gay and needed protection. The letters also said that if R.G.G. did not pay, the brothers would harm or kill N.A.G.A. The last letter R.G.G. received, in October 2018, prompted him to flee Guatemala with N.A.G.A. and seek asylum in the United States.
12

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 13 of 69
54. Based on past observation, information, and belief, the police in Guatemala would not help R.G.G. or N.A.G.A. if R.G.G. reported the violence and threats against them. R.G.G. believes that the police in Guatemala are corrupt and fail to protect sexual minorities. Once, while in police custody, R.G.G. was held down by three police officers and forced to perform oral sex on another officer.
55. R.G.G. believes that there is nowhere in Guatemala that he and N.A.G.A. could be safe, because gay men face persecution and violence throughout the entire country. Even R.G.G.’s own brother told him it would be better to die than to be a gay man.
56. If they are returned to Guatemala, R.G.G. and N.A.G.A. fear persecution in the form of torture or death on account of R.G.G.’s sexual minority status.
57. R.G.G. and N.A.G.A. entered the United States without inspection on November 17, 2018, and were quickly detained by U.S. immigration officials.
58. R.G.G., on behalf of himself and N.A.G.A., underwent a credible fear interview by an asylum officer on December 7, 2018.
59. After December 7, 2018, the Department of Homeland Security issued R.G.G. and N.A.G.A. documents styled NTAs indicating that both received positive credible fear determinations. Neither document included a date or a time for a hearing.
A.J.A.C., on behalf of his minor son A.J.E.A.M. 60. Plaintiff A.J.E.A.M. is a nine-year-old boy from Guatemala seeking asylum in the United States. A.J.E.A.M. fled Guatemala in November 2018 with his father, A.J.A.C., because of persecution they suffered due to their family membership. 61. A.J.A.C. owned and ran a restaurant with his family. In September 2018, A.J.A.C.’s wife received an extortion demand from the Mara 18 gang. The caller demanded that
13

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 14 of 69
the family pay extortion payments to the gang and threatened to kill her and her family if they failed to pay.
62. Approximately one week later, A.J.A.C. received a second phone call demanding extortion, again from the Mara 18 gang. The gang member threatened to kill A.J.A.C. and his family. The gang member said that Mara 18 knew the movements of A.J.A.C. and his family. A.J.A.C. received a third phone call from the Mara 18 gang in early October 2018. The caller again made an extortion demand and again threatened to kill the family.
63. A.J.A.C. and his wife changed their phone number and reported the threats to the local police the day after the third call.
64. In early November 2018, A.J.A.C. witnessed the murder of one of his customers. A.J.A.C. watched as a teenage girl emerged from a gray car, shot A.J.A.C.’s customer ten to twelve times, and then drove away. A.J.A.C. suspects that other occupants in the car may have observed that he witnessed the murder.
65. A.J.E.A.M. is aware of violence perpetrated by gangs in his community. While he was playing with a friend, A.J.E.A.M. heard the gunshots that killed two people.
66. Based on past observation, information, and belief, the police in Guatemala would not help A.J.E.A.M. A.J.A.C. has heard stories of people who make reports to the police and then are murdered. A.J.A.C. also stated that the police do not have the resources to protect everyone.
67. A.J.E.A.M. believes that there is nowhere he will be safe in Guatemala because his family is now a target of the Mara 18 gang, which is pervasive throughout the country.
68. If he is returned to Guatemala, A.J.E.A.M. fears persecution in the form of torture or death because of his relationship to his family and his family’s failure to pay the extortion
14

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 15 of 69
demands by the Mara 18 gang. A.J.E.A.M. believes that, because Mara 18 threatened his father and mother, they will harm him too.
69. A.J.E.A.M. and A.J.A.C. entered the United States without inspection on November 15, 2018, and were quickly detained by U.S. immigration officials.
70. In or around 1998, A.J.A.C. previously had entered the United States. In 2001, A.J.A.C. received a removal order from an immigration judge. In or around 2005, A.J.A.C. voluntarily left the United States pursuant to his removal order.
71. A.J.A.C. and A.J.E.A.M. underwent fear interviews by an asylum officer on November 28, 2018. Because A.J.A.C. had a prior removal order that was reinstated by Defendant DHS, he underwent a reasonable fear interview. A.J.E.A.M., who has no prior removal order, underwent a credible fear interview. A.J.A.C.’s reasonable fear interview and A.J.E.A.M.’s credible fear interview took place together, at the same time and place, with the same asylum officer. Both father and son were present in the same room during the interviews, which generated one set of interview notes.
72. After November 29, 2018, A.J.E.A.M. received a document styled an NTA indicating that he received a positive credible fear determination. The document does not include a date or time for a hearing.
73. On November 30, 2018, Defendants informed A.J.A.C. that he had received a negative reasonable fear determination. A.J.A.C. reserved his right to have an immigration judge review the negative reasonable fear finding, and is awaiting a court date.
K.P.P.V. and R.D.P.V. 74. Plaintiff K.P.P.V. is a mother from Honduras seeking asylum in the United States. K.P.P.V. fled Honduras in November 2018 with her minor daughter, R.D.P.V., because of death
15

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 16 of 69
threats from an arms and drug trafficking gang, called Los Gaidos, for which her ex-partner previously worked.
75. Plaintiff R.D.P.V. is a seven-year-old girl from Honduras seeking asylum in the United States. R.D.P.V. fled Honduras in November 2018 with her mother, K.P.P.V., because of death threats to both her and her mother from Los Gaidos.
76. K.P.P.V. was in a relationship with R.D.P.V.’s father from 2009 to 2017. K.P.P.V. left the relationship in 2017 when she discovered that her partner was working for Los Gaidos.
77. In early 2018, R.D.P.V.’s father left Los Gaidos. In May 2018, K.P.P.V. received her first threat from members of Los Gaidos, who were looking for R.D.P.V.’s father. Two masked men came to her house and threatened to kill her if she did not tell them where he was, even though she had not communicated with R.D.P.V.’s father and did not know where he was.
78. In November 2018, two members of Los Gaidos returned and told K.P.P.V. that they would kill her and her children if she did not tell them where R.D.P.V.’s father was. K.P.P.V. and R.D.P.V. fled Honduras shortly thereafter.
79. R.D.P.V. was present at the house when the men from Los Gaidos made their final threat. K.P.P.V. took R.D.P.V. with her to the United States because she was afraid that Los Gaidos members would recognize R.D.P.V.
80. Based on past observation, information, and belief, the police in Honduras would not help K.P.P.V. or her daughter. K.P.P.V. reported the threats to the police but they told her that they could not help her, because she did not have specific proof about who threatened her. Additionally, K.P.P.V. knows of a teenage girl in her town who reported a similar claim against Los Gaidos to the police and was later murdered.
16

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 17 of 69
81. Furthermore, K.P.P.V. believes that the police work with gangs and drug cartels like Los Gaidos. K.P.P.V. witnessed R.D.P.V.’s father give money to the police multiple times.
82. K.P.P.V. believes that there is nowhere in Honduras that she and R.D.P.V. could be safe, because Los Gaidos is connected to every part of the country. K.P.P.V. has reason to believe that Los Gaidos has ties to criminal organizations, the police, and the government in other parts of Honduras.
83. If they are returned to Guatemala, K.P.P.V. and R.D.P.V. fear persecution in the form of torture or death at the hands of Los Gaidos.
84. Plaintiffs K.P.P.V. and R.D.P.V. entered the United States without inspection on November 21, 2018, and were quickly detained by U.S. immigration officials.
85. Plaintiffs K.P.P.V. and R.D.P.V. currently are detained at the South Texas Family Residential Center in Dilley, Texas.
86. K.P.P.V., on behalf of herself and her daughter, underwent a credible fear interview by an asylum officer on December 18, 2018 and are awaiting their determinations.
Y.A.L.P. 87. Plaintiff Y.A.L.P. is sixteen-year-old unaccompanied minor from Guatemala seeking asylum in the United States. Y.A.L.P. fled Guatemala in November 2018 with her minor daughter, S.E.P.L., because of death threats from gang members who wanted to kill her brother for not joining the gang. 88. About a year before Y.A.L.P. fled Guatemala, her brother was being recruited by a local gang. He did not want to join the gang because he did not want to rob people. Because he refused to join the gang, Y.A.L.P.’s brother and her mother received threatening messages. Y.A.L.P.’s brother and mother fled Guatemala because of these threats.
17

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 18 of 69
89. After her brother and mother left Guatemala, Y.A.L.P. began receiving threats herself. Gang members left a letter at her house saying that they believed that she was hiding her brother and that she needed to bring him back, or they would kill Y.A.L.P. and her daughter.
90. Based on past observation, information, and belief, the police in Guatemala would not help Y.A.L.P. or her daughter. Y.A.L.P. and her aunt reported the threatening letter to the police immediately, but the policy only copied the letter and recorded something on a computer. Y.A.L.P. believes that the police in her community are also afraid of the gangs.
91. Y.A.L.P. believes that there is nowhere in Guatemala that she and S.E.P.L. could be safe, because gangs operate throughout the country.
92. If she is returned to Guatemala, Y.A.L.P. fears that she and S.E.P.L. will be persecuted, tortured, or killed because her brother refused to join a gang.
93. After a week and a half in Mexico, Y.A.L.P. and S.E.P.L. arrived at the border but did not know what to do. Y.A.L.P. asked a boy for help, and she and the boy decided to cross the Rio Grande river together.
94. Y.A.L.P. and S.E.P.L. entered the United States without inspection on November 26, 2018, and were quickly detained by U.S. immigration officials.
95. On November 26, 2018, the Department of Homeland Security issued Y.A.L.P. a document styled an NTA, which did not include a date or a time for a hearing.
CAIR Coalition 96. Plaintiff CAIR Coalition is a 501(c)(3) nonprofit legal services and advocacy organization with its principal place of business in the District of Columbia. CAIR Coalition provides direct legal services to migrant men, women, and children at risk of detention and deportation in the Washington, DC metropolitan area and beyond, including with respect to
18

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 19 of 69
credible fear interviews in the course of removal procedures, asylum applications, and adversarial proceedings in immigration courts. The organization also engages in impact and advocacy work related to immigration and trains and supervises pro bono attorneys.
RAICES 97. Plaintiff RAICES is a 501(c)(3) nonprofit legal services and advocacy organization with offices in San Antonio, Austin, Corpus Christi, Dallas, Fort Worth, and Houston, Texas. Founded in 1986 as the Refugee Aid Project, RAICES has grown to become the largest immigration legal services provider in Texas. The organization provides consultations and direct legal services to immigrants and refugees in Texas, as well as to clients after they leave the state. In 2017 alone, RAICES staff closed 51,000 cases at no cost to its clients.
Defendants 98. Defendant Donald J. Trump is the President of the United States. On November 9, 2018, he issued the Proclamation. He is sued in his official capacity. 99. Defendant Matthew Whitaker is sued in his official capacity as the putative Acting Attorney General of the United States. The Attorney General is responsible for administering the U.S. immigration laws pursuant to 8 U.S.C. § 1103, and has the authority to grant noncitizens asylum and other relief. He also directs each of the component agencies within Defendant U.S. Department of Justice. Whitaker was Acting Attorney General when the Department of Justice issued the Rule challenged in this action. 100. Defendant Kirstjen Nielsen is sued in her official capacity as the Secretary of the U.S. Department of Homeland Security. In that capacity, she is responsible for administering the U.S. immigration laws pursuant to 8 U.S.C. § 1103, has the authority to grant noncitizens asylum
19

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 20 of 69
and other relief, and issued the Rule challenged in this action. She also directs each of the component agencies within Defendant U.S. Department of Homeland Security.
101. Defendant L. Francis Cissna is sued in his official capacity as the Director of U.S. Citizenship and Immigration Services. In that capacity, he is responsible for overseeing asylum officers who adjudicate applicants’ asylum claims, including by conducting “credible fear” interviews pursuant to 8 U.S.C. § 1225(b)(1)(B).
102. Defendant Kevin K. McAleenan is sued in his official capacity as the Commissioner of U.S. Customs and Border Protection. In that capacity, he oversees the agency responsible for securing U.S. borders with respect to trade, immigration, and agricultural protection.
103. Defendant Ronald Vitiello is sued in his official capacity as the Acting Director of U.S. Immigration and Customs Enforcement. In this capacity, he is responsible for civil and criminal enforcement of federal laws governing border control, customs, trade, and immigration.
104. Defendant James McHenry is sued in his official capacity as the Director of the Executive Office for Immigration Review. In that capacity, he is responsible for the sub-agency of the U.S. Department of Justice that conducts limited review of negative credible fear determinations made pursuant to 8 U.S.C. § 1225(b)(1)(B).
105. Defendant U.S. Department of Justice (“DOJ”) is a cabinet-level department of the federal government responsible for enforcement of the laws of the United States.
106. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level department of the federal government responsible for enforcing the immigration laws of the United States. Its component sub-agencies include Defendant U.S. Citizenship and Immigration
20

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 21 of 69
Services, Defendant U.S. Customs and Border Protection, and Defendant U.S. Immigration and Customs Enforcement.
107. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the subagency of DHS responsible for conducting interviews of asylum applicants through its asylum officers.
108. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-agency of DHS responsible for the initial processing and detention of noncitizens who are apprehended at or near U.S. borders.
109. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency of DHS responsible for carrying out removal orders and overseeing immigration detention in the United States.
110. Defendant Executive Office for Immigration Review (“EOIR”) is a sub-agency of DOJ. See 28 C.F.R. § 0.115. It is responsible for conducting limited review of negative credible fear determinations made pursuant to 8 U.S.C. § 1225(b)(1)(B).
BACKGROUND Asylum Protections under International and Domestic Law 111. Under existing federal law, and consistent with the United States’ international legal obligations, individuals fleeing persecution and violence are entitled to pursue several forms of legal protection in the United States. 112. These forms of protection include (1) asylum, 8 U.S.C. § 1158; (2) withholding of removal, 8 U.S.C. § 1231(b)(3); and (3) protection under the Convention Against Torture (“CAT”), see Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L.
21

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 22 of 69
No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231); 8 C.F.R. § 208.18.
113. Modern asylum procedures initially were established in the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, which revised the INA’s procedures for admission of refugees and announced that “it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible,” id. § 101(a) (codified as Note to 8 U.S.C. § 1521).
114. In creating the asylum provisions, Congress sought to bring the United States into compliance with its international obligations under the 1967 United Nations Protocol Relating to the Status of Refugees and the 1951 Convention Relating to the Status of Refugees. These and other international treaties reflect the United States’ obligations to permit refugees to seek asylum in its borders, to impose no penalties on asylum seekers based on their unlawful status, and to prevent the return (or “refoulement”) of individuals to countries where they would face persecution or torture.
115. In particular, Article 31(1) of the Optional Protocol provides that “[t]he Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Article 33(1) of the 1951 Convention Relating to the Status of Refugees and the Optional Protocol “imposed a mandatory duty on contracting States not to return an alien to a country where his ‘life or freedom would be threatened’” on account of race, religion,
22

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 23 of 69
nationality, membership in a particular social group, or political opinion. I.N.S. v. CardozaFonseca, 480 U.S. 421, 429 (1987) (quoting 189 U.N.T.S. 150, 176 (1954)).
116. “Congress imbued these international commitments with the force of law when it enacted the Refugee Act of 1980,” and when it subsequently passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, “which refashioned the above principles into their current form” in the INA. R-S-C v. Sessions, 869 F.3d 1176, 1178 (10th Cir. 2017). This “refashioning” in the INA included the modern prohibition on withholding of removal as to individuals threatened on account of race, religion, nationality, social group membership, or political opinion, 8 U.S.C. § 1231(b)(3)(A), 8 C.F.R. § 1208.16, and the guarantee that all noncitizens may apply for asylum on the same grounds, 8 U.S.C. § 1158(a)(1). See R-S-C, 869 F.3d at 1178.
117. Specifically, Congress made clear that all noncitizens may apply for asylum, regardless of how or where they entered into the United States. In particular, 8 U.S.C. § 1158(a)(1) provides 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 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.” 8 U.S.C. § 1158(a)(1) (emphases added).2
118. Asylum may be granted to an individual who has a “well-founded fear of persecution” on the same five grounds enumerated in our international agreements: “race,
2 The Board of Immigration Appeals has held that “an alien’s manner of entry or attempted entry . . . should not be considered in such a way that the practical effect is to deny [asylum] relief in virtually all cases.” Matter of Pula, 19 I. & N. Dec. 467, 473 (BIA 1987).
23

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 24 of 69
religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42)(A).
119. An applicant’s testimony is sufficient to sustain her burden to prove such wellfounded fear without corroboration if it “is credible, is persuasive, and refers to specific facts” sufficient to demonstrate that asylum may be warranted. Id. § 1158(b)(1)(B)(ii). A ten percent chance of harm is sufficient to establish a “well-founded fear.” Cardoza-Fonseca, 480 U.S. at 440; see, e.g., Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018).
120. There are three principal ways in which individuals may seek asylum: a. First, where a noncitizen is not in any kind of removal proceedings, her
application is “affirmative.” See 8 C.F.R. § 208.2(a). She files an application with Defendant USCIS and has an interview with an asylum officer. Id. §§ 208.3, 208.4, 208.9.
b. Second, a noncitizen in ordinary removal proceedings under INA § 240, 8 U.S.C. § 1229a, may file a “defensive” application in order to prevent her removal, 8 C.F.R. § 208.2(b).
c. Third, a noncitizen in “expedited removal” proceedings under INA § 235, 8 U.S.C. § 1225—which apply to certain noncitizens who arrive at ports of entry or are apprehended after entering without inspection, see id. § 1225(b)(1)3—also may seek asylum to prevent her removal. If the individual indicates an intention to apply for asylum or a fear of persecution during the expedited removal process, she is entitled to a “credible fear” screening interview with an asylum officer. Id. § 1225(b)(1)(B). If the officer finds she has a “credible fear of persecution,” defined as a “significant possibility” that the alien could establish eligibility
3 See also Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004) (expedited removal applies to those who entered without inspection and are apprehended within 14 days of entry and 100 miles of the border).
24

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 25 of 69
for asylum, she is then placed in ordinary removal proceedings under INA § 240 and permitted to apply for asylum as part of that process. Id.; 8 C.F.R. § 208.30(f). If the officer finds that the individual does not have a credible fear, the officer must provide her with a written notice of decision for review by an immigration judge. 8 C.F.R. § 208.30(g).
121. Withholding of removal separately offers protection to individuals facing persecution on the same five grounds for which asylum is available (race, religion, nationality, membership in a particular social group, or political opinion), 8 U.S.C. § 1231(b)(3)(A), and the domestic implementing legislation for the CAT offers individuals protection against return to countries where they are likely to be tortured,4 see Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242(b) (requiring implementation of CAT); 8 C.F.R. § 208.18.
122. Noncitizens may obtain withholding of removal and CAT relief in different ways, each of which is defensive:
a. Noncitizens can raise withholding of removal and CAT relief as defenses to ordinary removal proceedings. See 8 U.S.C. § 1231(b)(3). The applicant must demonstrate that it “is more likely than not that he would be subject to persecution on one of the [protected] grounds.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). Similarly, to obtain CAT relief, an applicant must demonstrate that it is “more likely than not that he or she would be would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
b. Alternatively, Defendant DHS has provided by regulation that aliens who are ordered removed because they committed aggravated felonies, 8 U.S.C. § 1228, or whose removals are reinstated because they entered unlawfully after a valid removal order, 8 U.S.C. § 1231, may avoid removal by showing a “reasonable fear” of persecution. 8 C.F.R.
4 As the Rule recognizes, “[f]ewer than 1,000 aliens per year, of any nationality, receive CAT protection.” 83 Fed. Reg. 55,947.
25

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 26 of 69
§§ 208.31(b), 1280.31(b). To establish such a “reasonable fear” an individual must establish “a
reasonable possibility that he or she would be persecuted on account of his or her race, religion,
nationality, membership in a particular social group or political opinion, or a reasonable
possibility that he or she would be tortured in the country of removal.” Id. §§ 208.31(c), 1208.31(c).5 Individuals who show such a reasonable fear are referred to an immigration judge for full consideration of withholding of removal. Id. §§ 208.31(e), 1208.31(e).6
123. There is no “reasonable fear” screening process for noncitizens subject to
expedited removal. Such noncitizens only need to show a “credible fear” of persecution or
torture to advance to proceedings under INA § 240, in which they may raise claims for asylum,
withholding of removal, or CAT relief.
124. The INA imposes eligibility restrictions on asylum that it does not impose on
withholding of removal and CAT relief. See 8 U.S.C. § 1158(b)(1)(A).
125. Congress made a variety of benefits available to those who obtain asylum,
including a path to U.S. citizenship, id. § 1427(a), and status adjustment from asylee to legal
permanent resident, id. § 1159(b).
126. The spouse and children of a person eligible for asylum likewise are derivatively
eligible for asylum. Id. § 1158(b)(3)(A).
5 “‘[T]he standard for showing entitlement to these forms of protection (a probability of persecution or torture)’” thus “‘is significantly higher than the standard for asylum (a wellfounded fear of persecution).’” 83 Fed. Reg. 55,942 (quoting Regulations Concerning the CAT, 64 Fed. Reg. 8,485); see also id. (“‘This . . . screening process is modeled on the credible-fear screening process, but requires the alien to meet a higher screening standard.’”). 6 If an asylum officer concludes that the individual does not present a reasonable fear and requests further review, an immigration judge performs a brief de novo review of the asylum officer’s decision. 8 C.F.R. §§ 208.31(g), 1208.31(g); Immigration Court Practice Manual, ch. 7.4(e)(iv)(E). If the immigration judge concurs with the asylum officer, the case is returned to DHS for the individual’s removal without further administrative appeal. 8 C.F.R. §§ 208.31(g)(1), 1208.31(g)(1). If the immigration judge disagrees, an application for withholding of removal and CAT relief is permitted. Id. §§ 208.31(g)(2), 1208.31(g)(2).
26

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 27 of 69
127. Asylees also are exempt from removal, id. § 1158(c)(1)(A), may obtain employment authorization in the United States, id. § 1158(c)(1)(B), may travel abroad without the Government’s advance consent, id. § 1158(c)(1)(C), and may obtain public benefits, id. § 1613(b)(1).
128. These status adjustment and family eligibility benefits are not available in connection with other forms of relief for those fleeing persecution and violence, such as withholding of removal and CAT protection.
Individuals and Families Seeking Asylum at the Southern Border 129. Those like Individual Plaintiffs who arrive at the southern border seeking asylum in the United States often are fleeing some of the most dangerous countries in the world. 130. Many hail from El Salvador, Guatemala, and Honduras, often referred to collectively as the “Northern Triangle.” According to a recent report from the United Nations High Commissioner for Refugees, these countries are experiencing epidemic levels of violence at the hands of “well-connected, armed, and dangerous criminal groups in the region,” which have utterly “surpassed the governments’ capacity to respond.”7 131. In particular, violence against women by armed groups has escalated dramatically throughout Central America in recent years, and those governments have failed to provide effective protection.8 132. As of 2016, El Salvador, Guatemala, and Honduras ranked first, third, and seventh, respectively, for rates of female homicides.9
7 See Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico at 58, UNHCR (Oct. 2015), https://goo.gl/6hVsam; see also Neither Security nor Justice: Sexual and Gender-based Violence and Gang Violence in El Salvador, Honduras, & Guatemala, KIND (2017). 8 Anjali Fleury, Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women, United Nations University (May 4, 2016), https://goo.gl/f8dspH.
27

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 28 of 69
133. In some instances, government actors have been charged with participating in
such violence. For example, following a March 2017 protest against sexual violence and
physical abuse at a Guatemalan government-run children’s shelter, 56 girls were locked inside the shelter and 41 died in a fire, for which state officials were charged.10 Plaintiff R.S.P.S.
recalls seeing a news report about another instance in which the Honduran police shot a boy, and
people subsequently asking why the police were killing citizens instead of helping them.
134. Violence against children likewise is prevalent in the region. As one example,
Honduras is a particularly dangerous place for young people: In 2017, it was listed as the single
most violent country for children under nineteen years old, with a homicide rate of more than thirty children per 100,000 inhabitants (about ten times the global average).11
135. In particular, two rival gangs (MS-13 and Mara 18) fight for control over territory and recruit in urban and rural areas of Honduras.12 These gangs often target children
like Plaintiff R.S.P.S. as their weapons of war, because national anti-gang legislation carries less severe penalties for minors involved in gang activity than for adults.13 These young recruits are often forced to collect “taxes” or sell drugs, and those who refuse are often killed,14 while law enforcement officers frequently regard them as potential criminals or gang members.15
9 Women on the Run at 2, supra. 10 Fatema Z. Sumar, Violence Against Women in Central America is a Powerful Factor in the Migration Crisis (Nov. 8, 2018); Andrew V. Pestano, Guatemala charges officials over shelter fire that killed 41 girls, UPI (Apr. 5, 2017), https://goo.gl/Zg1D86. 11 Parker Asmann, Ten Countries with Highest Child Homicide Rates All in LatAM: Report, InSight Crime (June 6, 2017), https://goo.gl/UC1Ea5. 12 See, generally, Gangs in Honduras, InSight Crime (Apr. 21, 2016), https://goo.gl/oL6nFn. 13 Honduras, Country Reports on Human Rights Practices for 2016 at 28, U.S. Dep’t of State (2016), https://goo.gl/7MpCCM. 14 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on his Mission to Honduras at 6, U.N. Human Rights Council, A/HRC/35/23/Add.1 (June 2017). 15 Id. at 14.
28

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 29 of 69
136. Corruption among Honduran law enforcement also has been widely reported; some police officers themselves work with the gangs, compounding the dangers to citizens.16
137. Reports of violence against lesbian, gay, bisexual, and transgender (“LGBT”) individuals in the Northern Triangle countries also are overwhelming, and frequently ignored by state governments.17 The United Nations High Commissioner for Refugees found in the course of a study that 88% of LGBT asylum seekers and refugees from the Northern Triangle reported having suffered sexual and gender-based violence in their home countries.18
138. According to the Honduran non-governmental organization Cattrachas, 264 LGBT individuals were killed in that country between 2009 and 2017; in most cases, those responsible were never brought to justice.19
139. According to Amnesty International, the “high levels of impunity and corruption in [Northern Triangle] countries mean authorities are unlikely to punish those responsible for crimes against LGBT people, particularly when security forces are responsible for the attacks.”20
140. In sum, Individual Plaintiffs and other migrants fleeing to the United States, and particularly from the Northern Triangle countries, often are running from life-or-death situations, leaving behind all they have to make a dangerous journey.
141. Many of these individuals have legitimate claims for asylum in the United States. According to data published by the United Nations High Commissioner for Refugees, in
16 Sarah Chayes, When Corruption is the Operating System: The Case of Honduras at 29, Carnegie Endowment for International Peace (May 2017), https://goo.gl/nUFicM (“Of greater concern are the reports we heard in interviews of collusion between police and the youth gangs whose depredations it is their job to curb.”). 17 See Women on the Run at 27-30, supra. 18 No Safe Place, Amnesty Int’l at 7 (Nov. 2017), https://goo.gl/dNTUNm. 19 No Safe Place: LGBTI Salvadorans, Guatemalans and Hondurans Seeking Asylum in Mexico (Nov. 27, 2017), https://goo.gl/79cG3H. 20 Id.
29

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 30 of 69
Fiscal Year 2015, 82% of the women from El Salvador, Guatemala, Honduras, and Mexico who were subject to credible fear screenings by asylum officers in the United States were found to have a significant possibility of establishing eligibility for asylum or protection under the CAT.21
142. In a similar 2014 report, the United Nations High Commissioner for Refugees found that 58% of unaccompanied children interviewed from the Northern Triangle countries and Mexico were “forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.”22
143. Perhaps the most telling indicator of the extreme risks of persecution and violence faced by asylum seekers is the fact that they are willing to endure a dangerous journey to the United States for an opportunity to press their asylum claims.
144. Asylum seekers are at risk of kidnapping, disappearance, trafficking, and sexual assault, among other harms, along their journey. Migrant females are particularly vulnerable. Data published by Amnesty International estimates that 60% of women and girls are raped while migrating across Mexico, and the estimates of some service providers are higher.23
145. The so-called migrant “caravans” that began making their way to the United States in late 2018 also have included as many as 2,300 children who were exposed to inclement weather, dangerously hot temperatures, and limited access to proper shelter, leading some to fall ill or suffer serious effects of dehydration.24
21 See Women on the Run n.2, UNHCR, https://goo.gl/6hVsam. 22 Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection at 6, UNHCR (2014), https://goo.gl/p3TGrW. 23 Alyson L. Dimmitt Gnam, Mexico’s Missed Opportunities to Protect Irregular Women Transmigrants: Applying a Gender Lens to Migration Law Reform, 22 Pac. Rim L. & Pol. J. 713, 722 (2013); see also Invisible Victims: Migrants on the Move in Mexico at 5, Amnesty International (2010), https://goo.gl/Bvs1RM. 24 An estimated 2,300 children traveling with migrant caravan in Mexico need protection and essential services, UNICEF (Oct. 26, 2018), https://goo.gl/2r6Q1M.
30

