APPEAL,CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01853−EGS

GRACE et al v. SESSIONS et al Assigned to: Judge Emmet G. Sullivan Cases: 1:19−cv−03549−RC
1:18−cv−01966−EGS Case in other court: USCA, 19−05013 Cause: 08:1252(a)(2) Injunction for Deportation Plaintiff
GRACE

Date Filed: 08/07/2018 Date Terminated: 01/30/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Anne Kathleen Scholten Dutton HASTINGS COLLEGE OF THE LAW Center for Gender & Refugee Studies 200 McAllister Street San Francisco, CA 94102 (415)581−8825 Fax: (415)581−8824 Email: duttonanne@uchastings.edu TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Celso Perez ACLU IMMIGRANTS' RIGHTS PROJECT 125 Broad Street 18th Floor New York, NY 10004 646−905−8953 Email: cperez@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Musalo CENTER FOR GENDER AND REFUGEE STUDIES 200 McAllister Street San Francisco, CA 94102 (415) 565−4720 Fax: (415) 581−8824 Email: musalok@uchastings.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora M. Lapidus ACLU WOMEN'S RIGHTS PROJECT 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2668 Fax: (212)549−2580 Email: llapidus@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Scott Michelman

AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457−0800 Fax: (202) 457−0805 Email: smichelman@acludc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 5225 Katy Freeway 5225 Katy Freeway Suite 350 Houston, TX 77007 713−942−8146 Email: asegura@aclutx.org PRO HAC VICE
Ann Kathleen Scholten Dutton HASTINGS COLLEGE OF THE LAW Center For Gender & Refugee Studies 200 McAllister Street San Francisco, CA 94102 (415) 581−8825 Email: duttonanne@uchastings.edu TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 601−4266 Fax: (202) 457−0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED
Cody H. Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0785 Fax: (415) 395−0950 Email: cwofsy@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 284−7325 Fax: (212)549−2650
Eunice Lee

UC Hastings Center for Gender and Refugee Studies 200 McAllister Street San Francisco, CA 94102 (415) 581−8836 Fax: (415) 581−8824 TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0774 Fax: (415) 395−0950 Email: jnewell@aclu.org TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2618 Fax: (212) 549−2654 Email: jrabinovitz@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland AMERICAN CIVIL LIBERTIES UNION Foundation Immigrants' Rights Project 39 Drumm St San Francisco, CA 94111 (415) 343−0782 Fax: (415) 395−0950 Email: keiland@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2620 Fax: (212) 549−2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park AMERICAN CIVIL LIBERTIES UNION 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7871 Fax: (212) 549−2650

Plaintiff MINA

Email: spark@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 5225 Katy Freeway 5225 Katy Freeway Suite 350 Houston, TX 77007 713−942−8146 Email: tbuser−clancy@aclutx.org PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth

Plaintiff GINA

(See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address)

Plaintiff MONA

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE

Plaintiff MARIA

ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
CARMEN and her minor daughter, J.A.C.F. (by and through her mother)

Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman

Plaintiff
J.A.C.F. minor daughter

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address)

Plaintiff GIO

PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
NORA and her minor son, A.B.A. (by and through his mother)

Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
A.B.A. minor son

Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address)

TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland

Plaintiff
CINDY ARDON MEJIA and her minor daughter, A.P.A. (by and through her mother)

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE

Plaintiff
A.P.A. minor daughter

ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by Anne Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Celso Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Musalo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora M. Lapidus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

Scott Michelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE
Ann Kathleen Scholten Dutton (See above for address) TERMINATED: 04/17/2020
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Jane Roth (See above for address)
Eunice Lee (See above for address) TERMINATED: 04/17/2020 PRO HAC VICE
Jennifer Chang Newell (See above for address) TERMINATED: 12/27/2019 PRO HAC VICE
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katrina Eiland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sandra Shin−Young Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Paul Buser−Clancy (See above for address) PRO HAC VICE
represented by

JEFFERSON B. SESSIONS, III Attorney General of the United States, in his official capacity
Defendant KIRSTJEN M. NIELSEN Secretary of the Department of Homeland Security, in her official capacity
Defendant

Erez Reuveni U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 307−4293 Fax: (202) 305−7000 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer US DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION P.O. Box 878 Ben Franklin Station Washington, DC 20044 202−598−8770 Email: christina.p.greer@usdoj.gov ATTORNEY TO BE NOTICED
Joseph Anton Darrow U.S. DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation P.O. Box 868 Washington, DC 20044 (202) 598−2445 Email: joseph.a.darrow@usdoj.gov ATTORNEY TO BE NOTICED
Joshua Samuel Press U.S. DEPARTMENT OF JUSTICE Immigration Litigation Ben Franklin Station P.O. Box 868 Washington, DC 20044 (202) 305−0106 Fax: (202) 305−7000 Email: joshua.press@usdoj.gov ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED

L. FRANCIS CISSNA Director of United States Citizenship and Immigration Services, in his official capacity
Defendant JAMES MCHENRY Director of the Executive Office for Immigration Review, in his official capacity
Amicus IMMIGRATION LAW PROFESSORS
Amicus TAHIRIH JUSTICE CENTER

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas K. Ragland CLARK HILL PLC 1001 Pennsylvania Avenue, NW Suite 1300 South Washington, DC 20004−2505 (202) 552−2360 Fax: (202) 552−2384 Email: tragland@clarkhill.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjum Gupta RUTGERS LAW SCHOOL Immigration Rights Clinic 123 Washington Street Newark, NJ 07102 (973)353−2518 PRO HAC VICE
represented by Paul Michael Thompson MCDERMOTT WILL & EMERY LLP 500 N Capitol St NW 500 N. Capitol Street, N.W. Washington, DC 20001 202−756−8032 Fax: 202−756−8087

Amicus UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Amicus ADMINISTRATIVE LAW PROFESSORS
Amicus DISTRICT OF COLUMBIA
Amicus CALIFORNIA Amicus CONNECTICUT Amicus DELAWARE Amicus

Email: pthompson@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ana C. Reyes WILLIAMS & CONNOLLY LLP 725 12th St. NW Washington, DC 20005 (202) 434−5276 Fax: (202) 434−5029 Email: areyes@wc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Derek Tam Ho KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, NW Suite 400 Washington, DC 20036 (202) 326−7900 Fax: (202) 326−7999 Email: dho@kellogghansen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6650 Fax: (202) 741−0647 Email: stephanie.litos@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

HAWAII
Amicus ILLINOIS
Amicus IOWA
Amicus MAINE
Amicus MARYLAND
Amicus MASSACHUSETTS
Amicus MINNESOTA
Amicus NEW JERSEY
Amicus NEW MEXICO
Amicus NEW YORK

represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus OREGON
Amicus RHODE ISLAND
Amicus VERMONT
Amicus VIRGINIA
Amicus WASHINGTON

represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephanie Litos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/07/2018 08/07/2018
08/07/2018
08/07/2018
08/08/2018

# Docket Text
1 MOTION for Leave to Proceed Under Pseudonyms and to File Supporting Exhibits Under Seal by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (jf) (Entered: 08/08/2018)
2 ORDER granting 1 MOTION for Leave to Proceed Under Pseudonyms and to File Supporting Exhibits Under Seal; further ordered, that the list of the full names of the plaintiffs and their children shall remain under seal until further order of the Court.. Signed by Chief Judge Beryl A. Howell on August 07, 2018. (See Order for Full Details) (jf) (Entered: 08/08/2018)
3 COMPLAINT against LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III ( Filing fee $ 400, receipt number 4616094025) filed by CINDY ARDON MEJIA, J.A.C.F., MINA, GRACE, CARMEN, GINA, NORA, A.P.A., GIO, MONA, A.B.A., MARIA. (Attachments: # 1 Civil Cover Sheet)(jf) Modified on 8/10/2018 (zrdj). (Entered: 08/08/2018)
4 SEALED Declarations filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. re 3 Complaint, filed by MARIA, A.B.A., J.A.C.F., CINDY ARDON MEJIA, A.P.A., GINA, MINA, MONA, CARMEN, GIO, GRACE, NORA. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 08/08/2018)
MINUTE ORDER. In view of the forthcoming motion for temporary restraining order, the Court, sua sponte, schedules a status conference for August 8, 2018 at 2:00 pm in Courtroom 24A. Plaintiffs are HEREBY DIRECTED to contact forthwith the United States Attorney's Office for the District or Columbia and/or the Department of Justice as appropriate to identify government counsel. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)

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5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Cody H. Wofsy, :Firm− American Civil Liberties Union Foundation Immigrants' Right Project, :Address− 39 Drumm St, San Francisco, CA 94111. Phone No. − 415−343−0770. Fax No. − 415−395−0950 Filing fee $ 100, receipt number 0090−5628203. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Certificate of Service Certificate of Service)(Michelman, Scott) (Entered: 08/08/2018)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jennifer Chang Newell, :Firm− American Civil Liberties Union Foundation Immigrants' Rights Project, :Address− 39 Drumm St, San Francisco, CA 94111. Phone No. − 415−343−0770. Fax No. − 415−395−0950 Filing fee $ 100, receipt number 0090−5628241. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Certificate of Service Certificate of Service)(Michelman, Scott) (Entered: 08/08/2018)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Judy Rabinovitz, :Firm− American Civil Liberties Union Foundation Immigrants' Rights Project, :Address− 125 Broad St, 18th Floor, New York, NY 10004. Phone No. − 212−549−2618. Fax No. − 212−549−2654 Filing fee $ 100, receipt number 0090−5628273. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Certificate of Service Certificate of Service)(Michelman, Scott) (Entered: 08/08/2018)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Katrina Eiland, :Firm− American Civil Liberties Union Foundation Immigrants' Rights Project, :Address− 39 Drumm St, San Francisco, CA 94111. Phone No. − 415−343−0770. Fax No. − 415−395−0950 Filing fee $ 100, receipt number 0090−5628296. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Certificate of Service Certificate of Service)(Michelman, Scott) (Entered: 08/08/2018)
9 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 08/08/2018)
10 MOTION for Preliminary Injunction by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Memorandum in Support, # 2 Declaration of Deborah Anker, # 3 Declaration of Sarah Mujahid, # 4 Exhibit Exhibit Index, # 5 Exhibit A − F, # 6 Exhibit G − L, # 7 Exhibit M − T, # 8 Text of Proposed Order)(Michelman, Scott) (Entered: 08/08/2018)
11 MOTION for Temporary Restraining Order for Emergency Stay of Removal by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 LR 65.1 Cert of Counsel, # 2 Text of Proposed Order)(Michelman, Scott) (Entered: 08/08/2018)
12 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Grace, # 2 Declaration of Carmen, # 3 Declaration of Mina, # 4 Declaration of Gina, # 5 Declaration of Mona, # 6 Declaration of Gio, # 7 Declaration of Maria, # 8 Declaration of Nora, # 9 Declaration of Cindy, # 10 Text of Proposed Order)(Michelman, Scott) (Entered: 08/08/2018)
MINUTE ORDER granting 5 motion for leave to appear pro hac vice. Cody H. Wofsy is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)
MINUTE ORDER granting 6 motion for leave to appear pro hac vice. Jennifer Chang Newell is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)

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MINUTE ORDER granting 7 motion for leave to appear pro hac vice. Judy Rabinovitz is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)
MINUTE ORDER granting 8 motion for leave to appear pro hac vice. Katrina Eiland is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 8/8/2018. Government Submissions to be filed no later than 8:00 PM on 8/8/2018. Plaintiff to Reply by 1:00 AM. A Motion Hearing is set for 8/9/2018 at 09:30 AM in Courtroom 24A before Judge Emmet G. Sullivan. (Court Reporter Scott Wallace) (znbn) (Entered: 08/08/2018)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Sandra Shin−Young Park, :Firm− American Civil Liberties Union Women's Rights Project, :Address− 125 Broad St, 18th Floor, New York, NY 10004. Phone No. − 212−519−7871. Fax No. − 212−549−2650 Filing fee $ 100, receipt number 0090−5629175. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Certificate of Service Certificate of Service)(Michelman, Scott) (Entered: 08/08/2018)
MINUTE ORDER. Plaintiffs have not yet filed the memorandum accompanying 11 Motion for Temporary Restraining Order for Emergency Stay of Removal referenced in the Motion. ECF No. 11 at 1. Plaintiffs are HEREBY ORDERED to file the memorandum in support of their motion by no later than 5:50 pm Eastern Daylight Time. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)
14 NOTICE of Filing Memorandum by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA re Order, 11 MOTION for Temporary Restraining Order for Emergency Stay of Removal (Attachments: # 1 Memorandum in Support of Stay Motion (and Preliminary Injunction))(Michelman, Scott) (Entered: 08/08/2018)
15 NOTICE of Appearance by Erez Reuveni on behalf of All Defendants (Reuveni, Erez) (Entered: 08/08/2018)
16 Memorandum in opposition to re 10 MOTION for Preliminary Injunction, 11 MOTION for Temporary Restraining Order for Emergency Stay of Removal filed by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (Reuveni, Erez) Modified to add link on 8/13/2018 (znmw). (Entered: 08/08/2018)
MINUTE ORDER granting 13 motion for leave to appear pro hac vice. Sandra Shin−Young Park is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/8/2018. (lcegs2) (Entered: 08/08/2018)
17 NOTICE of Appearance by Cody H. Wofsy on behalf of All Plaintiffs (Wofsy, Cody) (Entered: 08/08/2018)
18 NOTICE of Appearance by Jennifer Chang Newell on behalf of All Plaintiffs (Newell, Jennifer) (Entered: 08/08/2018)
19 REPLY to opposition to motion re 10 MOTION for Preliminary Injunction, 11 MOTION for Temporary Restraining Order for Emergency Stay of Removal filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Michelman, Scott) Modified to add link on 8/13/2018 (znmw). (Entered: 08/09/2018)
MINUTE ORDER. Due to the Court's calendar, the motions hearing previously scheduled for 8/9/2018 at 9:30am will now take place on 8/9/2018 at 10:00am in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on 8/9/2018. (lcegs2) (Entered: 08/09/2018)
Set/Reset Hearings: Motion Hearing set for 8/9/2018 at 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (znbn) (Entered: 08/09/2018)

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20 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 08/09/18. (Attachment: # 1 Exhibit 1) (mac) (Entered: 08/09/2018)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 8/9/2018 re 10 Motion for Preliminary Injunction and 11 Motion for Temporary Restraining Order. The Court Will Issue Orders Forthcoming. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 08/09/2018)
21 ORDER granting temporary stay of removal. Signed by Judge Emmet G. Sullivan on 8/9/2018. (lcegs2) (Entered: 08/09/2018)
22 ORDER directing defendants to return plaintiffs to the United States FORTHWITH. Signed by Judge Emmet G. Sullivan on 8/9/2018.(lcegs2) (Entered: 08/09/2018)
Set/Reset Deadlines: Defendant Status Report due on 8/10/2018 by 5:00PM. (mac) (Entered: 08/09/2018)
23 TRANSCRIPT OF PROCEEDINGS before Judge Emmet G. Sullivan held on 8−9−18; Page Numbers: 1−48. Date of Issuance:8−9−18. Court Reporter/Transcriber Scott Wallace, Telephone number 202−354−3196, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/31/2018. Redacted Transcript Deadline set for 9/10/2018. Release of Transcript Restriction set for 11/8/2018.(Wallace, Scott) (Entered: 08/10/2018)
24 NOTICE of Appearance by Joshua Samuel Press on behalf of All Defendants (Press, Joshua) (Entered: 08/10/2018)
25 STATUS REPORT concerning compliance with the Court's order (ECF No. 22) by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (Reuveni, Erez) (Entered: 08/10/2018)
26 NOTICE of Appearance by Joseph Anton Darrow on behalf of All Defendants (Darrow, Joseph) (Entered: 08/10/2018)
MINUTE ORDER directing defendants to file a comprehensive report to the Court explaining the circumstances surrounding the removal of plaintiffs on the morning of August 9, 2018, notwithstanding the representations from the attorney for the defendants that the government would not remove the plaintiffs prior to 11:59 pm that day. The report shall be supported by declarations of appropriate officials. Defendants shall file the report by no later than 5:00 pm August 13, 2018. Signed by Judge Emmet G. Sullivan on 8/10/2018. (lcegs2) (Entered: 08/10/2018)
27 Joint STATUS REPORT by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (Press, Joshua) (Entered: 08/10/2018)
Set/Reset Deadlines: Defendants Report due on 8/13/2018 by 5:00PM. (mac) (Entered: 08/13/2018)
28 Unopposed MOTION to Lift Stay of Removal as to Her Only by MONA (Attachments: # 1 Declaration of Katrina Eiland)(Wofsy, Cody) (Entered: 08/13/2018)
MINUTE ORDER granting 28 Plaintiff Mona's unopposed motion to lift 21 Order granting temporary stay of removal as to her ONLY. In view of the government's detention policy regarding individuals in expedited removal, the stay of removal is

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HEREBY VACATED as to Plaintiff Mona ONLY. Plaintiff's counsel is reminded of the obligation, pursuant to Local Civil Rule 7(c), to provide a proposed order with each motion and opposition. Signed by Judge Emmet G. Sullivan on 8/13/2018. (lcegs2) (Entered: 08/13/2018)
MINUTE ORDER. In view of the 27 parties' joint status report on scheduling, defendants shall serve the administrative record and index on the parties by no later than August 17, 2018. The plaintiffs shall complete their review of the administrative record and provide correspondence to the defendants raising any concerns by no later than August 22, 2018. The parties shall attempt to resolve record disputes amongst themselves by no later than August 24, 2018. If the parties resolve the record disputes amongst themselves, the parties are ordered to submit a joint schedule proposal for further proceedings by no later than August 27, 2018. If the parties are unable to resolve any record disputes, the parties shall adhere to the following schedule for resolution of any disputes by the Court: Any motion to complete/compel/supplement shall be filed by no later than August 29, 2018; any response/opposition shall be filed by no later than September 4, 2018; and any reply shall be filed by no later than September 6, 2018. One week after either an order resolving all administrative record disputes or the parties resolution of any administrative record concerns themselves, whichever is later, defendants shall file the certified list of the contents of the administrative record with the Court. The defendants shall provide a complete copy of the administrative record, with certified list, to the Court on flash drive(s) or DVD(s). The Court will schedule further proceedings in this matter following the production of the administrative record and resolution of any disputes regarding the administrative record. Signed by Judge Emmet G. Sullivan on 8/13/2018. (lcegs2) (Entered: 08/13/2018)
Set/Reset Deadlines: Joint Schedule Proposal For Further Proceedings due by 8/27/2018 Motion To Complete/Compel/Supplement due by 8/29/2018. Response/Opposition due by 9/4/2018. Reply due by 9/6/2018. (mac) (Entered: 08/13/2018)
29 STATUS REPORT Responding to the Court's Minute Order (8/13/18) by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (Attachments: # 1 Declaration Cronen Declaration, # 2 Declaration Bible Declaration, # 3 Exhibit Email to counsel)(Reuveni, Erez) (Entered: 08/13/2018)
30 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Eunice Lee, :Firm− Center for Gender and Refugee Studies, University of California −− Hastings College of the Law, :Address− 200 McAllister Street, San Francisco CA 94102. Phone No. − 415−581−8836. Fax No. − 415−581−8824 Filing fee $ 100, receipt number 0090−5636296. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA (Michelman, Scott) (Entered: 08/13/2018)
31 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Anne Dutton, :Firm− Center for Gender and Refugee Studies, University of California −− Hastings College of the Law, :Address− 200 McAllister Street, San Francisco CA 94102. Phone No. − 415−581−8825. Fax No. − 415−581−8824 Filing fee $ 100, receipt number 0090−5636315. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Michelman, Scott) (Entered: 08/13/2018)
32 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Karen Musalo, :Firm− Center for Gender and Refugee Studies, University of California −− Hastings College of the Law, :Address− 200 McAllister Street, San Francisco CA 94102. Phone No. − 415−581−8836. Fax No. − 415−581−8824 Filing fee $ 100, receipt number 0090−5636337. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Michelman, Scott) (Entered: 08/13/2018)
33 RESPONSE re 29 Status Report, filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Declaration of Carmen)(Wofsy, Cody) (Entered: 08/13/2018)

