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U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:20-cv-09258-JD

Immigration Equality et al v. U.S. Department of Homeland Security et al Assigned to: Judge James Donato Relate Case Case: 3:20-cv-09253-JD Cause: 05:551 Administrative Procedure Act

Date Filed: 12/21/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Immigration Equality

represented by Jennifer Carol Pizer Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Blvd. Suite 280 Los Angeles, CA 90010 213-382-7600 Email: jpizer@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M. Frankel Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715-7793 Email: AFrankel@KRAMERLEVIN.com ATTORNEY TO BE NOTICED

Bridget A Crawford Immigration Equality 594 Dean Street Brooklyn, NY 11238 212-714-2781

Email: bcrawford@immigrationequality.org ATTORNEY TO BE NOTICED
Chase Henry Mechanick Kramer Levin Naftalis Frankel LLP 1177 Avenue of the Americas New York, NY 10036 212-715-9525 Email: cmechanick@kramerlevin.com ATTORNEY TO BE NOTICED
Jason M Moff Kramer Levin Naftalis Frankel LLP 1177 Avenue of the Americas New York, NY 10036 United Sta 212-715-9113 Email: jmoff@kramerlevin.com ATTORNEY TO BE NOTICED
Jeffrey S Trachtman Kramer Levin Naftalis Frankel LLP 1177 Avenue of the Americas New York, NY 10036 United Sta 212-715-9175 Email: jtrachtman@kramerlevin.com ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan Lambda Legal 120 Wall Street 19th Floor New York, NY 10005 212-809-8585 Fax: 212-809-0055 Email: ogonzalezpagan@lambdalegal.org ATTORNEY TO BE NOTICED
Richard Saenz Lambda Legal Defense and Education Fund, Inc.

Plaintiff Oasis Legal Services

120 Wall St. 19th Floor New York, NY 10005 United Sta 212-809-8585 Email: rsaenz@lambdalegal.org ATTORNEY TO BE NOTICED
Austin W Manes Kramer Levin Naftalis & Frankel, LLP 990 Marsh Road Menlo Park, CA 94025 650-752-1718 Email: amanes@kramerlevin.com (Inactive) ATTORNEY TO BE NOTICED
represented by Jennifer Carol Pizer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M. Frankel (See above for address) ATTORNEY TO BE NOTICED
Bridget A Crawford (See above for address) ATTORNEY TO BE NOTICED
Chase Henry Mechanick (See above for address) ATTORNEY TO BE NOTICED
Jason M Moff (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S Trachtman (See above for address) ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address)

Plaintiff The Translatin@ Coalition
Plaintiff Black LGBTQIA Migrant Project

ATTORNEY TO BE NOTICED
Richard Saenz (See above for address) ATTORNEY TO BE NOTICED
Austin W Manes (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Carol Pizer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M. Frankel (See above for address) ATTORNEY TO BE NOTICED
Bridget A Crawford (See above for address) ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) ATTORNEY TO BE NOTICED
Richard Saenz (See above for address) ATTORNEY TO BE NOTICED
Austin W Manes (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Carol Pizer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M. Frankel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Transgender Law Center

Bridget A Crawford (See above for address) ATTORNEY TO BE NOTICED
Chase Henry Mechanick (See above for address) ATTORNEY TO BE NOTICED
Jason M Moff (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S Trachtman (See above for address) ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) ATTORNEY TO BE NOTICED
Richard Saenz (See above for address) ATTORNEY TO BE NOTICED
Austin W Manes (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Carol Pizer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M. Frankel (See above for address) ATTORNEY TO BE NOTICED
Bridget A Crawford (See above for address) ATTORNEY TO BE NOTICED
Omar Gonzalez-Pagan (See above for address) ATTORNEY TO BE NOTICED

Richard Saenz (See above for address) ATTORNEY TO BE NOTICED
Austin W Manes (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Homeland Security
Defendant Pete Gaynor in his official capacity, if any, as Acting Secretary of the Department of Homeland Security
Defendant

represented by Christina P Greer U.S. Department of Justice Civil Division, Office of Immigration Litigation P.O. Box 878 Washington, DC 20044 202-598-8770 Email: christina.p.greer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje U.S. Department of Justice Civil Division 950 Pennsylvania Avenue NW Room 3613 Washington, DC 20530 202-514-3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED

Chad F. Wolf in his official capacity, if any, as Acting Secretary of the Department of Homeland Security
Defendant U.S. Dept. of Justice
Defendant William P. Barr in his official capacity as United States Attorney General
Defendant Executive Office for Immigration Review
Defendant James McHenry in his official capacity as Director of the Executive Office for Immigration Review

represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Kenneth T. Cuccinelli in his official capacity as an Agent of the Department of Homeland Security
Defendant U.S. Citizenship and Immigration Services
Amicus State of California Proposed Amici States
Amicus Former Immigration Judges

August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Christina P Greer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by Marissa Suzanne Malouff Califoria Department of Justice Office of the Attorney General 300 S. Spring Street, Suite 1702 Los Angeles, CA 90026 (213) 269-6467 Fax: (213) 897-7605 Email: marissa.malouff@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael James Stortz Akin Gump Strauss Hauer & Feld, LLP 580 California Street, Suite 1500 San Francisco, CA 94104 (415) 765-9500

Amicus Members of the Board of Immigration Appeals Amicus Kids in Need of Defense
Amicus

Fax: (415) 765-9501 Email: mstortz@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael James Stortz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch DLA Piper LLP (US) 2000 University Avenue East Palo Alto, CA 94303 650-833-2440 Fax: 650-687-1230 Email: susan.krumplitsch@us.dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Therease Morrison DLA Piper LLP (US) One Liberty Place 1650 Market Street Suite 5000 Philadelphia, PA 19103-7300 (215) 656-3300 Fax: (215) 656-3301 Email: danielle.morrison@us.dlapiper.com ATTORNEY TO BE NOTICED
Ellen Scordino DLA Piper LLP US 33 Arch Street 26th Floor Boston, MA 02110-1447 617-406-6085 Email: ellen.scordino@dlapiper.com ATTORNEY TO BE NOTICED

Young Center for Immigrant Children's Rights
Amicus AIDS United 1101 14th St NW, Suite 300 Washington, DC 20005 (202) 408-4848
Amicus City of Los Angeles

represented by Susan Marie Krumplitsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Therease Morrison (See above for address) ATTORNEY TO BE NOTICED
Ellen Scordino (See above for address) ATTORNEY TO BE NOTICED
represented by Gail Debra Zirkelbach Crowell and Moring LLP 515 S. Flower Street 40th Floor Los Angeles, CA 90071 (213) 622-4750 Fax: (213) 622-2690 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin David Kingsolver Crowell and Moring LLP 1001 Pennsylvania Ave. NW Washington, DC 20004 202-624-2500 Email: JKingsolver@crowell.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas Office of the Los Angeles City Attorney 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8211 Email: mike.dundas@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Public Counsel

represented by Susan Marie Krumplitsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

12/21/2020

1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 402, receipt number 0971-15349007.). Filed byThe Translatin@ Coalition, Oasis Legal Services, Black LGBTQIA Migrant Project, Immigration Equality, Transgender Law Center. (Attachments: # 1 Civil Cover Sheet)(Manes, Austin) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020 2 Proposed Summons. (Manes, Austin) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020

3 Rule 7.1 Disclosures by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center (Manes, Austin) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020 4 Case assigned to Magistrate Judge Donna M. Ryu.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 1/4/2021. (haS, COURT STAFF) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020 12/21/2020

5 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center.. (Manes, Austin) (Filed on 12/21/2020) (Entered: 12/21/2020)
6 Summons Issued as to William P. Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Pete Gaynor, James McHenry, U.S.

Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Dept. of Justice, Chad F. Wolf. (cjlS, COURT STAFF) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020

7 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 3/24/2021. Initial Case Management Conference set for 3/31/2021 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (cjlS, COURT STAFF) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020

8 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 317, receipt number 0971-15350150.) filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Gonzalez-Pagan, Omar) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020

9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 317, receipt number 0971-15350531.) filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Saenz, Richard) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020 10 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 317, receipt number 0971-15350621.) filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Crawford, Bridget) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/22/2020 11 NOTICE of Appearance by Christina P Greer (Greer, Christina) (Filed on 12/22/2020) (Entered: 12/22/2020)

12/22/2020 12 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.

This is a text only docket entry; there is no document associated with this notice. (ig, COURT STAFF) (Filed on 12/22/2020) (Entered: 12/22/2020)

12/22/2020

13 MOTION for Temporary Restraining Order Preliminary Injunction, and Stay Under 5 U.S.C. § 705 filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion, # 2 Declaration Declaration of Jennifer C. Pizer in Support of Plaintiffs' Motion for Temporary Restraining Order, # 3 Declaration Declaration of Chase Mechanick in Support of Plaintiff's Motion for Temporary Restraining Order, # 4 Exhibit Exhibit A to Mechanick Declaration, # 5 Exhibit Exhibit B to Mechanick Declaration, # 6 Exhibit Exhibit C to Mechanick Declaration, # 7 Exhibit Exhibit D to Mechanick Declaration, # 8 Exhibit Exhibit E to Mechanick Declaration, # 9 Exhibit Exhibit F to Mechanick Declaration, # 10 Exhibit Exhibit G to Mechanick Declaration, # 11 Exhibit Exhibit H to Mechanick Declaration, # 12 Exhibit Exhibit I to Mechanick Declaration, # 13 Exhibit Exhibit J to Mechanick Declaration, # 14 Exhibit Exhibit K to Mechanick Declaration, # 15 Exhibit Exhibit L to Mechanick Declaration, # 16 Exhibit Exhibit M to Mechanick Declaration, # 17 Declaration Declaration of Aaron Morris in Support of Plaintiffs' Motion for Temporary Restraining Order, # 18 Declaration Declaration of Bamby Salceda in Support of Plaintiffs' Motion for Temporary Restraining Order, # 19 Declaration Declaration of Madison Blu Fairchild in Support of Plaintiffs' Motion for Temporary Restraining Order, # 20 Declaration Declaration of Caroline Kornfield Roberts in Support of Plaintiffs' Motion for Temporary Restraining Order, # 21 Declaration Declaration of Meghan D. Maurus in Support of Plaintiffs' Motion for Temporary Restraining Order, # 22 Declaration Declaration of Ola Osaze in Support of Plaintiffs' Motion for Temporary Restraining Order, # 23 Proposed Order [Proposed] Order To Show Cuase Why a TRO Should Not Issue, # 24 Certificate/Proof of Service Proof of Service)(Manes, Austin) (Filed on 12/22/2020) (Entered: 12/22/2020)

12/22/2020 14 Consent ADMINISTRATIVE MOTION Exceed the Page Limit for Plaintiffs' Motion for Temporary Restraining Order, Preliminary

Injunction, and Stay Under 5 U.S.C. § 705 re 13 MOTION for Temporary Restraining Order Preliminary Injunction, and Stay Under 5 U.S.C. § 705 Unopposed filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. Responses due by 12/28/2020. (Attachments: # 1 Declaration Declaration of Jennifer C. Pizer in Support of Immigration Equality's Unopposed Administrative Motion to Exceed Pages, # 2 Proposed Order [Proposed] Order Granting Plaintiffs' Unopposed Administrative Motion to Exceed Page Limit, # 3 Certificate/Proof of

Service Proof of Service)(Manes, Austin) (Filed on 12/22/2020) (Entered: 12/22/2020)
12/23/2020 15 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Jeffrey S. White for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. Signed by the Clerk on 12/23/2020. (Attachments: # 1 Notice of Eligibility for Video Recording)(anjS, COURT STAFF) (Filed on 12/23/2020) (Entered: 12/23/2020)
12/23/2020 16 ORDER SETTING BRIEFING SCHEDULE AND HEARING DATE
as to 13 MOTION for Temporary Restraining Order Preliminary Injunction, and Stay Under 5 U.S.C. § 705. Signed by Judge Jeffrey S. White on 12/23/20.
Responses due by 12/31/2020. Replies due by 1/5/2021. Motion Hearing set for 1/8/2021 09:00 AM in Oakland, - Videoconference Only before Judge Jeffrey S. White.
This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jsw
Court Appearances: Advanced notice is required of counsel who wish to be i dentified by the court as making an appearance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at jswcrd@cand.uscourts.gov no later than January 4, 2021 by 12:00 pm.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
(jjoS, COURT STAFF) (Filed on 12/23/2020) (Entered: 12/23/2020)
12/23/2020 17 MOTION for leave to appear in Pro Hac Vice for Aaron M. Frankel ( Filing fee $ 317, receipt number 0971-15360784.) filed by Black

LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Frankel, Aaron) (Filed on 12/23/2020) (Entered: 12/23/2020)
12/23/2020 18 ORDER OF SUA SPONTE REFERRAL. Signed by Judge Jeffrey S. White on 12/23/2020.(jswlc4S, COURT STAFF) (Filed on 12/23/2020) (Entered: 12/23/2020)
12/29/2020 19 ORDER RELATING CASE. Signed by Judge James Donato on 12/29/2020. (jdlc1S, COURT STAFF) (Filed on 12/29/2020) (Entered: 12/29/2020)
12/29/2020 20 ORDER. On this one occasion, the Court will permit plaintiffs to file an over-sized brief. See Dkt. No. 14 . Defendants have a reciprocal 53 pages if necessary for their opposition brief. No additional pages are granted for plaintiffs' reply brief. The Court emphasizes to all parties that these page-limit extensions are a one-time accommodation, and any future requests for extra pages are unlikely to be granted. A hearing on the temporary restraining order (TRO) application, Dkt.
No. 13 , is tentatively set for January 7, 2021, at 10:00 a.m. California time, at the same time as the TRO application in Pangea, Case No. 20-cv-9253, subject to possible resolution of the application on the papers without a hearing. All other briefing deadlines remain unchanged. Signed by Judge James Donato on 12/29/2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc1S, COURT STAFF) (Filed on 12/29/2020) Modified on 12/29/2020 (jdlc1S, COURT STAFF). (Entered: 12/29/2020)
12/29/2020 21 ORDER REASSIGNING CASE. Case reassigned to Judge James Donato for all further proceedings. Judge Jeffrey S. White no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. Signed by the Clerk on 12/29/2020. (Attachments: # 1 Notice of Eligibility for Video Recording)(anjS, COURT STAFF) (Filed on 12/29/2020) (Entered: 12/29/2020)
12/29/2020 22 Amicus Curiae APPEARANCE entered by Marissa Suzanne Malouff on
behalf of State of California. (Attachments: # 1 Exhibit Exhibit A Proposed Amicus Brief, # 2 Proposed Order Proposed Order)(Malouff, Marissa) (Filed on 12/29/2020) (Entered: 12/29/2020)

12/30/2020 23 MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Preliminary Injunction, Temporary Restraining Order, and Stay filed by State of California. Responses due by 1/12/2021. Replies due by

1/19/2021. (Attachments: # 1 Exhibit Ex. A - Proposed Amicus Brief, # 2 Proposed Order CORRECTION OF DOCKET # 22 , [22-1], and [222])(Malouff, Marissa) (Filed on 12/30/2020) (Entered: 12/30/2020)

12/30/2020 24 MOTION for leave to appear in Pro Hac Vice Application for Admission of Attorney Pro Hac Vice ( Filing fee $ 317, receipt number 097115381388.) filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services. (Mechanick, Chase) (Filed on 12/30/2020) (Entered: 12/30/2020)

12/30/2020 25 MOTION for leave to appear in Pro Hac Vice Application for Admission of Attorney Pro Hac Vice ( Filing fee $ 317, receipt number 097115381436.) filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services. (Trachtman, Jeffrey) (Filed on 12/30/2020) (Entered: 12/30/2020)

12/30/2020 26 MOTION for leave to appear in Pro Hac Vice Application for Admission of Attorney Pro Hac Vice ( Filing fee $ 317, receipt number 097115381471.) filed by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services. (Moff, Jason) (Filed on 12/30/2020) (Entered: 12/30/2020)

12/30/2020 27 Renotice motion hearing re 13 MOTION for Temporary Restraining Order Preliminary Injunction, and Stay Under 5 U.S.C. § 705 filed byBlack LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Related

document(s) 13 12/30/2020)

) (Manes, Austin) (Filed on 12/30/2020) (Entered:

12/30/2020 28 Amicus Curiae APPEARANCE entered by Marissa Suzanne Malouff on behalf of State of California. (Malouff, Marissa) (Filed on 12/30/2020) (Entered: 12/30/2020)

12/31/2020 29 Amicus Curiae APPEARANCE entered by Michael James Stortz on behalf of Former Immigration Judges, Members of the Board of Immigration Appeals. (Stortz, Michael) (Filed on 12/31/2020) (Entered: 12/31/2020)

12/31/2020 30 ADMINISTRATIVE MOTION For Leave to File an Amicus Brief filed by Former Immigration Judges, Members of the Board of Immigration Appeals. Responses due by 1/4/2021. (Attachments: # 1 Stipulation to

Permit Filing of Amici Curiae; [Proposed] Order)(Stortz, Michael) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 31 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 317, receipt number 0971-15386134.) filed by Kids in Need of Defense, Young Center for Immigrant Children's Rights. (Attachments: # 1 Certificate of Good Standing)(Morrison, Danielle) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 32 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 317, receipt number 0971-15386197.) filed by Kids in Need of Defense, Young Center for Immigrant Children's Rights. (Attachments: # 1 Certificate of Good Standing)(Scordino, Ellen) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 33 NOTICE of Appearance by Gail Debra Zirkelbach as Counsel for Amicus Curiae AIDS United (Zirkelbach, Gail) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 34 NOTICE of Appearance by Michael Joseph Dundas on behalf of Amicus Curiae City of Los Angeles (Dundas, Michael) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 35 MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Preliminary Injunction, Temporary Restraining Order, and Stay filed by AIDS United. Responses due by 1/14/2021. Replies due by 1/21/2021. (Attachments: # 1 Exhibit Proposed Amicus Curiae Brief of AIDS United in Support of Plaintiffs' Motion for Preliminary Injunction, Temporary Restraining Order, and Stay, # 2 Proposed Order)(Zirkelbach, Gail) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 36 ADMINISTRATIVE MOTION For Leave to File an Amicus Brief filed by City of Los Angeles. Responses due by 1/4/2021. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Dundas, Michael) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 37 OPPOSITION/RESPONSE (re 13 MOTION for Temporary Restraining Order Preliminary Injunction, and Stay Under 5 U.S.C. § 705 ) filed byWilliam P. Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Pete Gaynor, James McHenry, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Dept. of Justice, Chad F. Wolf. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit Blackwell Declaration, # 3 Exhibit Swartz Declaration)(Greer, Christina) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 38 Amicus Curiae APPEARANCE entered by Susan Marie Krumplitsch on behalf of Kids in Need of Defense, Young Center for Immigrant Children's

Rights, Public Counsel. (Krumplitsch, Susan) (Filed on 12/31/2020) (Entered: 12/31/2020)
12/31/2020 39 MOTION for Leave to File Brief of Amici Curiae filed by Kids in Need of Defense, Public Counsel, Young Center for Immigrant Children's Rights. (Krumplitsch, Susan) (Filed on 12/31/2020) (Entered: 12/31/2020)
01/04/2021 40 ORDER by Judge James Donato granting 17 Motion for Pro Hac Vice as to Aaron M. Frankel. (lrcS, COURT STAFF) (Filed on 1/4/2021) (Entered: 01/04/2021)
01/04/2021 41 ORDER by Judge James Donato granting 24 Motion for Pro Hac Vice as to Chase Mechanick. (lrcS, COURT STAFF) (Filed on 1/4/2021) (Entered: 01/04/2021)
01/04/2021 42 ORDER by Judge James Donato granting 25 Motion for Pro Hac Vice as to Jeffrey S. Trachtman. (lrcS, COURT STAFF) (Filed on 1/4/2021) (Entered: 01/04/2021)
01/04/2021 43 ORDER by Judge James Donato granting 26 Motion for Pro Hac Vice as to Jason M. Moff. (lrcS, COURT STAFF) (Filed on 1/4/2021) (Entered: 01/04/2021)
01/04/2021 44 ORDER by Judge James Donato granting 31 Motion for Pro Hac Vice as to Danielle Therease Morrison. (lrcS, COURT STAFF) (Filed on 1/4/2021) (Entered: 01/04/2021)
01/04/2021 45 ORDER by Judge James Donato granting 32 Motion for Pro Hac Vice as to Ellen Scordino. (lrcS, COURT STAFF) (Filed on 1/4/2021) (Entered: 01/04/2021)
01/05/2021 46 NOTICE of Appearance by August Flentje (Flentje, August) (Filed on 1/5/2021) (Entered: 01/05/2021)
01/05/2021 47 ORDER by Judge James Donato granting 8 Motion for Pro Hac Vice as Omar Gonzalez-Pagan. (lrcS, COURT STAFF) (Filed on 1/5/2021) (Entered: 01/05/2021)
01/05/2021 48 ORDER. The motion hearings in Case No. 20-cv-9253 and Case No. 20-cv-9258 set for January 7, 2021, at 10:00 a.m., will be held by Zoom Webinar.
Each party should designate a lead counsel to speak at the hearing by emailing the name of their lead counsel to Judge Donato's Courtroom Deputy, Ms. Lisa Clark, at jdcrd@cand.uscourts.gov by January 6, 2021, at 10:00 a.m. California time. The names for lead counsel are

needed so that Ms. Clark can identify them during the Zoom hearing when the case is called. All lead counsel must call in fifteen minutes before the hearing to test internet, video, and audio capabilities.
All counsel, parties, members of the public, and press may join the webinar using the link or information below:
https://canduscourts.zoomgov.com/j/1617171523?pwd=VWJqM2ZYT1UvNFZ0Z HNZUUhGWTBCZz09
Webinar ID: 161 717 1523 Password: 213597
Or iPhone one-tap : US: +16692545252,,1617171523#,,1#,213597# or +16468287666,,1617171523#,,1#,213597#
Or Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 669 254 5252 or +1 646 828 7666
PLEASE NOTE: Persons granted remote access to court proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings (including those held by telephone or videoconference). See General Order 58 at Paragraph III. Any recording of a court proceeding held by video or teleconference, including "screen-shots" or other visual copying of a hearing, is absolutely prohibited. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, or any other sanctions deemed necessary by the court. Please see https://www.cand.uscourts.gov/zoom for information on preparing for and participating in a Zoom Webinar.
Signed by Judge James Donato on 1/5/2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc1S, COURT STAFF) (Filed on 1/5/2021) (Entered: 01/05/2021)
01/05/2021 49 ORDER by Judge James Donato granting 9 Motion for Pro Hac Vice as to Richard Saenz. (lrcS, COURT STAFF) (Filed on 1/5/2021) (Entered: 01/05/2021)
01/05/2021 50 ORDER by Judge James Donato granting 10 Motion for Pro Hac Vice as to Bridget Crawford. (lrcS, COURT STAFF) (Filed on 1/5/2021) (Entered: 01/05/2021)

01/05/2021 51 MOTION for leave to appear in Pro Hac Vice for Amicus Curiae Counsel Justin D. Kingsolver ( Filing fee $ 317, receipt number 0971-15401008.) filed by AIDS United. (Kingsolver, Justin) (Filed on 1/5/2021) (Entered: 01/05/2021)
01/05/2021 52 REPLY (re 13 MOTION for Temporary Restraining Order Preliminary Injunction, and Stay Under 5 U.S.C. § 705 ) filed byBlack LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center. (Pizer, Jennifer) (Filed on 1/5/2021) (Entered: 01/05/2021)
01/07/2021 53 ORDER by Judge James Donato denying 51 Motion for Pro Hac Vice as to Justin D. Kingsolver. (lrcS, COURT STAFF) (Filed on 1/7/2021) (Entered: 01/07/2021)
01/07/2021 54 Minute Entry for proceedings held before Judge James Donato: Motion Hearing held on 1/7/2021. (jdlc1S, COURT STAFF) (Date Filed: 1/7/2021) (Entered: 01/08/2021)
01/08/2021 55 ORDER RE PRELIMINARY INJUNCTION. Signed by Judge James Donato on 1/8/2021. (jdlc2S, COURT STAFF) (Filed on 1/8/2021) (Entered: 01/08/2021)
01/08/2021 56 TRANSCRIPT ORDER for proceedings held on 01/07/2021 before Judge James Donato by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center, for Court Reporter Belle Ball. (Frankel, Aaron) (Filed on 1/8/2021) (Entered: 01/08/2021)
01/09/2021 57 Transcript of Proceedings held on January 7, 2021, before Judge James Donato. Court Reporter Belle Ball, CSR, telephone number (415)3732529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (56 in 3:20-cv-09258-JD) Transcript Order, ) Release of Transcript Restriction set for 4/9/2021. (ballbb15S, COURT STAFF) (Filed on 1/9/2021) (Entered: 01/09/2021)
01/15/2021 58 MOTION for leave to appear in Pro Hac Vice for Amicus Counsel (following Ms. Zirkelbach's Jan. 8 admission) ( Filing fee $ 317, receipt

number 0971-15401008.) Filing fee previously paid on 01/05/2021 filed by AIDS United. (Kingsolver, Justin) (Filed on 1/15/2021) (Entered: 01/15/2021)

01/15/2021

Remark: Received electronic copy of Administrative Record from the Executive Office for Immigration Review and the Department of Homeland Security. (wsnS, COURT STAFF) (Filed on 1/15/2021) (Entered: 01/15/2021)

01/19/2021 59 ORDER by Judge James Donato granting 58 Motion for Pro Hac Vice as to Justin Kingsolver. (lrcS, COURT STAFF) (Filed on 1/19/2021) (Entered: 01/19/2021)

01/27/2021

60 STIPULATION WITH PROPOSED ORDER to Hold Cases in Abeyance filed by William P. Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Pete Gaynor, James McHenry, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Dept. of Justice, Chad F. Wolf. (Attachments: # 1 Proposed Order)(Greer, Christina) (Filed on 1/27/2021) (Entered: 01/27/2021)

01/28/2021 61 ORDER. At the parties' joint request, Pangea Dkt. No. 75; Immigration Equality Dkt. No. 60, the cases are stayed pending further order. The parties will submit a joint status report by April 19, 2021, advising the Court of the status of the government's review of the regulation at issue in these cases, and of any relevant policy changes or other material developments. The request to file for reconsideration, Pangea Dkt. No. 74, is terminated without prejudice. Signed by Judge James Donato on 1/28/2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jdlc1S, COURT STAFF) (Filed on 1/28/2021) (Entered: 01/28/2021)

02/02/2021 62 CERTIFICATE OF SERVICE by Black LGBTQIA Migrant Project, Immigration Equality, Oasis Legal Services, The Translatin@ Coalition, Transgender Law Center re 1 Complaint, 6 Summons Issued as to USA, (Manes, Austin) (Filed on 2/2/2021) (Entered: 02/02/2021)

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 Case 3:20-cv-09258-DMR Document 1 Filed 12/21/20 Page 1 of 130

1 JENNIFER C. PIZER (SBN 152327)

JEFFREY S. TRACHTMAN*

jpizer@lambdalegal.org 2 LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 3 4221 Wilshire Boulevard, Suite 280
Los Angeles, California 90010 4 Telephone: (213) 590-5903

jtrachtman@kramerlevin.com AARON M. FRANKEL* afrankel@kramerlevin.com JASON M. MOFF* jmoff@kramerlevin.com CHASE MECHANICK*

5 OMAR GONZALEZ-PAGAN* ogonzalez-pagan@lambdalegal.org
6 RICHARD SAENZ* rsaenz@lambdalegal.org
7 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

cmechanick@kramerlevin.com KRAMER LEVIN NAFTALIS &
FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Telephone: (212) 715-9100

8 120 Wall Street, 19th Floor New York, New York 10005
9 Telephone: (212) 809-8585

AUSTIN MANES (SBN 284065) amanes@kramerlevin.com KRAMER LEVIN NAFTALIS &
FRANKEL LLP

10 BRIDGET CRAWFORD* bcrawford@immigrationequality.org
11 IMMIGRATION EQUALITY 594 Dean Street

990 Marsh Road Menlo Park, California 94025 Telephone: (650) 752-1718

12 Brooklyn, New York 11238 Telephone: (212) 714-2904

* Application for admission pro hac vice forthcoming.

13

IN THE UNITED STATES DISTRICT COURT 14

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16 IMMIGRATION EQUALITY; OASIS

Case No.

17 LEGAL SERVICES; THE TRANSLATIN@

COALITION; BLACK LGBTQIA+ 18 MIGRANT PROJECT; TRANSGENDER

19 LAW CENTER, 20

Plaintiffs,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

v.

22 U.S. DEPARTMENT OF HOMELAND

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SECURITY; PETE GAYNOR, in his official capacity, if any, as Acting Secretary of the

24 Department of Homeland Security; CHAD F. WOLF, in his official capacity, if any, as

25 Acting Secretary of the Department of

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Homeland Security; U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, in his official

27

capacity as United States Attorney General; EXECUTIVE OFFICE FOR IMMIGRATION

28 REVIEW; JAMES MCHENRY, in his official

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case No.

Case 3:20-cv-09258-DMR Document 1 Filed 12/21/20 Page 2 of 130

1 capacity as Director of the Executive Office

2

for Immigration Review; U.S. CITIZENSHIP AND IMMIGRATION SERVICES;

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KENNETH T. CUCCINELLI, in his official capacity as an Agent of the Department of

4 Homeland Security,

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Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION .......................................................................................................................... 1

4 JURISDICTION AND VENUE ..................................................................................................... 9 INTRADISTRICT ASSIGNMENT.............................................................................................. 10
5 THE PARTIES.............................................................................................................................. 10

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A. Plaintiffs Provide Services to LGBTQ/H Refugees.................................................. 10

7

i. Plaintiff Immigration Equality ........................................................................ 11

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ii. Plaintiff Oasis Legal Services ......................................................................... 12

9

iii. Plaintiff The TransLatin@ Coalition .............................................................. 13

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iv. Plaintiff Black LGBTQIA+ Migrant Project .................................................. 15

v. Plaintiff Transgender Law Center................................................................... 16

11

B. Defendants ................................................................................................................ 18

12 FACTUAL ALLEGATIONS ....................................................................................................... 19

13 I. Background ....................................................................................................................... 19

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A. The United States Asylum System Protects Refugees From Persecution. ............... 19

15

B. Asylum is Critical to LGBTQ/H Refugees. .............................................................. 22

16

C. Defendants Rushed the Final Rule to Publication. ................................................... 24

II. The Final Rule Is Invalid Because It Is Contrary To Law And Arbitrary And 17
Capricious ......................................................................................................................... 25

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A. The Final Rule Alters Long-Standing Law, Policy, and Practice with Respect

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to the INA’s “Nexus” Requirement. ......................................................................... 25

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i. The Exclusion of Gender Imperils the Availability of Asylum for All

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LGBTQ Refugees. .......................................................................................... 27

22

ii. The Final Rule Impermissibly Limits Asylum and Withholding-of-

Removal Claims Based on “Interpersonal Animus.” ..................................... 32 23
a. The “Interpersonal Animus or Retribution” Exclusion is Arbitrary

24

and Capricious and Contrary to Law....................................................... 32

25

b. The “Additional Target” Exclusion is Arbitrary and Capricious

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and Contrary to Law. ............................................................................... 35

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B. The Final Rule Arbitrarily Narrows the Definition of “Persecution.” ...................... 37

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C. The Final Rule Mandates the Denial of Bona Fide Asylum Claims under the

i

COMPLAINT FOR DECLARATORY AND

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INJUNCTIVE RELIEF

Case 3:20-cv-09258-DMR Document 1 Filed 12/21/20 Page 4 of 130

1

Guise of Discretion. .................................................................................................. 43

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i. The Final Rule Unlawfully Erases Statutory Exceptions to the One-

3

Year Filing Deadline....................................................................................... 45

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ii. The Final Rule Arbitrarily, Capriciously, and Unlawfully Restricts

Asylum for Refugees Who Transit Through Third Countries........................ 50

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a. Summary of the Transit Rules ................................................................. 51

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b. The Departments’ Previous, Unsuccessful Attempt to Implement

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a Transit Ban............................................................................................ 54

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c. The Transit Rules Are Contrary to Law and Exceed the

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Departments’ Statutory Authority Because They Lack an

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Exception Where the Transit Country Is Not Safe. ................................. 55

d. The 14-Day Rule and Multiple Country Rule Are Contrary to Law

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and Exceed the Departments’ Statutory Authority Because They

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Make the Statutory Firm Resettlement Rule Superfluous. ...................... 56

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e. The Transit Rules Arbitrarily and Capriciously Penalize Asylum

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Seekers Even If They Do Not Have Reasonable Access to Asylum

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in Their Transit Country. ......................................................................... 57

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f. The Transit Rules Arbitrarily and Capriciously Penalize Asylum

Seekers Who Entered the United States Unlawfully. .............................. 59 17
g. The Transit Rules Arbitrarily and Capriciously Penalize Asylum

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Seekers Who Are Present in a Transit Country For More Than 14

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Days. ........................................................................................................ 61

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h. The Transit Rules Arbitrarily and Capriciously Penalize Asylum

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Seekers Who Transit Through More Than One Country. ....................... 63

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D. The Final Rule Is Unlawful Because It Redefines “Firm Resettlement” in a

Manner Inconsistent with the Plain Text of the INA. ............................................... 64 23
E. The Final Rule Unlawfully Precludes Consideration of “Particular Social

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Group” Claims Advanced in Motions to Reopen or Reconsider. ............................. 68

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F. The Final Rule Unlawfully Requires Pretermission of Certain Claims.................... 73

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G. The Final Rule Impermissibly Restricts the Discretion of Adjudicators to

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Consider Cultural Evidence. ..................................................................................... 75

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H. The Final Rule Arbitrarily Modifies the Burden of Proof and Factors to Be

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COMPLAINT FOR DECLARATORY AND

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Case 3:20-cv-09258-DMR Document 1 Filed 12/21/20 Page 5 of 130

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Considered with Respect to Whether Internal Relocation Would Be

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Reasonable. ............................................................................................................... 78

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i. The Final Rule Arbitrarily Shifts the Burden of Proof to Applicants

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Who Have Previously Experienced Persecution by Private Actors. .............. 78

ii. The Final Rule Requires Adjudicators to Consider Irrelevant Factors

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When Determining Whether Internal Relocation is Reasonable. ................... 80

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I. The Final Rule Impermissibly Limits Relief Under the Convention Against

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Torture....................................................................................................................... 82

8

i. The Final Rule Unlawfully Excludes Acts of Torture by Officials Not

9

Acting “Under Color of Law” ........................................................................ 83

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ii. The Final Rule Adopts an Unworkably Narrow Definition of

Acquiescence. ................................................................................................. 85

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J. The Final Rule Unfairly Diminishes Confidentiality Protections for Asylum-

12

Seekers. ..................................................................................................................... 88

13 III. The Final Rule Is Invalid Because Wolf Is Not Lawfully Serving as Acting

14

Secretary of Homeland Security. ...................................................................................... 91

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A. EO 13753 and the DHS Orders of Succession.......................................................... 95

16

B. Wolf Is Not Lawfully Serving as Acting Secretary of Homeland Security.............. 99

C. The DOJ Regulations Must Be Vacated Along with the DHS Regulations. .......... 100 17
IV. The Notice of Proposed Rulemaking and 30-Day Comment Period Did Not

18

Provide Adequate Time For Public Comment and Thus Rendered The Final Rule

19

Invalid From The Start.................................................................................................... 102

20 V. The Final Rule Is Impermissible Because of Its Potentially Retroactive Effect............. 104

21 VI. The Final Rule Harms Plaintiffs by Frustrating Their Missions and Necessitating

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the Diversion of Resources. ............................................................................................ 107

A. The Final Rule Frustrates Plaintiffs’ Missions. ...................................................... 108 23
i. The Final Rule Frustrates the Legal Services Plaintiffs’ Missions............... 108

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ii. The Final Rule Frustrates the Community Services Plaintiffs’ Missions..... 111

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B. The Final Rule Forces Plaintiffs to Divert Resources from Core Programs

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and Services. ........................................................................................................... 112

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i. The Final Rule Diverts the Legal Services Plaintiffs’ Resources................. 112

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ii. The Final Rule Diverts the Community Services Plaintiffs’ Resources....... 114

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C. The Final Rule Jeopardizes Plaintiffs’ Funding...................................................... 116

2 CLAIMS FOR RELIEF .............................................................................................................. 117 3 PRAYER FOR RELIEF ............................................................................................................. 123

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1

Plaintiffs Immigration Equality, Oasis Legal Services, The TransLatin@ Coalition, Black

2 LGBTQIA+ Migrant Project (“BLMP”), and Transgender Law Center (collectively, “Plaintiffs”), by

3 and through their attorneys, hereby file this complaint for declaratory and injunctive relief against

4 defendants United States Department of Homeland Security; Pete Gaynor, in his official capacity, if

5 any, as Acting Secretary of the Department of Homeland Security; Chad F. Wolf, in his official capacity

6 as purported Acting Secretary of Homeland Security; United States Department of Justice; William P.

7 Barr, in his official capacity as Attorney General; Executive Office for Immigration Review; James

8 McHenry, in his official capacity as Director of the Executive Office for Immigration Review; U.S.

9 Citizenship and Immigration Services; and Kenneth T. Cuccinelli, in his official capacity as purported

10 Acting Director of U.S. Citizenship and Immigration Services (collectively, “Defendants”), and allege

11 as follows:

12

INTRODUCTION

13

1. “Give me your tired, your poor, your huddled masses yearning to breathe free,

14 The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp

15 beside the golden door!” Those are the words indelibly inscribed on the pedestal of the Statue of Liberty

16 that embody core values of our country. They are emblematic of the United States’ historic and

17 longstanding commitment to serve as a beacon of liberty, where those who are persecuted across the

18 world are welcome to build a home and aspire for greater opportunity, free from abuse, violence, and

19 torture.

20

2. Yet, even as the sun sets on this administration, Defendants seek to burn the safe house

21 down by promulgating a series of regulations that drastically change the asylum system in our country

22 and make it virtually impossible for those who seek asylum within our shores to obtain it.

23

3. Plaintiffs are nonprofit organizations who serve LGBTQ/H1 immigrants from across the

24 world seeking asylum or other forms of relief in the United States because they fear that, if deported,

25

26 1 LGBT is the abbreviation for lesbian, gay, bisexual, and transgender. “Q” recognizes those who identify as queer or questioning. “I” refers to those who identify as intersex, and “A” refers to those
27 who identify as asexual or agender. “+” is used to recognize those whom the other letters do not necessarily describe, such as nonbinary or gender nonconforming individuals but who nonetheless are
28 sexual or gender diverse individuals. Throughout this Complaint, Plaintiffs use “LGBTQ” as an

1

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Case 3:20-cv-09258-DMR Document 1 Filed 12/21/20 Page 8 of 130

1 they will be persecuted, tortured, or killed on account of their sexual orientation, gender identity, gender

2 expression, or HIV-positive status. These LGBTQ/H asylum seekers have different backgrounds; are

3 Latinx or Black, or of other ethnic or racial backgrounds; and are of different religions, if any. As

4 organizations committed to serving LGBTQ/H asylum seekers, Plaintiffs’ very missions and existence

5 are threatened by this administration’s discriminatorily motivated regulations, forcing Plaintiffs to fight

6 back. In bringing this action, Plaintiffs seek to enjoin Defendants from enforcing an infirm regulatory

7 scheme that will have a devastating impact on their ability to obtain asylum for their clients who fear

8 life-threatening persecution.

9

4. For decades, the asylum laws of the United States have promised “a fair and workable

10 asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other

11 nations and with our obligations under international law.” H.R. Rep. No. 96-608, at 17-18 (1979).

12 Congress codified this promise in the Refugee Act of 1980, implementing the United States’

13 responsibilities under the 1967 United Nations Protocol Relating to the Status of Refugees (“1967

14 Protocol”) and 1951 Convention Relating to the Status of Refugees (“1951 Convention”) and

15 proclaiming a “historic policy of the United States to respond to the urgent needs of persons subject to

16 persecution in their homelands, including, where appropriate, . . . admission to this country of refugees.”

17 Pub. L. No. 96-212, § 101(a), 94 Stat 102 (1980). Each year, the United States grants tens of thousands

18 of asylum applications, necessarily finding that these applications have merit and that the applicants’

19 fears of persecution are genuine. See U.S. Department of Homeland Security, 2019 Yearbook of

20 Immigration Statistics, Table 16. Individuals Granted Asylum Affirmatively or Defensively: Fiscal

21 Years 1990 to 2019, https://www.dhs.gov/immigration-statistics/yearbook/2019/table16. The stakes

22 could not be higher for those seeking refuge from persecution and torture in the United States.

23

5. The question in this case is whether the outgoing administration, without adequate public

24 notice or comment, should now be permitted to upend this basic promise, contrary to congressional

25 intent and this Nation’s fundamental values. As a new administration prepares to take the reins in only

26 a few weeks, the Defendants, all agencies and sub-agencies of the federal government and their

27 umbrella term to be read as inclusive of all people with these sexual or gender identities, and use 28 LGBTQ/H to refer to LGBTQ people together with people who are living with HIV.

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1 purported principal officers, evidently are determined to rush through a suite of ill-conceived regulations

2 designed to choke off access to asylum for most applicants. See Procedures for Asylum and Withholding

3 of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80,274 et seq. (Dec. 11, 2020)

4 (the “Final Rule”). Taken individually, the Final Rule’s provisions and sub-provisions variously

5 contravene the Immigration and Nationality Act, fail to pass the Administrative Procedure Act’s

6 minimum threshold for reasoned decision-making, and violate multiple guarantees of the United States

7 Constitution. That alone is grounds for this Court to grant the relief requested by Plaintiffs here. But

8 when these provisions are examined together, their overall design becomes clear: to inflict maximum

9 violence on the United States asylum system in a death by a thousand cuts.

10

6. From the very first paragraphs of their joint notice of proposed rulemaking, the

11 Departments of Homeland Security and Justice (together, the “Departments”) set an agenda of

12 exclusion. They declare “the laws and policies surrounding asylum” to be “an assertion of a

13 government’s right and duty to protect its own resources and citizens, while aiding those in true need of

14 protection from harm.” 85 Fed. Reg. at 36,265 (emphasis added); see also 85 Fed. Reg. 80,274. They

15 go on to invoke “ancient principles” of “nation-states” that “the power to exclude aliens is inherent in

16 sovereignty” and “necessary for . . . defending the country against foreign encroachments and dangers.”