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 31 of 69
146. While crossing Mexico to reach the United States itself carries risks, some migrants report that asylum claims have been more difficult to prove to Mexican authorities, that they did not have enough information about protections in Mexico, or that conditions in Mexico are sufficiently dangerous that seeking asylum there would not improve their safety.25 Plaintiff S.M.S.R., for example, had been told by friends and others that seeking asylum in Mexico would be impossible.
147. Rates of violence in Mexico also have been increasing, with more than 23,000 murder investigations opened in 2017 (the highest count on record).26 Plaintiff S.M.S.R., for example, felt unsafe on numerous occasions while traveling through Mexico with her son.
Obstacles and Risks at Southern Border Ports of Entry 148. Upon arrival at the southern border, entry through a designated port is infeasible for many asylum seekers. Some asylum seekers are unaware that designated ports of entry exist. 149. In other cases, designated ports of entry are difficult to access, causing migrants to attempt unauthorized border crossings. Plaintiff S.M.S.R., for example, had been told that entering the United States through a designated port of entry would be difficult. 150. Defendant CBP engages in a well-documented practice of “metering,” in which “officers only allow the asylum-seeker to cross the [international] line if space is available” in the port of entry.27 “When the ports of entry are full, CBP guidance states that officers should
25 Fleury, Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women, supra. 26 Mexico murders hit record high, dealing blow to president, Reuters (Dec. 23, 2017), https://goo.gl/524yFF. 27 Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy, OIG-18-84 at 6, U.S. Office of Inspector Gen. (Sept. 27, 2018).
31

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 32 of 69
inform individuals that the port is currently at capacity and that they will be permitted to enter
once there is sufficient space and resources to process them.”28
151. Advocates have documented substantial delay times and long lines at designated
ports of entry such as Nogales, Arizona; El Paso and McAllen, Texas; and San Diego,
California.29 Families may be camped out in heat exceeding 100 degrees.30
152. At one point this year, the Nogales, Arizona port of entry had 113 individuals
waiting their turn to present themselves for asylum. Only six asylum seekers were being
processed each day, and the port had a holding capacity of only 47 people.31
153. Advocates further reported instances in which CBP officers turned asylum
seekers away by claiming “we’re not doing asylum here” or telling migrants the port of entry is
“full.”32
154. Left stranded while waiting for backlogs at ports of entry to clear, asylum
seekers are particularly vulnerable to kidnapping, extortion, and other violence by organized
crime elements in northern Mexico.33 A study issued by Human Rights First reported that local
28 Id. 29 Adam Isacson et al., “Come Back Later”: Challenges for Asylum Seekers Waiting at Ports of Entry at 2-3, Washington Office on Latin Am. (Aug. 2018), https://goo.gl/euGQyY. 30 Id. at 3. 31 Id. at 5. 32 Id.; see also Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers at 14-16, Human Rights First (May 2017), https://goo.gl/4dmTia (aggregating reports of migrants turned back at and between U.S. ports of entry). 33 Isaacson, supra n.29, at 7; see also Situation of Impunity and Violence in Mexico’s Northern Border Region, Washington Office on Latin America, Latin American Working Group, and Kino Border Initiative, March 2017, https://goo.gl/pYSySP (finding that “[v]iolence and crimes against migrants in Mexico’s northern border states have long been documented to include cases of disappearances, kidnappings, rape, trafficking, extortion, executions, and sexual and labor exploitation by state and non-state actors,” and that CBP’s refusal to permit the entry of migrants at ports of entry exposes individuals, families, and children to “organized crime and smugglers as well as corrupt state authorities unable to protect them or investigate the crimes they have suffered”).
32

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 33 of 69
lawyers and shelter staff found that “most—if not all—migrants they encounter who had been turned away from the [Hidalgo] port of entry have been kidnapped and held for ransom” by cartel members waiting outside the port in Mexico.34
155. Crossing the border outside of a designated port of entry can become a safety imperative in these circumstances.
156. A September 2018 report by the U.S. Office of Inspector General (“OIG”) found that asylum seekers were “turned away at some of the ports of entry” that it inspected, and stated that a CBP official had reported that backlogs at ports of entry caused by metering directives and the Administration’s “Zero Tolerance Policy” “likely resulted in additional illegal border crossings.”35
157. OIG concluded that “[w]hile the stated intentions behind metering may be reasonable, the practice may have unintended consequences. For instance, OIG saw evidence that limiting the volume of asylum-seekers entering at ports of entry leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally.”36
158. OIG reported that “[a]ccording to one Border Patrol supervisor, the Border Patrol sees an increase in illegal entries when aliens are metered at ports of entry.”37
159. Likewise, “[t]wo aliens recently apprehended by the Border Patrol corroborated this observation, reporting to the OIG team that they crossed the border illegally after initially
34 Crossing the Line, supra n.32, at 16. 35 Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy at 6 n.13. 36 Id. at 7. 37 Id.
33

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 34 of 69
being turned away at ports of entry. One woman said she had been turned away three times by an officer on the bridge before deciding to take her chances on illegal entry.”38
160. By late November 2018, the Government’s “metering” practices had contributed to a backlog of thousands of migrants waiting to attempt entry near Tijuana.39 The Mexican government opened an open-air sports complex about a mile from the U.S. border to house these migrants while Defendants processed an estimated forty asylum applications per day.40 Migrants reported lack of food and water at the facility, as well as exposure to rain and mud.41
161. After customs officials reported that they did not expect to process asylum applications for recently arrived “caravan” members for five to six weeks, migrants organized a peaceful protest near the Tijuana border crossing on November 25, 2018.42 The group of protesters, which included women and young children, was dispersed by CBP agents using tear gas and pepper spray.43
The Government’s Escalating Responses to Southern Border Migration 162. Notwithstanding the dire conditions in many Central American countries, the rate of illegal border crossings is substantially down from its peak. 163. The number of migrants arrested at the southern border for attempting to cross unlawfully is at its lowest level since 1971: For Fiscal Year 2017, Defendant CBP reported
38 Id. 39 See Rick Jervis, How a policy shift may have led to the border confrontation with the migrant caravan, USA Today (Nov. 28, 2018), https://goo.gl/4gBRCc. 40 Id. 41 Id. 42 Id. 43 Id.
34

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 35 of 69
310,531 such arrests, down from 1,676,438 in 2000.44 The 2017 figures represented a 25% decrease since 2016 alone.45
164. Nonetheless, Defendants have targeted southern border asylum seekers in recent
months with exceptionally strict policies and unlawful regulations.
165. In April 2018, the Administration announced a new “Zero Tolerance” policy on
immigration, pursuant to which the Government began separating detained migrant parents and their children.46
166. Following immense public opposition and political pressure, the “Zero Tolerance”
family separation policy was withdrawn by Executive Order for an indefinite period on June 20, 2018.47
167. On June 26, 2018, the U.S. District Court for the Southern District of California
issued a preliminary injunction enjoining the Government from unlawfully detaining migrant
parents without and apart from their children, and ordered the Government to reunite separated families within thirty days, absent a determination of parental unfitness or danger to the child.48
168. On November 15, 2018, following additional legal challenges, the Government
entered a class Settlement Agreement, approved by the U.S. District Court for the Southern
44 John Burnett, Arrests for Illegal Border Crossings Hit 46-Year Low, NPR (Dec. 5, 2017) https://goo.gl/xqqjTo; CBP Border Security Report, Fiscal Year 2017, CBP (Dec. 5, 2017), https://goo.gl/k2wmia. 45 Id. 46 Attorney Gen. Announces Zero-Tolerance Policy for Criminal Illegal Entry, DOJ (Apr. 6, 2018), https://goo.gl/sdsvQP; see also Attorney Gen. Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Admin., DOJ (May 7, 2018), https://goo.gl/ihRX79 (“If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”). 47 Exec. Order No. 13,841, Affording Congress an Opportunity to Address Family Separation, 83 Fed. Reg. 29,435 (June 25, 2018). 48 Ms. L v. U.S. Immigration & Customs Enforcement (“ICE”), 310 F. Supp. 2d 1133, 1149 (S.D. Cal. 2018).
35

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 36 of 69
District of California, requiring Defendants to, inter alia, reconsider the asylum claims of classes of migrant parents and children who were unlawfully separated.49
169. In the months preceding the issuance of the challenged Rule, President Trump repeatedly asserted fears of an asylum-seeking “caravan” thousands of miles from the border.
170. Among other such statements, President Trump tweeted that individuals would “have to apply for asylum in Mexico first, and if they fail to do that, the U.S. will turn them away.”50 On October 31, 2018, the President tweeted a video that contained inflammatory footage depicting an immigrant convicted of murdering police officers followed by a migrant “caravan” breaking past a wall.”51
171. President Trump soon after indicated that he intended to sign an executive order restricting asylum.
The Rule and Proclamation 172. On November 9, 2018, Defendant Whitaker, in his capacity as Acting Attorney General, and Defendant Nielsen, in her capacity as Secretary of Homeland Security, promulgated the Rule pursuant to 8 U.S.C. §§ 1158(b)(2)(C), (d)(5)(B), which give the Attorney General the power to establish by regulation “additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum,” and “any other conditions or
49 Id.; Dkt. 321, Case No. 18-cv-0428 DMS (MDD) (S.D. Cal.) (Order Certifying Settlement Class and Granting Final Approval of Class Action Settlement) (Nov. 15, 2018); id. Dkt. 220-1 (Plan to address the asylum claims of class-member parents and children who are physically present in the United States) (Sept. 12, 2018). 50 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 21, 2018, 12:11 PM EDT), https://goo.gl/6Hx5Eb. 51 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 31, 2018, 1:18 PM EDT), https://goo.gl/cH9MD7. The video was denounced by numerous Republican and other elected officials.
36

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 37 of 69
limitations on the consideration of an application for asylum not inconsistent with this chapter” (emphases added).
173. As set forth above, the INA already guarantees “[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 or United States waters), irrespective of such alien’s status” the right to “apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1).
174. The Rule imposes a “new mandatory bar on eligibility for asylum” for “aliens who are subject to a presidential proclamation suspending or imposing limitations on their entry into the United States pursuant to § 212(f) of the INA, 8 U.S.C. § 1182(f), or § 215(a)(1) of the INA, 8 U.S.C. § 1185(a)(1), and who enter the United States in contravention of such a proclamation after the effective date of this rule.” 83 Fed. Reg. 55,939.
175. The bar is effected through changes to 8 C.F.R. § 208.13 (aliens ineligible for asylum if, in relevant part, they are the subject of a presidential proclamation under INA §§ 212(f), 215(a)(1)); id. § 1208.13 (same); id. § 208.30 (asylum officers shall enter negative credible fear findings with respect to asylum applications and refer individuals for proceedings under INA § 240 on withholding of removal and CAT claims); id. § 1003.42 (establishing limited de novo review procedures by immigration judges regarding determination that individuals are subject to the bar under 8 C.F.R. §§ 208.13(c)(3), 1208.13(c)(3)); id. § 1208.30 (same, and establishing limited de novo review procedures by immigration judges regarding negative reasonable fear determinations).
37

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 38 of 69
176. The “mandatory bar” applies “prospectively, to aliens who enter the United States after the effective date of such a proclamation,” and where a presidential proclamation concerns entry at “the southern border.” It does not apply in the event that a proclamation expressly disclaims effects on asylum eligibility or contains applicable waivers or exceptions. 83 Fed. Reg. 55,939; 8 C.F.R. §§ 208.13, 1208.13.
177. According to its public notice, the Rule does not limit the ability of individuals to be considered for withholding of removal or CAT protections, 83 Fed. Reg. at 55,947, which require satisfaction of the higher “reasonable fear” standard.
178. Thus, for any individual subject to the new “mandatory bar,” an asylum officer “shall enter a negative credible fear determination with respect to the alien’s application for asylum” and “place the alien in proceedings under section 240 of the Act” to consider her claim for withholding of removal or protection under the CAT “if the alien establishes a reasonable fear of persecution or torture.” 8 C.F.R. § 208.30.
179. If such an individual fails to establish a reasonable fear of persecution or torture during her interview with an asylum officer, that officer must provide her a notice of decision subject to limited review by an immigration judge, who likewise will apply the heightened “reasonable fear” standard rather than the “credible fear” standard. Id.
180. According to Procedural Guidance issued by USCIS,52 “aliens cannot be placed in proceedings before an immigration judge to determine whether they are entitled to statutory withholding or CAT protection by showing a mere significant possibility that they would be
52 Some asylum officers reported to news outlets that they received an email copy of USCIS’s guidance memorandum only on Friday night—or not at all—although the agency was to begin processing cases under the new regulation on Saturday, November 10, 2018. Dara Lind, Some asylum officers say they never got the memo about Trump’s asylum ban, Vox (Nov. 9, 2018), https://goo.gl/pBhrZy.
38

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 39 of 69
persecuted or tortured” under the credible fear standard.53 In addition, whereas unaccompanied children previously received special non-adversarial proceedings in which to present their claims for asylum, those children will now be summarily informed that they are ineligible for asylum, and compelled to undergo the same withholding-of-removal process as adults.54
181. On November 9, 2018, the day after the Rule was first announced, President Trump issued the Proclamation pursuant to 8 U.S.C. §§ 1182(f), 1185(a). The Proclamation immediately suspended “[t]he entry of any alien into the United States across the international boundary between the United States and Mexico,” applicable to aliens who enter the country after the date of the Proclamation and outside designated ports of entry. Proc. §§ 1, 2(a)-(b).
182. The suspension prescribed in the Proclamation will expire ninety days after its effective date or the date on which an agreement permits the United States to “remove aliens to Mexico” under the terms of INA § 208(a)(2)(A), 8 U.S.C. § 1158(a)(2)(A), whichever is earlier.
183. Together, the Rule and Proclamation rendered immediately ineligible for asylum all noncitizens who enter the United States without inspection at the southern border.
184. The Rule and Proclamation claim, by their own terms, that this policy change is needed to respond to a “crisis on the southern border.” 83 Fed. Reg. 55,947; see also Proc. at 1.
185. The public notice for the Rule, like President Trump’s earlier public announcements, invokes “the prospect that large caravans of thousands of aliens, primarily from Central America, will seek to enter the United States unlawfully or without proper documentation” in the near future. 83 Fed. Reg. 55,947.
53 L. Francis Cissna, Procedural Guidance for Implementing Regulatory Changes Created by Interim Final Rule, Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims at 4, USCIS (Nov. 9, 2018), https://goo.gl/AEjzzW (emphasis in original). 54 Id. at 6.
39

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 40 of 69
186. The Proclamation likewise cites concerns regarding impending “large numbers of aliens traveling through Mexico to enter our country unlawfully or without proper documentation,” who “would add tremendous strain to an already taxed system, especially if they avoid orderly processing by unlawfully crossing the southern border.” Proc. at 1.
187. To date, however, the migrant “caravan” that has arrived has proceeded largely to designated ports of entry, particular at the border with Tijuana, Mexico.
188. As numerous news outlets reported, “[t]he vanguard of what President Trump has labeled an invasion force formed an orderly line at about 6:45 a.m. on Thursday [November 15, 2018] near a major border crossing between Tijuana and the United States and waited patiently” to present largely asylum claims.55
189. Among them, at least “[a]bout 80 lesbian, gay, bisexual and transgender people” “had come to the crossing, with stories of victimization and persecution, to make appointments for asylum interviews in the United States.”56
190. The public notice for the Rule claims that it will, in combination with the Proclamation, “help ameliorate the pressures on the present system” for apprehending, detaining, and evaluating the claims of migrants and “have a deterrent effect that could lessen future flows of illegal immigration.” 83 Fed. Reg. 55,947-55,948. The Rule explicitly seeks to “reduce the number of cases referred to section 240 proceedings.”57 83 Fed. Reg. at 55,947.
55 Kirk Semple, Dozens From Migrant Caravan Line Up at Border, Seeking Asylum Interviews, New York Times (Nov. 15, 2018), https://goo.gl/KpG2AX. 56 Id. 57 The Rule’s public notice recognizes that “[o]nce aliens are referred for section 240 proceedings, their cases may take months or years to adjudicate due to backlogs in the system.” 83 Fed. Reg. at 55,945.
40

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 41 of 69
191. However, notwithstanding the Rule’s purported efficiency objectives, the Government recognizes that “screening for proclamation-based ineligibility for asylum may in some case entail some additional work.” Id.
192. For example, Defendant USCIS estimates that asylum officers historically average four to five credible fear interviews and completions per day, but only two to three reasonable fear case completions per day. Id. The Proclamation therefore “might result in the need to increase the number of officers required” to complete credible fear or reasonable fear screenings consistent with current case completion goals, and “additional interviewing time might be necessary.” Id.
193. In addition, DHS expects to “expend additional resources detaining aliens who would have previously received a positive credible-fear determination and who now receive, and challenge, a negative credible-fear and reasonable-fear determination.” Id. Because individuals are eligible for parole or release if they establish a credible fear, “[t]o the extent that the rule may result in lengthier interviews for each case, aliens’ length of stay in detention would increase.” Id.
194. DHS also anticipates that, to the extent that the Rule will increase the number of migrants receiving negative credible fear and reasonable fear determinations and thus be subject to immediate removal, “DHS will incur increased and more immediate costs for enforcement and removal of these aliens.” Id. at 55,948.
195. Defendants further acknowledge that “in the event all of the approximately 70,000 aliens per year who cross illegally and assert a credible fear instead decide to present at a port of entry, processing times at ports of entry would be slower in the absence of additional resources or policies that would encourage alien to enter at less busy ports.” Id. 55,949. For example,
41

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 42 of 69
using figures from Fiscal Year 2018, the number of migrants presenting at designated ports of entry would rise from about 124,511 to approximately 200,000. Id.
196. Upon information and belief, no additional resources or policies have been dedicated to encouraging migrants to enter the United States at less busy ports or to augmenting the staffing of busier ports.
197. In addition, the APA generally requires advance public notice and comment on proposed regulations, including the publication of a proposed substantive rule at least thirty days before its effective date. 5 U.S.C. § 553(b)-(d). The Rule was not published prior to its adoption by Defendants or subjected to advance public notice and comment procedures.
198. Written or electronic comments regarding the Rule must be submitted on or before January 8, 2019. 83 Fed. Reg. 55, 934.
199. On November 19, 2018, in a case brought by the American Civil Liberties Union (“ACLU”) challenging the Rule and Proclamation, the U.S. District Court for the Northern District of California issued a temporary restraining order enjoining the implementation of the Rule nationwide. East Bay Sanctuary Covenant, et al. v. Trump, et al., Case No. 18-cv-06810, 2018 WL 6053140, at *21 (N.D. Cal. Nov. 19, 2018). The court concluded that the plaintiffs were likely to succeed on the merits of their claims, see id. at *10-17, that the organizational plaintiffs “made a clear showing that it is likely that they and their clients will suffer irreparable harm absent a TRO,” id. at *19, and that the public interest and balance of equities favor an injunction against the Rule, id. at *19-20.
200. The Northern District of California’s temporary restraining order is to remain in effect until December 19, 2018 or further order of the court. Id. at *21. A hearing was set for December 19, 2018 for defendants to show cause why they “should not be enjoined from taking
42

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 43 of 69
any action continuing to implement the Rule and ordered to return to the pre-Rule practices for processing asylum applications” pending final disposition of the case. Id.
201. On November 27, 2018, the Government moved the U.S. District Court for the Northern District of California for an emergency stay of its temporary restraining order. East Bay Sanctuary Covenant, Case No. 18-cv-06810, Dkt. 52 (N.D. Cal. Nov. 27, 2018). The court denied the Government’s request on November 30, 2018. Id. Dkt. 61.
202. The Government also filed a Notice of Appeal on November 27, 2018. Id. Dkt. 51. On December 1, 2018, the Government moved the U.S. Court of Appeals for the Ninth Circuit for an emergency administrative stay and stay pending appeal of the district court’s temporary restraining order. East Bay Sanctuary Covenant, et al. v. Trump, et al., Case No. 1817274, Dkt. 4 (9th Cir. Dec. 1, 2018). In a docket order issued on the same date, the Ninth Circuit motions panel denied the Government’s request for an immediate administrative stay and called for briefing on the Government’s request for a stay pending appeal to be completed by December 4, 2018.
203. On December 7, 2018, the Ninth Circuit issued its opinion denying the Government’s request for a stay of the district court’s temporary restraining order pending appeal. East Bay, Case No. 18-17274, 2018 WL 6428204 (9th Cir. Dec. 7, 2018).
204. On December 11, 2018, the Government filed an emergency application to the United States Supreme Court for a stay of the district court’s injunction. Application for Stay Pending Appeal, Trump v. East Bay Sanctuary Covenant, No. 18A615 (U.S. Dec. 11, 2018). The Supreme Court has not yet issued a ruling on that stay application.
43

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 44 of 69
Harms to Individual Plaintiffs 205. Absent an injunction, the Rule will cause immediate and irreparable harm to Individual Plaintiffs and the other putative class members who are fleeing dangerous conditions in their home countries and seeking asylum in the United States. The Rule and Proclamation will categorically deprive Individual Plaintiffs of eligibility for asylum regardless of the merits of their claims. 206. As a result of the Rule’s asylum eligibility bar, Individual Plaintiffs face a significantly increased risk that they will be forced to return to dangerous conditions in their home countries. 207. For Plaintiffs S.M.S.R., R.S.P.S., L.C.V.R., C.S.C.C., A.J.E.A.M., K.P.P.V., R.D.P.V., and Y.A.L.P., this would mean forcible return to home countries where they have experienced, and would continue to face, real and imminent threats of violence at the hands of gang members from MS-13, Mara 18, Los Gaidos, and other criminal organizations. 208. In the case of Plaintiffs S.M.S.R. and R.S.P.S., in particular, MS-13 gang members have pictures of S.M.S.R., vowed to find her if she relocated, and told R.S.P.S. he would not receive another warning before being killed with his mother for their refusals to affiliate with the gang. Gangs similarly have targeted and continue to threaten Plaintiffs L.C.V.R., C.S.C.C., A.J.E.A.M., K.P.P.V., R.D.P.V., and Y.A.L.P. in El Salvador, Guatemala, and Honduras, because they witnessed a crime, refused to pay extortion, or are related to family members that the gangs want to murder. 209. For other Individual Plaintiffs, implementation of the Rule will dramatically increase the likelihood of return to countries where they face ongoing threats to their lives based on their race, medical condition, or sexual orientation. If deported, Z.A.G.G. and D.A.L.G.
44

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 45 of 69
would be returned to Guatemala, where they have encountered and would continue to encounter threats, beatings, and the refusal of medical care on account of being members of the K’iche indigenous group, as well as because of D.A.L.G.’s medical condition. If R.G.G. and N.A.G.A. were returned to Guatemala, they would face continued threats of torture and death because R.G.G. is gay.
210. In addition, the Rule effectively applies a heightened “reasonable fear” standard, rather than the “credible fear” standard, to all individuals subject to the Rule who are in expedited removal proceedings. Plaintiff A.J.E.A.M.’s case illustrates how that change in policy will irreparably harm class members in expedited removal: A.J.E.A.M. and his father, A.J.A.C., underwent fear interviews together, at the same time, and with the same asylum officer, but received different fear screening results depending on whether the reasonable or credible fear standards were applied. Because A.J.A.C. had a prior removal order that was reinstated by Defendants, the asylum officer applied the reasonable fear standard, yielding a negative fear determination. But the asylum officer used the credible fear standard for A.J.E.A.M., who has no prior removal order, and made a positive fear determination on the same facts.
211. Had the Rule been in effect at the time of his interview, Plaintiff A.J.E.A.M. would have received a negative determination for credible fear and likewise also for reasonable fear, given that the facts of his interview were the same as his father’s. See 83 Fed. Reg. 55,943 (“If, however, an alien lacks a significant possibility of eligibility for asylum because of the proclamation bar, then the asylum officer will make a negative credible-fear finding. The asylum officer will then apply the reasonable-fear standard to assess the alien’s claims for statutory withholding of removal or CAT protection.”). The Rule thus would have irreparably harmed A.J.E.A.M. and placed him at risk of immediate removal.
45

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 46 of 69
212. Furthermore, by denying eligibility for asylum and therefore access to adjudication in front of an asylum officer, the Rule irreparably harms unaccompanied minors like Y.A.L.P. If the Rule were in effect, Y.A.L.P. would bypass the normal, non-adversarial asylum office process and move directly to trial at immigration court. Direct and cross examinations about the threats to her life would traumatize sixteen-year-old Y.A.L.P. all over again.
Harms to Organizational Plaintiffs 213. Plaintiffs CAIR Coalition and RAICES are 501(c)(3) nonprofit organizations that provide assistance to asylum seekers, including individuals who crossed the southern border outside designated ports of entry and who file applications for asylum with Defendant USCIS. Absent injunctive relief, both organizations would be irreparably harmed by the Rule and Proclamation, which divert their human and financial resources and compromise their ability to serve their client populations consistent with their organizational missions. 214. Plaintiff CAIR Coalition is a 501(c)(3) nonprofit organization dedicated to providing legal services to migrant men, women, and children who are detained by ICE or the Office of Refugee Resettlement (“ORR”) in Virginia and Maryland. CAIR Coalition assists clients with applications for asylum, preparing for credible fear interviews, and adversarial proceedings in immigration courts. CAIR Coalition also trains and supervises legal professionals to provide similar assistance. 215. Asylum applications are a critical component of CAIR Coalition’s organizational mission. Each year, CAIR Coalition serves hundreds of clients seeking asylum who entered the United States at the southern border in places other than ports of entry (“non-POE asylum seekers”).
46

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 47 of 69
216. The Rule, if not enjoined, will irreparably frustrate CAIR Coalition’s mission to serve as many migrants lawfully seeking asylum as possible. Because Defendant DHS will summarily deport many non-POE asylum seekers before they reach the Washington, DC metropolitan area, CAIR Coalition will face a drastic reduction in its client base.
217. The Rule and Proclamation also will substantially limit the overall number of clients CAIR Coalition can serve, whether or not those clients entered at a port of entry. CAIR Coalition must create more complicated new resources and procedures to assist clients with their claims, in turn reducing how many clients the organization can reach. The Rule and Proclamation put CAIR Coalition in a difficult position: raise more funds to serve the same number of clients, or reduce the number of clients served to fit within its current budget.
218. For example, CAIR Coalition will be forced to divert significant staff resources to analyzing and interpreting the Rule and Proclamation, overhauling its client information database, and preparing new informational and advocacy materials.
219. CAIR Coalition also will need to develop new materials and procedures for jail visits specifically for non-POE asylum seekers. CAIR Coalition usually provides one orientation for all detainees, regardless of how they entered the country. Under the Rule and Proclamation, however, CAIR Coalition must develop a separate orientation for non-POE asylum seekers to explain the different standard for their credible fear interview and the limited forms of relief available, double the number of staff to conduct two orientations, and spend more staff time on the longer, more complicated dual orientation.
220. Under the Rule and Proclamation, CAIR Coalition also will expend more resources to prepare each non-POE asylum seeker for his or her credible fear interview. During the approximately 1,500 intake sessions for detained adults that CAIR Coalition conducts each
47

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 48 of 69
year, a CAIR Coalition staff member typically spends about five to ten minutes with each adult eligible for such interview preparing them for their credible fear interview.
221. Under USCIS guidance regarding the Rule and Proclamation, non-POE asylum seekers effectively will need to meet the higher “reasonable fear” standard rather than the traditional “credible fear” standard to obtain relief. To prevail in a reasonable fear interview, an individual must show effectively at least a 51% chance—i.e., that they “more likely than not”— will be persecuted or tortured in their home country. In contrast, in a credible fear interview, an individual must show an approximately 10% chance—i.e., that they have a “well-founded fear”—of persecution or torture in their home country. It is much more difficult for migrants to receive a positive determination in a reasonable fear interview. During 2018, only 62% of reasonable fear interviews CAIR Coalition was involved with received positive determinations, compared to 87% for credible fear interviews.
222. As a result of the heightened “reasonable fear” standard, each preparation session for a non-POE asylum seeker will take roughly twice the amount of time, roughly ten to twenty minutes per client, whether to elicit and prepare more facts to satisfy the higher standard or related to follow-up interviews. The Rule and Proclamation thus would cut in half the number of clients CAIR Coalition can prepare during each jail visit. And with finite resources and permission to make jail visits only a few times a month, CAIR Coalition will be unable to compensate for this loss.
223. CAIR Coalition will spend more resources during credible fear interviews for adult non-POE asylum seekers, too. Prior to the Rule and Proclamation, CAIR Coalition had stopped sending staff and volunteers to credible fear interviews in person because the
48