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MINUTE ORDER granting 30 motion for leave to appear pro hac vice. Eunice Lee is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/13/2018. (lcegs2) (Entered: 08/13/2018)
MINUTE ORDER granting 31 motion for leave to appear pro hac vice. Anne Dutton is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/13/2018. (lcegs2) (Entered: 08/13/2018)
MINUTE ORDER granting 32 motion for leave to appear pro hac vice. Karen Musalo is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/13/2018. (lcegs2) (Entered: 08/13/2018)
34 NOTICE of Appearance by Katrina Eiland on behalf of All Plaintiffs (Eiland, Katrina) (Entered: 08/14/2018)
35 NOTICE of Appearance by Judy Rabinovitz on behalf of All Plaintiffs (Rabinovitz, Judy) (Entered: 08/16/2018)
36 NOTICE of Appearance by Sandra Shin−Young Park on behalf of All Plaintiffs (Park, Sandra) (Entered: 08/16/2018)
37 NOTICE of Appearance by Christina Greer on behalf of All Defendants (Greer, Christina) (Entered: 08/16/2018)
38 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Omar C. Jadwat, :Firm− American Civil Liberties Union Foundation Immigrants' Rights Project, :Address− 125 Broad St, 18th Floor, New York, NY 10004. Phone No. − 212−549−2660. Fax No. − 212−549−2654 Filing fee $ 100, receipt number 0090−5646458. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Michelman, Scott) (Entered: 08/17/2018)
MINUTE ORDER granting 38 motion for leave to appear pro hac vice. Omar C. Jadwat is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 8/17/2018. (lcegs2) (Entered: 08/17/2018)
39 NOTICE of service of the administrative record by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III (Reuveni, Erez) (Entered: 08/17/2018)
40 Joint STATUS REPORT on Scheduling by All Parties by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Newell, Jennifer) (Entered: 08/27/2018)
MINUTE ORDER. Upon consideration of 40 the parties' joint status report, the following schedule shall govern the proceedings in this case: Defendants' Motion for Summary Judgment shall be filed no later than September 12, 2018, and shall be no longer than 45 pages in length. Any motions seeking leave to file an amicus curiae brief in support of the Defendants, with the brief attached as an exhibit, shall be filed by no later than September 19, 2018. The Plaintiffs' Opposition and Cross−Motion for Summary Judgment shall be filed by no later than September 26, 2018, and shall be no longer than 65 pages in length. Any motions seeking leave to file an amicus curiae brief in support of Plaintiffs, with the brief attached as an exhibit, shall be filed by no later than October 3, 2018. Defendants' Opposition and Reply shall be filed no later than October 3, 2018, and shall be no longer than 45 pages in length. Plaintiffs' Reply shall be filed by no later than October 10, 2018, and shall be no longer than 25 pages in length. It is FURTHER ORDERED that by no later than October 17, 2018, the parties, including those seeking leave to file an amicus curiae brief, shall submit to the Court two hard copies and one USB drive containing all submissions to the Court governed by this scheduling order, including points and authorities. All paper copy submissions to the Court shall include the headers added by the Case Management/Electronic Case Files (CM/ECF) System shall be single−sided, double−spaced, use 12−point Times New Roman font, and use one−inch page margins. Each set of hard copies shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the pleading therein. It is FURTHER ORDERED that by no later than October 17, 2018, the parties shall jointly submit one copy of each principal case or authority cited by any party. The points and authorities shall be in three−ring binders, with appropriate tables of

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contents and tabs, and the binders shall be clearly labeled to identify the contents therein. Signed by Judge Emmet G. Sullivan on 8/29/2018. (lcegs2) (Entered: 08/29/2018)
41 NOTICE of Filing of Administrative Record and Certified List of Contents by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III (Attachments: # 1 Exhibit A − Certified List of Contents of Administrative Record, # 2 Exhibit B − List of Contents of EOIR Record of Proceedings)(Darrow, Joseph) (Entered: 08/29/2018)
42 Joint MOTION for Briefing Schedule seeking revision of current briefing schedule by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III (Attachments: # 1 Text of Proposed Order)(Reuveni, Erez) (Entered: 08/29/2018)
MINUTE ORDER granting 42 the parties' joint motion to revise the briefing schedule, and vacating the prior scheduling order. The following revised schedule shall govern the proceedings in this case: Defendants' Motion for Summary Judgment shall be filed no later than September 12, 2018, and shall be no longer than 45 pages in length. Any motions seeking leave to file an amicus curiae brief in support of the Defendants, with the brief attached as an exhibit, shall be filed by no later than September 21, 2018. The Plaintiffs' Opposition and Cross−Motion for Summary Judgment shall be filed by no later than September 26, 2018, and shall be no longer than 65 pages in length. Any motions seeking leave to file an amicus curiae brief in support of Plaintiffs, with the brief attached as an exhibit, shall be filed by no later than September 28, 2018. Defendants' Opposition and Reply shall be filed no later than October 3, 2018, and shall be no longer than 45 pages in length. Plaintiffs' Reply shall be filed by no later than October 10, 2018, and shall be no longer than 25 pages in length. It is FURTHER ORDERED that by no later than October 17, 2018, the parties, including those seeking leave to file an amicus curiae brief, shall submit to the Court two hard copies and one USB drive containing all submissions to the Court governed by this scheduling order, including points and authorities. All paper copy submissions to the Court shall include the headers added by the Case Management/Electronic Case Files (CM/ECF) System shall be single−sided, double−spaced, use 12−point Times New Roman font, and use one−inch page margins. Each set of hard copies shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the pleading therein. It is FURTHER ORDERED that by no later than October 17, 2018, the parties shall jointly submit one copy of each principal case or authority cited by any party. The points and authorities shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the contents therein. It is FURTHER ORDERED that any prospective amici shall file their briefs either upon motion for leave of the Court or upon consent of all parties. Signed by Judge Emmet G. Sullivan on 8/29/2018. (lcegs2) (Entered: 08/29/2018)
Set/Reset Deadlines/Hearings: Defendants' Summary Judgment motion due by 9/12/2018. Response to Motion for Summary Judgment due by 9/26/2018. Reply to Motion for Summary Judgment due by 10/3/2018. Motions for leave to file amicus curiae brief in support defendants due by 9/19/2018. Plaintiffs' Cross Summary Judgment motion due by 9/26/2018. Response to Cross Motion due by 10/3/2018. Reply to Cross Motion due by 10/10/2018. Motions for leave to file amicus curiae brief in support of plaintiffs due by 10/3/2018. Parties' two hard copies and one USB drive of their submissions due by 10/17/2018. Parties joint submission of each principal case or authority cited due by 10/17/2018. (zcdw) (Entered: 08/31/2018)
43 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Eiland, Katrina) (Entered: 08/30/2018)
44 ERRATA Correcting Certificates of Service for by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA 12 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (This document is SEALED and only

09/05/2018 09/05/2018
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available to authorized persons.) filed by MARIA, A.B.A., J.A.C.F., CINDY ARDON MEJIA, A.P.A., GINA, MINA, MONA, CARMEN, GIO, GRACE, NORA, 10 MOTION for Preliminary Injunction filed by MARIA, A.B.A., J.A.C.F., CINDY ARDON MEJIA, A.P.A., GINA, MONA, MINA, CARMEN, GRACE, GIO, NORA. (Eiland, Katrina) (Entered: 08/30/2018)
46 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JEFFERSON BEAUREGARD SESSIONS, III served on 8/27/2018 (Attachments: # 1 Exhibit Delivery Confirmation)(Wofsy, Cody) (Entered: 09/05/2018)
47 ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the District of Columbia Attorney General. Date of Service Upon District of Columbia Attorney General 8/27/2018. Answer due for ALL D.C. DEFENDANTS by 9/17/2018. (Attachments: # 1 Exhibit Delivery Confirmation)(Wofsy, Cody) Modified on 9/7/2018 (jf). (Entered: 09/05/2018)
48 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. LEE FRANCIS CISSNA served on 8/27/2018; JAMES MCHENRY served on 8/27/2018; KIRSTJEN M. NIELSEN served on 8/27/2018 (Attachments: # 1 Exhibit Delivery Confirmation)(Wofsy, Cody) (Entered: 09/05/2018)
51 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/27/2018. Answer due for ALL FEDERAL DEFENDANTS by 10/26/2018. (jf) (Entered: 09/07/2018)
49 NOTICE of Appearance by Omar C. Jadwat on behalf of All Plaintiffs (Jadwat, Omar) (Entered: 09/06/2018)
50 RESPONSE re 43 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (This document is SEALED and only available to authorized persons.) Response to Sealed Court Order filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Revised Consent Motion, # 2 Text of Proposed Order (Revised))(Eiland, Katrina) (Entered: 09/06/2018)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 47 Summons Returned Executed as to DC Attorney General, was entered in error and refiled by counsel under the correct docket event. (jf) (Entered: 09/07/2018)
52 NOTICE of Appearance by Ann Kathleen Scholten Dutton on behalf of All Plaintiffs (Scholten Dutton, Ann) (Entered: 09/07/2018)
53 ORDER granting Plaintiffs' consent motion for an Order under Federal Rule of Civil Procedure 5.2(c) to lift restrictions on docket, and to seal documents containing confidential information. Signed by Judge Emmet G. Sullivan on 9/10/2018. (lcegs2) (Entered: 09/10/2018)
54 COMPLAINT REDACTED against LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III (Fee Status:Filing Fee Waived) filed by CINDY ARDON MEJIA, J.A.C.F., MINA, GRACE, CARMEN, GINA, NORA, A.P.A., GIO, MONA, A.B.A., MARIA.(Michelman, Scott) (Entered: 09/11/2018)
55 MOTION for Preliminary Injunction REDACTED by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Memorandum in Support REDACTED, # 2 Text of Proposed Order REDACTED)(Michelman, Scott) (Entered: 09/11/2018)
56 MOTION for Emergency Stay of Removal REDACTED by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Memorandum in Support REDACTED)(Michelman, Scott) Modified on 9/11/2018 to correct docket event/text (jf). (Entered: 09/11/2018)
57 MOTION for Summary Judgment by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III

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(Attachments: # 1 Memorandum in Support memorandum in support of motion for summary judgment, # 2 Text of Proposed Order)(Reuveni, Erez) (Entered: 09/12/2018)
58 NOTICE of Appearance by Eunice Lee on behalf of All Plaintiffs (Lee, Eunice) (Entered: 09/13/2018)
59 NOTICE of Appearance by Karen Musalo on behalf of All Plaintiffs (Musalo, Karen) (Entered: 09/13/2018)
60 Unopposed MOTION to Lift Stay as to Him Only by GIO (Attachments: # 1 Declaration of Celso J. Perez, # 2 Text of Proposed Order)(Eiland, Katrina) (Entered: 09/14/2018)
MINUTE ORDER granting 60 Plaintiff Gio's unopposed motion to lift 21 Order granting temporary stay of removal as to him ONLY. In view of the government's detention policy regarding individuals in expedited removal, the stay of removal is HEREBY VACATED as to Gio ONLY. Signed by Judge Emmet G. Sullivan on 9/14/2018. (lcegs2) (Entered: 09/14/2018)
61 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Emma Roth, :Firm− ACLU Womne's Rights Project, :Address− 125 Broad St., New York, NY 10004. Phone No. − 212−284−7325. Fax No. − 212−549−2650 Filing fee $ 100, receipt number 0090−5698964. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Declaration, # 2 Exhibit (Certificate of Good Standing), # 3 Text of Proposed Order)(Michelman, Scott) (Entered: 09/20/2018)
MINUTE ORDER granting 61 Motion for Leave to Appear Pro Hac Vice. Emma Roth is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 9/21/2018. (lcegs2) (Entered: 09/21/2018)
62 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Andre Ivan Segura, :Firm− American Civil Liberties Union Foundation of Texas, :Address− 5225 Katy Freeway, Suite 350, Houston TX 77007. Phone No. − 713−942−8146. Fax No. − 713−942−8966 Filing fee $ 100, receipt number 0090−5702895. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Michelman, Scott) (Entered: 09/24/2018)
63 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Thomas Buser−Clancy, :Firm− American Civil Liberties Union Foundation of Texas, :Address− 5225 Katy Freeway, Suite 350, Houston TX 77007. Phone No. − 713−942−8146. Fax No. − 713−942−8966 Filing fee $ 100, receipt number 0090−5702935. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Michelman, Scott) (Entered: 09/24/2018)
MINUTE ORDER granting 62 motion for leave to appear pro hac vice. Andre Ivan Segura is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 9/24/2018. (lcegs2) (Entered: 09/24/2018)
MINUTE ORDER granting 63 motion for leave to appear pro hac vice. Thomas Buser−Clancy is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 9/24/2018. (lcegs2) (Entered: 09/24/2018)
64 Cross MOTION for Summary Judgment by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Sarah Mujahid, # 4 Exhibit 1−17, # 5 Declaration Declarations of Jamil, Nasr, Love, Goodwin and Powers, # 6 Declaration Honduras Declaration, # 7 Declaration Guatemala Declaration, # 8 Declaration El Salvador Declaration, # 9 Text of Proposed Order)(Newell, Jennifer) (Entered: 09/26/2018)
65 Memorandum in opposition to re 57 MOTION for Summary Judgment filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Memorandum in

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Support, # 2 Statement of Facts)(Newell, Jennifer) (Entered: 09/26/2018)
66 MOTION To Consider Evidence Outside of the Administrative Record by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Newell, Jennifer) (Entered: 09/26/2018)
67 MOTION to Hold in Abeyance hold merits briefing in abeyance, or, alternatively, for an extension of time to file a brief re 66 MOTION To Consider Evidence Outside of the Administrative Record , 64 Cross MOTION for Summary Judgment by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III (Attachments: # 1 Text of Proposed Order)(Reuveni, Erez) Modified event title on 10/2/2018 (znmw). Added MOTION for Extension of Time to on 10/2/2018 (znmw). (Entered: 09/27/2018)
MINUTE ORDER. The plaintiffs are directed to respond to 67 government's motion to hold merits briefing in abeyance or for an extension of time, by no later than 12:00 pm on September 28, 2018. Signed by Judge Emmet G. Sullivan on 9/27/2018. (lcegs2) (Entered: 09/27/2018)
68 Memorandum in opposition to re 67 MOTION hold merits briefing in abeyance, or, alternatively, for an extension of time to file a brief re 66 MOTION To Consider Evidence Outside of the Administrative Record , 64 Cross MOTION for Summary Judgment filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer) (Entered: 09/28/2018)
69 NOTICE of Appearance by Thomas K. Ragland on behalf of IMMIGRATION LAW PROFESSORS (Ragland, Thomas) (Entered: 09/28/2018)
70 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− ANJUM GUPTA, :Firm− Rutgers Law School Immigrant Rights Clinic, :Address− 123 Washington Street, Newark, NJ 07102. Phone No. − 973−353−2518. Filing fee $ 100, receipt number 0090−5710719. Fee Status: Fee Paid. by IMMIGRATION LAW PROFESSORS (Attachments: # 1 Declaration of Anjum Gupta in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Ragland, Thomas) (Entered: 09/28/2018)
71 ENTERED IN ERROR.....MOTION for Leave to File Brief of the Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs' Opposition and Motion for Summary Judgment by Tahirih Justice Center (Attachments: # 1 Exhibit A − Brief of the Tahirih Justice Center et al. as Amici Curiae, # 2 Text of Proposed Order)(Thompson, Paul) Modified on 9/28/2018 (jf). (Entered: 09/28/2018)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 71 MOTION for Leave to File Brief of the Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs' Opposition and Motion for Summary Judgment was entered in error at the request of counsel and will be refiled.(jf) (Entered: 09/28/2018)
72 MOTION for Leave to File Brief of the Tahirih Justice Center et al. as Amici Curiae in Support of Plaintiffs Opposition and Motion for Summary Judgment by TAHIRIH JUSTICE CENTER (Attachments: # 1 Exhibit A − Brief of the Tahirih Justice Center, et al. as Amici Curiae, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 09/28/2018)
73 MOTION for Leave to File Brief of UNHCR as Amicus Curiae in Support of Plaintiffs' Cross−Motion for Summary Judgment by United Nations High Commissioner for Refugees (Attachments: # 1 Exhibit Brief of UNHCR as Amicus Curiae, # 2 Text of Proposed Order)(Reyes, Ana) (Entered: 09/28/2018)
74 NOTICE of Appearance by Derek Tam Ho on behalf of ADMINISTRATIVE LAW PROFESSORS (Ho, Derek) (Entered: 09/28/2018)
75 Consent MOTION for Leave to File Amici Curiae Brief by ADMINISTRATIVE LAW PROFESSORS (Attachments: # 1 Exhibit A − Admin Law Professors' Brief as Amici Curiae ISO Plntfs, # 2 Exhibit B − Proposed Order)(Ho, Derek) (Entered: 09/28/2018)

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76 MOTION for Leave to File Brief of Amici Curiae in Support of Plaintiff's Motion for Summary Judgment by DISTRICT OF COLUMBIA, CALIFORNIA, CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND, MASSACHUSETTS, MINNESOTA, NEW JERSEY, NEW MEXICO, NEW YORK, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, WASHINGTON (Attachments: # 1 Exhibit Brief of Amici Curiae In Support of Plaintiff's Motion for Summary Judgment)(Litos, Stephanie) (Entered: 09/28/2018)
MINUTE ORDER granting in part 67 defendants' motion for an extension time to file a brief re 66 plaintiffs' motion to consider evidence outside of the administrative record, 64 plaintiffs' cross motion for summary judgment. Having considered the motion and the opposition thereto, the Court grants in part defendants' motion. Defendants' Opposition and Reply shall be filed by no later than October 10, 2018, and shall be no longer than 60 pages in length. Plaintiffs' Reply shall be filed by no later than October 17, 2018, and shall be no longer than 35 pages in length. It is FURTHER ORDERED that by no later than October 24, 2018, the parties, including those seeking leave to file an amicus curiae brief, shall submit to the Court two hard copies and one USB drive containing all submissions to the Court governed by this scheduling order, including points and authorities. All paper copy submissions to the Court shall include the headers added by the Case Management/Electronic Case Files (CM/ECF) System shall be single−sided, double−spaced, use 12−point Times New Roman font, and use one−inch page margins. Each set of hard copies shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the pleading therein. It is FURTHER ORDERED that by no later than October 24, 2018, the parties shall jointly submit one copy of each principal case or authority cited by any party. The points and authorities shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the contents therein. Signed by Judge Emmet G. Sullivan on 9/28/2018. (lcegs2) (Entered: 09/28/2018)
77 MOTION for Leave to File Brief of Amici Curiae by IMMIGRATION LAW PROFESSORS (Attachments: # 1 Exhibit Brief of Amici Curiae Immigration Law Professors in Support of Plaintiffs' Motion for Summary Judgment, # 2 Text of Proposed Order)(Ragland, Thomas) (Entered: 09/28/2018)
Set/Reset Deadlines: Defendants' Opposition And Reply due by 10/10/2018. Plaintiffs' Reply due by 10/17/2018. Joint Submission due by 10/24/2018. (mac) (Entered: 10/01/2018)
MINUTE ORDER granting 70 motion for leave to appear pro hac vice. Anjum Gupta is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 10/1/2018. (lcegs2) (Entered: 10/01/2018)
78 Consent MOTION for Extension of Time to File Response/Reply by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer). Added MOTION to Amend/Correct on 10/4/2018 (znmw). (Entered: 10/01/2018)
MINUTE ORDER granting 78 plaintiffs' motion for alteration of proposed order. The following schedule shall govern the proceedings in this case: Defendants' Opposition and Reply shall be filed by no later than October 10, 2018, and shall be no longer than 60 pages in length. Plaintiffs' Reply shall be filed by no later than October 24, 2018, and shall be no longer than 35 pages in length. It is FURTHER ORDERED that by no later than October 31, 2018, the parties, including those seeking leave to file an amicus curiae brief, shall submit to the Court two hard copies and one USB drive containing all submissions to the Court governed by this scheduling order, including points and authorities. All paper copy submissions to the Court shall include the headers added by the Case Management/Electronic Case Files (CM/ECF) System shall be single−sided, double−spaced, use 12−point Times New Roman font, and use one−inch page margins. Each set of hard copies shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the pleading therein. It is FURTHER ORDERED that by no later than October 31, 2018, the parties shall jointly submit one copy of each principal case or authority cited by any party. The points and authorities shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the contents therein. Signed by Judge Emmet G. Sullivan on 10/2/2018.(lcegs2) (Entered:

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10/10/2018
10/10/2018
10/10/2018

10/02/2018)
MINUTE ORDER granting 72 motion to file brief of the Tahirih Justice Center et al. as amici curiae. Tahirih Justice Center et al.'s brief is hereby deemed filed. Signed by Judge Emmet G. Sullivan on 10/2/2018. (lcegs2) (Entered: 10/02/2018)
MINUTE ORDER granting 75 consent motion to file amici curiae brief by Administrative Law Professors. The Administrative Law Professors' brief is hereby deemed filed. Signed by Judge Emmet G. Sullivan on 10/2/2018. (lcegs2) (Entered: 10/02/2018)
MINUTE ORDER granting 76 motion to file brief as amici curiae. The District of Columbia and the states of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington's brief is hereby deemed filed. Signed by Judge Emmet G. Sullivan on 10/2/2018. (lcegs2, ) (Entered: 10/02/2018)
MINUTE ORDER granting 77 motion to file brief of amici curiae by Immigration Law Professors. The Immigration Law Professors' brief is hereby deemed filed. Signed by Judge Emmet G. Sullivan on 10/2/2018. (lcegs2) (Entered: 10/02/2018)
80 AMICUS BRIEF by TAHIRIH JUSTICE CENTER. (jf) (Entered: 10/04/2018)
81 AMICUS BRIEF by ADMINISTRATIVE LAW PROFESSORS. (jf) (Entered: 10/04/2018)
82 AMICUS BRIEF by CALIFORNIA, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND, MASSACHUSETTS, MINNESOTA, NEW JERSEY, NEW MEXICO, NEW YORK, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, WASHINGTON. (jf) (Entered: 10/04/2018)
83 AMICUS BRIEF by IMMIGRATION LAW PROFESSORS. (jf) (Entered: 10/04/2018)
Set/Reset Deadlines: Defendants' Opposition and Reply due by 10/10/2018. Plaintiffs' Reply due by 10/24/2018. Joint Submission due by 10/31/2018. (mac) (Entered: 10/03/2018)
MINUTE ORDER granting 73 UNHCR's consent motion to file brief as amicus curiae. UNHCR's brief is hereby deemed filed. Signed by Judge Emmet G. Sullivan on 10/3/2018. (lcegs3) (Entered: 10/03/2018)
84 AMICUS BRIEF by UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES. (jf) (Entered: 10/04/2018)
79 NOTICE of Appearance by Celso Perez on behalf of All Plaintiffs (Perez, Celso) (Entered: 10/04/2018)
85 Memorandum in opposition to re 64 Cross MOTION for Summary Judgment and reply in support of motion for summary judgment (ECF 57) filed by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (Reuveni, Erez) (Entered: 10/10/2018)
86 RESPONSE re 64 Cross MOTION for Summary Judgment Defendants' Response to Plaintiffs' Statement of Undisputed Material Facts and Counter−statement filed by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (Reuveni, Erez) (Entered: 10/10/2018)
87 Memorandum in opposition to re 66 MOTION To Consider Evidence Outside of the Administrative Record filed by JEFFERSON BEAUREGARD SESSIONS, III, LEE FRANCIS CISSNA, KIRSTJEN M. NIELSON, JAMES MCHENRY. (Press, Joshua) Modified filers on 10/19/2018 (znmw). (Entered: 10/10/2018)
88 Cross MOTION to Strike 10 MOTION for Preliminary Injunction , 66 MOTION To Consider Evidence Outside of the Administrative Record by All Defendants (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Press, Joshua) Modified filer on 10/12/2018 (znmw). (Entered: 10/10/2018)