17 85 Fed. Reg. at 36,265 (cleaned up). These sentiments echo those expressed elsewhere by the current

18 administration, which since its earliest days has viewed asylum as “a ruse to enter the country illegally.”

19 U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks to the Executive Office for

20 Immigration Review (Oct. 12, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

21 sessions-delivers-remarks-executive-office-immigration-review/. True to this worldview, the sprawling

22 Final Rule treats migrants as “foreign encroachments,” erecting onerous new obstacles to asylum at

23 every stage of the process.

24

7. Plaintiffs typically serve thousands of clients each year, whose individual cases each

25 demand significant time, attention, and expertise.

26

8. The Final Rule would have a particularly devastating impact on Plaintiffs’ clients and

27 members, as well as other LGBTQ/H claimants seeking asylum in the United States. For example, the

28 3
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1 Final Rule apparently excludes gender as a basis for asylum relief, which has the potential for altogether

2 eliminating asylum relief for LGBTQ/H applicants. The Final Rule additionally eliminates asylum relief

3 for many individuals who are targets of individualized personal animus. This measure will devastate

4 the many LGBTQ/H asylum applicants who have faced persecution at the hands of people who act on

5 societally and governmentally sanctioned animosities against LGBTQ/H people. The Final Rule further

6 harms LGBTQ/H asylum seekers by sharply limiting the circumstances in which applicants may claim

7 asylum after passing through third countries (many of which are as persecutory of LGBTQ/H individuals

8 as claimants’ home countries) or after being in the United States for more than one year (even though

9 many LGBTQ/H claimants experience circumstances that render their claims timely).

10

9. The Final Rule will also preclude Plaintiffs from even reaching many of the LGBTQ/H

11 individuals they would otherwise serve by leading to pretermission of their claims before they can obtain

12 Plaintiffs’ assistance. Furthermore, the Final Rule has forced, and, if allowed to take effect, will

13 continue to force, Plaintiffs to divert their already stretched resources away from their core mission in

14 order to adapt to the Final Rule’s requirements and mitigate its drastic and deleterious impact on

15 LGBTQ/H asylum seekers.

16

10. The Final Rule and the individual provisions challenged here should be stricken as

17 unlawful in numerous respects.

18

11. First, multiple provisions of the Final Rule directly contradict or exceed Defendants’

19 statutory authority under the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§ 1101

20 et seq. (the “INA”), or are otherwise not in accordance with law in violation of the Administrative

21 Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), (C). In the INA, Congress set forth comprehensive

22 standards governing eligibility for, and grants and denials of, asylum and withholding of removal. See

23 8 U.S.C. §§ 1158, 1231(b)(3). Similarly, Congress has directed “the appropriate agencies” to “prescribe

24 regulations to implement the obligations of the United States under Article 3 of the United Nations

25 Convention Against Torture,” (“CAT”) thereby requiring that such regulations at least satisfy the

26 minimum thresholds prescribed under CAT. See Foreign Affairs Reform and Restructuring Act of 1998,

27 Pub. L. No. 105-277, Div. G, Title XXII, § 2242(b), 112 Stat. 2681-822 (1998) (codified as a note to 8

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1 U.S.C. § 1231 (1999)). The Final Rule cavalierly ignores many of these carefully drafted provisions

2 and renders others superfluous, all to the detriment of those fleeing persecution and torture, including

3 because of their sexual orientation, gender identity, gender expression, or HIV status. Among other

4 things, the Final Rule:

5

 All but erases the ability of adjudicators to grant asylum or withholding of removal because

6

of an applicant’s gender, which may be interpreted by authorities as including LGBTQ

7

asylum seekers;

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 Generally precludes asylum or withholding of removal where the applicant’s claim of

9

persecution is based on “interpersonal animus,” even though virtually all instances of

10

persecution, particularly against LGBTQ/H refugees, involve some form of interpersonal

11

animus, 8 C.F.R. §§ 208.1(f)(1)(i)-(ii), 1208.1(f)(1)(i)-(ii) (proposed);

12

 Effectively requires adjudicators to deny asylum if the applicant accrued one year or more

13

of unlawful presence, ignoring congressionally enacted exceptions to the one-year filing

14

deadline, 8 C.F.R. §§ 208.13(d)(2)(D), 1208.13(d)(2)(D) (proposed);

15

 Generally eliminates adjudicators’ discretion to grant asylum if an applicant traveled through

16

more than one third country, or was present in any third country for more than 14 days,

17

contrary to the more narrowly drawn firm resettlement bars found in the INA, 8 C.F.R. §§

18

208.13(d)(2)(A), (B), 1208.13(d)(2)(A), (B) (proposed);

19

 Bars asylum seekers under the firm resettlement doctrine based on a definition of “firm

20

resettlement” that does not comport with the statute’s plain language, 8 C.F.R. §§ 208.15(a),

21

1208.15(a) (proposed);

22

 Eliminates in most cases the discretion of immigration judges or the Board of Immigration

23

Appeals (“BIA”) to consider certain arguments on a motion to reopen or reconsider—for

24

example, newly articulated “particular social group” claims based on “changed country

25

conditions,” contrary to Congress’s dictate that a motion to reopen may be filed based on

26

changed country conditions, and even though country conditions for LGBTQ/H refugees are

27

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1

subject to change in today’s ever-shifting human rights regimes, 8 C.F.R. §§ 208.1(c),

2

1208.1(c) (proposed);

3

 Authorizes immigration judges to deny certain asylum applications without a hearing, with

4

little or no notice or opportunity for applicants to cure any defects in their application, 8

5

C.F.R. § 1208.13(e) (proposed);

6

 Overrides the statutory authority of adjudicators to consider all record evidence, including

7

cultural evidence pertaining to the treatment of LGBTQ/H people in the applicant’s country

8

of origin, 8 C.F.R. §§ 208.1(g), 1208.1(g) (proposed); and

9

 Promulgates regulations under the CAT that contradict its plain text and undermine its

10

fundamental objectives, 8 C.F.R. §§ 208.18, 1208.18 (proposed).

11

12. Second, the Final Rule’s provisions are arbitrary and capricious in violation of the APA.

12 It is a foundational principle of administrative law that an agency must articulate a satisfactory

13 explanation for its action including a rational connection between the facts found and the choice made.

14 The Departments’ published rulemaking for the Final Rule, however, falls woefully short of this

15 standard: most of the provisions of the Final Rule challenged here do not even attempt to specify what

16 problem they are attempting to solve, what facts or data support the actions taken, or how the new

17 regulations adhere to congressional intent and comport with the structure and purposes of the INA.

18 Defendants’ Final Rule would repeal longstanding policies, some decades old, while Defendants have

19 utterly failed to display the necessary awareness that they are changing these policies, let alone provided

20 a reasoned explanation for doing so.

21

13. Defendants also thoroughly violated the APA by failing to respond to the public

22 comments they received, including the many submitted by legal assistance organizations with expertise

23 in this area of law expressing serious concerns about how the Final Rule will impact the most vulnerable

24 refugees, including LGBTQ/H refugees. Despite the ad hoc justifications that Defendants have offered

25 for the provisions of this colossal rule, it is apparent that every aspect of the Final Rule has a single

26 principal purpose: to deny asylum as much as possible, regardless of the underlying merits of an

27 application or any other public policy considerations.

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1

14. For example, in addition to the actions already enumerated above (which are themselves

2 arbitrary and capricious), the Final Rule arbitrarily and capriciously:

3

 Eliminates the discretion of adjudicators to hold that laws such as those making it a crime to

4

be gay, Christian, or Jewish are inherently persecutory even if not consistently enforced, 8

5

C.F.R. §§ 208.1(e), 1208.1(e) (proposed);

6

 Shifts the burden onto many applicants to prove that internal relocation in their home country

7

would not have been reasonable, and requires adjudicators to consider factors that are

8

outright irrational in determining whether internal relocation would have been reasonable, 8

9

C.F.R. §§ 208.13(b)(3), 1208.13(b)(3), 208.16(b)(3), 1208.13(b)(3) (proposed);

10

 Harshly penalizes applicants who traveled through a third country without applying for

11

protection there, even if the applicants would have been at risk of persecution or torture in

12

the third country, 8 C.F.R. §§ 208.13(d)(1), 1208.13(d)(1) (proposed); and

13

 Reduces confidentiality protections, potentially discouraging meritorious applicants or their

14

supporting witnesses from coming forward, particularly for LGBTQ/H applicants, 8 C.F.R.

15

§§ 208.6, 1208.6 (proposed).

16

15. Third, the Final Rule violates the Due Process Clause of the Fifth Amendment of the

17 United States Constitution. It is well-established that the Due Process Clause’s guarantees of effective

18 assistance of counsel and procedural due process apply to asylum seekers in removal proceedings.

19

16. The Final Rule abridges these constitutional guarantees by (a) authorizing immigration

20 judges to pretermit asylum applications without a hearing and without affording applicants a reasonable

21 opportunity to cure, and (b) preventing applicants from asserting new arguments related to their

22 particular social group membership in a motion to reopen, motion to reconsider, or on appeal, even if

23 their failure to do so in their initial application was due to counsel’s ineffectiveness, with some limited

24 exceptions. These abridgements of rights uniquely devastate Plaintiffs because, among other reasons,

25 LGBTQ/H claimants frequently fear identifying with their particular social group in their initial public

26 filings.

27

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1

17. Fourth, Defendants have acted improperly by muddling their responses as to whether the

2 Final Rule’s multitude of provisions are retroactive and have created confusion by refusing to state

3 whether particular regulatory changes are retroactive or not. Moreover, insofar as the Final Rule may

4 be applied retroactively, such retroactive application will deprive applicants of full and fair notice of the

5 procedures and standards used in evaluating their claims and will thereby result in a manifest injustice

6 offensive to the Due Process Clause.

7

18. Fifth, under the APA, when undertaking agency action like promulgating the Final Rule,

8 the agencies must: (1) assess whether there are reliance interests; (2) determine whether they are

9 significant; (3) weigh any such interests against competing policy concerns; and (4) consider whether it

10 has flexibility in addressing such reliance interests. Defendants have not done so here and therefore

11 have violated their APA obligations. The Final Rule upsets well-founded expectations. Rather than

12 balance these reliance interests against any competing alternatives, the Departments ignored them.

13

19. Sixth, the Final Rule was promulgated in violation of the Appointments Clause of the

14 United States Constitution, the Homeland Security Act of 2002 (“HSA”), and the Federal Vacancies

15 Reform Act of 1998 (“FVRA”). Chad Wolf, who purported to issue the proposed rule (through a

16 delegation to Chad Mizelle, Senior Official Performing the Duties of the General Counsel, U.S.

17 Department of Homeland Security) and the Final Rule, has not been confirmed by the United States

18 Senate to the position of Secretary of Homeland Security and is not lawfully serving as Acting Secretary

19 of Homeland Security. Consequently, all provisions of the Final Rule that purport to be promulgated

20 by DHS are null and void.

21

20. In addition, because the DHS regulations are non-severable from the Final Rule as a

22 whole, and because the Final Rule would itself be arbitrary and capricious if it established two

23 incompatible standards for asylum between the DOJ and DHS, the remaining DOJ regulations must be

24 held invalid under the APA as well.

25

21. Seventh, Defendants steamrolled the Final Rule to publication without permitting

26 sufficient time for public comment. The Final Rule is therefore invalid as having issued “without

27 observance of procedure required by law” under the APA. 5 U.S.C. § 706(2)(D). The 30 days provided

28 8
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1 by Defendants would be considered the minimum amount of time necessary for any proposed rule in

2 ordinary circumstances. However, the notice of proposed rulemaking in this case was anything but

3 ordinary; spanning approximately 51,000 words of the Federal Register, it is a remarkably lengthy and

4 complicated document, touching nearly every aspect of the nation’s asylum system and overruling

5 decades of agency policy and established precedent. Moreover, Defendants promulgated the notice of

6 proposed rulemaking amidst a global pandemic with countless people working from home, many of

7 whom have no childcare, some of whom became ill with COVID-19, and others whose family members

8 became ill with COVID-19. Given these factors, as well as the size and complexity of the proposed

9 rule, a 30-day period for public comment was insufficient as a matter of law.

10

22. In sum, the Final Rule is inconsistent with the INA; is arbitrary and capricious under the

11 APA; contravenes the Fifth Amendment’s guarantees of procedural due process and effective assistance

12 of counsel; is unlawful insofar as it applies retroactively to pending applications, under both the

13 principles of due process and the APA; violates the Appointments Clause, FVRA, and HSA; and was

14 promulgated without observance of the procedures required by the APA. The Final Rule jeopardizes

15 Plaintiffs’ ability to carry out their missions and places their clients and members, and countless others

16 who have filed or have yet to file, at grave risk of persecution, torture, or death if their applications are

17 denied and they are removed. This Court should hold the Final Rule unlawful, set it aside, and enjoin

18 its enforcement and implementation.

19

JURISDICTION AND VENUE

20

23. This case arises under the APA, 5 U.S.C. § 701 et seq., the INA, 8 U.S.C. § 1101 et seq.,

21 the FVRA, 5 U.S.C. § 3345 et seq., the HSA, 6 U.S.C. § 101 et seq., and the Fifth Amendment to the

22 United States Constitution.

23

24. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this action

24 arises under the laws of the United States and United States Constitution; 28 U.S.C. § 1346, as a civil

25 action against the United States founded upon the Constitution, an Act of Congress, or an executive

26 regulation; and 28 U.S.C. § 1361, as an action to compel an officer or agency to perform a duty owed

27 to plaintiffs.

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1

25. Jurisdiction is also conferred on this Court pursuant to 5 U.S.C. §§ 701-706.

2 Defendants’ issuance of the Final Rule on December 11, 2020, constitutes a final agency action that is

3 subject to judicial review under 5 U.S.C. §§ 702, 704, and 706, and Plaintiffs are aggrieved by adverse

4 agency action which this Court is authorized to remedy under the APA, 5 U.S.C. §§ 702 et seq.

5

26. An actual controversy exists between the parties within the meaning of 28 U.S.C. §

6 2201(a), and this Court may grant declaratory, injunctive, and other relief pursuant to 28 U.S.C. §§

7 2201-2202 and 5 U.S.C. §§ 705-706.

8

27. Plaintiffs seek costs and fees pursuant to the Equal Access to Justice Act, 5 U.S.C. §

9 504 and 28 U.S.C. §§ 2412(2) et seq.

10

28. Venue is proper under 28 U.S.C. § 1391(e)(1) because Defendants are agencies of the

11 United States and officers of the United States acting in their official capacity and because Plaintiffs

12 Oasis Legal Services, BLMP, and the Transgender Law Center have their principal place of business

13 and reside within this judicial district under 28 U.S.C. § 1391(c)(2); and a substantial part of the events

14 or omissions giving rise to Plaintiffs’ claims occurred within this District under 28 U.S.C. § 1391(b)(2).

15

INTRADISTRICT ASSIGNMENT

16

29. This is an Administrative Procedures Act and constitutional action subject to district-

17 wide assignment pursuant to Local Rules 3-2(c) and 3-5(b).

18

THE PARTIES

19

A. Plaintiffs Provide Services to LGBTQ/H Refugees

20

30. Plaintiffs include three legal services organizations (Immigration Equality, Oasis Legal

21 Services, and the Transgender Law Center) that provide direct legal services and representation to

22 LGBTQ/H immigrants seeking asylum or other forms of relief in the United States. Their clients fear

23 that, if deported, they will be persecuted or tortured on account of their sexual orientation, gender

24 identity, gender expression, or HIV status. Plaintiffs also include two nonprofit membership

25 organizations (the TransLatin@ Coalition and BLMP) that provide a wide range of services to LGBTQ

26 Latinx and Black migrants, including asylum seekers. The TransLatin@ Coalition also provides direct

27

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1 legal services and representation to transgender Latinx immigrants seeking asylum or other forms of

2 relief in the United States.

3

31. Plaintiffs Immigration Equality, Oasis Legal Services, the TransLatin@ Coalition, and

4 the Transgender Law Center (together, “Legal Services Plaintiffs”) assert claims on their own behalf

5 and also on behalf of their clients and recipients of legal services, who face barriers to asserting their

6 own claims and protecting their own interests.

7

32. Plaintiffs the TransLatin@ Coalition and BLMP (together, “Community Services

8 Plaintiffs”) assert claims on their own behalf, on behalf of their individual members, and on behalf of

9 their clients and recipients of community services, who face barriers to asserting their own claims and

10 protecting their own interests.

11

33. Plaintiffs assert varied but complementary interests and share the common objective of

12 maintaining an effective, functioning asylum system that protects LGBTQ/H migrants’ ability to obtain

13 asylum or other forms of relief.

14

i.

Plaintiff Immigration Equality

15

34. Plaintiff Immigration Equality is a nonprofit national legal organization based in

16 Brooklyn, New York, whose mission is to promote equality and justice for LGBTQ/H immigrants and

17 families through direct legal services, policy advocacy, and impact litigation. For more than 26 years,

18 Immigration Equality has worked to secure safety and freedom for LGBTQ/H individuals fleeing

19 persecution, as well as to reunite LGBTQ bi-national couples and families. In order to effectuate its

20 mission, Immigration Equality runs a pro bono asylum project, provides technical assistance to

21 attorneys, maintains an informational website, and fields questions from LGBTQ/H individuals from

22 around the world. Additionally, through education, outreach and advocacy, Immigration Equality works

23 to change the laws that unfairly impact LGBTQ/H immigrants. Immigration Equality regularly

24 represents and provides mentoring to pro bono attorneys representing detained asylum seekers.

25 Immigration Equality’s client population is uniquely vulnerable, as they live under the threat of

26 deportation, poverty, and homelessness, and many suffer from trauma-related mental health issues.

27 Ninety-nine percent (99%) of Immigration Equality’s clients live at or below 250% of the federal

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1 poverty level and approximately 44% are under the age of 30. Its clients reside throughout the United

2 States and come from all parts of the world with current clients primarily originating from the following

3 countries: Jamaica, Russia, Nigeria, Honduras, Venezuela, Mexico, El Salvador, Uganda, Guyana,

4 Ecuador, and Georgia.

5

35. Legal services are the foundation of Immigration Equality’s programming, and since

6 1994, Immigration Equality has provided advice and legal assistance to thousands of LGBTQ/H

7 immigrants, binational couples, and families. Immigration Equality currently has a nine-person legal

8 team consisting of: one part-time and three full-time staff attorneys, three paralegals, one BIA accredited

9 representative, and a Legal Director. Through its programming, Immigration Equality has helped over

10 1,200 LGBTQ/H asylum seekers win asylum, withholding of removal, or CAT relief. Immigration

11 Equality clients have maintained a remarkable success rate, prevailing on adjudicated cases

12 approximately 99% of the time.

13

36. As of November 23, 2020, Immigration Equality had 639 open matters comprised of 21

14 in-house cases being handled entirely by Immigration Equality staff (the “In-House Program”) and 618

15 cases placed with volunteer attorneys (the “Pro Bono Program”). Of these matters, close to 520 are

16 asylum, withholding of removal, or CAT cases. Around 420 are affirmative proceedings before USCIS

17 and approximately 100 cases are defensive proceedings before the Executive Office for Immigration

18 Review (“EOIR”). Over the last twelve months, Immigration Equality has provided representation to a

19 total of 793 individuals across 28 states through its In-House Program and Pro Bono Program. In

20 addition, Immigration Equality has accepted an additional 31 asylum seekers into its Pro Bono Program

21 and is in the process of placing these cases with pro bono counsel. Around 15 clients in the Pro Bono

22 Program have not yet filed their I-589, Applications for Asylum and Withholding of Removal (“Asylum

23 Application”).

24

ii. Plaintiff Oasis Legal Services

25

37. Plaintiff Oasis Legal Services (“Oasis”) is nonprofit legal organization headquartered in

26 Berkeley, California. Oasis’s mission is to provide direct legal services and holistic case management

27 to LGBTQ+ asylum seekers living within the jurisdiction of the USCIS San Francisco Asylum Office.

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1 Given California’s proximity to Mexico and Central America, over 95% of Oasis’s clients are Latinx.

2 Oasis also serves clients from Asia, Africa, the Middle East, and the Caribbean. Oasis’s clients are

3 undocumented immigrants, low-income people of color, and victims of hate crimes. All of Oasis’s

4 clients have endured horrific violence in their countries of origin because of their sexual orientation,

5 gender identity, gender expression, or HIV-positive status.

6

38. During the past three years, Oasis has represented over 900 LGBTQ+ asylum seekers.

7 Oasis also collaborates with dozens of organizations and provides case management and wrap-around

8 services to meet the needs of its clients holistically. In addition to direct representation, Oasis provides

9 training, sample documentation and briefs, and direct mentorship to lawyers locally and nationally

10 representing LGBTQ+ asylum seekers.

11

iii. Plaintiff The TransLatin@ Coalition

12

39. Plaintiff The TransLatin@ Coalition (“the Coalition”) is a nationwide nonprofit

13 membership organization that advocates for the interests of transgender and gender nonconforming

14 individuals, particularly Latinx immigrants, and provides direct services to the transgender community,

15 including leadership development, legal services, educational services, and employment services. The

16 Coalition currently has a presence in Los Angeles, California; Washington, D.C.; Chicago, Illinois; New

17 York, New York; Atlanta, Georgia; Houston, Texas; and Tucson, Arizona. The Coalition and its

18 members advocate for policy changes at the local, state, and federal levels, and conduct research

19 regarding homelessness, health and healthcare, and employment in the transgender Latinx immigrant

20 community.

21

40. The Coalition has thousands of individual members across the United States, including

22 transgender and gender nonconforming Latinx immigrants who have or are seeking asylum or other

23 forms of relief due to the persecution they have experienced in their countries of origin. This includes

24 individual transgender and gender nonconforming Latinx members such as Bamby Salcedo, who resides

25 in California, and Arianna Lint, who resides in Florida. Ms. Salcedo immigrated to the United States

26 from Mexico and was granted statutory withholding of removal based on the persecution she faced in

27 Mexico due to her being transgender and failure to conform with gender stereotypes prevalent in her

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1 country of origin. Ms. Lint immigrated to the United States from Peru and was granted relief based on

2 the persecution she encountered as a result of her being transgender and failing to conform to gender

3 stereotypes prevalent in her country of origin. The Coalition’s membership also includes leaders of

4 affiliated community organizations that serve Latinx transgender and gender nonconforming people

5 across the country, such as Arianna’s Center headquartered in Florida and with offices in Puerto Rico.

6

41. Through its Center for Violence Prevention & Transgender Wellness located in Los

7 Angeles, California, the Coalition also provides direct services to transgender, gender nonconforming,

8 and intersex people, including: community drop-in spaces; daily food distribution; re-entry services to

9 people recently released from incarceration and immigration detention, including rental assistance,

10 transportation and food vouchers; English as a Second Language (ESL) classes; leadership and

11 workforce development education and training programs; emergency and transitional housing; case

12 management; referrals to health care providers and organizations that provide competent and affirming

13 health care services to its members and patrons, including gender affirming care; and, most notably,

14 immigration-focused legal services.

15

42. The Coalition’s Legal Services Project serves community members who are transgender,

16 nonbinary, and gender nonconforming, with a focus on undocumented immigrants, who tend to be low-

17 income people of color and victims of human rights violations. Many of its clients have survived years

18 of trauma in their country of origin as a result of their gender identity or gender expression. The

19 Coalition’s Legal Services Project also works hand in hand with a team of case workers at the Coalition

20 to help its clients navigate life and succeed in the United States. For example, the Coalition has an Anti-

21 Violence Program, Reentry Program, Workforce Development and Emergency Housing (H.O.P.E

22 House) and assists clients with applying for Refugee Cash Assistance, Refugee Medical Assistance or

23 Medi-Cal, Refugee Support Services, CalWORKs, CalFresh, Supplemental Security Income/State

24 Supplemental Payment, Social Security Cards, and California Identification/California Drivers

25 Licenses. The Coalition’s Legal Services Project is composed of one legal director and a staff attorney.

26 It also refers cases to a few pro bono attorneys from those that it has screened. As of the final quarter

27 of 2020, the Coalition’s Legal Services Project has several affirmative asylum cases and is preparing a

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1 number of defensive asylum cases for hearings in 2021. The Coalition’s Legal Services Project is also

2 working to obtain green cards for a few recipients of asylum and U-Visas (which are given to victims

3 of crimes involving physical or mental abuse who are cooperating with law enforcement).

4

iv. Plaintiff Black LGBTQIA+ Migrant Project

5

43. The Black LGBTQIA+ Migrant Project (“BLMP”) was formed in response to the

6 invisibilization of Black LGBTQIA+ migrants’ experiences of being undocumented, queer, and Black

7 within migrant narratives, immigration justice, and racial justice movements. BLMP works at the local,

8 regional, and national level to face multifaceted and intensifying attacks on their communities, they

9 organize community and movement building events around the country to reduce isolation, create

10 support systems for trans and queer Black migrants, provide support and resources for detained Black

11 migrants, and build leadership and local power to defend Black LGBTQIA+ communities. BLMP

12 engages hundreds of LGBTQIA+ Black migrants across the United States and has local/regional

13 networks centered in Oakland, California; New York, New York; the Upper Midwest (Minneapolis-

14 Saint Paul, Minnesota, Chicago, Illinois, and Detroit, Michigan); Washington D.C., Maryland, and

15 Virginia (DMV), and the South. BLMP has a full-time staff of 4 plus 2 part-time staff members, and

16 also employs 5 consultants. BLMP also has a steering committee of 11 members, who have been

17 directly impacted by the immigration system and includes current asylum seekers. It has also launched

18 the Queer Black Migrant Survey, a research project to collect qualitative and quantitative data on Black

19 LGBTQIA+ migrants’ experiences. Its policy work includes congressional briefings on LGBTQIA+

20 migrants in detention and Black migrant experiences during the COVID-19 pandemic.

21

44. Since 2019, BLMP has provided services and assistance to more than 400 individuals.

22 100% of BLMP’s members identify as LGBTQIA+ and 60% are asylum seekers or have been granted

23 asylum. BLMP provides services to community members who are seeking asylum or other forms of

24 immigration relief in the United States because they fear that, if deported, they will be persecuted or

25 tortured because of their sexual orientation, gender identity, gender expression, or HIV status.

26

45. BLMP has over 250 members who are located across the United States. BLMP’s

27 membership is comprised of directly impacted individuals who are disproportionately low-income, have

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1 experienced homelessness and unstable housing, trauma history, and discrimination and stigmatization

2 because of their race, immigration status, sexual orientation, gender identity, gender expression, or HIV

3 status. BLMP’s membership includes asylum seekers who have either received asylum or have filed

4 applications for asylum or other immigration relief, and individuals who are in immigration detention

5 facilities. Many of BLMP’s members have been detained in detention facilities or are currently in

6 detention facilities. BLMP’s members have access to its programs and for those in need, they also

7 receive financial assistance.

8

46. BLMP leads trainings and community gatherings throughout the United States focused

9 on transformative community organizing, healing practices to address trauma, and know your rights

10 trainings for when dealing with police and the immigration system, the asylum system, and working

11 with traumatized populations. Its services include organizing campaigns in support of detained

12 community members for their release and to help them connect with local support when they are

13 released, and cash assistance and mutual aid for necessities such as housing, food, medical care, and

14 clothing. BLMP provides direct support to detained members such as: connecting them with

15 immigration legal services; cash assistance for commissary; interpretation support by connecting their

16 attorneys to interpreters; and expert witnesses for their asylum cases by connecting their attorneys to

17 advocates who have expertise in different countries of origin. BLMP also provides information to its

18 detained members on what they can do pro se by facilitating conversations between the detained person

19 and a competent attorney who can offer legal advice. BLMP provides to its non-detained members

20 additional resources, such as webinars and trainings regarding policies that impact their lives and

21 immigration cases, connecting them to legal consultations for their cases, mutual aid assistance via its

22 intake process, access to wellness services, and connecting them to mental health professionals.

23

v. Plaintiff Transgender Law Center

24

47. The Transgender Law Center (“the Center”) is a national trans-led nonprofit legal

25 organization founded in 2002 and headquartered in Oakland, California. The Center has satellite offices

26 in Tijuana, Mexico, Atlanta, Georgia, and New York, New York. Grounded in legal expertise and

27 committed to racial justice, the Center employs a variety of community-driven strategies to keep

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1 transgender and gender nonconforming (“TGNC”) people alive, thriving, and fighting for liberation.

2 The Center builds power within TGNC communities, particularly communities of color and those most

3 marginalized, and lays the groundwork for a society in which all people can live safely, freely, and

4 authentically regardless of gender identity or expression. The Center works to achieve this goal through

5 leadership development and by connecting TGNC people to legal resources. It also pursues impact

6 litigation and policy advocacy to defend and advance the rights of TGNC people, transform the legal

7 system, minimize immediate threats and harms, and educate the public about issues impacting its

8 communities.

9

48. The Center also participates in a Border Project to assist TGNC refugees. The Border

10 Project’s mission is to nurture and participate in a network of organizations who provide case

11 management, humanitarian aid, direct legal services, and holistic case management to LGBTQ asylum

12 seekers. The Center’s main role in the Border Project is to provide legal information and representation

13 to clients in Tijuana, Mexico, through their arrival and processing in the United States, and then their

14 application for asylum or other forms of relief in the United States. The Center’s Border Project

15 participants come from numerous countries and speak many languages. Despite the many differences

16 that exist, they have the unfortunate commonality of having endured violence and systemic

17 discrimination due to their sexual orientation, gender identity, gender expression, or HIV-positive status

18 in their countries of origin.

19

49. Beyond Tijuana, Mexico, the Center often receives calls for assistance from LGBTQ+

20 identified individuals who are in U.S. detention facilities. These have included Imperial Valley

21 Detention Center and Otay Mesa Detention Center. In those instances, the Center sometimes provides

22 pro se support or limited representation. The Center regularly provides technical assistance in other

23 locations along the border and throughout Mexico and the United States on border policies, LGBTQ+

24 immigration issues, and human trafficking.

25

50. Since the start of its work with the Border Project in November 2019, the Center has

26 represented approximately 150 people. In 2020, the Center engaged with LGBTQ refugees from

27

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1 Russian-speaking nations, Mexico, South American countries, African nations, Iran, Jamaica, Cuba, and

2 Central American nations

3

B. Defendants

4

51. Defendant United States Department of Homeland Security (“DHS”) is a cabinet-level

5 department of the United States federal government.

6

52. Defendant Pete Gaynor (“Gaynor”) is the Administrator of the Federal Emergency

7 Management Administration (“FEMA”), a sub-agency of DHS, serving since January 16, 2020.

8 According to an order of succession established by then-Secretary of Homeland Security Kirstjen

9 Nielsen on April 9, 2019 and Executive Order 13753 issued on December 9, 2016, Administrator Gaynor

10 would have been third in the line of succession to assume the role of Acting Secretary in the event of

11 the Secretary’s resignation, behind the Deputy Secretary of Homeland Security and the Under Secretary

12 for Management. Following Secretary Nielsen’s resignation, the offices of Secretary, Deputy Secretary,

13 and Under Secretary of Management have remained vacant. Administrator Gaynor is currently the

14 highest-ranking official designated as Acting Secretary of Homeland Security under the April 9, 2019

15 order of succession and E.O. 13753. He is sued in his official capacity, if any, as Acting Secretary of

16 Homeland Security.

17

53. Defendant Chad F. Wolf (“Wolf”) is Under Secretary for Strategy, Policy, and Plans at

18 DHS. Since November 13, 2019, Under Secretary Wolf has purported to serve as Acting Secretary of

19 Homeland Security. The Secretary of Homeland Security directs each of the component agencies within

20 DHS, is responsible for the administration of immigration laws pursuant to 8 U.S.C. § 1103, and is

21 empowered to grant asylum and other immigration benefits. In his purported capacity as Acting

22 Secretary of Homeland Security, Wolf, through a purported delegation of authority, issued the Proposed

23 Rule and Final Rule on behalf of DHS. He is sued in his official capacity, if any, as Acting Secretary

24 of Homeland Security.

25

54. Defendant United States Department of Justice (“DOJ”) is a cabinet-level department of

26 the United States federal government.

27

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1

55. Defendant William P. Barr (“Barr”) is the Attorney General of the United States. He is

2 sued in his official capacity. The Attorney General directs each of the component agencies within the

3 DOJ, is responsible for the administration of immigration laws pursuant to 8 U.S.C. § 1103, and is

4 empowered to grant asylum or other relief. In his official capacity, Barr issued the Proposed Rule and

5 the Final Rule on behalf of the DOJ.

6

56. Defendant Executive Office for Immigration Review (“EOIR”) is a sub-agency of the

7 DOJ and is one of the two agencies responsible for implementing the final rule challenged in this suit.

8

57. Defendant James McHenry is the Director of the EOIR. He is sued in his official

9 capacity.

10

58. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is a sub-agency of

11 DHS and is one of the two agencies responsible for implementing the final rule challenged in this suit.

12

59. Defendant Kenneth T. Cuccinelli (“Cuccinelli”) has purported to serve as Acting

13 Director of USCIS since June 10, 2019. He is sued in his official capacity, if any, as Acting Director of

14 USCIS.

15

FACTUAL ALLEGATIONS

16 I. Background

17

A. The United States Asylum System Protects Refugees From Persecution.

18

60. For generations, the United States has been a haven for immigrants seeking opportunity

19 and upward mobility. See, e.g., John F. Kennedy, Nation of Immigrants (1958); Emma Lazarus, The 20 New Colossus (1883) (welcoming “your tired, your poor, your huddled masses”). After the failures of 21 the global community to protect refugees during World War II and the Holocaust, the United States and

22 the international community recognized that “[a]ll human beings are born free and equal in dignity and

23 rights” and that “[e]veryone has the right to seek and to enjoy in other countries asylum from

24 persecution.” The Universal Declaration of Human Rights (Dec. 10, 1948), Art. 1, 14.

25

61. Tracing at least as far back as 1947, the United States has had a “congressionally enacted

26 immigration and naturalization policy which granted immigration preferences to ‘displaced persons,’

27 ‘refugees,’ or persons who fled certain areas of the world because of ‘persecution or fear of persecution

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1 on account of race, religion, or political opinion.’” Rosenberg v. Yee Chien Woo, 402 U.S. 49, 52 (1971).

2 “[T]he basic policy has remained constant—to provide a haven for homeless refugees.” Id.

3

62. The foundational documents for the protection of refugees under international law are

4 the 1951 Convention and the 1967 Protocol. The 1951 Convention endorsed the principle of non-

5 refoulement: that “no one shall expel or return (‘refouler’) a refugee against his or her will, in any

6 manner whatsoever, to a territory where he or she fears threats to life or freedom.” United Nations High

7 Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees, at 3 (2010),

8 https://www.unhcr.org/en-us/3b66c2aa10. The principle of non-refoulement is so fundamental that no

9 reservations or derogations may be made to it; the 1951 Convention forbids states from returning

10 refugees “in any manner whatsoever” to a place where they may face persecution. Id. § 33(1).

11

63. The 1967 Protocol reincorporated the substantive terms of the 1951 Convention, without

12 its geographic and temporal limitations. The United States ratified the 1967 Protocol in 1968.

13

64. The United States implements its obligations under the 1967 Protocol through the

14 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. Under the INA, as amended by the 1980 Act,

15 two related but distinct forms of relief are available: asylum, see 8 U.S.C. § 1158, and statutory

16 withholding of removal, see id. § 1231(b)(3).

17

65. The Attorney General or Secretary of Homeland Security may grant asylum to a person

18 who qualifies as a “refugee” under the INA. See 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined, in

19 relevant part, as “any person who is outside any country of such person’s nationality . . . and who is

20 unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection

21 of, that country because of persecution or a well-founded fear of persecution on account of race, religion,

22 nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42). A person’s

23 fear of persecution is “well-founded” if persecution is a reasonable possibility. Asylum seekers need

24 not show that it is more likely than not that they would suffer persecution; even a 10% chance of

25 persecution may suffice to establish eligibility.

26

66. The asylum statute incorporates careful legislative judgments as to who should and

27 should not be granted asylum. For example, an asylum seeker may apply for asylum regardless of

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1 whether they “arrive[d] in the United States . . . at a designated port of arrival” and “irrespective of such

2 alien’s status.” 8 U.S.C. § 1158(a)(1). And although an asylum seeker must generally apply within one

3 year of entry in the United States (the “One-Year Bar”), Congress specifically waived this filing deadline

4 where “the alien demonstrates . . . either the existence of changed circumstances which materially affect

5 the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an

6 application.” Id. § 1158(a)(2)(B), (D). The Departments may promulgate additional limitations and

7 conditions on eligibility for asylum, but only if they are “consistent with” 8 U.S.C. § 1158. See id. §

8 1158(a)(2)(C).

9

67. Asylum is a benefit that may be granted or denied in the Departments’ discretion. See

10 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). Decades of precedent, however, teach that the

11 danger of persecution should generally outweigh all but the most egregious of adverse factors. In re

12 Pula, 19 I&N Dec. 467, 473-74 (BIA 1987). As the Ninth Circuit remarked, “[i]t is rare to find a case

13 where an IJ finds a petitioner statutorily eligible for asylum and credible, yet exercises his discretion to

14 deny relief.” Gulla v. Gonzales, 498 F.3d 911, 916 (9th Cir. 2007).

15

68. In addition to asylum, withholding of removal is available under 8 U.S.C. § 1231(b)(3),

16 which provides that a refugee may not be removed to a country if “the alien’s life or freedom would be

17 threatened in that country because of the alien’s race, religion, nationality, membership in a particular

18 social group, or political opinion.” The requirements to succeed on a withholding-of-removal claim

19 largely overlap with those required for an asylum claim, except that the burden of proof for a

20 withholding-of-removal claim is a clear probability, i.e., more-likely-than-not. Unlike an asylum claim,

21 a withholding-of-removal claim is not discretionary; it must be granted to applicants who show that they

22 are eligible and it is not subject to the One-Year Bar. 8 CFR § 208.16.

23

69. Finally, the United States is a party to the United Nations CAT. Article 3 of CAT

24 provides that states may not “expel, return (‘refouler’) or extradite a person to another State where there

25 are substantial grounds for believing that he would be in danger of being subjected to torture.”

26

70. Congress has provided that “it shall be the policy of the United States not to expel,

27 extradite, or otherwise effect the involuntary return of any person to a country in which there are

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1 substantial grounds for believing that the person would be in danger of being subjected to torture” and

2 directed “the appropriate agencies” to “prescribe regulations to implement the obligations of the United

3 States under Article 3 of [CAT].” Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.

4 105-277, Div. G, Title XXII, § 2242(a), (b), 112 Stat. 2681-822 (1998) (codified as a note to 8 U.S.C. §

5 1231 (1999)). The regulations implementing the United States’ obligations under CAT are codified at

6 8 C.F.R. §§ 208.16-208.18. Like withholding of removal, a claim for CAT relief must be proven under

7 a more-likely-than-not standard and is not discretionary. 8 C.F.R. §§ 208.16, 1208.16(c)(4) (2006).

8

B. Asylum is Critical to LGBTQ/H Refugees.

9

71. For years, the Departments and the courts have recognized that persecution based on

10 sexual orientation, gender identity, or HIV status is persecution based on “membership in a particular

11 social group,” qualifying such person as a refugee under the INA. See, e.g., Avendano-Hernandez v. 12 Lynch, 800 F.3d 1072, 1082 (9th Cir. 2015); Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005); 13 Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822 (BIA 1990); U.S. Citizenship and Immigration 14 Services, Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) 15 Refugee and Asylum Claims Training Module (Dec. 28, 2011), https://www.uscis.gov/sites/default/files/ 16 document/guides/RAIO-Training-March-2012.pdf.

17

72. This recognition has opened the United States asylum system to thousands of LGBTQ/H

18 refugees faced with violence, torture, and even death in their countries of origin. In 69 countries, same-

19 sex relations are illegal, punishable in many locations by imprisonment, corporal punishment, or death.

20 See International Lesbian, Gay, Bisexual, Trans and Intersex Ass’n, State-Sponsored Homophobia: 21 Global Legislation Overview Update 113-42 (Dec. 2020), https://ilga.org/downloads/ 22 ILGA_World_State_Sponsored_Homophobia_report_global_legislation_overview_update_December

23 _2020.pdf. Other countries impose severe restrictions on freedom of expression in relation to sexual

24 orientation. See id. at 145-63.

25

73. Even in countries without laws formally criminalizing LGBTQ/H identity, expression,

26 or status, individuals in these groups face widespread persecution in the form of arbitrary arrests and

27 detentions, beatings, rape, and murder, both at the hands of law enforcement officials and by private

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1 actors—often relatives of the victim or members of their community—whom law enforcement is unable

2 or unwilling to stop or punish. The United States Department of State, NGOs, and organs of the United

3 Nations have widely documented persecutory conditions in these and other countries. See generally

4 U.N. Human Rights Council, Report of the United Nations High Commissioner for Human Rights on

5 Discriminatory Laws and Practices and Acts of Violence against Individuals based on their Sexual

6 Orientation and Gender Identity (Nov. 17, 2011), https://www.ohchr.org/Documents/Issues/

7 Discrimination/A.HRC.19.41_English.pdf (finding worldwide violations against LGBTQ/H individuals

8 including “killings, rape and physical attacks, torture, arbitrary detention, the denial of rights to

9 assembly, expression and information, and discrimination in employment, health and education.”).

10

74. For example, the U.S. Department of State reports that in Iran, same-sex consensual

11 sexual activity is punishable by death or flogging. Iranian security forces detain people suspected of

12 being LGBTQ, and people accused of sodomy face summary trials, where evidentiary standards are not

13 always met. According to an Iranian NGO, the number of clinics engaging in “corrective treatment” of

14 LGBTQ people is on the rise. These clinics use “electric shock therapy to the hands and genitals of

15 LGBTI persons,” psychoactive medication, and other abusive tactics. U.S. Dep’t of State, Country

16 Reports on Human Rights Practices for 2019: Iran, 49-51 (Mar. 11, 2020), https://www.state.gov/wp-

17 content/uploads/2020/03/IRAN-2019-HUMAN-RIGHTS-REPORT.pdf. In Honduras, 264 murders of

18 LGBTQ people were reported between 2009 and 2017. See Amnesty Int’l, No Safe Place: Salvadorans,

19 Guatemalans, And Hondurans Seeking Asylum In Mexico Based On Their Sexual Orientation And/Or

20 Gender Identity 9 (Nov. 2017), https://www.amnestyusa.org/wp-content/uploads/2017/11/No-Safe-

21 Place-Briefing-ENG-1.pdf. The Russian Republic of Chechnya has unleashed a reign of terror against

22 LGBTQ people, including “extrajudicial killings and mass torture of LGBTI persons,” as “authorities

23 failed to investigate” and “continue[] to deny that there were any LGBTI persons in Chechnya.” U.S.