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 49 of 69
overwhelming majority of clients received positive results. Instead, CAIR Coalition generally would review the transcripts from interviews with negative determinations.
224. Because the Rule and Proclamation increase the standard for the interviews, it will be important to send staff and volunteer attorneys to as many interviews as possible to increase the likelihood that each client will pass. If CAIR Coalition staff members are busy attending these interviews, they will be unable to assist as many clients in trial proceedings under INA § 240.
225. Given the increased burden of proof that will be required at interviews, CAIR Coalition also anticipates that it will not be able to staff interviews with legal assistants or law student volunteers, as it sometimes has in the past.
226. CAIR Coalition also will need to recreate its now-defunct volunteer program for attending credible fear interviews as a result of the higher standard. Because of the Rule and Proclamation, CAIR Coalition already has discussed hiring another dedicated attorney or legal assistant to recruit and train volunteer lawyers to sit in on credible fear interviews.
227. The increased need for volunteer lawyers has a ripple effect on the rest of CAIR Coalition’s programs. Attorneys volunteering to attend credible fear interviews will have less time—or perhaps no more time—available to volunteer in other cases. This reduced volunteer capacity reduces the organization’s overall capacity to represent as many clients as possible, especially in trial proceedings.
228. Reduced volunteer capacity also will divert resources from other of CAIR Coalition’s initiatives, such as providing translations or conducting country conditions research.
229. The Rule and Proclamation also will force CAIR Coalition to spend more time and resources on each child client, because all child cases will be time- and resource-intensive
49

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 50 of 69
trial cases. Because the Rule and Proclamation prevent non-POE asylum seekers, including children, from obtaining asylum, their cases bypass the normal Asylum Office process and move directly to trial at immigration court.
230. CAIR Coalition’s staff members will have to prepare for trial rather than an interview at the Asylum Office. And staff members who work with detained children will have less time available to work on each case, as the detained docket moves much faster than the timeframe at the Asylum Office.
231. Under the Rule and Proclamation, CAIR Coalition will have to spend more time and resources on cases for young mothers and their children as well. Each year, CAIR Coalition serves about twenty to thirty mothers and their immigrant children who live in shelters. CAIR Coalition anticipates that, under the new Rule and Proclamation, it will have to significantly increase the total time that must be spent on each family’s case, because the mothers will be ineligible for asylum and their children unable to be counted as derivatives within a single application for relief.
232. The Rule and Proclamation also will jeopardize CAIR Coalition’s already tight budget. CAIR Coalition depends on law firms for 12% of its annual budget; if the organization places fewer asylum cases with volunteers at law firms, it is likely to receive fewer of these much-needed donations.
233. In addition, some of CAIR Coalition’s funding is tied to the number of adult clients that it serves each year. At the Caroline County, Virginia detention center, for example, CAIR Coalition receives funding to serve a targeted number of detained adults in trial proceedings each year. The increased time it takes CAIR Coalition to serve each asylum seeker correspondingly reduces the overall numbers of people served. As a result, it is uncertain
50

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 51 of 69
whether CAIR Coalition will be able to comply with its existing funding conditions tied to numbers of trial representations.
234. The Rule’s lack of notice and comment procedures also irreparably compromised CAIR Coalition’s ability to inform the Government of the substantial and irreparable harms— both to the organization and its clients—that the policy would create. Commenting on rules and regulations is an important part of CAIR Coalition’s mission to improve the lives of migrants in the Washington, D.C. area. Had CAIR Coalition been given the opportunity to comment on the Rule, it would have done so.
235. RAICES is a 501(c)(3) nonprofit organization headquartered in San Antonio, Texas.
236. Founded in 1986 as the Refugee Aid Project by community activists in South Texas, RAICES has grown to be the largest immigration legal services provider in Texas. RAICES is a 501(c)(3) nonprofit organization headquartered in San Antonio, Texas, with other offices in Austin, Corpus Christi, Dallas, Fort Worth, and Houston. RAICES’s mission is to promote justice by providing free and low-cost legal services to underserved migrant children, families, and refugees in Texas. In 2017, RAICES closed approximately 51,000 cases at no cost to the client.
237. Since January 1, 2018, approximately 70% of the detained migrant families, and 50% of the detained unaccompanied minors served by RAICES were non-POE asylum seekers. Honduras, Guatemala, and El Salvador are the primary home countries for the non-POE asylum seekers whom RAICES serves.
238. Absent an injunction, the Rule and Proclamation will irreparably harm RAICES in multiple ways, including by frustrating RAICES’s mission to serve as many migrant clients as
51

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 52 of 69
possible. RAICES will be unable to represent the same number of clients that it does currently, both because fewer clients will be eligible for relief and because RAICES will spend more resources on each individual case. The Rule and Proclamation also will force RAICES to divert scarce resources away from other important programs to compensate for the additional time, procedures, and staff required to continue serving clients under the policy.
239. The Rule and Proclamation will fundamentally reduce the capacity and divert the resources of RAICES’s Family Detention Services program, which will need to devise entirely new intake procedures at each of the detention centers it serves. Currently, the intake process is relatively short. Since January 1, 2018, Family Detention Services has conducted at least 7,000 intakes. Under the Rule and Proclamation, however, RAICES staff will need to conduct more extensive and time-consuming intake questioning of each client. In particular, RAICES will need to ascertain whether the client attempted to enter through a port of entry and whether he or she is likely to meet the higher legal standards for alternative forms of relief.
240. The Rule and Proclamation also will require Family Detention Services to create an entirely new process for assisting non-POE asylum seekers with their credible fear interviews. For example, Family Detention Services currently assists most detainees at the detention facility in Karnes, Texas with their credible fear interviews. Since January 1, 2018, approximately 2,700 families underwent credible fear interviews.
241. Pro bono attorneys and law students often attend these interviews telephonically so that staff can focus on difficult or emergency cases. Since June 2018, RAICES staff represented at approximately 40 interviews, while volunteers represented at approximately 359 interviews.
52

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 53 of 69
242. Under the Rule and Proclamation, however, Family Detention Services will be forced to create a more time- and resource-intensive dual-track system to prepare clients for interviews: one for clients who entered at ports of entry or before the effective date of the Rule and Proclamation—i.e., using the traditional preparation methods—and another entirely new system for non-POE asylum seekers.
243. Under the Rule and Proclamation, the shift from credible to reasonable fear interviews will be a significant one for Family Detention Services. The reasonable fear standard is much more difficult to meet than the credible fear standard. Since January 1, 2018, only about 65% of RAICES’s clients in reasonable fear interviews received positive determinations, compared to 95% for clients in credible fear interviews.
244. The program’s staff will spend double or triple the time interviewing and preparing each client to meet the higher reasonable fear standard. Due to the higher stakes, more staff will need to attend interviews, rather than relying on volunteers. For the pro bono attorneys that still could attend, Family Detention Services will need to create new training resources on legal arguments that were rarely necessary during previous credible fear interviews. And RAICES would be unable to rely on law students and non-lawyers to attend these interviews, drastically reducing the program’s volunteer base.
245. In contrast to the credible fear standard, the higher reasonable fear standard will require Family Detention Services to prepare each child for an interview. Children are more likely to be required to testify in a reasonable fear rather than a credible fear interview. Thus, Family Detention Services will have to explain the process and prepare each child for questioning. This generally at least doubles—with a corresponding increase depending on the size of the family—the time to prepare each family for their interviews.
53

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 54 of 69
246. As a result of the Rule and Proclamation and the foregoing resource-shifting, Family Detention Services might not be able to provide any assistance at credible fear interviews for asylum seekers unaffected by the policy.
247. Family Detention Services also will struggle under the weight of increased appeals under the Rule and Proclamation. These appeals are time-consuming for staff, who must prepare the client to testify and research legal arguments for immigration court. Family Detention Services will need to narrow its case acceptance criteria as the volume of appeals increases, further undermining the program’s commitment to universal representation.
248. Nor will Family Detention Services be able to rely on pro bono attorneys to represent clients in immigration court; unlike with telephonic credible fear interviews, few pro bono attorneys are available to represent clients in person at immigration court, especially in rural Texas.
249. The Rule and Proclamation also create new burdens for RAICES’s Children’s Program. Under the Trafficking Victims Protection Reauthorization Act (“TVPRA”), removal proceedings for unaccompanied minors applying for asylum occur at the Asylum Office in a non-adversarial context, rather than in immigration court, to protect these vulnerable children.
250. Under the Rule and Proclamation, however, unaccompanied minors who enter outside of a port of entry will no longer be eligible for asylum. The Asylum Office will have no jurisdiction over the case; an Immigration Judge will hear the case for withholding of removal and protection under CAT. What has been a non-adversarial process using minimal resources therefore will become a lengthy and costly process for the Children’s Program. Staff will have to prepare formal briefings and sophisticated legal arguments for an Immigration Judge, both of which are uncommon for Asylum Office proceedings.
54

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 55 of 69
251. The adversarial process in immigration court is also a traumatic one for the children. Under the Rule and Proclamation, Children’s Program staff will expend tremendous time and resources preparing children not only for the contents of their testimony and crossexamination by a DHS attorney, but also for the emotional toll that testimony would take.
252. The Rule and Proclamation will add new obstacles for RAICES’s Community Immigration Services program as well, which assists clients after they have been released from detention. Last year, Community Immigration Services worked with approximately 100 asylumseeking clients outside detention. Staff assisted with roughly 75 applications.
253. Under the Rule and Proclamation, Community Immigration Services will spend at least double the traditional time on each family’s applications. Because each individual will have to submit a separate application, rather than one application per family, it will take significantly more time and resources for Community Immigration Services lawyers to assist families with their applications than before the policy. RAICES anticipates that, under the Interim Rule and Proclamation, Community Immigration Services would need to assist with at least twice the current number of applications.
254. Community Immigration Services staff also may have to shift roles into other RAICES programs. If fewer clients are released from detention under the higher reasonable fear standard, Community Immigration Services lawyers will have a decreased population to serve. Family Detention Services and the Children’s Program, conversely, will be understaffed due to the increased burdens created by the Rule and Proclamation. RAICES will need to retrain Community Immigration Services staff to perform unfamiliar duties for other programs.
255. The Rule’s lack of notice and comment procedures also irreparably compromised RAICES’s ability to inform the Government of the substantial harms—both to the organization
55

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 56 of 69
and its clients—that the policy would create. Commenting on rules and regulations is an important part of RAICES’s mission to improve the lives of migrants in Texas. In 2018, RAICES has commented on four proposed rules and regulations. Had RAICES been given the opportunity to comment on the Rule, it would have done so.
CLASS ACTION ALLEGATIONS 256. Individual Plaintiffs bring this lawsuit challenging the Rule and Proclamation individually and on behalf of a proposed nationwide class under Federal Rules 23(b)(2) and 23(c)(4), consisting of all noncitizens who have entered or will enter the United States through the southern border but outside ports of entry after November 9, 2018. 257. The prerequisites of Federal Rule 23(a) are satisfied. The proposed class consists of thousands of migrants detained or released into the community pending further immigration proceedings throughout the United States, rendering it impracticable to join all class members before the Court. Fed. R. Civ. P. 23(a)(1). There also are substantial questions of law or fact common to all class members, including whether the Defendants’ actions in promulgating and enforcing the Rule and Proclamation violate the laws and Constitution of the United States. Id. 23(a)(2), (c)(4). Individual Plaintiffs’ claims will be typical of those of the class, and Individual Plaintiffs will fairly and adequately protect the class’s interests. Id. 23(a)(3)-(4). 258. Defendants have acted or refused to act on grounds that apply generally to the class, such that the requested declaratory and injunctive relief is appropriate respecting the class as a whole. Id. 23(b)(2). All class members had the right to apply for asylum under the U.S. immigration laws prior to the promulgation of the Rule and Proclamation.
56

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 57 of 69
CAUSES OF ACTION COUNT I
(Substantive Violation of INA, 8 U.S.C. § 1158, and APA, 5 U.S.C. § 706) 259. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 260. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” “contrary to constitutional right, power, privilege, or immunity;” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” and “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)-(C). 261. The INA guarantees “[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 or United States waters), irrespective of such alien’s status” the right to “apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1) (emphasis added). 262. In promulgating the Rule and implementing it in conjunction with the Proclamation, Defendants have acted contrary to the INA. By purporting to deny asylum eligibility to those specifically entitled to seek it, the Rule and Proclamation violate the INA. 263. Further, the Rule impermissibly empowers the President, rather than the Attorney General, to establish limitations on asylum unilaterally. Section 1158(b)(2)(C) states that “[t]he Attorney General” may “establish . . . limitations and conditions” on asylum eligibility. But the
57

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 58 of 69
Rule purports to transfer that power to the President alone. That purported delegation would allow an end-run around the requirements of the APA.
264. The Rule exceeds the Attorney General’s scope of delegated authority to establish “consistent” limitations and conditions on asylum eligibility and consideration of applications under 8 U.S.C § 1158(b)(2)(C), (d)(5)(B). In addition to contravening the plain terms of 8 U.S.C. § 1158(a)(1), the Rule introduces a limit on the availability of asylum that is dramatically different from the other restrictions on asylum specified in the statute itself.
265. The President’s authority under 8 U.S.C. §§ 1182(f), 1185(a)(1) does not encompass the ability to override statutory requirements related to asylum.
266. Through their actions described in this Complaint, Defendants have violated the substantive requirements of the INA and APA. Defendants’ violations inflict immediate and irreparable harm upon all Plaintiffs, including by denying Individual Plaintiffs and other putative class members the opportunity to seek asylum under the laws of the United States, depriving them of the benefits to which asylees are entitled, and exposing them to the risk of forcible return to dangerous conditions in their home countries.
267. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT II (Violation of APA, 5 U.S.C. § 706, through Arbitrary and Capricious Action) 268. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein.
58

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 59 of 69
269. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
270. In promulgating the Rule and implementing it in conjunction with the Proclamation, Defendants have acted arbitrarily and capriciously. The Rule lacks any rational or evidence-based relationship to its proffered rationale of reducing the Government’s expenditure of resources to detain and remove unlawful aliens.
271. There also is no evidence that the Rule will “have a deterrent effect that could lessen future flows of illegal immigration,” 83 Fed. Reg. 55,948, given the exigencies and administrative delays that compel migrants, and especially asylum seekers, to pursue entry outside of designated ports.
272. The Rule and Proclamation also change prior policy holding that unlawful entry is merely one consideration in asylum applications, rather than a categorical bar to eligibility. See Pula, 19 I. & N. Dec. 467, 473. The Rule and Proclamation lack any acknowledgement of this deviation from existing policy, fail to offer meaningful justifications for such change, create internal inconsistencies in the law, and do not represent reasoned agency action.
273. Through their actions described in this Complaint, Defendants have acted arbitrarily and capriciously in violation of the APA.
274. Defendants’ violations inflict immediate and irreparable harm upon all Plaintiffs, including by denying Individual Plaintiffs and other putative class members the opportunity to seek asylum in the United States and placing them at risk of deportation to countries in which they are endangered.
59

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 60 of 69
275. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT III (Violation of APA, 5 U.S.C. § 553, for Failure to Follow Notice and Comment Procedures)
276. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein.
277. The APA requires courts to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
278. The APA requires that agencies follow public notice-and-comment rulemaking procedures before promulgating regulations. See 5 U.S.C. § 553(b), (c). Defendants failed to provide notice and an opportunity for public comment on the Rule in any manner prior to its issuance on November 8, 2018.
279. The APA also presumptively requires that a substantive rule be published “not less than 30 days before its effective date.” Id. § 553(d). Defendants failed to publish the Rule, which affects asylum seekers’ substantive rights under the INA, as required by this provision.
280. The APA’s notice and comment exceptions related to “foreign affairs function[s] of the United States,” id. § 553(a)(1), and “good cause,” id. § 553(d)(3), are inapplicable.
281. Had the Rule been the subject of advance publication and notice-and-comment rulemaking under the APA, CAIR Coalition and RAICES would have submitted comments opposing its adoption.
60

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 61 of 69
282. Defendants’ violations inflict immediate and irreparable harm upon all Plaintiffs, who lack adequate remedies at law and seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT IV (Due Process, U.S. Const. amend. V) 283. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 284. “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (internal quotation omitted); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to . . . due process of law.”). The Due Process Clause applies to Individual Plaintiffs and the other putative class members in the United States. 285. Under the Rule and Proclamation, Defendants will deny Individual Plaintiffs and other putative class members access to the asylum procedures to which they are entitled, regardless of their point of entry, under the INA. See 8 U.S.C. § 1158(a)(1). 286. In addition, “an alien who has unlawfully entered the United States has a Fifth Amendment procedural due process right to petition the government for political asylum and a statutory procedural due process right to a meaningful or fair evidentiary hearing.” GutierrezRogue v. I.N.S., 954 F.2d 769, 772-73 (D.C. Cir. 1992) (citing Maldonado-Perez v. I.N.S., 865 F.2d 328, 332-33 (D.C. Cir. 1989)) (internal quotation marks and brackets omitted).
61

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 62 of 69
287. As discussed above, Individual Plaintiffs and other putative class members have been afforded no process or access to fair hearings through which to seek asylum under the Rule and Proclamation, due to the policy’s categorical denial of eligibility for migrants who entered through the southern border outside designated ports of entry. Denying Individual Plaintiffs and other putative class members any ability to be meaningfully heard on their asylum claims violates their Fifth Amendment rights to due process.
288. In addition, because minor children are derivatively eligible to receive asylum where their parents obtain asylum, see 8 U.S.C. § 1158(b)(3)(A), Defendants’ violations of the due process rights of adult members of the putative class likewise violate the due process rights of derivatively eligible children in the putative class.
289. Defendants’ due process violations inflict immediate and irreparable harm upon Individual Plaintiffs and other putative class members, including by denying them the opportunity to seek asylum in the United States and placing them at risk of deportation to countries in which they are endangered.
290. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT V (Substantive Violation of Trafficking Victims Protection Reauthorization Act,
8 U.S.C. § 1158(b)(3)(C), and APA, 5 U.S.C. § 706) 291. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 292. As noted above, the TVPRA amended the INA to provide specific asylum protections for children. See 8 U.S.C. §§ 1158(b)(3)(C), 1232.
62

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 63 of 69
293. Pursuant to the TVPRA, unaccompanied children who enter the United States without inspection generally are not subject to expedited removal. Id. § 1232(a)(5)(D)(i). Instead, unaccompanied minors are placed in regular removal proceedings before Immigration Judges without having to pass credible fear interviews. Id.
294. Prior to reaching an Immigration Judge, an unaccompanied child presents her application for asylum to an asylum officer, who has “initial jurisdiction over any asylum application filed by an unaccompanied alien child” and can accept the application even for an unaccompanied child in removal proceedings. Id. § 1158(b)(3)(C). If the asylum officer denies the application, then the unaccompanied minor generally proceeds to present her application to the Immigration Judge, in addition to any other claims she may have for withholding of removal or CAT relief. See id. § 1232(a)(5)(D).
295. As addressed above, this sequencing, which permits unaccompanied minors to present asylum claims to asylum officers in the first instance, is designed to further the TVPRA’s fundamental objective of protecting children. It ensures that when unaccompanied minors first recount the difficult and potentially traumatic facts underlying their asylum claims, they do so in a non-adversarial setting, rather than in the context of trial proceedings including crossexamination by DHS attorneys.
296. The Rule is directly contrary to the TVPRA. asylum officers would be forced to issue negative findings on the asylum claims of unaccompanied children. The Rule contravenes the specific process that Congress set up for unaccompanied children.
297. Through their actions described in this Complaint, Defendants have violated the substantive requirements of the TVPRA and APA. Defendants’ violations inflict immediate and irreparable harm upon unaccompanied children in the putative class by depriving them of the
63

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 64 of 69
opportunity to seek asylum under the laws of the United States, especially the procedural protections created in the TVPRA, and by exposing them to the risk of forcible return to dangerous conditions in their home countries. Defendants’ violations also inflict immediate and irreparable harm on RAICES and CAIR Coalition by compromising the services they can provide to unaccompanied minor clients and forcing them to drastically divert or redesign their children’s services programs.
298. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT VI (Mandamus, 28 U.S.C. § 1361) 299. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 300. Federal district courts have “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States, or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. 301. A plaintiff may obtain a writ of mandamus where she has a clear right to the relief sought, the defendant has a duty to do the act in question, and no other adequate remedy is available. Id. 302. Under the INA, “[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 or United States waters), irrespective of such alien’s status,” has the right to “apply for asylum in accordance with
64

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 65 of 69
this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1). Defendants have a clear, nondiscretionary duty to permit noncitizens to make asylum claims regardless of their status and point of entry into the United States.
303. The Rule and Proclamation contravene Defendants’ duty to permit such claims and categorically deny Individual Plaintiffs and the other members of the putative class the ability to claim asylum, for which the new policy unlawfully makes them ineligible based on their point of entry into the United States.
304. Plaintiffs have exhausted all other avenues of relief and have no other adequate remedy.
305. Defendants’ violations inflict immediate and irreparable harm upon all Plaintiffs, including by denying Individual Plaintiffs and other putative class members the opportunity to seek asylum in the United States and placing them at risk of deportation to countries in which they are endangered.
306. Plaintiffs have a clear right to access the asylum procedures available under the INA, and Defendants have a non-discretionary duty to provide them access to those procedures. There is no adequate remedy to Defendants’ violation, apart from ordering Defendants to carry out their duties to permit asylum claims consistent with the terms of the INA. Plaintiffs accordingly are entitled to mandamus relief.
COUNT VII (Violation of 28 U.S.C. § 508 and the Appointments Clause) 307. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein.
65

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 66 of 69
308. Under 28 U.S.C. § 508(a), “[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.” If the Deputy Attorney General is not “available,” the “Associate Attorney General shall act as Attorney General.” Id. § 508(b). “The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.” Id.
309. Defendant Whitaker was not the Deputy Attorney General, nor did he hold any other office in the Department of Justice in the line of succession, at the time the office of Attorney General became vacant. His appointment to be Acting Attorney General therefore violates 28 U.S.C. § 508.
310. The Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3345, is not applicable. First, the FVRA does not override the provisions of 28 U.S.C. § 508. Second, Attorney General Jefferson B. Sessions was removed by President Trump. The resulting vacancy thus could not be filled using the FVRA. See 5 U.S.C. § 3345(a).
311. The Appointments Clause of the Constitution, art. II, § 2, cl. 2, requires the President to obtain “the Advice and Consent of the Senate” before appointing principal “Officers of the United States.”
312. The Attorney General is a principal officer for purposes of the Appointments Clause. See Morrison v. Olson, 487 U.S. 654 (1988).
313. President Trump did not obtain the Advice and Consent of the Senate before appointing Defendant Whitaker to be Acting Attorney General. His appointment therefore violates the Appointments Clause.
66

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 67 of 69
314. Because Defendant Whitaker’s appointment is invalid, he lacked authority to issue the Rule, and the Rule is unlawful.
315. In addition, any future action taken by Defendant Whitaker affecting any individual Plaintiff, organizational Plaintiff, client of an organizational Plaintiff, or class member, is likewise invalid. In particular, to the extent that written or electronic comments regarding the Rule are due on January 8, 2019, any additional action taken by Defendant Whitaker thereafter to promulgate a final rule will be unlawful.
COUNT VIII (Declaratory Judgment) 316. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 317. Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and Federal Rule of Civil Procedure 57, this Court is empowered to issue a declaratory judgment regarding the Rule’s lawfulness under the Constitution, the INA, the APA, and other federal statutes. 318. An “actual, ripe controversy” exists between the parties concerning Defendants’ authority to issue the Rule and to implement and enforce its terms nationwide consistent with U.S. law. Committee on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 22 (D.D.C. 2013). The Court has subject matter jurisdiction to adjudicate that dispute pursuant to 28 U.S.C. § 1331. See id. 319. Plaintiffs seek a declaratory judgment from the Court that the Rule is inconsistent with and unlawful under the Constitution and laws of the United States.
67

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 68 of 69
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court:
a. Declare that the Rule is unauthorized by, and contrary to, the Constitution and laws of the United States;
b. Issue a temporary restraining order, preliminary injunction, and permanent injunction enjoining Defendants from implementing or enforcing the Rule across the nation;
c. Issue a writ of mandamus requiring Defendants’ compliance with the terms of the INA, including the requirement that they provide Individual Plaintiffs and the putative class access to credible fear interviews to pursue their asylum claims;
d. Set an expedited hearing within fourteen days pursuant to Federal Rule 65(b)(2) to determine whether the temporary restraining order should be extended and a preliminary injunction should be issued;
e. Determine that this action may be maintained as a class action pursuant to Federal Rules 23(b)(2) and 23(c)(4); direct that reasonable notice be provided to the class pursuant to Federal Rule 23(c)(2); declare that Plaintiffs are the representatives of the class; and declare that Plaintiffs’ counsel are class counsel; and
f. Award damages, attorney’s fees, and any such additional relief as the interests of justice may require.
68

Case 1:18-cv-02718-RDM Document 39 Filed 12/18/18 Page 69 of 69

Dated: December 18, 2018

Respectfully submitted, HOGAN LOVELLS US LLP

Manoj Govindaiah RAICES, INC. 1305 N. Flores Street San Antonio, TX 78212 Telephone: (210) 222-0964 Facsimile: (210) 212-4856 manoj.govindaiah@raicestexas.org
Counsel for Plaintiff Refugee and Immigrant Center for Education and Legal Services, Inc.
Adina Appelbaum* (Bar No. 1026331) CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION 1612 K Street NW, Suite 204 Washington, DC 20006 Telephone: (202) 899-1412 Facsimile: (202) 331-3341 adina@caircoalition.com
* Certification to practice pursuant to LCvR 83.2(g) forthcoming
Counsel for Plaintiff Capital Area Immigrants’ Rights Coalition

/s Justin W. Bernick
Neal K. Katyal (Bar No. 462071) T. Clark Weymouth (Bar No. 391833) Craig A. Hoover (Bar No. 386918) Justin W. Bernick (Bar No. 988245) Colleen Roh Sinzdak* (Bar No. 1015344) Zachary W. H. Best (Bar No. 1003717) Mitchell P. Reich** (Bar No. 1044671) Elizabeth Hagerty (Bar No. 1022774) Kaitlin Welborn (Bar. No. 88187724) 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 neal.katyal@hoganlovells.com t.weymouth@hoganlovells.com craig.hoover@hoganlovells.com justin.bernick@hoganlovells.com colleen.sinzdak@hoganlovells.com zachary.best@hoganlovells.com mitchell.reich@hoganlovells.com elizabeth.hagerty@hoganlovells.com kaitlin.welborn@hoganlovells.com
Thomas P. Schmidt** 875 Third Avenue New York, NY 10022 Telephone: (212) 918-5547 Facsimile: (212) 918-3100 thomas.schmidt@hoganlovells.com
* Pro hac vice application forthcoming
**Admitted pro hac vice
Counsel for Plaintiffs

69

 
 Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

O.A., et al., on behalf of themselves and all Civil Action No. 1:18-cv-2718-RDM others similarly situated,

Plaintiffs, v. DONALD J. TRUMP, et al.,
Defendants.