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89 ENTERED IN ERROR.....Memorandum in opposition to re 66 MOTION To Consider Evidence Outside of the Administrative Record filed by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON BEAUREGARD SESSIONS, III. (See Docket Entry 88 to view document). (znmw) Modified to enter in error as a duplicate of 87 on 10/19/2018 (znmw). (Entered: 10/12/2018)
91 REPLY to opposition to motion re 57 MOTION for Summary Judgment filed by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (See Docket Entry 85 to view document). (znmw) (Entered: 10/19/2018)
90 Joint MOTION for Clarification of Briefing Schedule Seeking Clarification or Modification of Briefing Schedule on Evidence Motions by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer). Added MOTION to Modify on 10/15/2018 (jf). (Entered: 10/12/2018)
MINUTE ORDER granting joint 90 motion for modification of the briefing schedule. Plaintiffs' reply brief concerning their extra record evidence motion and opposition to Defendants' motion to strike is due by no later than October 24, 2018; and Defendants' reply brief concerning their motion to strike is due by no later than October 31, 2018. Signed by Judge Emmet G. Sullivan on 10/15/2018. (lcegs2) (Entered: 10/15/2018)
Set/Reset Deadlines: Plaintiffs' Reply Brief due by 10/24/2018. Defendants Reply Brief due by 10/31/2018. (mac) (Entered: 10/15/2018)
92 REPLY to opposition to motion re 64 Cross MOTION for Summary Judgment filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Addendum)(Newell, Jennifer) (Entered: 10/24/2018)
93 REPLY re 86 Response to Document, in support of Plaintiffs' Statement of Undisputed Material Facts filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Newell, Jennifer) (Entered: 10/24/2018)
94 REPLY to opposition to motion re 66 MOTION To Consider Evidence Outside of the Administrative Record filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Newell, Jennifer) (Entered: 10/24/2018)
95 Memorandum in opposition to re 88 Cross MOTION to Strike 10 MOTION for Preliminary Injunction , 66 MOTION To Consider Evidence Outside of the Administrative Record filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer) (Entered: 10/24/2018)
96 NOTICE of Appearance by Emma Jane Roth on behalf of All Plaintiffs (Roth, Emma) (Entered: 10/26/2018)
97 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Lenora M. Lapidus, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − (212) 549 2668. Fax No. − (212) 549 2580 Filing fee $ 100, receipt number 0090−5768114. Fee Status: Fee Paid. by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Declaration of Lenora Lapidus, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/31/2018)
98 REPLY to opposition to motion re 88 Cross MOTION to Strike 10 MOTION for Preliminary Injunction , 66 MOTION To Consider Evidence Outside of the Administrative Record filed by LEE FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Press, Joshua) (Entered: 10/31/2018)
MINUTE ORDER granting 97 motion for leave to appear pro hac vice. Lenora M. Lapidus is hereby admitted pro hac vice in this action. Signed by Judge Emmet G. Sullivan on 11/5/2018. (lcegs2) (Entered: 11/05/2018)

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MINUTE ORDER. The Court hereby schedules a hearing on the cross−motions for summary judgment for November 19, 2018, in Courtroom 24A at 10:00 am. Signed by Judge Emmet G. Sullivan on 11/5/2018. (lcegs2) (Entered: 11/05/2018)
Set/Reset Hearings: Motion Hearing set for 11/19/2018 at 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 11/06/2018)
99 NOTICE of Appearance by Lenora M. Lapidus on behalf of All Plaintiffs (Lapidus, Lenora) (Entered: 11/07/2018)
100 JOINT APPENDIX containing Excerpts Cited from the Administrative Record by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Newell, Jennifer) (Entered: 11/07/2018)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motions Hearing Held On The Cross Motions For Summary Judgment. Oral Arguments Heard And Taken Under Advisement. The Court Will Issue A Written Opinion. (Court Reporter JANICE DICKMAN.) (mac) (Entered: 11/19/2018)
101 Civil Statement from Plaintiffs regarding case caption. (Spitzer, Arthur) (Entered: 11/19/2018)
102 TRANSCRIPT OF PROCEEDINGS before Judge Emmet G. Sullivan held on November 19, 2018; Page Numbers: 1−124. Date of Issuance: November 21, 2018. Court Reporter: Janice Dickman, Telephone number: 202−354−3267, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/12/2018. Redacted Transcript Deadline set for 12/22/2018. Release of Transcript Restriction set for 2/19/2019.(Dickman, Janice) (Entered: 11/21/2018)
104 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit)(Greer, Christina) Modified on 12/20/2018 (znmw). (Entered: 12/18/2018)
105 ORDER granting in part and denying in part 57 Defendants' Motion for Summary Judgment; granting in part and denying in part 64 Plaintiffs' Cross−Motion for Summary Judgment; granting in part and denying in part 66 Motion to Consider Evidence Outside Administrative Record ; granting in part and denying in part 88 Motion to Strike. Signed by Judge Emmet G. Sullivan on 12/19/2018. (lcegs2, ) (Entered: 12/19/2018)
106 REDACTED MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 12/19/2018. (lcegs2) (Entered: 12/19/2018)
107 MOTION to Stay re 105 Order on Motion for Summary Judgment,,,, Order on Motion for Miscellaneous Relief,, Order on Motion to Strike, by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III (Attachments: # 1 Text of Proposed Order)(Greer, Christina) (Entered: 12/19/2018)
108 Emergency MOTION to Stay to comply with Paragraph 5 of the Permanent Injunction Order by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III (Greer, Christina) Modified event title on 12/28/2018 (znmw). (Entered: 12/26/2018)
MINUTE ORDER granting 108 motion for stay in light of lapse of appropriations. Defendants are directed to notify the Court when appropriations are restored or if a

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12/28/2018
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continuing resolution is enacted. Signed by Judge Emmet G. Sullivan on 12/26/2018. (lcegs2) (Entered: 12/26/2018)
MINUTE ORDER directing the parties to brief the following issue by no later than 1:00 p.m. (EST) on December 28, 2018: whether paragraph 5 of the Permanent Injunction Order is related to an "emergenc[y] involving the safety of human life or the protection of property." See 31 USC § 1342. Submissions should be no longer than five pages. Signed by Judge Emmet G. Sullivan on 12/27/2018. (lcegs2) (Entered: 12/27/2018)
109 STIPULATION re Order on Motion for Extension of Time to, Order, JOINT STIPULATION REGARDING PARAGRAPH 5 OF THE PERMANENT INJUNCTION, MOTION TO LIFT THE STAY ENTERED ON DECEMBER 26, 2018, AND MOTION TO SET ASIDE BRIEFING SCHEDULE by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Attachments: # 1 Text of Proposed Order)(Greer, Christina) (Entered: 12/28/2018)
MINUTE ORDER granting 109 the parties' motion to lift stay and to set aside the briefing schedule. In light of the parties' joint stipulation regarding paragraph 5 of the Permanent Injunction Order, the stay entered on December 26, 2018, is lifted, and the briefing schedule issued on December 27, 2018, is vacated. The parties are directed to comply with the Court's Permanent Injunction Order dated December 19, 2018. The defendants are FURTHER DIRECTED to file a status report detailing the steps they have taken to comply with Paragraph 5 of the Permanent Injunction Order by no later than January 4, 2019. Signed by Judge Emmet G. Sullivan on 12/28/2018. (lcegs2) (Entered: 12/28/2018)
Set/Reset Deadlines: Status Report due by 1/4/2019 (mac) (Entered: 12/31/2018)
110 Memorandum in opposition to re 107 MOTION to Stay re 105 Order on Motion for Summary Judgment,,,, Order on Motion for Miscellaneous Relief,, Order on Motion to Strike, filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer) (Entered: 01/02/2019)
111 STATUS REPORT by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Greer, Christina) (Entered: 01/04/2019)
MINUTE ORDER. In light of 111 defendants' status report, defendants are directed to file a further status report by no later than January 11, 2019. Signed by Judge Emmet G. Sullivan on 1/4/2019. (lcegs2) (Entered: 01/04/2019)
Set/Reset Deadlines: Further Status Report due by 1/11/2019 (mac) (Entered: 01/07/2019)
112 REPLY to opposition to motion re 107 MOTION to Stay re 105 Order on Motion for Summary Judgment,,,, Order on Motion for Miscellaneous Relief,, Order on Motion to Strike, filed by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Greer, Christina) (Entered: 01/09/2019)
113 STATUS REPORT by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Greer, Christina) (Entered: 01/11/2019)
114 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Newell, Jennifer) (Entered: 01/11/2019)
115 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 105 Order on Motion for Summary Judgment,,,, Order on Motion for Miscellaneous Relief,, Order on Motion to Strike, 106 Memorandum & Opinion by JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III, L. FRANCIS CISSNA. Fee Status: No Fee Paid. Parties have been notified. (Reuveni, Erez) (Entered: 01/17/2019)
116 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 115 Notice of Appeal to DC

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01/25/2019 01/25/2019 01/30/2019 01/30/2019

Circuit Court. (jf) (Entered: 01/18/2019)
117 STATUS REPORT by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Greer, Christina) (Entered: 01/18/2019)
118 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Greer, Christina) (Entered: 01/18/2019)
119 MOTION for Telephone Conference and Status Report Concerning Paragraph 5 of Permanent Injunction by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA (Attachments: # 1 Text of Proposed Order)(Newell, Jennifer) (Entered: 01/18/2019)
120 STATUS REPORT by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (See Docket Entry 119 to view document) (jf) (Entered: 01/22/2019)
122 SEALED DOCUMENT filed by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 01/23/2019)
123 SEALED DOCUMENT filed by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 01/23/2019)
MINUTE ORDER directing defendants to respond to 119 plaintiffs' motion for telephone conference by no later than 5:00 p.m. (EST) on January 22, 2019. Signed by Judge Emmet G. Sullivan on 1/22/2019. (lcegs2) (Entered: 01/22/2019)
Set/Reset Deadlines: Defendants Response To 119 due on 1/22/2019 By 5:00PM. (mac) (Entered: 01/22/2019)
121 RESPONSE re 119 MOTION for Telephone Conference and Status Report Concerning Paragraph 5 of Permanent Injunction filed by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Greer, Christina) (Entered: 01/22/2019)
MINUTE ORDER denying 119 plaintiffs' motion for telephone conference and clarifying 105 the Court's Order. The parties have notified the Court of their disagreement over the language in the Court's Order dated December 19, 2018. The parties disagree over paragraph 5 which orders the defendants "to bring back into the United States, at no expense to plaintiffs, any plaintiff who has been removed pursuant to an expedited removal order prior to this Order and parole them into the United States, and provide each of them a new credible fear process consistent with the Court's Memorandum Opinion." Notwithstanding the parole language, the Court has not required the defendants to provide a different process than what is mandated by the relevant credible fear statutory provisions. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (stating an alien "shall be detained pending a final determination of credible fear of persecution"). Accordingly, the motion for telephone conference is DENIED. Signed by Judge Emmet G. Sullivan on 1/23/2019. (lcegs2) (Entered: 01/23/2019)
124 MEMORANDUM OPINION AND ORDER denying 107 defendants' motion to stay pending appeal. Signed by Judge Emmet G. Sullivan on 1/25/2019. (lcegs2) (Entered: 01/25/2019)
125 STATUS REPORT by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON B. SESSIONS, III. (Greer, Christina) (Entered: 01/25/2019)
MINUTE ORDER denying as moot 55 motion for preliminary injunction. In light of 105 the Court's Permanent Injunction Order, the Court denies as moot 55 plaintiffs' motion for preliminary injunction. Signed by Judge Emmet G. Sullivan on 1/30/2018. (lcegs2) (Entered: 01/30/2019)
USCA Case Number 19−5013 for 115 Notice of Appeal to DC Circuit Court, filed by L. FRANCIS CISSNA, JAMES MCHENRY, KIRSTJEN M. NIELSEN, JEFFERSON

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B. SESSIONS, III. (zrdj) (Entered: 01/31/2019)
126 STATUS REPORT Concerning Paragraph 5 of Permanent Injunction by A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. (Newell, Jennifer) (Entered: 05/06/2019)
127 ENTERED IN ERROR. . . . .RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/13/2019. Answer due for ALL FEDERAL DEFENDANTS by 10/12/2019. (Perez, Celso) Modified on 9/23/2019 (ztd). (Entered: 09/20/2019)
NOTICE OF CORRECTED DOCKET ENTRY: was entered in error and counsel refiled document in the correct case. (ztd) (Entered: 09/23/2019)
128 NOTICE OF WITHDRAWAL OF APPEARANCE as to A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. Attorney Jennifer Chang Newell terminated. (Wofsy, Cody) (Entered: 12/27/2019)
129 NOTICE OF WITHDRAWAL OF APPEARANCE as to A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. Attorney Eunice Lee terminated. (Musalo, Karen) (Entered: 04/17/2020)
130 NOTICE OF WITHDRAWAL OF APPEARANCE as to A.B.A., A.P.A., CARMEN, GINA, GIO, GRACE, J.A.C.F., MARIA, CINDY ARDON MEJIA, MINA, MONA, NORA. Attorney Ann Kathleen Scholten Dutton and Anne Kathleen Scholten Dutton terminated. (Musalo, Karen) (Entered: 04/17/2020)

 
 Case 1:18-cv-01853-EGS Document 22 Filed 08/09/18 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRACE, et al.,
Plaintiffs,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) ) Civil No. 18-cv-1853 (EGS) ) ) ) ) ) ) )
ORDER

During the afternoon of August 8, 2018, Plaintiffs, eight asylum applicants who allege they have suffered extensive past persecution and who fear continued persecution in their countries of origin filed a Motion for Preliminary Injunction, ECF. No. 10, and an Emergency Motion for Stay of Removal, ECF No. 11. In their Motion for Stay of Removal, Plaintiffs sought emergency relief because two of the Plaintiffs, “Carmen”1 and her daughter J.A.C.F., were “subject to imminent removal as soon as 11:59 pm on Thursday, August 9, 2018.” ECF No. 11 at 1.
In light of their “imminent removal,” this Court held an emergency hearing on August 8, 2018. At that hearing, Defendants stated that they would not consent to staying the removal past 11:59

1 “Carmen” is proceeding under a pseudonym in this action. 1

Case 1:18-cv-01853-EGS Document 22 Filed 08/09/18 Page 2 of 3
pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time. Based on that representation, the Court set an expedited briefing schedule to be completed by 1:00 am Thursday, August 9, 2018, and set a hearing on the motion for that same morning.
After hearing argument on the emergency motion, and following a Court recess, Plaintiffs’ counsel informed the Court that, despite the representations made by Defendants, Plaintiffs “Carmen” and her daughter had been removed from their place of detention and could be in the process of being removed from the United States. In an email to this Court’s Courtroom Deputy following the hearing, government counsel confirmed that “Carmen” and her daughter were, in fact, on an airplane while the Court was hearing argument on Plaintiffs’ Emergency Motion.
Upon learning in open Court that “Carmen” and her daughter had been removed from their place of detention and could be in the process of being removed from the country, the Court issued an oral Order requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH. The Court informed government counsel that it would neither tolerate nor excuse any delay with compliance with this Order. The Court also stated that it would enter a written Order memorializing its oral Order.
2

Case 1:18-cv-01853-EGS Document 22 Filed 08/09/18 Page 3 of 3

Accordingly, it is HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order. SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge August 9, 2018

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

fECIEli
AUG -7 2018
Clerk, U.S. District and Bankruptcy Courts

)

GRACE*, MINA*, GINA*, MONA*, and MARIA*, )

T. Don Hutto Residential Center

)

I00 I Welch Street

)

Taylor, TX 76574;

)

)

CARMEN* and her minor daughter, J.A.C.F. (by and )

through her mother),

)

South Texas Family Residential Center

)

300 El Rancho Way

)

Dilley, TX 7801 7;

)

)

GIO*,

)

Albany County Correctional Facility

)

840 Albany Shaker Road

)

Albany, NY 1221 I;

)

)

NORA* and her minor son, A.B.A. (by and through )

his mother),

)

c/o 125 Broad Street, 1gth Floor

)

New York, NY 10004;

)

)

CINDY ARDON MEJIA and her minor daughter,

)

A.P.A. (by and through her mother)

)

c/o 125 Broad Street, 181h Floor

)

New York, NY 10004;

)

)

Plaintiffs,

)

v.

)

)

JEFFERSON BEAUREGARD SESSIONS III,

)

Attorney General of the United States, in his official )

capacity,

)

950 Pennsylvania Avenue, NW

)

Washington, DC 20530;

)

)

KIRSTJEN M. NIELSEN, Secretary of the

)

Department of Homeland Security, in her official

)

capacity,

)

245 Murray Lane, SW,

)

Washington, DC 20528;

)

__________________________________ ))

Case: 1:18-cv-01853 Assigned To : Sullivan, Emmet G. Assign. Date: 8/7/2018 Description: TRO/PI (0-DECK)

)

LEE FRANCIS CISSNA, Director of United States )

Citizenship and Immigration Services, in his official )

capacity,

)

20 Massachusetts Ave., NW

)

Washington, DC 20529;

)

)

JAMES MCHENRY, Director of the Executive

)

Office for Immigration Review, in his official

)

capacity,

)

950 Pennsylvania Avenue, NW

)

Washington, DC 20530,

)

)
________________D_e_fe_nd_a_n_ts:_________ ))

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(Violation of Refugee Act, Immigration and Nationality Act, Administrative Procedure Act, Separation of Powers, and Due Process)

• Plaintiffs proceeding under a pseudonym are indicated with an asterisk. 2

INTRODUCTION I. This case seeks to prevent the evisceration of asylum protections for the most vulnerable immigrants fleeing horrific persecution. Plaintiffs are adults and children who fled their home countries after suffering pervasive sexual abuse, kidnapping, beatings, shootings, the murder of family members, and/or death threats. They are challenging new policies that unlawfully deprive them of their right to seek humanitarian protection. 2. Specifically, the Defendants have recently implemented written policies that subject Plaintiffs and other individuals placed into summary "expedited removal" proceedings·to an unlawful screening standard-a standard intended to eliminate most domestic violence and gangrelated asylum claims. The new expedited removal policies stem from a legal opinion issued on June II, 2018, Matter ofA-B-, 27 I&N Dec. 316 (A.G. 2018), which articulated new, erroneous standards for adjudicating asylum claims relating to domestic and gang-related violence, and subsequent guidance applying these erroneous standards to expedited removal screenings. 3. As a result ofthe new policies, the immigration authorities summarily rejected Plaintiffs' asylum claims and ordered them removed to countries where they face grave danger or even death. Unless the new policies are enjoined, many other bona fide asylum seekers face the same fate. 4. When Congress created "expedited removal" proceedings in I996, it was careful to build in protections for asylum seekers. These protections require that every individual who comes to this country seeking humanitarian protection be given a fair chance to establish eligibility for asylum and related protection from deportation. Specifically, immigrants in expedited removal who express fear of return to their home countries must be afforded a threshold screening interview with an asylum officer, called a "credible fear" interview. At that interview, the
3

question is not whether that person will ultimately be eligible for asylum, but only whether there is "a significant possibility . .. that the alien could establish eligibility for asylum[.]" 8 U.S.C. § 1225(b)(I)(B)(v) (emphasis added). lfthe noncitizen passes this low "credible fear" screening standard, the law requires that she be taken out ofexpedited removal and allowed to pursue her claim for asylum in regular removal proceedings, where she is entitled to a full trial-type immigration court hearing and administrative appellate review, followed by review in the federal court ofappeals. Congress intended the credible fear standard to be low, so that asylum seekers would be given "the benefit of the doubt and no one with a potentially meritorious asylum claim would be sent back to danger.
5. Prior to Defendants' implementation of the challenged policies, all of the Plaintiffs would have satisfied the threshold credible fear standard and been entitled to seek asylum and related protection in full removal hearings before an immigration judge.
6. But the new policies unlawfully elevate the credible fear standard far above the low threshold Congress enacted and prevent asylum seekers from ever pursuing their asylum claims. The new credible fear policies based on Mauer ofA-B- unlawfully change the credible fear standard in at least three ways.
7. First, they direct asylum adjudicators to deny most credible fear claims connected to domestic violence or gangs, even though by law, credible fear must be decided on the specific facts ofeach case and there is no categorical bar against such claims under the asylum laws.
8. Second, they instruct asylum adjudicators to evaluate and deny credible fear for such claims based on multiple erroneous legal standards. For example, although it is well-established that individuals fearing persecution by non-governmental actors can qualify for asylum if they show that their home government is " unable or unwilling" to protect them, the new policies
4

require applicants to meet a much more stringent test: showing that their government "condones or is completely helpless" to protect them. Similarly, for individuals who assert they are being targeted for persecution because they are a member ofa particular social group (one of the five protected grounds for asylum), the new policies impose an erroneous, more demanding burden for showing that the persecution they fear is "on account of' such membership.
9. Finally, they require asylum adjudicators to ignore any federal court of appeals decisions that conflict with the new credible fear policies, thus purporting to make the immigration authorities the ultimate arbiters of the law, and undermining both Congress' s lawmaking
authority and the Article Ill judiciary's duty to "say what the Jaw is." Marbury v. Madison, 5 U.S. 137, 177,2 L. Ed. 60 (1803).
10. Each ofthese instructions by themselves unlawfully alters and heightens the credible fear standard and deprive Plaintiffs and other asylum seekers of their right to pursue asylum. Taken together, their effect is to distort the credible fear process beyond recognition.
11 . Plaintiffs seek a declaration that the new credible fear policies violate the Immigration and Nationality Act ("INA"), the Refugee Act, the Administrative Procedure Act, Article Ill's separation-of-powers principle, and the Due Process Clause; an order enjoining the application of the new credible fear policies; and an order that Plaintiffs' expedited removal orders be vacated and that they be provided with a new credible fear process under the proper legal standard or, in the alternative, full immigration court removal proceedings pursuant to 8 U.S.C. § 1229a. Without an injunction, Plaintiffs and thousands of other immigrants like them desperately seeking safety will be unlawfully deported to places where they fear they will be raped, kidnapped, beaten, and killed.
5