24 Dep’t of State, 2019 Country Reports on Human Rights Practices: Russia 2 (Mar. 11, 2020),

25 https://www.state.gov/wp-content/uploads/2020/03/RUSSIA-2019-HUMAN-RIGHTS-REPORT.pdf.

26 See also Article, “Chechnya accused of ‘gay genocide’ in ICC complaint,” BBC News (May 16, 2017),

27 https://www.bbc.com/news/world-europe-39937107.

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1

C. Defendants Rushed the Final Rule to Publication.

2

75. On June 15, 2020, the Departments published a joint notice of proposed rulemaking (the

3 “NPRM”), proposing: (i) “changes to the regulations regarding asylum, statutory withholding of

4 removal, and withholding and deferral of removal under the CAT regulations;” (ii) “amendments related

5 to the standards for adjudication of applications for asylum and statutory withholding;” and (iii) certain

6 amendments to the regulations governing credible fear determinations. Procedures for Asylum and

7 Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (June 15,

8 2020). The NPRM was unusually voluminous and touched on nearly every aspect of the asylum system,

9 yet only provided 30 days for public comments, in the midst of an international pandemic no less. See

10 id. at 36,264.

11

76. The NPRM was signed by (a) Defendant Barr; and (b) Chad R. Mizelle under the title

12 “Senior Official Performing the Duties of the General Counsel, U.S. Department of Homeland

13 Security,” pursuant to a purported delegation of authority by Defendant Wolf under the title “Acting

14 Secretary of Homeland Security.” 85 Fed. Reg. at 36,290, 36,306.

15

77. Notwithstanding the very short comment period, over 88,000 interested members of the

16 public, including Plaintiffs, submitted comments, almost all of whom criticized the NPRM for its myriad

17 defects. Many commenters, including Plaintiffs Immigration Equality and Oasis, noted that given the

18 limited time period, their comments were incomplete and did not address all the proposed rule’s flaws

19 and deleterious effects. See Public Comment of Immigration Equality (July 15, 2020), at 8,

20 https://beta.regulations.gov/comment/EOIR-2020-0003-85541; Public Comment of Oasis Legal

21 Services (July 15, 2020), at 2-3, https://beta.regulations.gov/comment/EOIR-2020-0003-78374; see

22 also, e.g., Public Comment of Lambda Legal (July 15, 2020), at 29-30,

23 https://beta.regulations.gov/comment/EOIR-2020-0003-5999.

24

78. On December 11, 2020, the Departments published the Final Rule in the Federal

25 Register, less than five months after it received over 88,000 comments on it, the vast majority opposing

26 the rule.

27

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1 II. The Final Rule Is Invalid Because It Is Contrary To Law And Arbitrary And Capricious

2

79. The Final Rule is contrary to law and arbitrary and capricious because it includes

3 numerous infirm provisions that variously (1) are contrary to the statutes applicable to asylum

4 applications, (2) serve no rational purpose, (3) fail to consider the real-world circumstance to which they

5 apply, (4) are internally inconsistent with other asylum rules, (5) deny due process rights to asylum

6 applicants, and (6) upend decades of established asylum practice without due consideration or

7 explanation.

8

A. The Final Rule Alters Long-Standing Law, Policy, and Practice with Respect to

the INA’s “Nexus” Requirement.

9 80. One of the most destructive changes wrought by the Final Rule is a perversion of a key

10 step in the asylum analysis, the requirement that an asylum seeker establish that they have suffered or

11 fear persecution “on account of race, religion, nationality, membership in a particular social group, or

12 political opinion” (8 U.S.C. § 1101(a)(42)(A) (emphasis added))—the so-called “nexus” requirement.

13 While a persecutor may have mixed motives, the protected ground must be “at least one central reason”

14 for the applicant’s persecution or well-founded fear of persecution. 8 U.S.C. § 1158(b)(1)(B)(i).

15 Further, under longstanding precedent, an applicant need not prove the precise motivation of the

16 persecutor; rather the applicant must merely establish “facts on which a reasonable person would fear

17 that the danger arises on account of” a protected ground. E.g., Matter of J-B-N- & S-M-, 24 I&N Dec.

18 208, 211 (BIA 2007); Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988).

19 81. Under a heading entitled “Nexus,” the Final Rule radically alters the nexus analysis by

20 listing eight blanket circumstances that adjudicators must now “generally” find insufficient for asylum

21 or withholding of removal relief. 85 Fed. Reg. 80,386 (to be codified as 8 C.F.R. §§ 208.1(f), 1208(f)(1))

22 (“For purposes of adjudicating an application for asylum . . . or withholding of removal . . . the

23 Secretary, in general, will not favorably adjudicate the claims of aliens who claim persecution based on

24 the following list of nonexhaustive circumstances”). These circumstances include, “gender” and

25 “interpersonal animus or retribution,” among others.

26 82. Mandating blanket denials for certain circumstances under the auspices of nexus is

27 arbitrary and nonsensical. Under this approach, an adjudicator is not required to address whether a

28

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1 nexus between persecution and a protected ground actually exists. Determining nexus is a classic factual

2 question requiring the adjudicator to consider facts specific to each case, such as direct or indirect

3 evidence of the persecutor’s motivation for harming or attempting to harm the applicant. The Final Rule

4 subverts this fact analysis, replacing it with the Departments’ general disapproval of certain categories

5 of claims. In short, none of the items on the list meaningfully address whether harm occurred on

6 “account of” a protected ground and thus none have any bearing on whether the nexus requirement is

7 met in a particular case. The intent of the provision is clear: provide adjudicators with a laundry list of

8 categorical denials to swiftly dispense with claims the Departments find undesirable, without the

9 required analysis.

10

83. The Departments dismiss commenters’ concerns that the rule will result in due process

11 violations and categorical denials of claims, stating that “the rule implicitly allows for those rare

12 circumstances in which the specified circumstances could in fact be the basis for finding nexus,” and

13 that “adjudicators should continue to engage in individualized, fact-based adjudications as the rule

14 provides only a list of circumstances that do not constitute harm on account of a protected ground in

15 most, but not all, cases.” 85 Fed. Reg. at 80,329. The Departments’ statements are disingenuous at best.

16 If adjudicators are to continue conducting individualized determinations, then the list of blanket

17 exclusions serves no purpose and is arbitrary for that reason alone. In reality, setting forth exemptions

18 in this way will lead adjudicators to categorically deny the claims on the list, without taking into account

19 the “fact specific nature” in each case as the law requires.

20

84. The proffered rationale for the new nexus requirement is to provide clarity and efficiency

21 for adjudicators. However, the Departments do not actually point to any real lack of clarity in the

22 existing law. Moreover, efficiency does not justify a complete departure from prior practice and law.

23 In essence, in the name of expediency, the Departments are eliminating the individualized analysis

24 required under the INA as a technique to swiftly deny applications.

25

85. The new nexus rule also functions as a backdoor method to curtail the scope of disfavored

26 particular social group (“PSG”) claims. For example, although claims based on gender meet the

27 definition of a PSG under current law and under the standard codified under the Final Rule itself, see 85

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1 Fed. Reg. 30,894 (to be codified as 8 C.F.R. §§ 208.1(c), 1208.1(c)), the categorical nexus bar will

2 enable adjudicators to dispense with these claims without delving into the fact-specific inquiry necessary

3 to analyze PSGs. This bait and switch is inconsistent with the INA and contrary to the intent of

4 Congress.

5

86. For these reasons, the recasting of nexus as a self-executing list is arbitrary and capricious

6 and contrary to law. More specifically, the three items on that list discussed below, which are

7 particularly harmful to LGBTQ/H claimants, are also arbitrary and capricious and contrary to law.

8

i. The Exclusion of Gender Imperils the Availability of Asylum for All

9

LGBTQ Refugees.

10

87. A prime example of the confusion of PSG and nexus requirements is the Final Rule’s

11 mandate that adjudicators “in general, will not favorably adjudicate the claims of aliens who claim

12 persecution based on . . . Gender.” 85 Fed. Reg. 80,395 (to be codified as 8 C.F.R. §§ 208.1(f)(8),

13 1208.1(f)(8)). As noted above, injecting a gender bar into the nexus analysis is impermissible and makes

14 no sense. Disturbingly, the regulations do not provide any direction whether this “gender-based”

15 exclusion is intended to preclude claims by LGBTQ refugees. Simply put, the Departments have created

16 a confusing mess that leaves Plaintiffs and LGBTQ refugees uncertain how LGBTQ asylum claims will

17 be treated going forward.

18

88. The Final Rule omits any meaningful discussion of whether and how the “gender-based”

19 nexus exclusion will affect LGBTQ refugees, despite numerous public comments flagging this

20 important issue and requesting clarification. Commenters expressed concerns about how “gender-

21 based” nexus exclusion would affect LGBTQ asylum seekers given that while sexual orientation and

22 transgender status are not necessarily coterminous with gender, case law recognizes that discrimination

23 based sexual orientation or transgender status are forms of sex discrimination. Moreover, for LGBTQ

24 refugees, their applications nearly always are peppered with language relating to gender.

25

89. For example, numerous LGBTQ-allied organizations, including Plaintiffs Immigration

26 Equality, Oasis Legal Services, and the Transgender Law Center, submitted comments noting that the

27 Final Rule had the potential to be misconstrued to eliminate asylum claims for LGBTQ refugees, despite

28 a well-settled body of caselaw firmly establishing LGBTQ asylum claims. See Public Comment of

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1 Immigration Equality (July 15, 2020), at 14-15, https://beta.regulations.gov/comment/EOIR-2020-

2 0003-85541. (“[W]hile the Proposed Rule certainly does not deny that LGBTQ people constitute

3 protected PSGs, there is a real risk that adjudicators will misconstrue the gender bar to preclude gender

4 identity and sexual orientation claims”); Public Comment of Oasis, at 15,

5 https://beta.regulations.gov/comment/EOIR-2020-0003-78374, at 15 (“Oasis has assisted hundreds of

6 applicants who have been persecuted by individuals centrally motivated to commit persecutory acts on

7 account of perceived gender violations—that is, on account of their membership in a cognizable

8 particular social group relating to their sexual minority status”); Public Comment of Transgender Law

9 Center (July 15, 2020), https://beta.regulations.gov/comment/EOIR-2020-0003-6058.2

10

90. In the Final Rule, the Departments ignored these comments. Nowhere does the Final

11 Rule analyze or discuss whether claims based on one’s status as LGBTQ will be denied under the

12 “gender-based” nexus rule. Indeed, the Final Rule’s analysis of proposed §§ 208.1(f)(8), 1208.1(f)(8)

13

14 2 See also Public Comment of Los Angeles LGBT Center (July 9, 2020), at 3, https://www.regulations.gov/contentStreamer?documentId=EOIR-2020-0003-
15 4736&attachmentNumber=1&contentType=pdf, (“[I]n eliminating gender-based violence claims . . . , this proposed rule eliminates all LGBTQ asylum claims as well”); Public Comment of Indiana Legal
16 Services (July 15, 2020), at 11-12, https://www.regulations.gov/contentStreamer?documentId=EOIR2020-0003-6028&attachmentNumber=1&contentType=pdf, (“The elimination of consideration of
17 gender as a nexus of harm or persecution . . . impairs the ability of LGBTQ+ people to claim harm based on their LGBTQ+ identity”); Public Comment of National LGBTQ Task Force (July 15, 2020), at 11,
18 https://www.regulations.gov/contentStreamer?documentId=EOIR-2020-000375155&attachmentNumber=1&contentType=pdf, (“[T]he National LGBTQ Task Force is concerned
19 that asylum officers will misconstrue the gender exclusion to preclude gender identity and sexual orientation claims”); Public Comment of American Gateways (July 15, 2020), at 47,
20 https://www.regulations.gov/contentStreamer?documentId=EOIR-2020-00035991&attachmentNumber=1&contentType=pdf, (“[G]iven the Departments’ curious silence regarding
21 female genital mutilation (FGM) claims and LGBTQ claims throughout the Proposed Rule, this provision risks being weaponized by adjudicators to deny all claims relating to gender, including claims
22 based on FGM and claims based on an applicant’s sexual orientation and gender identity”) (emphasis in the original); Public Comment of Women’s Refugee Commission (July 15, 2020), at 7,
23 https://www.regulations.gov/contentStreamer?documentId=EOIR-2020-00036061&attachmentNumber=1&contentType=pdf, (“[I]n light of the Supreme Court’s recent holding in
24 Bostock . . . the Proposed Rule could also be used by the Departments as a basis for a blanket denial of eligibility for all applicants fleeing persecution on account of sexual orientation or gender identity”);
25 Public Comment of National LGBT Bar Association (July 15, 2020), at 7-8, https://www.regulations.gov/contentStreamer?documentId=EOIR-2020-0003-
26 6025&attachmentNumber=1&contentType=pdf,

27

(“In addition to being wrong, immoral, and harmful to women, this change could also be misconstrued to bar claims based on gender identity and sexual orientation, thus denying LGBTQ+ individuals any

28 ability to successfully seek asylum in this country”).

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1 makes almost no mention of LGBTQ people whatsoever. The Departments acknowledged one

2 commenter’s argument that “the UNHCR . . . has confirmed that people fleeing persecution based on

3 gender, gender-identity and sexual orientation do qualify for asylum under the Convention’s definition

4 of a refugee,” 85 Fed. Reg. at 80,333, but respond only that “they are not bound by the UNHCR,” id. at

5 80,334, suggesting a potential intent to depart from the UNHCR’s approach in this regard. The

6 Departments acknowledge commenters’ concerns that the “rule will categorically deny asylum to . . .

7 LGBTQ asylum-seekers,” but waves away these concerns as “unsupported” and “speculative” without

8 any substantive effort to engage with the issue or provide assurance that the Final Rule will not work a

9 radical change in asylum practice by excluding such claims. Id. at 80,287.

10

91. The Departments’ failure to clarify the scope of the Final Rule’s “gender-based” nexus

11 exclusion has created alarm and leaves significant confusion about whether and how the Final Rule

12 might affect LGBTQ refugees’ claims. The confusion around this point highlights the infirmity of the

13 Final Rule and its arbitrary creation of presumptively ineligible categories of “circumstances” rather

14 than conducting the analysis required under the INA and decades of precedent.

15

92. The Final Rule also engenders confusion through its bizarre citation in a footnote to a

16 dissenting opinion in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), in support of the

17 misguided, scientifically inaccurate belief that the gender identity of transgender and nonbinary people

18 “‘changes over time’” and therefore may not be an “immutable characteristic” for the purpose of

19 defining a particular social group. 85 Fed. Reg. at 80,335 n.56 (citing Bostock, 140 S. Ct. at 1779)

20 (Alito, J., dissenting). This statement suggests that the Departments lack understanding of the

21 experiences of transgender people, whose gender identity does not “change[]” when they transition, but

22 rather becomes visible to others. This inaccurate statement also ignores well-settled case law holding

23 that sexual orientation and gender identity are immutable characteristics (see, e.g., Hernandez-Montiel

24 v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000))—which poses an apparent threat to the long-settled

25 practice of recognizing LGBTQ people as constituting a PSG for asylum purposes.

26

93. To be sure, for decades, the BIA, the Attorney General, USCIS, and the courts have

27 recognized that persecution on account of LGBTQ status qualifies as persecution on account of

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1 “membership in a particular social group” under the INA. 8 U.S.C. § 1101(a)(42). See, e.g., Avendano-

2 Hernandez v. Lynch, 800 F.3d 1072, 1082 (9th Cir. 2015) (“The unique identities and vulnerabilities of

3 transgender individuals must be considered in evaluating a transgender applicant’s asylum, withholding

4 of removal, or CAT claim.”); Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (“homosexuals”

5 are a PSG); Pitcherskaia v. I.N.S., 118 F.3d 641, 645 n.5 (9th Cir. 1997) (lesbians are a PSG); Matter of

6 Toboso-Alfonso, 20 I&N Dec. 819, 822-23 (BIA 1990) (Cuban gay asylum applicant established

7 membership in PSG); Att’y Gen. Order No. 1895-94 (June 19, 1994) (designating Toboso “as precedent

8 in all proceedings involving the same or similar issues”); USCIS, Guidance for Adjudicating Lesbian,

9 Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims Training Module (Dec.

10 28, 2011), AILA Doc. No. 120424 https://www.uscis.gov/sites/default/files/document/guides/RAIO-

11 Training-March-2012.pdf. Moreover, LGBTQ claims clearly meet the PSG standard codified in the

12 Final Rule. 8 C.F.R. §§ 208.1(c), 1208.1(c) (“a particular social group is one that is based on an

13 immutable or fundamental characteristic, is defined with particularity, and is recognized as socially

14 distinct in the society at question. Such a particular social group cannot be defined exclusively by the

15 alleged persecutory acts or harm and must also have existed independently of the alleged persecutory

16 acts or harm that forms the basis of the claim.”).

17

94. If the Departments intended to upset decades of settled law and presumptively preclude

18 some or all LGBTQ claims, they should have raised the possibility in the NPRM. Effectuating such a

19 drastic change through obfuscation would be procedurally improper and a violation of the APA.

20

95. Moreover, the experiences of LGBTQ refugees show that they would be deeply harmed

21 by a rule that excludes gender-based persecution, whether interposed under the nexus or PSG rubric.

22

96. For example, Immigration Equality client Alexandra3, a trans woman from Mexico, was

23 kidnapped and repeatedly raped and tortured by gang members because of her gender identity after they

24 spotted her wearing women’s clothing at a fundraiser she was organizing for children with leukemia.

25 The gang members abused her so severely that she had to undergo two rectal surgeries to repair her

26

27

3 Plaintiffs’ individual clients are referred to in this Complaint using pseudonyms and minor identifying details have been changed to protect their safety and preserve confidentiality. The facts demonstrating

28 the impact of the Final Rule are unaltered.

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1 injuries. The Transgender Law Center’s client French, a transgender woman from Jamaica, faced a

2 neighborhood mob led by a cousin to her family home, with the intent to kill her, after the cousin saw

3 online a photograph of her from an event for transgender people that showed French dressed in women’s

4 clothes. And finally, the Center’s client John, a gay man from Jamaica, was constantly referred to with

5 anti-gay slurs, such as “battyman,” at school. While John is gay, much of the persecution he endured

6 was focused on his gender presentation, appearance, and mannerisms, which were considered effeminate

7 and outside local gender norms—treatment that blurs the lines between homophobia and gender

8 stereotyping because, in Jamaica, to be effeminate is to be gay whether one’s sexual orientation is known

9 or not.

10

97. As these narratives illustrate, LGBTQ asylum seekers face grave harm if they are

11 returned to countries where they will likely suffer further violence, sexual assault, and even death.

12 Under the Final Rule, however, claims such as these very well may be denied.

13

98. Purposefully, accidentally, or ambiguously eliminating asylum claims for LGBTQ

14 people under the guise of “gender” would violate the APA in multiple ways. Under the INA, individuals

15 qualify as “refugees” if they have suffered persecution or have a well-founded fear of persecution “on

16 account of race, religion, nationality, membership in a particular social group, or political opinion.” 8

17 U.S.C. § 1101(a)(42). LGBTQ status has long been held to be protected in asylum law. Accordingly,

18 the Final Rule is contrary to law because it appears to call into question the refugee status of those who

19 claim persecution, or a well-founded fear of persecution based on their membership in a firmly

20 established particular social group.

21

99. In the alternative, the Final Rule is arbitrary and capricious because the Departments

22 have failed to acknowledge or analyze how the “gender-based” nexus exclusion would affect LGBTQ

23 populations and failed to acknowledge or justify their departure from longstanding precedent.

24

100. Additionally, the Final Rule is arbitrary and capricious because it causes confusion, is

25 likely to lead adjudicators to inappropriately misconstrue it as barring claims based on LGBTQ status,

26 and the Department not only has failed to address these concerns but introduced further uncertainty by

27

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1 raising questions about long-settled treatment of LGBTQ claims under PSG standards only in a footnote

2 to the preamble of the Final Rule.

3

ii. The Final Rule Impermissibly Limits Asylum and Withholding-of-Removal

Claims Based on “Interpersonal Animus.” 4

101. The Final Rule impermissibly bars asylum or withholding of removal for persecution

5

based on (i) “interpersonal animus or retribution,” 85 Fed. Reg. at 80,386 (to be codified as 8 C.F.R. §§

6

208.1(f)(1), 1208(f)(1)); or (ii) “interpersonal animus in which the alleged prosecutor has not targeted,

7

or manifested an animus against, other members of an alleged particular social group in addition to the

8

member who has raised the claim at issue,” 85 Fed. Reg. at 80,386 (to be codified as 8 C.F.R §§

9

208.1(f)(2), 1208(f)(2)). These overly broad exclusions are arbitrary and capricious and contrary to law

10

because, at least in part for prohibited reasons, they engraft requirements inconsistent with Congress’

11

intent to make asylum available to individuals subjected to persecution. These changes will inflict

12

particular harm on LGBTQ/H claimants, whose persecution often arises in circumstances that may be

13

labeled as “interpersonal,” such as violence at the hands of family members and personal acquaintances

14

that law enforcement officials are unwilling or unable to prevent.

15

a. The “Interpersonal Animus or Retribution” Exclusion is Arbitrary and

16

Capricious and Contrary to Law.

17

102. The Final Rule’s bar on claims based on “interpersonal animus or retribution” is arbitrary

18 and capricious and contrary to law for several reasons. First, the broad language of the exclusion could

19 arguably be read to require denial of nearly any asylum case, because the plain meanings of those terms

20 may be read to embrace any spiteful or malevolent persecution.

21

103. Further, the new exclusion bars the granting of asylum applications where persecution is

22 based on “interpersonal animus or retribution” even if the persecution was also based on a protected

23 ground, such as membership in a social group. The exclusion of this type of “mixed motive” persecution

24 is arbitrary and capricious because there is no clear distinction between “interpersonal animus” and

25 hostility towards a protected status. This is especially true in cases where persecution is inflicted by

26 family members or close acquaintances, as is often the case with LGBTQ/H asylum applicants. Such

27 abuse can easily be understood as “interpersonal” due to the relationship between the victim and the

28 persecutor, even though the persecution is ultimately motivated by the victim’s LGBTQ/H status.

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1

104. Barring asylum in “mixed motive” cases is also contrary to law because it violates the

2 clear language of the INA, which provides that “race, religion, nationality, membership in a particular

3 group, or political opinion” need only be “at least one central reason”—but not necessarily the only

4 reason—for persecution. 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). Congress thus mandated that

5 asylum be available in mixed-motive cases, even when one motive would not be a proper basis for

6 asylum, so long as a statutorily protected ground is at least “one central reason” for the persecution. The

7 exclusion of an asylum application based on “interpersonal animus or retribution,” without regard for

8 whether the persecution was also based on a protected ground, directly violates the statutory “one central

9 reason” standard.

10

105. The Departments have offered no rational basis for the proposed “interpersonal animus

11 or retribution” exclusion, initially basing it on a single case, Zoarab v. Mukasey, 524 F.3d 777 (6th Cir.

12 2008), in which persecution was based on business dealings rather than political opinion or any other

13 protected ground. 85 Fed. Reg. at 80330. In response to numerous comments noting the lack of support

14 for the rule change, the Departments now cite a handful of additional fact-specific cases standing only

15 for the proposition that certain types of purely personal motivation do not trigger eligibility for asylum.

16 See id. The Departments also state that it does not intend for the Final Rule to preclude the granting of

17 asylum or withholding of removal based on “mixed motive” persecution, but it did not revise the Final

18 Rule to clarify this point. See id.

19

106. The exclusion will inflict particular harm on LGBTQ/H claimants. As noted above, it is

20 quite common for LGBTQ/H asylum seekers to suffer persecution at the hands of family members and

21 other personal acquaintances, in circumstances where protected status and “interpersonal animus” will

22 be nearly impossible to disentangle.

23

107. Many LGBTQ/H asylum applicants who have been targeted for persecution by family

24 members or personal acquaintances because of their sexual orientation or gender identity were not

25 targeted out of hostility for the individual per se. Some LGBTQ individuals are targeted because of

26 their persecutors’ purportedly benign intentions to “save” their LGBTQ relatives or acquaintances from

27 their sexual orientation or gender identity.

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1

108. For example, in Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1056, 1073 (9th Cir.

2 2017) (en banc), a gay man was sexually and physically assaulted by his uncle, cousins, and neighbors

3 as a child. Although the immigration judge viewed the attacks as motivated by interpersonal animus,

4 the Court of Appeals recognized that the claimant’s LGBTQ/H status was a central reason for the assault,

5 because the abusers focused on the victim’s perceived effeminate characteristics and called him a “fag,

6 fucking faggot, queer.” In another example, a gay refugee from Ghana was beaten, doused in kerosene,

7 and almost lit on fire by his father and a mob of neighbors after being discovered with another man.

8 Doe v. Att’y Gen. of the U.S., 956 F.3d 135, 152 (3d Cir. 2020).

9

109. This provision of the Final Rule will likely foreclose many of Plaintiffs’ clients from

10 obtaining asylum, even though they endured horrific persecution because of their LGBTQ or HIV-

11 positive status and have meritorious claims. For example, the following Immigration Equality clients

12 would likely no longer qualify for asylum or relief under the Final Rule, despite the severe persecution

13 they experienced:

14

 Mikhail, a gay man from Russia, used an online dating app to meet another man for a date.

15

Despite taking precautions to ensure the date was legitimate, several men kidnapped Mikhail,

16

and took him back to his own apartment where they stripped him naked, beat him, and tied

17

him to a radiator. While he was restrained, the perpetrators continued to physically assault

18

him while they ransacked his apartment and robbed him. Then, they forced him to transfer

19

money to them via online banking. While Mikhail was still naked, bleeding from the

20

physical assault, and tied to his radiator, the perpetrators took video footage of him where

21

they forced him to state his full name, street address, and admit that he was “a faggot.” They

22

took screenshots of his contacts and threatened to send the video to all of his contacts,

23

including his employer, and post it online if he went to the police. When Mikhail later went

24

to the hospital, and tried to report the incident to the police, the police mocked him. They

25

also told him that it was his fault that he was assaulted and said that Russia would be better

26

without people like him.

27

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1

 Nakiesha, an engineer from Guinea, was 33 years old when she gave birth to her firstborn

2

child, an intersex baby. She believed her child was a son and tried to raise him away from

3

her extended family because she knew they would not accept him. One day, one of

4

Nakiesha’s female relatives changed the baby’s diaper and discovered his intersex identity.

5

News spread quickly, and Nakiesha’s family declared the baby to be satanic and demanded

6

that he be killed. They also informed Nakiesha that they would forcibly abort any new

7

pregnancies she might have. When Nakiesha refused to murder her own son, her family

8

deemed her to be satanic too and demanded her death as well. She fled to the United States

9

where she applied for, and was granted, asylum.

10

 Tariq is a transgender man from Egypt. In his twenties, he fell in love with a young woman

11

named Najila, and the two developed a romantic and intimate relationship that lasted several

12

years. Then, Najila’s family discovered that the two were more than just friends, and beat

13

Najila severely. Next, her male relatives locked Najila into the basement of their home.

14

Tariq tried several times to help free her, including by calling the police, but the police told

15

him “this is a family matter.”

16

 Eventually, Tariq fled for his own life to the United States, where he was granted asylum.

17

Months later, Najila’s mother snuck a phone into the basement so her daughter could have

18

some communication with the outside world. Tariq and Najila reconnected and said

19

goodbye. Because Najila is not allowed out of her home without a male escort at all times,

20

she has never been able to leave Egypt.

21

b. The “Additional Target” Exclusion is Arbitrary and Capricious and

22

Contrary to Law.

110. The Final Rule further requires that asylum applicants whose claims are based on

23

“interpersonal animus” to provide evidence that their persecutors also targeted other members of the

24

same PSG or else have their claim denied (“additional target” exclusion). That requirement is arbitrary

25

and capricious and contrary to law—most fundamentally because such evidence often simply does not

26

exist. For example, a claimant may be persecuted based on LGBTQ/H status by a family member or

27

others in the community who have never had the occasion to express animus against other LGBTQ/H

28

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1 people (because, for example, they are not aware of any other LGBTQ/H persons in the community).

2 Further, even if the persecutor has targeted other LGBTQ/H individuals, the victims may be too

3 traumatized or fearful of retribution to discuss how they were treated. Anti-LGBTQ/H abuse is often

4 violent and horrific, and it may be impossible for an applicant to locate another victim willing to go on

5 the record in the applicant’s asylum case.4 There is no rational basis for imposing this added evidentiary

6 hurdle on asylum applicants, and an application should not fail simply because an applicant is justifiably

7 unable to produce evidence of a persecutor’s animus towards similarly situated people.

8

111. This limitation is also contrary to law because it rests on an impermissible construction

9 of 8 U.S.C. § 1101(a)(42). The definition of “refugee” focuses solely on the applicant; it is irrelevant

10 whether the persecutor has engaged in a similar pattern against other individuals. Even applicants who

11 are the only individuals abused by their particular persecutors may meet the statutory criteria for a

12 “refugee.” The Final Rule is thus unlawful because it injects this additional requirement. The

13 Departments have failed to respond to comments raising this issue.

14

112. The Final Rule is also arbitrary and capricious and contrary to law because the

15 “additional target” exclusion applies only to claims based on membership in a particular social group,

16 rather than the other statutory categories of “race, religion, nationality, or political opinion.” 8 U.S.C.

17 § 1101(a)(42). This unfairly and without statutory justification puts a harsher burden on asylum seekers

18 alleging persecution based on membership in a particular social group (such as LGBTQ/H status), as

19 compared to other types of asylum claims. For example, under the Final Rule, an LGBTQ/H applicant

20 who was persecuted because of the persecutor’s “interpersonal animus” would have to prove that the

21 persecutor harbored animus toward other LGBTQ/H individuals, but a Christian applicant persecuted

22 because of “interpersonal animus” would not have to prove the persecutor’s animus toward other

23 Christians. Nothing in the statute supports this type of discrimination among groups of persons sharing

24 immutable characteristics that may serve as a basis for persecution.

25

26

4 The Final Rule compounds this issue through its amendments to 8 C.F.R. §§208.6, 1208.6, which allow information submitted in an asylum application to be used against applicants or others in virtually

27

any law enforcement investigation or proceeding. Witnesses will be even less willing to come forward to aid an asylum application if they know the information they provide can be used against them or

28 someone else.

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1

113. The Departments have failed to adequately respond to these issues. The Government

2 maintains that the Final Rule “does not hold aliens relying on membership in a particular social group

3 to a higher evidentiary standard,” but merely provides greater “definitional clarity” because “PSG is a

4 more amorphous category.” 85 Fed. Reg. 80,331. However, applicants must already prove that their

5 persecutors were motivated at least in part by their membership in a PSG. Requiring them to

6 demonstrate persecution of other people adds no clarity to the definition of PSG and violates Congress’

7 sole focus on persecution of individuals.

8

114. As noted, this change will inflict particular harm on LGBTQ/H asylum seekers, who will

9 often be unable to prove that a persecutor has harmed, or threatened to harm, another LGBTQ/H person.

10

115. For example, one of Oasis’ clients, Jaqueline, a lesbian asylee from Uganda, was hung

11 by her legs from a tree and beaten by her parents with tree branches because they believed she had a

12 demon in her that was causing her to be attracted to women. Jacqueline’s parents were not intending to

13 punish her but instead believed they were doing something necessary to help Jaqueline be safe from

14 what they perceived to be a real threat. Jaqueline lawfully won asylum because the protected ground of

15 her sexual orientation was one central reason for the harm she experienced. Jacqueline did not need to

16 prove that her parents had similarly targeted other LGBTQ/H individuals, nor could she have.

17

B. The Final Rule Arbitrarily Narrows the Definition of “Persecution.”

18

116. The Final Rule arbitrarily narrows the definition of “persecution,” excluding a range of

19 common scenarios in which the lives and safety of asylum seekers are threatened. This change is

20 arbitrary and capricious because it abandons without adequate explanation or analysis a longstanding

21 policy of permitting adjudicators to determine on a case-by-case basis whether harm rises to the level of

22 persecution. These categorical exclusions will have a particular impact on LGBTQ/H applicants, for

23 example, in situations where laws are infrequently enforced on a formal basis but nevertheless create a

24 pervasively dangerous and threatening environment.

25

117. The word “persecution” is not defined in the INA; its meaning derives from case law,

26 which for decades has provided that whether harm rises to the level of persecution must be resolved on

27 a case-by-case basis. The Third Circuit recently stressed that persecution is not to be analyzed through

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1 a “checklist,” rejecting the notion that “physical violence—or any other single type of mistreatment—

2 is a required element of the past persecution determination.” Herrera-Reyes v. Att’y Gen. of U.S., 952

3 F.3d 101, 110 (3d Cir. 2020). Rather, asylum claims are to be analyzed “on a case-by-case basis” with

4 “fact-specific analysis to determine whether a petitioner’s cumulative experience amounts to a severe

5 affront to that petitioner’s life or freedom.” Id. The UNHCR Handbook similarly states that whether

6 “prejudicial actions or threats would amount to persecution will depend on the circumstances of each

7 case.” UNHCR, The UN Refugee Agency, Handbook on Procedures and Criteria for Determining

8 Refugee Status and Guidelines on International Protection (2019), https://www.unhcr.org/en-

9 us/publications/legal/5ddfcdc47/handbook-procedures-criteria-determining-refugee-status-under-

10 1951-convention.html ..

11

118. The Final Rule disrupts this longstanding and settled practice by enumerating a checklist

12 of harms categorically excluded from the meaning of persecution:

13

For purposes of evaluating the severity of the level of harm, persecution is an extreme

concept involving a severe level of harm that includes actions so severe that they

14

constitute an exigent threat. . . . [Persecution] does not include intermittent harassment,

including brief detentions [or] threats with no actual effort to carry out the threats, except

15

that particularized threats of severe harm of an immediate nature made by an identified

entity may constitute persecution . . . . The existence of laws or government policies that

16

are unenforced or infrequently enforced do not, by themselves, constitute persecution,

unless there is credible evidence that those laws or policies have been or would be applied

17

to an applicant personally.

18 85 Fed. Reg. 80,386 (to be codified at 8 C.F.R. §§ 208.1(e), 1208.1(e)).
19 119. This redefinition, by its plain language, removes the individualized analysis previously
20 accorded to the adjudicator to determine, on a case-by-case basis, whether certain types of harm—
21 specifically, “brief detentions,” “threats with no actual effort to carry out the threats,” and “laws . . . that
22 are unenforced or infrequently enforced”—constitute persecution. The NPRM did not provide any
23 reasoned analysis supporting these exclusions or the sudden departure from years of contrary practice,
24 and the Final Rule does not adequately answer the many comments objecting to these exclusions. Each
25 of the specific exclusions is arbitrary and capricious.
26 120. To examine multiple occurrences of “detention[]” or “harassment” seriatim without
27 regard to the cumulative effect of such treatment is illogical and a significant departure from current
28

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1 doctrine. As one policy memorandum observed, “though discriminatory practices and experiences are

2 not generally regarded by themselves as persecution, they ‘can accumulate over time or increase in

3 intensity so that they may rise to the level of persecution.’” U.S. DOJ, Immigration and Naturalization

4 Service, Guidelines for Children’s Asylum Claims, 19 (Dec. 10, 1998).

5

121. The requirement that persecution involve an “exigent threat” and the categorical

6 exclusion of “threats with no . . . effort to carry out the threats” is similarly arbitrary. Asylum seekers

7 often suffer threats of violence that are severe and genuine, even if it may be unclear when, precisely,

8 such violence will materialize. See, e.g., Public Comment of Los Angeles LGBT Center, at 2 (discussing

9 client who “found her husband’s body chopped into pieces on the side of the road and was warned she

10 would suffer the same fate if she reported his murder to the police”).

11

122. By eliminating past persecution for anyone who has not suffered an “exigent” threat of

12 harm, the Final Rule places refugees in an impossible position. If they flee and seek asylum, before an

13 “actual effort to carry out the threats” has been made, then their claim of past persecution will be

14 rejected. But if they wait for the threats to materialize, they may be physically harmed or worse.

15

123. LGBTQ/H refugees should not have to expose themselves to risk of violence and

16 physical harm in order to show they have experienced past persecution. After being threatened, an

17 asylum seeker should not be forced to wait until someone tries to beat, hang, or rape, let alone kill, them

18 to prove that they have been persecuted.

19

124. The following Immigration Equality clients illustrate this point:

20

 Leila is a bisexual woman from Bangladesh who was kicked out of school when her sexual

21

orientation was discovered. Shortly thereafter, she spoke out against conservative Islamist

22

groups who were gaining power in Bangladesh. In retaliation for speaking out, she was

23

publicly outed as bisexual. She and her parents immediately began receiving death threats.

24

She could not go to the police because same-sex relations are illegal in Bangladesh and she

25

might be arrested. She knew of other gay Bangladeshis who were outed on Facebook by

26

conservative Islamist groups and subsequently brutally murdered. Accordingly, she fled

27

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1

Bangladesh and sought asylum in the United States. The threats against Leila may not have

2

met “identified entity” or immediacy in order to qualify as persecution under the Final Rule.

3

 Yasir is a gay man from Yemen. While he tried to live his life deeply in the closet, he was

4

nevertheless very publicly outed. Because Yemeni officials sentence gay men to death, he

5

fled to the United States immediately under threat of arrest. As he had feared, the police then

6

issued a warrant for Yasir’s arrest. When he could not be found, he was tried for

7

homosexuality in absentia and found to be guilty. Accordingly, the authorities issued a

8

formal death sentence against Yasir. The death sentence was issued after Yasir fled.

9

However, under the Final Rule, the threat of harm to Yasir would likely not have been enough

10

to constitute persecution until after he was tried in absentia and issued the death sentence.

11 Notably, these threats that LGBTQ/H claimants regularly face amount to persistent and conscious terror

12 campaigns, which alone rise to the level of persecution.

13

125. Finally, the categorical exclusion of “infrequently enforced” laws is arbitrary and

14 capricious. The very existence of persecutory laws is a threat to liberty and forces individuals to live in

15 secrecy and fear, which itself is a form of harm so severe that it rises to the level of persecution. For

16 example, the Final Rule would foreclose asylum relief for religious minorities fleeing countries that

17 make certain belief systems or expressions of faith unlawful. Even if such laws are not often enforced

18 in practice, the “aim of persecuting a religion is to drive its adherents undergrounds in the hope that their

19 beliefs will not infect the remaining population.” Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir.

20 2004) (Posner, J.). There is no reason why an adjudicator should be precluded from finding, on a case-

21 by-case basis, that such laws are inherently persecutory.

22

126. Indeed, whether the applicant can prove that the government is likely to enforce the law

23 is beside the point, as applicants would not be able to avail themselves of their country’s protection if

24 they fear their own arrest in going to the police. Plaintiffs see the chilling effect such laws have on

25 LGBTQ/H refugees’ ability to seek protection. Take for example:

26

 Iskandar is a gay man who worked for the Lebanese government. In Lebanon, it is a crime

27

to be gay. Iskander’s ex-partner threatened to out him to his family and to the government

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1

if Iskander did not pay him hush money. Iskander was unable to make the payments and

2

decided that he could not risk being outed in Lebanon. Due to his position in the government,

3

he would be tortured and imprisoned if he were discovered to be gay. Additionally, given

4

that his family is extremely religious, Iskander would likely be harmed, and even killed, by

5

his own family. Because LGBTQ conduct is criminalized, he could not seek help.

6

 Tushar is a gay man from India who was extremely closeted for fear of persecution at the

7

hands of the police and community members. When Tushar mustered the courage to come

8

out to his friends, they turned on him and raped him, while calling him homophobic slurs

9

and telling him “since you are gay, you should enjoy this.” Tushar was unable to report this

10

to the police at the time, because if he did, Tushar could have been subjected to 10 years of

11

imprisonment.

12

 Soraya is a lesbian from Iran who was extremely closeted. Soraya was sexually and

13

physically abused by an ex-partner. The ex-partner also set Soraya’s car on fire. However,

14

given that her ex-partner was a woman, Soraya could not report the abuse to the police. Had

15

Soraya reported the abuse, she would have been outed, and would have been subjected to the

16

death penalty.

17

 Joseph is gay man from Nigeria where being gay is a crime, and in some states punishable

18

by death. Joseph was outed at his workplace after he lost his phone and the security police

19

who found it discovered intimate photos of Joseph and a partner. The police made copies of

20

the photos and used them to extort money from Joseph in exchange for not arresting and

21

outing him. They also made him sign a statement acknowledging that he was gay and had

22

committed a crime. The demands for money kept increasing until Joseph could no longer

23

meet the bribes to assure his safety. He then fled to the United States.

24

127. Each of the Final Rule’s exclusions from the meaning of persecution discussed herein will

25 have a particular impact on LGBTQ/H claimants. The exclusion of “intermittent harassment” and “brief

26 detentions” overlooks the widespread targeting of LGBTQ/H individuals by law enforcement. See, e.g.,

27 Public Comment of Lambda Legal, at 3 (discussing a gay asylum seeker from Kenya who “had been

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1 imprisoned three times for being gay”); Human Rights Watch, “Not Safe at Home: Violence and

2 Discrimination against LGBT people in Jamaica”, at 34 (Oct. 2014), https://www.hrw.org/sites/default/

3 files/reports/jamaica1014_ForUpload_1.pdf (recounting “abuse at the hands of the police” as a “regular

4 occurrence”).

5

128. LGBTQ/H claimants are also frequently subjected to ongoing threats and intimidation

6 that may or may not materialize but nevertheless can rise to the level of persecution. See Tairou v.

7 Whitaker, 909 F.3d 702 (4th Cir. 2018) (LGBTQ asylum applicant from Benin harassed by crowd of

8 “approximately 40 men” who “threatened to cut off his penis,” and received subsequent death threats

9 and menacing phone calls). For LGBTQ/H victims in particular, persecution often consists of fear-

10 driven pressure to stay closeted or risk retaliation, imprisonment, and abuse, including homicide or

11 “corrective” rape.