[Consolidated with Civil Action No. 18-cv-2718-RDM]
AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 2 of 37
PRELIMINARY STATEMENT 1. This case concerns the U.S. government’s unlawful attempt to deprive vulnerable individuals of access to the protection that the nation’s asylum system affords. 2. Under U.S. law, noncitizens are entitled to seek asylum irrespective of immigration status and without regard to manner of entry into the United States. See 8 U.S.C. § 1158(a)(1). U.S. law in this regard is consistent with the United States’ treaty obligations under the Refugee Act of 1980. U.S. law also requires certain procedural safeguards during removal proceedings. See id. § 1225(b)(1). These safeguards are critical to ensuring that individuals who face persecution—including rape, kidnapping, torture, and even death—in their home countries are given a fair chance to establish their eligibility for asylum. 3. On November 9, 2018, the Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”) promulgated an interim final rule (“the Rule”), EOIR Docket No. 18–0501; A.G. Order No. 4327–2018, imposing new, significant limitations on who may seek asylum in the United States. On the same day, President Trump signed a presidential proclamation entitled “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” (“the Proclamation”) that purports to suspend the entry of individuals who have entered the United States from across the U.S.–Mexico border without receiving inspection at a designated port of entry. Together, the Rule and the Proclamation render ineligible for asylum any noncitizen who enters the United States without inspection from across the U.S.–Mexico border. This dramatic change to the Nation’s asylum laws shutters access to the asylum system for thousands of men, women, and children that the Administration concedes are likely to have meritorious asylum claims. The Rule is illegal in several respects.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 3 of 37
4. First, the Rule contradicts the requirements of the Immigration and Nationality Act (“INA”), specifically 8 U.S.C. § 1158(a)(1), which gives any noncitizen who is physically present in or who arrives in the United States a statutory right to seek asylum, irrespective of the individual’s manner of entry, and requires the government to follow specific processes when an individual expresses a desire to seek asylum or fear of returning to his or her home country. The Rule is therefore contrary to law under the INA and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”).
5. Second, the Rule violates 8 U.S.C. § 1225 by mandating a denial of a credible fear determination, even in situations where a noncitizen in expedited removal proceedings shows a significant possibility that she could establish eligibility for asylum. For this reason, the Rule is again contrary to law under the INA and the APA.
6. Third, the Rule violates The William Wilberforce Trafficking Victims Protection Act, 8 U.S.C. § 1158 (b)(3)(C), by denying unaccompanied children the opportunity to first present the substance of their claims for asylum in a non-adversarial proceeding before an asylum officer.
7. Fourth, by adopting, without notice and the opportunity to comment, an interim final rule depriving certain asylum seekers of the statutory protection outlined in the INA simply because they enter the country without inspection, the responsible government officials have acted in excess of their statutorily prescribed authority, contrary to law, and arbitrarily and capriciously, all in violation of the APA.
8. Fifth, the promulgation of the Rule was invalid because the current Acting Attorney General who putatively authorized promulgation of the Rule is ineligible to serve in that role under 28 U.S.C. § 508 and the Appointments Clause of the United States Constitution, art. II, § 2, cl. 2.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 4 of 37
9. Sixth, even assuming the current Acting Attorney General’s appointment was lawful, the Rule violates the requirement under 8 U.S.C. § 1158(b)(2)(C) that any changes to the limitations and conditions imposed on asylum seekers be made by regulation—rather than by presidential decree. Because the Rule is predicated on an abdication of that responsibility, and simply incorporates by reference the consequence of Presidential proclamations, the Rule is invalid under the APA and is ultra vires.
10. If allowed to stand, the Rule would fundamentally reshape and constrict asylum law, in contravention of U.S. and international law. This Court’s intervention is necessary to put a stop to this Administration’s illegal actions and prevent irreparable harm to thousands of asylum seekers who desperately need protection in this country.
11. Plaintiffs respectfully request a declaration that the Rule violates the APA, and an order enjoining the application of the Rule.
PARTIES 12. Plaintiffs are noncitizens who are presently in the United States and wish to seek asylum. 13. Plaintiff O.A. is a 23-year-old man from Honduras who the government contends is subject to the Proclamation. O.A. fled Honduras with his 4-year-old daughter, K.S., because a gang called Mara-18 (M-18), threatened to kill him and his family. They did so because M-18 had killed O.A.’s brother, and they then targeted O.A. and his family when O.A. cooperated with the police to help them investigate his brother’s death. O.A. knew that the police in Honduras would not be willing or able to help him, and he decided to flee Honduras with his daughter. 14. Plaintiff K.S. is a 4-year-old girl from Honduras. O.A. is her father, and she entered the United States with him when he entered the United States after fleeing Honduras. K.S.’s life

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 5 of 37
was at risk in Honduras because her father cooperated with police to investigate the death of his brother, and she accompanied him when he fled Honduras to seek asylum in the United States.
15. Plaintiff A.V. is a 27-year-old woman from Honduras who crossed the border from Mexico into the United States other than at a port of entry on November 11, 2018. She has a credible fear of persecution in Honduras because she is a victim of repeated violent assaults by her partner (who is the father of her children), and because her partner is likely a member of gang and has threatened to kill her. A.V. has nowhere to turn for help in Honduras.
16. Plaintiff G.Z. is a 16-year-old unaccompanied minor from Honduras who the government alleges crossed the U.S.–Mexico border other than at a port of entry on November 10, 2018. In Honduras, G.Z. was the victim of recurring violence at the hands of his father, who is a police officer. G.Z. has no ability to seek protection from the police, because his father is one of them. In the weeks preceding his departure from Honduras, G.Z. also rebuffed efforts by MS-13 gang members to recruit him because he believes their activities to be morally wrong. G.Z. feared that if he did not leave Honduras he would be killed. He has a credible fear of persecution.
17. Plaintiff D.S. is an asylum seeker from Honduras. She fled Honduras because of severe domestic abuse by her partner, who is a security guard. She tried to report the violence, which at points required hospitalization, but the government did nothing in response to her complaint and did not pursue her partner when he failed to appear in judicial proceedings. D.S. also tried to relocate internally within Honduras but her partner tracked her down and threatened to kill her. D.S. made the difficult journey across Mexico with her son, C.A., over the course of two weeks, during which time she exhausted all of her financial resources. D.S., with her son, C.A., entered the United States other than at a port of entry on November 13, 2018, and they were apprehended by immigration officials on the U.S. side of the border.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 6 of 37
18. Plaintiff C.A. is an asylum seeker from Honduras, whose mother is Plaintiff D.S. Plaintiff C.A. was regularly beaten by his father in Honduras and accompanied his mother, D.S., on her journey to the United States. With D.S., C.A. entered the United States other than at a port of entry on November 13, 2018, and they were apprehended by immigration officials on the U.S. side of the border.
19. Plaintiff D.R. is an asylum seeker from El Salvador who crossed the southern border other than at a port of entry on or about November 13, 2018. D.R. was forced to flee El Salvador with her 20-year-old daughter, P.R., after government officials and members of a major political party badly beat them and threatened their lives for opposing the party and refusing to help it violate the law. She fears she will be persecuted again if forced to return to El Salvador.
20. Plaintiff P.R. is a 20-year-old asylum seeker from El Salvador, whose mother is Plaintiff D.R. Like her mother, P.R. was beaten and threatened by police and other government and political-party officials. This abuse occurred because of her and her mother’s political affiliation and refusal to support the party. Neither she nor her mother could go to the Salvadoran authorities to report and prevent their persecution, because those authorities were precisely the people perpetrating that persecution. With nowhere to turn for help, she fled the country, crossing the U.S. southern border with her mother on or about November 13, 2018. She has a credible fear that if returned to her home country, she would be gravely harmed or killed on account of her refusal to support the party and on account of her relationship to her mother.
21. Plaintiff G.R. is an 18-year-old Nicaraguan national who is seeking asylum in the United States. After providing medical assistance to protesters participating in peaceful protests against government policies—and after participating in some such protests herself—G.R. received threatening phone calls, whereupon she attempted to relocate to another part of Nicaragua. Internal

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 7 of 37
relocation did not work: in response to her continued political activism, police stopped her on the street, called her by her name, and informed her that the next time they saw her they would take her into custody. It became clear to G.R. that the authorities intended to arrest her for her political beliefs, and that she would likely be tortured and raped in prison if she did not flee. Accordingly, G.R. departed Nicaragua seeking refuge from persecution. She was apprehended crossing the southern border into the United States other than at a port of entry on or about November 13, 2018.
22. Defendant Donald J. Trump is the President of the United States. On November 9, 2018, he issued the Proclamation. He is sued in his official capacity.
23. Defendant Matthew G. Whitaker was appointed to the position of Acting Attorney General of the United States (“Acting Attorney General”) on November 7, 2018. The Attorney General is responsible for administering the INA, oversees the Executive Office for Immigration Review (“EOIR”), and is empowered by statute to grant asylum or any other relief. He is sued in his official capacity.
24. Defendant Kirstjen M. Nielsen is the Secretary of DHS (“the Secretary”). She directs United States Immigration and Customs Enforcement (“ICE”), United States Citizenship and Immigration Services (“USCIS”), and United States Customs and Border Protection (“CBP”). She is sued in her official capacity.
25. Defendant Lee Francis Cissna is Director of USCIS, which is the agency that employs the Asylum Officers who conduct credible fear screening interviews to determine whether individuals may apply for asylum before an immigration judge. He is sued in his official capacity.
26. Defendant John Lafferty, the Asylum Division Chief within USCIS, is responsible for overseeing the credible fear screening process and asylum adjudication within USCIS. He is sued in his official capacity.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 8 of 37
NATURE OF ACTION 27. This is an action arising under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. 28. Plaintiffs seek a declaratory judgment that the interim final rule entitled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,” 83 Fed. Reg. 55,934 (Nov. 9, 2018) is arbitrary, capricious, contrary to law, and beyond the authority of the Acting Attorney General and the Secretary to promulgate under the APA and otherwise. Plaintiffs further seek an injunction prohibiting Defendants from enforcing the Rule and such additional and other relief as is just and proper.
JURISDICTION AND VENUE 29. This Court has jurisdiction under 28 U.S.C. § 1331, as the claims in this case arise under federal statutes, including the INA, 8 U.S.C. § 1101 et seq., and the APA, 5 U.S.C. § 701 et seq. Specifically, this Court has jurisdiction to review Plaintiffs’ claims that the Rule is inconsistent with the INA and thus ultra vires to it. 30. This Court further has jurisdiction to review this case as a challenge to changes in the expedited removal process under 8 U.S.C. § 1252(e)(3). Although courts generally lack jurisdiction to review challenges to the expedited removal process, judicial review under § 1225(b) is available to determine if any regulation issued to implement such section is constitutional or whether such regulation is otherwise in violation of law. This case falls squarely within this statutory exception. Plaintiffs present a challenge to the “validity of the system” for expedited removal. See 8 U.S.C. § 1252(e)(3). The Rule and Proclamation are each a “written policy directive, written policy guideline, or written procedure” issued to implement the expedited removal procedures set forth in 8 U.S.C. § 1225(b). And Plaintiffs assert that the Rule and Proclamation impose changes to the expedited removal and credible fear system that are “not

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 9 of 37
consistent with applicable provisions of [8 U.S.C. § 1158(a)(1)],” and “otherwise in violation of law.” Id. § 1252(e)(3)(A)(ii).
31. The declaratory, injunctive, and other relief sought by Plaintiffs are authorized by 28 U.S.C. §§ 2201 and 2202.
32. Venue in this District is proper pursuant to 5 U.S.C. § 703 and 8 U.S.C. § 1252(e). In addition, venue is proper pursuant to 28 U.S.C. § 1391(e) because a substantial part of the events or omissions giving rise to the claim occurred at or in this District. Defendants are headquartered in Washington, D.C., and upon information and belief, Defendants’ decisions regarding changes to the expedited removal and credible fear processes have taken place and are being made in the District of Columbia.
FACTUAL ALLEGATIONS Legal Framework
33. Congress enacted the Refugee Act of 1980 to “bring United States refugee law into conformance” with international law, as outlined under the United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees. INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987).
34. Among the treaty obligations undertaken by the United States was the promise that the “Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.” Convention Relating to the Status of Refugees art. 3, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.1 Further, “[c]ontracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter
1 The text of the Convention is available online at http://www.unhcr.org/en-us/3b66c2aa10.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 10 of 37
or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Id. at art. 31(1). This prohibition against restricting asylum access based on manner of entry is reiterated in the Introductory Note to the Refugee Convention, which states: “The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules.” Id. at Introductory Note.
35. The INA is the embodiment of these international law obligations. Its instructions regarding the asylum process are clear: “Any 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 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.” 8 U.S.C. § 1158(a)(1) (emphases added).
36. While asylum is ultimately a discretionary remedy within the parameters set by statute, the duty to allow a noncitizen access to the process for seeking asylum is not discretionary, as the U.S. government has recognized. See, e.g., Federal Defendant’s Reply Brief in Support of Motion for Summary Judgment and Dismissal for Lack of Jurisdiction, cited in Munyua v. United States, 2005 U.S. Dist. LEXIS 11499, at *16–19 (N.D. Cal. Jan. 10, 2005) (“[D]efendant acknowledges that [the immigration officers] did not have the discretion to ignore a clear expression of fear of return or to coerce an alien into withdrawing an application for admission.”).
37. For a noncitizen to be eligible for asylum, the noncitizen must establish that he or she is a refugee under the INA, defined as follows:

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 11 of 37
[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 wellfounded 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); see id. § 1158(a)(1). 38. To demonstrate a well-founded fear of persecution, a noncitizen need not show that harm is certain or even more likely than not; a 1 in 10 chance of persecution is sufficient under U.S. Supreme Court precedent. See Cardoza-Fonseca, 480 U.S. at 430.
Expedited Removal and Credible Fear 39. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which created an expedited removal process for immigration officials to deport certain individuals deemed inadmissible under the INA. 40. Out of a concern that expedited removal would prevent individuals from seeking and applying for asylum—and thereby abrogate the United States’ obligations under domestic and international law—IIRIRA implemented the “credible fear” screening process to ensure that individuals subject to expedited removal proceedings would be given meaningful access to the asylum process. 41. Under those provisions, if a noncitizen facing expedited removal indicates any fear of returning to his or her home country, an immigration officer must refer the asylum seeker for a “credible fear” interview. See 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 235.3(b)(4). This interview is designed 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). 42. To satisfy the credible fear standard, an asylum seeker need only show a “significant possibility, taking into account the credibility of the statements made by the noncitizen

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 12 of 37
and in support of the noncitizen’s claim and such other facts as are known to the officer, that the noncitizen could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v). The standard used in this initial screening is intentionally lower than the standard used in the full asylum hearing that the applicant will later undergo if he or she passes the credible fear interview. The intentionally low threshold for demonstrating a credible fear accounts for the reality that credible fear interviews typically take place shortly after asylum seekers have completed their often traumatic journeys to the United States, in border processing centers or detention facilities where asylum seekers typically do not have access to attorneys. The standard also acknowledges that many asylum seekers arrive in the United States without the time, resources, or expertise to develop fully, upon arrival, the evidence necessary to prevail on their ultimate asylum application.
43. The credible fear process includes another important limitation. Recognizing the abbreviated nature of these interviews, if a person meets the definition of a refugee but may be subject to a bar to asylum, officers are required to flag those potential bars for future adjudication, but to refer the applicant for full removal proceedings. See 8 C.F.R. § 208.30(e)(5).
44. The requirement to refer an asylum seeker subject to expedited removal proceedings to an asylum officer for a credible fear interview is mandatory. See 8 U.S.C. § 1225(b)(1)(A)(ii) (immigration officer “shall refer the [noncitizen] for an interview by an asylum officer” (emphasis added)); 8 C.F.R. § 235.3(b)(4) (“[T]he inspecting officer shall not proceed further with removal of the [noncitizen] until the [noncitizen] has been referred for an interview by an asylum officer.” (emphasis added)).
45. If an applicant is found by an asylum officer to have a credible fear of persecution or torture, the applicant is taken out of the expedited removal process and placed in the regular removal process. The applicant thus obtains the ability to develop a full record in support of his

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 13 of 37
or her asylum claim; the right to present that claim before an immigration judge at a trial-like hearing; and the ability to appeal an adverse decision to the Board of Immigration Appeals and a federal court of appeals. See 8 U.S.C. § 1225(b)(1)(B)(ii).
46. The newly promulgated Rule and the accompanying Proclamation upend this detailed statutory scheme. Under the Rule, asylum seekers who enter without inspection from across the U.S.–Mexico border are barred from obtaining asylum and may only apply for withholding of removal or relief under the Convention Against Torture (“CAT”). Obtaining either of these forms of relief requires satisfying a different standard than credible fear interviews, requiring an individual to demonstrate a “reasonable possibility” of persecution “on account of” a protected ground. This “reasonable fear” standard is significantly higher than the credible fear standard. That is so because the reasonable fear screening standard is the same standard required to establish a “well-founded fear” of persecution in the asylum context. The credible fear standard, on the other hand, requires only a showing of a significant possibility that the well-founded fear will be established.
47. Moreover, unlike asylum, withholding of removal and CAT protection do not prohibit the government from removing the noncitizen to a third country; do not create a path to lawful permanent resident status and citizenship; do not allow the noncitizen to travel freely within the United States or internationally; and do not ensure family unity by permitting a noncitizen’s family members to obtain lawful immigration status derivatively.
48. The Government contends that Plaintiffs are subject to the new Proclamation and Rule; Plaintiffs are suffering irreparable harm as a result. Plaintiffs suffered persecution that their home country’s government was unwilling and unable to stop, and have come to the United States to seek refuge. The Proclamation and Rule effectively prevent Plaintiffs from applying for asylum

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 14 of 37
and the benefits that come with it, and place Plaintiffs at high risk of being returned to the country that perpetrated or sanctioned their oppression.
Implementation of “Zero-Tolerance” Immigration Policy 49. In April 2018, the U.S. government began implementing a “zero-tolerance” policy on immigration. In announcing the policy, then-Attorney General Jefferson B. Sessions III stated without any evidence that “[t]he situation at our Southwest Border is unacceptable,” and “necessitate[d] an escalated effort to prosecute those who choose to illegally cross our border.”2 Mr. Sessions continued: “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice.” 50. In accordance with this directive, the U.S. government took steps to deter immigration at the southern border, such as referring greater numbers of migrants, including asylum seekers, for criminal prosecution, detaining migrants (including children) in inhospitable conditions, and encouraging adjudication officers to deny asylum claims. 51. The Administration’s “zero-tolerance” policy resulted in the forcible separation of child migrants from their parents, ostensibly so that the government could criminally prosecute the parents for illegal entry or reentry.3 Before federal courts enjoined the practice of separating families, the Department of Homeland Security had separated over 2,000 children from their parents.
2 DOJ, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018) <https://tinyurl.com/y96nsut6>. 3 See Miriam Jordan, How and Why “Zero-Tolerance” is Splitting Up Families, N.Y. TIMES, May 12, 2018 <https://tinyurl.com/y73urcyj>.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 15 of 37
52. The Administration’s “zero-tolerance” policy applied even to asylum seekers. In fact, “zero-tolerance” led to a significant increase in criminal prosecutions of individuals seeking such protection, including many parents who entered the United States without inspection because it was their only means of protecting their children from the persecution faced in their home countries.4
53. Nor did the Administration always permit asylum seekers to seek asylum through designated ports of entry; the Administration began to employ a policy of “metering” at the U.S.– Mexico border to keep a caravan of asylum seekers from presenting themselves at the border to seek protection. The existence of this policy was confirmed by the Secretary, who stated in a May 2018 interview, “We are ‘metering,’ which means that if we don’t have the resources to let them in on a particular day, they are going to have to come back.”5 A September 27, 2018 Special Review of the Administration’s “zero-tolerance” and family separation policies by DHS’s Office of Inspector General (“OIG Report”) similarly acknowledges that the “metering” process involves CBP officers standing at the international border line in the middle of the bridges to the ports of entry; when an asylum seeker approaches the border line, officers confirm whether space is available and permit them “to enter once there is sufficient space and resources to process them.”6
4 See Russell Berman, 85 Immigrants Sentenced Together Before One Judge, THE ATLANTIC, June 19, 2018 <https://tinyurl.com/ydh63e8u>. The need to escape the persecution they face in their home countries is frequently cited by asylum seekers as a primary reason for seeking safe harbor in the United States. See generally University of Washington, The Cycle of Violence: Migration from the Northern Triangle (2017) <https://tinyurl.com/yabyz9ax> (reporting that the increase of violence in Guatemala, Honduras, and El Salvador between 2011 and 2016 coincided with a doubling of total respondents listing “fleeing violence” as their main reason for migration). 5 Fox News, Secretary Nielsen Talks Immigration, Relationship with Trump 03:20 (May 15, 2018) <https://tinyurl.com/y8buwakc>. 6 Dep’t of Homeland Security Office of Inspector General, Special Review - Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy, at 6 (Sept. 27, 2018)

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 16 of 37
54. Although CBP does not maintain a wait list for those who have been turned away
due to metering, some asylum seekers have instituted an unofficial waitlist to keep track of those
awaiting entry. CBP will often refer migrants to the unofficial waitlist when metering. Due to
metering, the average wait time for asylum seekers at a port of entry can be up to several weeks.
Public Statements by Defendants
55. Public statements by the senior Executive Branch officials and the President both
before and after the implementation of “zero-tolerance” reinforced the basic theme of the
Administration’s immigration policy: to deter any and all immigration.
56. On October 12, 2017, then-Attorney General Sessions, in an address to the
Executive Office for Immigration Review, stated, without any evidence: “We . . . have dirty
immigration lawyers who are encouraging their otherwise unlawfully present clients to make false
claims of asylum providing them with the magic words needed to trigger the credible fear process.”7
57. On January 16, 2018, Secretary Nielsen stated, before the U.S. Senate, that “we must tighten [our] case processing standards, including the ‘credible-fear’ standard.”8
<https://tinyurl.com/y9rkz2ye>. The Administration’s claims regarding its limited capacity to process asylum applications are similarly unfounded. Senior CBP and ICE officials at the San Ysidro port of entry stated in interviews “that CBP has only actually reached its detention capacity a couple of times per year and during ‘a very short period’ in 2017.” Amnesty International, USA: ‘You Don’t Have Any Rights Here’: Illegal Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States (2018) <https://tinyurl.com/y8k4q54o>. The September 2018 OIG report similarly stated that “the OIG team did not observe severe overcrowding at the ports of entry it visited.” 7 DOJ, Attorney General Sessions Delivers Remarks to the Executive Office of Immigration Review (Oct. 12, 2017) <https://tinyurl.com/y9n3alru>. 8 DHS, Written testimony of DHS Secretary Kirstjen Nielsen for a Senate Committee on the Judiciary hearing titled “Oversight of the United States Department of Homeland Security” <https://tinyurl.com/yc57pd6n>.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 17 of 37
58. For his part, President Trump has made no secret of his disdain for the Nation’s
duly-enacted immigration laws, including the asylum laws:
a. On June 21, 2018, the President tweeted: “We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password.”
b. On June 24, 2018, the President tweeted: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents . . . .”
c. On June 30, 2018, the President tweeted: “When people come into our Country illegally, we must IMMEDIATELY escort them back out without going through years of legal maneuvering.”
d. On July 5, 2018, the President tweeted: “When people, with or without children, enter our Country, they must be told to leave without our Country being forced to endure a long and costly trial. Tell the people, ‘OUT,’ and they must leave, just as they would if they were standing in your front lawn.”
e. On October 29, 2018, the President tweeted: “Many Gang Members and some very bad people are mixed into the Caravan heading to our Southern Border. Please go back, you will not be admitted into the United States unless you go through the legal process. This is an invasion of our Country and our Military is waiting for you!”
f. On November 1, 2018, President Trump delivered a speech regarding asylum policy. In that speech, the President again referred to migrants from Central America as “an ‘invasion,’” and accused those individuals of using “fraudulent or meritless asylum claims to gain entry into our great country.”9
g. In the same speech, President Trump attacked the content of the asylum laws passed by Congress: “Think of it. Somebody walks into our country, reads a statement given by a lawyer, and we have a three-and-a-half-year court case for one person.” The President called the laws that Congress has passed “incompetent, very, very stupid laws,” and said that the immigration laws are “not archaic; they’re incompetent. It’s not that they’re old; they’re just bad.”
9 Remarks by President Trump on the Illegal Immigration Crisis and Border Security, The White House (Nov. 1, 2018) <https://tinyurl.com/y9x88wfj>.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 18 of 37
59. The foregoing statements reflect a hostility amongst senior members of the Administration to the immigration system and to asylum claims, especially those filed by individuals from Central America. The statements also demonstrate the Administration’s desire to shutter access to asylum by all possible means.
Effects of the Zero-Tolerance Policy 60. As a result of the Administration’s zero-tolerance policy, many migrants who arrive at ports of entry on the U.S.–Mexico border are rebuffed and left in limbo on the Mexican side of the border. 61. In recent years, violence in Mexico has increased. 2017 was listed as “the deadliest year in Mexico,” with 29,168 homicide victims, a 27 percent increase from 2016.10 In January 2018, the U.S. State Department issued a Level Four, “Do not travel” warning—the highest-level travel warning—for the state of Tamaulipas, which incorporates Reynosa, Matamoros, and Nuevo Laredo, three major port of entry sites.11 Many of the other border states, such as Chihuahua, Coahuila, Nuevo León, and Sonora, are listed at Level Three, “Reconsider travel,” due to high levels of “[v]iolent crime and gang activity.”12 62. The violence faced by migrants and refugees like Plaintiffs while in Mexico is disproportionately high and serious. They face grave risks of kidnapping, disappearances, sexual assault, trafficking, and other harms in Mexico’s northern border region. They are targeted not
10 Human Rights First, Mexico: Still Not Safe for Refugees and Migrants (Mar. 2018) <https://tinyurl.com/y8b6flak>. 11 U.S. Dep’t. of State, Mexico Travel Advisory <https://tinyurl.com/ycpn4cxr> (“Violent crime, such as murder, armed robbery, carjacking, kidnapping, extortion, and sexual assault, is common. Gang activity, including gun battles, is widespread. . . . Local law enforcement has limited capability to respond to violence in many parts of the state.”). 12 Id.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 19 of 37
only due to their inherent vulnerabilities as refugees and migrants, but also due to their nationality, race, gender, sexual orientation and gender identity. Additionally, they have limited or no financial resources or contacts in the region.
63. Long wait times for access to ports of entry—times which will only increase under the Rule—leave asylum-seekers especially vulnerable. Cartels and other criminal organizations prey on migrants in border towns and near ports of entry, with cartel members often waiting directly outside some ports of entry.13 As a result, “evidence of mass graves and disappearances in Mexico suggest disproportionate killing of non-Mexican migrants.”14 Attorneys and employees of migrant shelters in Reynosa, Mexico, report that “most—if not all—migrants they encounter who had been turned away from the port of entry have been kidnapped and held for ransom.”15 And with migrant shelters frequently at capacity, many asylum-seekers have no other choice but to sleep on the streets or on the bridge itself while they await access to a port of entry.
64. The Administration’s policy of “metering” has also created strong incentives for legitimate asylum seekers to cross the border other than at authorized ports of entry. DHS’s recent OIG Report confirmed this reality. The OIG reported “evidence that limiting the volume of asylum-seekers entering at ports of entry leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally. According to one Border Patrol supervisor, the
13 Human Rights First, Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers, at 16 (May 2017) [hereinafter Crossing the Line] <https://tinyurl.com/y8rxsfmn>. 14 Josiah Heyman & Jeremy Slack, Blockading Asylum Seekers at Ports of Entry at the US–Mexico Border Puts Them at Increased Risk of Exploitation, Violence, and Death, Ctr. for Migration Studies (June 25, 2018) <https://tinyurl.com/yc5tgec3>. 15 Crossing the Line, supra n.13, at 16.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 20 of 37
Border Patrol sees an increase in illegal entries when aliens are metered at ports of entry.”16 The OIG Report further observed that “[t]he fact that both aliens and the Border Patrol reported that metering leads to increased illegal border crossings strongly suggests a relationship between the two.”17
Issuance of the Rule and Proclamation 65. On November 9, 2018, Defendants enacted the next phase of their “zero-tolerance” policy aimed at significantly reducing the availability of asylum. 66. The process began when Acting Attorney General Whitaker and the Secretary promulgated the Rule. The Rule makes three main changes to asylum law.
a. First, the Rule provides that noncitizens who apply for asylum after November 9, 2018 will be ineligible for asylum if they are “subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) of 215(a)(1) of the Act on or after November 9, 2018” and have entered the United States contrary to the terms of the proclamation or order. See Rule, 83 Fed. Reg. at 55,952 (to be codified at 8 C.F.R. §§ 208.13(c)(3), 1208.13(c)(3)).
b. Second, the Rule provides that noncitizens who are ineligible for asylum pursuant to §§ 2018.13(c)(3) and 1208.13(c)(3) will not be permitted to make a showing of “credible fear” of persecution, as noncitizens seeking asylum presently may do. Under the Rule, a noncitizen’s request for asylum is, from a
16 OIG Report, supra note 6, at 7. 17 Id. at n.15.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 21 of 37
merits standpoint, summarily denied, because the asylum officer is directed to “enter a negative credible fear determination with respect to the alien’s application for asylum.” The noncitizen instead will be placed into “proceedings under section 240 of the Act for full consideration of the alien’s claim for withholding of removal under section 241(b)(3) of the Act, or for withholding or deferral of removal under the Convention Against Torture if the alien establishes a reasonable fear of persecution or torture.” Id. (to be codified at 8 C.F.R. § 208.30). c. Third, the Rule provides for what an immigration judge is to do with respect to the review of expedited removal orders following a negative credible or reasonable fear assessment. The Rule provides that an immigration judge is to review de novo the determination that a noncitizen falls within the scope of a Presidential proclamation that is described in 8 C.F.R. § 208.13(c)(3) or § 1208.13(c)(3). If the immigration judge determines that the noncitizen is not subject to a proclamation, then the asylum officer’s finding will be vacated and DHS may commence removal proceedings under Section 240 of the INA. If the judge agrees that the noncitizen is subject to a proclamation, the judge will then review the asylum officer’s determination that the noncitizen lacks a reasonable fear of persecution pursuant to the procedures set forth in 8 C.F.R. § 1208.30(g)(2). 67. Put more succinctly, together the Rule and Proclamation prohibit anyone from obtaining asylum if they cross outside of a port of entry and make it more difficult for those people

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 22 of 37
to obtain other forms of relief. At the same time, as detailed above, the Administration has made it untenable for many, if not most, noncitizens to apply for asylum at a port of entry.
68. In support of the Rule, the Acting Attorney General and the Secretary cited 8 U.S.C. § 1158(b)(2)(C), which authorizes the Attorney General to “by regulation establish additional limitations and conditions, consistent with [the remainder of Section 1158], under which an alien shall be ineligible for asylum.” The Acting Attorney General and the Secretary also relied on 8 U.S.C. § 1158(d)(5)(B), which provides that the Attorney General may “provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter.” None of the other “limitations and conditions” on asylum that are present in Section 1158 relate to manner of entry, and a bar to asylum based on manner of entry is contrary to the plain language of Section 1158.
69. The Acting Attorney General and the Secretary acknowledged that in the previous year 1,889 migrants from the Northern Triangle (i.e., Guatemala, Honduras, and El Salvador), representing nearly 25% of those whose asylum applications were adjudicated on the merits, had been granted asylum. See Rule, 83 Fed. Reg. at 55,946. They further acknowledged that “[s]ome of those asylum grants would become denials for aliens who became ineligible for asylum” under the Rule. Id. at 55,948.
70. Although the APA requires an agency to allow for a period of public notice and comment (as well as a 30-day waiting period) before implementing a proposed regulation, see 5 U.S.C. §§ 553(b), (c), (d), the Rule became effective upon its publication. In explaining why they failed to follow the ordinary rulemaking process, DOJ and DHS claimed that “good cause” existed to bypass those procedures under 5 U.S.C. § 553(b)(B). DOJ and DHS also invoked the “foreign affairs” exception to the notice and comment requirement set forth in 5 U.S.C. § 553(a)(1).