JURISDICTION AND VENUE 12. This case arises under the United States Constitution; the Administrative Procedure Act (" APA"), 5 U.S.C. § 701 et seq.; the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. and its implementing regulations; and the Convention Against Torture ("CAT"), the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 ( 1998) (codified as Note to 8 U.S.C. § 1231 ). 13. The Court has jurisdiction under 8 U.S.C. § 1252(e)(3). Section 1252(e)(3) is a provision ofthe INA that provides jurisdiction in the Uni"ted States District Court for the District of Columbia over systemic challenges "to [the] validity of the [expedited removal] system," including regulations and "written" policies regarding expedited removal. The Court also has jurisdiction under 28 U.S.C. § 1331. 14. Venue is proper in this District because 8 U.S .C. § 1252(e)(3)(A) requires that all § 1252(e)(3) actions be brought in the United States District Court for the District of Columbia. In addition, venue is proper under 28 U.S.C. § 139l(e)(l) because a substantial part ofthe events or omissions giving rise to this action occurred in this District.
PARTIES 15. PlaintiffGrace· fled Guatemala to escape her abusive partner and his violent gangmember sons. Grace's partner of22 years repeatedly beat and threatened to kill her and her children throughout their relationship and after she tried to leave him. He also sexually assaulted her and her daughter over many years. Grace is part of an indigenous group that is discriminated against in Guatemala by Ladinos (non-indigenous Guatemalans). Grace's abuser, who is Ladino, would often berate her for being an "India" (a slur used to denigrate indigenous people) and "stupid," because she could not read or write, especially when he was violently abusing her. • Plaintiffs proceeding under a pseudonym are indicated with an asterisk.
6

Once, he beat Grace's pregnant daughter so severely that she had a miscarriage. In October 2016, Grace sought police protection from her abuser and his two gang member sons from another relationship, who had recently joined their father in abusing Grace and her children. However, the police did nothing to stop him and his sons from returning to Grace's house to attack her. When she tried to leave him, Grace's abuser took advantage of her illiteracy to take the legal title to her home. He then arranged to have the police evict Grace from her longtime residence, and she and her son were forced to move in with a neighbor. Even after having evicted her, Grace's abuser and his ·sons continued to terrorize her and her son. Because his sons are members ofa powerful gang, which has a network across the country, Grace does not believe she could find safety in another city. Despite being found to have testified credibly, she received a negative credible fear detennination on July 20, 2018. Grace is detained at T. Don Hutto Residential Center in Taylor, Texas.
16. PlaintiffCarmen*, together with her young daughter, Plaintiff J.A.C.F., fled her home in El Salvador to escape two decades of horrific sexual abuse by her husband and death threats from a violent gang. Carmen's husband routinely raped, stalked, and threatened her with death, treating her as his property, even after they were living apart. Carmen did not report her husband's threats to the police because she had seen that the police did not protect women from their husbands' abuse. She had also heard about women who reported abuse to the police, only to be killed by their husbands in retaliation, and believed her husband would do the same if she reported him. Carmen also fears that she and her daughter would be killed by a violent gang, who targeted her because she was a vulnerable single mother living alone with her child, and because she had a good factory job. They held her up at gunpoint in May 20 18 when she was on her on her way home from work and demanded that she pay a monthly "tax," making clear that
7

they would kill her and her little girl if she did not comply. The gang also threatened to kill her if she went to the police. Because four or five of her co-workers were killed by the same gang in the past year, she knew their threats were serious and fled with J.A.C.F. to avoid death. In June 2018, Carmen and her daughter sought asylum in the United States. Despite being found to have testified credibly, they both received negative credible fear detenninations on June 29, 2018, which were affirmed by an immigration judge on July 23, 2018. Carmen and her little girl are detained at the South Texas Family Residential Center in Dilley, Texas.
17. PlaintiffMina* fled her home in Honduras after suffering a vicious attack and receiving death threats from a powerful drug trafficking gang that controlled her town. Members ofthe gang targeted Mina and her family after her husband and father-in-law helped a friend escape when the gang was trying to kill him. After murdering her father-in-law and threatening to kill her husband, members of the gang beat Mina so badly that she could not walk the next day. Her attackers told her they would rape her and mutilate her body if she did not leave town. Mina knew she could not report the attack to the police because oftheir close ties to the gang and because the police had failed to investigate her father-in-law's murder after her family sought police assistance. Mina and her husband fled to the United States and sought asylum. Despite being found to have testified credibly, Mina received a negative credible fear detennination on July 23, 2018. She is detained at T. Don Hutto Residential Center in Taylor, Texas.
18. Plaintiff Gina* fled her home in Honduras in June 2018 because she fears death or torture at the hands of a powerful Honduran family that threatened to kill her because ofher relationship to her nephew, who murdered someone close to them years ago. The family has already succeeded in murdering Gina's brother and maiming her son in an attempt to kill him. Although Gina made several police reports following these crimes, the police did not help her because the
8

family targeting her is powerful and well-connected to the Honduran government; the family has also threatened to kill her because she dared to report their crimes. She attempted to find safety by moving away from the area, but people sent by the family recently came to her new town, asking for her by name. Gina fled to the United States to save her life. Despite being found to have testified credibly, she received a negative credible fear determination on July 16, 2018. Gina is detained at T. Don Hutto Residential Center in Taylor, Texas.
19. Plaintiff Mona* fled her country and sought asylum in the United States after a powerful gang brutally murdered her long-term partner, who was a member ofa special military force dedicated to combating gangs, and threatened to kill her next because of her relationship with him. Earlier this year, Mona's partner and four other people were gunned down by armed men in a hail of bullets. Mona was present at the shooting and narrowly escaped with her life. When
she called her partner's phone after the shooting to try to locate it, the killers answered, taunting
her and threatening that they knew she was his partner and she would be next. Shortly after her partner's death, she was accosted by gang members at the market while attempting to purchase flowers for his funeral. They repeated that they knew she was her partner's woman and threatened to kill her. She was recently alerted by family members that gang members were following her bus, forcing her to get off quickly and hide until someone could pick her up. Mona feared that if she reported the threats to the local police, many of whom collaborate with gangs, she would only put herself in greater danger. She also knew of other cases where the police were not able to protect family members ofpolice officers and soldiers who were killed by gangs just because oftheir relationship with Jaw enforcement. Fearing for her life, Mona fled to the United States and sought asylum. Despite being found to have testified credibly, she received a negative
9

credible fear detennination on July 20, 2018. She is detained at T. Don Hutto Residential Center in Taylor, Texas.
20. PlaintiffGio* fled his home in El Salvador after being targeted by members of two rival gangs. Gio Jived in a neighborhood controlled by one notoriously brutal gang, whose members recently threatened his life when he refused to sell drugs for them because of his deep Christian faith. Gio also fears the gang will kill him if it learns that his half-brother is a member oftheir rival gang. If the gang that controls his neighborhood does not kill him, Gio fears that the rival gimg will. Some years ago, Gio was terrorized by members ofthe rival gang when he visited his father, who lives in their territory. The rival gang members kidnapped him, accused him of being a spy for the other gang, broke his arm during a vicious beating, and threatened to throw him in a well and leave him to die. They also threatened to hann him if he made a police report. He escaped, but the gang's members have continued to threaten him for years, any time he has encountered them. In June 2018, after the gang that controls his neighborhood threatened him for refusing to sell drugs, Gio fled to the United States to save himself. Gio believed that attempting to get help from the police would only put him and his family in even graver danger. Despite being found to have testified credibly, he received a negative credible fear determination on July 16, 2018. Gio is detained at Albany County Correctional Facility in Albany, New York.
21 . Plaintiff Maria*, a recently orphaned teenager, fled her home in El Salvador to escape a forced relationship and sexual violence at the hands of a gang member nicknamed "F." When Maria's brother-in-law, a member ofthe same gang, began to use her recently deceased mother's house as a gathering place for the gang, Maria stood up to him because her strong Christian faith leads her to morally oppose gangs. After she asked her brother-in-law to leave, F. threatened her by screaming at her and beating the walls of her house with a baseball bat, to teach her a Jesson
10

about defying the gang. He then began to make aggressive sexual advances toward her, telling her that she had no choice but to be his "woman" and that he would force her if she resisted. He continued to escalate these advances until he attempted to sexually assault her days before she fled. Maria resisted F. because of her Christian faith and because she saw that gang members treat their girlfriends like property and frequently beat them. Maria knew this because her brother-in-law abuses her older sister, who has a physical disability and has trouble defending herself. Maria knew the police could not control the gang's violence against women, and she had seen the gang retaliate against people who file police reports. The gang killed a woman in Maria's town in front ofher children just days after she reported that the gang had kidnapped one of her sons. Maria fled to the United States to save her life. Despite being found to have testified credibly, she received a negative credible fear determination on July 23, 2018. She is detained at T. Don Hutto Residential Center in Taylor, Texas.
22. PlaintiffNora• and her three-year-old son, Plaintiff A.B.A., fled their home in El Salvador in May 2018, after their lives and safety were threatened by members ofa notoriously brutal gang. Over the course of years, Nora suffered rape and physical beatings at the hands of her partner, who is the father of her son, A.B.A. Nora's abuser is affiliated with the gang and has had the gang surveil her since she attempted to end their relationship. Earlier this year, gang members who gather at a corner near Nora's house began to question her about whether A.B.A. was the son of her abuser. One of the gang's members named ''E.T." began to make aggressive sexual advances whenever she passed by. In May, when Nora was walking home with her three young children, E.T. pursued her down the street and told her that he knew that she lived alone with her children and that he would come to her house at night to have sex with her. He showed her a gun in his waistband and then looked to her son, indicating that he would kill them both if

she did not submit to his sexual demands. She fled to the United States to save her son's life as

well as her own. Despite being found to have testified credibly, Nora and her son both received

negative credible fear detenninations on June 15, 2018, which were affinned by an immigration

judge on June 26, 2018. USCIS denied their request for reconsideration and Nora and her son

were removed to El Salvador on or about July 26, 2018, where they continue to fear for their

lives.

23. Plaintiff Cindy Ardon Mejia fled her home in Central America with her young daughter,

Plaintiff A.P.A., after suffering extensive past persecution, including rape, physical beatings, and

shootings carried out by

Ms. Ardon Mejia's

and her little girl entered the United States in June 2018, seeking asylum. Despite being found to have testified credibly, they both received negative credible fear detenninations on June 28, 2018, which were affinned by an immigration judge on July I0, 2018. USCIS denied their request for reconsideration on July 25, 2018.
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24. Defendant Jefferson Beauregard Sessions Ill is sued in his official capacity as the Attorney General ofthe United States. In this capacity, he is responsible for the administration ofthe immigration laws pursuant to 8 U.S.C. § 1103, oversees the Executive Office for Immigration Review ("EOIR") (the administrative immigration court system), and is empowered to grant asylum or other relief.
25. Defendant Kirstjen M. Nielsen is sued in her official capacity as the Secretary ofDHS. In this capacity, she directs each of the component agencies within DHS, including United States Immigration and Customs Enforcement ("ICE"), United States Citizenship and Immigration Services ("USCIS"), and United States Customs and Border Protection ("CBP"). In her official capacity, Defendant Nielsen is responsible for the administration ofthe immigration laws pursuant to 8 U.S.C. § I 103, and is empowered to grant asylum or other relief.
26. Defendant Lee Francis Cissna is sued in his official capacity as the Director ofUSCIS, which is the agency that, through its asylum officers, conducts interviews of certain individuals placed in expedited removal to detennine whether they have a credible fear of persecution and should be permitted to apply for asylum before an immigration judge.
27. Defendant James McHenry is sued in his official capacity as the Director of the Executive Office for Immigration Review, the agency within the Department ofJustice that, through its immigration judges, conducts limited review of negative credible fear determinations.
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BACKGROUND A. Asylum Protections in the United States 28. The immigration laws provide that ..[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum[.]" 8 U.S.C. § 1158(a)(l). 29. To be eligible for asylum, a noncitizen must establish that she is "a refugee within the meaning of[8 U.S.C.] section II 0 I(a)(42)(A)[.]" 8 U.S.C. § 1158(b)( I)(A); see also 8 U.S.C. § 1158(b)(l)(B)(i). A refugee is defined as:
any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.] 8 U.S.C. § IIOI(a)(42)(A). 30. The current asylum system was enacted in 1980, as part ofthe Refugee Act of 1980, Pub. L. 96-212, 94 Stat. I 02, and was intended to bring U.S. Jaw into conformity with our obligations under the United Nations Convention Relating to the Status of Refugees and 1967 United Nations Protocol Relating to the Status of Refugees. Consistent with international law, the definition of"refugee" does not require a showing of cerlain harm. Instead, individuals can establish eligibility for asylum based on a "well-founded fear of persecution." The Supreme Court has explained that a showing of a I in I0 chance of persecution is sufficient to satisfy that standard. See INSv. Cardoza-Fonseca, 480 U.S. 421,430,440 (1987).
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31. At the time ofthe I980 Act it was well understood in both domestic and international law that persecution included harm inflicted by actors other than the official government ofa country, so long as the government was '·unable or unwilling to control" the persecutors. Malter ofAcosta, 19 I&N Dec. 211, 222 (BIA 1985).
32. It is also welt established that refugee protections extend to women fleeing gender-based persecution. For decades, the Board oflmmigration Appeals ("BIA''), the immigration authorities, and federal courts have broadly recognized that women harmed by non-state actors because oftheir gender can show they are persecuted "on account of' one ofthe protected grounds of race, religion, nationality, political opinion, or membership in a particular social group. See, e.g., In re Kasinga, 21 I&N Dec. 357, 365 (BIA I996) (recognizing asylum claim based on female genital cutting by non-governmental actors); Matter ofAcosta, 19 I&N Dec. at 233 (explaining that "persecution on account of membership in a particular social group" "mean[s] persecution that is directed toward an individual who is a member of a group of persons all ofwhom share a common, immutable characteristic ... such as sex").
B. The Expedited Removal System and Credible Fear 33. Prior to I996, noncitizens were generally entitled to a full hearing in immigration court before they could be removed, whether they were seeking admission at the border or had already entered the country. They were also entitled to administrative appellate review before the BIA and judicial review in federal court. 34. In 1996, Congress enacted legislation that created a type of highly truncated removal mechanism called ''expedited removal" that could be used for certain noncitizens seeking admission. See 8 U.S.C. § 1225(b)(l).
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35. Noncitizens subjected to expedited removal are ordered removed by an immigration officer "without further hearing or review." 8 U.S.C. § 1225(b)(l )(A)(i).
36. Congress, however, was careful to carve out an exception for individuals who express
fear of return to their home countries. See 8 U.S.C. § 1225(b)(l )(B); 8 C.F.R. § 208.30(t).
37. If an individual indicates any fear of returning to his or her home country, the immigration officer must refer the individual for an interview with an asylum officer, called a ·•credible fear" interview. 8 U.S.C. §§ 1225(b)(l)(A)(ii), 1225(b)(l)(B); 8 C.F.R. § 235.3(b)(4);
see also 8 C.F.R. § 208.30. If the noncitizen is referred to an asylum officer, the officer conducts
(with the assistance of an interpreter ifnecessary) a rudimentary "credible fear interview" which is designed "to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture." 8 C.F.R. § 208.30(d). The asylum officer must "conduct the interview in a non-adversarial manner." /d. Further, in determining whether credible fear is satisfied, the officer must "consider whether the alien's case presents novel or unique issues that merit consideration in a full hearing before an immigration judge." 8 C.F.R. § 208.30(e)(4).
38. At the conclusion of the interview, if the asylum officer makes a negative credible fear determination, the officer must provide a written record ofthe determination that "shall include . . . the officer's analysis of why, in light of[the] facts, the alien has not established a credible fear of persecution." 8 U.S.C. § 1225(b)(l)(B)(iii)(II).
39. Upon the individual's request, the agency must provide for prompt review ofthe asylum officer's negative credible fear determination by an immigration judge. 8 U.S.C . §
1225(b)(l)(B)(iii)(III); see also 8 C.F.R. § 208.30(g)(l). The immigration judge's decision is administratively "final and may not be appealed." 8 C.F.R. § 1208.30(g)(2)(iv)(A). Noncitizens
undergoing credible fear review before immigration judges are still in expedited removal
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proceedings, and do not get the full panoply of rights available in regular immigration court removal proceedings.
40. Noncitizens who receive a negative credible fear determination are issued an expedited removal order, which comes with significant consequences, beyond removal itself. Noncitizens who are removed pursuant to expedited removal orders are subject to a five-year bar on admission to the United States. 8 U.S.C. § 1182(a)(9)(A)(i).
41 . To ultimately prevail on an asylum claim, the applicant need only establish that there is a 10% chance that he or she will be persecuted on account of one of the five protected grounds for asylum. To prevail at a credible fear interview, however, the applicant need only show a "significant possibility" of asylum eligibility-i.e., a "significant possibility" of a 1 in I0 chance of persecution, or afraction of 10%. See 8 U.S.C. § 1225(b)(l)(B)(v) (defining credible fear as "a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum[.]").
42. If a noncitizen is found by the asylum officer to have a "credible fear," the individual is taken out ofthe expedited removal process and referred for a regular removal hearing before an immigration judge. At that hearing, they will have the opportunity to develop a full record before the judge, and they may appeal an adverse decision to the BIA and federal court of appeals. 8 C.F.R. § 208.30 (t); see also 8 U.S.C. § 1225(b)(I)(B)(ii).
43. The reason for the low threshold at the credible fear stage is straightforward. An asylum claim is highly fact-specific and often will take significant time, resources and expertise to
develop, including expert testimony and extensive evidence about country conditions. It may
also involve complex legal questions. In the expedited removal system, however, abbreviated
17

credible fear proceedings occur within days ofarrival, with little to no preparation or assistance by counsel, little to no knowledge of asylum law by the applicant, no opportunity to examine
witnesses or gather evidence, and while the individual is detained. It is thus highly unrealistic
for applicants in the expedited removal system to present a fully developed asylum claim. Accordingly, Congress established a low threshold at the credible fear stage to ensure that potentially valid asylum claims could be developed properly in a full trial-type hearing before an immigration judge. Congress viewed this credible fear process as an essential safeguard to ensure bona fide asylum seekers would not be summarily removed.
C. The New Written Credible Fear Policies 44. On June 11, 2018, Defendant Sessions, in his role as Attorney General, issued a precedential decision in an asylum case, Matter ofA-B-, 27 I&N Dec. 316 (A.G. 20 18), reversing a grant of asylum to a Salvadoran woman who fled more than fifteen years of extreme domestic violence at the hands of her then-husband. Although the BIA had held that Ms. A.B. had established her eligibility for asylum, Defendant Sessions used an extraordinary procedure by which he "certified" the BIA's decision to himself for review and reversed the BIA' s earlier precedent in Matter ofA-R-C-G-, 26 I&N Dec. 338 (BIA 2014). A-R-C-G- had recognized, consistent with the then-longstanding legal position of DHS, that asylum claims based on domestic violence can qualify for protection. 45. Moreover, Defendant Sessions used Matter ofA-B-as a vehicle to articulate new legal standards for the adjudication of asylum cases based on persecution from non-governmental actors on account of membership in a particular social group, focusing particularly on claims by individuals fleeing domestic abuse and gang violence. Malter ofA-8 - misstates or mischaracterizes multiple aspects of asylum law, seeking to heighten the asylum standards and
18