12

129. The Departments purported to address certain public comments concerning the exclusion

13 of ongoing threats and intimidation from the definition of persecution by adding an exception to that

14 exclusion in the Final Rule for “particularized threats of severe harm of an immediate and menacing

15 nature made by an identified entity.” 85 Fed. Reg. 80,386 (to be codified as 8 C.F.R. §§ 208.1(e),

16 1208.1(e)). Yet the Departments state that this exception will be “rare.” 85 Fed. Reg. 80,276. The

17 Departments are wrong, for a pattern of imminent threats is just the kind of persecution that LGBTQ/H

18 asylum applicants frequently have faced in their home countries. Moreover, the parameters of the

19 exception nullify it. For example, the Departments have limited the exception to persecution at the

20 hands of an “identified entity”—not individuals, families, or entities without a concrete moniker or

21 identity. That eliminates many kinds of people that persecute LGBTQ/H asylum applicants.

22

130. Finally, LGBTQ/H individuals are often subject to infrequently enforced laws that

23 nevertheless create a menacing environment. According to Human Rights Watch, approximately 70

24 countries around the world have national laws criminalizing same-sex relations between consenting

25 adults, and at least nine countries have national laws criminalizing forms of gender expression that target

26 transgender and gender nonconforming people. See Human Rights Watch, #Outlawed: “The Love That

27 Dare Not Speak Its Name”, http://internap.hrw.org/features/features/lgbt_laws/. In the majority of these

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1 countries, the punishment is imprisonment; in some, same-sex intimacy is punishable by death. In

2 addition, many countries have laws prohibiting public support of LGBTQ/H rights in an effort to silence

3 activists. The persecutory effect of such laws consists not just in the actual enforcement of the law, but

4 also in the chilling effect that the law has on a person’s ability to live openly as LGBTQ/H. The

5 criminalization of LGBTQ intimacy or expression, even if such laws are not regularly enforced,

6 increases the risks that LGBTQ/H individuals will be subject to extortion, prevents such refugees from

7 seeking the protection of police, and disincentivizes police from investigating, punishing and preventing

8 crimes against LGBTQ/H people. Furthermore, if a person is a criminal because of their sexual

9 orientation or gender identity, that fact also has seriously detrimental implications for their access to

10 healthcare, education, employment, and for their parental rights.

11

131. In short, by abandoning without adequate explanation the longstanding policy of

12 allowing adjudicators to determine on a case-by-case basis what harm amounts to persecution, the Final

13 Rule is arbitrary and capricious and therefore unlawful.

14

C. The Final Rule Mandates the Denial of Bona Fide Asylum Claims under the Guise

15

of Discretion.

16

132. The Final Rule is arbitrary and capricious because it makes Draconian changes to the

17 Departments’ application of discretion to asylum claims. As noted above, asylum is a form of

18 discretionary relief that allows the Secretary of Homeland Security or the Attorney General to grant

19 asylum to anyone who meets the definition of refugee. See 8 U.S.C. § 1158(b)(1)(A); INS v. Cardoza-

20 Fonseca, 480 U.S. 421, 423 (1987). After first establishing statutory eligibility for asylum, an applicant

21 must then merit a favorable exercise of discretion. Id. The discretionary determination requires the

22 balancing of positive and negative factors under a totality of the circumstances test. In re Pula, 19 I&N

23 Dec. 467, 473-74 (BIA 1987). The BIA has long held that given the grave humanitarian concerns, “the

24 danger of persecution should generally outweigh all but the most egregious of adverse factors.” Id.

25 Thus, once applicants demonstrate eligibility, there is a strong presumption that asylum should be

26 granted, which is only overcome if there are very substantial factors weighing against doing so.

27

133. The Final Rule breaks with over thirty years of precedent on how discretion should be

28 applied, rejecting long-established discretionary factors such as ties to the United States, living

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1 conditions, safety, potential for long-term residency in a third country, and general humanitarian

2 considerations, and reversing the heavy presumption that eligible applicants should be granted asylum.

3 Instead, the Final Rule establishes nine “adverse discretionary factors” and three “significant adverse

4 discretionary factors” that essentially eliminate the discretion of adjudicators altogether. 85 Fed. Reg.

5 80,387-88 (to be codified as 8 C.F.R. §§ 208.13(d), 1208.13(d)). Despite their name, the “adverse

6 discretionary factors” are mandatory in character: subject to extremely limited exceptions, a favorable

7 exercise of discretion must be denied if they are present. See id. § 208.13(d)(2)(i) (“The Secretary,

8 except as provided in paragraph (d)(2)(ii) of this section, will not favorably exercise discretion under

9 section 208 of the Act . . . .”), § 1208.13(d)(2)(i). An “adverse discretionary factor” may be overcome

10 only:

11

. . . in extraordinary circumstances, such as those involving national security or foreign

12

policy considerations, or cases in which an alien, by clear and convincing evidence, demonstrates that the denial or referral (which may result in the denial by an immigration

13

judge) of the application for asylum would result in exceptional and extremely unusual

hardship to the alien[.] 14
Id. §§ 208.13(d)(2)(ii), 1208.13(d)(2)(ii). “Depending on the gravity of the circumstances underlying

15 the [adverse discretionary factor], a showing of extraordinary circumstances might still be insufficient

16 to warrant a favorable exercise of discretion.” Id.

17 134. The Final Rule does not provide clear guidance as to how the three “significantly adverse

18 discretionary factors” will affect an application, other than that they “shall” be considered, id. §§

19 208.13(d)(1), 1208.13(d)(1), but their designation as “significantly adverse” indicates that they carry

20 even more negative consequences than factors that are merely “adverse.” The Final Rule’s plain text

21 and structure thus indicates that, to overcome a “significant adverse discretionary factor,” the applicant

22 must show something more than the “extraordinary circumstances” or “exceptional and extremely

23 unusual hardship” that would suffice for factors that are merely “adverse.” Id. §§ 208.13(d)(2)(ii),

24 1208.13(d)(2)(ii).

25 135. In short, although these factors are framed as discretionary, the Final Rule effectively

26 strips adjudicators of their discretionary authority, forcing them to deny meritorious asylum claims

27 (except in “extraordinary” or “extremely unusual” cases) based on factors that have nothing to do with

28

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1 the underlying claim. The Departments’ repeated mischaracterizations of these factors as

2 “discretionary,” both in the Final Rule’s Preamble and the text of the rule itself, show that the

3 Departments have not adequately analyzed—or do not understand—the implications of their own rule,

4 rendering these “discretionary” factors arbitrary and capricious. Two aspects of the list of “discretionary

5 factors” raise particular concerns under the APA: the factor related to one year of unlawful presence,

6 and those related to third country transit. These factors are arbitrary, capricious, and contrary to law for

7 the additional reasons discussed below.

8

i.

The Final Rule Unlawfully Erases Statutory Exceptions to the One-Year

Filing Deadline. 9

136. The Final Rule effectively erases the INA’s statutory exceptions to the one-year filing

10

deadline, abandoning decades of settled precedent and policy with no rational explanation and denying

11

relief to applicants who have legitimate reasons to wait more than one year after their arrival before

12

applying for asylum. The Final Rule is therefore both contrary to law and arbitrary and capricious.

13

137. The Final Rule’s changes will have devastating consequences for LGBTQ/H refugees,

14

who are often unable to apply for asylum within the first year of their arrival in the United States. The

15

Final Rule arbitrarily bars asylum for LGBTQ/H applicants who, among other things, were not able to

16

immediately understand their LGBTQ identity, did not feel safe disclosing their sexual orientation or

17

gender identity, developed a well-founded fear of persecution based on anti-LGBTQ developments in

18

their country of origin, discover that they are HIV-positive, or other developments more than one year

19

after their last arrival in the United States.

20

138. Under the INA, an asylum applicant must “demonstrat[e] that the application has been

21

filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).

22

However, Congress mandated that the one-year filing deadline does not apply “if the alien demonstrates

23

to the satisfaction of the Attorney General” either (1) “the existence of changed circumstances which

24

materially affect the applicant’s eligibility,” or (2) “extraordinary circumstances relating to the delay in

25

filing an application within the period specified in subparagraph (B).” 8 U.S.C. § 1158(a)(2)(D).

26

139. The Final Rule effectively eliminates both of these statutory exceptions and mandates

27

denial of asylum where the applicant misses the one-year filing deadline without regard to changed or

28

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1 extraordinary circumstances. Under the Final Rule, the Secretary or Attorney General (as

2 applicable) “will not favorably exercise discretion under section 208 of the Act for an alien

3 who: . . . Accrued more than one year of unlawful presence in the United States, as defined in sections

4 212(a)(9)(B)(ii) and (iii) of the Act, prior to filing an application for asylum.” 85 Fed. Reg. 80,387-88,

5 80,396-97 (to be codified as 8 C.F.R. §§ 208.13(d)(2)(i)(D); 1208.13(d)(2)(i)(D)).

6

140. The only exceptions to this mandatory denial of asylum under the Final Rule are

7 significantly narrower than the statutory exceptions Congress set forth in the INA. 8 U.S.C. §

8 1158(a)(2)(D). Under the Final Rule, where an applicant seeks asylum beyond the one-year filing

9 deadline, the Secretary “may” (but need not) exercise discretion to grant asylum (1) “in extraordinary

10 circumstances, such as those involving national security or foreign policy considerations,” or (2) where

11 the “alien, by clear and convincing evidence, demonstrates that the denial or referral (which may result

12 in the denial by an immigration judge) of the application for asylum would result in exceptional and

13 extremely unusual hardship to the alien.” 85 Fed. Reg. 80,387-88, 80,396-97 (to be codified as 8 C.F.R.

14 §§ 208.13(d)(2)(ii), 1208.13(d)(2)(ii)). Notably, contrary to the plain language of the INA, a change in

15 circumstances that materially affects the applicant’s eligibility is no longer sufficient for an exemption

16 from the one-year filing deadline under the Final Rule.

17

141. Additionally, the Final Rule eliminates the longstanding recognition of a variety of

18 extraordinary circumstances that justified failures to file for asylum within one year, such as if the

19 applicant suffered from Post-Traumatic Stress Disorder or other significant health problems, or had

20 diminished mental capacity. The Final Rule narrows extraordinary circumstances to national security

21 or foreign policy considerations.

22

142. Moreover, the Final Rule purports to impose a burden of proof on asylum applicants

23 inconsistent with the INA. Under the INA, an applicant seeking an exemption from the one-year filing

24 deadline need demonstrate only changed or extraordinary circumstances “to the satisfaction of the

25 Attorney General.” 8 U.S.C. § 1158(a)(2)(D). The Final Rule, by requiring the applicant to demonstrate

26 “exceptional and extremely unusual hardship” by “clear and convincing evidence,” unlawfully imposes

27 a heightened burden of proof on asylum applicants which is inconsistent with the congressional

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1 framework for asylum. 85 Fed. Reg. 80,388, 80397 (to be codified as 8 C.F.R. §§ 208.13(d)(2)(ii),

2 1208.13(d)(2)(ii)). See Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir. 2011) (“Changes circumstances

3 . . . are not evaluated under a ‘clear and convincing’ standard”).

4

143. A large number of Plaintiffs’ members and clients who file for asylum entered the United

5 States between ports of entry and lacked lawful status when they entered. Many others had lawful status

6 when they entered, but nevertheless accrued more than one year of unlawful status prior to filing. For

7 these applicants, the Final Rule’s “one year of unlawful presence” rule is effectively a substitute for the

8 statutory one-year filing deadline. However, to overcome this new standard, the applicants must now

9 satisfy the exacting threshold and burden of proof set forth in proposed 8 C.F.R. §§ 208.13(d)(2)(ii),

10 1208.13(d)(2)(ii) rather than the comparatively more lenient exceptions to the one-year filing deadline

11 that Congress enacted in 8 U.S.C. § 1158(a)(2)(D). Thus, in the vast majority of cases, the Final Rule

12 would render § 1158(a)(2)(D) obsolete. Because it renders this carefully draft statute superfluous, the

13 Final Rule is contrary to law.

14

144. The Departments also fail to meaningfully address relevant comments or offer any

15 rationale for changing this longstanding asylum practice. The Departments acknowledge that

16 commenters expressed concerns that LGBTQ individuals may require more than one year to recognize

17 and understand their identities, and that this process often necessitates safety, security, and a support

18 system that is frequently unavailable during flight from their home countries. 85 Fed. Reg. 80,354.

19 Rather than substantively responding to these serious concerns, the Departments attempt to ignore them,

20 claiming that “[t]his factor, like the other factors, is not a bar to asylum,” and suggesting that “[f]or the

21 discrete populations referenced by the commenters who file outside the one-year deadline, adjudicators

22 may consider those circumstances in accordance with the rule,” but that is not what the Final Rule says.

23 Id. at 80,355. These cursory and conclusory responses do not adequately address commenters’ concerns,

24 and serve only to highlight the arbitrary and capricious nature of the Departments’ rulemaking. A

25 fortiori, the Departments have not justified ignoring Congress’ definition and level of proof for

26 exceptions to the One-Year Bar.

27

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1

145. The Final Rule’s unlawful erasure of statutory exceptions to the one-year filing deadline

2 is particularly devastating to LGBTQ/H asylum seekers, who often have compelling reasons for waiting

3 more than one year before applying for asylum. Many LGBTQ asylum seekers struggle for years after

4 arriving in the United States to understand and accept their sexual orientations and gender identities.

5 The Final Rule nevertheless arbitrarily mandates denial of asylum for LGBTQ/H applicants who fail

6 immediately to seek asylum based on an LGBTQ/H identity that they did not understand or were

7 incapable of expressing during their first year in the United States.

8

146. Moreover, the Final Rule would in many cases foreclose asylum relief for transgender

9 applicants who filed after transitioning more than one year after entering the country. And LGBTQ/H

10 individuals may not feel safe immediately disclosing their sexual orientation or gender identity once in

11 the United States, especially in light of the Final Rule’s change regarding disclosure of asylum

12 application information. 85 Fed. Reg. 80,386-87, 80,395-96 (to be codified as 8 C.F.R. §§ 208.6,

13 1208.6).

14

147. In addition, the Final Rule would result in the denial of asylum for LGBTQ/H applicants

15 who develop a well-founded fear of persecution after more than one year in the United States due to

16 anti-LGBTQ/H political or legal changes in their country of origin. Whereas the INA provides an

17 exemption from the one-year filing deadline in such circumstances (8 U.S.C. § 1158(a)(2)(D)), the Final

18 Rule impermissibly eliminates exemptions based on a change in circumstances materially affecting an

19 applicant’s eligibility for asylum.

20

148. As such, the Final Rule would have a deleterious impact on the prospect for asylum for

21 Plaintiffs’ clients. One need only look to a few of Immigration Equality’s clients for whom the Final

22 Rule would dictate denial of their claims due to the elimination of the previously recognized changed

23 and extraordinary circumstances exceptions to the One-Year Bar:

24

 Orlando is a genderqueer person from Honduras who came to the United States when they

25

were around 8 years old. In Honduras, and as a child, Orlando was raped on account of their

26

perceived sexual orientation. On their way to the United States, Orlando was raped again by

27

someone in Mexico. In the United States, Orlando lived in a very homophobic household.

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1

Their stepfather regularly beat them because of their sexual orientation. Because of the

2

constant abuse, Orlando lived with severe mental health issues. Orlando was finally able to

3

leave their house when they started going to college. In college, Orlando began receiving

4

therapy to manage their mental health conditions and was eventually able to come to terms

5

with their LGBTQ identity and ultimately file for asylum. Under the Final Rule, they would

6

be denied asylum as a matter of discretion despite the fact that Orlando’s mental health

7

conditions prevented them from filing an application for asylum until after they turned

8

eighteen.

9

 Anita is a transgender woman from Syria who came to the United States when she was a

10

child. In the United States, growing up in a very traditional family, Anita was not allowed

11

to explore her gender identity. Stereotypical views and roles of gender were imposed upon

12

her. She suppressed her gender identity and as a result lived with depression. When Anita

13

was in her mid-thirties, she finally felt free to explore her gender identity and started to

14

transition. Under the Final Rule, Anita would not be able to apply for asylum despite the

15

fact that she had very recently discovered her gender identity and was finally able to express

16

it. This would have been recognized as a changed circumstances exception to the One-Year

17

Bar.

18

 Martin is a gay man from Ecuador who came to the United States in 2009. Martin had

19

suffered horrific persecution on account of his sexual orientation in Ecuador. Because of the

20

persecution, Martin lived with depression. In the United States, Martin was diagnosed with

21

HIV in 2016. Because of the diagnosis, Martin experienced a serious depressive episode. He

22

was unable to even get out of bed. Under the Final Rule, Martin would not be able to apply

23

for asylum even though he had recently been diagnosed with HIV and even though his

24

depression prevented him from filing an application for asylum soon after his diagnosis,

25

comprising both changed and extraordinary circumstances under longstanding interpretation

26

of the statutory exceptions to the One-Year Bar.

27

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1

149. Thus, the Final Rule is arbitrary and capricious and contrary to law because it unlawfully

2 erases the INA’s statutory exceptions to the one-year filing deadline, abandons decades of settled policy

3 with no rational explanation, offers no explanation for why being unlawfully present in the United States

4 for more than one year before filing for asylum should be a ground for denial, and denies relief to

5 applicants who have legitimate reasons to wait more than one year after their arrival before applying for

6 asylum.

7

ii. The Final Rule Arbitrarily, Capriciously, and Unlawfully Restricts Asylum

for Refugees Who Transit Through Third Countries. 8

150. Under the new adverse and significantly adverse discretionary factors, the Final Rule

9

contains multiple arbitrary, capricious, and otherwise unlawful limitations on the availability of asylum

10

for applicants who transit through a third country before arriving in the United States. See 85 Fed. Reg.

11

80,387-88 (to be codified as 8 C.F.R. §§ 208.13(d)(1), (2)(i)(A), (B), 1208.13(d)(1), (2)(i)(A), (B))

12

(collectively, the “Transit Rules”). The Transit Rules are contrary to and undermine the structure and

13

objectives of 8 U.S.C. § 1158 by penalizing applicants regardless of whether they would have been safe

14

from persecution in the transit country, whether asylum was reasonably available in such country, or

15

whether their underlying claims of asylum have merit.

16

151. The Transit Rules likely will eliminate asylum for a significant number, if not the

17

majority, of asylum seekers. Most asylum seekers are from countries that are non-contiguous with the

18

United States, i.e., other than Mexico or Canada. Many if not most asylum seekers must reach the

19

United States by crossing the southern border by land, requiring passage through Mexico and,

20

frequently, Guatemala as well. Additionally, many countries, including those with well-documented

21

histories of persecution against LGBTQ/H individuals and other vulnerable sub-groups, do not have

22

non-stop commercial flights into the United States, requiring refugees to pass through at least one other

23

country. Moreover, in some cases a refugee will flee to a neighboring country, discover that they are

24

still in danger, and then press onwards to the United States.

25

152. The Transit Rules will have particularly devastating consequences for LGBTQ/H

26

refugees, including Plaintiffs’ current and future clients fleeing persecution in Guatemala, El Salvador,

27

Honduras, and other countries where violence against the LGBTQ/H community is widespread, because

28

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1 of the inability of many of these refugees to directly transit to the United States and because of the risk

2 such refugees often face in neighboring countries through which they transited, when there is regional

3 persecution of LGBTQ/H people.

4

a. Summary of the Transit Rules

5

153. The Final Rule specifies two circumstances relating to third-country transit under which

6 the Secretary or Attorney General, as applicable, “will not favorably exercise discretion under [8 U.S.C.

7 § 1158]” for the applicant. Specifically, proposed 8 C.F.R. § 208.13(d)(2)(i), 1208.13(d)(2)(i) sets forth

8 the following:

9

 First, the Final Rule provides (subject to limited exceptions) that the Secretary or

10

Attorney General “will not favorably exercise discretion” if an applicant “[t]ransits

11

through more than one country between his country of citizenship, nationality, or last

12

habitual residence and the United States.” 85 Fed. Reg. 80,387 (to be codified as 8 C.F.R.

13

§§ 208.13(d)(2)(i)(B), 1208.13(d)(2)(i)(B)) (the “Multiple Third Country Rule”).

14

 Second, the Final Rule provides (subject to limited exceptions) that the Secretary or

15

Attorney General “will not favorably exercise discretion” if an applicant, “[i]mmediately

16

prior to his arrival in the United States or en route to the United States from the alien’s

17

country of citizenship, nationality, or last lawful habitual residence, spent more than 14

18

days in any one country.” 85 Fed. Reg. 80,387 (to be codified as 8 C.F.R. §§

19

208.13(d)(2)(i)(A), 1208.13(d)(2)(i)(A)) (the “14-Day Rule”).

20

154. The Final Rule erroneously characterizes these rules as “discretionary considerations.”

21 85 Fed. Reg. at 36,284. However, this characterization is belied by the plain text of the regulation,

22 which states that the adjudicator “will not favorably exercise discretion”—i.e., must deny the

23 application—if the rule is triggered. 8 C.F.R. § 208.13(d)(2)(i) (proposed) (emphasis added). The

24 Multiple Third Country Rule and 14-Day Rule are therefore per se limitations on eligibility, rather than

25 mere discretionary factors, as they eliminate the discretion of the adjudicator to grant asylum if the rule

26 applies.

27

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1

155. The Final Rule penalizes asylum applicants in other ways for transit through third

2 countries, setting forth three common scenarios that the adjudicator must consider as “significant

3 adverse discretionary factors” in determining whether to grant asylum in the exercise of discretion.

4 Specifically, proposed 8 C.F.R. § 208.13(d)(1), 1208.1 set forth the following:

5

 First, it is a “significant adverse discretionary factor” if the applicant transited through a

6

third country and “fail[ed] . . . to apply for protection from persecution or torture” in such

7

country (subject to narrow exceptions). 85 Fed. Reg. 80387 (to be codified as 8 C.F.R.

8

§§ 208.13(d)(1)(ii), 1208.13(d)(1)(ii)) (the “Failure-To-Apply Factor”).

9

 Second, it is a “significant adverse discretionary factor” if the applicant transited through

10

a third country and then entered or attempted to enter the United States unlawfully, unless

11

the applicant was under 18 at the time of such entry or attempted entry. 85 Fed. Reg.

12

80,387 (to be codified as 8 C.F.R. §§ 208.13(d)(1)(i), 1208.13(d)(1)(i)) (the “Unlawful

13

Entry Factor”).

14

 Third, it is a “significant adverse discretionary factor” if the applicant transited through

15

a third country and then “use[d] . . . fraudulent documents to enter the United States.” .”

16

85 Fed. Reg. 80,387 (to be codified as 8 C.F.R. §§ 208.13(d)(1)(iii), 1208.13(d)(1)(iii))

17

(the “Fraudulent Entry Factor”).

18

156. An adjudicator is not required to deny an application solely because of the existence of a

19 “significant adverse discretionary factor.” However, the plain meaning of “significant” will require

20 adjudicators to apply a strong presumption against asylum which, in practice, upon information and

21 belief, will result in denial in a majority of cases. Furthermore, if a “regular” adverse discretionary

22 factor may be overcome only by a demonstration of “extraordinary circumstances or “exceptional and

23 extremely unusual hardship,” it is difficult to imagine how an applicant might ever overcome a

24 “significant” discretionary factor. Even worse, the plain text of the regulation indicates that these

25 “adverse” and “significant adverse” factors apply cumulatively, so that they are harder to overcome if

26 multiple such factors apply.

27

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1

157. There are three narrow exemptions to the Multiple Third Country Rule, 14-Day Rule,

2 and Failure-To-Apply Factor where: (i) the applicant received a final judgment denying protection in

3 the third country (the “Judgment Exception”); (ii) the applicant was a “victim of a severe form of

4 trafficking in persons” as defined under 8 C.F.R. § 214.11 (the “Trafficking Exception”); or (iii) the

5 transit country was not party to the 1951 Convention, 1967 Protocol, or CAT (the “Nonparty

6 Exception”). 85 Fed. Reg. 80,387-88 (to be codified as 8 C.F.R. §§ 208.13(d)(1)(ii)(A)-(C),

7 (2)(i)(A)(1)-(3), (B)(1)-(3), 1208.13(d)(1)(ii)(A)-(C), (2)(i)(A)(1)-(3), (B)(1)-(3)). These narrow

8 exceptions do not apply to the Unlawful Entry Factor or Fraudulent Entry Factor and in any event to the

9 vast majority of Plaintiffs’ LGBTQ/H clients.

10

158. The Transit Rules do not take into account whether an applicant feared persecution or

11 torture in the transit country itself, such as where refugees escaping persecution on account of their

12 sexual orientation, gender identity, gender expression, or HIV-positive status must travel through a

13 country that is equally hostile to LGBTQ/H people. Nor do the Transit Rules take into account if asylum

14 or other forms of protection were reasonably available in the third country, if the applicant was an

15 unaccompanied minor (except in the context of the Unlawful Entry Factor), or if the transit country had

16 a grossly underfunded asylum system, removing asylum as a viable option in that country.

17

159. To the extent that the Departments allege that the transit bans are necessary to increase

18 efficiency of adjudicating cases, this rings hollow. First, by that logic, any absolute bar to asylum would

19 increase “efficiency” because every asylum seeker subject to it would lose before they even applied.

20 What makes an asylum system “efficient” is not denying the maximum number of cases possible, but

21 effectively sorting meritorious from non-meritorious cases. By blanketly penalizing applicants for

22 criteria that have nothing to do with whether they qualify as refugees entitled to asylum, the Transit

23 Rules do not strengthen, but weaken, the efficiency of the system.

24

160. Second, to the extent that a case involving one of the Transit Rules may be subject to an

25 exception, analyzing whether the exception applies (such as whether the applicant’s hardship qualifies

26 as “exceptional and extremely unusual”) would require more factfinding, not less.

27

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1

161. Finally, in promulgating the Transit Rules, the Departments utterly fail to explain why

2 they warrant such striking negative discretion. Mandating the denial of otherwise meritorious asylum

3 claims on such flimsy and unjustifiable discretionary grounds is arbitrary and capricious.

4

b. The Departments’ Previous, Unsuccessful Attempt to Implement a Transit

5

Ban.

162. This is not the first time the Departments have sought to eliminate asylum for refugees

6

who transit through a third country before arriving in the United States. The Defendants’ previous

7

unsuccessful attempt further demonstrates the arbitrary and capricious nature of the Transit Rules.

8

163. On July 16, 2019, the Departments promulgated an interim final rule that similarly

9

restricted asylum for applicants who “enter[ed], attempt[ed] to enter, or arrive[d] in the United States

10

across the southern land border . . . after transiting through at least one country outside the alien’s

11

country of citizenship, nationality, or last lawful habitual residence en route to the United States.”

12

Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,830 (Jul. 16, 2019) (codified

13

at 8 C.F.R. § 208.13(c)(4), 1208.13(c)(4)) (the “2019 Transit Ban”). The 2019 Transit Ban contained

14

three exceptions, identical to the Judgment Exception, Trafficking Exception, and Nonparty Exception

15

under the current Transit Rules.

16

164. The 2019 Transit Ban was enjoined by a court in this District. See E. Bay Sanctuary

17

Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019), stay granted in part and denied in part, 934

18

F.3d 1026 (9th Cir. 2019), injunction restored, 391 F. Supp. 3d 974 (N.D. Cal. 2019). On July 6, 2020,

19

the Ninth Circuit affirmed the injunction of the 2019 Transit Ban, holding that the ban was arbitrary,

20

capricious, contrary to law, and in excess of the Departments’ statutory authority. 964 F.3d 832 (9th

21

Cir. 2020).

22

165. Critical to the Ninth Circuit’s holding was its conclusion that “the [2019 Transit Ban]

23

does virtually nothing to ensure that a third country is a ‘safe option’” for the applicant. Id. at 847

24

(cleaned up). The lack of such exception, the Ninth Circuit held, was inconsistent with the INA’s safe

25

third country and firm resettlement bars, which require that “an otherwise qualified alien can be denied

26

asylum only if there is a ‘safe option’ in another country.”’ Id. at 848; see 8 U.S.C. § 1158(a)(2)(A),

27

(b)(2)(A)(vi). Furthermore, the Ninth Circuit found that the limited exceptions under the 2019 Transit

28

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1 Ban did “not remotely resemble the assurances of safety built into” the safe country and firm

2 resettlement bars. E. Bay Sanctuary Covenant, 964 F.3d at 847.

3

c. The Transit Rules Are Contrary to Law and Exceed the Departments’

4

Statutory Authority Because They Lack an Exception Where the Transit Country Is Not Safe.

5

166. Like the 2019 Transit Ban, the Transit Rules included in the Final Rule violate the INA.

6 As noted by the Ninth Circuit in E. Bay Sanctuary Covenant and discussed above, the INA contains two

7 provisions—the safe third country bar and the firm resettlement bar—that preclude eligibility for

8 asylum. 8 U.S.C. § 1158(a)(2)(A), (b)(2)(A)(vi).

9

167. The safe third country bar states that refugees are ineligible for asylum where the asylum

10 seekers may be safely removed to a third country in which they would not face persecution and would

11 have access to “a full and fair procedure for determining a claim to asylum or equivalent temporary

12 protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum

13 in the United States.” 8 U.S.C. § 1158(a)(2)(A). The firm resettlement bar provides that applicants are

14 ineligible for asylum if they were “firmly resettled in another country prior to arriving in the United

15 States.” 8 U.S.C. § 1158(b)(2)(A)(vi).

16

168. In enacting 8 U.S.C. §§ 1158(a)(2)(A) and (b)(2)(A)(vi), Congress required that no

17 asylum seekers should be denied relief on account of their transit through a third country unless, at

18 minimum, the asylum seekers were or would be safe from persecution in such country.

19

169. Like the 2019 Transit Ban, the Transit Rules, collectively and individually, are contrary

20 to law and exceed the Departments’ statutory authority because they permit or require the adjudicator

21 to deny an asylum application based on the fact of transit through a third country, even if the third

22 country was or would not have been a safe option for the applicant. Commenters noted that the

23 elimination from the Final Rule of third country safety considerations would be devastating for many

24 asylum applicants. The Departments nonetheless refused to reincorporate the safety of third countries

25 as a consideration in this provision of the Final Rule and instead responded that third country safety may

26 be considered only in “extraordinary circumstances” where there is “exceptional or extremely unusual

27

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1 hardship.” 85 Fed. Reg. 80,348. These vague qualifiers will make the safety consideration rare or non-

2 existent.

3

170. The limited Judgment, Trafficking, and Nonparty Exceptions, like their equivalent

4 counterparts under the 2019 Transit Ban, do not cure this defect. The Judgment Exception is relevant

5 only where the transit country (1) is a safe place for the applicant to reside while their asylum application

6 is pending and (2) has a functional asylum system in the first place, which frequently will not be the

7 case. The Trafficking Exception is likely to apply only to a small subset of asylum claims. And the

8 Nonparty Exception is irrelevant; most countries in the world, including many with deplorable human

9 rights records, are nominally party to the anti-torture conventions and protocols. That includes Mexico

10 and every country in Central America, most of which the U.S. Department of State has concluded

11 persecute LGBTQ/H people.

12

d. The 14-Day Rule and Multiple Country Rule Are Contrary to Law and

13

Exceed the Departments’ Statutory Authority Because They Make the Statutory Firm Resettlement Rule Superfluous.

14

171. Although the term “firmly resettled” is not defined in the INA, the plain meaning of this

15 phrase denotes secure, fixed residence.5 Moreover, under long-standing precedent, firm resettlement is

16 construed to mean an offer of permanent resident status, citizenship, or some other form of permanent

17 resettlement. Congress thus unambiguously expressed its intent that adjudicators should not find asylum

18 seekers ineligible solely on account of supposed resettlement in a transit country absent evidence that

19 the applicant has an invitation by a safe country to establish a fixed and secure residence there.

20 Inconsistent with this intent, the 14-Day Rule and Multiple Third Country Rule require that asylum be

21 denied, absent rare, extraordinary circumstances, regardless of whether the nature and duration of such

22 presence amounted to firm resettlement within the meaning of 8 U.S.C. § 1158(b)(2)(A)(vi). The 14-

23 Day Rule and Multiple Third Country Rule negate the firm resettlement rule in the overwhelming

24 majority of cases in which it would otherwise apply. Accordingly, these rules are contrary to law and

25 exceed the Departments’ statutory authority.

26

27

5 The Departments recognize that “[t]he dictionary definition of ‘firm’ is ‘securely or solidly fixed in place,’ not ‘uncertain,’ and ‘not subject to change or revision.’ Firm, Merriam Webster,

28 https://www.merriamwebster.com/dictionary/firm.”

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1

e. The Transit Rules Arbitrarily and Capriciously Penalize Asylum Seekers

Even If They Do Not Have Reasonable Access to Asylum in Their Transit

2

Country.

3

172. The Transit Rules are arbitrary and capricious, among other reasons, because they are

4 based on the false assumption that “there is a higher likelihood that aliens who fail to apply for protection

5 in a country through which they transit en route to the United States are misusing the system.” 85 Fed.

6 Reg. at 80,346. In support of that erroneous statement, the Departments provide no evidence, but only

7 a cursory citation to the now-enjoined 2019 Transit Ban. See id. The fact that the Ninth Circuit struck

8 down the sole proffered basis for the Transit Rules confirms that there is none and that it is arbitrary and

9 capricious.

10

173. The Transit Rules do not rationally address this purported concern because they penalize

11 applicants regardless of whether it would have been safe and feasible to seek protection in the transit

12 country. The Final Rule’s failure to acknowledge this glaring disconnect between the effect of the

13 Transit Rules and their proffered justifications in and of itself renders the Transit Rules arbitrary and

14 capricious. The Departments responded to the public comments on this subject matter by noting only

15 that asylum availability may be considered in “exceptional” or “extremely unusual” circumstances—

16 effectively nullifying the consideration, given the very narrow scope of grounds the Final Rule

17 recognizes as exception or extremely unusual, as discussed in connection with the One-Year Bar. 85

18 Fed. Reg. 80348.

19

174. Furthermore, there are compelling reasons why individuals may fail to apply for asylum

20 in transit countries. Refugees fleeing persecution are often subject to immense cultural hostility that

21 transcends national borders. In Mexico, for example, “68.3 percent of people from the [Northern

22 Triangle]6 reported that they were victims of violence,” and “31.4 percent of women and 17.2 percent

23 of men had been sexually abused.”7 The peril is particularly great for LGBTQ refugees: according to

24 Amnesty International, two-thirds of LGBTQ asylum seekers from the Northern Triangle reported

25 6 The Northern Triangle refers to the three Central American countries of Guatemala, Honduras, and
26 El Salvador.

27

7 Médecins Sans Frontières, Forced To Flee Central America’s Northern Triangle: A Neglected Humanitarian Crisis 11-12 (May 2017), http://urbanspaces.msf.org/wp-content/uploads/2019/03/

28 forced-to-flee-central-americas-northern-triangle_-a-neglected-humanitarian-crisis.pdf.

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1 suffering sexual and gender-based violence in Mexico, augmenting the high levels of crime and human

2 rights violations reported against migrants generally.8 “Trans women in particular encounter persistent

3 abuse and harassment in Mexico at the hands of drug traffickers, rogue immigration agents and other

4 migrants.”9

5

175. Applicants may also be unable to apply for asylum when transit countries lack an

6 efficient, well-funded asylum system capable of processing claims. The asylum system in Mexico, for

7 instance, has been characterized as “restrictive, severely underfunded and underdeveloped,” and it

8 “faces significant staffing and infrastructure limitations.”10 The UNHCR has observed that “[t]he

9 absence of proper protection screening protocols for families and adults, the lack of a systematic

10 implementation of existing best interest determination procedures for unaccompanied children and

11 detention of asylum-seekers submitting their claim at border entry points” are all “strong obstacles to

12 accessing the asylum procedure” in Mexico.11 Consequently, “the Mexican government is routinely

13 failing in its obligations under international law to protect those who are in need of international

14 protection.”12 The asylum system is similarly dysfunctional in neighboring Guatemala, where the

15 government office that specializes in processing asylum claims had “a staff of three caseworkers, three

16 investigators, and one supervisor.”13

17 8 See Amnesty International, No Safe Place: Salvadorans, Guatemalans and Hondurans Seeking Asylum

18

In Mexico Based On Their Sexual Orientation And/Or Gender Identity 20 (Nov. https://www.amnestyusa.org/wp-content/uploads/2017/11/No-Safe-Place-Briefing-ENG-1.pdf

2017), (citing

19 UNHCR, Población LGBTI en México y Centroamérica (2017), www.acnur.org/dondetrabaja/america/mexico/poblacion-lgbti-en-mexico-ycentroamerica/).

20

9 Jose A. Del Real, “‘They Were Abusing Us the Whole Way’: A Tough Path for Gay and Trans 21 Migrants,” The New York Times (July 11, 2018), https://www.nytimes.com/2018/07/11/us/lgbt-

migrants-abuse.html. 22

10 See Dan Kosten, “Mexico’s Asylum System Is Inadequate,” National Immigration Forum (Oct. 28, 23 2019), https://immigrationforum.org/article/mexicos-asylum-system-is-inadequate/.

24 11 UNHCR, Fact Sheet: Mexico 2 (Apr. 2019), https://reporting.unhcr.org/sites/default/files/UNHCR%20Factsheet%20Mexico%20-
25 %20April%202019.pdf.

26 12 Amnesty International, Overlooked, Under-Protected: Mexico’s Deadly Refoulment Of Central Americans Seeking Asylum 5 (2018), https://www.amnestyusa.org/wp-
27 content/uploads/2018/01/AMR4176022018-ENGLISH-05.pdf.

28 13 Human Rights Watch, Deportation with a Layover: Failure of Protection under the US-Guatemala

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1

176. The Final Rule’s Failure-to-Apply Factor would have a disproportionate impact on

2 Plaintiffs’ LGBTQ/H clients. Take for example, Gogol and Daniel. They are a gay couple who fled

3 Georgia for the United States after experiencing persecution on account of their sexual orientation. In

4 route to the United States, they flew through Kiev, Ukraine. Under the Final Rule, since Gogol and

5 Daniel did not apply for asylum protection in Ukraine, they would likely be denied asylum in the United

6 States as a matter of “discretion.” But Ukraine is a country where homophobia is rampant, and where

7 they would be subjected to persecution similar to what they faced in Georgia. Moreover, the United

8 States routinely grants asylum to LGBTQ/H refugees from Ukraine.

9

177. The same holds true for Carmen, another Immigration Equality client. Carmen is a

10 transgender woman from Jamaica who fled severe persecution on account of her gender identity. In

11 coming to the United States, she took a flight from Jamaica to Mexico City and then travelled by bus

12 from Mexico City to Tijuana, where she presented herself at the U.S. Port of Entry. In Mexico, Carmen

13 was physically assaulted on account of her gender identity. The police who came to the scene sided

14 with the attackers. Luckily, Carmen was able to escape. Under the Final Rule, Carmen would likely be

15 denied asylum because she did not apply for asylum in Mexico before she requested asylum in the

16 United States. This would have been futile in Mexico where she was persecuted because of her gender

17 identity, and the United States often grants asylum to LGBTQ/H refugees from Mexico.

18

178. Due to these dangers and obstacles, many asylum seekers will not find long-term safety

19 in Mexico or other transit countries before arriving in the United States. The Departments’ failure to

20 address or even acknowledge this defect further renders the Transit Rules arbitrary and capricious.

21

f. The Transit Rules Arbitrarily and Capriciously Penalize Asylum Seekers

22

Who Entered the United States Unlawfully.

23

179. The Unlawful Entry and Fraudulent Entry Factors violate the congressional scheme for

24 asylum by penalizing asylum seekers who enter the United States without permission, a classification

25 that applies to a large percentage of asylum seekers. As the Second Circuit has observed, “if illegal

26 manner of flight and entry were enough independently to support a denial of asylum, we can readily

27 Asylum Cooperative Agreement (May 19, 2020), https://www.hrw.org/report/2020/05/19/deportation-
28 layover/failure-protection-under-us-guatemala-asylum-cooperative.

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1 take notice, from the facts in numerous asylum cases that come before us, that virtually no persecuted

2 refugee would obtain asylum.” Huang v. INS, 436 F.3d 89, 100 (2d Cir. 2006); accord E. Bay Sanctuary

3 Covenant v. Trump, 932 F.3d 742, 773 (9th Cir. 2018). Recognizing this reality, Congress expressly

4 provided that unlawful entry should not preclude eligibility for asylum. See 8 U.S.C. § 1158(a)(1) (“Any

5 alien who is physically present in the United States or who arrives in the United States (whether or not

6 at a designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum . . . .”)

7 (emphasis added).

8

180. Because refugees are, by definition, fleeing a severe threat to their life or liberty, they

9 have no realistic choice but to escape their persecutors by whatever means they can, enter the United

10 States, and apply for asylum once they have safely relocated. Furthermore, it can be difficult if not

11 impossible to secure avenues for lawful entry. Given these facts, applying a significant adverse

12 discretionary factor against asylum seekers who enter unlawfully or by means of fraudulent

13 documentation is arbitrary and capricious. Although numerous comments raised this concern, the

14 Departments declined to address the concern directly other than to derogate applicants for not entering

15 the country through legal and deliberate means and claiming, without support, that this Final Rule

16 provision would have little impact because it does not pertain to the majority of asylum applicants in

17 any event.

18

181. The Unlawful Entry and Fraudulent Entry Factors are particularly irrational in light of

19 other aspects of the Final Rule. As discussed further below, the Final Rule redefines “persecution” to

20 require an “exigent threat” and categorically excludes threats that are seen as less-than-exigent, such as

21 “threats with no actual effort to carry out the threats” and “[t]he existence of government laws or policies

22 that are unenforced or infrequently enforced.” 8 C.F.R. §§ 208.1(e), 1208.1(e) (proposed). In other

23 words, the Final Rule already restricts asylum to those who suffered forms of persecution creating an

24 immediate threat of death or harm. Waiting in one’s country of origin while attempting to navigate the

25 United States immigration or visa process is not an option for refugees facing an immediate threat of

26 death or severe harm.