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 23 of 37
71. Also on November 9, 2018, President Trump issued the Proclamation pursuant to 8 U.S.C. §§ 1182(f) and 1185(a). The Proclamation provides that entry of “any alien” into the United States across the international boundary between the United States and Mexico is “suspended and limited” for a period of 90 days, Proclamation § 1, at which point the President will decide whether to extend the suspension period, id. § 2(d). The suspension of entry applies to aliens who enter the United States after the date of the Proclamation, and does not apply to “any alien who enters the United States at a port of entry and properly presents for inspection, or to any lawful permanent resident.” Id. §§ 2(a), (b).
72. In the Proclamation, President Trump openly prejudged asylum claims of intending migrants; he specifically stated that the Proclamation was meant to bar access to asylum for Central Americans, who, according to the President’s unsupported say-so, “have no lawful basis for admission into our country.”
73. Taken together, the Rule and Proclamation eliminate asylum for a person who enters the United States along the southern border other than at a port of entry, even if she has a credible fear of persecution if returned to her home country and even if she ultimately crosses other than at a port of entry because “metering” or other delays at a port of entry have exhausted her financial resources or expose her to a continuing threat of crime and violence at the Mexican border.
74. The Administration purported to justify the Rule and Proclamation by citing “an urgent situation at the southern border.” Rule, 83 Fed. Reg. at 55,944. Contrary to assertions contained in the Rule, however, the available data show that migration across the U.S.–Mexico

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 24 of 37 border has, in fact, decreased since 2016.18 In 2017, the number of people apprehended by border officials after crossing irregularly was the lowest it has been in 46 years.19
20
75. According to CBP, when compared to 2016, there were, at the southern border, more than 60,000 fewer apprehensions of undocumented aliens from Mexico in 2017, and more
18 Douglas Massey, Today’s US–Mexico ‘Border Crisis’ in 6 Charts, THE CONVERSATION (Jun. 27, 2018) <https://tinyurl.com/ycn4czpl>; see also Max Bearak, Even Before Trump, More Mexicans Were Leaving the U.S. Than Arriving, WASH. POST, Jan. 27, 2017 <https://tinyurl.com/ybbrr348>. 19 U.S. Border Patrol, U.S. Customs & Border Protection, Southwest Border Sectors: Total Illegal Alien Apprehensions By Fiscal Year (Oct. 1st through Sept. 30th) [hereinafter Total Apprehensions] (Dec. 2017) <https://tinyurl.com/ybg3vkld>. 20 Rebecca Hersher, 3 Charts That Show What’s Actually Happening Along The Southern Border, NPR (June 22, 2018) <https://tinyurl.com/y8o7m7d2> (referencing United States Broder Patrol Data).

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 25 of 37
than 40,000 fewer apprehensions of undocumented aliens from outside Mexico.21 In 2018, the number of people without legal status who have been apprehended attempting to enter the United States from Mexico has been roughly the same as it has been for the last five years.22
76. While President Trump in the Proclamation has taken the position that only a “fraction” of asylum applicants who crossed the U.S. border have valid claims for asylum (“fraction” meaning less than 100%), thousands of refugees from Northern Triangle countries were found to have valid claims for asylum in 2016 alone. In 2016, 2,157 people from El Salvador, 1,505 from Honduras, and 1,949 from Guatemala were found by U.S. asylum officers and immigration judges to be eligible for asylum.23 According to DHS’s own statistics, El Salvador and Guatemala were two of the three most common countries of nationality of people affirmatively granted asylum in the United States in 2016—the third being China—while El Salvador, Guatemala, and Honduras were three of the four most common countries of nationality of persons granted asylum defensively in immigration court, the fourth, again, being China.24
CLASS ACTION ALLEGATIONS 77. Plaintiffs O.A., K.S., G.Z., C.A., and D.S. (collectively the “Proposed Class Representatives”) bring the below Counts 1 and 4–8 challenging the illegal Rule on their own
21 Total Apprehensions, supra n.19. 22Linda Qiu, Fact Check of the Day: Border Crossings Have Been Declining for Years, Despite Claims of a ‘Crisis of Illegal Immigration’, N.Y. TIMES, June 20, 2018 <https://tinyurl.com/y7dhmlt6>; U.S. Customs & Border Protection, SW Border Migration FY 2018 (2018) <https://tinyurl.com/ycorhe4p>. 23 See Nadwa Mossad & Ryan Baugh, Refugee Asylees: 2016, Homeland Security: Office of Immigration Statistics (Jan. 2016) <https://tinyurl.com/y7n4bxqk> (Tables 4 and 5). 24 Id.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 26 of 37
behalf and on behalf of a proposed nationwide class under Federal Rule of Civil Procedure 23(b)(2), comprised of all noncitizen asylum-seekers who have or will have entered the United States through the southern border, without inspection, on or after November 10, 2018, excepting those who are barred from seeking asylum due to a reinstatement order entered under 8 U.S.C. § 1231(a)(5).
78. Plaintiff G.Z. brings the below Count 3 challenging the illegal Rule on his own behalf and on behalf of a subclass comprised of all noncitizen asylum-seekers from a noncontiguous country who are found to be unaccompanied minors by the immigration authorities, who have or will have entered the United States through the southern border, without inspection, on or after November 10, 2018, excepting those who are barred from seeking asylum due to a reinstatement order entered under 8 U.S.C. § 1231(a)(5).
79. The prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied. The proposed class and subclass consist of thousands of persons who have crossed the southern border since November 10, 2018, and have either gone into hiding to avoid detection, presented outside a port of entry and been detained, or presented and been released pending further immigration proceedings, rendering joinder of all class members impracticable. The lawfulness of the Rule presents legal and factual questions that are common to the class and subclass. The Proposed Class Representatives’ claims are typical of the class, given that the Rule implements a categorical bar on asylum eligibility equally applicable to all class and subclass members. The Proposed Class Representatives will fairly and adequately protect the interests of the proposed class and subclass. See Fed. R. Civ. P. 23(a)(1)–(4).
80. The Proposed Class Representatives are willing and able to represent the proposed class and have every incentive to pursue this action to a successful conclusion. The Proposed

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 27 of 37
Class Representatives—like the members of the class and subclass—uniformly face application of the Rule, which will prevent the Proposed Class Representatives and the class members alike from pursuing their asylum claims. The Proposed Class Representatives seek injunctive and declaratory relief that would bar the application of the Rule. If the Proposed Class Representatives succeed in obtaining this relief, it will ameliorate the harm that the Rule is causing to each class member. Accordingly, there is no conflict of interest between the Proposed Class Representatives and the members of the class they seek to represent.
81. The Proposed Class Representatives have retained counsel who are experienced in class action, civil rights, and immigrants’ rights litigation. Plaintiffs’ counsel will fairly and adequately represent the interests of the class.
82. The named Defendants have implemented a Rule that uniformly revokes asylum eligibility for all members of the proposed class and subclass. They have acted on grounds that apply generally to the proposed class and subclass, such that final injunctive or declaratory relief invalidating the Rule would restore the rights of the proposed class and subclass as a whole. See Fed. R. Civ. P. 23(b)(2).
COUNTS CLASS ACTION COUNT ONE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: RULEMAKING CONTRARY TO LAW (8 U.S.C. § 1158) 83. Plaintiffs incorporate by reference paragraphs 1 through 82. 84. The Immigration and Nationality Act, 8 U.S.C. § 1158(a)(1), gives any noncitizen who is physically present in or who arrives in the United States a statutory right to seek asylum, regardless of that individual’s immigration status and manner of entry.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 28 of 37
85. By barring the plaintiffs from obtaining asylum based solely on the manner in which they entered the United States, the Rule violates the INA, which prohibits penalizing refugees for entering the country illegally and other than at a port of entry.
86. Under the Administrative Procedure Act, a court “shall hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” 5 U.S.C. § 706.
87. The Rule is not in accordance with 8 U.S.C. § 1158(a)(1). The Rule is therefore contrary to law under the APA.
88. Plaintiffs have been harmed as a result of Defendants’ violations of the INA and the APA. In particular, Plaintiffs have been denied a meaningful opportunity to seek asylum, exposing them to multiple other harms including the threat of removal to their home countries and the persecution from which they fled. The Rule also deprives Plaintiffs of other benefits to which asylees are entitled. The harm to Plaintiffs is irreparable.
89. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT TWO VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT:
RULEMAKING CONTRARY TO LAW (8 U.S.C. § 1225(b)) 90. Plaintiffs incorporate by reference paragraphs 1 through 89. 91. The Immigration and Nationality Act, including 8 U.S.C. § 1225(b)(1) (expedited removal) and 8 U.S.C. § 1158 (asylum), affords noncitizens an opportunity to apply for asylum, by screening arriving noncitizens to determine whether their asylum claims are potentially viable.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 29 of 37
92. Expedited removal procedures apply to certain noncitizens, including noncitizens who lack proper travel documents and either arrive at a port of entry or are apprehended within 14 days of their arrival and within 100 miles of the U.S. international border. See 69 Fed. Reg. 48,877 (Aug. 11, 2004). Under expedited removal procedures, an inspecting officer may summarily remove certain noncitizens. However, if the noncitizen expresses a fear of returning to her country of origin, the officer is required to refer her to an asylum officer for a “credible fear determination.” See 8 U.S.C. § 1225(b)(1).
93. By statute, an applicant has a “credible fear of persecution” if she can demonstrate “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 under section 1158 of this title.” Id. § 1225(b)(1)(B)(v).
94. Under this Congressional design, a noncitizen in expedited removal proceedings— including a noncitizen who enters without inspection—should not fail a credible fear interview unless there is no significant possibility that that individual would ultimately prevail in her asylum claim. See 8 C.F.R. § 208.30(e)(5) (citing to 8 C.F.R. § 208.13(c)(3)). A credible fear interview is not an on-the-merits adjudication of the claim. To the contrary, the credible fear standard of review is intended to be sufficiently low to ensure all bona fide asylum seekers receive a full hearing on their claims.
95. The Rule mandates a negative credible fear finding for anyone who enters without inspection, even in cases where there is a significant possibility that the noncitizen is eligible for asylum. This requirement violates the plain meaning of Section 1225.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 30 of 37
96. Immigration judges are mandated to follow the same rules as those that are applicable to asylum officers in denying a credible fear finding for asylum seekers who are subject to the Rule. 8 C.F.R. § 1208.30(e). This also violates the plain text of Section 1225.
97. The Rule forbids a positive credible fear determination even if an asylum officer or an immigration judge determines that there is a “significant possibility” that federal courts will determine that the individual has a right to seek asylum under the statute notwithstanding the regulations, and that the individual otherwise has a significant possibility of winning such a claim. See id. § 208.30(e)(5); id. § 1208.30(e)(5).
98. Under the Administrative Procedure Act, a court “shall hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” 5 U.S.C. § 706.
99. Defendants’ Rule is “not consistent with applicable provisions” of the asylum and expedited removal provisions and thus is “in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii). The Rule is therefore contrary to law under the APA.
100. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
CLASS ACTION COUNT THREE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: RULEMAKING CONTRARY TO THE TRAFFICKING VICTIMS PROTECTION
REAUTHORIZATION ACT OF 2008
101. Plaintiffs incorporate by reference paragraphs 1 through 100. 102. The William Wilberforce Trafficking Victims Protection Act (“TVPRA”) provides specific asylum protections to children. See 8 U.S.C. § 1158 (b)(3)(C).

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 31 of 37
103. Under the TVPRA, unaccompanied children who enter without inspection are generally not subject to expedited removal provisions. See id. § 1232(a)(5)(D)(i). Instead, unaccompanied children are placed into regular removal proceedings before an immigration judge without having to pass a credible fear interview. Id.
104. However, the immigration judge is not the first person to whom an unaccompanied minor presents his or her application for asylum. Instead, the TVPRA provides that “[a]n asylum officer . . . shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child.” Id.
105. Under the TVPRA, if the asylum officer denies the application for asylum, the unaccompanied minor then has an opportunity to proceed before the immigration judge.
106. This sequencing implements an important objective of the statute. By allowing an unaccompanied child the opportunity to present an asylum claim to an asylum officer in the first instance, the TVPRA ensures that when a child recounts for the first time the traumatic and sensitive facts of the persecution underlying a claim for humanitarian protection, he or she may do so in a non-adversarial setting.
107. The Rule is contrary to the system established by the TVPRA. Under the Rule, unaccompanied children subject to the Proclamation are ineligible for asylum, and will be subject to a mandatory negative credible fear finding. Because asylum officers do not have authority to order withholding of removal or protection under the Convention Against Torture, the asylum officer will, under the Rule, have no obvious basis to hear or assess the merits of the unaccompanied minor’s claims of persecution.
108. As a result, the first time an unaccompanied minor like G.Z. will be permitted to present and obtain any review of the traumatic and sensitive details of a claim for asylum is in the

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 32 of 37
adversarial proceeding that occurs before an immigration judge. The Rule thus upends the nonadversarial process mandated by Congress in 8 U.S.C. § 1158 (b)(3)(C).
109. Because Defendants’ actions under the Rule are contrary to the TVPRA, they violate APA Section 706(2)(A) because they are “not in accordance with law” and APA Section 706(2)(C) because they exceed Defendants’ statutory authority.
110. Plaintiff G.Z. is irreparably harmed by losing his statutory right to participate in a non-adversarial process before an asylum officer. Plaintiff G.Z. therefore asks that this Court grant declaratory and injunctive relief to him and all others who are similarly situated.
CLASS ACTION COUNT FOUR VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: RULEMAKING THAT IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION
AND OTHERWISE CONTRARY TO LAW 111. Plaintiffs incorporate by reference paragraphs 1 through 110. 112. The promulgation of the Rule constitutes agency action by the Acting Attorney General and the Secretary that is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law for a number of reasons. Among other things, the Rule is irrational and arbitrary. It is therefore unlawful under 5 U.S.C. § 706(2)(A).
CLASS ACTION COUNT FIVE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: CONTRARY TO 28 U.S.C. § 508 AND THE APPOINTMENTS CLAUSE 113. Plaintiffs incorporate by reference paragraphs 1 through 112. 114. President Trump fired former Attorney General Jefferson B. Sessions III on or about November 7, 2018. Mr. Sessions therefore was no longer the Attorney General at the time the Rule issued and could not have promulgated the Rule.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 33 of 37
115. Defendant Whitaker’s appointment to the position of Acting Attorney General is invalid because it violates the requirements of 28 U.S.C. § 508. Section 508 requires that “in case of a vacancy in the office of Attorney General, or his absence or his disability, the Deputy Attorney General may exercise all the duties of the office.” 28 U.S.C. § 508. If the Deputy Attorney General is also unavailable, then the duties “shall” be assumed by the Associate Attorney General and the Attorney General may also designate the Solicitor General or the Assistant Attorneys General to assume the duties. Id. § 508(b).
116. Because Defendant Whitaker was not the Deputy Attorney General, Associate Attorney General, Solicitor General, or an Assistant Attorney General at the time of his appointment to the position of Acting Attorney General, his appointment is invalid under 28 U.S.C. § 508.
117. Defendant Whitaker’s appointment to the position of Acting Attorney General is also invalid because it violates the Appointments Clause of the United States Constitution, art. II, § 2, cl. 2.
118. The Appointments Clause requires that the President obtain “the Advice and Consent of the Senate” before appointing principal “Officers of the United States.” U.S. Const. art. II, § 2, cl. 2.
119. The Attorney General, as the chief law enforcement officer of the United States, the head of the Department of Justice, and a Cabinet level official who reports only to the President, is a principal officer under the Appointments Clause. See Morrison v. Olson, 487 U.S. 654, 670– 77 (1988). An Acting Attorney General must therefore be appointed by the President and confirmed by the Senate.

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 34 of 37
120. President Trump did not obtain the advice and consent of the Senate before appointing Defendant Whitaker to the position of Acting Attorney General. Defendant Whitaker’s appointment is thus in direct contravention of the Appointments Clause.
121. Because Defendant Whitaker lacked authority to promulgate the Rule due to his illegal appointment, the Rule is unlawful under the APA, 5 U.S.C. § 706(2)(C).
CLASS ACTION COUNT SIX VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT: CONTRARY TO REQUIREMENT THAT ASYLUM LIMITS BE MADE BY
REGULATION 122. Plaintiffs incorporate by reference paragraphs 1 through 121. 123. Even if Defendant Whitaker’s appointment as Acting Attorney General was lawful, the Rule constitutes agency action in excess of the statutory authority conferred upon him. 124. In 8 U.S.C. § 1158(b)(2)(C), Congress provided that “[t]he Attorney General may by Regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum.” 125. The Rule violates the statutory requirement that additional limitations and conditions be established by regulation, because it automatically incorporates, without independent rulemaking process, the content of unspecified Presidential proclamations, so long as the proclamation includes terms that “suspend[] or limit[] the entry of aliens along the southern border with Mexico” and is issued pursuant to subsection 212(f) or 215(a)(1) of the INA on or after November 9, 2018. 126. The Rule is contrary to the statutory requirement that conditions and limitations on the availability of asylum be established by regulation. Instead, the Rule constitutes an abdication

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 35 of 37
of that responsibility by allowing the President, by proclamation and without a rulemaking process, to add or change the conditions and limitations for asylum.
127. The Rule therefore exceeds the Acting Attorney General’s statutory authority under 8 U.S.C. § 1158(b)(2)(C) and is invalid under the APA.
CLASS ACTION COUNT SEVEN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACTION:
NOTICE AND PUBLIC COMMENT PROVISIONS 128. Plaintiffs incorporate by reference paragraphs 1 through 127. 129. The Rule is illegal because the Administration promulgated the Rule without providing the notice and opportunity for public comment set forth in 5 U.S.C. §§ 553(a)–(d).
CLASS ACTION COUNT EIGHT VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT:
ULTRA VIRES RULEMAKING 130. Plaintiffs incorporate by reference paragraphs 1 through 129. 131. The Rule is illegal and so is ultra vires for the reasons provided in Counts One through Six. See, e.g., Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006); Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1172, 1175 (D.C. Cir. 2003).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in its favor and against Defendants, and to grant the following relief: a. A declaratory judgment (1) that the Rule is arbitrary, capricious, and contrary to law within the meaning of 5 U.S.C. § 706; (2) that Defendant Whitaker’s appointment to the position of Acting Attorney General is unlawful, and the promulgation of the Rule therefore constitutes agency action in excess of the statutory authority conferred upon the office of the

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 36 of 37

Attorney General; (3) in the event that the Court determines Defendant Whitaker’s appointment

was lawful, that the promulgation of the Rule violates the requirement that additional limitations

on the availability of asylum be established by regulation; (4) that the Rule was promulgated in

violation of 5 U.S.C. § 553; and (5) the Rule is ultra vires because it is illegal.

b. Such preliminary injunctive and ancillary relief as may be necessary to avert the

likelihood of irreparable harm to Plaintiffs during the pendency of this action, including, but not

limited to, temporary and preliminary injunctions;

c. A permanent injunction forbidding Defendants from implementing or enforcing the

Rule;

d. An order awarding Plaintiffs’ costs of suit, and reasonable attorneys’ fees and

expenses pursuant to any applicable law; and

e. Such additional and other relief as the Court deems just and proper.

Dated: December 18, 2018

Respectfully submitted,

/s/Thomas G. Hentoff Thomas G. Hentoff (D.C. Bar No. 438394) Ana C. Reyes (D.C. Bar No. 477354) Ellen E. Oberwetter (D.C. Bar No. 480431) Mary Beth Hickcox-Howard (D.C. Bar No. 1001313) Charles L. McCloud* Matthew D. Heins* Vanessa O. Omoroghomwan*† WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, D.C. 20005 Tel: (202) 434-5000 Fax: (202) 434-5029
Hardy Vieux (D.C. Bar No. 474762) HUMAN RIGHTS FIRST 805 15th Street, N.W., Suite 900
* Practicing pursuant to LCvR 83.2(g). † Practice supervised by D.C. Bar members pursuant to D.C. Court of Appeals Rule 49(c)(8).

Case 1:18-cv-02718-RDM Document 40 Filed 12/18/18 Page 37 of 37
Washington, D.C. 20005 Tel: (202) 547-5692 Fax: (202) 553-5999
Eleni Rebecca Bakst* Anwen Hughes* HUMAN RIGHTS FIRST 75 Broad Street, 31st Floor New York, New York 10004 Tel: (212) 845-5200 Fax: (212) 845-5299
Charles George Roth* Keren Hart Zwick* (D.D.C. Bar Number IL0055) Gianna Borroto* Ruben Loyo* NATIONAL IMMIGRANT JUSTICE CENTER 208 S. LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1370 Fax: (312) 660-1505
Attorneys for Plaintiffs

 
 Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 1 of 77

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

O.A., et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. 18-2718 (RDM)

S.M.S.R. et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants.

Civil Action No. 18-2838 (RDM)

MEMORANDUM OPINION 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

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 2 of 77
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
2

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 3 of 77
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 nonadversarial 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 subjectmatter 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
3

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 4 of 77
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. 182838), 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.
4

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 5 of 77
I. BACKGROUND 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
1 The INA defines a “refugee” as “any 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).
5

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 6 of 77
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
6

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 7 of 77
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
2 Although IIRIRA permits the Department of Homeland Security to apply expedited removal procedures more broadly, 8 U.S.C. § 1225(b)(1)(A)(i), (iii), the Department has traditionally limited application of the expedited procedures to (1) arriving aliens; (2) aliens who arrived in the United States by sea within the last two years, who have not been admitted or paroled by immigration authorities; and (3) aliens found in the United States within 100 miles of the border within 14 days of entering the country, who have not been admitted or paroled by immigration authorities. See Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). On July 23, 2019, however, the Department issued a notice in the Federal Register outlining its intent to “exercise the full remaining scope of its statutory authority” to apply expedited removal procedures to all aliens determined inadmissible under 8 U.S.C. § 1182(a)(6)(C) or 8 U.S.C. § 1182(a)(7). See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (Jul. 23, 2019).
7

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 8 of 77
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
3 The standard necessary to establish a “credible fear” is lower than the standard for obtaining asylum itself. The Supreme Court has indicated that ultimately to prevail on an asylum claim, applicants must establish that there is roughly a 10% chance that they will be persecuted on account of a protected ground if they are returned to their country of origin. See CardozaFonseca, 480 U.S. at 431–32. To prevail at the initial credible fear interview, however, applicants need only show “a significant possibility” that they could establish eligibility for asylum. 8 U.S.C. § 1225(b)(1)(B)(v). 4 An alien can pursue withholding of removal either under the INA, 8 U.S.C. § 1231(b)(3), or under regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 1208.16(c). 83 Fed. Reg. at 55,936. Protection from removal under CAT requires that the alien “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
8

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 9 of 77
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]
9

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 10 of 77
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).
10

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 11 of 77
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,
11

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 12 of 77
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 expeditedremoval 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
12

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 13 of 77
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.
5 The Proclamation was issued after the Interim Final Rule and is therefore not a part of the Administrative Record. See Dkt. 64. The Court takes judicial notice of the Proclamation as a document or fact “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
13

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 14 of 77
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.
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
14

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 15 of 77
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).
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
15

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 16 of 77
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. 182838), 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.
16

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 17 of 77
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.
17

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 18 of 77
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
6 Defendants do not argue that this Court lacks statutory jurisdiction over the organizational plaintiffs’ claims.
18

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 19 of 77
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
19

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 20 of 77
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] jurisdictionchanneling 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.
20

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 21 of 77
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
21

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 22 of 77
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,
7 Prior to 1996, aliens who entered the country without inspection were deemed deportable and placed into deportation proceedings. In contrast, aliens arriving at the border were deemed excludable and placed into exclusion proceedings. See Judulang v. Holder, 132 S. Ct. 476, 479 (2011). With the passage of IIRIRA in 1996, Congress changed that nomenclature and created
22

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 23 of 77
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
“removal” proceedings for all aliens, regardless of whether they had already entered the country or were apprehended at the border. Id.
23

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 24 of 77
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 bearing on the Court’s statutory jurisdiction.
b. 8 U.S.C. § 1252(b)(9) Defendants rely primarily on § 1252(b)(9), which channels “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien” into “judicial review of [the] final order” of removal. Courts have, at times, described § 1252(b)(9) as “‘vise-like’ in grip[,] . . . swallow[ing] up virtually all claims that are tied to removal proceedings.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007)). But courts have also recognized that § 1252(b)(9) “has built-in limits,” id. at 1032. By its own terms, § 1252(b)(9) applies only to claims that arise from removal proceedings. See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality opinion); Jennings v. Rodriguez, 138 S. Ct. 830, 840–41 (2018) (plurality opinion); id. at 876 (Breyer, J., dissenting). That limitation is determinative here. The Court begins, once again, with the statutory text, see BP Am. Prod. Co., 549 U.S. at 91, which provides in relevant part: (b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1), the following requirements apply: . . . . (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under
24

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 25 of 77
this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under [28 U.S.C. § 2241] or any other habeas provision, by [28 U.S.C. § 1361 (mandamus) or § 1651 (All Writs Act)], or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 8 U.S.C. § 1252(b)(9). The Supreme Court has characterized § 1252(a)(9) “as a ‘zipper clause,’” which “consolidate[s] ‘judicial review’ of immigration proceedings into one action in the court of appeals.” St. Cyr, 533 U.S. at 313 (quoting Reno v. Am.-Arab Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”)). For present purposes, the statutory text presents two significant interpretative questions. The first question focuses on the import of § 1252(b)’s introductory clause. As the Supreme Court observed in St. Cyr, this clause limits the reach of § 1252(b)(9); it applies “only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’” Id. (quoting § 1252(b)(9)). Read literally, that language might dispose of Defendants’ § 1252(b)(9) defense for precisely the same reason that § 1252(a)(5) does not apply: Plaintiffs do not seek review of “an order of removal.” But, as the St. Cyr dissent explains, that reading of the statute proves too much and would, among other things, render § 1252(b)(9) meaningless. Id. at 332 (Scalia, J., dissenting). That is, if § 1252(b)(9) applies only to the review of final orders of removal, what work is done by its channeling of “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien” into review of the “final order” of removal? 8 U.S.C. § 1252(b)(9). The answer to that question is relatively straightforward: If an alien subject to a removal proceeding wants to challenge “any action taken” to “remove” her from the United States, she may do so only by seeking “judicial review of [the] final order” of removal. See St. Cyr, 533 U.S. at 332 (Scalia, J., dissenting). The zipper clause applies “[w]ith respect to review of an
25

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 26 of 77
order of removal,” id. at 313 (majority opinion), because it folds all precedent challenges “arising from” the removal “proceeding” or “action taken . . . to remove [the] alien” into review of the final “order of removal,” 8 U.S.C. § 1252(b)(9). Although offered by the St. Cyr dissent, that reading of the statute is not inconsistent with the majority’s conclusion that actions that are not ever subject to judicial review under § 1252(a)(1) are also not subject to § 1252(b)(9)’s channeling rule, St. Cyr, 533 U.S. at 313; that is, if there is no final order of removal, there is nothing into which to fold the precedent challenges. Understood in this light, § 1292(b)(9) functions to consolidate all challenges arising from a removal proceeding or action taken to remove an alien into “review of [the final] order of removal,” 8 U.S.C. § 1252(b); see also St. Cyr, 533 U.S. at 313 (“Subsection (b)(9) simply provides for the consolidation of issues to brought in petitions for ‘[j]udicial review.’”), much in the way that a party to an administrative adjudication must typically wait for a final decision before challenging any action taken or proceeding brought leading up to the final agency action, see Bennett v. Spear, 520 U.S. 154, 177–78 (1997); Scenic Am. v. U.S. Dep’t of Transp., 836 F.3d 42, 55–56 (D.C. Cir. 2016).
The second question focuses on the meaning of the phrase “arising from any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9). The Supreme Court recently considered the meaning of that phrase in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), and Nielsen v. Preap, 139 S. Ct. 954 (2019). Both Jennings and Preap involved habeas petitions and class actions challenging the government’s authority to detain aliens, either: (1) subject to ongoing removal proceedings, without providing periodic bond hearings (Jennings); or (2) pursuant to mandatory detention rules, without regard to how long after their release from prison on criminal changes they are taken into immigration custody (Preap). In both cases, the Supreme Court held that § 1252(b)(9) did not strip the district courts of
26