increase the burden on asylum seekers to prove eligibility. Defendant Sessions specifically opined that, based on the newly articulated standard, few claims pertaining to domestic or gang violence by non-governmental actors would qualify for asylum or satisfy the credible fear
standard. See id. at 320 and n.l.
46. On June 13, 2018, USCIS issued a written Interim Guidance from John L. Lafferty to
USCIS Asylum Division staff, instructing asylum officers to apply Malter ofA-B- to credible fear interviews. See Asylum Division Interim Guidance- Matter of A-8-, 271&N Dec. 316
(A.G. 20 I8), June I3, 2018 (hereinafter "USCIS Interim Guidance") ("'we are issuing the following interim guidance on how to proceed with decision-making on asylum cases and CF ... screening determinations").
47. On July I 1, 2018, USCIS issued final written guidance to employees, including asylum officers responsible for conducting credible fear interviews, instructing them, inter alia, to assess credible fear in light ofA-B-and directing that claims based on domestic violence and gangrelated banns generally will not establish the basis for a credible fear of persecution. USCIS Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and
Refugee Claims in Accordance with Mauer ofA-B-, July I 1, 2018 (PM-602-0162) (hereinafter "USCIS Guidance" or "Guidance"), at 1. 1 See also id. (indicating that the ''Authority" for the Guidance includes the expedited removal statute, 8 U.S.C. § 1225, and its implementing regulations at 8 C.F.R. §§ 235 and 208).
1 Although past agency practice has always been to have USCIS Asylum Division guidance drafted within that office and approved by the Chiefof the Asylum Division, on infonnation and belief, this USCIS Guidance was issued outside those channels, without approval from any ofDHS's Asylum Division experts. Unlike previous guidance ofthis type, the USCIS Guidance memorandum has no "FROM" field, no authors identified, and no signature.
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48. The USCIS Guidance also announces a new credible fear policy not mentioned in Mauer ofA-B-. Although under prior USCIS policy credible fear applicants could rely on the law of the most favorable federal court of appeals circuit, the Guidance mandates that in making credible fear determinations, USCIS asylum officers shall ignore all federal court of appeals case law that is inconsistent with A-B-, and even then consider only the law ofthe circuit where the applicant is physically located during her credible fear interview.
49. On information and belief, the components ofDHS and the Department of Justice (including the Executive Office for Immigration Review) involved in adjudicating and enforcing the immigration laws have issued further written documents applying the pronouncements in Mauer ofA-B- to the credible fear process.
50. Mauer ofA-B- and the subsequently issued guidance documents establish written policies concerning credible fear interviews and implementing the expedited removal provisions at 8 U.S.C. § 1225(b)(l). Taken together, the Matter ofA-B- decision and the guidance issued by USC IS, EOIR, and other components of DHS and DOJ addressing the applicability of Matter of A-B- to credible fear decisions are referred to herein as "the new credible fear policies." The new credible fear policies were first implemented during the last 60 days.
51. These policies unlawfully change the credible fear standard in multiple interrelated ways, to further an explicit goal of foreclosing claims brought by women, children, and other migrants fleeing gender and gang-related violence. The new credible fear policies are designed to ensure that those fleeing domestic violence or gang-related violence do not make it into full immigration proceedings. The new policies:
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• instruct asylum officers to deny virtually all credible fear claims based on domestic violence or gang-related harms, in violation ofthe requirement that each case be adjudged based on its specific facts;
• ratchet up the showing for failure of government protection that such applicants must prove at the credible fear stage to establish eligibility for asylum based on fear of harm by non-governmental actors;
• impose a heightened, erroneous standard for proving that persecution is "on account of'' (or has a "nexus" to) a protected ground for asylum;
• impose an inappropriate burden on credible fear applicants to articulate and provide precise evidence identifying the specific particular social group that forms the basis for their persecution;
• direct asylum officers to exercise "discretion" to deny eligible applicants, even though the only question at the threshold credible fear stage is legal eligibility and not discretion; and
• instruct asylum adjudicators making credible fear determinations to disregard contrary court ofappeals precedents and to apply only the case Jaw in the circuit where the credible fear applicant is detained.
Each ofthese unlawful changes to the credible fear standard is described further below.
Tile lltstructio11 to De11y Virtually All Credible Fear Claims Based 011 Domestic Viole11ce a11d Gaug-Related Harm
52. Even though it is well established that credible fear and asylum claims must be assessed
on a case-by-case basis according to the specific circumstances and evidence presented, and even
though there are no categorical bars in the INA based on the type of claim presented, the new
credible fear policies instruct asylum adjudicators to reject credible fear claims based on
domestic violence or gang-related harms in all but the most extraordinary cases.
53. In A-B-, the Attorney General asserted that "[g]enerally, claims by aliens pertaining to
domestic violence or gang violence perpetrated by non-governmental actors will not qualify for
asylum." 26 I&N Dec. at 320. Although Ms. A.B.'s case was not at the credible fear stage (and
even though she did not present an asylum claim based on gang violence), the Attorney General
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added that "[a]ccordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution. See 8 U.S.C. 1225(b)(l)(B)(v)[.)" !d. at 320 & n.t (quoting the credible fear standard).
54. Moreover, the USCIS Guidance asserts, in bold font, that "[i)n general, ••. claims based on membership in a putative particular social group defined by the members' vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for ••. a credible ••. fear of persecution." USCIS Guidance at 6.
55. This instruction is incorrect and arbitrary, deprives credible fear applicants ofan impartial adjudication of their claims based on the specific facts of their case, violates the fundamental principle in the Refugee Act that a single standard should apply to all asylum seekers without discrimination, represents an improper departure from prior policy, and reflects Defendants' unlawful presumption against entire categories of claims at the credible fear stage.
Tile New "Comlo11ed" or "Complete Helplessness'' Standardfor Fail11re of Govemment Protection
56. It is well-settled that for all five protected grounds for asylum (race, religion, nationality, membership in a particular social group, and political opinion), a noncitizen can qualify for asylum based on a well-founded fear of persecution by a private actor, where the government is "unable or unwilling" to protect the applicant. However, the new credible fear policies mandate a new, higher standard in such cases.
57. In A-B-, the Attorney General asserted that victims of persecution by non-governmental actors, and specifically those asserting claims based on domestic or gang violence, must now establish that "the government condoned the private actions 'or at least demonstrated a complete helplessness to protect the victims."' 27 I&N Dec. at 337. The USCIS Guidance repeats and adopts this instruction in A-B- for all asylum officers, including those making credible fear
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determinations. See, e.g., USCIS Guidance at 6 (explaining that the "unable or unwilling"
standard requires a showing that "the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim" ); id. at I0 ("[T]he home government must either condone the behavior or demonstrate a complete helplessness to protect victims of
such alleged persecution."); see also USCIS Interim Guidance ("the applicant must show that the
government condoned the behavior or demonstrated a complete helplessness to protect the victim").
58. This new "condoned" or "complete helplessness" formulation for credible fear interviews is inconsistent with the text and context of the Refugee Act and the INA and with Congress's intent in the Refugee Act to adopt the settled agency construction of " well-founded fear of persecution" and conform the refugee definition to international norms. It is also inconsistent with decades of asylum case law and the government's own longstanding policy, which have recognized the viability of claims involving non-governmental persecutors and have uniformly held that the "unable or unwilling" standard is met even where the applicant has not demonstrated that the government condones the harm or is completely helpless to prevent it.
Ne.'\:IIS a11d Circularly Deji11ed Particular Social Groups 59. Mauer ofA-B- concluded that in cases involving non-governmental actors-specifically,
domestic violence and gang cases-it will be difficult to establish that the motive for the persecution was "on account of' (or has a "nexus" to) the protected ground and not any personal
relationship between the applicant and the persecutor. 27 l&N Dec. at 337-39. See also USCIS
Guidance at 6 ("[W]hen a private actor inflicts violence based on a personal relationship with the victim, the victim's membership in a larger group often will not be ' one central reason' for the abuse."). That assertion however, violates the plain text of the INA, which contemplates mixed
23

motives for persecution, as well as the credible fear standard itself. Asylum applicants have successfully established "nexus" in a range of circumstances that inherently or predominantly involve personal relationships, including female genital cutting, honor killings, forced marriages, and persecution of homosexuals by family members. Further, the credible fear policies also set forth an unprecedented and unlawful evidentiary requirement, demanding evidence that the persecutor was aware of the social group as defined in the asylum claim in order to establish
nexus. See, e.g., A-B-, 27 l&N Dec. at 339.
60. The new credible fear policies also establish a presumption that asylum claims founded on domestic violence present impermissibly circular social groups. Circularly defined particular social groups generally do not meet the refugee definition because ofa failure of nexus; for example, a domestic abuser generally does not batter his victim because she is a battered woman.
A-B- erroneously concludes that groups defined in part by the applicant's inability to leave the
relationship are impermissibly circular because "the inability 'to leave' was created by harm or by threatened ham1" (referring to the harm committed by the abuser). 27 I&N Dec. at 335. The USCIS Guidance affirms this position and encourages adjudicators to reject similarly worded social groups. USCIS Guidance at 5 ("The applicant must show something more than the danger of harm from an abuser ifthe applicant tried to leave, because that would amount to circularly defining the particular social group by the harm on which the asylum claim was based."). Yet the inability ofa woman to leave her relationship may be caused by many factors apart from the fact of harm, including her abuser's beliefs or social and cultural norms that subordinate women to men. The credible fear policies are unlawful, represent an improper departure from prior policy, and rely on impermissible generalizations about domestic violence asylum claims, their societal context, and the motives of domestic violence perpetrators that have no basis in fact.
24

"Exact Delineation" ofParticular Social Group 61 . Mauer ofA-B- asserted that "an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate, on the record and before the immigration judge, the exact delineation ofany proposed particular social group." Jd. at 344. See also USCIS Guidance at 3 ("an applicant seeking asylum or refugee status based on membership in a particular social group must present facts that clearly identify the proposed particular social group"). The new credible fear policies thus provide that noncitizens must specify the "particular social group" that they are claiming. 62. That requirement cannot be imposed at the credible fear screening stage. Congress intended the credible fear standard to be a low, threshold standard that would not screen out any potentially valid asylum claims or require development of legally or factually complicated issues
in such a truncated, "nonadversarial" process. See 8 C.F.R. § 208.30. Yet defining and
establishing membership in a "particular social group" is one of the most complex and difficult questions in asylum law, one frequently requiring expert testimony and extensive documentary evidence. See, e.g., 65 Fed. Reg. 76588-0 I, Proposed Rule, Immigration and Naturalization Service, Asylum and Withholding Definitions (Dec. 7, 2000} ("Membership in a particular social group is perhaps the most complex and difficult to understand" of the five protected grounds for asylum). Such a requirement is fundamentally inconsistent with the credible fear scheme that Congress enacted.
Adverse Discretion at tile Credible Fear Stage 63. Matter ofA-B- also made a point of"remind[ing] all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden ofprooffor
25

asylum eligibility under the INA." 27 I&N Dec. at 345 n.12 (emphasis added). Likewise, the USCIS Guidance addresses the exercise of discretion, explaining under the heading of "USCIS Officers' General Duties" that "ifeligibility is established, the USCIS officer must then consider
whether or not to exercise discretion to grant the application." USCIS Guidance at 2. It then repeats Mauer ofA-B-' s discussion of the exercise ofdiscretion, emphasizing the use of unlawful entry into the United States as a negative factor. /d. at 7-8.
64. Yet that requirement cannot be imposed at the credible fear stage, where discretion is simply irrelevant. Credible fear is defined as "a significant possibility ... the alien can establish eligibility for asylum" or other similar protection. 8 C.F.R. § 208.30 (emphasis added).
Disregardi11g Co11trary Court ofAppeals Ruli11gs
65. The new credible fear policies assert a categorical rule that asylum officers should "apply the case law of the relevant federal circuit court" only "to the extent that those cases are not
inconsistent with Matter ofA-B-." USCIS Guidance at 8-9. 66. This new policy thus asserts that for every statement contained in Matter ofA-B-, the
Attorney General' s opinion is controlling regardless, and credible fear adjudicators will not follow any contrary court ofappeals decisions.
67. Under our Constitutional scheme, however, it is the Judiciary's authority to interpret the Jaw, and the federal agencies cannot categorically disregard federal court rulings.
68. Moreover, because credible fear is a low screening threshold, designed to allow all meritorious cases to reach the asylum application stage, applicants should prevail if any circuit is likely to recognize the validity of her claim .
69. The new credible fear policies also seek to eliminate asylum seekers' ability to rely on federal circuit law by providing that the "relevant federal circuit court" from which to apply
26

decisions-to the extent the guidance permits such reliance at all- ''is the circuit where the removal proceedings will take place if the officer makes a positive credible fear .. . detennination." See, e.g., USCIS Guidance at 8-9. The new credible fear policies then go on to assert that "the asylum officer should faithfully apply precedents of the Board and, if necessary, the circuit where the alien is physically located during the credible fear interview." /d. at 9.
70. This marks a dramatic change in policy. For example, for years, asylum officers have been trained that where circuit courts disagree on an issue of law, "generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard." See, e.g., Refugee, Asylum, and International Operations Directorate Officer Training Asylum Officer Training Course ("RAIO Training Course"), Credible Fear of Persecution and Torture Detenninations (Feb. 13, 20 17), at 17; RAIO Training Course, Credible Fear of Persecution and Torture Determinations (Feb. 28, 2014), at 16 (same); RAIO Training Course, Credible Fear of Persecution and Torture Detenninations (Apr. 14, 2006), at 14 (same). This means that the relevant circuit law to apply is the most favorable circuit on that issue for the asylum seeker. The credible fear policies offer no adequate explanation for this change.
71. The prior policy of giving applicants the benefit of the most favorable circuit Jaw is in keeping with the credible fear standard. If an applicant will prevail under a particular circuit's caselaw, then by necessity there is a significant possibility that she will prevail. The new policies, by contrast, violate the credible fear standard.
72. The new credible fear policies contain numerous other legal errors affecting the credible fear process.
27

73. Taken together, these changes impermissibly distort the credible fear process and undermine Congress's intent that the credible fear standard be a low, threshold standard that would not screen out any potentially meritorious claims.
D. Defendants Sessions' and Nielsen's Public Statements Regarding Their Goal to Undermine Asylum Protections
74. Rather than comply with our asylum laws, Defendant Sessions and Defendant Nielsen have been open about their desire to weaken asylum protections, particularly for victims of domestic violence and gangs from Central America. Indeed, Defendant Sessions has repeatedly expressed his hostility towards such claims, and urged a higher credible fear screening standard in order to speed the removal of such individuals. The new policies seek to advance these goals.
75. For example, in October 2017, speaking to the Executive Office for Immigration Review, Defendants Sessions expressed his apparent view that the "particular social group" ground for asylum protection should not be included in the statute. The Attorney General stated that our asylum laws "are meant to protect those who because of characteristics like their race, religion, nationality, or political opinions cannot find protection in their home countries."2 He did not acknowledge the "particular social group" ground. Instead, he complained that other claimswhich he deemed "insubstantial," "vague," and "subjective" -have "swamped our system."3 Because he listed the other four protected grounds as proper asylum claims, his implication was that claims based on a "particular social group" are insubstantial.
76. Defendant Sessions was also explicit about his goal to "elevate the threshold standard of proof in credible fear interviews.'"'
2 Attorney General Jefferson Beauregard Sessions III, Remarks to the Executive Office for Immigration Review, Falls Church, VA (Oct. 12, 20 17). 3 !d. 4 !d.
28

77. The same day he issued Mauer ofA-B-, he told an audience of immigration judges that "the vast majority of the current asylum claims are not valid."5
78. Defendant Nielsen has likewise been explicit about her goal of heightening the credible fear standard as well, testifying before a January 16, 2018, Senate hearing that "we must tighten case processing standards, including the •credible-fear' standard[.]"6
79. Thus, the unlawful efforts to heighten the credible fear standard evinced in the credible fear policies culminated from Defendants' express desires to change that standard. But neither Defendant Sessions nor Defendant Nielsen have the power to change the credible fear standard, which can be changed only by Congress.
E. The New Credible Fear Policies Place Plaintiffs in Grave Danger 80. Under the correct legal standards, each of the Plaintiffs should have easily passed the credible fear interview and would have been referred for regular removal proceedings to seek asylum. Instead, because of the new credible fear policies, they were each issued a negative credible fear determination.
8 t. Many other bona fide asylum applicants who meet the credible fear standard similarly
have received and will receive negative credible determinations based on the new policies. 82. Defendants' new policies are depriving Plaintiffs and other asylum seekers oftheir right
to pursue potentially meritorious claims for protection. Indeed, immigration service providers across the country have already reported that the new credible fear policies are causing a dramatic increase in the proportion of asylum seekers who receive negative credible fear determinations.
5 Attorney General Jefferson Beauregard Sessions III, Remarks to the Executive Office for Immigration Review Legal Training Program, Washington, D.C. (June I I, 2018). 6 Secretary Kirstjen M. Nielsen, Department of Homeland Security, Testimony at Hearing Before the Senate Committee on Judiciary {Jan. I6, 20 I8).
29

83. The result is that individuals have been and will continue to be sent back to countries that have repeatedly been cited for their pervasive and widespread violence against women and children, including domestic violence, rape, and beatings, and other abuse by gangs. For example, it has been widely recognized, including by the State Department in 2018, that El Salvador has one of the highest homicide rates in the world, and Amnesty International has described El Salvador as "one of the most dangerous countries to be a woman." Numerous other reports, including by the UNHCR, have documented that gender-motivated killings and other murders of women in El Salvador, Honduras and Guatemala are commonplace, and that Central American gangs perpetrate "pervasive, pernicious, and often uncontrollable violence and disruption in the region." Human rights reports have also widely documented the systemic failures in state protection in Central American countries.
84. Indeed, numerous migrants from Central America who were deported from the United States have suffered brutal harms, including death, after returning to their home countries. For example, one study documented that up to 83 individuals deported to Northern Triangle countries between 2014 and 2015 have been killed.
85. Without judicial intervention, the Defendants wiII be able to effectively rewrite the expedited removal scheme and substantive asylum law to achieve the policy goal ofeliminating the ability of Central American refugees to seek safety in the United States.
FIRST CLAIM FOR RELIEF (Refugee Act, Immigration and Nationality Act, Administrative Procedure Act) 86. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 87. Pursuant to 8 U.S.C. § 1252(e)(3), judicial review is available before the Court regarding whether "a written policy directive, written policy guideline, or written procedure issued by or
30

under the authority ofthe Attorney General to implement [8 U.S.C. § 1252(b)] is not consistent with applicable provisions of[Subchapter II of the lNA] or is otherwise in violation of law."
88. The Administrative Procedure Act ("APA·•), 5 U.S.C. § 706, provides that a Court "shall
hold unlawful and set aside agency action, findings, and conclusions found to be--(A) arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."
89. The new credible fear policies relating to Malter ofA-B- violate the lNA and the Refugee
Act and are arbitrary and capricious and contrary to law under the APA for multiple reasons.
Among other reasons, the new policies conflict with the definition of"refugee," see 8 U.S.C. §§ I 101(a)(42)(A), 1158(b)(I)(A); conflict with the credible fear standard at 8 U.S.C. § 1225(b)( I)(B)(v); represent a departure from the agency's longstanding policy without an
acknowledgement of or a reasoned explanation for that departure; are illogical and irrational; and deprive credible fear applicants of a meaningful opportunity to establish their potential eligibility for asylum pursuant to 8 U.S.C. §§ 1158(b)(l) and 1225(b)(l}(B).
SECOND CLAIM FOR RELIEF (Separation of Powers, Immigration and Nationality Act,
Administrative Procedure Act) 90. All ofthe foregoing allegations are repeated and realleged as if fully set forth herein. 91 . The doctrine of separation of powers is embodied in the U.S. Constitution. The Constitution establishes the paramount authority of the Judiciary to interpret the law-"to say what the law is," Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803)-and to render decisions that bind the other branches of government in our constitutional system. The Executive Branch-like Congress-is bound by the decisions issued by the federal courts. Respect for the controlling
31

authority ofjudicial opinions and judgments is a fundamental component of the rule of law. The new credible fear policies violate the separation of powers; violate the INA, including the credible fear standard at 8 U.S.C. § 1225(b)( I)(B)(v); and are arbitrary and capricious and contrary to law under the APA.
92. In addition, the new mandate to ignore contrary circuit court precedent, and to apply only the case law in the circuit where the credible fear applicant is detained, is arbitrary and capricious and contrary to law in violation ofthe APA.
THIRD CLAIM FOR RELIEF (Due Process Clause of the Fifth Amendment to the United States Constitution) 93. All ofthe foregoing allegations are repeated and realleged as if fully set forth herein. 94. Plaintiffs have protected interests in applying for asylum, withholding of removal, and Convention Against Torture relief upon a showing that meets the applicable standards, and in not being removed to a country where they face serious danger and potential loss of life. 95. Plaintiffs are entitled under the Due Process Clause to a fair hearing of their claims, and a meaningful opportunity to establish their potential eligibility for asylum and related relief from removal. 96. The new credible fear policies relating to Matter ofA-B- have violated Plaintiffs' right to due process in numerous respects, including by foreclosing their claims regardless of their individual facts or merits; by applying an unlawful, more burdensome legal standard to Plaintiffs' claims; and by depriving them ofa meaningful opportunity to establish their potential eligibility for asylum and related relief.
32

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray this Court to:
a. Declare the new credible fear policies (including but not limited to Malter ofA-B-, the USCIS Guidance, and all written credible fear guidance issued by DHS and DOJ relating to Malter ofA-B-) contrary to law;
b. Enter an order vacating the new credible fear policies (including but not limited to Malter ofA-B-, the USCIS Guidance, and all written credible fear guidance issued by DHS and DOJ relating to Malter ofA-B-);
c. Enter an order enjoining Defendants from continuing to apply the new credible fear policies (including but not limited to Matter ofA-B-, the USCIS Guidance, and all written credible fear guidance issued by DHS and DOJ relating to Maller ofA-B-) to credible fear determinations, interviews, or hearings issued or conducted by asylum officers or immigration judges;
d. Enter an order staying the expedited removal of each of the Plaintiffs and vacating the expedited removal orders issued to each ofthe Plaintiffs;
e. Enter an order enjoining Defendants from removing the Plaintiffs without first providing each of them with a new credible fear process under correct legal standards or, in the alternative, full immigration court removal proceedings pursuant to 8 U.S.C. § 1229a; and, for any Plaintiffs who have been removed pursuant to an expedited removal order prior to the Court's order, to parole those Plaintiffs into the United States for the duration of those credible fear and/or removal proceedings;
33

f. Award Plaintiffs' counsel reasonable attorneys' fees under the Equal Access to Justice Act, and any other applicable statute or regulation; and
g. Grant such further relief as the Court deems just, equitable, and appropriate.