27

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182. Finally, even if the Government has a legitimate interest that justifies weighing unlawful

2 entry against an applicant as an adverse factor, the Unlawful Entry and Fraudulent Entry Factors apply

3 this discretion in an irrational way. There is no reason why the penalty for unlawful entry should be

4 different as between Mexican refugees and refugees from non-contiguous countries. The Departments’

5 appeal to generalized policy interests in curtailing illegal immigration do not adequately justify this line-

6 drawing.

7

183. These provisions negatively affect Plaintiffs’ clients. Take Lili, who Immigration

8 Equality assisted. Lili is a transgender woman from Central America. Throughout her life, Lili was

9 severely abused and mistreated because of her gender identity and sexual orientation. Lili was ganged

10 raped on two separate occasions simply for being transgender. Lili fled her country of origin to find

11 safety in the United States. She entered without inspection and was placed in immigration detention.

12 Lili represented herself in Immigration Court and was granted asylum. The Final Rule would deprive

13 Lili of relief despite her otherwise meritorious claim simply because she did not enter the United States

14 at a designated port of entry even as she was fleeing for her life and was likely to be further harmed in

15 Mexico.

16

g. The Transit Rules Arbitrarily and Capriciously Penalize Asylum Seekers

17

Who Are Present in a Transit Country For More Than 14 Days.

18

184. The 14-Day Ban is arbitrary and capricious because, in addition to illogically punishing

19 asylum seekers for the mere fact that they transited through a third country, the Final Rule will result in

20 denial for thousands of asylum applications simply because United States policy required them to remain

21 in Mexico for extended periods of time.

22

185. Since at least 2016, U.S. Customs and Border Protection has “metered” asylum seekers

23 attempting to enter the United States, limiting the number of individuals permitted to seek asylum at

24 ports of entry and requiring the remainder to remain in queue in Mexico.

25

186. It is patently unfair to deny an asylum application for reasons that are beyond the

26 applicants’ control and that are instead imposed by United States policy itself. The fact that an applicant

27 was forced to remain in Mexico due to metering therefore cannot rationally support an unfavorable

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1 exercise of discretion. The Final Rule fails to meaningfully address concerns about the impact of

2 metering on the 14-Day Ban.

3

187. When responding to public comments raising this concern, the Departments suggest that

4 applicants who are metered for more than 14 days in Mexico can seek asylum there, 85 Fed. Reg. at

5 80,351, but this ignores the reality that Mexico is dangerous for LGBTQ/H individuals and Mexico’s

6 asylum system is rife with insurmountable obstacles and inefficiencies. The Departments also suggest

7 that such applicants could introduce evidence that they were metered as an “extraordinary

8 circumstance,” id., but provide no assurance that applicants subject to this common practice will be able

9 to satisfy adjudicators that it qualifies as “extraordinary” or an “exceptional and extremely unusual”

10 form of hardship.

11

188. Similarly, the Departments state that applicants subject to the MPP will not be affected

12 by the 14-Day Ban because they “have entered the United States and were processed under MPP” and

13 “are no longer en route to the United States,” whereas the 14-Day Ban only applies where an applicant

14 stays in a country for 14 days “[i]mmediately prior to [their] arrival in the United States or en route to

15 the United States.” Id. However, the Departments did not add any regulatory language to clarify that

16 applicants subject to the MPP will not be excluded under the 14-Day Ban. Indeed, the Departments felt

17 the need to add a clarification to the Final Rule’s new definition of firm resettlement, explicitly stating

18 that one of the definitions would not apply to applicants subject to the MPP. See 8 C.F.R. §§

19 208.15(a)(2), 1208.15(a)(2) (“The alien physically resided voluntarily, and without continuing to suffer

20 persecution in any one country for one year or more after departing his country of nationality or last

21 habitual residence and prior to arrival in or entry into the United States, provided that time spent in

22 Mexico by an alien who is not a native or citizen of Mexico solely as a direct result of being returned to

23 Mexico pursuant to section 235(b)(2)(C) of the Act or being subject to metering would not be counted

24 for purposes of this paragraph”) (emphasis added). This indicates that the Departments believe that an

25 applicant’s stay in Mexico under the MPP may, in the absence of clarifying language, be deemed to

26 occur prior to their entry into the United States.

27

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h. The Transit Rules Arbitrarily and Capriciously Penalize Asylum Seekers

Who Transit Through More Than One Country.

2

189. Finally, the Multiple Third-Country Rule is arbitrary and capricious because there are no

3 rational grounds for treating asylum seekers who pass through multiple countries differently from those

4 who pass through a single country (or who arrive directly from their countries of origin).

5

190. For example, the Multiple Third-Country Rule would create an arbitrary distinction

6 between asylum seekers from Honduras (who must travel through Guatemala and Mexico to reach the

7 United States southern border) and those from Guatemala (who must travel only through Mexico to

8 reach the border). No rationale for this distinction is discernible from the Final Rule. The Departments’

9 response to public comments that raised this concern was simply to remark that other countries should

10 do their “fair share” of providing asylum, effectively shifting the United States’ asylum obligations to

11 other countries. 85 Fed. Reg. 80352. That shift in responsibility is contrary to this country’s obligations

12 to asylum seekers who are not present in the United States—and contrary to law.

13

191. The Multiple Third-Country Rule would negatively impact Plaintiffs’ clients. For

14 example, the Transgender Law Center’s client Kennedy, a Ghanaian man, would be barred under this

15 provision because he hid briefly in Togo, and then fled to the Americas, making his way from Ecuador,

16 through Colombia, Panama, Costa Rica, Nicaragua, Honduras, and Guatemala before reaching Mexico,

17 where he now waits for permission to enter the United States. One night, Kennedy and his same-sex

18 partner were caught together with one sitting on the other’s lap. As a result, a group of people from the

19 town attacked them. His partner went one way and Kennedy ran the other. Kennedy was beaten, hanged

20 from a tree, and left for dead. He managed to survive because the rope used to hang him did not break

21 his neck. He hung there all night, but eventually was able to get free. He left immediately after being

22 told by a sympathetic friend that he would have no safe place in Ghana. To this day he does not know

23 what happened to his partner. In Togo, he briefly hid with a cousin, but another cousin conveyed to him

24 that he was in danger and should leave immediately if he wanted to survive. It was impossible for

25 Kennedy to get a visa and money to fly directly to the United States from Ghana. The Multiple Third-

26 Country Rule would mean that he would not be eligible for asylum because he transited through multiple

27 countries in order to reach the United States.

28

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192. In sum, the Transit Rules draw an arbitrary distinction between refugees who pass

2 through multiple third countries and those who arrive directly from their country of origin or only transit

3 through one third country, even though there is no rational basis for such distinction. All else being

4 equal, refugees from non-contiguous countries who enter the United States by way of Mexico or other

5 transit countries should be treated no differently than Mexican asylum seekers entering the United States

6 directly. The only apparent reason for the Transit Rules is a naked desire by the Departments to reduce

7 the total number of asylum applications granted in the United States, an agenda that permeates the entire

8 Final Rule and other recent rulemaking by the Department but flies in the face of Congress’ intent in

9 enacting the INA as well as decades of policy and precedent providing a reasonable path to asylum for

10 meritorious applicants regardless of country of origin.

11

D. The Final Rule Is Unlawful Because It Redefines “Firm Resettlement” in a

12

Manner Inconsistent with the Plain Text of the INA.

13

193. The Final Rule is contrary to law because it sharply limits eligibility for asylum by

14 categorically deeming many refugees who reside briefly in third countries before arriving in the United

15 States as “firmly resettled” in such countries and thus barred from seeking asylum. Congress placed

16 statutory limits on the definition of “firm resettlement.” The Final Rule’s redefinition of the term vitiates

17 the plain language of the INA because (1) it circumvents other statutory language governing the

18 determination when a claimant may be remitted to a safe third country, and (2) it is inconsistent with

19 the plain meaning of “firm resettlement.” This change is especially harmful to LGBTQ/H asylum

20 seekers, because many of them will temporarily reside in third countries—in particular Mexico, Russia,

21 or Middle Eastern countries—where they may be deemed “resettled” under the new definition but will

22 still be exposed to persecution on account of their LGBTQ/H status.

23

194. Prior to the Final Rule, it was the Government’s burden to prove that applicants were

24 considered “firmly resettled,” and they could do so only by showing that the applicant had received an

25 offer of permanent residence from a third country prior to entering the United States. 8 C.F.R. §§ 208.15,

26 1208.15 (current). This regulatory interpretation was adhered to consistently for “nearly 30 years.” 85

27 Fed. Reg. at 36,285. Even if the applicants had received such an offer, they could still be eligible if they

28 transited the third country only during their travel to the United States, or if conditions in the third

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1 country were so restrictive that the applicant could not be considered resettled there. 8 C.F.R. §§

2 208.15(a) and (b), 1208.15 (a) and (b) (current).

3

195. The Final Rule broadens the definition of “firmly resettled” beyond any fair reading of

4 the statutory language. An applicant will now be considered “firmly resettled” under the Final Rule if

5 any of three separate circumstances exist:

6

(1) The alien resided in a country through which the alien transited

prior to arriving in or entering the United States and— 7

(i) Received or was eligible for any permanent legal immigration

8

status in that country;

9

(ii) Resided in such a country with any non-permanent but

indefinitely renewable legal immigration status (including asylee,

10

refugee, or similar status but excluding status such as of a tourist);

or 11

(iii) Resided in such a country and could have applied for and

12

obtained any non-permanent but indefinitely renewable legal

immigration status in that country; 13

(2) The alien physically resided voluntarily, and without continuing

14

to suffer persecution or torture, in any one country for one year or

more after departing his country of nationality or last habitual

15

residence and prior to arrival in or entry into the United States,

provided that time spent in Mexico by an alien who is not a native

16

or citizen of Mexico solely as a direct result of being returned to

Mexico pursuant to section 235(b)(2)(C) of the Act or of being

17

subject to metering would not be counted for purposes of this

paragraph; or 18

(3) (i) The alien is a citizen of a country other than the one where the

19

alien alleges a fear of persecution and the alien was present in that

country after departing his country of nationality or last habitual

20

residence and prior to arrival in or entry into the United States; or

21

(ii) The alien was a citizen of a country other than the one where

the alien alleges a fear of persecution, the alien was present in that

22

country after departing his country of nationality or last habitual

residence and prior to arrival in or entry into the United States, and

23

the alien renounced that citizenship after arriving in the United

States. 24

85 Fed. Reg. 80,388, 80,397 (to be codified as 8 C.F.R. §§ 208.15(a)(1)-(3), 1208.15(a)(1)-(3)).

25

196. The definition of “firm resettlement” set forth in proposed 8 C.F.R. §§ 208.15(a)(1) is

26

contrary to law for several reasons. First, rather than focusing on whether the applicant was, in fact,

27

firmly resettled, as Congress dictated, the new definition applies even if the applicant was “eligible” for

28

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1 or “could have applied for” legal status in that country. See 85 Fed. Reg. 80,388 (to be codified as 8

2 C.F.R. § 208.15(a)(1)). But the fact that a person could firmly resettle in a country does not mean they

3 have “firmly resettled.” Second, the definition set forth in proposed 8 C.F.R. §§ 208.15(a)(2) focuses

4 on whether the applicant resided for one year in the country without suffering persecution. But in view

5 of the text and structure of 8 U.S.C. § 1158(a) and (b), including the limitations on the safe third country

6 bar, the mere fact that an alien would not suffer persecution in a third country does not mean the alien

7 has “firmly resettled” there. Third, the definition set forth in 85 Fed. Reg. 80,388 (to be codified as 8

8 C.F.R. §§ 208.15(a)(3), 1208.15 (a)(3)) would deem an applicant “firmly resettled” in any third country

9 where they had citizenship and were physically present, no matter how brief or transitory such presence

10 is.

11

197. Even more fundamentally, the Final Rule’s redefinition of “firm resettlement” is at odds

12 with the plain meaning of the phrase “firmly resettled” itself, which is to be a “fixed, stable resident of

13 that country.” Public Comment of the Tahirih Justice Center (July 15, 2020), at 43,

14 https://downloads.regulations.gov/EOIR-2020-0003-4756/attachment_1.pdf. Under the Final Rule,

15 however, none of the three new definitions of “firmly resettled” (reproduced above) requires any

16 showing that the applicant was a “fixed, stable resident” of a third country. See 85 Fed. Reg. 80,388 (to

17 be codified as 8 C.F.R. § 208.15(a)(1), (a)(2), and (a)(3)). Rather, the use of the phrase “habitual

18 residence” as a substitute for “country of nationality” in subsections (2) and (3) infers that the use of the

19 plain word “resides” in subsection (1) by contrast means something more fleeting, and not “firm.”

20 Because the Final Rule redefines “firmly resettled” to embrace meanings inconsistent with the plain

21 meaning of the statutory language, it is invalid as contrary to law.

22

198. The Final Rule will have the effect of barring large numbers of asylum claimants who

23 are not, by any stretch of the imagination, “firmly resettled” in a third country.

24

199. The changed definition will have a particularly harsh impact on LGBTQ/H claimants,

25 who often briefly reside in countries (including Mexico and other Latin American countries) in which

26 they may suffer persecution. LGBTQ/H claimants may briefly reside in countries in which they have

27 citizenship but that have become unsafe for LGBTQ/H individuals due to regime change. LGBTQ/H

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1 claimants may also briefly reside in transit countries due to economic necessity, for example to earn

2 enough money for transportation to continue their flight to the United States, but they may still be subject

3 to persecution on account of their LGBTQ/H status while doing so.

4

200. The Departments’ responses to comments noting these defects fail to cure the fatal flaw

5 that this provision ignores the plain meaning of the term “firmly resettled” as used in the INA. The

6 Departments suggest that the term is “ambiguous,” 85 Fed. Reg. 80,363, but this is belied by the

7 Departments’ admission that the term “firmly resettled” has been interpreted the same way for the past

8 thirty years. 85 Fed. Reg. at 36,285 (“the definition of firm resettlement has remained the same for

9 nearly 30 years”). Indeed, the Departments recognize that “[t]he dictionary definition of ‘firm’ is

10 ‘securely or solidly fixed in place,’ not ‘uncertain,’ and ‘not subject to change or revision.’ Firm,

11 Merriam Webster, https://www.merriamwebster.com/dictionary/firm,” 85 Fed. Reg. 80,364, but at the

12 same time defend including in their expanded definition of refugees who only “could have” obtained

13 legal status in a third country, id. at 80,388 (to be codified as 8 C.F.R. § 208.15(a)(1), (a)(2), and (a)(3)).

14 This explanation not only fails to cure the facial legal defect, it is also arbitrary and capricious, because

15 it fails to provide any reasoned explanation for departing from decades of settled interpretation and from

16 Congress’s express intent.

17

201. The Departments’ responses also fail to articulate a rational basis for the Final Rule in

18 light of factual realities that the Departments themselves acknowledge, including that there are an

19 estimated “16 million refugees [who] have spent five years in countries where they could not be

20 considered firmly resettled,” but would be barred under the new definition, and that the Final Rule “does

21 not include exceptions for individuals who are victims of trafficking, lack the financial means to leave

22 a third country, or fear persecution in the third country.” 85 Fed. Reg. 80,362. The Departments’

23 responses fail to explain how a definition of “firmly resettled” that bars such refugees can possibly

24 comport with the INA or constitute rational policy.

25

202. Take for example Immigration Equality’s client, Mia. Mia is an HIV-positive,

26 transgender person from Jamaica. At 16, Mia was gang raped. When Mia told their family what had

27 happened, Mia was accused of “being gay” as a result of the rape and thrown out of the family home.

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1 Without a place to live, Mia was forced to live on the street in a storm drain with a group of homeless

2 LGBTQ/H youth where they all were routinely harassed, threatened, and beaten by homophobic

3 community members and by the police. Mia witnessed one of their friends being brutally stabbed to

4 death and three others being shot. Mia discovered they were HIV-positive when they were 18 years old.

5 On one occasion when they went to seek treatment at a clinic, Mia was viciously attacked by a group of

6 men who shouted homophobic slurs at them. Mia was seriously injured in the attack and needed stitches

7 on their face and leg. Four of their fingers were left permanently disfigured. Mia eventually fled

8 Jamaica and after an arduous journey arrived at the U.S./Mexico border. At the border, Mia was given

9 a number and forced to wait in Mexico for over three months to request asylum. In Mexico, Mia was

10 homeless for some time and suffered further persecution (including being attacked and robbed) on

11 account of their gender identity. Mia eventually made it to the United States and was granted asylum.

12 Given that she resided in Mexico after she fled Jamaica, Mia’s application would likely have been denied

13 under the Final Rule.

14

E. The Final Rule Unlawfully Precludes Consideration of “Particular Social Group”

15

Claims Advanced in Motions to Reopen or Reconsider.

16

203. The Final Rule precludes applicants from seeking asylum based on membership in a PSG

17 if they did not immediately raise and adequately define the boundaries of that PSG in their initial

18 application. 85 Fed. Reg. 80,394 (to be codified as 8 C.F.R. § 1208.1(c). This change is arbitrary and

19 capricious because it serves no rational purpose and fails to consider the wide range of real-world

20 circumstances—many of which disproportionately affect LGBTQ/H applicants—that may prevent

21 claimants from identifying as members of a PSG upon first applying for asylum. These changes are

22 also contrary to law because they violate the INA and applicants’ due process rights.

23

204. The Final Rule is drastically overbroad and fails to consider the myriad reasons an

24 asylum applicant may not be able to articulate the basis for their membership in a PSG in their initial

25 application, including: (1) the applicant’s lack of proficiency in English; (2) the fact that the applicant

26 is not being represented by counsel; (3) the fact that counsel was ineffective (recognized under the Final

27 Rule only if “egregious”); (4) the fact that the applicant is a minor; (5) the stress and trauma of the

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1 applicant’s experiences and of the removal proceedings themselves; or (6) changed circumstances or a

2 changed awareness of such circumstances.

3

205. The Final Rule is arbitrary and capricious because it fails to consider and properly

4 balance these critical factors and fails to explain why the new restriction is necessitated by the reason

5 given for this and other restrictions on the analysis of PSG claims: the desire to “avoid gamesmanship

6 and piecemeal litigation.” 85 Fed. Reg. 80,280. The Final Rule is much more extreme than necessary

7 to serve this efficiency goal and instead will wholly preclude many meritorious, good-faith asylum

8 claims.

9

206. The Departments’ desire to broadly preclude claims rather than simply guard against

10 gamesmanship is confirmed by the Final Rule’s failure to grant any discretion for the immigration judge

11 or the BIA to consider a “waived” PSG claim later in the proceedings, even when the claimant has good

12 reason for moving for reopening or reconsidering. Furthermore, both the immigration courts and the

13 BIA already can, and do, regularly exercise discretion to deny cases in which they suspect

14 gamesmanship to be present. In the very rare instances when they reopen cases, they do so only when

15 good cause for reopening is shown. The lack of any rational explanation for this punitive and over-

16 inclusive bar, other than a generalized preference for uniformity and efficiency, renders the Final Rule

17 arbitrary and capricious.

18

207. Moreover, the Departments fail to adequately respond to issues raised in a wide range of

19 filed comments, including comments pointing out that the harsh waiver rule will unfairly penalize many

20 LGBTQ/H claimants who are unable to raise their status in the initial application. While acknowledging

21 these comments, the Departments completely fail to grapple with them—pointing out that applicants

22 have always had to prove their membership in a PSG and defending the waiver rule merely as a

23 codification of the normal litigation rule that issues not raised are waived. 85 Fed. Reg. 80,311, 80,315,

24 80,316. These statements miss the point and ignore the realities lived by many LGBTQ/H individuals,

25 including the persecution and social stigmas they face and the fact that they may not even be aware of

26 their own status at the time of the initial application. The Final Rule is arbitrary and capricious because

27 the Departments fail to provide a reasoned basis for imposing a harsh rule robbing adjudicators of

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1 ordinary discretion and to delineate a rational connection between the Final Rule and the underlying

2 problem being addressed.

3

208. The Final Rule is also contrary to law because it violates the plain language of the INA.

4 Congress explicitly acknowledged that a motion to reopen an application may be filed on the basis of

5 changed country conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii). However, the Final Rule bars claimants

6 from demonstrating membership in PSG on appeal even when political or social changes in their home

7 countries become known only after initial applications are denied, for example, emergence of a new

8 government that heightens persecution of particular groups. The flat prohibition on considering such

9 changed circumstances violates both the letter and spirit of the INA.

10

209. The Final Rule is also contrary to law because it denies due process rights to applicants.

11 It is well-established that the Fifth Amendment entitles asylum seekers to due process in removal

12 proceedings. All three factors analyzed in connection with assessing whether procedural due process

13 has been violated—the private interest affected, the risk of deprivation of that interest, and the

14 government interest—weigh in favor of finding that the Final Rule is unlawful: (1) asylum seekers

15 possess strong interests in avoiding refoulement to a country where they may be persecuted or tortured;

16 (2) the risk of erroneous deprivation of those interests is high, since there are a variety of reasons why

17 applicants may fail to properly articulate their PSG in an initial application, as described above; and (3)

18 the government’s interests do not weigh in favor of a Final Rule that will prevent many applicants from

19 seeking asylum as members of LGBTQ/H social groups, especially where the only government interest

20 identified by the Departments was procedural efficiency, and the Final Rule is far more Draconian than

21 necessary to serve that minor interest.

22

210. LGBTQ/H asylum seekers face a particularly high risk of erroneous deprivation because

23 many LGBTQ/H applicants are often unwilling to identify openly as LGBTQ/H in a credible fear

24 interview, based on their experience with past persecution in their home country, or because they are

25 uncertain about their sexual orientation or gender identity at the time they file their application. It can

26 take years for an LGBTQ/H person to come to terms with their identity or free themselves from the

27 shame instilled by severe social stigma. Often the realization of identity and membership in a PSG is

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1 possible only after time spent in a non-condemning environment, in which a person has opportunities to

2 form social and romantic relationships

3

211. The case of Y.S. v. Gonzales, No. 05-5242ag (2d Cir.), illustrates this challenge.14 Y.S.,

4 a gay Palestinian man, had filed an asylum application seeking to avoid persecution in his native country

5 because of his sexual orientation. He was denied asylum initially because the immigration judge decided

6 Y.S. had not come out of the closet quickly enough and should have informed the court earlier of his

7 sexual orientation. However, during his hearing, Y.S. explained: “I was in denial—right now, I’m a

8 man, gay man. I have a lover. I have a gay life, an open gay life . . . It wasn’t easy for me. It was really

9 hard to accept I’m gay.” The court of appeals ultimately remanded the case to the BIA for

10 reconsideration of applicant’s credibility due to sexual orientation-specific concerns during the hearings

11 process. Under the Final Rule, an asylum applicant like Y.S. would not be able to have his case reopened

12 or reconsidered.

13

212. Take also, for example, Immigration Equality’s client Jeffery. Jeffery was a minor when

14 he and his mother applied for asylum based on alleged religious persecution in Indonesia. Their case

15 was denied and they appealed. When the family lived in Indonesia, Jeffery’s father beat him so severely

16 because he perceived his son to be gay that Jeffery went partially deaf. In the United States, his family

17 continued to severely mistreat him, and subjected him to an exorcism to expunge his homosexuality. At

18 age 19, Jeffery moved to reopen his removal proceedings and asserted a new claim based on his sexual

19 orientation. The BIA granted his motion and remanded his case for further proceedings. Eventually,

20 Jeffery was granted asylum.

21

213. And as noted, given the trauma and shame associated with persecution on account of

22 sexual orientation or gender identity, many LGBTQ/H refugees are unable or unwilling to immediately

23 reveal their LGBTQ/H status. Take for example the following Immigration Equality clients:

24

 Isis is from Honduras. She always knew that she was a lesbian, however, due to the

25

persecution she suffered at the hands of her family and community members because of her

26

27

14 Y.S. proceeded under seal. Counsel from Lambda Legal Defense and Education Fund, Inc. participated as amicus and a copy of the amicus brief is publicly available at: https://www.lambdalegal.org/in-

28 court/legal-docs/in-re-ys_us_20060831_amicus-lambda-legal.

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1

perceived sexual orientation, she was deeply closeted when she came to the United States.

2

She also suffered from Post-Traumatic Stress Disorder because of the persecution she

3

endured. In Honduras, Isis was well aware of how LGBTQ people were persecuted by the

4

police. Thus, when she arrived in the United States, she was terrified to let immigration

5

officials know about her sexual orientation. This Final Rule would penalize traumatized

6

refugees, like Isis, who are unable to immediately disclose their sexual orientation for fear

7

of abuse.

8

 Henry is an HIV-positive man from Ghana. When he was in his late teens, his older brother

9

began to die of AIDS. It was readily apparent that his brother was very ill because he was

10

emaciated and had developed skin lesions. Henry’s family felt shame and anger at the stigma

11

their household experienced because of his older brother’s illness. One day, Henry went to

12

his brother’s bedroom to check on him and found that his family had poisoned him to death.

13

It was the same poison they used on feral dogs. They then buried his brother that same day

14

with no funeral, and no one discussed the death. When Henry discovered that he was also

15

HIV-positive, he fled to the United States. He lived here for many years before he could

16

come to terms with his HIV status. Only after extensive therapy and self-acceptance was he

17

able to disclose his HIV status to an immigration official.

18

214. LGBTQ/H asylum seekers also face a grave risk of erroneous deprivation because they

19 are particularly vulnerable to the Final Rule’s bar on motions to reopen based on changed circumstances.

20 In addition to changed circumstances in their own lives—such as commencement of gender

21 confirmation procedures—changes in country conditions may provide a new or strengthened basis for a

22 PSG claim. For example, the governments in Brazil and Russia have recently considered or passed

23 legislation aimed directly at causing harm to LGBTQ individuals and depriving them of basic human

24 rights—considerably increasing the likelihood of persecution based on membership in LGBTQ/H-

25 related PSGs. See, e.g., Human Rights Watch, Russia: Reject Anti-LGBT ‘Traditional Values’ Bill,

26 (Aug. 6, 2020), https://www.hrw.org/news/2020/08/06/russia-reject-anti-lgbt-traditional-values-bill;

27 Anthony Faiola & Marina Lopes, LGBT rights threatened in Brazil under new far-right president,

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1 Washington Post (Feb. 18, 2019), https://www.washingtonpost.com/world/the_americas/lgbt-rights-

2 under-attack-in-brazil-under-new-far-right-president/2019/02/17/b24e1dcc-1b28-11e9-b8e6-

3 567190c2fd08_story.html.

4

215. The Final Rule further denies due process rights to applicants by preventing them from

5 arguing ineffective assistance of counsel. The Final Rule explicitly prohibits applicants from raising

6 new PSG claims in a motion to reopen even if the motion is based on their prior counsel’s ineffectiveness

7 in articulating their PSG in the first place, except in the most egregious cases of attorney misconduct,

8 which the Final Rule describes as “rare.” 85 Fed. Reg. 80,317. But asylum seekers have a due process

9 right to effective assistance of counsel. Therefore, because the Final Rule forecloses relief for applicants

10 who failed to properly articulate their PSG claim due to their counsel’s ineffectiveness, the Final Rule

11 is contrary to the Fifth Amendment. Furthermore, the burden of proving ineffective assistance of

12 counsel in a motion to reopen is already quite high, including the filing of a disciplinary complaint

13 against a former attorney with the state bar having jurisdiction over the attorney.

14

216. The Final Rule is especially punitive when applied retroactively to pending applications,

15 as the applicants may have relied on the fact that a new PSG could be asserted at a later stage in the

16 proceedings. The failure by the Departments to consider these reliance interests renders the Final Rule

17 arbitrary and capricious and further violates due process for these individuals who relied on the previous

18 law in filing their initial applications.

19

F. The Final Rule Unlawfully Requires Pretermission of Certain Claims.

20

217. The Final Rule requires Immigration Courts to irrevocably “pretermit and deny” all

21 requests for relief from deportation if the refugee fails to establish a “prima facie claim for relief” in the

22 initial application. 85 Fed. Reg. 80,397 (to be codified as 8 C.F.R. § 1208.13(e)). Thus, applicants who

23 present themselves at the border seeking refuge from torture or persecution but are unable at that time

24 to provide sufficient facts to establish a claim under United States law (which is likely unknown to

25 them), will be summarily returned to the country from which they fled, effectively denying them any

26 recourse. No hearing is required, and the Immigration Court has no case-by-case discretion because it

27 must deny any such application “if warranted by the record.” Id. This change is contrary to law because

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1 it violates the due process rights of applicants and contravenes the plain language of the INA, which

2 requires a hearing and opportunity for applicants to examine the evidence against them. The Final Rule

3 is also arbitrary and capricious because there is no rational basis for it and the Departments identify no

4 factors that support it.

5

218. The Final Rule will disproportionately affect LGBTQ/H people because they often do

6 not (1) immediately identify as LGBTQ/H, (2) feel safe disclosing that they are LGBTQ/H, or (3)

7 understand that their LGBTQ/H status (and the related persecution that they are trying to escape)

8 provides a basis for seeking asylum. For many LGBTQ/H refugees, it is only after learning more about

9 both themselves and our legal system that they understand they have a claim.

10

219. Pretermission without a hearing is contrary to law because it violates the INA, which

11 expressly contemplates a hearing. See 8 U.S.C. § 1229a(b)(1)-(4) (stating, e.g., “the alien shall have a

12 reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own

13 behalf, and to cross-examine witnesses . . . .”). Ignoring these statutory provisions, the Final Rule

14 requires pretermission “if warranted by the record,” including where the applicant “has not established

15 a prima facie claim for relief.” 85 Fed. Reg. 80,897 (to be codified as 8 C.F.R. §§ 1208.13(e)).

16 Applicants may fail to make a prima facie claim on either legal, factual, or mixed grounds, such as by

17 failing to carry their burden of proof with respect to the facts demonstrating their eligibility. In such

18 circumstances, the Final Rule authorizes pretermission without a hearing, contrary to 8 U.S.C. § 1229a.

19

220. The Final Rule is also contrary to law because it violates due process. As with the Final

20 Rule’s bar on new PSG arguments advanced on appeal, all three factors for procedural due process

21 weigh in favor of finding that the Final Rule is unlawful in connection with the pretermission

22 requirement (particularly with respect to LGBTQ/H claimants): (1) asylum seekers possess strong

23 interests in avoiding refoulement to a country where they may be persecuted or tortured; (2) the risk of

24 erroneous deprivation of those interests is high where denial is based on facts presented in the initial

25 application, including, inter alia, because many asylum seekers are unrepresented, refugees fleeing

26 persecution are often unable to bring documentation to immediately substantiate their claims, and many

27

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1 LGBTQ/H refugees do not know they have a claim at the time; and (3) the government’s interests do

2 not weigh in favor of the Final Rule and the NPRM identified no government interest to support it.

3

221. The Final Rule also presents a particular due process violation should it be applied

4 retroactively to pending applications, because applicants may have already submitted relatively sparse

5 applications in reliance on their right to supplement the record with evidence at a hearing, for example

6 to ensure compliance with the One-Year Bar.

7

222. The Final Rule is also arbitrary and capricious because the only reason that the

8 Departments give for this harsh new procedure is efficiency. 85 Fed. Reg. 80,303. However, no amount

9 of efficiency can justify a Final Rule that denies due process or removes the right to a hearing and the

10 opportunity to cross-examine witnesses granted by the statute. 8 U.S.C. § 1229a(b)(1)-(4) and (c)(4)(B).

11 Violating these rights is also contrary to the spirit and purpose of the asylum statutes. The Departments’

12 assertions that only legally insufficient applications will be subject to pretermission is misleading

13 because applicants may be unable to state a prima facie case purely on factual grounds. 85 Fed. Reg.

14 80,371. The harsh and overbroad elimination of potentially meritorious claims is not rationally related

15 to any need to limit consideration of claims that do not have a legal basis.

16

223. The new pretermission requirement will have a severe and unfair impact on refugees

17 fleeing violence who may not be in a position to set forth a prima facie claim in their initial application.

18 This is particularly true for LGBTQ/H claimants, who may not have sufficient understanding of their

19 own identities—or their ability to make a claim under United States law—when they submit their initial

20 application.

21

224. Thus, because the pretermission requirement violates the plain language of the INA,

22 denies due process, and is not rationally supported or explained in the Final Rule, it is contrary to law

23 and arbitrary and capricious.

24

G. The Final Rule Impermissibly Restricts the Discretion of Adjudicators to Consider

25

Cultural Evidence.

26

225. The Final Rule is contrary to law and arbitrary and capricious because its prohibition on

27 the consideration of “cultural stereotypes” may be read to unlawfully restrict the statutory discretion of

28 adjudicators to consider relevant cultural evidence. This change would upend decades of established

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1 asylum practice and prevent LGBTQ/H asylum seekers from corroborating their well-founded fears of

2 persecution with indispensable cultural evidence of anti-LGBTQ/H animus.

3

226. The INA provides that “In determining whether the applicant has met the applicant’s

4 burden, the trier of fact may weigh the credible testimony along with other evidence of record.” 8 U.S.C.

5 § 1158(b)(1)(B)(ii) (emphasis added). The statute thus clearly gives the “trier of fact” discretion to

6 consider “other evidence of record.” The INA, for example, explicitly lists Department of State country

7 reports as a form of evidence that may be considered in making credibility determinations. 8 U.S.C. §

8 1158(b)(1)(B)(iii).

9

227. The Final Rule may be read as unlawfully restricting the trier of fact’s discretion to

10 consider cultural evidence. Under the Final Rule, “evidence . . . which promotes cultural stereotypes

11 about a country, its inhabitants, or an alleged persecutor, including stereotypes based on . . . gender,

12 shall not be admissible.” 85 Fed. Reg. 80,386, 80,395 (to be codified as 8 C.F.R. §§ 208.1(g),

13 1208.1(g)). If read, as it may well be, to exclude factually accurate information about cultural attitudes,

14 this categorical exclusion would be contrary to the plain language of the INA, which assigns to the trier

15 of fact the discretion to consider “other evidence of record.”

16

228. Such a reading would also render the Final Rule arbitrary and capricious because it would

17 exclude legitimate country condition evidence. Evidence of cultural attitudes toward persecuted groups

18 has for decades been an important part of the asylum application process, particularly where such

19 evidence is grounded in rigorous scholarship and based on reports by the U.S. Department State, non-

20 profit/non-governmental organizations, or reputable news organizations.

21

229. The Final Rule is unsupported by the only authority cited to justify its “cultural

22 stereotype” exclusion, further confirming that it is arbitrary and capricious. Specifically, the

23 Departments cite to Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), in which the Attorney General stated

24 that “conclusory assertions of countrywide negative cultural stereotypes . . . based on an unsourced

25 partial quotation from a news article eight years earlier, neither contribute to an analysis of the

26 particularity requirement nor constitute appropriate evidence to support such asylum determinations.”

27

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1 Id. at 346 n.9. This decision merely casts doubt on the quality of the particular evidence at issue in that

2 matter; it did not categorically reject the use of social or cultural evidence in all cases.

3

230. With no further support or reasoning, the Final Rule arbitrarily mandates that

4 adjudicators disregard any evidence deemed to “promote[ ] cultural stereotypes.” However, the Final

5 Rule fails to define the term “cultural stereotypes” or explain what constitutes “evidence promoting

6 cultural stereotypes.” There is therefore a serious risk that the Final Rule’s arbitrarily broad language

7 will prompt adjudicators to reject entirely legitimate evidence of social or cultural attitudes toward

8 persecuted groups, even if the evidence is derived from official country condition reports or is otherwise

9 grounded in reliable scholarship or journalism. Moreover, there is a strong likelihood that adjudicators

10 will apply this unclear standard in confusing, unpredictable, and inconsistent ways.

11

231. The Departments fail to adequately address comments pointing out the considerable

12 negative effect the Final Rule poses to asylum applicants seeking to use legitimate cultural evidence to

13 support their claims. See Public Comment of Tahirih Justice Center, at 33-35; Public Comment of

14 Human Rights Watch, at 6-8; Public Comment of Catholic Legal Immigration Network, Inc., at 44-45;

15 85 Fed. Reg. 80,335-36. The Departments’ response to these comments relies heavily on an unfounded

16 generalization based on the fact-specific ruling in Matter of A-B-. 85 Fed. Reg. 80,376-77. The

17 Departments inexplicably assert that “[t]he definition of ‘cultural stereotypes’ is straightforward,” id. at

18 80,337, but still fail to offer any definition of that term, presenting a serious risk that this provision of

19 the Final Rule will be applied inconsistently and will result in the exclusion of relevant, reliable, and

20 probative cultural evidence.

21

232. The Final Rule inflicts particular harm on LGBTQ/H asylum seekers, who frequently

22 rely on country condition evidence to demonstrate their well-founded fear of persecution. Evidence

23 demonstrating that anti-LGBTQ/H animus is widely held in a community may be a relevant country

24 condition, but could also be seen as “promoting” the “stereotype” that persons from that country are

25 anti-LGBTQ/H. If the Final Rule resulted in the exclusion of such evidence, that would depart

26 drastically from current practice. However, the Departments do not even acknowledge that such

27 exclusion would represent a drastic change from current policy. See 85 Fed. Reg. at 36,282 (“Finally,

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1 the Departments propose to make clear that pernicious cultural stereotypes have no place in the

2 adjudication of applications for asylum and statutory withholding of removal”) (emphasis added).

3 Moreover, the Final Rule does not state that it is limited to only “pernicious” cultural stereotypes.

4

233. The Final Rule violates the INA and is contrary to law because it may be read to restrict

5 the statutory discretion of adjudicators to consider relevant cultural evidence. Moreover, while the Final

6 Rule purports to serve the seemingly salutary purpose of excluding “pernicious cultural stereotypes,” it

7 fails to define the term “cultural stereotype” or to distinguish between baseless stereotypes on the one

8 hand and well-founded country condition evidence on the other. The Final Rule is therefore both

9 contrary to law and arbitrary and capricious.

10

H. The Final Rule Arbitrarily Modifies the Burden of Proof and Factors to Be

11

Considered with Respect to Whether Internal Relocation Would Be Reasonable.

12

234. The Final Rule reverses established policies, regulations and legal precedent regarding

13 the reasonableness of applicants relocating within their home countries in two ways: first, by shifting

14 the burden of proof to applicants in cases where past persecution was inflicted by private actors, and

15 second, by abandoning well-established precedent governing reasonableness determinations and instead

16 requiring adjudicators to consider irrelevant factors, such as size of the home country, when determining

17 whether relocation is reasonable. These changes create internal inconsistencies in the regulations and

18 will lead to the unreasonable exclusion of applicants fleeing extreme violence and persecution,

19 particularly LGBTQ/H claimants who frequently are persecuted by private actors and cannot safely

20 locate within large countries with pervasive anti-LGBTQ/H animus. Because the Departments fail to

21 provide a rational basis for either of these changes, the Final Rule is arbitrary and capricious.

22

i. The Final Rule Arbitrarily Shifts the Burden of Proof to Applicants Who Have Previously Experienced Persecution by Private Actors.

23

235. Under current regulations, an application for asylum or withholding-of-removal may be

24 denied if it is established that “[t]he applicant could avoid future persecution by relocating to another

25 part of the applicant’s country of nationality . . . and under all the circumstances, it would be reasonable

26 to expect the applicant to do so.” 8 C.F.R. §§ 208.13(b)(1)(i)(B), (2)(ii), 1208.13(b)(1)(i)(B), (2)(ii))

27 (current) (asylum); 8 C.F.R. §§ 208.16(b)(1)(i)(B), (2), 1208.16(b)(1)(i)(B), (2) (current) (withholding

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1 of removal). The Government bears the burden of proving that internal relocation would be reasonable

2 if the applicant suffered past persecution or if a claimant faces future government-sponsored

3 persecution. 8 C.F.R. §§ 208.13(b)(1)(ii), (3)(ii), 208.16(b)(1)(ii), (3)(ii), 1208.13(b)(1)(ii), (3)(ii),

4 1208.16(b)(1)(ii), (3)(ii) (current). The applicant bears the burden of proof only if the applicant both

5 did not suffer past persecution and now fears persecution from private actors. See 8 C.F.R. §§

6 208.13(b)(3)(i), 208.16(b)(3)(i), 1208.13(b)(3)(i), 1208.16(b)(3)(i) (current).

7

236. The Final Rule shifts the burden of proof to claimants in situations involving past

8 persecution by private actors. This has the effect of rendering it irrelevant whether or not the applicant

9 suffered past persecution—the only factor affecting burden of proof is whether past or current

10 persecutors are governmental or private. This change is irrational, not adequately explained, and creates

11 a number of unnecessary problems.

12

237. First, the revised standard creates internal inconsistencies within the Departments’ own

13 regulations. The Final Rule leaves unchanged language providing that “in cases in which an applicant

14 has demonstrated past persecution . . . the Service shall bear the burden” of proving the reasonableness

15 of relocation, 8 C.F.R. § 208.13(b)(1)(ii) (proposed) (emphasis added), but then adds directly

16 contradictory language in subsection (b)(3)(iii) placing the burden on the applicant where persecution

17 is inflicted by private actors, even where there has been past persecution. Thus, under the Final Rule, if

18 an applicant has suffered past persecution at the hands of a private actor, the burden of proof confusingly

19 rests on both the Government and the applicant. The Final Rule contains no language indicating which

20 provision takes precedence, rendering it impossible for adjudicators to comply with all provisions, and

21 ensuring inconsistent applications of these rules.

22

238. Second, even assuming that the new burden-shifting language controls, the Final Rule

23 fails because it renders obsolete entire paragraphs of regulatory text related to the prior rule that, in cases

24 of past persecution, the Government bears the burden of showing that relocation would be reasonable,

25 including proposed 8 C.F.R. §§ 208.13(b)(1)(i)(B), (3)(i), 208.16(b)(1)(i)(B), (3)(i), 1208.13(b)(1)(i)(B),

26 (3)(i), and 1208.16(b)(1)(i)(B), (3)(i). It is arbitrary and capricious to promulgate, without adequate

27 explanation, regulations that render other regulations (not being rescinded) superfluous.

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1

239. Further, the Final Rule provides no rational basis for abandoning the long-settled policy

2 putting the burden on the Government to prove the reasonableness of internal relocation where a

3 claimant has demonstrated past persecution. The Departments fail to clarify or explain the internal

4 inconsistencies created by the Final Rule. The Departments’ sole justification for shifting the burden of

5 proof is that a “private individual or organization would not ordinarily . . . be expected to have

6 nationwide influence.” 85 Fed. Reg. at 80,340. The Departments cite no support for this proposition,

7 which directly contradicts the Departments’ own regular assertion that private organizations have cross-

8 border influence. See Tahirih Justice Center Comment at 41. Because the Departments’ explanation

9 runs counter to the evidence before the agency, it renders the change arbitrary and capricious.