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 27 of 77
jurisdiction. See Preap, 139 S. Ct. at 962 (plurality opinion); see generally id. at 976–85 (Breyer, J., dissenting); Jennings, 138 S. Ct. at 839–41 (plurality opinion); id. at 876 (Breyer, J., dissenting).
As Justice Alito explained for the Jennings plurality, “when confronted with capacious phrases like ‘arising from,’” the Court has “eschewed ‘uncritical literalism’ leading to results that ‘no sensible person could have intended.’” 138 S. Ct. at 840 (plurality opinion) (quoting Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943 (2016) (internal quotation marks omitted)). The Supreme Court, notably, took just that approach when interpreting the “very phrase” at issue here as used in a subsequent provision of § 1252. Id. at 840–41 (plurality opinion). That provision, § 1252(g), specifies that § 1252 constitutes the exclusive grant of jurisdiction “to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g) (emphasis added). In AADC, the Supreme Court did not “interpret this language to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General” but, instead, “read the language to refer to just those three specific actions themselves.” Jennings, 138 S. Ct. at 841 (plurality opinion); see id. at 876 (Breyer, J., dissenting).
Having recognized that the phrase “arising from” does not sweep in every action or decision connected in any way with the removal process, neither Jennings nor Preap endeavored to announce a test that would govern in all cases. The Court did, however, hold in both cases that § 1252(b)(9) did not “present a jurisdictional bar” because the respondents in those cases (1) were “not asking for review of an order of removal;” (2) were “not challenging the decision to detain them in the first place or to seek removal;” and (3) were “not even challenging any part of
27

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 28 of 77
the process by which their removability will be determined.” Jennings, 138 S. Ct. at 841 (plurality opinion); see also Preap, 139 S. Ct. at 962 (plurality opinion) (quoting same).
Against the backdrop of St. Cyr, AADC, Preap, and Jennings, the Court concludes that § 1252(b)(9) does not divest this Court of jurisdiction to adjudicate individual plaintiffs’ claims for several reasons:
First, the plain language of § 1252(b)(9) applies only to claims arising from “any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9) (emphasis added). In Jennings, the concurrence concluded (and the plurality assumed) that detention typically “is an ‘action taken . . . to remove’ an alien.” 138 S. Ct. at 855 (Thomas, J., concurring in part and concurring in the judgment) (emphasis omitted); see also id., 138 S. Ct. at 841 n.3 (plurality opinion). The plurality, however, expressed doubt—albeit without deciding the question, which was not before the Court—that the detention of an alien “under 8 U.S.C. § 1225(b)(1)(B)(ii) for consideration of [his or her] asylum application[]” constitutes an “action taken . . . to remove” the alien “from the United States.” 138 S. Ct. at 840 & n.2 (plurality opinion) (emphasis added). The concurrence’s view that the detentions at issue in Jennings were “action[s] taken . . . to remove” aliens, moreover, was premised on the fact that “detention during removal proceedings” is “an ‘aspect of the [removal] process.’” Id. at 854 (Thomas, J., concurring in part and concurring in the judgment).
Here, in contrast, Plaintiffs do not challenge any aspect of the removal process. They do not challenge or seek to set aside an order of removal, a decision to initiate removal proceedings, the rejection of any defensive asylum claim, or a detention order. Rather, they bring a series of facial challenges to a regulation that applies equally to affirmative and defensive applications for
28

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 29 of 77
asylum, seeking to set aside the regulation itself.8 The challenged Rule is not an “action
taken . . . to remove an alien from the United States,” and was not promulgated as part of a
removal “proceeding.” 8 U.S.C. § 1252(b)(9). Just as it was “implausible” in AADC to construe
“the mention of three discrete events along the way the road to deportation” in § 1252(g) as “a
shorthand way of referring to all claims arising from deportation proceedings,” 525 U.S. at 482,
it is implausible to construe § 1252(b)(9)’s mention of an “action taken” or a “proceeding
brought to remove an alien” as shorthand for any agency action that might ultimately facilitate
the removal of a class of aliens. To borrow from AADC, this reading is not implausible “because
Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with
the need for precision in legislative drafting.” Id. at 482.
8 Because Plaintiffs challenge the lawfulness of the Rule—and not any individual asylum application or order of removal—there is no merit to Defendants’ contention, see Dkt. 22 at 30, that Plaintiffs fail to satisfy the final-agency-action requirement of the APA, see 5 U.S.C. § 704. Although the Attorney General and the Secretary of Homeland Security have invited public comment on the Interim Final Rule, there is no doubt that the Rule “mark[s] the ‘consummation of the agenc[ies’] decisionmaking process” and that “legal consequences will flow” from it. Bennett, 520 U.S. at 178. Nor is the Court convinced by Defendants’ late-asserted contention that Plaintiffs’ claims are barred for failure to exhaust under 8 U.S.C. § 1252(d). Dkt. 81 at 5. That provision merely requires an alien to “exhaust[] all administrative remedies” before “[a] court may review a final order of removal.” 8 U.S.C. § 1252(d). Here, however, Plaintiffs have not asked the Court to review a final order of removal. Finally, the Court concludes that Defendants have waived their contention that Plaintiffs have an “adequate other remedy” precluding review under the APA. Dkt. 81 at 6 n.4. That requirement, found at 5 U.S.C. § 704, is not jurisdictional, Trudeau v. FTC, 456 F.3d 178, 183–84 (D.C. Cir. 2006), and Defendants’ effort to raise it in a footnote—included in a supplemental brief that the Court authorized only to address unrelated issues—is insufficient to preserve the argument. See, e.g., CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote is no place to make a substantive legal argument . . . hiding an argument there and then articulating it in only a conclusory fashion results in forfeiture.”); Elec. Privacy Info. Ctr. v. IRS, 261 F. Supp. 3d 1, 13 (D.D.C. 2017) (holding that claims raised only in footnotes of party’s brief were deemed forfeited), aff’d, 910 F.3d 1232 (D.C. Cir. 2018); Davis v. Bud & Papa, Inc., 885 F. Supp. 2d 85, 90 (D.D.C. 2012) (“[I]t is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief.”).
29

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 30 of 77
Second, for similar reasons, this is not a case in which Plaintiffs seek judicial review of a question of law or fact “arising from” an action taken or proceeding brought to remove an alien. 8 U.S.C. § 1252(b)(9). Even assuming that the individual plaintiffs’ removal proceedings, and not the challenged Rule, are the “action[s] taken . . . to remove” them for purposes of § 1252(b)(9), the relevant question is “whether the legal questions in this case arise from such an action,” Jennings, 138 S. Ct. at 841 n.3 (plurality opinion) (emphasis omitted and added). They do not. To the contrary, Plaintiffs ask that the Court consider a series of questions of law “arising from” a rulemaking of general applicability. Among other things, they ask that the Court consider whether the Attorney General and the Secretary of Homeland Security acted lawfully when they (1) promulgated the Rule without providing a timely opportunity for public notice and comment and without publishing the rule thirty days in advance of its effective date, (2) adopted a regulation limiting the eligibility of a class of aliens to seek asylum based on their entry into the United States outside a designated port of entry; and (3) sought to adopt additional “conditions or limitations on the consideration of an application for asylum” by regulation, while ceding to the President the authority to define the scope and timing of those conditions or limitations by proclamation. None of these questions arise “‘from [removal] proceedings’” or from the “‘many . . . decisions or actions that may be part of the [removal] process.’” Jennings, 138 U.S. at 854 (Thomas, J., concurring in part and concurring in the judgment) (quoting AADC, 525 U.S. at 482–83). Rather, they “arise from” the challenged rulemaking.
Defendants’ attempts to sidestep this clear textual limitation are unavailing. In Defendants’ view, § 1252(b)(9) divests the district courts of jurisdiction to adjudicate “all issues arising from removal proceedings or that can be raised in those proceedings.” Dkt. 22 at 27 (emphasis added); see also Dkt. 66 at 31. Because the individual plaintiffs are now in removal
30

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 31 of 77
proceedings and could seek to bring their procedural and substantive challenges to the Rule in those individual proceedings, Defendants contend that they are obligated to do so. But, even aside from the fact that an immigration judge lacks the authority to set aside a regulation promulgated by the Attorney General and the Secretary of Homeland Security, see Jafarzadeh, 270 F. Supp. 3d 296, 310 (D.D.C. 2017), Defendants’ reading cannot be reconciled with the plain language of the statute. The question is not whether an issue could be raised in removal proceedings, but rather whether it “arise[s] from” those proceedings. 8 U.S.C. § 1252(b)(9); see also Jennings, 138 S. Ct. at 841 & n.3 (plurality opinion). Nor is Defendants’ position supported by the cases they cite, which concern claims directly implicating the plaintiffs’ ability to defend themselves in removal proceedings. See J.E.F.M., 837 F.3d at 1029 (challenging deprivation of the right to counsel in removal proceedings); Aguilar, 510 F.3d at 13–14 (same); Vetcher v. Sessions, 316 F. Supp. 3d 70, 75 (D.D.C. 2018) (challenging access to law library to defend against removal). The claims in those cases challenged procedures intrinsic to individual removal proceedings, which “arise from” those proceedings as contemplated by § 1252(b)(9) in a way that a facial challenge to a regulation of general applicability does not.
AADC, Jennings, and Preap all make clear that the phrase “arising from” cannot be divorced from the terms it modifies, thereby transforming a defined restriction on § 1331 jurisdiction into an amorphous limitation on most, if not all, APA review of immigration rules. As the Jennings plurality explained, the phrase “arising from” appears in both § 1252(b)(9) and § 1252(g)—and if courts must “read th[at] language” in § 1252(g) “to refer to just th[e] three specific actions” listed in § 1252(g), courts must read § 1252(b)(9) in a similar manner. 138 S. Ct. at 840–41 (plurality opinion). True, the specific actions listed in § 1252(b)(9)—“any action taken or proceeding brought to remove an alien from the United States”—are more expansive
31

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 32 of 77
than those listed in § 1252(g)—a “decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders against any alien.” But the operative phrase—“arising from”— must mean the same thing in both subsections, see Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (adhering to the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning” (internal quotation omitted)), and cannot be used in either subsection to extend the reach of the channeling rule beyond the actions or proceedings identified.
Third, consideration of other portions of § 1252 confirms that Congress did not intend § 1252(b)(9) to sweep in the sort of APA challenges to a rulemaking that Plaintiffs bring here. Most notably, § 1252(b)(4)(A) specifies that the record in cases governed by §1252(a) and § 1252(b)(9) “shall” consist of “only . . . the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A) (emphasis added). Although that record might have some bearing on an individual plaintiff’s standing to sue in any particular case, it has nothing to do with the challenges Plaintiffs have brought in this case. Instead, the relevant record here consists of the materials the Attorney General and the Secretary of Homeland Security considered in deciding whether to issue the Rule and in considering whether to invoke the APA’s exceptions to the usual notice-and-comment and advanced-publication requirements. Without that record, which § 1252(b)(4)(A) precludes the courts of appeals from considering, it is difficult to fathom how meaningful judicial review of individual plaintiffs’ claims could occur. Similarly, § 1252(b)(4) sets forth the governing standards of review, which treat “administrative findings of fact” as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); treat “a decision that an alien is not eligible for admission” as “conclusive unless manifestly contrary to law,” id. § 1252(b)(4)(C); and accord “conclusive”
32

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 33 of 77
weight to “the Attorney General’s discretionary judgment whether to grant” asylum to an applicant “unless manifestly contrary to the law and an abuse of discretion,” id. § 1252(b)(4)(D). These standards, unique to the removal process, would leave no room for the courts of appeals to evaluate the lawfulness of the Rule under APA standards.
Fourth, the Supreme Court has recognized—in similar circumstances and interpreting a similar statutory provision—that district courts have jurisdiction over “general collateral challenges to [unlawful] practices and policies used by [immigration authorities].” McNary v. Haitian Refugee Ctr., 498 U.S. 479, 492 (1991). In 1986, Congress enacted the Immigration Reform and Control Act (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359, which, among other things, allowed alien farmworkers who had resided in the United States and performed at least ninety days of qualifying agricultural work during a specified period to apply for adjustment of status to “special agricultural workers” (“SAWs”). 8 U.S.C. § 1160(a). IRCA, however, allowed only limited “administrative or judicial review of a determination respecting an application for adjustment of status” and, in particular, provided that “[t]here shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation.” Id. § 1160(e). In McNary, the plaintiffs challenged certain “practices and policies” adopted by the Immigration and Naturalization Service (“INS”)—the predecessor agency to the United States Citizenship and Immigration Service—“in [the] administration of the SAW program.” 498 U.S. at 487. In response to the government’s contention that the district court lacked jurisdiction to consider that challenge, the Supreme Court held that § 1160(e) did not divest the district court of jurisdiction over the plaintiffs’ pattern or practice claims. Id. at 491–95.
McNary premised its holding on two relevant considerations, both of which apply in the present context with equal or greater force. First, and most significantly, the Supreme Court
33

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 34 of 77
focused on the words of the jurisdiction-limiting provision, which applied only to judicial review
“‘of a determination respecting an application’ for SAW status,” and which channeled only
“‘judicial review of such a denial’” into the Hobbs Act procedures for reviewing final exclusion
or deportation orders. Id. at 492 (quoting 8 U.S.C. § 1160(e)(1) and (e)(3)). Like the provision
at issue in McNary, § 1252(b)(9) applies to challenges to specific actions—that is, “any action
taken or proceeding brought to remove an alien from the United States,” 8 U.S.C. § 1252(b)(9)
(emphasis added)—and not to challenges of the type Plaintiffs press here.9 Jafarzadeh, 270 F.
9 The Court of Appeals for the Ninth Circuit observed that, in enacting IIRIRA, “Congress was legislating against the backdrop of recent Supreme Court law,” and that McNary “offered a blueprint for how Congress could draft a jurisdiction-channeling statute that would cover not only individual challenges to agency decisions, but also broader challenges to agency policies and practices.” J.E.F.M., 837 F.3d at 1034. According to the Ninth Circuit, that “blueprint” appeared in the following passage:
[H]ad Congress intended the limited review provisions of [§ 1160(e)] . . . to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congress could, for example, have . . . channel[ed] into the Reform Act’s special review procedures “all causes . . . arising under any of the provisions” of the legalization program. It moreover could have modeled [§ 1160(e)] on 38 U.S.C. § 211(a), which governs review of veterans’ benefit claims, by referring to review “on all questions of law and fact” under the SAW legalization program.
McNary, 498 U.S. at 494. Congress’s use of the phrase “all questions of law and fact” in § 1252(b)(9) led the Ninth Circuit to conclude that Congress must have intended to “include[e] policies-and-practices challenges” in § 1252(b)(9)’s channeling provisions. J.E.F.M., 837 F.3d at 1029. That might be right with respect to certain types of policy and practice claims but, if anything, the “blueprint” that the Supreme Court offered in McNary counsels against the conclusion that § 1252(b)(9) reaches Plaintiffs’ challenge here. To be sure, the model that the McNary Court referenced—38 U.S.C. § 211(a)—used the phrase “any question of law or fact.” 38 U.S.C. § 211 (1982). But what matters is what comes next: Section 211(a) did not identify a particular type of proceeding in which such questions might arise but, rather, applied the anyquestion-of-law-or-fact standard to all “[t]he decisions of the Administrator [of Veterans Affairs] . . . under any law administered by the Veterans’ Affairs Administration providing benefits for veterans.” Id. Had Congress followed that sweeping blueprint here, it would have provided for Hobbs Act review of “all questions of law and fact” arising from decisions of the Department of Justice or the Department of Homeland Security “under any law administered by” either agency relating to immigration.
34

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 35 of 77
Supp. 3d at 309. Second, the Supreme Court stressed that the statutory scheme at issue in McNary limited review to the “administrative record,” and specified that “‘the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.’” McNary, 498 U.S. at 493 (quoting 8 U.S.C. § 1160(e)(3)(B)). Because that administrative record did not speak to the type of challenge that the McNary plaintiffs brought, and because the “‘abuse-of discretion’ standard” made “no sense” if the judicial review provisions were read to encompass pattern or practice claims, the Court further concluded that “the language of” § 1160(e)(3)(B) added “substantial credence to the conclusion that [IRCA’s] review provision [did] not apply to challenges to the INS’[s] practices and procedures in administering the SAW program.” Id. at 493–94. For the reasons explained above, the same conclusion applies here. In short, “as in McNary, [P]laintiffs raise claims that are outside the scope of the administrative process.” Jafarzadeh, 270 F. Supp. 3d at 309.
The D.C. Circuit’s “cases interpreting McNary hew to [the] distinction between collateral and particularized claims” and hold that similar jurisdiction-limiting provisions “only bar claimants from circumventing statutory provisions that give appellate courts jurisdiction to hear their . . . challenges.” Gen. Elec. Co., 610 F.3d at 126–27. That distinction also coheres with other Supreme Court precedent holding that “[p]rovisions for agency review do not restrict judicial review unless the ‘statutory scheme’ displays a ‘fairly discernible’ intent to limit jurisdiction, and the claims at issue ‘are of the type Congress intended to be reviewed within th[e] statutory structure.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489 (2010) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212 (1994)).
35

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 36 of 77
Under that line of authority, courts must “presume that Congress does not intend to limit jurisdiction if ‘a finding of preclusion could foreclose all meaningful judicial review’; if the suit is ‘wholly collateral to a statute’s review provisions’; and if the claims are ‘outside the agency’s expertise.’” Id. at 489–90 (quoting Thunder Basin Coal Co., 510 U.S. at 212–13 (emphasis added)); see also Am. Fed’n of Gov’t Emps., AFL-CIO, 2019 WL 3122446, at *3.
Adopting Defendants’ position here “could” deprive some or all of the individual plaintiffs of “meaningful judicial review.” Thunder Basin Coal Co., 510 U.S. at 212–13. Consider just one example. Those who seek asylum often also seek withholding of removal, which holds applicants to a higher standard of proof and affords fewer benefits if granted—most notably, it does not provide a path to lawful permanent resident status or citizenship. See 83 Fed. Reg. at 55,939. As a result, if an individual plaintiff is denied asylum but granted withholding of removal, she will not be subject to a final order of removal and will not, in all likelihood, have the opportunity to obtain judicial review of the asylum denial under § 1252(a).10 See, e.g., Karshe v. Gonzales, 161 F. App’x 726, 2006 WL 64426 at *1 (9th Cir. 2006); Zeng v. INS, 83 F. App’x 264, 2003 WL 22977463 at * 1 (9th Cir. 2003). Requiring an individual plaintiff to forego a claim for withholding of removal—and thus subject themselves to the risk of removal— in order to obtain judicial review of an asylum denial would arguably violate U.S. treaty obligations. See Article 33(1), United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, 176 (1954), reprinted in 19 U.S.T. 6259, 6276, T.I.A.S. No. 6577 (1968); Cardoza–Fonseca, 480 U.S. at 428–29; Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)
10 Although the Court need not decide for present purposes whether any post-McNary Supreme Court precedent is to the contrary, the Court notes the D.C. Circuit has held: “Properly read, . . . McNary’s conclusion that the immigration statute’s jurisdiction-stripping provision presented no bar to a pattern and practice suit did not depend on the unavailability of alternative means of judicial review.” Gen. Elec. Co., 610 F.3d at 126.
36

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 37 of 77
64, 118 (1804) (holding that a statute “ought never to be construed to violate the law of nations if any other possible construction remains”). But, even putting that question of international law aside, it would constitute “an odd procedure for Congress to choose” to provide for judicial review of the Rule, Free Enter. Fund, 561 U.S. at 490, and distinguishes this case from precedents holding that a plaintiff’s inability “to obtain pre-implementation’ review” of a challenged practice does not deprive the plaintiff of all meaningful judicial review, Am. Fed’n of Gov’t Emps., AFL-CIO, 2019 WL 3122446, at *4.
Plaintiffs’ challenges are also “wholly collateral,” Free Enter. Fund, 561 U.S. at 489, to “any action taken or proceeding brought to remove an alien from the United States,” 8 U.S.C. § 1252(b)(9). As explained above, the action challenged is the Attorney General and Secretary of Homeland Security’s promulgation of the Interim Final Rule; Plaintiffs do not seek to overturn any asylum decision and do not challenge anything occurring in any removal proceeding. “[N]either the immigration judge nor the Board of Immigration Appeals can review” whether the Attorney General and Secretary of Homeland Security complied with the substantive and procedural requirements of the APA when they promulgated the Interim Final Rule. Jafarzadeh, 270 F. Supp. 3d at 310.
Finally, for similar reasons, Plaintiffs’ challenges “are also outside the . . . competence and expertise” of asylum officers, immigration judges, and the BIA. Free Enter. Fund, 561 U.S. at 478. Nothing within the expertise of these decisionmakers will have any bearing on the claims Plaintiffs assert. To the contrary, because Plaintiffs challenge the Rule—and not its implementation—the relevant facts, expert judgments, and theory of statutory interpretation that the Court must review reside in the Administrative Record and in the Rule itself. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Citizens to Preserve Overton Park, Inc., v. Volpe, 401
37

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 38 of 77
U.S. 402, 419–20 (1971); Comm. for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990). It is, in other words, “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.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014). Nor is there any reason to believe, in the circumstances of this case, that an immigration judge or the BIA would have any relevant expertise to bring to bear on the administrative law questions the case poses or that they would be better situated than the Court to determine whether phrases like “may apply” and “is eligible” mean the same thing. This is not a case that requires detailed knowledge of a complex regulatory scheme. In short, nothing an asylum officer, an immigration judge, or the BIA might offer “could ‘obviate the need to address’ . . . [Plaintiffs’] statutory claims,” could “moot” one or more of those claims, or is likely meaningfully to inform the judiciary’s consideration of Plaintiffs’ facial challenge to the Interim Final Rule. Am. Fed’n of Gov’t Emps., AFL-CIO, No. 18-5289, 2019 WL 3122446, at *8 (quoting Jarkesy v. SEC, 803 F.3d 9, 29 (D.C. Cir. 2015)).
For all of these reasons, the Court concludes that it has federal question jurisdiction over the individual plaintiffs’ claims under 28 U.S.C. § 1331, and that nothing in § 1252(a)(5) or § 1252(b)(9) divests this Court of that jurisdiction.
c. 8 U.S.C. § 1252(e)(3) The parties have also devoted considerable attention to whether the Court has jurisdiction over at least some of the individual plaintiffs’ claims, in any event, under 8 U.S.C. § 1252(e)(3). That provision confers original jurisdiction on the United States District Court for the District of Columbia to review “determinations” made in the implementation of the expedited removal provisions of the INA, including jurisdiction to decide “whether . . . any regulation issued to implement [the expedited removal provision] is . . . in violation of law.” 8 U.S.C.
38

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 39 of 77
§ 1252(e)(3)(A). Any such challenge must be brought “no later than 60 days after the date the challenged . . . regulation is first implemented,” id. § 1252(e)(3)(b), and the court may not “certify a class under Rule 23,” id. § 1252(e)(1)(B). Section 1252(e)(3) is potentially relevant here because the Rule amends both the general regulation applicable to asylum eligibility and the regulation specifically applicable in expedited removal proceedings. See 83 Fed. Reg. at 55,952 (amending both 8 C.F.R. § 208.13 and 8 C.F.R. § 208.30).
According to Defendants, § 1252(e)(3) does not provide this Court with jurisdiction because none of the individual plaintiffs are currently in expedited removal proceedings. Dkt. 81 at 2–3. That contention, however, disregards the maxim that, at least for cases originally filed in federal court, subject matter jurisdiction “depends upon the state of things at the time the action is brought,” Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824); see also Grupo Dataflux v. Atlas Glob. Grp. L.P., 541 U.S. 567, 570–71 (2004) (“[T]ime-of-filing rule is hornbook law (quite literally) taught to first-year law students in any basic course on federal civil procedure.”), or, if a complaint is amended in a manner that affects the jurisdictional allegations, subject matter jurisdiction is determined at the time the amended complaint is filed, see Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473 (2007) (noting, for example, that “withdrawal of [relevant] allegations” may divest the court of jurisdiction, “unless they are replaced by others that establish jurisdiction”). Where multiple plaintiffs assert claims seeking precisely the same declaratory or injunctive relief, moreover, and where the court has subject matter jurisdiction to consider the claims of at least one of those plaintiffs, the court need not address its jurisdiction to consider the claims of the remaining plaintiffs. See, e.g., Clinton v. City of New York, 524 U.S. 417, 434–35 (1998) (Article III jurisdiction); Bowsher v. Synar, 478 U.S. 714, 721 (1986) (same); Sec’y of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) (same). As a result,
39

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 40 of 77
Plaintiffs need only demonstrate that the Court has jurisdiction under § 1252(e)(3) over the claims of at least one of the individual plaintiffs.
Although the parties dispute whether a number of the individual plaintiffs (D.R., P.R., G.R., L.C.V.R., C.S.C.C., R.G.G., N.A.G.A., K.P.P.V., R.D.P.V., and Y.A.L.P.) remained in expedited removal proceedings on December 18, 2018—the day the O.A. and S.M.S.R. Plaintiffs filed their amended complaints—Defendants concede that at least one plaintiff, A.V., was in expedited removal proceedings until at least May 24, 2019.11 See Dkt. 90 at 11 (Defs’ SUMF ¶ 46) (“After entering the United States on November 11, 2018, Plaintiff A.V. was issued a Notice and Order of Expedited Removal under 8 U.S.C. § 1225(b)(1) on November 12, 2018.”); Dkt. 22 at 29; Dkt. 66 at 19. Indeed, as of May 29, 2019—the day the Court held oral argument—“the government had not notified either A.V. or [her counsel] that she had been issued a Notice to Appear and placed into ordinary removal proceedings.” Dkt. 80-1 at 4 (Walsh Decl. ¶ 15). Thus, on the day A.V. filed suit and on the day she filed her amended complaint, she was in expedited removal proceedings under § 1225.
Defendants do not take issue with the rule that statutory jurisdiction is, in the usual course, decided based on the facts as they existed at the time the complaint or amended complaint was filed. That rule, moreover, is entirely sensible. It would hardly promote “the just, speedy, and inexpensive determination of every action and proceeding,” Fed. R. Civ. P. 1, for
11 The parties disagree, for example, about when, as a factual matter, the Department of Homeland Security made final credible fear determinations as to plaintiffs D.R. and P.R., compare Dkt. 81 at 2 n.1, with Dkt. 85 at 1–2; and whether, as a legal matter, aliens remain in expedited removal proceedings until they receive a credible fear interview, until they receive a Notice to Appear without a time and date, until they receive a Notice to Appear with a time and date, or until their Notice to Appear is filed with the immigration court, compare Dkt. 85 at 2; Dkt. 80 at 7–8, with Dkt. 81 at 4. The Court notes, however, that the Department’s own regulations specify that full removal proceedings are not commenced until the Notice to Appear is filed with the immigration court. See 8 C.F.R. § 1239.1.
40

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 41 of 77
example, for one court—properly vested with statutory jurisdiction—to spend weeks, months, or years adjudicating a case, only to yield jurisdiction to an entirely different court based on intervening events, and for the second court to need to start from square one. Departing from the established rule would also invite forum shopping and other mischief, at least to the extent that one or more of the parties to the litigation is able to affect the court’s statutory jurisdiction based on their post-complaint actions. The usual rule, moreover, dates back to the early days of the republic, see Mollan, 22 U.S. (9 Wheat.) at 539, and Congress has legislated against this settled principle since then, Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”).
Defendants argue that A.V.’s claims do not implicate that usual rule because she is no longer in expedited removal proceedings and, thus, will never receive a “‘determination’ under section 1225(b).” Dkt. 81 at 10. That fact, in Defendants’ view, does more than alter the initial jurisdictional terrain—it means that A.V. will never be subject to a “determination” under the expedited removal provision, and it means that the Court cannot afford her any relief with respect to a “determination” ordering her expedited removal. Id. (quoting 8 U.S.C. § 1252(e)(3)). In other words, according to Defendants, the government’s decision to move A.V. from expedited to full removal proceedings has “mooted” her right to invoke this Court’s jurisdiction under § 1252(e)(3). That contention is flawed in a number of respects.
First, Defendants’ argument misunderstands the mootness doctrine. It is a claim, and not jurisdiction, that can become moot based on changed circumstances, and, here, A.V.’s claim is premised on the APA, not on § 1252(e)(3). To the extent Defendants implicitly disagree, they fail to identify any feature of § 1252(e)(3) suggesting that it provides a cause of action, much less
41