Dated: August 7, 2018
Jennifer Chang Newell** Katrina Eiland** Cody Wofsy** American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0774
Judy Rabinovitz** Omar C. Jadwat** Lee Gelernt• • Celso J. Perez*** (D.C. Bar No. I034959) American Civil Liberties Union Foundation, Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
Sandra S. Park** Lenora M. Lapidus American Civil Liberties Union Foundation, Women's Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 519-7871
Attorneysfor Plaintiffs
**Pro hac vice applicationforthcoming ***Admission to D.D.C.forthcoming

Respectfully submitted,
~--
Scott Michelman (D.C. Bar No. I006945) Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union Foundation
ofthe District ofColumbia 915 15th Street NW, Second Floor Washington, D.C. 20005 (202) 457-0800
Eunice Lee** Karen Musalo** Anne Dutton** Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 (415) 565-4877
Thomas Buser-Ciancy Andre Segura ACLU Foundation ofTexas P.O. Box 8306 Houston, TX 77288 (713) 942-8146

34

 
 Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 1 of 37 et al. et al. AMICI CURIAE
Counsel for Amici Curiae

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 2 of 37
Amici Curiae amici

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 3 of 37

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 4 of 37

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 5 of 37

Agbor v. Gonzales

Al-Ghorbani v. Holder

Aldana-Ramos v. Holder Ali v. Ashcroft

as amended

Asylum Officer Basic Training: Credible Fear

Balasubramanrim v. I.N.S.

Cece v. Holder

Constanza-Martinez v. Holder

Crespin-Valladares v. Holder

Cruz v. Sessions

Doe v. Holder

Garcia v. U.S. Att’y Gen. Gibson Wine Co. v. Snyder

as amended

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 6 of 37

In re Kasinga Jonaitiene v. Holder Kante v. Holder Karki v. Holder Malu v. U.S. Att’y Gen. Marroquin-Ochoma v. Holder Matter of A-BMatter of A-M-E- J-G-UMatter of A-R-C-GMatter of Acosta Matter of M-E-V-GMatter of S-AMatter of W-G-RMirisawo v. Holder

passim

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 7 of 37
Mohammed v. Gonzales Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co Mulyani v. Holder Nabulwala v. Gonzales Ndayshimiye v. U.S. Att’y Gen Oliva v. Lynch Pacas-Renderos v. Sessions Paloka v. Holder Penick Corp. v. DEA Qu v. Holder R.R.D. v. Holder R-A Ramaprakash v. F.A.A Sarhan v. Holder

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 8 of 37
Senathirajah v. I.N.S. Singh v. Gonzales Tesfamichael v. Gonzales Vata v. Gonzalez Zhang v. Holder

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 9 of 37

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 10 of 37

Women

Understanding Violence Against

Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Mission to Afghanistan

Handbook on Procedures and Criteria for Determining Refugee Status
The World’s Women 2010

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 11 of 37

amici

amici

See

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 12 of 37

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 13 of 37

In re Kasinga

Matter of A-B-

Matter of A-B-

will not qualify for asylum Id.
are unlikely to satisfy the statutory grounds Id.
Matter of A-R-C-G-

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 14 of 37

lack the particularity

. . . .” Id.

likely

Matter of A-B-

Matter of A-BMatter of A-B-

outside

Matter of A-B-

Matter of A-B-

A-R-C-G-”

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 15 of 37

amici

Matter of A-B-

Zhang v. Holder Asylum Officer Basic Training: Credible Fear

e.g., Gibson Wine Co. v. Snyder See Mulyani v. Holder

See, Mirisawo v. Holder

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 16 of 37

Pacas-Renderos v. Sessions Oliva v. Lynch

Matter of A-Bcan

See Matter of Acosta
every excluding

every amici

amici

Amici Penick Corp. v. DEA

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 17 of 37

Matter of A-B-

MATTER OF A-B-

A-R-C-G-

Matter of A-R-C-GMatter of A-B-

Ramaprakash v. F.A.A

A-R-C-Gwas effectively defined

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 18 of 37 A-B-

Matter of W-G-RJ-G-Uexclusively

Matter of M-E-V-G-

solely Matter of A-M-E-

Escobar merely Jonaitiene v. Holder Escobar
Cece v. Holder

only solely

M-E-V-G-

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 19 of 37
See Agbor v. Gonzales Sarhan v. Holder
Cece

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 20 of 37 only

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 21 of 37

2010

The World’s Women

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 22 of 37

Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Mission to Afghanistan

Rights Report

See

Burma 2016 Human

Cameroon 2017 Human Rights Report

Haiti 2016 Human Rights Report

Understanding Violence Against Women See

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 23 of 37
See Russia 2016 Human Rights Report

Id
Arabia 2016 Human Rights Report 2016 Human Rights Report
Kenya 2016 Human Rights Report

Saudi Armenia See

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 24 of 37

Aldana-Ramos v. Holder see also Matter of S-A-
Sarhan v. Holder
Al-Ghorbani v. Holder
Nabulwala v. Gonzales Mohammed v. Gonzales
Ashcroft

as amended Ali v.

See also Malu v. U.S. Att’y Gen. R.R.D. v. Holder
Martinez v. Holder Karki v. Holder as amended Crespin-Valladares v. Holder
Tesfamichael v. Gonzales Procedures and Criteria for Determining Refugee Status

Paloka v. Holder Constanza-
Doe v. Holder Garcia v. U.S. Att’y Gen.
Kante v. Holder

see also

Handbook on

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 25 of 37 Aldana-Ramos

A-R-C-G-
whatsoever Matter of A-B-
See R-A

no reference to any evidence

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 26 of 37

Qu v. Holder

see also Sarhan
Aldana Ramos Ndayshimiye v. U.S. Att’y Gen

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 27 of 37

Marroquin-Ochoma v. Holder

See also Vata v. Gonzalez on account of

Crespin-Vallardes

Cruz v. Sessions see also Al-Ghorbani v. Holder

MATTER OF A-B-

Matter of A-B-

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 28 of 37

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 29 of 37

could

possibility

not

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 30 of 37 Id.
Id.

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 31 of 37 Id.
See, e.g., Senathirajah v. I.N.S. Balasubramanrim v. I.N.S.

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 32 of 37 Singh v. Gonzales

See, e.g. Balasubramanrim

Holder Credible Fear

Zhang v. Asylum Officer Basic Training:

Matter of A-BMatter of A-B-

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 33 of 37
Matter of A-BSee

Matter of A-BMatter of A-B-

See available at

Matter of A-BSee
Matter of A-BSee Guidance

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 34 of 37
not Matter of A-BMatter of A-B-
could not

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 35 of 37 Counsel for Amici Curiae

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 36 of 37 amici

Case 1:18-cv-01853-EGS Document 80 Filed 10/02/18 Page 37 of 37

 
 Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRACE, et al.,
Plaintiffs,
v.
JEFFERSON BEAUREGARD SESSIONS, III, in his official capacity as Attorney General of the United States, et al.,
Defendants.

Civil Action No. 1:18-cv-01853-EGS

BRIEF OF ADMINISTRATIVE LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

September 28, 2018

Derek T. Ho (D.C. Bar #488609) Rachel Proctor May (Admission pending) Christopher M. Sarma (Admission pending) KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 dho@kellogghansen.com rmay@kellogghansen.com csarma@kellogghansen.com
Counsel for Amici Curiae

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 2 of 23

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .......................................................................................................... ii
INTEREST AND IDENTITY OF AMICI CURIAE .......................................................................1
INTRODUCTION ...........................................................................................................................3
ARGUMENT ...................................................................................................................................3
I. PLAINTIFFS’ ARGUMENTS ARE GROUNDED IN SETTLED CHEVRON PRINCIPLES ...................................................................................................................3
A. Chevron Applies Only To Certain Agency Interpretations ......................................4
B. The Step One Inquiry Asks Whether Congress Has Left A Gap For The Agency To Fill With Regard To A Specific Issue.....................................................5
C. Matter of A-B- Merits Deference Only To The Extent It Is A Reasonable Construction Of The Statute ....................................................................................10
II. THE GUIDANCE DIRECTING ASYLUM OFFICERS TO DISREGARD ALL CIRCUIT PRECEDENT CONTRARY TO MATTER OF A-B-VIOLATES BRAND X ......................................................................................................................12
CONCLUSION ..............................................................................................................................14

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 3 of 23

TABLE OF AUTHORITIES

CASES

PAGE(S)

A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C. Cir. 1995) ................................................................................................... 10

Alabama Educ. Ass’n v. Chao, 455 F.3d 386 (D.C. Cir. 2006) ..................................................................................................... 4

Auer v. Robbins, 117 S. Ct. 905 (1997) ................................................................................................................... 9

Aurora Packing Co. v. NLRB, 904 F.2d 73 (D.C. Cir. 1990) ....................................................................................................... 9

B & H Med., LLC v. United States, 116 Fed. Cl. 671 (2014) ............................................................................................................... 9

Bush-Quayle ’92 Primary Comm., Inc. v. Fed. Election Comm’n, 104 F.3d 448 (D.C. Cir. 1997) ..................................................................................................... 4

Chamber of Comm. of United States of Am. v. Dep’t of Labor, 885 F.3d 360 (5th Cir. 2018)...................................................................................................... 11

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ............................................................................................................ passim

City of Arlington v. FCC, 569 U.S. 290 (2013) ................................................................................................................... 10

Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) ................................................................................................... 12

Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152 (1993) ..................................................................................................................... 9

Comm’r v. Noel’s Estate, 380 U.S. 678 (1965) ..................................................................................................................... 9

Costanzo v. Tillinghast, 287 U.S. 341 (1932) ..................................................................................................................... 8

Dada v. Mukasey, 554 U.S. 1 (2008) ....................................................................................................................... 11

ii

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 4 of 23
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015).................................................................................................. 12
District of Columbia v. Dep’t of Labor, 819 F.3d 444 (D.C. Cir. 2016) ............................................................................................... 6, 10
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................................................................................................... 12
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ................................................................................................................. 4, 5
Fernandez v. Keisler, 502 F.3d 337 (4th Cir. 2007)...................................................................................................... 12
Fin. Plan. Ass’n v. SEC, 482 F.3d 481 (D.C. Cir. 2007) ............................................................................................. 5, 7, 9
Fitzpatrick v. Morgan S., Inc., 261 F. Supp. 2d 978 (W.D. Tenn. 2003) ............................................................................... 13-14
Florentino-Francisco v. Lynch, 611 F. App’x 936 (10th Cir. 2015)............................................................................................. 14
Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012)...................................................................................................... 12
Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004) ..................................................................................................................... 7
Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007)...............................................................................................12-13
Grant Med. Ctr. v. Burwell, 204 F. Supp. 3d 68 (D.D.C. 2016) ............................................................................................. 13
Harris v. Garner, 216 F.3d 970 (11th Cir. 2000)...................................................................................................... 9
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ........................................................................................................... 7, 8, 10
Judulang v. Holder, 565 U.S. 42 (2011) ............................................................................................................... 10, 12
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Kaufman v. Nielsen, 896 F.3d 475 (D.C. Cir. 2018) ..................................................................................................... 4
King v. Burwell, 135 S. Ct. 2480 (2015) ................................................................................................................. 5
Lorillard v. Pons, 434 U.S. 575 (1978) ..................................................................................................................... 8
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018)......................................................................................... passim
Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) .............................................................................................. 6, 7
Mercy Home Health v. Leavitt, 436 F.3d 370 (3d Cir. 2006)....................................................................................................... 13
Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006)...................................................................................................... 14
Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747 (D.C. Cir. 2000) ............................................................................................. 10, 11
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................................................................................................... 3, 12, 13, 14
Negusie v. Holder, 555 U.S. 511 (2009) ................................................................................................................... 11
NLRB v. New Vista Nursing & Rehab., 870 F.3d 113 (3d Cir. 2017)....................................................................................................... 13
Northpoint Tech., Ltd. v. FCC, 412 F.3d 145 (D.C. Cir. 2005) .............................................................................................. 11-12
Pereira v. Sessions, 138 S. Ct. 2105 (2018) ............................................................................................................. 5, 7
Pharm. Res. & Mfrs. of Am. v. Thompson, 251 F.3d 219 (D.C. Cir. 2001) ..................................................................................................... 8
Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) ....................................................................................................... 9
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Sealed Case, In re, 449 F.3d 118 (D.C. Cir. 2006) ................................................................................................... 13
SEC v. Baker, No. A-12-CA-285-SS, 2012 WL 5499497 (W.D. Tex. Nov. 13, 2012) ......................................................................... 13
Sekhar v. United States, 570 U.S. 729 (2013) ..................................................................................................................... 8
Shapiro v. United States, 335 U.S. 1 (1948) ......................................................................................................................... 8
United States v. Eurodif S. A., 555 U.S. 305 (2009) ................................................................................................................... 13
United States v. Home Concrete & Supply, LLC, 566 U.S. 478 (2012) ..................................................................................................................... 7
United States v. Mead Corp., 533 U.S. 218 (2001) ............................................................................................................... 5, 14
Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006)...................................................................................................... 14
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ................................................................................................................... 11
STATUTES 8 U.S.C. § 1101(a)(42).................................................................................................................... 6 8 U.S.C. § 1158(b)(2)(A)(i) ............................................................................................................ 6
OTHER AUTHORITIES Alina Das, Unshackling Habeas Review: Chevron Deference and Statutory
Interpretation in Immigration Cases, 90 N.Y.U. L. Rev. 143 (2015) ......................................... 4 Antonin Scalia & Bryan A. Garner, Reading The Law: The Interpretation of
Legal Texts, 322 (2012) ............................................................................................................... 8 Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006) ................................................. 4 Felix Frankfurter, Some Reflections on the Reading of Statutes,
47 Colum. L. Rev. 527 (1947) .................................................................................................... 8
v

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 7 of 23 Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent
L. Rev. 1253 (1997)................................................................................................................... 10 Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833 (2001) ............ 4
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INTEREST AND IDENTITY OF AMICI CURIAE1 Amici are law professors who specialize in administrative law, statutory interpretation, and immigration law. Through their academic work, amici are knowledgeable about the Chevron issues presented in this case. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). They are interested in this case because it implicates fundamental questions about the balance between judicial and executive branch authority to interpret Congress’s statutory direction. Amici do not address the underlying immigration law issues addressed in the Plaintiffs’ brief. They instead seek to contextualize the parties’ arguments within the broader administrative law framework the Court will apply to determine how much, if any, of Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), merits deference. Amici are the following scholars: • Lenni B. Benson, Professor of Law, New York Law School; • Michael J. Churgin, Raybourne Thompson Centennial Professor, University of Texas School of Law; • David Freeman Engstrom, Professor of Law and Associate Dean, Stanford Law School; • Jill E. Family, Commonwealth Professor of Law and Government, Widener University Commonwealth Law School; • Daniel A. Farber, Sho Sato Professor of Law, University of California, Berkeley; • Lauren Gilbert, Professor of Law, St. Thomas University School of Law; • David Marcus, Professor of Law, UCLA School of Law;
1 Counsel for amici curiae state that (1) this brief was written by counsel for amici curiae and not by counsel for any party, in whole or in part; (2) no party or counsel for any party contributed money that was intended to fund preparing or submitting the brief; and (3) apart from amici curiae and their counsel, no person contributed money that was intended to fund preparing or submitting the brief. Pursuant to the Court’s minute order of August 29, 2018, amici curiae further state that all parties have consented to the filing of this brief.