10

240. The shift of burden under the Final Rule will have a particularly negative impact on

11 LGBTQ/H claimants, who are frequently persecuted by private actors and may have difficulty proving

12 that they will not be safe in other parts of their country—especially since the Final Rule also may be

13 read as excluding crucial country condition information establishing pervasive cultural hostility to

14 LGBTQ/H individuals, as discussed with respect to the inadmissibility of so-called “cultural stereotype”

15 evidence. Absent any rational explanation, heightening an applicant’s burden of proof while

16 simultaneously restricting the type of evidence an applicant can provide to satisfy such burden is

17 inherently arbitrary and capricious.

18

ii. The Final Rule Requires Adjudicators to Consider Irrelevant Factors

When Determining Whether Internal Relocation is Reasonable. 19

241. The Final Rule is further arbitrary and capricious in directing adjudicators to abandon

20

the factors set forth in current regulations in favor of new, irrelevant considerations such as (i) the

21

applicant’s demonstrated ability to relocate to the United States and (ii) the size of the applicant’s home

22

country. Neither of these factors have any significance in establishing whether internal relocation within

23

the applicant’s home country is reasonable.

24

242. An applicant’s “demonstrated ability to relocate to the United States” has no logical

25

relationship to their ability to relocate internally within their home country. Internal relocation has to

26

do with whether applicants will be safe elsewhere in their home countries, not their physical ability to

27

travel. And since asylum applicants are by definition refugees who have escaped their home countries

28

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1 and traveled to the United States in order to file for asylum, this factor is meaningless in distinguishing

2 between those applicants who can and cannot safely relocate, and in fact just amounts to a built-in strike

3 against every applicant being evaluated under this rule.

4

243. Similarly, the size of applicants’ home countries does not relate to their ability to safely

5 relocate, particularly where persecution is state-sponsored. The presumption apparently created by the

6 Final Rule that claimants may more safely relocate in large countries will be especially harmful for

7 LGBTQ/H applicants, as some of the worst violence, discrimination, and animus towards LGBTQ/H

8 individuals occur in large countries. For example, Mexico, Russia, and Nigeria are all large, multi-

9 ethnic countries with populations in excess of 100,000,000—and are all confirmed by the U.S.

10 Department of State to have widespread anti-LGBTQ/H discrimination and violence.

11

244. The Final Rule contains no explanation as to why either of these factors rationally should

12 weigh in favor of a finding that a claimant may safely relocate, nor any response to comments pointing

13 out the negative impact of these changes.

14

245. Further, without justification, the Final Rule upends current regulation and precedent

15 governing the reasonableness determination. These Rules consider the potential harm, both persecutory

16 and otherwise, that relocation might inflict upon an applicant. Under current regulations, in order to

17 determine whether internal relocation is reasonable for a particular applicant, adjudicators must consider

18 a variety of factors that take into account the overall context of the applicant’s safety and ability to

19 relocate including factors that may not be related to the applicant’s asylum claim. Namely, adjudicators

20 must consider factors such as, “whether the applicant would face other serious harm in the place of

21 suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial

22 infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health,

23 and social and familial ties.” 8 C.F.R. §§ 208.13(b)(1)(ii), (3), 1208.13(b)(1)(ii), (3); 8 C.F.R. §§

24 208.16(b)(1)(ii), (3), 1208.16(b)(i)(ii), (3) (current). The Departments found such considerations

25 “unhelpful” and specifically found “administrative, economic, or judicial infrastructure” and

26 “geographic limitations” irrelevant to the reasonableness of relocation. 85 Fed. Reg. 36,282. However,

27 the Departments fail to explain why administrative, economic, and judicial infrastructure is irrelevant to

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1 survivors of persecution who have limited means to safely relocate. Moreover, the Departments fail to

2 point to any examples or cases where courts or the BIA have held the regulatory text setting forth these

3 factors to be irrelevant or unhelpful. In short, the Departments fail to provide any legitimate rationale

4 for rejecting the current reasonableness analysis.

5

246. As such, the Final Rule’s changes to the “safe relocation” rule are irrational, arbitrary,

6 and capricious, both in raising the burden of proof for claimants who have experienced past persecution

7 by private actors and by departing from established precedent and requiring adjudicators to consider

8 factors irrelevant to claimants’ ability to relocate safely within their home countries.

9

I. The Final Rule Impermissibly Limits Relief Under the Convention Against

10

Torture.

11

247. The United States entered into the United Nations CAT (Convention against Torture and

12 Other Cruel, Inhuman or Degrading Treatment or Punishment) on December 10, 1984, joining 169 other

13 countries in committing that no person should be returned to a country where they will face likely torture.

14 The Final Rule unlawfully limits relief under CAT on two grounds: by narrowing the definition of

15 official acts of torture in ways inconsistent with the treaty, and by establishing a nearly impossible

16 standard for finding that an official acquiesced to torture. The Final Rule is therefore contrary to the

17 plain language of CAT and the United States laws implementing it. The Final Rule is also arbitrary and

18 capricious because the Attorney General admits that these changes do nothing to clarify the existing

19 regulations, despite clarification being the purported reason for the change, and therefore there is no

20 rational connection between the Final Rule’s changes and any factor enumerated in the NPRM.

21 Additionally, the Final Rule is an unjustified departure from the longstanding contrary interpretation of

22 CAT.

23

248. Article 3 of CAT prohibits countries from expelling or returning any person to a foreign

24 state where there are substantial grounds to believe that person would be in danger of being tortured.

25 U.N. Human Rights, Office of the High Commission, Convention Against Torture and Other Cruel,

26 Inhuman or Degrading Treatment or Punishment (Dec. 10, 1984), https://www.ohchr.org/en/

27 professionalinterest/pages/cat.aspx. Congress embraced CAT, declaring that “it shall be the policy of

28 the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a

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1 country in which there are substantial grounds for believing that the person would be in danger of being

2 subjected to torture” and directing “the appropriate agencies” to “prescribe regulations to implement the

3 obligations of the United States under Article 3 of [CAT].” Foreign Affairs Reform and Restructuring

4 Act of 1998, Pub. L. No. 105-277, Div. G, Title XXII, § 2242(a), (b), 112 Stat. 2681-822 (1998)

5 (codified as a note to 8 U.S.C. § 1231 (1999)).

6

249. Rather than clarify the United States’ obligations under CAT, as it purports to do, the

7 Final Rule will improperly deny relief to the vast majority of CAT claimants. The Final Rule’s changes

8 to the regulations implementing CAT will inflict particularly grave harm on LGBTQ/H refugees, as

9 many countries have “high rates of impunity” when police commit violence against LGBTQ/H people,

10 “even when this violence occurs outside of an official’s job description.” Public Comment of Williams

11 Institute ( July 15, 2020), at 15.

12

250. CAT and the U.S. regulations implementing it contain nearly identical definitions of

13 torture, both requiring, in the disjunctive, that torture be “inflicted by or at the instigation of or with the

14 consent or acquiescence of a public official or other person acting in an official capacity.” See Article

15 1(1) of CAT (emphasis added). Under both definitions, torture that triggers Article 3 protection may be

16 committed by either a “public official” or someone who is not a public official but who is “acting in an

17 official capacity.” Barajas-Romero v. Lynch, 846 F.3d 351, 361 (9th Cir. 2017). Individuals may also

18 obtain Article 3 protection by showing the danger of a public official acquiescing in their torture by

19 another.

20

i. The Final Rule Unlawfully Excludes Acts of Torture by Officials Not

Acting “Under Color of Law” 21

251. The Final Rule unlawfully excludes from the definition of torture all pain and suffering

22

inflicted by a public official who is “not acting under color of law” by requiring that torturers be both

23

“public officials” and “person[s] acting in an official capacity.” The Final Rule is contrary to the plain

24

language of CAT, which uses the disjunctive word “or” to include acts that were committed by either a

25

public official or another person acting in an official capacity. The Final Rule is also contrary to the

26

United States law directing agencies to implement regulations ensuring the United States complies with

27

Article 3 (as written, in the disjunctive).

28

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1

252. The Final Rule is also arbitrary and capricious because it applies a vague, unworkable,

2 and incorrect standard for “acting under color of law,” and there is no rational basis for adding this

3 language in the Final Rule that can be tied to any factor listed in the NPRM or responses to comments.

4

253. The Final Rule does not define “acting under color of law,” and confusion over how to

5 define it exposes the fundamental flaw and arbitrariness of the Final Rule. No country officially

6 sanctions torture. Torture is often carried out by public or law enforcement officers without official

7 direction from a state, even if it constitutes a de facto policy of the state or if it is the torturers’ official

8 status that enables them to carry out the mistreatment. While it would be possible to read “under color

9 of law” as including such de facto sanctioned torture, the Final Rule embraces a broader definition that

10 excludes from CAT protection anyone tortured by an official acting without express government

11 direction. See 85 Fed. Reg. 80,368. (explaining that torture by someone not acting in official capacity

12 will not be subject to CAT protection: “the actions of such an official are not a basis for CAT protection

13 because the individual is not acting in an official capacity”).

14

254. This will dramatically contract the application of CAT to exclude, among other things, a

15 type of torture often inflicted, in particular, on LGBTQ/H people: assaults by police or military

16 personnel not resulting in formal arrests or legal process. By creating a broad exception to CAT that

17 sharply narrows its protections in a manner inconsistent with its plain language and purpose, the Final

18 Rule is arbitrary and capricious and contrary to law. And because the Final Rule departs from years of

19 agency policy and interpretation (which adopted the disjunctive “or” language of CAT), a greater degree

20 of scrutiny is required when reviewing this departure.

21

255. The Final Rule does not attempt to explain why it ignores the disjunctive or used in the

22 CAT to now require that torturers be both “public officials” and “person[s] acting in an official

23 capacity.” Instead, the Final Rule claims to be merely clarifying what “’acting in an official capacity’

24 means.” 85 Fed. Reg. 80,368. By not even acknowledging that requiring “public officials” to also be

25 “acting in their official capacity” is a major change in interpretation, the Departments fail to establish

26 that the Final Rule is the result of rational decision making. For this reason as well, the Final Rule is

27 arbitrary and capricious under the APA.

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1

ii. The Final Rule Adopts an Unworkably Narrow Definition of Acquiescence.

2

256. The Final Rule also changes the definition of torture by heightening the standard for

3 showing that a public official acquiesced in the torturous acts of another. This was previously broadly

4 defined as “prior to the activity constituting torture, [the public official] hav[ing] awareness of such

5 activity and thereafter breach[ing] his or her legal responsibility to intervene to prevent such activity.”

6 8 C.F.R. § 208.18(a)(7) (existing regulation); 85 Fed. Reg. 36,286-87 (NPRM discussing proposed

7 changes).

8

257. The Final Rule sharply narrows the definition by adding the following exceptions, which

9 threaten to swallow the rule:

10

Such awareness requires a finding of either actual knowledge or willful blindness.

Willful blindness means that the public official acting in an official capacity or other

11

person acting in an official capacity was aware of a high probability of activity

constituting torture and deliberately avoided learning the truth; it is not enough that such

12

public official acting in an official capacity or other person acting in an official capacity

was mistaken, recklessly disregarded the truth, or negligently failed to inquire. In order

13

for a public official to breach his or her legal responsibility to intervene to prevent activity

constituting torture, the official must have been charged with preventing the activity as

14

part of his or her duties and have failed to intervene. No person will be deemed to have

breached a legal responsibility to intervene if such person is unable to intervene, or if the

15

person intervenes but is unable to prevent the activity that constitutes torture.

16 85 Fed. Reg. 80,389 (to be codified as 8 C.F.R. § 208.18(a)(7)).

17

258. These changes require applicants who seek to avoid returning to a country where the

18 government acquiesced in their torture to show specific evidence regarding a public official’s subjective

19 state of mind and level of intention; their awareness of the “probability” of the claimant’s torture; and

20 the official’s actions, inactions, abilities, and efforts to intervene in preventing the torture. Such

21 evidence will rarely, if ever, be available to one who has fled torture in their own country. Torture is

22 committed by those in power, and those subjected to it almost always lack the power to gather evidence

23 regarding a public official’s subjective state of mind (especially to the level of detail required to prove

24 willfulness or the absence of a mistake) or gather evidence regarding the official’s duties, inactions,

25 abilities, or efforts. Such evidence is almost never available.

26

259. By requiring proof of matters that virtually no claimant will have access to, the Final

27 Rule violates the language and purpose of CAT and Congress’ implementing legislation, 8 U.S.C. §

28

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1 1231 (1999), which require only substantial grounds for believing that an individual is in danger of being

2 tortured, and further require taking into account all relevant considerations when making that

3 determination. CAT art. 3(2).

4

260. The Final Rule offers no rational reason for so drastically increasing the factual burden

5 to show acquiescence, which the NPRM had linked to a concern for giving public officials “due process

6 notice of what conduct was criminal,” 85 Fed. Reg. 36,287; and the Final Rule continues to link to the

7 need to prove “both an actus reus and a mens rea,” 80,369. However, the United States’ obligations

8 under Article 3 of CAT have nothing to do with the prosecution or punishment of torturers, and thus the

9 importation of criminal law concepts and the supposed due process rights of alleged torturers are

10 irrelevant. The focus under CAT is exclusively on the victims, rather than the perpetrators, of torture.

11

261. The Final Rule also sidesteps the question of how victims fleeing torture by public

12 officials in their home countries could possibly obtain evidence to prove that the torturer either (1) had

13 the requisite specific mens rea or (2) was officially “charged with preventing the activity as part of his

14 or her duties.” The Departments merely state that applicants previously had the burden of proof to make

15 the more general showing of awareness and legal responsibility, and then state without support that the

16 Departments “believe” that the much more specific information required by the Final Rule “would be

17 known by the alien, who could at least provide evidence in the form of his or her personal testimony.”

18 85 Fed. Reg. 80,369. The assumption that torture victims would have access to such information is

19 arbitrary and capricious because it (1) runs counter to the evidence before the agency, and (2) is so

20 implausible that it could not be ascribed to a difference in view or the product of agency expertise. This

21 proposition is simply ludicrous.

22

262. Together, the elimination of CAT relief for torture not officially sanctioned under color

23 of law and an impossibly high standard of proof for acquiescence will preclude the vast majority of

24 claims for CAT relief. And this impact will fall particularly harshly on LGBTQ/H survivors of torture,

25 who are often subject to torture that is unofficial in nature or perpetrated by private actors with

26 government acquiescence.

27

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263. For example, as recently as April 2020, the Inter-American Court of Human Rights found

2 the state of Peru responsible for acts of torture against Azul Rojas Marín, a transgender woman who at

3 the time identified as a gay man, and who was “forcibly stripped naked, beaten on several occasions,

4 tortured, [and] raped” with a truncheon by three officers while in police custody. Article, Azul Rojas

5 Marín: Peru found responsible for torture of LGBT person, BBC News (Apr. 7, 2020),

6 https://www.bbc.com/news/world-latin-america-52204222. Under the Final Rule, such actions by

7 police may not trigger protection as official acts of torture under Article 3 of CAT because adjudicators

8 may likely claim that the police were acting outside of their official duties, even though it is their official

9 status that enables them to carry out the persecution.

10

264. The Final Rule thus creates insurmountable obstacles for Plaintiffs’ CAT clients, as many

11 LGBTQ/H people who have been granted relief under CAT likely would not meet the new standard

12 despite having meritorious claims. The following Immigration Equality clients illustrate this point:

13

 Sergio is a gay man from Cuba. The Cuban police frequently detain LGBTQ people solely

14

because of their LGBTQ status. Typically, the person is not charged with or accused of any

15

crimes. The only purpose of these detentions is to abuse LGBTQ individuals. Sergio was

16

subjected to such detentions on multiple occasions. During one of the detentions, the Cuban

17

police sexually assaulted Sergio. He was released shortly after. He was never charged with

18

any crime or presented with any documents explaining the reason for his detention. It

19

appears that the Final Rule would make Sergio ineligible for CAT relief.

20

 Miremba is a lesbian from Uganda. In Uganda, Miremba was arrested for being a lesbian

21

and raped by the police twice while she was in custody. Miremba was able to escape from

22

prison and flee to the United States. It would not be possible for Miremba to obtain the proof

23

required by the Final Rule. Therefore, she would be disqualified from CAT relief, despite

24

being tortured by the Ugandan police.

25

 Jaffar is a gay man from Uganda who suffered horrific torture at the hands of the police. The

26

police came to his house, arrested him and his partner, and imprisoned them naked. In prison,

27

Jaffar was forced to have sex with his partner in front of the other detained individuals and

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in front of the police, and the police poured urine on him. He was then taken to a different

2

cell where he was repeatedly injected with some unknown drugs. Jaffar spent four months

3

in this cell, where he was constantly beaten, without ever seeing a judge. Several years later,

4

Jaffar was arrested again and was sexually assaulted by the police and tortured. Under the

5

Final Rule, in order to qualify for CAT relief, Jaffar would have to prove that the officer was

6

acting under the “color of law,” which likely would be an impossible task under the

7

circumstances.

8

265. Many of the Community Services Plaintiffs’ members have experienced similar violence

9 at the hands of public officials, who under the Final Rule would be unable to obtain CAT relief. For

10 example, at the age of 15, Ms. Salcedo, member and co-founder of the Coalition, was detained by police

11 in Guadalajara, Mexico who then took her outside of Guadalajara, held her down as they cut her hair,

12 and then proceeded to beat her and rape her. Ms. Salcedo also suffered similar experiences at the hands

13 of Mexican police in other parts of Mexico. The same holds true for Ms. Lint, an individual member of

14 the Coalition. Once, when she was leaving a nightclub in Peru, a policeman stopped her and took her

15 to a parking lot far away on the beach. The policeman put a gun to Ms. Lint’s head and sexually abused

16 her, leaving her on the beach. These are plainly acts of torture perpetuated by police empowered by

17 their official status, yet may be excluded under the Final Rule as grounds for relief.

18

J. The Final Rule Unfairly Diminishes Confidentiality Protections for Asylum-

19

Seekers.

20

266. The Final Rule impermissibly dismantles confidentiality protections for the sensitive,

21 personal, and often dangerous information that refugees must disclose in applications for admission,

22 asylum, withholding of removal, or protection from torture. The Final Rule allows the Government to

23 disclose any of this information to any person, so long as the disclosure relates to any law enforcement

24 investigation or proceeding. This change is arbitrary and capricious because it is based on general law

25 enforcement objectives, a factor Congress did not intend the Departments to consider under the asylum

26 statutes.

27

267. The elimination of confidentiality protections will cause significant harm. Not only will

28 this change discourage many individuals from seeking protection under the law, but it also will force

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1 those who do apply to choose between omitting critical information from their application or risking

2 having it used against them or their loved ones. Worse, many applicants will face a heightened risk of

3 persecution and retaliation when the disclosed details of their applications become known to their prior

4 governments or to individuals, whether in the United States or abroad, who know them or their family

5 members.

6

268. This impact will be particularly devastating for LGBTQ/H refugees, whose claims often

7 require them to disclose deeply personal and private facts—including, for example, their sexual

8 orientation, gender identity, HIV status, or accounts of sexual abuse and persecution.

9

269. Specifically, the Final Rule expands the circumstances in which the contents of an

10 asylum application and records relating to the application may be disclosed. The Final Rule permits

11 disclosure of any such information:

12

(i) As part of an investigation or adjudication of the merits of . . . any . . .

application under the immigration laws, 13

(ii) As part of any State or Federal criminal investigation, proceeding, or

14

prosecution; [ . . . ]

15

(v) As part of any proceeding arising under the immigration laws, including

proceedings arising under the Act; and 16

(vi) As part of the Government’s defense of any legal action relating to the alien’s

17

immigration or custody status including petitions for review filed in accordance

with 8 U.S.C. 1252. 18
85 Fed. Reg. 80386-87, 80,395-96 (to be codified as 8 C.F.R. §§ 208.6(d)(1), 1208.6(d)(1)). There is

19 no limit as to whom the information may be disclosed to, so long as it is disclosed in connection with

20 the circumstances described above. Prior to the Final Rule, most such information remained

21 confidential.

22 270. Thus, by its terms, the elimination of confidentiality in the Final Rule is designed to

23 support generalized law enforcement purposes. But in crafting United States asylum law, Congress did

24 not intend for the Departments to consider immigration enforcement, let alone generalized state or

25 federal law enforcement. Rather, the purpose of the asylum statutes is to give refugees safe harbor from

26 persecution and comply with the United States’ international humanitarian obligations.

27

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1

271. The Final Rule acknowledges comments identifying the “grave risk of harm” and

2 increased violence that LGBTQ individuals would face if their private information became public, 85

3 Fed. Reg. 80,369, and gives lip service to “the need to protect asylum seekers, as well as their relatives

4 and associates in their home countries, by preventing the disclosure of information contained in or

5 pertaining to their applications.” But the Departments fail to rationally justify the extent to which the

6 Final Rule grossly exacerbates the risk of such harm.

7

272. The Departments’ response to comments focus on the perceived need to assure that

8 “fraudulent” asylum claims and other unlawful behavior are not “needlessly protected,” 85 Fed. Reg.

9 80,369, and suggests that the new disclosure provisions are “limited to specific circumstances in which

10 the disclosure of such information is necessary and the need for disclosure outweighs countervailing

11 concerns,” 85 Fed. Reg. 80,370. But the text of the Final Rule itself contains no such balancing or

12 mitigating language—rather, it imposes a new, wholesale waiver of confidentiality as necessary to serve

13 general law enforcement goals. The Final Rule is arbitrary and capricious because it disregards the

14 “grave risk of harm” that it admits the new disclosures may cause and offers an explanation for the rule

15 inconsistent with the real-world effect of the rule itself.

16

273. The Final Rule is also arbitrary and capricious because it elevates general law

17 enforcement considerations over the humanitarian objectives of the asylum statutes contrary to

18 congressional intent—and does so in a manner that will chill and discourage otherwise eligible

19 applicants from seeking protection.

20

274. There can be no doubt that even under the prior confidentiality protections, applicants

21 have been subject to heightened danger and harm as a result of the details of their asylum claims

22 becoming known to individuals in their home countries. The Final Rule would greatly exacerbate those

23 harms.

24

275. Applicants are also likely to be subject to harm within the United States as a result of the

25 details of their application becoming known.

26

276. LGBTQ applicants are especially harmed by this change because the information that

27 forms the basis for their application including potential persecution on account of their gender identity

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1 or sexual orientation, which must be disclosed in the application, is the same information that could

2 harm them or their families if it were disclosed outside of the confidential asylum process. For example,

3 Immigration Equality had a client from a former Soviet state who refused to disclose the name of the

4 high-ranking government intelligence official who had kidnapped him and held him as a sex slave

5 because even the smallest possibility of that information being leaked was so disturbing to the client that

6 he preferred to risk a potential denial of his claim over the risk that his persecutor might learn of the

7 disclosure. In addition, many Immigration Equality clients have been outed on social media by friends

8 and family who discovered the contents of their applications for asylum. That exposure has often

9 resulted in threats of physical violence, and sometimes, in death threats.

10

277. The Final Rule is also especially harmful and unfair to the extent it is applied

11 retroactively to pending applicants, who filed their claims with an expectation that the information could

12 be disclosed only under the more limited circumstances provided under current regulations. Pending

13 LGBTQ/H applicants may be unexpectedly and cruelly “outed” as a result of this sudden change in the

14 disclosure policy—exposing them to a grave risk of harm.

15 III. The Final Rule Is Invalid Because Wolf Is Not Lawfully Serving as Acting Secretary of Homeland Security.
16 278. The Final Rule is invalid because Defendant Wolf is not lawfully serving as Acting
17 Secretary of Homeland Security and, therefore, lacked the authority to cause it to be promulgated. Wolf
18 is the Department’s Under Secretary for Strategy, Policy, and Plans. He was not confirmed by the
19 Senate to the position of Secretary, and his claim to the title of Acting Secretary is invalid as a matter of
20 law. Specifically, Wolf’s appointment was not valid under either of the potentially applicable statutes:
21 the FVRA and HAS.
22 279. Under the APA, the Court shall hold unlawful any agency action made “in excess of
23 statutory jurisdiction, authority, or limitations” or “without observance of procedure required by law.”
24 5 U.S.C. § 706(2)(C), (D). Here, Wolf lacked authority to cause the DHS to promulgate the Final Rule.
25 Accordingly, all provisions of the Final Rule that purport to amend Chapter I (Parts 208 and 235) of Part
26 8 of the Code of Federal Regulations (the “DHS Regulations”) must be set aside and vacated under the
27 APA.
28

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1

280. Furthermore, the provisions of the Final Rule that purport to amend Chapter V (Parts

2 1003, 1208, 1235, and 1244) of Part 8 of the Code of Federal Regulations (the “DOJ Regulations”) are

3 non-severable from, and would be arbitrary and capricious without, the DHS Regulations. Accordingly,

4 the DOJ Regulations, and thus the Final Rule in its entirety, must be set aside and vacated.

5

281. The Appointments Clause of the United States Constitution provides that “Officers of

6 the United States” shall be nominated by the President and appointed with the “Advice and Consent of

7 the Senate.” U.S. Const. art. II, § 2, cl. 2. An office for which presidential appointment and Senate

8 confirmation are required is referred to as a “PAS Office.”

9

282. The FVRA establishes a framework for the appointment of temporary, acting officials

10 when a vacancy occurs in a PAS Office. “Congress enacted the FVRA to protect the Senate’s Advice

11 and Consent power and to prevent the President from engaging in . . . evasive temporary appointment

12 practices . . . .” See Bullock v. U.S. Bureau of Land Mgmt., --- F.Supp.3d ---, No. 4:20-cv-00062-BMM,

13 2020 WL 574836, at *7 (D. Mt. Sept. 25, 2020). Under the FVRA, “[i]f an officer of an Executive

14 agency . . . dies, resigns, or is otherwise unable to perform the functions and duties of the office,” then

15 the “President (and only the President) may direct” certain officers ”to perform the functions and duties

16 of the vacant office temporarily in an acting capacity.” 5 U.S.C. § 3345(a)(2)-(3). If the President does

17 not appoint someone to fill the vacancy, then, by default, the “first assistant” to the office in which the

18 vacancy arose” shall perform the functions and duties of the office temporarily in an acting capacity.”

19 Id. § 3345(a)(1). The period of time in which an acting official may serve under the FVRA is generally

20 210 days after the vacancy arose, but “the person serving as an acting officer as described under section

21 3345 may serve in the office . . . once a . . . nomination for the office is submitted to the Senate, from

22 the date of such nomination for the period that the nomination is pending[.] Id. § 3346(a). Importantly,

23 the FVRA states that it is the “exclusive means for temporarily authorizing an acting official to perform

24 the functions and duties.” Id. § 3347(a). However, this exclusivity provision does not apply if “a

25 statutory provision expressly-- (A) authorizes the President, a court, or the head of an Executive

26 department to designate an officer or employee to perform the functions and duties of [the] specified

27 office temporarily in an acting capacity; or (B) designates an officer or employee to perform the

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1 functions and duties of [the] specified office temporarily in an acting capacity[.]” Id. § 3347(a)(1)(A)-

2 (B).

3

283. Congress enacted the HSA in 2002. Under the HSA, the Deputy Secretary of Homeland

4 Security is designated “the Secretary’s first assistance for purposes of the [FVRA],” and is therefore the

5 default successor to the Secretary under the FVRA. See 6 U.S.C. § 113(a)(1)(A). On December 23,

6 2016, Congress amended the HSA to designate further acting successors in the event of a vacancy in the

7 office of Secretary of Homeland Security. See Pub. L. 114-328, Div. A, Title XIX, § 1903(a), 130 Stat.

8 2665, 2672 (Dec. 23, 2016). First, consistent with EO 13753 and the then-existing DHS Orders of

9 Succession, the HSA was amended to designate the Under Secretary for Management as the “Acting

10 Secretary” if the Secretary and Deputy Secretary were both unavailable. 6 U.S.C. § 113(g)(1). Second,

11 Congress enacted 6 U.S.C. § 113(g)(2), which provides that, “[n]otwithstanding [the FVRA], the

12 Secretary may designate such other officers of the Department in further order of succession to serve as

13 Acting Secretary.”

14

284. At least four District Courts have already held that Wolf is (or is likely) not lawfully

15 serving as the Acting Secretary of Homeland Security and on that basis vacated or preliminarily enjoined

16 actions taken under his unlawful tenure. See Immigrant Legal Res. Ctr. v. Wolf, --- F. Supp. 3d ---,

17 Case No. 20-cv-05883-JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020); Batalla Vidal v. Wolf, ---

18 F. Supp. 3d ---, 16-CV-4756 (NGG) (VMS), 17-CV-5228 (NGG) (RER), 2020 WL 6695076 (E.D.N.Y.

19 Nov. 14, 2020), vacatur granted, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020); Nw. Immigrant Rights

20 Project v. United States Citizenship and Immigration Services, Civil Action No. 19-3283 (RDM), 2020

21 WL 5995206 (D.D.C. Oct. 8, 2020); Casa de Maryland, Inc. v. Wolf, --- F. Supp. 3d ---, Civil Action

22 No. 8:20-cv-02118-PX, 2020 WL 5500165 (D. Md. Sept. 11, 2020).

23

285. The U.S. Government Accountability Office similarly concluded that Wolf has not

24 properly been elevated to the role of Acting Secretary. See U.S. Government Accountability Office,

25 Matter of: Department of Homeland Security—Legality of Service of Acting Secretary of Homeland

26 Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security,

27 File No. B-331650 (Aug. 14, 2020) https://www.gao.gov/assets/710/708830.pdf [hereinafter “GAO

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1 Opinion”] (concluding that “Wolf [was] named to [his] position[] of Acting Secretary . . . by reference

2 to an invalid order of succession”), reconsideration denied, File No. B-332451 (Aug. 21, 2020),

3 https://www.gao.gov/assets/710/708944.pdf.

4

286. When Wolf promulgated the Final Rule on behalf of DHS, he had no authority to serve

5 as Acting Secretary under the FVRA. Subject to exceptions not relevant here, “a person may not serve

6 as an acting officer for an office” under the FVRA if such person “did not serve in the position of first

7 assistant to the office”—which, in the case of the Secretary of Homeland Security, is the Deputy

8 Secretary—and “the President submits a nomination of such person to the Senate for appointment to

9 such office.” 5 U.S.C. § 3345(b)(1); see 6 U.S.C. § 113(a)(1)(A). Wolf has never served as Deputy

10 Secretary, and President Trump nominated him to serve as Secretary of Homeland Security on

11 September 10, 2020. Thus, Wolf is ineligible to serve as Acting Secretary under the FVRA. See Nw.

12 Immigrant Rights Project, 2020 WL 5995206, at *15 n.2 (“The President could not have directly

13 designated Wolf to serve as the Acting Secretary pursuant to the FVRA . . . .”).

14

287. For multiple reasons, Wolf also lacks authority to serve as Acting Secretary under the

15 HSA. The HSA provides that “the Secretary may designate such other officers of the Department in

16 further order of succession to serve as Acting Secretary.” 6 U.S.C. § 113(g)(2). Wolf was purportedly

17 elevated to the role of Acting Secretary under a November 8, 2019 order of succession issued by Kevin

18 McAleenan, the former Commissioner of U.S. Customs and Border Protection, who was himself

19 purportedly elevated to the role of Acting Secretary under an April 9, 2019 order of succession issued

20 by then-Secretary Kirstjen Nielsen. However, the order of succession issued by Secretary Nielsen could

21 have delegated authority to Commissioner McAleenan only in the event of a disaster or catastrophic

22 emergency. In the event of the Secretary’s resignation, the order of succession was governed by

23 Executive Order 13,753 (Dec. 9, 2016), under which the proper individual to succeed Nielsen was

24 Christopher Krebs, the Senate-confirmed Director of the Cybersecurity and Infrastructure Security

25 Agency, not Commissioner McAleenan.

26

27

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1

288. Wolf lacks authority to serve as Acting Secretary of Homeland Security for the additional

2 reason that, as an acting Secretary, McAleenan did not have authority to issue orders of succession under

3 6 U.S.C. § 113(g)(2).

4

289. On November 14, 2020, after the GAO and several courts had already determined that

5 Wolf was acting without authority, Defendant Gaynor purported to use any authority he had as Acting

6 Secretary of Homeland Security to issue an order of succession allowing Wolf to become Acting

7 Secretary. This order, too, was plagued by statutory and constitutional infirmities. Specifically, as

8 Acting Secretary, Gaynor could not have issued an order of succession under § 113(g)(2). Furthermore,

9 Administrator Gaynor’s order conflicted with a governing presidential Executive Order. Finally, Gaynor

10 had not validly assumed the role of Acting Secretary, as confirmed by the Department’s failure to give

11 notice of his designation as Acting Secretary under 5 U.S.C. § 3349.

12

A. EO 13753 and the DHS Orders of Succession.

13

290. On December 9, 2016, pursuant to his authority to appoint successors under the FVRA,

14 5 U.S.C. § 3345(a), President Obama issued Executive Order 13753, 81 Fed. Reg. 90,667 (Dec. 9, 2016)

15 (“EO 13,753”), which established an order of succession in the event the Secretary of Homeland

16 Security “has died, resigned, or otherwise become unable to perform the functions and duties of the

17 office of Secretary.” The first four individuals named in the line of succession were (i) the Deputy

18 Secretary of Homeland Security; (ii) the Under Secretary for Management; (iii) the Administrator of the

19 Federal Emergency Management Agency (“FEMA Administrator”); and (iv) the Under Secretary for

20 National Protection and Programs, a position that was later renamed Director of the Cybersecurity and

21 Infrastructure Agency (“CISA Director”).

22

291. On December 15, 2016, then-Secretary of Homeland Security Jeh Johnson implemented

23 EO 13,753 by issuing Revision No. 8 to DHS Delegation No. 00106, titled “DHS Orders of Succession

24 and Delegations of Authorities for Named Positions” (the “DHS Orders of Succession”). Batalla Vidal, 25 2020 WL 6995076, at *2. The DHS Orders of Succession took a bifurcated approach depending on the

26 circumstances that caused the Secretary’s vacancy. Section II(A) provides: “In case of the Secretary’s

27 death, resignation, or inability to perform the functions of the Office, the orderly succession of officials

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1 is governed by Executive Order 13753, amended on December 9, 2016.” Id. at *8. Section II(B), in

2 turn, applies “in the event [the Secretary] is unavailable to act during a disaster or catastrophic

3 emergency” and provides that the order of succession would be governed by an Annex A attached to

4 the order. Id. At the time, Annex A provided an order of succession identical to that of EO 13,753.

5

292. On February 15, 2019, Secretary Kirstjen Nielsen further amended the DHS Orders of

6 Succession, but the language in sections II(A) and II(B) and the line of succession set out in Annex A

7 were not changed. Id. at *2.

8

293. Subsequently, in a letter to President Trump, Secretary Nielsen resigned “effective April

9 7, 2019.” Id. at *3. In a tweet that day, President Trump announced that Kevin McAleenan, the

10 Commissioner of U.S. Customs and Border Protection (“CPB Commissioner”) would become the

11 Acting Secretary of Homeland Security. Id. At that time, the position of CPB Commissioner was

12 seventh in the line of succession in the event of the Secretary’s resignation under section II(A) of the

13 DHS Orders of Succession, since the CPB Commissioner was seventh under EO 13,753.

14

294. Secretary Nielsen then announced that she would stay on as Secretary until April 10. On

15 April 9, Secretary Nielsen issued Revision No. 8.5 to the DHS Orders of Succession by signing a

16 memorandum affirming her “approval of the attached document.” The “attached document” to the

17 memorandum, titled “Amending the Order of Succession in the Department of Homeland Security,”

18 stated, in relevant part: “By the authority vested in me as Secretary of Homeland Security, including the

19 Homeland Security Act of 2002, 6 U.S.C. § 113(g)(2), I hereby designate the order of succession for the

20 Secretary of Homeland Security as follows: Annex A of DHS Orders of Succession and Delegations of

21 Authorities for Named Positions, Delegation No. 00106, is hereby amended by striking the text of such

22 Annex in its entirety and inserting the following in lieu thereof . . . .” (emphasis added). What followed

23 was a new version of Annex A in which the CPB Commissioner had been elevated in the line of

24 succession above the FEMA Administrator and CISA Director, just below the Under Secretary for

25 Management. As the emphasized language make clear, however, this amendment only affected Annex

26 A, which, per section II(B) of the DHS Orders of Succession, applied only “in the event [the Secretary

27 is] unavailable to act during a disaster or catastrophic emergency.” (emphasis added). In the event of

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1 a vacancy due to “death, resignation, or inability to perform the functions of the Office,” however, the

2 line of succession remained governed by section II(A), which incorporated EO 13,753.

3

295. Thus, when Secretary Nielsen’s resignation became effective, the appropriate line of

4 succession under section II(A) was: (i) Deputy Secretary, (ii) Under Secretary for Management, (iii)

5 FEMA Administrator, and (iv) CISA Director. At that time, the offices of Deputy Secretary, Under

6 Secretary for Management, and FEMA Administrator were vacant, and Christopher Krebs was serving

7 as the Senate-confirmed CISA Director. Accordingly, the only person who could have validly

8 succeeded Secretary Nielsen upon her resignation was Director Krebs.

9

296. On January 16, 2020, Defendant Pete Gaynor began serving as Senate-confirmed FEMA

10 Administrator. Accordingly, on and after January 16, 2020, the only person who could have served as

11 Acting Secretary under the applicable DHS Orders of Succession was Administrator Gaynor.

12

297. On November 8, 2019, McAleenan issued Revision No. 08.6 to the DHS Orders of

13 Succession. Batalla Vidal, 2020 WL 6995076 at *3. The line of succession was revised as follows: (i)

14 Deputy Secretary, (ii) Under Secretary for Management, (iii) CPB Commissioner, (iv) Under Secretary

15 for Strategy, Policy, and Plans (“Under Secretary SPP”), (v) Administrator and Assistant Secretary of

16 the Transportation Security Administration; and (vi) FEMA Administrator. At the time of the

17 McAleenan Order, the Acting Under Secretary SPP was Defendant Wolf.

18

298. Five days later, on November 13, 2019, the Senate confirmed Wolf to the position of

19 Under Secretary for Strategy, Policy, and Plans. McAleenan resigned on the same day and Under

20 Secretary Wolf assumed the title of Acting Secretary of Homeland Security. Id. at *3.

21

299. In August 2020, the Government Accountability Office concluded that Wolf was not

22 lawfully appointed Acting Secretary under the HSA because McAleenan, who issued the order

23 purportedly elevating him to that role, was himself not properly appointed. See GAO Opinion 1, supra.

24

300. On September 10, 2020, President Trump nominated Wolf to serve as Secretary of

25 Homeland Security. As of the present date, his nomination remains pending. Batalla Vidal, 2020 WL

26 6995076 at *14 n.6.

27

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1

301. On September 17, 2020, Wolf signed a document titled “Ratification of Actions Taken

2 by the Acting Secretary of Homeland Security.” 85 Fed. Reg. 59,651 (Sept. 23, 2020). The Ratification

3 recites that, on September 10, 2020 (the same day as Wolf’s nomination), Administrator Gaynor issued

4 an order “exercis[ing] any authority of the position of Acting Secretary that he had to designate an order

5 of succession under 6 U.S.C. § 113(g)(2) . . . re-issu[ing] the order of succession established by former

6 Acting Secretary McAleenan on November 8, 2019, and plac[ing] the Under Secretary for Strategy,

7 Policy, and Plans above the FEMA Administrator in the order of succession.” However, the Department

8 subsequently disclosed that Gaynor’s September 10 order may have been issued before Wolf’s

9 nomination was formally submitted to the Senate. See Letter by Dep’t of Homeland Sec. at 1, Batalla

10 Vidal v. Nielsen, No. 1:16-cv-04756-NGG-VMS(E.D.N.Y. Nov. 13, 2020), ECF No. 341 (“[T]he

11 Department of Homeland Security (DHS) conveyed to the Department of Justice that it had learned that

12 Mr. Gaynor’s September 10, 2020 succession order may have been signed approximately one hour

13 before Wolf’s nomination was formally submitted to the Senate”). If so, this would have rendered

14 Gaynor’s September 10 order invalid because he would have been ineligible to serve as Acting Secretary

15 under 5 U.S.C. § 3346(a), since more than 210 days had elapsed since the office of Secretary became

16 vacant and no nomination for the role was pending.

17

302. In an apparent effort to correct this, Administrator Gaynor purported to issue another

18 order on November 14, 2020, again invoking 6 U.S.C. § 113(g)(2) and placing the Under Secretary

19 for Strategy, Policy, and Plans ahead of the FEMA Administrator. See Pete T. Gaynor, “Order

20 Designating the Order of Succession for the Secretary of Homeland Security” (Nov. 14, 2020),

21 https://www.dhs.gov/sites/default/files/publications/20_1114_gaynor-order.pdf. On November 16,

22 2020, Under Secretary Wolf signed a document “affirm[ing] and ratify[ing] any and all actions involving

23 delegable duties that I have taken from November 13, 2019 through November 14, 2020, the date of the

24 execution of the Gaynor Order . . . .” See Chad F. Wolf, “Ratification of Actions Taken by the Acting

25 Secretary of Homeland Security” (Nov. 16, 2020), https://www.dhs.gov/sites/default/files/

26 publications/20_1116_as1-global-ratification.pdf.

27

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1

303. The Final Rule is signed by Chad R. Mizelle under the title “Senior Official Performing

2 the Duties of the General Counsel, U.S. Department of Homeland Security,” under a purported

3 delegation of authority from Wolf in his capacity as “Acting Secretary of Homeland Security,” and by

4 soon-to-be-former Attorney General Barr. 85 Fed. Reg. at 80,385, 80,401.