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 42 of 77
an exclusive cause of action for claims brought challenging implementation of the expedited removal statute.
Second, to the extent Defendants contend that § 1252(e)(3) vests this Court with jurisdiction only after the Department of Homeland Security makes a “determination” respecting expedited removal and that, because A.V. is no longer in expedited removal proceedings, this predicate will never be satisfied, they misread the statute. The language of § 1252(e)(3) is plain: it applies to both “judicial review of determinations” made under the expedited removal provision and to judicial review of the “implementation” of that provision.12 Any suggestion that review is nonetheless unavailable unless and until the Department makes a final determination of expedited removal is both unsupported by the text and at odds with the fact that a challenge must be brought within sixty days of the “first implement[ation]” of a challenged regulation, see Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000). Under Defendants’ reading of § 1252(e)(3), the sixty-day deadline would mean that an alien’s ability to press her claim concerning the implementation of the expedited removal scheme is based wholly on happenstance: If the government happens to make a final determination as to her expedited removal within the sixty-day window, she can bring a claim challenging the system. If the government does not enter such a determination within sixty days, that same alien is out of luck. The Court doubts that Congress intended such an arbitrary result.
12 Section 1252(e)(3) refers to “[j]udicial review of determinations under [§ 1225(b)] and its implementation.” 8 U.S.C. § 1252(e)(3). One might argue that “its implementation” refers to implementation of the removal order, and not to implementation of § 1225(b). That, however, is not the best reading of the provision. Among other things, the reference to “implementation” is in the singular, as is the reference to “section 1225(b),” while the reference to “determinations” is in the plural.
42

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 43 of 77
Third, Defendants’ argument proves too much. At oral argument, counsel conceded that, under Defendants’ reading of the statute, this Court would lose jurisdiction under § 1252(e)(3) if the government moves the plaintiff from expedited to full removal proceedings—up to the moment the Court enters final judgment. Dkt. 79 at 58–59 (May 29, 2019 Hrg. Tr.). That reading of the statute would attribute to Congress an intent to empower the government to avoid an unfavorable decision at any time, so long as the government acts before the Court enters final judgment. Considered against the backdrop of the usual rule, which fixes statutory jurisdiction at the time the complaint is filed, that contention is a step too far. There is no reason to believe that Congress intended to cede to the government the unique capacity to shift fora at its whim.
Notwithstanding these problems with Defendants’ argument, the Court is unpersuaded that § 1252(e)(3) applies here, for essentially the same reasons that it is unpersuaded that § 1252(a)(5) and § 1252(b)(9) apply. Most importantly, § 1252(e)(3) is about challenges to expedited removal orders and the implementation of the expedited removal provisions that Congress enacted in IIRIRA. This case, in contrast, presents neither a challenge to a removal order nor a challenge to the statutory or regulatory system for expedited removal. Rather, as explained in greater detail above, Plaintiffs assert a facial challenge to a rule governing eligibility for asylum, whether sought in a defensive or affirmative application. That is why § 1252—as a whole—does not apply to Plaintiffs’ challenges, and it is why the Court has statutory jurisdiction. But, even if Defendants were correct that § 1252 had some bearing on this case, the bottom line would be the same. That is because § 1252(e)(3) sweeps, if anything, more broadly than § 1252(a)(5) and § 1252(b)(9)—it does not apply merely to removal proceedings and actions taken to remove an alien, but to the implementation of the expedited removal provisions of IIRIRA—and the government’s post-complaint decision to move A.V. from expedited to full
43

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 44 of 77
removal proceedings would not divest the Court of whatever jurisdiction it had at the time the complaints were filed.
* * * The Court, accordingly, concludes that it has statutory jurisdiction under 28 U.S.C. § 1331 to consider the Plaintiffs’ claims, because § 1252 does not divest the Court of jurisdiction over the individual plaintiffs’ claims and because Defendants raise no statutory, jurisdictional defense to the organizational plaintiffs’ claims. 2. Article III Standing and Zone of Interests Standing Defendants next argue that the organizational plaintiffs lack Article III and prudential (or “zone of interests”) standing and that the individual plaintiffs lack Article III standing.13 “Because Article III limits federal judicial jurisdiction to cases and controversies, see U.S. Const. art. III, § 2, federal courts are without authority” to decide disputes unless the plaintiff has standing—that is, “‘a personal stake in the outcome of the controversy [sufficient] to warrant his invocation of federal-court jurisdiction.’” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). This fundamental limitation “is founded in concern about the proper—and properly limited— role of the courts in a democratic society.” Summers, 555 U.S. at 492–93 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To demonstrate Article III standing, a plaintiff must demonstrate a “concrete and particularized” injury that is “fairly traceable” to the defendant’s conduct and “that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
13 Even though “zone of interests” standing is not jurisdictional, see Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126, 128 n.4 (2014), the Court addresses it here as a threshold issue.
44

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 45 of 77
(1992)). “At least one plaintiff must have standing to seek each form of relief requested,” Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017), and that party “bears the burden of establishing” the elements of standing “with the manner and degree of evidence required at the successive stages of the litigation,” Lujan, 504 U.S. at 561.
a. Organizational Plaintiffs The Court begins with the organizational plaintiffs. An organization “can assert standing on its own behalf, on behalf of its members or both.” Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, the organizational plaintiffs rely on the first approach, “which requires [them], like an individual plaintiff, to show ‘actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.’” Id. (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). For support, Plaintiffs rely on Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). In that case, a fair housing organization claimed that the defendant’s discriminatory housing practices “frustrated” the organization’s ability to “provide counseling and referral services for low- and moderate-income homeseekers,” forcing it “to devote significant resources to identify and counteract” the alleged discriminatory practices. Id. The Supreme Court held that “there [could] be no question that the organization . . . suffered injury in fact” because it established a “concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—[that] constitute[d] far more than simply a setback to the organization’s abstract social interests.” Id. The D.C. Circuit “has applied Havens Realty to justify organizational standing in a wide range of circumstances.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (collecting cases); see also 13A Charles Alan Wright et al., Federal Practice & Procedure § 3531.9.5 (3d ed. Sept. 2018) (same). That said, Havens is
45

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 46 of 77
not without limits: A plaintiff must show more than a mere “setback to the organization’s abstract social interests,” Havens, 455 U.S. at 379, a “self-inflicted budgetary choice,’” Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (“ASPCA”), or an effect on the “organization[’s] lobbying activities,” Ams. for Safe Access v. DEA, 706 F.3d 438, 457 (D.C. Cir. 2013). An organization seeking to establish Havens standing must clear two hurdles. First, it “must show a ‘direct conflict between the defendant’s conduct and the organization’s mission.’” ASPCA, 659 F.3d at 25 (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). If it can do so, the Court must then “ask whether the plaintiff used its resources to counteract that injury.” Id. “[A]n organization may not,” however, “‘manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.’” Id. (quoting Spann, 899 F.2d at 27).
Plaintiffs have met this burden. Both CAIR Coalition and RAICES have identified various ways that the Rule would frustrate their missions of providing direct legal services to asylum seekers. Dkt. 39 at 46–56 (S.M.S.R. Amend. Compl. ¶¶ 213–255). The declaration of CAIR Coalition’s litigation director, for example, describes the organization’s mission in detail and explains how the Rule will interfere with that mission and will, if allowed to take effect, impose substantial, tangible costs on the organization. See Dkt. 6-5 at 2–11 (Cubas Decl. ¶¶ 3– 39), S.M.S.R. et al. v. Trump et al. (No. 18-2838). In particular, according to the declaration, the Rule will either dramatically reduce the number of clients that CAIR Coalition can serve or will require it to “raise more funds to serve the same number of clients.” Id. at 5 (Cubas Decl. ¶ 14). To take just one example, if CAIR Coalition’s clients are ineligible for asylum, the organization will need to assist them in seeking withholding of removal, which requires that applicants meet a substantially more demanding test (“reasonable fear” as compared to “credible fear”), and will,
46

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 47 of 77
as a result, require “double th[e] time [to] prepar[e]” them for interviews. Id. at 7 (Cubas Decl. ¶ 22). More cases, moreover, will “move directly to trial at immigration court,” which will further tax CAIR Coalition’s resources. Id. at 10 (Cubas Decl. ¶¶ 33–34). And at the same time that the Rule will impose these additional demands on the organization, it will diminish a portion of CAIR Coalition’s funding, which “is tied [in part] to the number of adult clients that the organization serves each year.” Id. at 11 (Cubas Decl. ¶ 38).
Similarly, RAICES attests that the Rule will frustrate its mission and will impose substantial, tangible burdens on the organization. Dkt. 39 at 52 (S.M.S.R. Amend. Compl. ¶ 238). The declaration of RAICES’s chief legal programs officer describes the mission of the organization and explains how the Rule will undermine that mission and will impose additional costs on the organization. See Dkt. 6-6 at 2–11 (Garza Pareja Decl. ¶¶ 3–36), S.M.S.R. et al. v. Trump et al. (No. 18-2838). According to the declaration, the Rule will require RAICES “to divert scarce resources—including staff time—to: (1) creating new intake procedures for detained families; (2) preparing [affected] asylum seekers for more onerous reasonable fear interviews; (3) preparing children of [affected] asylum seekers for reasonable fear interviews . . . ; (4) appealing more negative determinations to immigration court and beyond; (5) preparing unaccompanied minors to testify and be cross-examined in immigration court, rather than at the non-adversarial Asylum Office; (6) assisting families to prepare multiple applications for relief, instead of one application with derivative family members; (7) creating new resources and policies to implement these changes; (8) training staff on these new policies; and (9) retraining staff from certain programs to move into new roles to implement these policies.” Id. at 9–10 (Garza Pareja Decl. ¶ 32). The organization, as a result, will “be unable to represent the same number of clients that it does currently,” will need to “spend more resources on each
47

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 48 of 77
individual case,” and will be “force[d] . . . to divert scarce resources away from other important programs.” Id. at 3 (Garza Pareja Decl. ¶ 6).
These uncontested declarations demonstrate that the Rule directly conflicts with the missions of the organizational plaintiffs and that it will require them to use substantial “resources to counteract that injury.” ASPCA, 659 F.3d at 25. No more is required to establish standing under Havens. Defendants disagree, arguing that “nothing in the [R]ule prevents CAIR [Coalition] or RAICES from continuing to represent asylum-seeking clients.” Dkt. 31 at 32. That is correct, but immaterial. Courts have never required an organization to prove that is it entirely hamstrung by challenged actions; a direct conflict is one in which a defendant’s actions cause a “perceptibl[e] impair[ment]” of the organization’s mission that makes its “overall task more difficult.” Nat’l Treasury Emps. Union, 101 F.3d at 1429 (quoting Fair Emp’t Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)). CAIR Coalition and RAICES have made such a showing here.
Defendants also argue that the organizational plaintiffs fail the zone of interests test. Dkt. 31 at 33–34. The Court, once again, disagrees. Zone of interests standing is not a jurisdictional doctrine but, rather, requires that the “plaintiff’s complaint falls within the zone of interests protected by the law invoked.” Lexmark Int’l, 572 U.S. at 126. The zone of interests test is, in other words, a “tool for determining who may invoke the cause of action” created in the statute at issue. Id. at 130. “[I]n keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable,’” the test, at least in the APA context, “‘is not meant to be especially demanding.’” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quoting Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399–400 (1987)). “The interest [the plaintiff] asserts must be ‘arguably within the zone of
48

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 49 of 77
interests to be protected or regulated by the [underlying] statute’ that [the plaintiff] says was violated.” Id. at 224 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Courts “do not require any ‘indication of congressional purpose to benefit the would-be plaintiff,’” and the Supreme Court has “always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.” Id. (quoting Clarke, 479 U.S. at 399–400). “The test forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399).
The organizational plaintiffs easily meet this permissive test. To start, the organizational plaintiffs’ interest in providing legal assistance to as many asylum seekers as they can is consistent with the INA’s purpose to “establish[ ] . . . [the] statutory procedure for granting asylum to refugees.” Cardoza-Fonseca, 480 U.S. at 427. Even more to the point, the organizational plaintiffs’ interest in representing asylum seekers furthers the purposes of the INA. As the Ninth Circuit observed in East Bay II, the INA includes provisions designed “to ensure that pro bono legal services of the type that the [organizational plaintiffs] provide are available to asylum seekers.” East Bay II, 909 F.3d at 1245. Most notably, Congress required that, “[a]t the time of filing an application for asylum, the Attorney General shall . . . advise the alien of the privilege of being represented by counsel and of the consequences . . . of knowingly filing a frivolous application for asylum” and shall “provide the alien a list of persons (updated not less often than quarterly) who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.” 8 U.S.C. § 1158(d)(4). In expedited removal proceedings involving aliens convicted of certain crimes, moreover, Congress directed that the Attorney
49

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 50 of 77
General take steps “to ensure that the alien’s access to counsel and right to counsel . . . are not impaired” due to the alien’s place of detention, 8 U.S.C. § 1228(a)(2), and to provide that “the alien shall have the privilege of being represented (at no expense to the government) by counsel” in removal proceedings, 8 U.S.C. § 1228(b)(4)(B). In addition, the INA guarantees that aliens in “removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings . . . shall have the privilege of being represented (at no expense to the [g]overnment) by . . . counsel[] authorized to practice in such proceedings.” 8 U.S.C. § 1362; see also id. § 1101(i)(1) (requiring that potential T visa applicants be referred to nongovernmental organizations for legal advice); id. § 1184(p)(3)(A) (same for U visas).
The Court, accordingly, concludes that the interests that the organizational plaintiffs seek to protect are at least “arguably” within the zone of interests protected by the INA and that, as a result, the organizational plaintiffs’ claims satisfy the zone of interests test.14
b. Individual Plaintiffs There is no doubt that asylum is a valuable form of relief from removal and that it affords the asylee benefits above and beyond avoiding removal, including, most notably, a path to lawful
14 Neither INS v. Legalization Assistance Project of the L.A. Cty. Fed’n of Labor (“LAP”), 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers) nor Fed’n for Am. Immigration Reform, Inc. v. Reno (“FAIR”), 93 F.3d 897, 900–04 (D.C. Cir. 1996), Dkt. 31 at 34, supports a contrary conclusion. Justice O’Connor’s in chambers opinion in LAP reflects the views of a single Justice relating to a different statute, IRCA. FAIR, too, is inapposite. The organization at issue in that case was “dedicated to ensuring that levels of legal immigration are consistent with the absorptive capacity of the local areas where immigrants are likely to settle,” and it brought suit challenging the INA’s scheme for “parole and adjustment of status of Cuban nationals” into the United States. FAIR, 93 F.3d at 899 (internal quotation omitted). The D.C. Circuit held that the organization’s mission bore no more than a “marginal[] rela[tionship]” to the statutory purposes of the INA, because it pointed to no language of congressional intent that “even hint[ed] at a concern about regional impact” of immigration. Id. at 900–01.
50

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 51 of 77
permanent resident status and citizenship. Nor is there any doubt that the Rule, by definition, applies to each of the individual plaintiffs and that it, by definition, would render each of the plaintiffs categorically ineligible for asylum. See Lujan, 504 U.S. at 561–62 (holding that “there is ordinarily little question” that a plaintiff has standing if she herself is “an object of the action . . . at issue”). And while it is not the Court’s role to adjudicate the individual plaintiffs’ claims to asylum—and the Court will not do so—each has submitted a declaration setting forth facts sufficient to state a plausible claim to asylum. See, e.g., Dkt. 51-2 (O.A. Decl.); Dkt. 51-4 (A.V. Decl.); Dkt. 51-6 (G.Z. Decl.); Dkt. 51-8 (D.S. Decl.); Dkt. 51-10 (D.R. Decl.); Dkt. 51-11 (P.R. Decl.); Dkt. 51-12 (G.R. Decl.); Dkt. 6-3 (S.M.S.R. Decl.), S.M.S.R. et al. v. Trump et al. (No. 18-2838); Dkt. 6-4 (R.S.P.S. Decl.), S.M.S.R. et al. v. Trump et al. (No. 18-2838); Dkt. 52-3 (L.C.V.R. Decl.); Dkt. 52-4 (R.G.G. Decl.); Dkt. 52-5 (A.J.A.C. Decl.); Dkt. 52-6 (K.P.P.V. Decl.); Dkt. 52-7 (Y.A.L.P. Decl.). That is enough to establish an injury in fact that is fairly traceable to the challenged Rule and that would be redressed by the invalidation of the Rule. See Lujan, 504 U.S. at 560–61.
Defendants disagree, arguing that because of the East Bay preliminary injunction, “the challenged rule has not been applied to” any of the individual plaintiffs and that, at least as long as the preliminary injunction remains in place, the individual plaintiffs “cannot show any possibility of imminent injury.” Dkt. 66 at 25. Although the government’s appeal of the preliminary injunction is pending, Defendants contend that the “hypothetical future vacation of the [East Bay] injunction is inadequate” to establish the possibility of imminent injury. Dkt. 76 at 16. That is incorrect. As the Supreme Court has held, preliminary injunctive relief does not defeat Article III standing; the relief is by definition temporary, leaving the threat of future injury
51

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 52 of 77
in place. See Preap, 139 S. Ct. at 963 (plurality opinion) (“Unless that preliminary injunction was made permanent and was not disturbed on appeal, [plaintiffs] faced the threat of [injury].”).
That threat of future injury, moreover, is apparent here: the President himself has confirmed by proclamation that “[t]he United States is appealing th[e] [preliminary] injunction,” and, “[s]hould the injunction be lifted, aliens who enter the United States unlawfully through the southern border in contravention of this proclamation will be ineligible to be granted asylum under th[e] interim final rule.” 84 Fed. Reg. at 3,665; 84 Fed. Reg. at 21,230. At oral argument, moreover, the Court asked counsel for Defendants whether the government would revisit the positive credible fear determinations made for some, but not all, of the individual plaintiffs if the Rule is allowed to take effect, and counsel declined to provide the Court or Plaintiffs with any assurances. Dkt. 79 at 59–60 (May 29, 2019 Hrg. Tr.) (“I don’t have a firm answer on that, I’m going to leave the government’s options open.”). Indeed, counsel went a step further and left the government’s options open to revoke the grant of asylum obtained by one of the individual plaintiffs. Id. at 60 (May 29, 2019 Hrg. Tr.) (“Again, same response, your Honor, I have to wait and see.”). More importantly, the Rule itself declares in categorical terms that “an alien shall be ineligible for asylum if the alien is subject to” the Proclamation. 83 Fed. Reg. at 55,952; 8 C.F.R. § 208.13. As a result, if the Rule is allowed to take effect, each of the individual plaintiffs will be “ineligible” for asylum, regardless of whether they have been subject to a credible fear interview, have obtained an initial credible fear determination, or (perhaps) have even been granted asylum. See, e.g., 8 U.S.C. § 1158(c)(2)(A) (“Asylum granted under subsection (b) does not convey a right to remain permanently in the United States and may be terminated if the Attorney General determines that . . . the alien no longer meets the conditions described in subsection (b)(1) owing to a fundamental change in circumstances.”).
52

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 53 of 77
Defendants also press this same point in a different way, arguing that the East Bay injunction “has, in effect, provided Plaintiffs with the full relief they seek from this Court.” Dkt. 66 at 40. But, regardless of whether this issue is best considered as one of standing or mootness, the Court is unconvinced. Although the East Bay court had entered a temporary restraining order at the time the O.A. and S.M.S.R suits were commenced, that court did not enter the existing preliminary injunction until December 19, 2018, see East Bay III, 354 F. Supp. 3d at 1102—after the original and amended complaints were filed in this case. See Dkt. 1 (O.A. Compl.); Complaint, S.M.S.R., No. 18-2838 (D.D.C. Dec. 3, 2018), Dkt. 3; Dkt. 39 (S.M.S.R. Amend. Compl.); Dkt. 40 (O.A. Amend. Compl.). To carry their “heavy” burden of establishing that Plaintiffs’ claims have been mooted by the East Bay preliminary injunction, United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953), Defendants must show that “there is no reasonable expectation . . . that the alleged violation will recur” and that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” ABA v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (internal quotation omitted). Far from doing so, Defendants have appealed the East Bay preliminary injunction and have preserved the “option” to apply the Rule to all of the individual plaintiffs.
Merits That all amounts to a very long backstroke for a relatively short putt. Plaintiffs challenge the Rule on a variety grounds, several of which have considerable force. The Court need only consider the first of Plaintiffs’ challenges, however, because it is sufficient to resolve the case. That challenge boils down to one question: Is the Rule, which renders all aliens who enter the United States across the southern border after November 9, 2018, except at a designated port of entry, ineligible for asylum, consistent with 8 U.S.C. § 1158(a)(1), which provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether
53

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 54 of 77
or not at a designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum”? According to Plaintiffs, the inconsistency between the Rule and statute is self-evident. According to Defendants, the Rule is consistent with the statute because a bar on “eligibility” for asylum (as specified in the Rule) is different than a bar on “applying” asylum (as precluded by the statute). For the reasons explained below, the Court agrees with Plaintiffs and concludes that Defendants’ reading of the statute is untenable.
Neither party explicitly invokes the familiar Chevron framework and, for present purposes, the Court need not decide whether Chevron applies to an interim final rule which lacks the benefit of public comment, see United States v. Mead Corp., 533 U.S. 218, 230–31 (2001) (while notice and comment is “significant . . . in pointing to Chevron authority, the want of that procedure . . . does not decide the case,” as courts “have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded”), or whether Chevron deference was forfeited here, see Neustar, Inc. v. Fed. Commc’ns Comm’n, 857 F.3d 886, 893–94 (D.C. Cir. 2017) (“The [government’s] brief nominally references Chevron’s deferential standard in its standard of review but did not invoke this standard with respect to rulemaking. Consequently, it has forfeited any claims to Chevron deference.”). Rather, “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions,” like that at issue here, “which are contrary to clear congressional intent.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984).
The Court, moreover, need not pause over the fact that presidential actions are not themselves subject to APA review, see Franklin v. Massachusetts, 505 U.S. 788, 801 (1992), because it is the Rule, and not the Proclamation, that has operative effect, see Chamber of Commerce v. Reich, 74 F.3d 1322, 1326 (D.C. Cir. 1996) (finding regulations that implement an
54

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 55 of 77
executive order are reviewable under the APA). The fact that the Rule defines those who are ineligible for asylum by reference “to a presidential proclamation or other presidential order” may raise separate problems with the Rule, see Dkt. 39 at 57–58 (S.M.S.R. Amend. Compl. ¶ 263); Dkt. 40 at 34–35 (O.A. Amend. Compl. ¶¶ 124–127), but it does not insulate the Rule from APA review or even purport to transfer the statutory authority to establish—“by regulation”—additional limitations on asylum from the Attorney General and the Secretary of Homeland Security to the President.
The Court starts, once again, with the statutory text, see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016), and “must enforce plain and unambiguous statutory language according to its terms,” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010). As the Supreme Court “ha[s] stated time and again[,] . . . courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)) (citations omitted). The words of the statute, moreover, must be “placed in context,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000), and must be read “with a view to their place in the overall statutory scheme,” id. at 133 (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)).
The language at issue here was enacted as part of IIRIRA in 1996. Prior to that time, the relevant provision of the INA merely required the Attorney General to establish “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.” 8 U.S.C. § 1158(a) (1980). In its current form, § 1158(a)(1) now provides:
55

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 56 of 77
Any 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 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. 8 U.S.C. § 1158(a)(1) (emphasis added). The other paragraph relevant to the present dispute was also introduced in IIRIRA, and it provides: The Attorney General [and now the Secretary of Homeland Security] may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1). 8 U.S.C. § 1158(b)(2)(C) (emphasis added). All agree that a regulation barring all aliens who enter the United States from Mexico outside a designated port of entry from applying for asylum would be “inconsistent with” § 1158(a)(1) and, thus, ultra vires. But, according to the government, that is not what the Rule does. Instead, it treats those aliens as ineligible for asylum. And, in its view, “the instruction that aliens ‘may apply’ for asylum regardless of whether they entered at a port of entry does not require that an alien must be eligible for or be able to ‘receive’ asylum.” Dkt. 66 at 42 (emphasis added). As a matter of plain language, the government’s distinction is, to say the least, a fine one. The word “ineligible” means “legally or officially unable to be considered for a benefit.” Ineligible, Oxford English Dictionary, https://www.lexico.com/en/definition/ineligible (last visited Aug. 2, 2019). Defendants never explain, nor could they, how that differs from “legally or officially unable to apply for a benefit.” Whether framed as a restriction on who may apply or on who is eligible, the government must consider whether the restriction at issue is applicable; provide the alien with some opportunity to be heard; and render a decision, which is then subject to review by an immigration judge. 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 208.13, 208.14. As a matter of common usage, no one would draw a meaningful distinction, for example,
56

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 57 of 77
between a rule providing that children may not apply for a driver’s license and one providing that children are not eligible to receive a driver’s license. Both locutions mean the same thing.
Moreover, even if one might hypothesize some circumstance in which the phrases “may not apply” and “are ineligible” do not mean the same thing, this is not such a case. Under the government’s theory, § 1158 is divided into two discrete realms. Section 1158(a), which includes the right to apply for asylum “whether or not” the applicant arrived in the United States “at a designated port of arrival,” defines who may—and who may not—“apply” for asylum, while § 1158(b), which includes the Attorney General and Secretary of Homeland Security’s authority to promulgate regulations “consistent with” § 1158, defines who is—and who is not— “eligible” for asylum. But that purported distinction is at odds with the Rule itself, as well as the Department of Homeland Security’s implementing regulations. As the Rule explains, in the context of expedited removal proceedings, an asylum officer must “ask threshold questions to elicit whether an alien is ineligible for a grant of asylum pursuant to [the] proclamation bar,” and if “an alien lacks a significant possibility of eligibility” under the bar, the asylum officer must make a negative credible fear determination. 83 Fed. Reg. at 55,944 (emphasis added). The asylum officer is charged with going on to determine whether the alien is “subject to one or more of the mandatory bars to applying for, or being granted, asylum contained” in § 1158(a) (who may apply) or § 1158(b) (who is eligible) only “if [the] alien” clears the credible fear hurdle. 8 C.F.R. § 208.30(e)(5)(i)–(ii). In other words, under Defendants’ theory, asylum officers must decide whether an alien is “eligible” for asylum before deciding whether he may “apply.” That result is unproblematic if the terms are even roughly synonymous; it makes no sense if the right to apply is viewed as a step precedent to consideration of the alien’s eligibility.
57

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 58 of 77
Other regulatory provisions confirm that the government itself treats the “bars to applying for, or being granted, asylum” as interchangeable. 8 C.F.R. § 208.30(e)(5)(i) (emphasis added). Thus, in addition to § 208.30(e)(5), § 208.13(c), which the Rule also amends, provides that “an applicant shall not qualify for asylum if” § 1158(a)(2) (who may apply) or § 1158(b)(2) (who is eligible) “applies to the applicant.” 8 C.F.R. § 208.13(c)(1). Notably, in the government’s own words, if the applicant fails to “qualify” under either paragraph of § 1158, he shall be “found to be ineligible for asylum.” Id. (emphasis added) (“If the applicant is found to be ineligible for asylum under either” § 1158(a)(2) or § 1158(b)(2)). Against this regulatory backdrop, the distinction Defendants would have the Court draw between limitations on who may apply and who is eligible for asylum not only “strains credulity,” East Bay I, 349 F.3d at 857, but snaps it.
But the Court need not go that far to conclude that the Rule is contrary to law. Even assuming that the phrases “may not apply” and “are ineligible” reflect some subtle distinction in meaning, the relevant question is not whether the Rule uses the exact same words as in the statutory prohibition. The question, instead, is whether the Rule is “consistent with,” 8 U.S.C. § 1158(b)(2)(C), the statutory mandate that any alien present in the United States “may apply for asylum,” regardless of “whether or not” the alien entered the United States “at a designated port of arrival,” 8 U.S.C. § 1158(a)(1). Defendants do not even attempt to satisfy that test, nor could they. As the Ninth Circuit put it, “[t]he technical differences between applying for and eligibility for asylum are of no consequence to a refugee when the bottom line—no possibility of asylum— is the same.” East Bay II, 909 F.3d at 1247–48. Or to continue the analogy started above, a regulation making all sixteen-year-olds “ineligible” to obtain a driver’s license is not, by any logic, consistent with a statute providing that any sixteen-year-old may “apply” for a driver’s license. The statute might not mean that all sixteen-year-olds should receive a license. It might
58

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 59 of 77
not mean that the motor vehicle administration is precluded from considering the age or maturity
of an applicant, along with other factors. But a categorical bar on “eligibility” for all sixteen-
year-olds is not “consistent with” a statutory right to “apply” for a driver’s license at sixteen.
Turning, again, to the dictionary, “consistent” means “compatible or in agreement with.”
Consistent, Oxford English Dictionary, https://www.lexico.com/en/definition/consistent (last
visited Aug. 2, 2019). The Rule’s direction that “an alien shall be ineligible for asylum” if the
alien entered the United States outside a designated port of entry is not “compatible” with the
congressional mandate that all aliens present in the United States may “apply” for asylum, regardless of whether they entered the United States at a designated port of entry.15
None of Defendants’ counterarguments are persuasive. Defendants first invoke the final
clause of § 1158(a)(1), which qualifies an alien’s right to apply for asylum with the condition
that the alien must do so “in accordance with this section or, where applicable, section 1225(b)
of” the INA. Dkt. 76 at 18. In Defendants’ view, this qualification “makes clear that an
individual’s ability to apply for asylum is always subject to the discretion afforded to the
Attorney General and the Secretary of Homeland Security to determine asylum eligibility.” Id.
15 Because the statutory text is plain, the Court need not consider whether Defendants’ interpretation is at odds with the established purpose of § 1158 and the Charming Betsy canon of statutory interpretation, see Schooner Charming Betsy, 6 U.S. (2 Cranch) at 118. Nor is the Court persuaded by Defendants’ effort to reconcile their position with the relevant treaty background. In particular, Defendants contend that Article 31 of the 1951 Convention applies only to penalties imposed on account of illegal entry by a refugee “coming directly from a territory where their life or freedom was threatened.” Dkt. 22 at 37 (quoting Article 31(1), 19 U.S.T. at 6275). In Defendants’ view, that prohibition does not apply here because the individual plaintiffs in this action—who seek asylum from Honduras, El Salvador, Nicaragua, and Guatemala—came to the United States through Mexico. Id. But, even if Defendants were correct that Article 31 is so limited—and that proposition is subject to dispute—the path to the United States followed by the individual plaintiffs in this case says nothing about what that statute means. Rather, the phrase “may apply” must have the same meaning regardless of whether the alien is seeking asylum from Mexico or from Honduras.
59