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 9 of 23 • Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, George Washington University
School of Law; • Shruti Rana, Professor of International Law Practice, School of Global and International
Studies, Indiana University Bloomington; • Susan Rose-Ackerman, Henry R. Luce Professor of Law and Political Science, Emerita,
Yale University; • Jonathan Weinberg, Associate Dean for Research & Faculty Development and Professor
of Law, Wayne State University.
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INTRODUCTION Plaintiffs rely on settled precedent to argue that Matter of A-B- does not merit wholesale deference. Rather, a faithful application of settled principles of administrative law requires the Court to determine whether the Chevron framework applies to each statutory issue raised in Matter of A-B-; whether Congress left a gap for the Attorney General to fill; and whether the Attorney General filled any such gap in a way that is consistent with the statutory framework. Each statutory question requires its own analysis. Because Matter of A-B- does not merit blanket deference, the Attorney General and the United States Citizenship and Immigration Services Guidance (the “Guidance”) claim impermissible agency prerogative in directing asylum officers to disregard circuit law inconsistent with anything in Matter of A-B-. While the Guidance invokes National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 982 (2005), for the premise that agency interpretations can trump prior judicial interpretations, that premise is true only to the extent that an agency has reasonably interpreted an ambiguous statutory term that Congress authorized it to interpret. The court should reject the Attorney General’s expansive claims, and faithfully apply the well-established Chevron framework.
ARGUMENT I. PLAINTIFFS’ ARGUMENTS ARE GROUNDED IN SETTLED CHEVRON
PRINCIPLES This Court’s assessment of how much, if any, of Matter of A-B- merits deference implicates the two-step framework defined in Chevron, 467 U.S. at 842. Chevron is, at its core, a search for a statutory “gap” and an inquiry into the scope and boundaries of that gap. See Brand X, 545 U.S. at 982 (“Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.”). Its theoretical basis is that a statutory ambiguity represents a congressional
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“delegation of authority to the agency” that administers that statute to interpret that “specific provision.” Chevron, 467 U.S. at 843-44; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (confirming “implicit delegation” theory). In determining how much of Matter of A-B- merits deference, the Court must first determine whether Congress has “directly spoken to the precise question at issue,” and, if so, give effect to that “unambiguously expressed intent.” Chevron, 467 U.S. at 844. If Congress instead “left a gap for the agency to fill,” id., the Court must “consider ‘whether the agency’s answer is based on a permissible construction of the statute.’ ” Kaufman v. Nielsen, 896 F.3d 475, 482 (D.C. Cir. 2018) (quoting Chevron, 467 U.S. at 842-43). A review of these principles demonstrates that Matter of A-B- speaks to a wide range of issues that – assuming Plaintiffs are correct on the underlying issues of immigration law – do not warrant deference.
A. Chevron Applies Only To Certain Agency Interpretations The Court’s inquiry begins by asking whether the Chevron framework properly applies – an analysis referred to as “step zero” in academic literature.2 This inquiry is necessary because “[n]ot every agency interpretation of a statute is appropriately analyzed under Chevron.” Alabama Educ. Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006). As a starting point, Chevron applies to only issues of statutory interpretation arising from a statute the agency administers. Bush-Quayle ’92 Primary Comm., Inc. v. Fed. Election Comm’n, 104 F.3d 448, 452 (D.C. Cir. 1997). Moreover, a number of agency interpretations do not fall within the two-step
2 See generally Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833 (2001) (defining the term Chevron “Step Zero”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006) (discussing situations in which courts do not apply the Chevron framework). Some scholars have also suggested that separation of powers concerns must eclipse agency deference in certain immigration contexts. See, e.g., Alina Das, Unshackling Habeas Review: Chevron Deference and Statutory Interpretation in Immigration Cases, 90 N.Y.U. L. Rev. 143 (2015) (arguing that Chevron deference should not apply to the BIA’s interpretation of immigration detention provisions in the context of habeas corpus).
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Chevron framework, such as when an agency does not “set out with a lawmaking pretense in mind,” United States v. Mead Corp., 533 U.S. 218, 233 (2001); interprets a statute it does not administer, Brown & Williamson, 529 U.S. at 159; or addresses a “question of deep ‘economic and political significance’ that is central to [a] statutory scheme,” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). These limitations are important both as part of the Court’s overall inquiry and because they underscore the need to preserve Chevron within its proper boundaries. See also Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J. concurring) (referring to “reflexive deference” as “troubling”).
B. The Step One Inquiry Asks Whether Congress Has Left A Gap For The Agency To Fill With Regard To A Specific Issue
The formal Chevron inquiry begins by asking whether Congress has “unambiguously expressed” its intent with regard to a particular issue, or left a “gap for the agency to fill.” Chevron, 467 U.S. at 844. Because the focus is on each “specific issue,” Fin. Planning Ass’n v. SEC, 482 F.3d 481, 487 (D.C. Cir. 2007), the entire Matter of A-B- opinion is not automatically afforded deference if this Court concludes that one of the terms that Matter of A-B- interprets is ambiguous. Contra Defendants’ Memorandum Of Law In Support Of Their Motion For Summary Judgment at 26-27 (Sept. 12, 2018), ECF No. 57-1 (“Defs.’ Mem.”). Rather, the Court must separately address each of an agency’s claims of authority to interpret a particular statutory gap. For example, Plaintiffs challenge the requirement that asylum applicants who fear nongovernmental persecutors must show their home government “condoned” their persecution or “demonstrated a complete helplessness” to protect them. Plaintiffs’ Memorandum In Support Of Their Cross Motion For Summary Judgment And Opposition To Defendants’ Motion For Summary Judgment at 38-39, 56 (Sept. 26, 2018), ECF No. 64-1 (“Pls.’ Mem.”). They argue that the longstanding “unable or unwilling” standard was a well-established construction of the
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term “persecution” at the time the 1980 Refugee Act was enacted, and was therefore incorporated into that Act when it used the word “persecution.” Id. Amici do not address the merits of this argument, but it illustrates two important features of the first step of Chevron.
First, as noted, the Court must apply the first Chevron step to the specific issue on which the agency seeks deference. The government argues that Matter of A-B- is entitled to deference because it interpreted a statutory term, “particular social group,” which is one of the five protected grounds on the basis of which an applicant can seek asylum. See 8 U.S.C. § 1158(b)(2)(A)(i). But, to the extent that the Attorney General’s discussion of the “condoned or complete helplessness” standard in Matter of A-B- is an interpretation of the asylum statutes, it cannot be an interpretation of “particular social group” – as both Matter of A-B- and the government’s brief recognize, the “unable or unwilling” standard is an interpretation of the separate term “persecution.” See 27 I. & N. Dec. at 337 (“Board precedents have defined ‘persecution’ ” to include the requirement that “the harm or suffering must be ‘inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.’ ”) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)); Defs.’ Mem. 4; 8 U.S.C. § 1101(a)(42) (a “refugee” eligible for asylum is one who is “persecuted or who has a well-founded fear of persecution on account of,” among other things, “membership in a particular social group”).3 Thus, Plaintiffs’ argument that the new formulation violates the settled construction at the time Congress enacted the term “persecution” is properly assessed
3 To the extent that the government argues that Matter of A-B- adopts this formulation because it has been “used in published decisions” of three courts of appeals, Defs.’ Mem. 29, that discussion does not merit deference, because the Chevron framework applies to agency interpretations of congressional gaps in a statute the agency administers, District of Columbia v. Dep’t of Labor, 819 F.3d 444, 449 (D.C. Cir. 2016), not to agency interpretations of judicial opinions.
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under Chevron as a distinct question from the interpretation of “particular social group.” The distinction between the two interpretive tasks is particularly important because the government previously concluded Congress used the term “persecution” to incorporate a precise meaning. Matter of Acosta, 19 I. & N. Dec. at 222-23 (concluding, in adopting the “unable or unwilling” standard, that Congress “intended” the term to incorporate the “judicial and administrative construction” of the term “persecution” existing at the time).
Second, the kind of argument Plaintiffs have offered on this issue is well-established as a way to demonstrate that Congress has answered the question at issue at Chevron step one. The Chevron framework directs this Court to use the “traditional tools of statutory construction” to discern whether “Congress had an intention on the precise question at issue.” Chevron, 467 U.S. at 843 n.9; see also id. (courts must “reject administrative constructions which are contrary to clear congressional intent”). Whether a statute displays a clear congressional intent or left a gap to fill is a “pure question of statutory construction” that is “for the courts to decide.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).
The question is not whether a term is linguistically ambiguous (although such ambiguity is relevant). Rather, courts rely on the full range of tools for interpreting a statute, including the “text, structure, and the overall statutory scheme, as well as the problem Congress sought to solve.” Fin. Planning Ass’n, 482 F.3d at 487; see Pereira, 138 S. Ct. at 2113 (Chevron deference inapplicable where the Court concluded, based on the text, statutory context, and “common sense,” that Congress had “supplied a clear and unambiguous answer to the interpretive question at hand”); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (finding “clear sense of congressional intent” in statute’s “text, structure, purpose,” “history,” and “relationship to other federal statutes”). For example, in United States v. Home
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Concrete & Supply, LLC, 566 U.S. 478, 488-89 (2012), the plurality observed that, despite some “linguistic ambiguity,” Congress had clearly spoken to the issue based on the text, statutory context, legislative history, and the fact that the agency’s interpretation would create “patent incongruity” within the statutory scheme. See also Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001) (concluding that, although the word “payment” was susceptible to several meanings, Congress had clearly spoken to the issue and left no gap for the agency to fill).
Of particular relevance to Matter of A-B- is the longstanding principle that Congress is presumed to have incorporated prior administrative and judicial interpretations of a statute when it uses the same language in a subsequent enactment. See Sekhar v. United States, 570 U.S. 729, 733 (2013) (explaining that “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it”) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (Congress is aware of interpretations of a statute and is presumed to adopt them when it re-enacts them without change); Shapiro v. United States, 335 U.S. 1, 16 (1948) (Congress presumed to have incorporated “settled judicial construction” of statutory language through re-enactment); Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932) (when Congress re-enacts the term with “consistent construction” by agency, the court presumes that Congress did not intend to change that interpretation); cf. Cardoza-Fonseca, 480 U.S. at 439-40 (conclusion regarding congressional intent supported by academic understandings of the relevant term). This rule applies to any use of “words or phrases that have already received authoritative construction.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).
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Thus, when Congress uses a term with a settled meaning, it demonstrates a clear congressional intent for purposes of the first Chevron step. See Fin. Planning Ass’n, 482 F.3d at 490 (longstanding agency understanding of statutory language supports conclusion that statutory meaning is “unambiguous”); cf. B & H Med., LLC v. United States, 116 Fed. Cl. 671, 685 (2014) (a term with a “judicially settled meaning” is “not ambiguous” for purposes of deference under Auer v. Robbins, 117 S. Ct. 905 (1997)). For example, in Prudencio v. Holder, the Fourth Circuit held that the term “involving” is unambiguous under Step One because it is used as part of a term of art with long-settled meaning. 669 F.3d 472, 482 (4th Cir. 2012); cf. Aurora Packing Co. v. NLRB, 904 F.2d 73, 75 (D.C. Cir. 1990) (holding that Chevron deference does not apply to agency’s interpretation of “employee” where Congress intended the term to incorporate “common law agency principles”). Courts interpreting statutes in a wide range of circumstances have treated settled interpretations that exist upon enactment as part of the “plain meaning” of the statute. Harris v. Garner, 216 F.3d 970, 973-975 (11th Cir. 2000) (“plain meaning” requires interpreting statutory term in line with settled meaning at the time of enactment) (citing Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993)). This principle applies in full force to administrative constructions. See Commissioner v. Noel’s Estate, 380 U.S. 678, 682 (1965) (“longstanding administrative interpretation” not addressed by subsequent re-enactments and amendments to statute, has “received congressional approval and has the effect of law”).
Thus, Plaintiffs correctly argue that Congress’s use of “persecution” is unambiguous for purposes of Step One if it incorporates prior judicial or administrative constructions of the “unable or unwilling” standard.
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C. Matter of A-B- Merits Deference Only To The Extent It Is A Reasonable Construction Of The Statute
Plaintiffs also correctly rely on established Chevron doctrine in arguing that various aspects of Matter of A-B- merit no deference, even if assessed under Step Two. At the second step, a court will defer to the agency’s approach if it is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 842. As in Step One, the Court needs to decide whether the agency’s choice stayed within its congressionally delegated bounds. But, while Step One looks to whether Congress clearly addressed a specific issue or left a gap for the agency to fill, Step Two looks to whether, in filling that gap, the agency’s interpretation was reasonable and not arbitrary. See City of Arlington v. FCC, 569 U.S. 290, 307 (2013) (“[W]here Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.”); Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000) (Step Two does not allow a court to “rubber stamp agency actions” because to do so would be “tantamount to abdicating the judiciary’s responsibility under the Administrative Procedure Act”) (quoting A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1491 (D.C. Cir. 1995)). The Step Two inquiry thus overlaps with the question whether an agency action is arbitrary and capricious. See Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011) (Step Two analysis asks “whether an agency interpretation is arbitrary or capricious in substance”) (internal quotation marks omitted); Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir. 2005) (same); Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1268 (1997) (noting overlap).
Under Step Two, the Court again employs the traditional tools of statutory interpretation, including the text, statutory structure, and practical implications of the agency’s interpretation on the statutory scheme as a whole. See, e.g., District of Columbia, 819 F.3d at 454 (agency’s interpretation was “unreasonable in light of the statute’s text, structure, and purpose” because it
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significantly expanded the reach of the statute and had other practical results inconsistent with the statute as “long understood”). This approach reflects the core Chevron theory that statutory gaps are a delegation of authority to the agency to answer a specific question in a reasonable way. See Negusie v. Holder, 555 U.S. 511, 523 (2009). It follows from this principle that the agency is not authorized to address matters outside the gap, and that the agency will employ reasoned decision making. It also reflects the core interpretive principle that statutes are not interpreted by “look[ing] merely to a particular clause,” but are considered “in connection with . . . the whole statute.” Dada v. Mukasey, 554 U.S. 1, 16 (2008).
Thus, Plaintiffs’ arguments that aspects of Matter of A-B- are not entitled to deference because they are unreasonable are grounded in Step Two doctrine. For example, Plaintiffs argue that some of the challenged policies related to Matter of A-B- are illogical. See, e.g., Pls.’ Mem. 29. “Illogic and internal inconsistency are characteristic of arbitrary and unreasonable agency action.” Chamber of Commerce of United States of Am. v. Dep’t of Labor, 885 F.3d 360, 382 (5th Cir. 2018), judgment entered sub nom. Chamber of Commerce of Am. v. Dep’t of Labor, No. 17-10238, 2018 WL 3301737 (5th Cir. June 21, 2018). Likewise, Plaintiffs point to a number of ways in which the challenged policies are inconsistent with other parts of the asylum statutes. See, e.g., Pls.’ Mem. 39-40, 43-44. Assuming the Court does not resolve these inconsistencies at Step One, an interpretation is not reasonable if it is “at odds with the structure and manifest purpose” of the statute. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 486 (2001) (invalidating statute under Step Two); Daley, 209 F.3d at 755 (interpretation that conflicts with goals of statute and lacked reasoned analysis fails at Step Two). Finally, a statute is also unreasonable if it represents an “unexplained departure from prior [agency] policy and practice.” Northpoint Tech., 412 F.3d at 156 (interpretation that represents unexplained prior departure held
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unreasonable); Comcast Corp. v. FCC, 600 F.3d 642, 659 (D.C. Cir. 2010) (interpretation of statute unreasonable where it “depart[ed] from prior policy sub silentio”) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). Thus, Plaintiffs’ arguments that various policies related to Matter of A-B- fail because they are unreasonable are grounded in established principles of Chevron and statutory interpretation. II. THE GUIDANCE DIRECTING ASYLUM OFFICERS TO DISREGARD ALL
CIRCUIT PRECEDENT CONTRARY TO MATTER OF A-B- VIOLATES BRAND X Plaintiffs likewise invoke well-established principles of administrative law in arguing that the Guidance, which implements Matter of A-B- and directs asylum officers to “apply the case law of the relevant federal circuit court, [only] to the extent that those cases are not inconsistent with Matter of A-B-,” improperly ignores binding judicial authority. See Guidance at 8. An agency interpretation of a statute can trump a prior judicial construction only if, at Step One, a court concludes that Congress left a gap for the agency to fill. Brand X, 545 U.S. at 982.4 This is because, if a statute is unambiguous, it “contains no gap for the agency to fill,” and an agency interpretation gets no deference. Id. at 983; see also Fernandez v. Keisler, 502 F.3d 337, 347 (4th Cir. 2007) (“Chevron step one remains Chevron step one after Brand X ”) (quoting Chevron, 467 U.S. at 842). And even if a statute has been deemed ambiguous, Brand X permits the Court to defer to an agency’s interpretation only if the interpretation is reasonable.5 See, e.g., Gonzales
4 Brand X also does not apply if an agency decision “is not an interpretation of any statutory language.” Judulang, 565 U.S. at 52 n.7. 5 Courts have also suggested that only the judiciary – and not agencies – have authority to determine whether Brand X applies. See, e.g., De Niz Robles v. Lynch, 803 F.3d 1165, 1174 n.7 (10th Cir. 2015) (Gorsuch, J.) (“An agency in the Chevron step two/Brand X scenario may enforce its new policy judgment only with judicial approval.”); Garfias-Rodriguez v. Holder, 702 F.3d 504, 514 n.7 (9th Cir. 2012) (explaining that even under Brand X, the courts “still retain ultimate authority to determine whether to defer to the agency’s interpretation”). To the extent that the Guidance directs officers to apply Matter of A-B-, notwithstanding any potential judicial
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v. Dep’t of Homeland Sec., 508 F.3d 1227, 1241 (9th Cir. 2007) (explaining that for a BIA interpretation to be entitled to Chevron deference under Brand X, the interpretation must be reasonable); cf. NLRB v. New Vista Nursing & Rehab., 870 F.3d 113, 135 n. 14 (3d Cir. 2017) (explaining in dicta that “Chevron or Brand X deference would not allow us to adopt an unreasonable interpretation”).
In ruling on the merits of Plaintiffs’ claims for relief, this Court should recognize that Matter of A-B-, as implemented through the Guidance, cannot trump prior judicial precedent to the extent that the Attorney General has attempted to interpret unambiguous terms. Brand X, 545 U.S. at 982. In the alternative, if the Court determines that aspects of Matter of A-B- fail at Step Two, then Brand X does not authorize the agency to reject the relevant circuit authority. See United States v. Eurodif S. A., 555 U.S. 305, 316 (2009) (noting that, even under Brand X, a court need not accept an agency’s “unreasonable resolution of language that is ambiguous”).
Moreover, to the extent that the Attorney General has opined in Matter Of A-B- on matters that are not dispositive to his decision, these views are mere dicta. See In re Sealed Case, 449 F.3d 118, 123 (D.C. Cir. 2006) (explaining that language in an opinion is dicta if it is unnecessary to the “disposition of the case”). Several courts have not granted Chevron deference to dicta in agency opinions. See, e.g., Mercy Home Health v. Leavitt, 436 F.3d 370, 379 (3d Cir. 2006) (dismissing an agency determination as “mere dicta”); SEC v. Baker, No. A-12-CA-285SS, 2012 WL 5499497, at *11 (W.D. Tex. Nov. 13, 2012) (assigning no deference to “agency equivalents of dicta”); but see Fitzpatrick v. Morgan S., Inc., 261 F. Supp. 2d 978, 986 (W.D. Tenn. 2003) (explaining that “[a]lthough [the agency’s] statement [was in] dicta . . . it carries
opinion to the contrary, such policies have been “roundly ‘condemned’ by every circuit that has addressed the issue.” Grant Med. Ctr. v. Burwell, 204 F. Supp. 3d 68, 79 (D.D.C. 2016) (citing cases from the Second, Third, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits).
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significant weight” and citing to Chevron). No exception applies for agency decisions in the immigration context. See Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006); see also Florentino-Francisco v. Lynch, 611 F. App’x 936, 937 n.2 (10th Cir. 2015) (finding that dicta in a BIA opinion is “not precedential”). In Velazquez-Herrera, the Ninth Circuit considered whether to defer to the BIA’s interpretation of “child abuse” for purposes of the INA. 466 F.3d at 782. The BIA had previously defined this statutory term “in another context” where its interpretation was “dictum not essential to the Board’s holding.” Id. The Ninth Circuit did not defer, because this “dictum” did not “constitute[ ] ‘a statutory interpretation that carries the ‘force of law.’ ” Id. at 783 (quoting Miranda Alvarado v. Gonzales, 449 F.3d 915, 922 (9th Cir. 2006)). Such reasoning accords with the dictates of Chevron, which permit agency deference only when an agency “set[s] out with a lawmaking pretense in mind.” Mead Corp., 533 U.S. at 233. Brand X does not permit agencies to rely on dicta in administrative opinions and ignore binding circuit authority.
CONCLUSION In Matter of A-B- and the Guidance, the Attorney General asks the Court to ignore the Chevron framework in favor of blanket deference. The Court should reject this claim of expansive agency powers and instead faithfully apply each step of the well-established Chevron framework to each statutory question the Attorney General addresses.
14

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 22 of 23

September 28, 2018

Respectfully submitted,
/s/ Derek T. Ho Derek T. Ho (D.C. Bar #488609) Rachel Proctor May (Admission pending) Christopher M. Sarma (Admission pending) KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 dho@kellogghansen.com rmay@kellogghansen.com csarma@kellogghansen.com
Counsel for Amici Curiae

Case 1:18-cv-01853-EGS Document 81 Filed 10/02/18 Page 23 of 23
CERTIFICATE OF SERVICE I hereby certify that, on September 28, 2018, I caused the foregoing brief to be filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all registered ECF participants as identified on the Notice of Electronic Filing.
/s/ Derek T. Ho Derek T. Ho Counsel for Amici Curiae

 
 Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Grace, et al., Plaintiffs,
v. JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States, et al.,
Defendants.

)

)

)

)

)

Civ. No. 18-1853 (EGS)

)

)

)

)

)

BRIEF FOR THE DISTRICT OF COLUMBIA AND THE STATES OF CALIFORNIA, CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND,
MASSACHUSETTS, MINNESOTA, NEW JERSEY, NEW MEXICO, NEW YORK, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, AND WASHINGTON AS AMICI
CURIAE IN SUPPORT OF THE PLAINTIFFS

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 2 of 22 TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI CURIAE ..................................................................... 1 BACKGROUND ............................................................................................................................ 1 ARGUMENT .................................................................................................................................. 5
I. Matter of A-B- And The Subsequent USCIS Guidelines Contravene The Amici States’ Interest In Welcoming Immigrants, Including Individuals Seeking Asylum Related To Domestic Violence and Gang-Related Crime........... 5
A. Immigrants bolster States’ economies and support innovation. ....................... 5 B. Victims of domestic and gang-related violence deserve the protection of
States and the United States ............................................................................. 8
C. Matter of A-B- is inconsistent with state, federal, and international
policies intended to protect women from gender-based harm ........................ 11 CONCLUSION............................................................................................................................. 16
i

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TABLE OF AUTHORITIES Cases
Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) ........................................................................... 10 Aguilar-Escoto v. Sessions, 874 F.3d 334 (1st Cir. 2017) .............................................................. 2 Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) ................................................................................ 2 Fiadjoe v. Attorney Gen. of U.S., 411 F.3d 135 (3d Cir. 2005) ................................................ 3, 11 Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) ........................................... 2 Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) ........................................................ 2, 8 INS v. Cardoza-Fonesca, 480 U.S. 421 (1987) ........................................................................ 2, 15 Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004)...................................................................... 2 Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) .......................................................................... 2 Rodriguez-Roman v. I.N.S., 98 F.3d 416, 425 (9th Cir. 1996)...................................................... 15 Sowe v. Mukasey, 538 F.3d 1281 (9th Cir. 2008) ........................................................................... 9 United States v. Morrison, 529 U.S. 598 (2000) .......................................................................... 13
Administrative Decisions Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)............................................. 1, 3-5, 7, 10-11, 14-15 Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014)......................................................................... 3 Matter of Kasinga, 21 I&N Dec. 357, 366-67 (BIA 1996)............................................................. 2
Statutes and Regulations 8 U.S.C. § 1101...................................................................................................................... 2-3, 14 8 U.S.C. § 1154............................................................................................................................. 13 8 U.S.C. § 1158............................................................................................................................... 1
ii

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8 U.S.C. § 1225 .............................................................................................................................. 4 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386,
114 Stat. 1464 (2000).......................................................................................................... 13-14 Violence Against Women Act of 1994, Pub. L. No. 103-322,
108 Stat. 1902 (1994)............................................................................................................... 13 Cal. Labor Code § 246.5 ............................................................................................................... 12 D.C. Code § 51-131 ...................................................................................................................... 13 N.Y. Penal Law § 240.75.............................................................................................................. 13 Wash. Rev. Code § 49.76.............................................................................................................. 12
Other Authorities Am. Bar Assoc., Domestic Violence Arrest Policies .....................................................................12 Am. Bar Assoc., Domestic Violence Civil Protection Orders (CPOs)..........................................12 Am. Immigration Council, Immigrants in California (Oct. 4, 2017) ............................................. 7 Am. Immigration Council, Immigrants in the District of Columbia
(Oct. 16, 2017) ........................................................................................................................... 7 Am. Immigration Council, Immigrants in the United States
(September 10, 2018).............................................................................................................. 5-6 Dany Bahar, A Spicy Red Sauce and How Immigrants Generate Jobs
and Growth in the US (Feb. 7, 2017)...................................................................................... 6-7 Battered Immigrant Protection Act of 1999: Hearing on H.R. 3083 Before the H. Comm. on the
Judiciary, 106th Cong. 70 (2000) ............................................................................................. 14 Katie Benner & Caitlin Dickerson, Sessions Says Domestic and Gang Violence
are not Grounds for Asylum, N.Y. Times, (Jun. 11, 2018)........................................................ 8 Domestic Shelters, Economic Impact of Domestic Violence (Jan. 7, 2015) ................................. 12 Brenan Hoban, Do Immigrants “Steal” Jobs from American Workers
(Aug. 24, 2017) .......................................................................................................................... 5 Humanitarian Innovation Fund, Gender Based Violence Interventions:
Opportunities for Innovation (2016)..........................................................................................9 iii

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 5 of 22
Int’l Rescue Comm., Families Seeking Asylum From Violence in Central America are not Criminals......................................................................................................... 8
Rocio Cara Labrador & Danielle Renwick, Central America’s Violent Northern Triangle (Jun. 26, 2018) ............................................................................................. 8
Silva Mathema, They Are (Still) Refugees: People Continue to Flee Violence in Latin American Countries (Jun. 11, 2018) ......................................................................... 8-9
Claire McEvoy & Gergely Hideg, Small Arms Survey, Global Violent Deaths 2017 (2017) .................................................................................................................................9
Nadwa Mossaad & Ryan Baugh, Refugees and Asylees: 2016 (2018)................................... 4, 6, 8
New Am. Econ., New Americans and a New Direction, The Role of Immigrants in Reviving the Great Lakes Region (2017) ........................................................ 5-6
Robert Pearl, Domestic Violence: The Secret Killer That Costs $8.3 Billion Annually, Forbes (Dec. 5, 2013) .............................................................................................. 11
Safe Horizon, Domestic Violence Statistics and Facts ..................................................................11
United Nations High Comm’r for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva 2011 ed.) .................................................................15
United Nations High Comm’r for Refugees, Women on the Run (Oct. 2015) ..........................9, 15
U.S. Citizenship & Immigration Servs., Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B- (July 11, 2018) ................. 3-4
U.S. Citizenship & Immigration Servs., Victims of Human Trafficking: T Nonimmigrant Status ..............................................................................................................14
U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status.............................................................................................................14
U.S. Dep’t of Justice, State Court Processing of Domestic Violence Cases (Mar. 21, 2008) .......13
U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, El Salvador (2017) .......................................................10
U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Guatemala (2017) ........................................................10
U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Honduras (2017) ..........................................................10
iv