5

B. Wolf Is Not Lawfully Serving as Acting Secretary of Homeland Security.

6

304. Defendant Wolf is not lawfully serving as Acting Secretary of Homeland Security

7 because McAleenan did not have authority as Acting Secretary to issue the November 8, 2019 order of

8 succession purporting to elevate Wolf to that position. Under EO 13753 and the then-governing DHS

9 Orders of Succession, as amended by Secretary Nielsen on April 9, 2019, the Acting Secretary of

10 Homeland Security upon Nielsen’s resignation was Director Krebs, not Commissioner McAleenan. See

11 Batalla Vidal, 2020 WL 6695076, at *9 (“Based on the plain text of the operative order of succession,

12 neither Mr. McAleenan nor, in turn, Mr. Wolf, possessed statutory authority to serve as Acting

13 Secretary”); Immigrant Legal Res. Ctr., 2020 WL 5798269, at *8 (“[T]he court could not help but

14 conclude [McAleenan] assumed the role of Acting Secretary without lawful authority”) (cleaned up);

15 Casa de Maryland, 2020 WL 5500165, at *21 (“[T]he Court cannot help but conclude that McAleenan

16 assumed the role of Acting Secretary without lawful authority”); GAO Opinion, supra, at 11 (“Wolf

17 [was] named to [his] position[] of Acting Secretary . . . by reference to an invalid order of succession”).

18

305. Additionally, and in the alternative, McAleenan did not have statutory or constitutional

19 authority to issue the November 8, 2019 order of succession because only a presidentially appointed and

20 Senate-confirmed “Secretary” of Homeland Security may issue orders of succession under 6 U.S.C. §

21 113(g)(2). See Nw. Immigrant Rights Project, 2020 WL 5995206, at *17-*24.

22

306. Administrator Gaynor’s November 14, 2020 order re-issuing the November 8, 2019 order

23 of succession was invalid because only a presidentially appointed and Senate-confirmed “Secretary” of

24 Homeland Security may issue orders of succession under 6 U.S.C. § 113(g)(2). See Nw. Immigrant

25 Rights Project, 2020 WL 5995206, at *17-*24.

26

307. Additionally, and in the alternative, Administrator Gaynor’s order conflicted with EO

27 13753 and is therefore unlawful and without effect.

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1

308. Additionally, and in the alternative, Administrator Gaynor was not empowered to

2 exercise the powers of Acting Secretary because he never properly assumed that role and notification of

3 his designation to that role was not submitted to the Comptroller General of the United States and to

4 each House of Congress “immediately upon the designation” as required by 5 U.S.C. § 3349(a)(2).

5

309. Because Wolf was not serving as Acting Secretary of Homeland Security when he

6 promulgated the DHS Rules on behalf of DHS, the DHS Rules were made “in excess of statutory

7 jurisdiction, authority, or limitations,” or “without observance of procedure required by law” and must

8 be held unlawful and set aside under 5 U.S.C. § 706.

9

C. The DOJ Regulations Must Be Vacated Along with the DHS Regulations.

10

310. Excised of the DHS Regulations, the only remaining provisions of the Final Rule are

11 those that amend Chapter V (Parts 1003, 1208 and 1235) of Part 8 of the Code of Federal Regulations

12 (the “DOJ Regulations”). The DOJ Regulations should be vacated because they are arbitrary and

13 capricious as non-severable from the infirm DHS Regulations.

14

311. The Final Rule expresses a clear and unambiguous intent that standards for asylum,

15 withholding of removal and relief under the CAT be uniform between affirmative proceedings (which

16 fall under the purview of DHS) and defensive proceedings (which fall under the purview DOJ). Having

17 one set of standards and definitions for affirmative proceedings and another for defensive proceedings

18 would sow massive confusion and embody the very definition of arbitrary.

19

312. For that reason, the DOJ Regulations largely correspond, and in most cases are identical,

20 to the DHS Regulations. For example, the two Departments adopt matching definitions of “particular

21 social group,” 85 Fed. Reg. 80,385, 80,394 (to be codified as 8 C.F.R. §§ 208.1(c), 1208.1(c)); “political

22 opinion,” id. §§ 208.1(d), 1208.1(d); “persecution,” 85 Fed. Reg. 80,386, 80,395 (to be codified as 8

23 C.F.R. §§ 208.1(e), 1208.1(e)); “nexus,” id. §§ 208.1(f), 1208.1(f); “firm resettlement,” 85 Fed. Reg.

24 80,388, 80,397-98 (to be codified as 8 C.F.R §§ 208.15, 1208.15). The Departments also adopted

25 identical standards for, e.g., the exclusion of certain cultural evidence, see 85 Fed. Reg. 80,386, 80,395

26 (to be codified as 8 C.F.R §§ 208.1(g), 1208.1(g)), the disclosure of information contained in an

27 application, see 85 Fed. Reg. 80,386-87, 80,395-96 (to be codified as 8 C.F.R.§§ 208.6, 1208.6), the

28 internal relocation bar, see id. §§ 208.13(b), 1208.13(b), 208.16(b), 1208.16(b); the so-called

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1 “discretionary” factors including the Transit Rules and the bar on accruing more than one year of

2 unlawful presence, see 85 Fed. Reg. 80,387-88, 80,396-97 (to be codified as 8 C.F.R §§ 208.13(d),

3 1208.13(d)); and the CAT, see 85 Fed. Reg. 80,389, 80,398 (to be codified as 8 C.F.R. §§ 208.18,

4 1208.18). This structure makes clear that the Departments would not have promulgated the Final Rule

5 unless regulations for both Departments could be enacted. Otherwise, the Final Rule would implement

6 starkly inconsistent asylum protocols as between DHS and DOJ—in direct contravention of the Final

7 Rule’s clear and unambiguous intent to promote uniformity.15

8

313. The Departments’ own words in the preamble to the Final Rule cement their own view

9 that the “DHS and DOJ regulations are inextricably intertwined” and cannot be segregated from each

10 other:

11

The DHS and DOJ regulations are inextricably intertwined, and the Departments’ roles

are often complementary . . . . Because officials in both DHS and DOJ make

12

determinations involving the same provisions of the INA, including those related to

asylum, it is appropriate for the Departments to coordinate on regulations like the

13

proposed rule that affect both agencies’ equities in order to ensure consistent application

of the immigration laws. 14

85 Fed. Reg. 80,286.

15

314. Because the Final Rule would be arbitrary and capricious if the DOJ Regulations were

16

to stand alone without their corresponding DHS counterparts, because the Final Rule would eschew

17

uniformity in contravention of its clear and unambiguous intent otherwise, and because the DHS

18

Regulations must be vacated for the reasons stated above, the Final Rule must be set aside in its entirety

19

under 5 U.S.C. § 706.

20

21

22 15 The Final Rule does not contain a severability clause that requires saving the DOJ regulations in the

23

event the DHS regulations are set aside. The Final Rule does contain intra-part severability clauses, which state that the provisions of particular parts of Title 8 of the Code of Regulations shall be severable

24

from other provisions within the same part. See, e.g., 85 Fed. Reg. 80,394 (to be codified as 8 C.F.R. § 1003.42(i) (“The provisions of this part are separate and severable from one another. In the event that

25

any provision in [this part] is stayed, enjoined, not implemented, or otherwise held invalid, the remaining provisions shall nevertheless be implemented as an independent rule and continue in effect”) (emphasis

26

added); see also id. §§ 208.25, 235.6(c), 1003.42(i), 1208.25, 1212.13, 1235.6(c). But these clauses do not link the provisions of any part of the Final Rule to those outside of such part, and the Final Rule

27

does not contain any inter-part severability clauses stating that different parts of the Final Rule are themselves severable from each other.

28

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1 IV. 2

The Notice of Proposed Rulemaking and 30-Day Comment Period Did Not Provide Adequate Time For Public Comment and Thus Rendered The Final Rule Invalid From The Start.

3

315. The NPRM and 30-day comment period did not satisfy Defendants’ obligation to provide

4 adequate time for public comment and review, rendering the Final Rule invalid. Under the APA, an

5 agency must publish a notice of proposed rulemaking in the Federal Register and “give interested

6 persons an opportunity to participate in the rule making through submission of written data, views, or

7 arguments,” and “incorporate in the rules adopted a concise general statement of their basis and purpose”

8 following review. 5 U.S.C. § 553(b), (c). The APA’s requirement of notice and comment is designed

9 to assure due deliberation of agency regulations and foster the fairness and deliberation of a

10 pronouncement of such force.

11

316. An agency complies with 5 U.S.C. § 553 only where it affords the public a meaningful

12 opportunity to comment. For complex rules like the Final Rule, the time period for comment typically

13 lasts sixty days at minimum. The Administrative Conference of the United States has opined that 60

14 days is “a more reasonable minimum time for comment.” Jeffrey S. Lubbers, Guide To Federal Agency

15 Rulemaking 124. Similarly, Executive Order Nos. 13,653, § 2(b) and 12,866, § 6(a) instruct agencies

16 that the “comment period . . . should generally be at least 60 days.” Improving Regulation and

17 Regulatory Review, 76 Fed. Reg. 3,821, 3,821-22 (Jan. 18, 2011); Regulatory Planning and Review, 58

18 Fed. Reg. 51,735 (Sept. 30, 1993).

19

317. The NPRM for the Final Rule provided only half this time—a mere 30 days for the public

20 to submit comments. See 85 Fed. Reg. at 36,264. Given the length, complexity, subject matter, and

21 dramatic impact of the Final Rule, 30 days was an inherently unreasonable period of time for public

22 comment under the APA.

23

318. Additional factors limited the public’s ability to provide meaningful comment. On July

24 9, 2020, the Departments published a rule that would have created new security bars for those seeking

25 asylum based on potential exposure to communicable diseases. See Security Bars and Processing, 85

26 Fed. Reg. 41,201 (Jul. 9, 2020). The two rules had overlapping notice-and-comment periods and

27 governed similar subject matter, requiring individuals and organizations preparing comments on the

28 NPRM to divert some of their attention to the July 9 Rule. Similarly, the Departments announced several

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1 other interrelated rules at different times that were not finalized before the comment period for the Final

2 Rule closed, or were not introduced until after the comment period for the Final Rule was over. This

3 staggered rulemaking prevented stakeholders from meaningfully commenting on and understanding the

4 full picture of how these interrelated rules would impact asylum seekers. In addition, the ongoing

5 COVID-19 pandemic has greatly disrupted operations for many commenting organizations, including

6 Plaintiffs.

7

319. The Departments lacked good cause to impose only a 30-day comment period.

8 Defendants have not, for example, cited any exigent circumstances that would have required the Final

9 Rule to be implemented as early as possible and which therefore might have precluded a notice-and-

10 comment period beyond 30 days.

11

320. On information and belief, the Departments rushed the notice and comment period to

12 enable the Trump Administration to cram the Final Rule through protocols before a transition of

13 presidential power took place. The NPRM was published less than five months before a presidential

14 election; by curtailing public comment, Defendants sacrificed robust policy analysis in order to ensure

15 that the Final Rule would be codified as quickly as possible. See generally Eric Lipton, “A Regulatory

16 Rush by Federal Agencies to Secure Trump’s Legacy,” New York Times (Oct. 16, 2020),

17 https://www.nytimes.com/2020/10/16/us/politics/regulatory-rush-federal-agencies-trump.html

18 (“Facing the prospect that President Trump could lose his re-election bid, his cabinet is scrambling to

19 enact regulatory changes,” including with respect to immigration; “In the bid to lock in new rules before

20 Jan. 20, Mr. Trump’s team is limiting or sidestepping requirements for public comment on some of the

21 changes and swatting aside critics who say the administration has failed to carry out sufficiently rigorous

22 analysis”).

23

321. By depriving the public of a meaningful opportunity to submit informed comments, the

24 Final Rule was promulgated “without observance of procedure required by law.” Defendants sacrificed

25 the “due deliberation” and fairness that notice and comment periods ensure and the Final Rule must

26 therefore be vacated under 5 U.S.C. § 706(2)(D).

27

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1 V. The Final Rule Is Impermissible Because of Its Potentially Retroactive Effect.

2

322. With the exception of amendments to 8 C.F.R. §§ 208.20, 1208.20 (standards for

3 determining whether an asylum application is “frivolous”), none of the regulations enacted in the Final

4 Rule specify that they apply only to applications filed on or after the Final Rule’s effective date. As the

5 Departments have acknowledged, the plain text of the Final Rule is ambiguous as to the extent it applies

6 retroactively to the over 350,000 currently pending affirmative asylum applications and hundreds of

7 thousands of defensive asylum cases. This ambiguity and the Departments’ failure to adequately

8 consider, address, and specify the potential retroactive impact of the Final Rule renders the Final Rule

9 arbitrary and capricious. Moreover, to the extent any of the provisions of the Final Rule are applied

10 retroactively, that would implicate a host of statutory and constitutional problems and further require

11 vacatur of the Final Rule.

12

323. A rule is retroactive if it attaches new legal consequences to events completed before its

13 enactment. As the Departments concede, applying the Final Rule to applicants who filed before its

14 effective date would constitute retroactive application of the rule. See 85 Fed. Reg. at 80,380-81. When

15 applicants file for asylum, withholding of removal or relief under CAT, they do so in reliance on the

16 legal regime then in place and the protections afforded thereunder, identifying themselves to the

17 Departments, disclosing highly sensitive information that can place their life and the safety of others in

18 jeopardy if disclosed to would be persecutors, and often forgoing alternative forms of relief for which

19 they may also be eligible. To the extent any of the Final Rule’s provisions are retroactively applied to

20 those who filed before its effective date, that would greatly upset these reliance interests, attaching

21 severe consequences (including deportation) to conduct that the applicants undertook without any notice

22 of how their applications would be affected.

23

324. The Departments now concede that “the potential retroactivity of the rule was not clear

24 in the NPRM.” Id. at 80,380. This is attested by numerous public comments received by the

25 Departments drawing attention to the Final Rule’s troubling ambiguity, noting that any retroactivity

26 would unfairly penalize asylum-seekers whose cases would have had merit under the prior regulatory

27 scheme. See id. at 80,380; see, e.g., Public Comment of Tahirih Justice Center, at 12 (“The natural

28 inference is . . . that the agencies intend all of the NPRM’s remaining provisions to apply to applications

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1 for asylum and related relief that are pending at the time the rule becomes effective”),; Public Comment

2 of Catholic Legal Immigration Network, Inc. at 10 (“At a bare minimum, if any of these proposed rules

3 are finalized, the departments must clarify that they will not be applied retroactively”),.

4

325. Rather than take these comments into serious consideration, the Departments added no

5 language whatsoever to the relevant regulatory provisions to clarify whether they applied retroactively.

6 Instead, they addressed the issue in a single paragraph in the Preamble, declaring that:

7

. . . to the extent that the rule changes any existing law, the Departments are electing to

make the rule prospective to apply to all asylum applications—including applications for

8

statutory withholding of removal and protection under the CAT regulations—filed on or

9

after its effective date . . . . Nevertheless, to the extent that the rule merely codifies existing law or authority, nothing in the rule precludes adjudicators from applying that

existing authority to pending cases independently of the prospective application of the

10

rule.

11 85 Fed. Reg. at 80,380-81 (emphasis added).
12 326. This explanation only muddies the waters and exacerbates concerns about the Final
13 Rule’s retroactive effect. To begin with, this workaround only appears in the Final Rule’s Preamble,
14 not in the regulatory text itself. Furthermore, the Departments do not suggest that this purported
15 bifurcation of the Final Rule between portions that “change” the law and those that merely “codif[y]
16 existing law” was proposed by any of the commenters. See id. at 80,380.
17 327. But the deeper concern with this standard lies in its vagueness and unworkability, as it
18 will thrust on individual adjudicators (asylum officers and immigration judges) the task of figuring out
19 not just what the law is, but also whether, on a provision-by-provision basis, the Final Rule truly
20 constitutes a “change” from prior laws. The Departments themselves characterize numerous changes as
21 mere codifications of existing law, even though they substantially expand prior law by adding new,
22 harsh grounds upon which an application may be denied. For instance, the Departments assert that the
23 new rules governing pretermission are “consistent with existing law,” 85 Fed. Reg. at 80,302, even
24 though the pretermission rule dramatically alters existing law to the detriment of asylum applicants by,
25 among other things, making pretermission mandatory and providing little or no opportunity for the
26 applicant to cure a deficient application, see id. at 80,397 (to be codified as 8 C.F.R. § 1208.13(e)).
27 Imposing mandatory pretermission on already-filed applicants is extremely unjust, as it would punish
28

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1 them with automatic denial based on a filing which, under the prior rules, could have entitled the

2 applicant to proceed to a hearing. Yet immigration judges may rely on the Departments’ statements and

3 conclude that pretermission is not a change in the law, and therefore the pretermission rule must be

4 applied to already-filed applicants.

5

328. Additionally, the Departments have acknowledged that Circuits have split with respect

6 to some of the matters addressed in the Final Rule. See 85 Fed. Reg. at 80,313 (noting “significant

7 conflicts” among Circuits with respect to interpretation of the phrase “particular social group”); id. at

8 80,319 (noting Circuit split “on the issue of whether former gang membership is cognizable as a

9 particular social group”); 85 Fed. Reg. 36,281 n.32 (noting inconsistencies between Circuits with respect

10 to whether threats constitute persecution). No guidance is provided as to whether the Final Rule, by

11 choosing to side with some Circuits over others, has effected a “change” in the law, or a “codification”

12 of it, for retroactivity purposes, or if the retroactive effect would vary across the Circuits.

13

329. These questions should not be thrust upon counsel and adjudicators in individual asylum

14 cases. As requested by numerous commenters, the Departments should have either clarified the non-

15 retroactive effect of the Final Rule on a global basis, or specifically identified the retroactive effect of

16 the Final Rule’s individual provisions so that it can be objectively, and predictably applied and

17 understood. That the Departments only proposed this standard for retroactivity in the Final Rule,

18 without giving the public any opportunity to comment on it, shows further that the Departments failed

19 to give adequate consideration to the issue.

20

330. Adding insult to injury, the Departments failed to comply with Executive Orders

21 requiring that regulations state clearly their retroactive effect. Executive Order No. 12,988, § 3(b)

22 provides that “each agency formulating proposed legislation and regulations shall make every

23 reasonable effort to ensure . . . (2) that the regulation, as appropriate— . . . (D) specifies in clear language

24 the retroactive effect, if any, to be given to the regulation.” Civil Justice Reform, 61 Fed. Reg. 4,729,

25 4,731-32 (Feb. 5, 1996). When the Departments published the NPRM, they certified that “[t]his rule

26 meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.” 85 Fed.

27 Reg. 36,290. The Departments now concede that certification was incorrect. See 85 Fed. Reg. 80,380

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1 (“[T]he Departments . . . recognize that the potential retroactivity of the rule was not clear in the

2 NPRM”) (emphasis added). In the Final Rule, the Departments omit any certification under EO 12,988.

3 Rather, the purported certification under “Executive Order 12988: Criminal [sic] Justice Reform”

4 erroneously contains a certification related to federalism. See 85 Fed. Reg. 80,384; cf. Federalism, EO

5 12,132, 1999 WL 33943706 (Aug. 4, 1999). Nevertheless, the Final Rule falls short of EO 12,988’s

6 standard for “clear language” with respect to retroactive effect.

7

331. The Final Rule is arbitrary and capricious in creating ambiguity as to the rules that apply

8 to more than 350,000 currently pending affirmative asylum applications and hundreds of thousands of

9 defensive cases. It is further arbitrary and capricious to the extent it is, or will be construed by

10 adjudicators to operate as, a retroactive change in the law. The Departments failed to comply with the

11 requirement to assess and consider retroactivity. When promulgating a rule in which serious reliance

12 interests may be affected, such as the Final Rule here, an agency must “assess whether there [are]

13 reliance interests, determine whether they [are] significant, . . . weigh any such interests against

14 competing policy concerns,” and “consider[] whether [it] ha[s] . . . flexibility in addressing [such]

15 reliance interests.” Dept. of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1914, 1915

16 (2020). The Departments failed to undertake this analysis here; to the contrary, they expressly

17 “decline[d] to respond to commenters’ assertions about potential implications that the rule’s application

18 to pending cases may have, such as ‘mass denials’ of asylum applications,” simply characterizing these

19 concerns as “unmoored from a reasonable basis in fact and wholly speculative due to the case-by-case

20 and fact-intensive nature of many asylum-application adjudications.” 85 Fed. Reg. at 80,381. The

21 Departments’ failure to substantively address applicants’ reliance interests was arbitrary and capricious

22 and requires the Final Rule to be set aside under 5 U.S.C. § 706.

23 VI. The Final Rule Harms Plaintiffs by Frustrating Their Missions and Necessitating the Diversion of Resources.
24 332. The Final Rule’s drastic changes to well-established asylum rules and regulations will
25 directly and irreparably harm Plaintiffs, their clients, and members. These harms will occur nationwide.
26 Plaintiffs are nonprofit organizations that provide direct legal services to LGBTQ/H migrants, provide
27 training and educational programming to immigration practitioners and immigrant communities, and
28

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1 provide services and support to LGBTQ/H immigrants, including those in detention facilities or facing

2 deportation.

3

A. The Final Rule Frustrates Plaintiffs’ Missions.

4

333. Plaintiffs are committed to providing legal services and community services to

5 LGBTQ/H asylum seekers, who if returned to their countries of origin are uniquely vulnerable due to

6 the threat of persecution, trauma, and stigma based on their sexual orientation, gender identity, gender

7 expression, and HIV positive status. Plaintiffs share the common objective of maintaining an effective,

8 functioning asylum system that protects LGBTQ/H migrants’ ability to obtain asylum or other forms of

9 relief. The Final Rule frustrates Plaintiffs’ missions by making the populations they primarily serve

10 largely ineligible for asylum relief, thus making it more difficult for Plaintiffs to provide services and

11 support to their clients and members. In response to the Final Rule, Plaintiffs will have to make

12 fundamental changes to their programming and services to adjust to the new regulatory landscape.

13

i. The Final Rule Frustrates the Legal Services Plaintiffs’ Missions

14

334. For Legal Services Plaintiffs (Immigration Equality, Oasis Legal Services, the

15 Transgender Law Center, and the TransLatin@ Coalition’s Legal Services Project), the Final Rule will

16 frustrate their mission to provide legal services to LGBTQ/H asylum seekers by causing a profound

17 change to existing asylum law and procedures that will impede their ability to successfully advocate for

18 their clients, severely limit their ability to take on new clients, and necessitate equally fundamental

19 changes in how they approach their work.

20

335. Legal Services Plaintiffs will have to profoundly alter their advocacy strategy in how

21 they present their clients’ cases to adjudicators as a result of the Final Rule. For example, Legal Services

22 Plaintiffs will be forced to shift from an affirmative application model to a model in which more cases

23 are presented in a defensive posture, which will take significantly more time and resources for each case.

24

336. Legal Services Plaintiffs will also have to allocate a significant amount of staff time and

25 resources to learning and understanding the new regulatory scheme and its impact on existing and future

26 clients, a task that is made more difficult by the Final Rule’s vagueness around many of its provisions

27 and Defendants’ non-responsiveness to comments by Plaintiffs and others. Thereafter, Plaintiffs will

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1 need to convey the new information to their clients and the community members that they serve and

2 support, as well as to immigration practitioners they counsel, and pro bono attorneys they work with

3 and refer matters to.

4

337. The Final Rule also will force Legal Services Plaintiffs to alter the way they conduct

5 client representation, as well as the decisions they make as to which cases can be referred to pro bono

6 attorneys for representation or other services, which is a key way in which Legal Services Plaintiffs

7 amplify their resources and reach. Legal Services Plaintiffs will have to retrain their staff on the Final

8 Rule, as well as how to determine asylum eligibility under it and advise potential clients on the Final

9 Rule’s impact on their cases, in order to allow clients to make informed decisions about whether and

10 when to apply for asylum and other forms of relief. To be sure, Legal Services Plaintiffs are aware the

11 Final Rule will have a chilling effect on LGBTQ/H refugees who would otherwise have filed affirmative

12 applications for asylum.

13

338. More specifically, Oasis provides direct legal services and holistic case management to

14 LGBTQ asylum seekers living within the jurisdiction of the USCIS San Francisco Asylum Office. The

15 Final Rule will result in more of Oasis’s clients having their affirmative asylum applications referred to

16 Immigration Court and be put in removal proceedings. In Oasis’s three-year history, it has only had one

17 client referred to Immigration Court and it was able to secure asylum for the client. Yet, Oasis does not

18 have the capacity to represent clients in defensive asylum proceedings. It will be forced to change from

19 an affirmative asylum-based model to one where it represents a significant number of clients in

20 Immigration Court, which would be extremely resource intensive and reduce the number of clients it

21 can serve.

22

339. Likewise, Immigration Equality provides direct legal services to LGBTQ/H immigrants

23 and families. Immigration Equality provides representation for LGBTQ asylum seekers through its In-

24 House Program, where matters are handled solely by Immigration Equality staff, and its Pro Bono

25 Program, where matters are placed with volunteer attorneys who are supported throughout the process

26 by Immigration Equality staff. As a result of the Final Rule, Immigration Equality will have to expend

27 significant resources to reconfigure both its Pro Bono and In-House Programs. And given that

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1 affirmative applicants will be chilled from applying due to the Final Rule’s drastic limitations on asylum

2 eligibility, the Final Rule will severely limit the number of affirmative asylum seekers Immigration

3 Equality can accept into its program, since many will no longer be eligible for relief.

4

340. Under the Final Rule, most of Immigration Equality’s clients may now only be eligible

5 for withholding of removal or CAT relief, which have a higher standard of proof than asylum, are more

6 time-consuming cases to handle, and cannot be brought affirmatively. Immigration Equality will thus

7 be forced to shift resources towards mentoring pro bono attorneys on more difficult defensive

8 proceedings, as well as complicated appeals before the BIA and the circuit courts. Because defensive

9 cases are far more difficult to place with pro bono counsel, Immigration Equality will have to: take more

10 of these cases in-house, which will reduce its capacity to take on other matters; change the way it

11 cultivates pro bono firms to identify and attract firms interested in defensive cases; and provide more

12 in-depth mentorship and supervision to ensure that pro bono attorneys feel comfortable taking on these

13 more challenging and time-consuming matters.

14

341. Through its Border Project, the Transgender Law Center provides humanitarian aid,

15 direct legal services, and holistic case management to LGBTQ asylum seekers. As a result of the Final

16 Rule, Center staff will need to dedicate more time and resources in preparing clients for credible and

17 reasonable fear interviews. And while, historically, the Center has not represented clients at such a

18 stage, the Center now must plan to represent all their clients in the credible and reasonable fear

19 interviews (“CFI/RFI”) because of the complexity of the Final Rule and the difficulty for asylum seekers

20 to pass the CFI/RFI phase. The Center anticipates more of their clients not passing the CFI/RFI

21 interview and having their cases referred to an immigration judge for review. This will also require the

22 Center to provide representation in Immigration Court, further straining its resources and limiting the

23 number of clients that it is able to serve.

24

342. The Legal Services Plaintiffs have relied on legal assistants and law students to help

25 prepare asylum cases including client intake interviews. Due to the complexity of the Final Rule, and

26 the one-year bar to file an asylum application, the Legal Services Plaintiffs anticipate that they will have

27 to rebuild their intake processes to ensure that they are reviewing each new provision of the Final Rule

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1 with the clients and to assess their eligibility for asylum. Additionally, Legal Services Plaintiffs will

2 have to train and supervise volunteer and pro bono attorneys on the Final Rule before they are able to

3 give cases for representation to pro bono attorneys. This will significantly reduce Legal Services

4 Plaintiffs’ capacity to conduct intake of new clients and their capacity to assist clients throughout the

5 asylum process.

6

343. For these reasons, Legal Service Plaintiffs’ ability to assist more or the same number of

7 clients will be hampered by the Final Rule. For example, Oasis has made sudden and dramatic shifts in

8 its priorities because of the impending Final Rule. Oasis has stopped accepting and filing new citizenship

9 and family petition cases and has reduced the number of lawful permanent residency cases that it can

10 accept each month by 25%. For their clients who have won their asylum cases, Oasis no longer has the

11 capacity to assist them to petition for family members who are still out of the United States, thereby

12 extending family separation. And clients who are eligible to apply for a green card based on their asylum

13 status will now have to wait longer before they are able to travel outside of the United States.

14

ii. The Final Rule Frustrates the Community Services Plaintiffs’ Missions

15

344. Aside from providing immigration-related legal services, the TransLatin@ Coalition

16 seeks to empower the transgender and gender nonconforming Latinx community in the United States

17 and to improve the quality of life of transgender and gender nonconforming Latinx immigrants through

18 advocacy and an array of community services that help refugees get on their feet, build their new lives,

19 and recover from the traumatic experiences from which they have escaped. However, as a result of the

20 Final Rule, fewer LGBTQ refugees will be eligible for local, state, and federal governmental programs,

21 thereby creating an increased demand and need for the Coalition’s services and gaps the Coalition will

22 need to supplement or supplant. The Final Rule thus gravely impacts the Coalition’s ability to fulfill its

23 mission to ensure the empowerment and inclusion of transgender and gender nonconforming Latinx

24 immigrants in the United States by forcing the Coalition to make impossible choices about the programs

25 and services it will provide.

26

345. Similarly, BLMP envisions a world where all Black LGBTQIA+ migrants and their

27 loved ones can thrive in the United States, with dignity and safety. The Final Rule will frustrate BLMP’s

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1 mission and activities by making it hard to inform Black LGBTQIA+ migrants of their rights. The Final

2 Rule also increases the likelihood that more Black LGBTQIA+ migrants end up in detention due to their

3 inability to obtain asylum under the Final Rule, which will in turn create a greater demand or need for

4 BLMP’s services.

5

346. In sum, by making most, if not all, LGBTQ refugees ineligible for asylum and other

6 forms of relief in the United States, the Final Rule largely frustrates the missions of each Plaintiff. As

7 outlined below, the Final Rule will force Plaintiffs to make sacrifices about which and how many

8 LGBTQ refugees they can serve and to divert resources away from their core projects and services. The

9 Final Rule directly conflicts with Legal Services Plaintiffs’ missions to provide legal services to LGBTQ

10 asylum seekers and Community Services Plaintiffs’ missions to support and provide services to improve

11 the lives of LGBTQ migrants.

12

B. The Final Rule Forces Plaintiffs to Divert Resources from Core Programs and

13

Services.

14

347. The Final Rule is also causing and will continue to cause Plaintiffs to divert resources

15 from their core programs.

16

i. The Final Rule Diverts the Legal Services Plaintiffs’ Resources

17

348. The Final Rule’s rushed effective date has forced Legal Services Plaintiffs to expend

18 significant resources to analyze and interpret the Final Rule, create new informational materials and

19 resources for clients, members, staff, volunteers, and pro bono attorneys, and provide trainings and

20 webinars to the same. Plaintiffs have had to prioritize their responses and actions to the Final Rule’s

21 impact on their programs and services at the expense of their other core programs and services.

22

349. For example, Immigration Equality has assembled a library of materials that it provides

23 to pro bono attorneys in order to facilitate its Pro Bono Program. These materials include presentations

24 on the state of the law and the asylum process, sample affidavits and briefs, template motions, and other

25 sample and template submissions for both affirmative and defensive proceedings. In addition,

26 Immigration Equality publishes a comprehensive, 75-page manual on the preparation of asylum claims

27 related to sexual orientation, gender identity, and HIV-status (“Asylum Manual”).

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1

350. As a result of the Final Rule, which drastically alters the asylum law and processes in the

2 United States, Immigration Equality will have to revise most of written resources and materials, such

3 as: 1) sample and template documents in their Pro Bono Program resource library used by hundreds of

4 volunteer attorneys; 2) materials, including scripts and templates, used to intake clients and respond to

5 online and telephonic inquiries from LGBTQ/H asylum seekers; 3) training materials and presentations

6 for staff, pro bono attorneys, USCIS personnel and judges, and outside attorneys on the LGBTQ/H

7 asylum process; 4) materials for pro se applicants; 5) the Asylum Manual and all online content

8 concerning the asylum process; and 6) country conditions materials to the extent they would raise

9 concerns under the Final Rule as comprising “cultural stereotypes” in the way they address cultural

10 attitudes towards LGBTQ/H people.

11

351. Oasis will also have to revise the multitude of country condition research, case materials,

12 and guides about asylum law that it provides to its pro bono attorneys and others.

13

352. In addition, Legal Service Plaintiffs must update their intake process and forms to add

14 questions and responses based on the Final Rule. Legal Services Plaintiffs have started to spend hours

15 to train their staff on the Final Rule and to provide information to their clients and other community

16 members.

17

353. Legal Services Plaintiffs have also had to divert time and staff to educate and answer

18 questions from clients, pro bono attorneys, and other stakeholders on the Final Rule. For example, the

19 Transgender Law Center has had to communicate one by one to over 100 clients about the Final Rule,

20 only after devoting significant resources to studying the Final Rule and its impact on the Center’s clients.

21 Likewise, Oasis has had to communicate about the Final Rule and its impact to its over 500 pending

22 asylum clients and approximately 45 clients whose cases Oasis has accepted but not yet filed.

23

354. The Final Rule has caused and will force Legal Services Plaintiffs to divert resources

24 from other programs and services. For example, Immigration Equality is currently engaged in litigation

25 and policy advocacy around improving detention conditions and reversing discriminatory policies that

26 impact LGBTQ/H immigration families. Immigration Equality will have to significantly pull back

27 resources currently devoted to these efforts as well as redirect resources away from Immigration

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1 Equality’s Detention Program, online and telephone inquiries, and all non-asylum applications and

2 petitions in order to address the Final Rule and its impact.

3

355. Similarly, as a result of the Final Rule, Oasis has currently stopped accepting and filing

4 new citizenship and family petition cases and reduced the number of lawful permanent residency cases

5 it can accept each month by 25%. This means Oasis’s clients who have won asylum cannot receive its

6 assistance in helping them petition for family members who are still out of the United States thereby

7 extending family separation. And that clients who are eligible to apply for a green card based on their

8 asylum status will now have to wait longer before they are able to travel outside of the United States.

9

356. The Transgender Law Center has also been forced to divert resources. For example, the

10 Center has had to cut back on the case management services that it had provided to clients due to the

11 dramatic increase of time needed to alter its legal program, to re-assess and advise clients on their legal

12 options under the Final Rule, and to complete necessary case work. Due to the Final Rule, the Center’s

13 staff anticipates that it will be unable to accept new clients until they can competently advise clients on

14 it.

15

ii. The Final Rule Diverts the Community Services Plaintiffs’ Resources

16

357. The Final Rule will also cause an increased need for community and financial support

17 for LGBTQ refugees, which could exhaust the already limited resources of Community Services

18 Plaintiffs and force Community Services Plaintiffs to make difficult choices about which programs to

19 continue.

20

358. By making asylum and other forms of relief unattainable for LGBTQ/H refugees, the

21 Final Rule will deprive many LGBTQ/H migrants of the benefit of local, state, and federal programs

22 they could use to get on their feet, build their new lives, and recover from the persecution from which

23 they fled. That is because many local, state, and federal programs require participants to have a legal,

24 documented presence in the United States. Community service organizations serving LGBTQ/H

25 migrants like the Coalition and BLMP will therefore be faced with an increased demand for services, as

26 LGBTQ migrants are unable to gain work, pay rent, access health care, or afford other material

27 necessities. However, these LGBTQ refugees will thus be forced to turn to community services

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1 organizations like the Coalition and BLMP for financial support and assistance for basic needs, such as

2 emergency housing, food, clothing, rental assistance, and health care referrals.

3

359. The Coalition and its network of affiliated organizations will be forced to divert

4 significant financial resources to emergency support, one of the Coalition’s core programs that includes

5 daily food distribution, rental assistance, and transportation and grocery vouchers. The Coalition

6 expects a significant redirection of funds to address the increased need caused by the Final Rule which

7 will impede its ability to perform other programmatic activities like economic and workforce

8 development training programs, coordinated human resources and cultural competency trainings,

9 community research and education programs, and local and state advocacy campaigns for laws

10 protecting the Coalition’s members.

11

360. The Final Rule will also significantly harm the Coalition’s ability to conduct its re-entry

12 services program—an important organizational activity that provides support to some of the most

13 vulnerable of the Coalition’s members and individuals returning to their communities. These

14 transgender and gender nonconforming people need immediate connections to medical services and

15 other services, which will be delayed by, or in some cases prevented altogether due to the Final Rule,

16 and the diversion of already limited resources overwhelmed by demand.

17

361. In addition, the COVID-19 pandemic has already put severe strain on the long-term

18 availability of the Coalition’s fundamental programmatic services like emergency community support.

19 To accommodate the lack of employment and economic stability facing many members and individuals

20 whom the Coalition and its affiliates serve, the Coalition and its affiliates have been forced to shift

21 resources in a way that would make the programmatic impact of the Final Rule even more detrimental.

22

362. Similarly, BLMP provides cash assistance (in the amount of $250 and higher) to

23 hundreds of community members especially asylum seekers, asylees and detained members, provides

24 funds for bonds, and works in partnership with other organizations that provide mutual aid for basic

25 needs such as housing, food, and clothing for Black LGBTQIA+ migrants. Since the beginning of the

26 COVID-19 pandemic in 2020, BLMP has given approximately $215,000 in financial support to over

27 400 LGBTQIA+ migrants who need assistance for housing, food, health care, and other services.

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1 Almost all the recipients of mutual aid were ineligible for federal stimulus funds, and over 50% are

2 asylum seekers who would be denied asylum or other forms of relief under the Final Rule. For 2021,

3 BLMP had planned to provide mutual aid at the same levels but because of the Final Rule’s impact on

4 LGBTQIA+ migrants, they are now planning to divert and reallocate its resources to address the increase

5 in requests for support.

6

363. In order to adequately respond to their clients and members’ needs, Plaintiffs have had

7 to divert resources from core programs and services to respond to the Final Rule. They have done so by

8 reallocating staffing, devoting less time and money to advocacy projects and community initiatives, and

9 taking on fewer cases. This diversion of resources has and will continue to irreparably harm Plaintiffs

10 unless the Final Rule is prevented from taking effect.

11

C. The Final Rule Jeopardizes Plaintiffs’ Funding.

12

364. The Final Rule will also harm Plaintiffs by jeopardizing their funding.

13

365. Plaintiffs rely on public or foundations grants, government contracts, and individual

14 donors. Such funding streams often have set requirements that Plaintiffs must meet to receive funding

15 or to be eligible for continued funding. Such grants are often conditioned on Plaintiffs’ ability to meet

16 certain targets such as number of services provided, clients served, or number of asylum applications

17 filed.

18

366. For example, BLMP receives more than 90% of its funding through foundation grants.

19 Over 70% of these grants are in support of BLMP’s services to migrants in detention centers and at risk

20 of detention or deportation. Most of these grants mandate specific numbers of services provided and

21 people served that BLMP must meet or risk losing funding.

22

367. Similarly, Oasis receives funding from grants conditioned on filing a certain number of

23 affirmative asylum cases per year or that pay a set amount per case filed. If fewer of the potential clients

24 who come to Oasis have cognizable asylum cases as a result of the Final Rule, Oasis will file fewer

25 affirmative asylum cases and its funding will decrease. Such a decrease in funding may necessitate

26 reducing Oasis’s affirmative asylum program and staff in the short term and having less clients to

27 represent in residency and citizenship cases in the long term.

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1

368. As noted above, Immigration Equality has a Pro Bono Program to place asylum cases

2 with volunteer attorneys. In addition to providing pro bono legal services, the level at which a firm

3 donates is generally based on the level of engagement in Immigration Equality’s Pro Bono Program and

4 opportunities to provide direct assistance. Because fewer of Immigration Equality’s clients will be

5 eligible for asylum under the Final Rule, there will be a decrease in the number of clients Immigration

6 Equality may place with volunteer attorneys at partner law firms. As such, Immigration Equality

7 anticipates that it will see a corresponding dip in donations from these law firms. Oasis also works with

8 pro bono attorneys who work with clients to prepare their asylum applications and represent clients at

9 their asylum interviews. Oasis anticipates a similar decrease in pro bono attorneys because of the impact

10 the Final Rule may have on its volunteers.

11

369. Lastly, Oasis functions on a low bono/pro bono model and charges client fees using a

12 sliding scale based on a client’s income. Due to the profound changes brought about by the Final Rule,

13 Oasis anticipates that it will be unable to accept new clients for a period of time after the Final Rule’s

14 effective date in order to adequately train its staff and pro bono volunteers on the Final Rule. Because

15 Oasis will be unable to accept new cases, Oasis will lose income and its finances will be negatively

16 impacted.

17

370. In sum, the Final Rule will deal a devastating blow to Plaintiffs’ finances, including the

18 loss of significant funding streams.

19

371. The Final Rule’s compounding effects not only diminish the ability of Plaintiffs to fulfill

20 their missions by endangering funding, requiring the diversion of resources, and necessitating wholesale

21 revisions to the way they approach their work, the Final Rule also threatens the very existence of some

22 Plaintiffs, which depends on the ability to represent and assist LGBTQ refugees in their efforts to obtain

23 asylum and other forms of relief.

24

CLAIMS FOR RELIEF

25

FIRST CLAIM FOR RELIEF

Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A)

26

Contrary to Law

27

372. Plaintiffs incorporate and reallege the preceding paragraphs as if set forth fully herein.

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1

373. Under the APA, an agency action must be set aside if it is “not in accordance with law.”

2 5 U.S.C. § 706(2)(A). The Final Rule is contrary to law.

3

374. Multiple provisions of the Final Rule directly contradict or exceed Defendants’ statutory

4 authority under federal statutory law, including the INA, 8 U.S.C. §§ 1101 et seq., and the Foreign

5 Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, Title XXII, § 2242(b), 112

6 Stat. 2681-822 (1998) (codified as a note to 8 U.S.C. § 1231 (1999)), the latter of which obligated the

7 Departments to satisfy the minimum thresholds prescribed under CAT.

8

375. Among other directives in the Final Rule that are contrary to law, it: (i) generally requires

9 adjudicators to deny asylum if the applicant accrued one year or more of unlawful presence, ignoring

10 congressionally enacted exceptions to the one-year filing deadline, 85 Fed. Reg. 80,387-88, 80,396-97

11 (to be codified as 8 C.F.R. §§ 208.13(d)(2)(D), 1208.13(d)(2)(D)); (ii) allows adjudicators to deny

12 asylum or withholding of removal where the applicant’s claim of persecution is based on “interpersonal

13 animus,” even though virtually all instances of persecution, particularly against LGBTQ/H refugees,

14 involve some form of interpersonal animus, 85 Fed. Reg. 80,386, 80,395 (to be codified as 8 C.F.R. §§

15 208.1(f)(1)(i)-(ii), 1208.1(f)(1)(i)-(ii)); (iii) generally eliminates the adjudicator’s discretion to grant

16 asylum if an applicant traveled through more than one third country, or was present in any third country

17 for more than 14 days, contrary to the more narrowly drawn firm resettlement and safe third country

18 bars found in the INA, 85 Fed. Reg. 80,387-88, 80,396 (to be codified as 8 C.F.R. §§ 208.13(d)(2)(A),

19 (B), 1208.13(d)(2)(A), (B)); (iv) bars asylum seekers under the firm resettlement doctrine based on a

20 definition of “firm resettlement” that does not comport with the INA’s plain language, 85 Fed. Reg.