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 60 of 77
But that construction of the statute turns the relevant allocation of authority on its head. Congress has defined who may apply for asylum, specifying that “[a]ny alien who is physically present in the United States” may do so, regardless of “whether or not” the alien arrived “at a designated port of arrival.” 8 U.S.C. § 1158(a)(1). Congress also granted the Attorney General and the Secretary of Homeland Security authority to promulgate regulations establishing “additional limitations and conditions” on eligibility for asylum, but only to the extent “consistent with” § 1158. Id. § 1158(b)(2)(C) (emphasis added). As a result, if any incongruity exists between the terms of the statute and a regulation, the statutory text prevails—not vice versa.
Next, Defendants dispute that the Rule is “predicated upon the manner of an alien’s entry pe se” and argue, instead, that it turns on “whether an alien has contravened a Presidential proclamation concerning a particular crisis at the southern border at a particular time.” Dkt. 31 at 38. This matters, according to Defendants, because “[a]liens who contravene such a measure have not merely violated the immigration laws, but have also undercut the efficacy of a measure adopted by the President based on his determination of the national interest in matters that could have significant implications for the foreign affairs of the United States.” 83 Fed. Reg. at 55,940. The Court does not doubt that the Proclamation reflects a determination by the President that the influx of aliens entering the United States across the southern border outside the designated ports of entry poses a “particular problem for the national interest.” Dkt. 41 at 93 (Dec. 17, 2018 Hrg. Tr.). But that assessment is neither sufficient to override a statutory mandate permitting all aliens present in the United States to apply for asylum, regardless of whether they arrived in the United States “at a designated port of arrival,” 8 U.S.C. § 1158(a)(1); see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), nor does it suffice to shift the
60

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 61 of 77
congressional assignment of authority to adopt additional limitations on asylum “by regulation” from the Attorney General and the Secretary of Homeland Security to the President. The authority that the Attorney General and the Secretary of Homeland Security have invoked in support of the Rule is their authority to promulgate regulations “consistent with” § 1158, 8 U.S.C. § 1158(b)(2)(C), and they cannot sidestep the statutory restriction on their authority by invoking a presidential proclamation that is not premised on any authority to alter or supplant the rules that Congress specified in § 1158.
Finally, Defendants argue that the government has, “for decades, considered whether an alien unlawfully entered the country in issuing discretionary asylum denials.” Dkt. 31 at 36. The principal BIA decision upon which they rely, however, Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987), was decided almost a decade before Congress amended § 1158(a)(1) in IIRIRA to include the critical language (“whether or not at a designated port of arrival”) upon which Plaintiffs rely. Nor does that decision sweep as broadly as Defendants suggest. True, Pula recites that “an alien’s manner of entry or attempted entry is a proper and relevant discretionary factor to consider in adjudicating asylum applications.” Id. at 473. In Pula, however, the “manner of entry” was through the use of “a fraudulent document,” raising concerns unlike those at issue here. Id. at 474. But even putting that distinction aside, there is a vast difference between considering how the alien entered the United States as one, among many, factors in the exercise of a discretionary authority, and a categorial rule that disqualifies any alien who enters across the southern border outside a designated port of entry. Returning, once again, to our teenaged drivers, one might plausibly argue that it is permissible to consider a sixteen-year-old’s age, among other factors, in deciding whether she should receive a driver’s license. But it is
61

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 62 of 77
something altogether different to maintain that no sixteen-year-old may receive a driver’s license, notwithstanding a statutory entitlement to apply for a license at age sixteen.
Because the Interim Final Rule exceeds the authority that Congress conferred on the Attorney General and the Secretary of Homeland Security to “establish additional limitations and conditions” on asylum that are “consistent with” § 1158, 8 U.S.C. § 1158(b)(2)(C), the Rule is “not in accordance with law” and “in excess of statutory . . . authority,” 5 U.S.C. § 706(2)(A), (C). Having concluded that the Rule is, therefore, “unlawful” within the meaning of the APA, id. § 706(2), the Court need not reach Plaintiffs’ remaining substantive and procedural challenges to the lawfulness of the Rule.
Remedy This brings the Court to the question of remedy. The S.M.S.R. Plaintiffs urge the Court to issue “a declaration that the Rule is unlawful and an injunction prohibiting its enforcement against each member of the proposed class.” Dkt. 72 at 34. The O.A. Plaintiffs, likewise, argue that Plaintiffs are entitled to “[n]ationwide [r]elief,” contending that “there is nothing unusual about a court issuing an injunction that provides Plaintiffs complete relief and also prevents the [g]overnment from harming other similarly situated individuals.” Dkt. 73 at 29–31. Defendants disagree, arguing that “Article III and equitable principles require that relief be no broader than necessary to redress the Plaintiffs’ injuries” and that “a plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Dkt. 66 at 65 (quotation omitted). Relying on Justice Thomas’s concurrence in Trump v. Hawaii, Defendants contend that “[n]ationwide injunctions . . . ‘take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.’” Dkt. 66 at 66 (quoting 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring)). Thus, according to Defendants, “this Court has
62

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 63 of 77
the authority to grant only declaratory relief[] and must limit the relief to remedying only the particular harms alleged by the specific plaintiffs properly before it—that is, a challenge to implementation of Section 1225(b)(1) by the sole Plaintiff subject to an expedited removal order, A.V.” Id. at 67.
Neither Plaintiffs’ nor Defendants’ view of the appropriate remedy is persuasive. In several recent cases, the propriety of nationwide injunctive relief has been front and center. See, e.g., Trump v. Hawaii, 138 S. Ct. at 2423; City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018); NAACP v. Trump, 315 F. Supp. 3d 457, 474 n.13 (D.D.C. 2018); see also Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017). This, however, is not such a case, because the APA and controlling D.C. Circuit precedent dictate the proper remedy. For the reasons explained above, the Court has concluded that the Interim Final Rule is both “contrary to law” and was adopted “in excess of statutory . . . authority,” 5 U.S.C. § 706(2)(A), (C). Under these circumstances, the APA mandates that the Court “shall” “set aside” the challenged “agency action.” Id. § 706. That is, under the plain language of the APA, the Court must “annul or vacate” the agency’s action. See Set Aside, Black’s Law Dictionary (10th ed. 2014). That reading of the APA is consistent with longstanding and consistent practice in this circuit. See, e.g., Humane Soc’y of United States v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) (“A common remedy when we find a rule is invalid is to vacate.”); Blue Water Navy Viet. Veterans Ass’n, Inc. v. McDonald, 830 F.3d 570, 578 (D.C. Cir. 2016) (“vacatur is the ‘normal remedy’”) (quoting Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014)); Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (“Normally
63

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 64 of 77
when an agency . . . clearly violates the APA we would vacate its action.”). To be sure, decisions in this circuit have, on occasion, remanded a rule without vacatur, see Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993), but Defendants cite no authority suggesting that any remedy short of vacatur is appropriate here, nor have they even requested remand without vacatur. Cf. Milk Train, Inc. v. Veneman, 310 F.3d 747, 757 (D.C. Cir. 2002) (Sentelle, J., dissenting) (positing that vacatur is always required); Checkosky v. SEC, 23 F.3d 452, 491 (D.C. Cir. 1994) (Randolph, J., concurring) (same).
To the extent Defendants argue that the vacatur remedy should be limited to the plaintiffs in this case, that contention is both at odds with settled precedent and difficult to comprehend. The D.C. Circuit has “made clear that ‘[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 petitioners is proscribed.’” Nat’l Mining Ass’n, 145 F.3d at 1409 (quoting Thornburgh, 878 F.2d at 495 n.21) (emphasis added). As the D.C. Circuit explained in that decision, “Justice Blackmun made a similar observation in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), writing in dissent but apparently expressing the view of all nine Justices on th[e] question.” Nat’l Mining Ass’n, 145 F.3d at 1409. Justice Blackmun wrote:
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Lujan, 497 U.S. at 913 (Blackmun, J., dissenting). As understood by the D.C. Circuit in National Mining Association, this view was shared by the three Justices who joined Justice
64

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 65 of 77
Blackmun’s dissent, and by the majority, which observed that a final agency action may “be challenged under the APA by a person adversely affected—and the entire [agency program], insofar as the content of that particular action is concerned, would thereby be affected.” Id. at 890 n.2; see also Nat’l Mining Ass’n, 145 F.3d at 1409 (citing same).
Even without this controlling precedent, moreover, the Court would be at a loss to understand what it would mean to vacate a regulation, but only as applied to the parties before the Court. As a practical matter, for example, how could this Court vacate the Rule with respect to the organizational plaintiffs in this case without vacating the Rule writ large? What would it mean to “vacate” a rule as to some but not other members of the public? What would appear in the Code of Federal Regulations? Fortunately, the Court need not engage in such logical gymnastics because the language of the APA and the controlling D.C. Circuit precedent are unambiguous. The Court, accordingly, concludes that the proper remedy is to set the Rule aside, and the legal consequences of that result are not limited “to the individual” plaintiffs. Nat’t Mining Ass’n, 145 F.3d at 1409.
That leaves the question whether issuance of an injunction is also warranted. The Supreme Court has cautioned that a district court vacating an agency action under the APA should not issue an injunction unless doing so would “have [a] meaningful practical effect independent of its vacatur.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). This is because “[a]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course” or where “a less drastic remedy . . . [is] sufficient to redress” the plaintiffs’ injury. Id. At least on the present record, this is such a case. Defendants have represented that they will abide by the Court’s order, Dkt. 79 at 78 (May 29, 2019 Hrg. Tr.), and Department of Justice guidance regarding vacatur under the APA provides that the “Department
65

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 66 of 77
litigators should” comply “with circuit precedent,” including the D.C. Circuit’s decision in National Mining Association, 145 F.3d 1399 (D.C. Cir. 1998), see Memorandum from the Attorney General to Heads of Civil Litigating Components (Sept. 13, 2018), https://www.justice.gov/opa/press-release/file/1093881/download (last visited Aug. 2, 2019). Those assurance are sufficient under the present circumstances. Plaintiffs are free, however, to return to the Court for further relief if warranted.
* * * The Court, accordingly, will vacate the Rule but will decline Plaintiffs’ request that the Court enter an injunction. Class Certification Finally, the Court must consider whether to grant Plaintiffs’ motions for class certification.16 The question of class certification arises in an unusual posture in this case because the Court directed that the parties brief the merits on an expedited basis (to obviate the need for further litigation on Plaintiffs’ motions for preliminary relief) and because the parties consolidated their briefing on class certification with the merits. It is also unclear that class certification will serve any significant purpose, given the Court’s decision on the merits and the relief that the Court has already ordered. But, because the law is unsettled on whether the Court may, in its discretion, decline to certify a class (or may decline to decide whether to certify a
16 Although mindful of the fact that Rule 23(c)(1) directs courts to resolve class certification motions “[a]t an early practicable time,” Fed. R. Civ. P. 23(c)(1)(A), the Court notes that the rule grants district courts “great discretion in determining the appropriate timing for such a ruling.” Hyman v. First Union Corp., 982 F. Supp. 8, 11 (D.D.C. 1997); see also 7A Charles Alan Wright et al., Federal Practice & Procedure § 1785.3 (3d ed. Sept. 2018) (“The time at which the court finds it appropriate to make its class-action determination may vary with the circumstances of the particular case.”). Thus, district courts are not required to decide class certification issues before ruling on the merits.
66

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 67 of 77
class) based on these prudential considerations, and because class certification could have some bearing on future proceedings in this matter, the Court will resolve the pending motions. Compare Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398–400 (2010) (Rule 23 “says that if the prescribed preconditions are satisfied ‘[a] class action may be maintained’ (emphasis added)—not “a class action may be permitted.” Courts do not maintain actions; litigants do.”) with Tobias Barrington Wolff, Discretion in Class Certification, 162 U. Pa. L. Rev. 1897, 1900 (2014) (“The Court did not indicate that it was effecting any radical change [in Shady Grove], nor did it acknowledge any need to harmonize its assertion with the decades of federal judicial holdings recognizing the discretion of district courts in matters relating to class certification.”); see also Mills v. District of Columbia, 266 F.R.D. 20, 22 (D.D.C. 2010) (declining to certify class because declaration that statute was facially unconstitutional already provided complete relief to putative class members).
To proceed on behalf of a class, a plaintiff or group of plaintiffs must clear two hurdles. First, the putative class representatives must show that “(1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. (23)(a). These four “prerequisites,” DL v. District of Columbia, 860 F.3d 713, 723 (D.C. Cir. 2017), are referred to as numerosity, commonality, typicality, and adequacy of representation, Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013). Second, the “plaintiffs must then demonstrate that their proposed class falls into one of the categories of class actions listed in Rule 23(b).” DL, 860 F.3d at 723. As relevant here, Rule 23(b)(2) applies if “the party opposing the class has acted or refused to act on grounds that apply
67

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 68 of 77
generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Because “[t]he class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,’” Comcast Corp. v. Behrend, 589 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)), the party seeking class treatment “must affirmatively demonstrate . . . compliance” with Rule 23, Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011).
1. Rule 23(a) and (b) Here, the four “prerequisites” contained in Rule 23(a) are readily satisfied. First, Defendants do not dispute—nor could they—that the proposed class, which consists 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. 51 at 21–22; Dkt. 52 at 1–2, satisfies the numerosity requirement. To meet this requirement, Plaintiffs need not clear any “specific threshold,” although “courts in this jurisdiction have observed that a class of at least forty members is sufficiently large to meet this requirement.” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007). Plaintiffs may satisfy the requirement, moreover, by supplying estimates, rather than a precise number, of putative class members, see Pigford v. Glickman, 182 F.R.D. 341, 347–48 (D.D.C. 1998), “so long as there is a reasonable basis for the estimate provided,” Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999). Relying on statistics available in the Administrative Record, Plaintiffs reasonably estimate that the class consists of “thousands of migrants who have crossed and will cross the United States’ southern border outside ports of entry.” Dkt. 52-1 at 16. That is sufficient to satisfy the numerosity requirement.
68

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 69 of 77
The second and third requirements, commonality and typicality, often overlap. The second requirement is satisfied if “there are questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2), and the third is satisfied if “the claims or defenses of the representative parties are typical of the claims or defenses of class,” Fed. R. Civ. P. 23(a)(3). The commonality requirement is satisfied if class members’ claims “depend upon a common contention” that “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. The typicality requirement, in turn, demands that the proposed, representative plaintiffs “possess the same interest and suffer the same injury” as the other class members. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (internal quotation marks and citations omitted). “While commonality requires a showing that the members of the class suffered an injury resulting from the defendant’s conduct, the typicality requirement focuses on whether the representatives of the class suffered a similar injury from the same course of conduct.” Bynum v. D.C., 214 F.R.D. 27, 34 (D.D.C. 2003). Both requirements are satisfied here. All members of the proposed class, and all of the proposed class representatives, face the same threat of injury: loss of the right to seek asylum because they entered the United States across the southern border after November 9, 2018, outside a designated port of entry. All challenge the same Rule on the same grounds, and all seek the same remedy—invalidation of the Rule. Finally, all have the same interest in this Court’s judgment and will likely share an interest in any further relief they might subsequently decide to seek.
Defendants disagree, arguing that “the proposed class includes disparate groups of persons whose statutory and constitutional rights are distinct . . . and thus would be affected by the Rule differently.” Dkt. 66 at 60–61. The Court is unpersuaded. Unlike in Dukes, where the
69

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 70 of 77
Supreme Court reasoned that no “glue” held together each of the purported acts of discrimination alleged by a class of women, 564 U.S. at 352, Plaintiffs and the putative class members share an identical interest in the invalidation of the Rule and in enforcing this Court’s decision. Commonality is satisfied where there is “a uniform policy or practice that affects all class members,” DL, 713 F.3d at 128, and that principle applies with equal force to the typicality requirement. Because the Rule exposes all putative class members and all named Plaintiffs to the same deprivation of their statutory right to seek asylum, the Court finds that the proposed class satisfies Rule 23(a)’s requirements of commonality and typicality.
Finally, Plaintiffs also satisfy Rule 23(a)’s adequacy of representation requirement. This requirement imposes two conditions on plaintiffs seeking to represent a class: first, “the named representative must not have antagonistic or conflicting interests with the unnamed members of the class,” and second, “the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. Disttrict of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997). Here, Defendants challenge only the first of these conditions, arguing that the named representatives “cannot vigorously prosecute the interests of the entire class, which [includes members in] diverse and disparate situations.” Dkt. 66 at 63–64. But that argument merely rehashes Defendants’ attack on the commonality and typicality of Plaintiffs’ claims. To be sure, each individual plaintiff and member of the putative class will have a unique interest in pursuing his or her own claim to asylum. That, however, is not what this case is about. It relates solely to whether the individual plaintiffs and putative class members will have an opportunity to pursue those claims, unencumbered by the Rule’s categorical ban.
Although Defendants do not dispute that Plaintiffs’ counsel are qualified to represent the class, the Court has considered that question sua sponte and concludes that current counsel is
70

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 71 of 77
well-qualified to do so. As shown by the declarations submitted in support of class certification, current counsel are willing and have the ability vigorously to litigate this case and to protect the interests of absent class members. See Dkt. 51-13 (Reyes Decl.); Dkt. 51-14 (Vieux Decl.); Dkt. 51-15 (Roth Decl.); Dkt. 52-10 (Govindaiah Decl.); Dkt. 52-11 (Appelbaum Decl.). The Court, accordingly, concludes that the adequacy of representation requirement is satisfied.
The Court also concludes that Plaintiffs have shown that Rule 23(b)(2) is satisfied in this case. Rule 23(b)(2) applies if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (internal quotation marks and citations omitted). Rule 23(b)(2) imposes “two requirements: (1) that defendant’s actions or refusal to act are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37. Both requirements are satisfied here. The Rule imposes a categorical ban on asylum eligibility that is applicable to the named Plaintiffs and to the entire class they seek to represent. The relief Plaintiffs seek, moreover—a declaration that the Rule is unlawful and an injunction setting the Rule aside, Dkt. 39 at 68 (S.M.S.R. Amend. Compl. Prayer for Relief); Dkt. 40 at 35– 36 (O.A. Amend. Compl. Prayer for Relief)—would prevent Defendants from applying the categorical bar to every member of the proposed class “in one stroke.” Dukes, 564 U.S. at 350.
Echoing their contentions that Plaintiffs have failed to satisfy the commonality, typicality, and adequacy of representation requirements, Defendants contend that Rule 23(b)(2)
71

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 72 of 77
is not satisfied because a single remedy would not serve all members of the putative class. That contention, once again, conflates Plaintiffs’ challenge to the categorical bar on eligibility for asylum—which applies equally to all members of the putative class—with each putative member of the class’s unique interest in seeking asylum, which is not at issue in this case. The relief Plaintiffs seek is “generally applicable to the class” and is indivisible. See Garcia Ramirez v. U.S. Immigration & Customs Enf’t, 338 F. Supp. 3d 1, 48 (D.D.C. 2018) (Rule 23(b) satisfied where plaintiffs “d[id] not seek a court order mandating any particular outcome with respect to any particular [individual plaintiff]”); see also Damus v. Nielsen, 313 F. Supp. 3d 317, 334–35 (D.D.C. 2018) (Rule 23(b)(2) satisfied where plaintiffs were not asking the court “to remedy discrete errors in their parole determinations,” but rather “only . . . address an alleged systematic harm”); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 182 (D.D.C. 2015) (Rule 23(b)(2) satisfied where plaintiffs sought to enjoin ICE from consideration of particular factor in making detention determination).
The Court, accordingly, concludes that Plaintiffs have satisfied the requirements of Rule 23(a) and (b). Defendants argue that class certification is nonetheless inappropriate for two further reasons: (1) the Court allegedly lacks jurisdiction to certify a class, Dkt. 66 at 53–56; and (2) Plaintiffs’ proposed class is purportedly “overbroad and not ascertainable,” id. at 57–59.
2. Jurisdiction to Certify a Class Defendants argue that the Court lacks jurisdiction to certify a class for two reasons. First, they argue that because “challenges to the Rule must be made either in a petition for review under 8 U.S.C. § 1252(b)(9) or under the requirements for expedited-removal challenges provided by 8 U.S.C. § 1252(e)(3),” Dkt. 66 at 53, the Court lacks jurisdiction to certify a class. That contention, however, merely repeats the jurisdictional arguments that the Court considered, and rejected, above. Because § 1252(b)(9) does not govern Plaintiffs’ claims, it has no bearing
72

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 73 of 77
on class certification. Defendants are correct, though, that § 1252(e)(1) precludes certification of a class “in any action for which judicial review is authorized” by § 1252(e)(3). Although the Court has recognized that an argument can be made that § 1252(e)(3) applies to the claims of some of the individual plaintiffs, see supra 38–43, the Court has declined to embrace that contention. But, even if § 1252(e)(1) might apply to the claims of some of the individual plaintiffs, that would at most preclude those plaintiffs from serving as class representatives. Those plaintiffs who were never placed in expedited removal proceedings would be able to pursue their claims on behalf of the class.
Second, Defendants rely on 8 U.S.C. § 1252(f)(1), which states: Regardless of the nature of the action or claim of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings . . . have been initiated. 8 U.S.C. § 1252(f)(1). Because the Plaintiffs seek injunctive relief in addition to a declaration that the Rule is invalid, and because the Supreme Court has made clear that § 1252(f)(1) bars “classwide injunctive relief against the operation of §§ 1221–123[2],” Dkt. 66 at 54 (quoting AADC, 525 U.S. at 481–82), Defendants argue that this provision “dooms” the bid for class certification. Dkt. 66 at 54. The Court disagrees. As initial matter, § 1252(f) applies only to efforts to enjoin the operation of “part IV” of the INA, §§ 1221–1232. The asylum provision Defendants invoked as authorization to issue the challenged Rule, however, is contained in part II of the INA. Defendants make no attempt to explain why the Attorney General and the Secretary pf Homeland Security’s exercise of authority under 8 U.S.C. § 1158(b)(2)(C) to establish conditions “under which an alien shall be ineligible for asylum under [§ 1158(b)(1)]” would fall under § 1252(f)(1)’s limitation on injunctive relief regarding “the operation of
73

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 74 of 77
§§ 1221–123[2],” AADC, 525 U.S. at 481–82; see also Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1233 (9th Cir. 2007) (“Section 1252(f)(1) does not prohibit the current injunction because . . . it directly implicates the adjustment of status provision which falls under part V of subchapter II, notwithstanding that a reinstatement proceeding [under part IV] may be a collateral consequence of an unsuccessful adjustment application.”); Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc) (upholding injunction issued under statutory provision governing adjustment of status, located in part V of the INA). Although asylum officers are charged with implementing the Rule in expedited removal proceedings, which are authorized in part IV, the relief Plaintiffs seek would not enjoin the operation of removal proceedings.
But, even if Plaintiffs did seek to enjoin the operation of removal proceedings, Defendants’ reliance on § 1252(f) would fail. As the Ninth Circuit held in Jennings, and the Supreme Court did not question, § 1252(f) does not affect a lower court’s “‘jurisdiction over . . . statutory claims because those claims d[o] not ‘seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.’” 138 S. Ct. at 851 (emphasis omitted) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)). In other words, “[w]here . . . a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of [the statute], and § 1252(f)(1) therefore is not implicated.” Rodriguez, 591 F.3d at 1120 (internal quotations and citations omitted); see also Grace v. Whitaker, 344 F. Supp. 3d 96, 143 (D.D.C. 2018); Garcia Ramirez, 338 F. Supp. 3d at 49; Damus v. Nielsen, 313 F. Supp. 3d at 328; R.I.L-R, 80 F. Supp. 3d at 184. Where, as here, an injunction would not obstruct the “operation of” a covered provision but merely enjoin conduct that allegedly violates that provision, § 1252(f)(1) poses no bar to relief.
74

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 75 of 77
Finally, even if § 1252(f) applied here, and even if it applied to claims that the government has acted in excess of its statutory authority under the INA, it still would not foreclose class treatment because it “only bars injunctive relief,” not declaratory relief. Hamama v. Adducci, 912 F.3d 869, 878 (6th Cir. 2018) (“[T]here is a big difference between barring the certification of a class under Rule 23 and barring all injunctive relief. The former bars a class action regarding anything; the latter only bars injunctive relief for anyone other than individuals.” (emphases in original)); see also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011) (“[V]iewing the provision in context and then taking into consideration the heading of the provision [‘limits on injunctive relief’], it is apparent that the jurisdictional limitations in § 1252(f)(1) do not encompass declaratory relief.”); Rodriguez, 591 F.3d at 1119 (“It is simply not the case that Section 1252(f) bars Petitioner from receiving declaratory relief on behalf of the class.”); Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *6 (D. Mass. Oct. 23, 2018) (declining to address whether § 1252(f)(1) bars a class-wide injunction because the statute “does not bar classwide declaratory relief, which suffices to satisfy Rule 23(b)(2)”).
3. Ascertainability Finally, Defendants argue that because the class “potentially includes all aliens outside the United States and extraterritorial aliens have no right to challenge laws that apply only to those on U.S. soil,” Plaintiffs have failed to define an ascertainable class. Dkt. 66 at 58. Defendants premise this contention on the theory that “[c]ourts in this Circuit have ‘grafted’ onto Rule 23 an ‘implied’ requirement that a court should first determine whether a proposed class is adequately defined such that its members are clearly ascertainable, before reaching the four ‘explicit’ prerequisites of Rule 23(a).” Id. at 57 (quoting Brewer v. Lynch, No. CV 08-1747BJR, 2015 WL 13604257, at *5 (D.D.C. Sept. 30, 2015)). It is “far from clear,” however, “that there exists in this district a requirement that a class certified under Rule 23(b)(2) must
75

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 76 of 77
demonstrate ascertainability to merit certification.” Garcia Ramirez, 338 F. Supp. 3d at 48. The requirement, moreover, “has been recently disavowed by four federal appellate courts,” and “the D.C. Circuit has not opined on the requirement.” Hoyte v. District of Columbia, 325 F.R.D. 485, 489 n.3 (D.D.C. 2017).
Out of an abundance of caution, the Court will assume for present purposes that such a requirement exists. See id. But even with that assumption, Defendants’ argument fails. Where the ascertainability requirement exists for Rule 23(b)(2) classes, the proponents of class certification must demonstrate that “the general outlines of the members of the class are determinable at the outset of the litigation” without engaging in burdensome individualized determinations. Brewer, 2015 WL 13604257, at *5 (internal quotation omitted). The requirement, however, “is not designed to be . . . particularly stringent.” Id.
The class members here are easily determined. The proposed class includes all asylum seekers who are subject to the Rule’s categorical prohibition on asylum eligibility. It does not, as Defendants claim, include unknown and unidentifiable aliens who are outside the United States. Rather, aliens will only become members of the class if and when they enter the United States through the southern border without inspection. Nor is it at all unusual or improper for a Rule 23(b)(2) class to include future members. See, e.g., Garcia Ramirez, 338 F. Supp. 3d at 49–50; Abdi v. Duke, 323 F.R.D. 131, 137–38 (W.D.N.Y. 2017); R.I.L-R, 80 F. Supp. 3d at 180; Duprey v. Conn. Dep’t of Motor Vehicles, 191 F.R.D. 329, 338 (D. Conn. 2000). The proposed class in this case is defined by clear and objective criteria: If an asylum seeker crosses the southern border outside of a port of entry after November 9, 2018, he or she is a member of the class. That determination does not require complicated or individualized determinations—indeed, these
76

Case 1:18-cv-02718-RDM Document 92 Filed 08/02/19 Page 77 of 77
criteria are precisely the same ones Defendants would apply in enforcing the Rule. That is sufficient.
* * * The Court, accordingly, concludes that Plaintiffs have carried their burden of demonstrating that class treatment is warranted under Rule 23(b)(2). The Court will enter a separate order certifying the proposed class, designating the individual plaintiffs as class representatives, and appointing Plaintiffs’ counsel to serve as counsel for the class.
CONCLUSION For the reasons set forth above, the Court will GRANT in part and DENY in part Plaintiffs’ motions for summary judgment and class certification, Dkt. 51; Dkt. 52, and will DENY Defendants’ cross-motion, Dkt. 66. The Court will DENY as moot Plaintiffs’ earlierfiled 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). A separate order consistent with this Memorandum Opinion will issue.

Date: August 2, 2019

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

77