21 80,388, 80,397 (to be codified as 8 C.F.R. §§ 208.15(a), 1208.15(a)); (v) allows immigration judges to

22 deny certain asylum applications without a hearing, with little or no notice or opportunity for the

23 applicant to cure any defect in the petition, 85 Fed. Reg. 80,397 (to be codified as 8 C.F.R. § 1208.13(e));

24 (vi) overrides the statutory authority of asylum officers and immigration judges to consider all record

25 evidence, including cultural evidence pertaining to the treatment of LGBTQ/H people in the applicant’s

26 country of origin, 85 Fed. Reg. 80,386, 80,395 (to be codified as 8 C.F.R. §§ 208.1(g), 1208.1(g)); (vii)

27 eliminates the discretion of immigration judges or the BIA to consider certain arguments on a motion to

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1 reopen or reconsider contrary to Congress’ recognition that such motions may be filed based on changed

2 country conditions, 85 Fed. Reg. 80,385, 80,394 (to be codified as 8 C.F.R. §§ 208.1(c), 1208.1(c)); and

3 (viii) promulgates regulations under the CAT that contradict its plain text and undermine its fundamental

4 objectives.

5

376. The Final Rule must be set aside in its entirety because it is so rife with provisions like

6 these that are contrary to federal law, as well as other provisions that should be invalidated because they

7 are, among other reasons, arbitrary and capricious, that no part of the Final Rule can be separately

8 salvaged.

9

SECOND CLAIM FOR RELIEF

Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A)

10

Arbitrary and Capricious

11

377. Plaintiffs incorporate and reallege the preceding paragraphs as if set forth fully herein.

12

378. Under the APA, an agency action must be set aside if it is “arbitrary, capricious, [or] an

13 abuse of discretion.” 5 U.S.C. § 706(2)(A). The Final Rule is arbitrary and capricious and an abuse of

14 the Departments’ discretion.

15

379. In adopting the Final Rule, the Departments failed to consider pertinent data and failed

16 to articulate a reasoned or legally sufficient basis for the Final Rule. The Final Rule is therefore arbitrary

17 and capricious. For most of the provisions of the Final Rule addressed in this Complaint, the

18 Departments do not even attempt to specify what problem they are attempting to solve, what facts or

19 data support the actions taken, or how the new regulations adhere to congressional intent and comport

20 with the structure and purposes of the INA. The Departments repeal longstanding policies, some

21 decades old, utterly failing to display awareness that they are changing position.

22

380. In adopting the Final Rule, the Departments also failed to respond adequately to

23 significant comments critical of the Proposed Rule that were submitted during the notice-and-comment

24 period. Despite the ad hoc justifications that the Departments have offered for the provisions of this

25 sprawling rule, including in their purported responses to Comments promulgated with the Final Rule

26 that are largely boilerplate or rote, it is apparent that the Departments disregarded the underlying merits

27 of the comments and other public policy considerations.

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381. For example, and as set forth in more detail above, the Final Rule arbitrarily and

2 capriciously: (i) eliminates the ability of immigration judges and asylum officers to hold that laws such

3 as those making it a crime to be LGBTQ/H are inherently persecutory even if not consistently enforced,

4 85 Fed. Reg. 80,386, 80,395 (to be codified as 8 C.F.R. §§ 208.1(e), 1208.1(e)); (ii) shifts the burden

5 for many applicants to prove that internal relocation in their home country would not have been

6 reasonable, and requires adjudicators to consider factors that are outright irrational in determining

7 whether internal relocation would have been reasonable, 85 Fed. Reg. 80,387, 80,396, 98 (to be codified

8 as 8 C.F.R. §§ 208.13(b)(3), 1208.13(b)(3), 208.16(b)(3), 1208.16(b)(3)); (iii) harshly penalizes

9 applicants who traveled through a third country without applying for protection there, even if the

10 applicant would have been at risk of persecution or torture in the third country, 85 Fed. Reg. 80,387,

11 80,396 (to be codified as 8 C.F.R. §§ 208.13(d)(1), 1208.13(d)(1)); and (iv) reduces confidentiality

12 protections, potentially discouraging meritorious applicants or their supporting witnesses from coming

13 forward, particularly for LGBTQ/H applicants, 85 Fed. Reg. 80,386-87, 80,395-96 (to be codified as 8

14 C.F.R. §§ 208.6, 1208.6).

15

382. The Final Rule is additionally arbitrary and capricious because the Departments

16 neglected their duty under the APA to consider adequately the significant reliance interests of LGBTQ/H

17 asylum seekers, and other asylum seekers, who have already submitted applications. The Final Rule

18 fails to take into account that in filing for asylum or other forms of relief, pending applicants like the

19 many clients of Plaintiffs and hundreds of thousands of others, relied heavily on the legal regime

20 currently in place, including then-existing rules about what evidence their applications must contain,

21 what elements of their claims must be proven, whether they will be entitled to a hearing, the impact of

22 changed or extraordinary circumstances on the timing of when they filed, and whether the contents of

23 their application will remain confidential. The Final Rule upsets all of these well-founded expectations

24 and more, for example by potentially treating as retroactive provisions limiting the ability to supplement

25 and reopen claims and permitting broad disclosure of personal information.

26

383. In the preamble to the Final Rule, the Departments acknowledge that the potential

27 retroactivity of the Final Rule was not clear in the NPRM. But the Final Rule’s preamble, which itself

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1 is not a codified regulation, sows more confusion into the chaos of the Final Rule by asserting that

2 unidentified “substantial portions” of the Final Rule “merely codify existing statutory authority” and

3 that all such portions should apply retroactively. The Final Rule furnishes no guidance concerning

4 which portions the Departments believe “merely codify existing authority,” so applicants and their

5 counsel, as well as adjudicators, have no clarity concerning what portions of the Final Rule will apply

6 retroactively. That brazen refusal to account for the reliance interests of LGBTQ/H immigrants like

7 Plaintiffs’ clients who have pending applications for asylum is arbitrary and capricious.

8

384. The Final Rule is so rife with arbitrary and capricious provisions, as well as other

9 provisions that should be invalidated because they are, among other reasons, contrary to law, that no

10 part of the Final Rule can be separately salvaged, and the Final Rule must be set aside in its entirety.

11

THIRD CLAIM FOR RELIEF

12

Violation of Due Process Clause of the Fifth Amendment and 5 U.S.C. § 706(2)(B)

13

385. Plaintiffs incorporate and reallege the preceding paragraphs as if set forth fully herein.

14

386. Under the APA, an agency action must be set aside if it is “contrary to constitutional

15 right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).

16

387. The Final Rule violates the Due Process Clause of the Fifth Amendment of the United

17 States Constitution.

18

388. The Due Process Clause’s guarantees of effective assistance of counsel and procedural

19 due process apply in asylum adjudications, as well as in adjudications for withholding of removal and

20 relief under CAT. The Final Rule abridges these constitutional guarantees by: (i) requiring immigration

21 judges to pretermit asylum applications without a hearing and without affording applicants a reasonable

22 opportunity to cure, and (ii) preventing applicants from asserting new arguments related to their PSG

23 membership in a motion to reopen, motion to remand, or motion to reconsider, even if their failure to

24 do so in their initial application was due to counsel’s ineffectiveness. While the Final Rule purports to

25 provide an exception for “egregiously” ineffective assistance, “egregious” is not the threshold promised

26 by the Constitution, and the Departments concede in any event that “egregious circumstances” will exist

27 only in “very rare” circumstances.

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389. These abridgements of procedural rights that violate the Due Process Clause uniquely

2 devastate Plaintiffs because, among other reasons, LGBTQ/H claimants frequently fear identifying with

3 their PSG in their initial public filings.

4

390. The procedures set forth in the Final Rule also further offend the Due Process Clause

5 because, as explained above, the impact of the Final Rule is not clearly limited temporally and

6 Defendants seek to apply it retroactively to those whose applications were already pending as of the

7 Final Rule’s effective date. Applying the Final Rule retroactively to invalidate the settled expectations

8 of LGBTQ/H asylum seekers with pending applications will result in further manifest injustice in

9 violation of the Due Process Clause.

10

FOURTH CLAIM FOR RELIEF

Violation of Appointments Clause of the Constitution, the HSA, the FVRA, and 5 U.S.C.

11

§706(2)(A), (C), (D)

Lack of Authority of Defendant Wolf 12

391. Plaintiffs incorporate and reallege the preceding paragraphs as if set forth fully herein.

13

392. Under the Administrative Procedure Act, agency action must be set aside if it is “in

14

excess of statutory jurisdiction, authority, or limitations,” or “without observance of procedures required

15

by law.” 5 U.S.C. § 706(2)(C), (D).

16

393. At the time of publication of the Proposed Rule and Final Rule, Defendant Wolf did not

17

have authority to serve as Acting Secretary of Homeland Security under the Federal Vacancies Reform

18

Act, 5 U.S.C. §§ 3345 et seq.

19

394. At the time of publication of the Proposed Rule and Final Rule, Defendant Wolf did not

20

have authority to serve as Acting Secretary of Homeland Security under the Homeland Security Act, 6

21

U.S.C. § 113(g)(2).

22

395. At the time of publication of the Proposed Rule and Final Rule, Defendant Wolf did not

23

have constitutional authority to serve as Acting Secretary of Homeland Security under U.S. Const. art.

24

II, § 2, cl. 2.

25

396. The Final Rule relies on authority from DHS and Defendant Wolf, and was therefore

26

enacted in excess of statutory authority and without observance of procedures required by law.

27

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1

397. Moreover, the Final Rule would be arbitrary and capricious under the APA if the DOJ

2 Regulations were to stand alone without their corresponding DHS counterparts, because without the

3 DHS Regulations the Final Rule would be devoid of internal logic and eschew uniformity between the

4 DOJ and DHS enforcement practices in contravention of the Final Rule’s clear and unambiguous intent

5 otherwise. Thus, the Final Rule must be set aside in its entirety.

6

FIFTH CLAIM FOR RELIEF

Violation of 5 U.S.C. §§ 553, 706

7

Insufficient Notice-and-Comment Period

8

398. Plaintiffs incorporate and reallege the preceding paragraphs as if set forth fully herein.

9

399. The APA requires an agency proposing a new rule to provide public notice and to “give

10 interested persons an opportunity to participate in the rule making through submission of written data,

11 views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(c).

12

400. The 30-day notice-and-comment period provided was inadequate in light of the proposed

13 rule’s hundreds of pages of length, alterations to nearly every aspect of the asylum system, far-reaching

14 impact on hundreds of thousands of refugees, and manifest complexity. The Final Rule is therefore

15 invalid in its entirety for failure to comply with the notice and comment requirements of the APA.

16

PRAYER FOR RELIEF

17

WHEREFORE, Plaintiffs respectfully pray for the following relief:

18

i. That the Court accept jurisdiction and maintain continuing jurisdiction of this action;

19

ii. A declaration pursuant to 28 U.S.C. §§ 2201-02 and 5 U.S.C. § 706(2) that the Final Rule

20 is unlawful, unconstitutional, arbitrary and capricious, an abuse of discretion, and invalid in its entirety;

21

ii. An order setting aside and vacating the Final Rule;

22

iii. A temporary restraining order and preliminary and permanent injunctions enjoining

23 Defendants, their officials, agents, employees, assigns, and all persons acting in concert or participating

24 with them from implementing or enforcing the Final Rule;

25

iv. Attorneys’ fees, costs, and expenses, and other disbursements for this action under the

26 Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412(2), et seq., and as otherwise

27 authorized; and

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v. Such other relief as the Court deems equitable, just, and proper.

2

3

Respectfully submitted,

4 5 DATED: December 21, 2020

6 JENNIFER C. PIZER (SBN 152327)

7

jpizer@lambdalegal.org LAMBDA LEGAL DEFENSE AND

8

EDUCATION FUND, INC. 4221 Wilshire Boulevard, Suite 280

9

Los Angeles, California 90010 Telephone: (213) 590-5903

10 OMAR GONZALEZ-PAGAN*

11

ogonzalez-pagan@lambdalegal.org RICHARD SAENZ*

12

rsaenz@lambdalegal.org LAMBDA LEGAL DEFENSE AND

13

EDUCATION FUND, INC. 120 Wall Street, 19th Floor

14

New York, New York 10005 Telephone: (212) 809-8585

15 BRIDGET CRAWFORD*

16

bcrawford@immigrationequality.org IMMIGRATION EQUALITY

17

594 Dean Street Brooklyn, New York 11238

18 Telephone: (212) 714-2904

By: /s/ Austin Manes AUSTIN MANES (SBN 284065) amanes@kramerlevin.com KRAMER LEVIN NAFTALIS & FRANKEL LLP 990 Marsh Road Menlo Park, California 94025 Telephone: (650) 752-1718
JEFFREY S. TRACHTMAN* jtrachtman@kramerlevin.com AARON M. FRANKEL* afrankel@kramerlevin.com JASON M. MOFF* jmoff@kramerlevin.com CHASE MECHANICK* cmechanick@kramerlevin.com KRAMER LEVIN NAFTALIS &
FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Telephone: (212) 715-9100
* Application for admission pro hac vice forthcoming.
Counsel for Plaintiffs

19

20

21

22

23

24

25

26

27

28 124
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case No.

-6&$1' 5HY Case 3:20-cv-09258-D&M,R9,/Do&cu2m9e(nt51-61+(Fi(le7d 12/21/20 Page 1 of 2
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IMMIGRATION EQUALITY; OASIS LEGAL SERVICES; THE TRANSLATIN@ COALITION; BLACK LGBTQIA+ MIGRANT PROJECT; TRANSGENDER LAW CENTER
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 Case 3:20-cv-09258-JD Document 55 Filed 01/08/21 Page 1 of 14

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

PANGEA LEGAL SERVICES, et al.,

8

Plaintiffs,

9

v.

10

U.S. DEPARTMENT OF HOMELAND

SECURITY, et al.,

11

Defendants.

12

IMMIGRATION EQUALITY, et al.,

13

Plaintiffs,

Case No. 20-cv-09253-JD
ORDER RE PRELIMINARY INJUNCTION Re: Dkt. No. 27
Case No. 20-cv-09258-JD Re: Dkt. No. 13

14

v.

15

U.S. DEPARTMENT OF HOMELAND

16

SECURITY, et al.,

17

Defendants.

18

In these two related actions, plaintiff immigration and asylum services organizations sue to

19 block the implementation of a final rule that was issued last month by the Department of

20 Homeland Security (DHS) and the Department of Justice (DOJ). The rule, titled Procedures for

21 Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg.

22 80274, 8 C.F.R. parts 208, 235, 1003, 1208, 1235 (Dec. 11, 2020) (Rule), would make sweeping

23 changes to the United States’ asylum system and is scheduled to go into effect on January 11,

24 2021. Plaintiffs have moved for a preliminary injunction to suspend the operation of the rule

25 pending further proceedings. Pangea Dkt. No. 27, Immigration Equality Dkt. No. 13.1 An

26 injunction is granted.

27

28 1 The Court will specify the case name for the ECF docket cites as needed for clarity.

Case 3:20-cv-09258-JD Document 55 Filed 01/08/21 Page 2 of 14

United States District Court Northern District of California

1

BACKGROUND

2

The United States asylum system has a long and complicated history, and an enormous

3 body of statutory and case law. A few main components bear highlighting here by way of

4 background. Section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158, makes

5 asylum available to any alien who is determined to be a “refugee” by the Secretary of Homeland

6 Security or the Attorney General, regardless of the alien’s immigration status. See 8 U.S.C.

7 § 1158(a)(1), (b)(1)(A). A “refugee” generally includes anyone who cannot return to their home

8 country “because of persecution or a well-founded fear of persecution on account of race, religion,

9 nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1101(a)(42),

10 and once granted asylum, an alien may avoid removal, seek employment, and travel from and

11 return to the United States. See 8 U.S.C. § 1158(c)(1). Section 241(b)(3) of the INA, 8 U.S.C.

12 § 1231(b)(3), provides for withholding of an alien’s removal from the United States to a country

13 where “the alien’s life or freedom would be threatened in that country because of the alien’s race,

14 religion, nationality, membership in a particular social group, or political opinion.” The United

15 Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

16 Punishment (CAT), opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85, to which the United

17 States is a signatory, provides that no treaty party “shall expel, return (‘refouler’) or extradite a

18 person to another State where there are substantial grounds for believing that he would be in

19 danger of being subjected to torture.” 1464 U.N.T.S. at 114. The Secretary of Homeland Security

20 and the Attorney General have general regulatory authority over asylum-related practices. See,

21 e.g., 8 U.S.C. §§ 1103(a)(1), (a)(3), (g), 1158(d)(1), 1231(b)(3)(A).

22

On June 15, 2020, the DHS and the DOJ (through its Executive Office of Immigration

23 Review (EOIR)) published a notice of proposed rulemaking for the Rule. See Procedures for

24 Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg.

25 36264-01 (June 15, 2020) (NPRM). The NPRM was 43 pages long in the Federal Register’s

26 format of three columns per page. The stated goals of the NPRM were to adopt “streamlined

27 proceedings” for adjudicating applications for asylum, withholding of removal, and CAT

28 protection, and “to specify what standard of review applies in such streamlined proceedings.” 2

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United States District Court Northern District of California

1 NPRM at 36264. To those ends, the NPRM proposed a broad revision of current asylum practices

2 in favor of “expedited” proceedings, which would entail a massive reworking of DHS’s and DOJ’s

3 existing asylum regulations. Despite the breadth and scope of this undertaking, the NPRM

4 provided just 30 days for public comments. See id. (“comments on the notice of proposed

5 rulemaking must be submitted on or before July 15, 2020”). The government did not say in the

6 rulemaking process why such a truncated comment period was warranted, and counsel for the

7 government at the injunction hearing could not provide one. Even so, over 87,000 comments were

8 submitted, and they overwhelmingly opposed the proposed rule, often with detailed reasoning and

9 analysis. See Rule at 80284. These included 311 comments from “non-government organizations,

10 legal advocacy groups, non-profit organizations, religious organizations, unions, congressional

11 committees, and groups of members of Congress.” Id.

12

The tidal wave of responses barely made an impact on the government. The final Rule

13 published on December 11, 2020, was “substantially the same as the NPRM.” Rule at 80274,

14 80276. The Rule significantly expands the circumstances under which an alien may be barred

15 from asylum because he or she spent significant time in a third country before arriving in the

16 United States, and effectively establishes a presumption against asylum claims that are rooted in

17 gender-based persecution, among other changes. Id. at 80281-82. It also broadens the definition

18 of a “frivolous” application to include applications “foreclosed by applicable law,” as well as the

19 circumstances under which an alien may be found to have “knowingly” filed a frivolous

20 application, which then makes the alien permanently ineligible for asylum. Id. at 80279 (citing 8

21 U.S.C. § 1158(d)(6)). Additionally, the Rule creates a new “pretermission” procedure under

22 which an immigration law judge (ILJ) may reject an asylum application without a hearing if the

23 ILJ determines that the applicant has failed to make a “prima facie case” for relief under existing

24 regulations or other law, either sua sponte or in response to a motion by the DHS. Id. at 80280.

25

The Rule was signed by Attorney General William P. Barr and Chad R. Mizelle, the

26 “Senior Official Performing the Duties of the General Counsel” for DHS. Id. at 80401. The Rule

27 states that Chad F. Wolf, as the Acting Secretary of Homeland Security, “reviewed and approved”

28 3

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1 both the proposed rule and the final Rule, and “delegated” his signature authority to Mizelle. Id. at

2 80381, 80385. The Rule is scheduled to be implemented on January 11, 2020. Id. at 80274.

3

On December 21, 2020, ten days after the final Rule was published, plaintiffs sued to set it

4 aside. Pangea Dkt. No. 1; Immigration Equality Dkt. No. 1. As alleged in the complaints,

5 plaintiffs in the Pangea action are organizations that provide legal and other services to asylum

6 seekers and immigrant communities. The Immigration Equality plaintiffs are organizations that

7 provide services to lesbian, gay, bisexual, transgender, queer, and HIV-positive refugees. Both

8 complaints allege that the Rule should be invalidated because Wolf was not a lawful Acting

9 Secretary of Homeland Security with authority to sign off on the rulemaking, and that the Rule’s

10 many changes to the asylum system are arbitrary, capricious, unlawful, and procedurally improper

11 under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.

12

On December 22 and 23, 2020, both plaintiff groups filed applications for a temporary

13 restraining order and preliminary injunction enjoining the Rule from going into effect on January

14 11, 2021. Pangea Dkt. No. 27; Immigration Equality Dkt. No. 13. In light of the circumstances,

15 the Court ordered an accelerated briefing and hearing schedule, and the government opposed both

16 motions on December 31, 2020. Pangea Dkt. Nos. 29, 48; Immigration Equality Dkt. Nos. 16, 20

17 37. 2 Plaintiffs filed replies on January 5, 2021, Pangea Dkt. No. 64; Immigration Equality Dkt.

18 No. 52, and oral argument on the applications was heard by videoconference on January 7, 2021,

19 Pangea Dkt. No. 65; Immigration Equality Dkt. No. 54.

20

DISCUSSION

21 I. 22

LEGAL STANDARDS Plaintiffs’ applications seek a temporary restraining order and a preliminary injunction.

23 Where, as here, notice has been given to the adverse party, the legal standard is the same for both

24 types of relief. See Fang v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 16-cv-06071-JD,

25 2016 WL 9275454, at *1 (N.D. Cal. Nov. 10, 2016), aff’d, 694 F. App’x 561 (9th Cir. 2017)

26

27

2 Several former immigration law judges and law professors, advocacy organizations, the City of Los Angeles, the State of California, and a group of several states as well as the District of

28

Columbia, have asked to file amicus briefs. See Pangea Dkt. Nos. 33, 39, 41, 47, 50; Immigration Equality Dkt. Nos. 23, 30, 35, 36, 39. These unopposed requests are granted.

4

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1 (citation omitted). Not only did the government receive notice, it filed two separate oppositions to

2 the plaintiffs’ motions and it fully participated in oral argument at the motion hearing held on

3 January 7, 2021. The Court consequently focuses on plaintiffs’ requests for a preliminary

4 injunction. See Fed. R. Civ. P. 65(a)(1) (court may issue a preliminary injunction “on notice to the

5 adverse party”).

6

As the Supreme Court has emphasized, injunctive relief is “an extraordinary remedy never

7 awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A

8 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,

9 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

10 equities tips in his favor, and that an injunction is in the public interest.” Alliance for the Wild

11 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter, 555 U.S. at 20).

12 Alternatively, a preliminary injunction may issue where “serious questions going to the merits

13 were raised and the balance of hardships tips sharply in plaintiff's favor,” if the plaintiff “also

14 shows that there is a likelihood of irreparable injury and that the injunction is in the public

15 interest.” Id. at 1135. This reflects our circuit’s “sliding scale” approach, in which “the elements

16 of the preliminary injunction test are balanced, so that a stronger showing of one element may

17 offset a weaker showing of another.” Id. at 1131; see also Arc of California v. Douglas, 757 F.3d

18 975, 983 (9th Cir. 2014). In all cases, at an “irreducible minimum,” the party seeking an

19 injunction “must demonstrate a fair chance of success on the merits, or questions serious enough

20 to require litigation.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012) (internal

21 quotation and citation omitted); see also Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)

22 (“The first factor under Winter is the most important -- likely success on the merits.”).

23 II. INJUNCTION FACTORS ANALYSIS

24

A. Likelihood of Success on the Merits

25

The Pangea plaintiffs and the Immigration Equality plaintiffs lead with the argument that

26 the Rule should be set aside because Wolf, who approved the Rule as Acting Secretary of

27 Homeland Security, did not have valid authority to act in that capacity. Pangea Dkt. No. 27 at 5-

28 6; Immigration Equality Dkt. No. 13-1 at 8-17. The question arises because Kirstjen Nielsen was 5

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United States District Court Northern District of California

1 the last Secretary of Homeland Security to have been nominated by the President and confirmed

2 by the Senate, and she resigned effective April 10, 2019. See U.S. Const., art. II, § 2, cl. 2

3 (requiring cabinet secretaries to be nominated by the President and confirmed by the Senate); 6

4 U.S.C. § 112(a)(1) (applying Appointments Clause requirement to Secretary of Homeland

5 Security position); Pangea Dkt. No. 1 ¶ 310 (Secretary Nielsen’s resignation was effective on

6 April 10, 2019). A new Secretary has not been confirmed since then. Instead, following Secretary

7 Nielsen’s departure, an assortment of individuals have served in the ostensible capacity of Acting

8 Secretary by designation. Kevin McAleenan, who had been the Customs and Border Protection

9 (CBP) Commissioner, was initially called the Acting Secretary of Homeland Security, after an

10 announcement by President Trump on Twitter. See Pangea Dkt. No. 1 ¶ 310; Immigration

11 Equality Dkt. No. 1 ¶ 293. Wolf, the ostensible current Acting Secretary, claimed the position in

12 November 2019 under a succession plan implemented by McAleenan, which designated the

13 “Under Secretary for Strategy, Policy, and Plans” (at the time, Wolf) as next in line for Acting

14 Secretary after McAleenan resigned. See Pangea Dkt. No. 1 ¶ 311; Immigration Equality Dkt.

15 No. 1 ¶¶ 297-98.

16

Wolf has not spent his time idly at DHS. During his relatively brief tenure, he has

17 attempted to suspend the Deferred Action for Childhood Arrivals (DACA) program, and impose

18 administrative fees for immigration services and eliminate fee waivers, among other actions.

19 These efforts resulted in several lawsuits in federal courts across the United States, each of which

20 challenged Wolf’s rulemaking authority on the same grounds presented by plaintiffs here. In all of

21 these cases, the district courts have concluded that Wolf was not a duly authorized Acting

22 Secretary, and that his actions were a legal nullity. See Batalla Vidal v. Wolf, No. 16-CV-4756

23 (NGG) (VMS), 2020 WL 6695076, at *9 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rights

24 Project v. United States Citizenship & Immigration Servs., No. CV 19-3283 (RDM), 2020 WL

25 5995206, at *24 (D.D.C. Oct. 8, 2020); Immigrant Legal Res. Ctr. v. Wolf, No. 20-CV-05883-

26

27

28 6

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United States District Court Northern District of California

1 JSW, 2020 WL 5798269, at *7 (N.D. Cal. Sept. 29, 2020); Casa de Maryland, Inc. v. Chad F.

2 Wolf, Case No. 8:20-cv-02118-PX, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).3

3

This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s

4 authority vel non to change the immigration regulations. If the government had proffered new

5 facts or law with respect to that question, or a hitherto unconsidered argument, this might have

6 been a worthwhile exercise. It did not. The government has recycled exactly the same legal and

7 factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned

8 opinions by several courts. The government initially appealed two of these decisions, both of

9 which it later voluntarily dismissed, and appears to have only one appeal pending. In the main,

10 the government contents itself simply with saying the prior courts were wrong, with scant

11 explanation. See, e.g., Pangea Dkt. No. 48 at ECF p. 11 (“the various courts that have embraced

12 this argument are mistaken”); Immigration Equality Dkt. No. 37 at 14 (same).

13

This is a troubling litigation strategy. In effect, the government keeps crashing the same

14 car into a gate, hoping that someday it might break through. To be sure, one court decision alone

15 does not necessarily close the door to any further cases or arguments along similar lines. Our

16 common law system contemplates that more than one judicial examination of facts and issues is

17 often merited. But our system has no room for relitigating the same facts and law in successive

18 district court cases ad infinitum. That is what the government is doing here. The Court took pains

19 at oral argument to discuss this with counsel for the government, and specifically asked how their

20 arguments here are in any way different from the ones made and rejected in the preceding cases.4

21 Counsel responded mainly with a disparaging comment to the effect that the other district courts

22 had shirked from working their way through the record. That is untrue. Each of the prior

23 decisions conducted a painstaking analysis of the facts with respect to the Acting Secretary

24

25

26

3 The Government Accountability Office (GAO) has also found that Wolf’s appointment was invalid under the Homeland Security Act. See Matter of Dep’t of Homeland Security, Gov’t

27 Accountability Office (Aug. 14, 2020), https://www.gao.gov/assets/710/708830.pdf, at 2.

28

4 Attorney August Flentje at DOJ handled this portion of the government’s argument at the hearing.

7

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United States District Court Northern District of California

1 position at DHS, with full attention to the unprecedented efforts to validate Wolf’s claim to the

2 job, irrespective of governing law and procedures.

3

A good argument might be made that, at this point in time, the government’s arguments

4 lack a good-faith basis in law or fact. But the Court need not reach that conclusion to reject those

5 arguments yet again. The Court’s independent review of the record indicates that Batalla Vidal,

6 2020 WL 6695076, which is the latest decision before this order, correctly identified and analyzed

7 the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in

8 full.

9

The parties’ familiarity with the prior decisions and record here is assumed. In pertinent

10 summary, the government relies on two statutes to demonstrate that Wolf had lawful authority as

11 Acting Secretary: the Homeland Security Act (HSA), 6 U.S.C. § 101 et seq., and the Federal

12 Vacancies Reform Act (FVRA), 5 U.S.C. § 3345 et seq. To a certain extent, that spots the

13 government more credit than the record indicates is due. DHS has relied mainly on the HSA to

14 justify Wolf’s authority, and resorted to the FVRA as a back-up theory after the HSA argument

15 was turned aside by the court decisions and the Government Accountability Office. As

16 determined in the prior decisions, Secretary Nielsen’s April 2019 order was unambiguous. See

17 Immigration Equality Dkt. No. 37-2, Exh. 1 (Revision 08.5 to DHS Delegation 00106 (Nielsen

18 Order)). That order changed only Annex A, which was the order of succession to be used to

19 determine who would perform the duties of Secretary in the event of a disaster or emergency that

20 left the Secretary unable to act. It did not address what should happen in the event of resignations

21 or other vacancies, which continued to be governed by Executive Order (EO) 13753, 81 Fed. Reg.

22 90667 (Dec. 9, 2016), the operation of which should have resulted in Christopher Krebs, the

23 Director of Cyber Security and Infrastructure Security, assuming head DHS authority after

24 Secretary Nielsen’s departure. The government makes no argument that there was a delegation of

25 that authority from Krebs to Wolf, nor could it since Krebs was never said to hold the Acting

26 Secretary position.

27

What this means is that the chain of succession the government invokes -- from Nielsen to

28 McAleenan to Wolf -- does not hold together. The plain language of the Nielsen Order did not 8

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United States District Court Northern District of California

1 designate the CBP Commissioner, McAleenan, as the next person to take on the duties of DHS

2 Secretary. To the contrary, it left intact a previously established succession order that should have

3 put Krebs in charge. But it was McAleenan, and not Krebs, who purported to act as DHS Acting

4 Secretary, and then in that capacity issued his own order purporting to change the order of

5 succession so that the role would next pass on to Wolf, as the Under Secretary for Strategy,

6 Policy, and Plans. Because the passing of the torch from Nielsen to McAleenan was ineffective,

7 the attempt by McAleenan to pass it in turn to Wolf had no legal effect whatsoever. The entire

8 succession argument under the HSA consequently falls apart.

9

The government’s “alternative” hypothesis under the FVRA is equally unviable.

10 Repeating a back-up theory it tendered in the prior cases, the government says that the McAleenan

11 situation can be ignored because FEMA administrator Peter Gaynor was properly in office as DHS

12 Acting Secretary under the FVRA and EO13753. Gaynor was thereby authorized to change the

13 order of succession in Wolf’s favor, which he purported to do. This is said to have allowed Wolf

14 to “cure” any dispute about his authority to promulgate the notice of rulemaking in June 2020 by

15 retroactively ratifying it. See Pangea Dkt. No. 48 at ECF pp. 12-13; Immigration Equality Dkt.

16 No. 37 at 22-23; Rule at 80381-82.

17

But counsel for the government abandoned this theory at the hearing. In response to a

18 direct question by the Court, counsel stated that Gaynor “never” was the Acting Secretary of

19 Homeland Security. Hr. Tr. at 16:13-24.5 The FVRA says that an Acting Secretary is someone

20 whose role is to “perform the functions and duties” of the vacant office. See, e.g., 5 U.S.C.

21 §§ 3345(a), 3348(b). Because Gaynor was never the Acting Secretary, he did not have authority

22 under the FVRA or EO 13753 to change the order of succession at DHS. It follows that Gaynor

23 could not have designated Wolf to be Acting Secretary, and that Wolf’s effort to ratify his June

24 2020 actions as Acting Secretary is of no moment legally.

25

26

27

28

5 A “rough” transcript of the hearing has been made available to the Court, with a final transcript to follow.

9

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United States District Court Northern District of California

1

Consequently, plaintiffs have demonstrated a likelihood of success in establishing that the

2 proposed rulemaking was done without authority of law. APA, 5 U.S.C. § 706(2). This is enough

3 to warrant preliminary relief at this stage of the case.

4

The fact that Attorney General Barr also signed off on the rulemaking on behalf of the DOJ

5 does not change this conclusion. The government does not seriously contend so, and the Rule

6 itself states that “officials in both DHS and DOJ make determinations involving the same

7 provisions of the INA, including those related to asylum,” and so coordinated rulemaking is

8 necessary to “ensure consistent application of the immigration laws.” Rule at 80286 (noting that

9 “the DHS and DOJ regulations are inextricably intertwined”). The DHS and DOJ regulations are

10 substantively identical in key respects. See, e.g., 8 C.F.R. §§ 208.1(e), 1208.1(e) (defining

11 “persecution”); 8 C.F.R. §§ 208.15, 1208.15 (standards for deciding whether an alien is ineligible

12 for asylum due to being “firmly resettled” in another country). In many instances, DOJ

13 regulations simply direct Immigration Law Judges to review determinations by DHS officials, and

14 cross-reference the DHS standards alongside their DOJ counterparts. See, e.g., 8 C.F.R.

15 § 1003.42(d)(2) (providing for de novo review of asylum officer’s determination under 8 C.F.R.

16 part 208 that alien lacks a reasonable fear of persecution or torture). Given this joint departmental

17 regulatory scheme, invalidating the DHS regulations because of Wolf’s lack of authority while

18 leaving the DOJ regulations in place would “impair the function” of relevant immigration statutes

19 as a whole, and is not warranted where the DOJ regulations likely would “not have been passed

20 but for” the inclusion of the DHS regulations. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294

21 (1988). In addition, as the government itself acknowledges, the “Secretary of Homeland Security

22 shall be charged with the administration and enforcement” of the INA, and “all other laws relating

23 to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). While the Attorney

24 General has a role in issuing binding legal opinions in immigration matters, the substantive

25 rulemaking authority resides in DHS.

26

Because plaintiffs have shown a likelihood that the DHS lacked authority through Wolf for

27 the proposed rulemaking, the Court need not reach the other grounds plaintiffs propose for an

28 10

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1 injunction. The arguments on whether the specific proposed revisions to the asylum system are

2 unlawful under the APA will be taken up at a further proceeding as discussed below.

3

B. Irreparable Harm

4

Plaintiffs have also demonstrated a likelihood of irreparable harm in the absence of

5 injunctive relief. Organizations can establish irreparable injury by showing “ongoing harms to

6 their organizational missions,” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013),

7 including the organizational mission of “representing and seeking asylum seekers,” E. Bay

8 Sanctuary Covenant v. Barr, 964 F.3d 832, 854 (9th Cir. 2020) (“E. Bay Sanctuary Covenant II”).

9 Plaintiffs provide legal services and other assistance to those seeking asylum and similar

10 protections from persecution or violence in their home countries. They have provided ample

11 evidence that if enacted, the Rule would harm this mission. For example, plaintiffs have identified

12 at-risk clients who might be prevented from attaining asylum status because, under the new

13 provisions in the Rule, they spent too long in a third country before arriving in the United States,

14 or were unable to timely file an application due to extraordinary circumstances. See, e.g.,

15 Immigration Equality Dkt. No. 13-17 ¶¶ 23, 27. The potential double threat of pretermission and

16 the expanded frivolousness bar -- which prevents future applications -- has also forced plaintiffs to

17 devote significantly more time to developing their clients’ cases in the early stages, limiting the

18 number of asylum seekers they can effectively represent. See, e.g., Pangea Dkt. No. 27-2 ¶¶ 46-

19 49. While the Court defers a determination on the merits of these features to a subsequent hearing,

20 there is little doubt that their implementation is likely to harm plaintiffs’ missions on an ongoing

21 basis.

22

Additionally, the Ninth Circuit has held that organizations can show irreparable injury by

23 establishing that “they will suffer a significant change in their programs and a concomitant loss of

24 funding absent a preliminary injunction.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242,

25 1280 (9th Cir. 2020) (“E. Bay Sanctuary Covenant I”). Economic injuries are deemed irreparable

26 in APA cases because plaintiffs are unable to recover money damages. Id.; E. Bay Sanctuary

27 Covenant II, 964 F.3d at 854. Plaintiffs have made this showing by demonstrating, among other

28 evidence, that their staff have had to devote significant extra work time to retraining and to 11

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1 explaining the Rule’s changes to their clients. See, e.g., Immigration Equality Dkt. No. 13-20

2 ¶¶15-17. They also submitted evidence that their “revenue and funding stream” is linked to the

3 number of asylum applications they file, and quite reasonably contend that portions of the Rule

4 making it more difficult to obtain asylum are likely to diminish the number of filings. See, e.g., id.

5 ¶¶ 25-26.

6

C. Balance of Hardships and the Public Interest

7

The balance of hardships and the public interest are considered together in this case. See

8 E. Bay Sanctuary Covenant II, 964 F.3d at 854 (“When the government is a party, the third and

9 fourth preliminary injunction factors merge.”) (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d

10 1073, 1092 (9th Cir. 2014)). There is a strong public interest in ensuring that the laws duly

11 enacted by elected representatives are not undermined by agency actions. See id. at 855 (citing

12 Maryland v. King, 567 U.S. 1301, 1301 (2012)). There is also a strong public interest in ensuring

13 compliance with the APA, promoting Congressional intent, and protecting asylum-seekers from

14 wrongful removal or death. See E. Bay Sanctuary Covenant I, 950 F.3d at 1280-81. All these

15 interests are implicated here. In addition, maintaining the status quo of the asylum regulations as

16 they currently stand pending further proceedings on the merits will serve the important public

17 interest of promoting “a stable immigration system.” Doe #1 v. Trump, 957 F.3d 1050, 1068 (9th

18 Cir. 2020). Consequently, the balance of hardships and public interest inquiries for injunctive

19 relief weigh in plaintiffs’ favor.

20 III. REMEDY

21

Plaintiffs ask that defendants be enjoined from enforcing the Rule on a national basis.

22 Nationwide injunctions must be justified by a specific showing of nationwide impact. City & Cty.

23 of San Francisco v. Barr, 965 F.3d 753, 764-65 (9th Cir. 2020). Generally, to avoid being

24 overbroad, an injunction must be “no more burdensome to the defendant than necessary to provide

25 complete relief to the plaintiffs before the court.” Los Angeles Haven Hospice, Inc. v. Sebelius,

26 638 F.3d 644, 664 (9th Cir. 2011). The Ninth Circuit has recognized a “presumption (often

27 unstated) in APA cases that the offending agency action should be set aside in its entirety rather

28 than only in limited geographic areas” or with respect to particular parties. Innovation Law Lab v. 12

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United States District Court Northern District of California

1 Wolf, 951 F.3d 1073, 1094 (9th Cir. 2020) (explaining that an APA violation results not only in

2 granting relief to the particular plaintiffs in an action, but in setting an agency action aside). A

3 nationwide injunction is particularly appropriate in “cases implicating immigration policy”

4 because of the special need for “uniform relief.” Id. at 1094-95.

5

That presumption applies with full force here. Enjoining enforcement of the Rule in only

6 part of the country or against only particular parties would result in a fragmented and disjointed

7 patchwork of immigration policy. There is no good reason to conclude that the grounds for an

8 injunction here are meaningfully limited by geography or other factors. A nationwide injunction

9 is warranted.

10

CONCLUSION

11

A preliminary injunction is granted as follows.

12

(1) Defendants the United States Department of Homeland Security (DHS); Pete Gaynor,

13 in his official capacity, if any, as Acting Secretary of DHS; Chad F. Wolf, in his official capacity,

14 if any, as Acting Secretary of DHS; the United States Department of Justice (DOJ); William P.

15 Barr, in his official capacity as United States Attorney General; Executive Office for Immigration

16 Review (EOIR); James McHenry, in his official capacity as Director of the EOIR; U.S.

17 Citizenship and Immigration Services (USCIS); Kenneth T. Cuccinelli in his official capacity as

18 an Agent of DHS; United States Immigration and Customs Enforcement (ICE); Tony H. Pham, in

19 his official capacity as Senior Official Performing the Duties of the Director of U.S. ICE; United

20 States Customs and Border Protection (CBP); Mark. A. Morgan, in his official capacity as Senior

21 Official Performing the Duties of the Commissioner of U.S. CBP; and defendants’ officers,

22 agents, employees, attorneys, and any person acting in concert with them, or at their behest, and

23 who has knowledge of this injunction, are preliminarily enjoined from implementing, enforcing, or

24 applying the rule titled Procedures for Asylum and Withholding of Removal; Credible Fear and

25 Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 2020), or any related policies or

26 procedures, including the Policy Memorandum entitled, Guidance Regarding New Regulations

27 Governing Procedures For Asylum and Withholding of Removal and Credible Fear Reviews,

28 issued by the Department of Justice on December 11, 2020. 13

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United States District Court Northern District of California

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(2) This injunction will remain in place pending further order of the Court.

2

(3) Plaintiffs are excused from posting a bond under Federal Rule of Civil Procedure

3 65(c).

4

As discussed at the hearing, the parties are directed to file a stipulation proposing a date for

5 further argument on the merits. The parties will also promptly advise the Court of any policy

6 change or other development that is likely to materially impact these proceedings.

7

IT IS SO ORDERED.

8 Dated: January 8, 2021

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JAMES DONATO United States District Judge

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