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 6 of 22
STATEMENT OF INTEREST OF AMICI CURIAE Amici curiae are the District of Columbia and the States of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington, which have an interest in ensuring that asylum-related protections continue to exist for individuals relocating to their States based on a well-founded fear of persecution due to domestic or gang-related violence. The Amici States are home to hundreds of thousands of immigrants, many of whom came to this country through the asylum process. The States recognize the important contribution these immigrants have made to society, and believe that immigrants are vital to their economic success. As home to the majority of this country’s successful asylum grantees, the Amici States are concerned about the impact of Attorney General Sessions’s recent precedential opinion in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). The decision, which generally calls for the denial of asylum claims related to domestic and gang-related violence, contravenes existing precedent from both the federal courts of appeals and the Board of Immigration Appeals (“BIA”). Federal law requires that all asylum claims be adjudicated on the particular facts and circumstances of the claim, and such a bar violates that principle. Consequently, the Amici States fear that those fleeing from domestic and gang-related violence will not receive a fair opportunity to establish their individual eligibility for asylum, to which they are entitled under federal law. As a result, worthy applicants will be turned away, and the Amici States will suffer both economically and culturally.
BACKGROUND Federal law provides that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1). To qualify for asylum, the individual must establish that she is a refugee, id. § 1158(b)(1)(A), meaning that she is “unable or unwilling to return” to her home country “because

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 7 of 22
of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). The applicant need not establish a fear of certain persecution; rather, she must simply show fear of a one-in-ten chance of persecution on account of a protected ground. See INS v. Cardoza-Fonesca, 480 U.S. 421, 440 (1987).
Additionally, asylum law imposes no requirement of direct governmental persecution. See 8 U.S.C. § 1101(a)(42)(A); Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004). An asylum applicant who is persecuted by non-state actors may still merit asylum if she establishes that the persecution was “committed by . . . forces the government is either unable or unwilling to control.” Knezevic, 367 F.3d at 1211; 8 U.S.C. § 1101(a)(42)(A). In this vein, the federal courts of appeals and the BIA have routinely granted asylum to victims of private criminal activity. See, e.g., Hernandez-Avalos v. Lynch, 784 F.3d 944, 951 (4th Cir. 2015) (granting asylum to a woman and son who were violently threatened by gang members); see also Matter of Kasinga, 21 I&N Dec. 357, 366-67 (BIA 1996) (granting asylum to a woman who feared her family would subject her to female genital mutilation).
Asylum applicants fleeing from domestic and gang-related violence often claim a wellfounded fear of persecution on account of their “membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A). Federal courts of appeals have recognized that applicants with these types of claims qualify for asylum. See Aguilar-Escoto v. Sessions, 874 F.3d 334, 337 (1st Cir. 2017) (remanding where BIA failed to consider evidence of domestic abuse); Martinez v. Holder, 740 F.3d 902, 909-13 (4th Cir. 2014) (finding former gang membership to constitute a particular social group); Cece v. Holder, 733 F.3d 662, 672 (7th Cir. 2013) (determining “young Albanian women living alone” constituted a particular social group); Henriquez-Rivas v. Holder, 707 F.3d 1081, 109194 (9th Cir. 2013) (en banc) (recognizing that individuals who publicly testify against gangs may
2

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 8 of 22
qualify as a particular social group); Fiadjoe v. Attorney Gen. of U.S., 411 F.3d 135, 160-62 (3d Cir. 2005) (disagreeing with the BIA’s determination that a victim of incest and domestic violence did not qualify for asylum). Notably, in a 2014 decision, Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014), the BIA explicitly acknowledged that victims of domestic violence could qualify for asylum. Id. at 389 (holding that “married women in Guatemala who are unable to leave their relationship” was a particular social group, and granting the applicant asylum).
Despite widespread recognition of the validity of domestic violence and gang-related asylum claims, on June 11, 2018, Attorney General Sessions issued Matter of A-B-, a precedential opinion that reversed the BIA’s grant of asylum to an El Salvadoran woman who was brutalized by her husband. 27 I&N Dec. at 321, 346. The opinion overruled the BIA’s decision in Matter of A-R-CG- and stated that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Id. at 320. Additionally, the decision heightened the standard that asylum applicants must meet when claiming persecution by a non-governmental actor. Id. at 337. Rather than requiring a showing that the government is “unable or unwilling” to control the private persecutor, as dictated by statute, 8 U.S.C. § 1101(a)(42)(A), Matter of A-B- now requires that the applicant show that the “government condoned the private actions or at least demonstrated a complete helplessness to protect the victims,” 27 I&N Dec. at 337 (internal quotation marks omitted).
On July 11, following the publication of Matter of A-B-, the United States Citizenship and Immigration Services (“USCIS”) issued a policy memorandum entitled “Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-”
3

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 9 of 22
(“Policy Memorandum”).1 The policy memorandum, which serves as guidance to all asylum officers, reiterated (in bold font) the categorical rejection of asylum claims based on domestic and gang violence. It also directed asylum officers to apply the case law only of the circuit in which the immigrant is actually detained, and only “to the extent that those cases are not inconsistent with Matter of A-B-.” Policy Mem. 8.
Coupled together, Matter of A-B- and the policy memorandum repudiated well-recognized asylum protections for individuals fleeing from domestic and gang-related violence. These effects are especially detrimental to those asylum seekers facing expedited removal, who do not have access to the full panoply of procedural protections. See generally 8 U.S.C. § 1225(b)(1)(B)(iii). To protect those individuals in expedited removal who express “a fear of persecution,” Congress guaranteed the right to a credible fear interview conducted by an asylum officer. Id. § 1225(b)(1)(a)(ii). By design, these interviews have a low threshold of proof. Applicants must only demonstrate “a significant possibility” of establishing eligibility for asylum. Id. § 1225(b)(1)(B)(v). In fact, according to the latest available data, in 2016, 75 percent of individuals referred to a credible fear interview met that standard.2 However, Matter of A-B- and the policy memorandum cut against these established protections.

1

Available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/ 2018/2018-

06-18-PM-602-0162-USCIS-Memorandum-Matter-of-A-B.pdf.

2

Nadwa Mossaad & Ryan Baugh, Refugees and Asylees: 2016 at 6 (2018),

https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2016.pdf.

4

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 10 of 22
ARGUMENT I. Matter of A-B- And The Subsequent USCIS Guidelines Contravene The Amici States’
Interest In Welcoming Immigrants, Including Individuals Seeking Asylum Related To Domestic Violence and Gang-Related Crime. A. Immigrants bolster States’ economies and support innovation. The United States was founded on the principle of immigration. When the country became a signatory to the 1967 United Nations Protocol Relating to the Status of Refugees, it vowed to protect individuals escaping persecution.3 The benefits associated with immigration are reciprocal; not only do immigrants benefit from the opportunities associated with living in the United States, but the States and country as a whole benefit from immigrants. Immigrants contribute greatly to the nation’s prosperity by contributing to the state and national economies. Nationally, one in six workers is an immigrant.4 Immigrants supply necessary labor in a variety of fields such as healthcare, manufacturing, food services, and agriculture,5 often taking jobs that native-born citizens either do not want or cannot fill.6 For example, in the Great Lakes region of Wisconsin, Illinois, Michigan, Ohio, Pennsylvania, and New York,7 population

3

Id. at 2.

4

Am. Immigration Council, Immigrants in the United States 2 (September 10, 2018),

https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_the_united_

states.pdf.

5

See id.

6

Brenan Hoban, Do Immigrants “Steal” Jobs from American Workers? (Aug. 24, 2017),

https://www.brookings.edu/blog/brookings-now/2017/08/24/do-immigrants-steal-jobs-from-

american-workers/.

7

New Am. Econ., New Americans and a New Direction, The Role of Immigrants in Reviving

the Great Lakes Region 6 (Oct. 2017), http://www.newamericaneconomy.org/wp-

content/uploads/2017/10/NAE_Great-Lakes_V9_FINAL.pdf.

5

Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 11 of 22

growth fell behind the national average, resulting in decreased tax revenue and a reduction in jobs.8 However, while citizens were leaving the area, immigrants began steadily moving into the region.9 Nearly half of the new residents in the Great Lakes region from 2000 to 2015 were foreign-born individuals, contributing to population growth in areas that otherwise would have declined.10 This increased population led to added jobs and increased wages for U.S.-born workers.11 What is more, these immigrants helped revive an aging population, keeping the workforce viable.12 This trend is not unique to the Great Lakes region. Nationally, successful asylum grantees have a median age much lower than citizens.13 The majority of asylum-seekers are of working age, and thus contribute to the earning potential of states and the country as a whole.14
Additionally, immigrants pursue entrepreneurship at disproportionately high levels. Although nationally immigrants make up around 15 percent of the workforce, approximately 25 percent of business owners are immigrants, with even higher percentages in metropolitan areas.15 For example, immigrants make up over half of all business owners in the Washington, D.C.

8

See id. at 7.

9

See id. at 7-8.

10

Id. at 8.

11 Id. at 3, 17, 32

12 Id. at 2, 12.

13 See Mossaad, supra n.3, at 8.

14 Id. (finding that 57 percent of those granted asylum in 2016 were between the ages of 18 and 44).

15 See Immigrants in the United States, supra n.4, at 4. See also Dany Bahar, A Spicy Red Sauce and How Immigrants Generate Jobs and Growth in the US (Feb. 7, 2017), https://www.brookings.edu/blog/up-front/2017/02/07/a-spicy-red-sauce-and-how-immigrantsgenerate-jobs-and-growth-in-the-us.

6

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metropolitan area,16 and over 40 percent of the business owners in the Los Angeles metropolitan area.17 These companies, which employ both immigrants and non-immigrants, create jobs and support a thriving local economy.18 On a national level, in 2015 alone, immigrant-owned companies generated $72.3 billion in business income.19 This number is predicted to grow.
David Tran, who escaped persecution in Vietnam and came to this country as a refugee in 1978, is the prototypical example of a refugee who has contributed to the robust growth of the local and national economies.20 Mr. Tran founded and runs Huy Fong Foods, the manufacturer of the popular Sriracha sauce.21 With a factory located in Irwindale, California, Mr. Tran’s company employs hundreds of workers and brings in over $60 million in revenue yearly.22
Mr. Tran’s story is just one example of how immigrants, including refugees and asylumseekers, have contributed to economic growth. In California alone, immigrant-owned businesses generated almost $22 billion in business income in 2015.23 By limiting the asylum process, Matter of A-B- threatens the economic and social growth of states and localities all across the country.

16 Am. Immigration Council, Immigrants in the District of Columbia 4 (Oct. 16, 2017), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_the_district _of_columbia.pdf.

17 Am. Immigration Council, Immigrants in California 4 (Oct. 4, 2017), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_california.p df.

18 See Bahar, supra n.15.

19

Id.

20

See id.

21

Id.

22

Id.

23 Immigrants in California, supra n.17, at 4.

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B. Victims of domestic and gang-related violence deserve the protection of States and the United States.
A large portion of applicants who seek asylum based on domestic and gang-related violence come from El Salvador, Honduras, and Guatemala, collectively known as the “Northern Triangle.”24 This area is widely regarded as one of the most dangerous regions in the world.25 In the United States, more individuals sought asylum from that region from 2014 to 2016 (the last available data), “than in the proceeding 17 years combined.” 26 Nearly 30 percent of all asylum grantees in 2016 came from the Northern Triangle,27 illustrating both the viability of such asylum claims, see Hernandez-Avalos v. Lynch, 784 F.3d at 951, and the necessity to aid individuals fleeing from such harm.
Violence and crime in the region is widespread. Because of this, the Northern Triangle has been likened to “the deadliest war zones around the world.”28 Consistently, El Salvador, Honduras, and Guatemala rank among the top ten countries with the highest homicide rates in the world.29 In

24 See Katie Benner & Caitlin Dickerson, Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum, N.Y. Times (Jun. 11, 2018), https://www.nytimes.com/2018/06/11/ us/politics/sessions-domestic-violence-asylum.html.

25 Silva Mathema, They Are (Still) Refugees: People Continue to Flee Violence in Latin American Countries (Jun. 11, 2018), https://www.americanprogress.org/issues/immigration/ reports/2018/06/01/451474/still-refugees-people-continue-flee-violence-latin-american-countries.

26 Mossaad, supra n.3, at 7.

27

Id.

28 Int’l Rescue Comm., Families Seeking Asylum from Violence in Central America Are Not Criminals, https://www.rescue.org/article/families-seeking-asylum-violence-central-america-are-notcriminals (last updated July 26, 2018).

29 Rocio Cara Labrador & Danielle Renwick, Central America’s Violent Northern Triangle, https://www.cfr.org/backgrounder/central-americas-violent-northern-triangle (last updated Jun. 26, 2018).

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2017, El Salvador and Honduras were reported to have the highest rate of violent deaths per capita among countries not engaged in armed conflict.30 The vast majority of this violence is gangrelated.31
Women and children in the region are particularly vulnerable. El Salvador and Honduras hold the first- and second-highest rates of femicide in the world, respectively.32 In 2017, more than nine women were killed each week in El Salvador.33 Women are seen as targets for gangs. 34 As one victim reported, “it’s never just sex with the one [gang member], it’s forced sex with all of them.” 35 To make matters worse, not only do these women face gang-related violence, but they also suffer from violence at home. Studies show that “[d]omestic violence in the [Northern Triangle] is commonplace and is rarely discussed openly.”36
Reports from the State Department, which courts have recognized as “the most appropriate and perhaps the best resource[] for information on . . . foreign nations,” Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008), show widespread human rights violations associated with domestic and gang-related violence. In El Salvador, although there are laws that carry trivial prison sentences for

30 Claire McEvoy & Gergely Hideg, Small Arms Survey, Global Violent Deaths 2017 at 25 (2017), http://www.smallarmssurvey.org/fileadmin/docs/U-Reports/SAS-Report-GVD2017.pdf (ranking El Salvador as number one).

31 See Mathema, supra n.25.

32 Humanitarian Innovation Fund, Gender Based Violence Interventions: Opportunities for Innovation 89-90 (2016),http://www.elrha.org/wp-content/uploads/2015/11/GBV_report_23_08.pdf.

33 Mathema, supra n.25.

34 United Nations High Comm’r for Refugees, Women on the Run 16 (Oct. 2015), http://www.unhcr.org/en-us/publications/operations/5630f24c6/women-run.pdf.

35

Id.

36

Id. at 17.

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domestic violence, these laws “remain[] poorly enforced.”37 Domestic violence is considered a “widespread and serious problem” throughout the country.38 Furthermore, “police officers, soldiers, and their families,”39 as well as “women and girls,” remain gang targets.40 Honduras fares no better, as there is violence and harassment perpetrated by “organized criminal elements and gangs.”41 Additionally, in Guatemala, the most egregious human rights issues include “killing of women because of their gender” and the gang recruitment of children, many of whom are the victims of domestic abuse.42
These reports confirm the continued need to protect those individuals escaping nongovernmental domestic and gang-related crime. To be sure, the Amici States do not contend that all applicants who claim asylum based on domestic violence and gang-related activity should automatically succeed on their claims. But in cases of non-governmental persecution, establishing status as a refugee requires a showing that the government is unable or unwilling to control the private criminal actor. See Afriyie v. Holder, 613 F.3d 924, 931-34 (9th Cir. 2010). Matter of A-B-’s presumption against asylum claims based on domestic and gang violence ignores the necessary

37 U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, El Salvador 23 (2017), https://www.state.gov/documents/ organization/277575.pdf.

38

Id.

39

Id. at 11.

40

Id. at 1.

41 U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Honduras 13 (2017), https://www.state.gov/documents/organization/277585.pdf.

42 U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Guatemala 1, 19 (2017), https://www.state.gov/documents/organization /277579.pdf.

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Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 16 of 22
analysis of whether the government was in fact unable or unwilling to control the private perpetrator. The prevalence of such crime, as shown by the above data, evidences the inability of multiple countries to protect women and targets of gang violence. See Fiadjoe, 411 F.3d at 160-62 (considering evidence of widespread human rights abuses against women in concluding that the government was unable or unwilling to aid the petitioner). Matter of A-B- wrongfully denies asylum applicants the opportunity to establish that their government is unable or unwilling to control their private attackers.
C. Matter of A-B- is inconsistent with state, federal, and international policies intended to protect women from gender-based harm.
In issuing Matter of A-B-, the government has stripped away an essential lifeline for victims of gender-based harm. Although both men and women can suffer from gender-based harm, such as domestic violence, it is women and their children who predominantly suffer.43 State, federal, and international policies have recognized the importance of protecting women from harm, yet Matter of A-B- disregards this consensus.
Without a doubt, states throughout the country recognize that domestic violence not only has a social impact, but also an economic impact as well. Annually, domestic violence costs this nation over $2.5 billion in lost productivity.44 Because of the abuse, these women have difficulties
43 See Safe Horizon, Domestic Violence Statistics and Facts, https://www.safehorizon.org/getinformed/domestic-violence-statistics-facts/# description/ (last visited Sept. 27, 2018) (identifying national statistics of domestic violence against both females and males). 44 Robert Pearl, Domestic Violence: The Secret Killer That Costs $8.3 Billion Annually, Forbes (Dec. 5, 2013), https://www.forbes.com/sites/robertpearl/2013/12/05/domestic-violence-the-secretkiller-that-costs-8-3-billion-annually/#22bda43b4681.
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Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 17 of 22
performing their job duties.45 Domestic abuse has cost the United States eight million days of paid work.46
Every state in this country has enacted both civil and criminal laws to protect the victims of domestic violence.47 These innovative laws demonstrate the States’ understanding that it “is in the public interest to reduce domestic violence, sexual assault, and [related crimes].”48 Washington State’s Domestic Violence Leave Act is a prime example of innovative protections for victims of domestic violence.49 The Act grants victims the ability to take reasonable leave from work to handle the aftermaths of abuse, such as seeking legal or medical assistance.50 California’s Healthy Workplaces, Healthy Family Act functions in a similar manner by requiring employers to provide paid days off “for employees who are subjected to domestic violence, sexual assault, or stalking.”51 Additionally, recognizing the toll domestic violence takes on an individual’s ability to work, District

45 See Domestic Shelters, Economic Impact of Domestic Violence (Jan. 7, 2015), https://www.domesticshelters.org/domestic-violence-statistics/economic-impact-of-domesticviolence (last visited Sept. 24, 2018).

46

See id.

47 See Am. Bar Assoc., Domestic Violence Civil Protection Orders (CPOs), https://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/Resources/statuto rysummarycharts/2014%20CPO%20Availability%20Chart.authcheckdam.pdf (describing state civil penalties for domestic violence and abuse); see also Am. Bar Assoc., Domestic Violence Arrest Policies, https://www.americanbar.org/content/dam/aba/images/domestic_violence/Domestic%20 Violence%20Arrest%20Policies%20by%20State%202011%20(complete).pdf (describing state criminal laws and arrest policies).

48 Wash. Rev. Code § 49.76.010(1).

49 See id. at § 49.76 et seq.

50 See id. at § 49.76.030.

51 Cal. Labor Code § 246.5(a)(2).

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Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 18 of 22
of Columbia allows individuals who leave work due to domestic abuse to recover unemployment compensation.52
In the criminal context, New York Penal Law § 240.75 is another example of innovative state domestic abuse policy. The law imposes heightened penalties for repeat domestic abuse offenders, by creating the crime of “aggravated family offense.”53 Indeed, nationally, prosecution and conviction rate of state domestic abuse cases is significantly higher than that of non-domestic abuse cases.54
The federal government has also taken significant steps to protect women from domestic violence. In 1994, Congress enacted the comprehensive Violence Against Women Act (“VAWA”) of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994), with the goal of ensuring that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender,” United States v. Morrison, 529 U.S. 598, 605 (2000). VAWA not only included protection for U.S. citizens facing domestic violence, but it also aided immigrant women facing the same issues. The Act introduced new immigration law procedures which allowed immigrant women who “ha[ve] been battered or ha[ve] been the subject of extreme cruelty perpetrated by” a spouse or fiancé to self-petition for a visa. 8 U.S.C. § 1154(a)(1)(A)(iii)(bb).
In 2000, Congress heightened protections for immigrant women who were victims of sex trafficking and domestic abuse. See Victims of Trafficking and Violence Protection Act of 2000,
52 D.C. Code § 51-131. 53 N.Y. Penal Law § 240.75. 54 See U.S. Dep’t of Justice, State Court Processing of Domestic Violence Cases 1 (Mar. 21, 2008), https://www.bjs.gov/content/pub/pdf/scpdvc.pdf.
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Pub. L. No. 106-386, 114 Stat. 1464 (2000). It created two new categories of visas for those seeking admission to the United States— “T” visas for victims of sex trafficking, id. div. A § 107, 114 Stat. 1464, 1474-80 (codified at 8 U.S.C. § 1101(a)(15)(T)), and “U” visas for victims of other serious crimes, like domestic abuse, who testify against their attackers, id. div. B § 1513, 114 Stat. at 1533-37 (codified at 8 U.S.C. § 1101(a)(15)(U)). With the passage of this Act, Congress recognized the importance of “providing battered immigrant women and children who [are] experiencing domestic violence at home with protection against deportation.” Id. §1502(a)(2), 114 Stat. at 1518. Indeed, in discussing the need for T and U visas, members of Congress noted that the visas would provide protection for domestic violence victims in the United States,55 who if coming to this country alone, could seek and qualify for asylum on account of the abuse, but may have difficulty doing so when their abuser is also within the United States. 56 Yet, Matter of A-B-, which was issued solely by the Attorney General, closes this avenue of protection and contravenes States’ and Congress’s desire to aid immigrant women who are victims of domestic abuse.
Moreover, a policy that categorically rejects asylum claims from victims of domestic and gender-based abuse is contrary to the guidelines set forth by the United Nations High Commissioner
55 See U.S. Citizenship & Immigration Servs., Victims of Human Trafficking: T Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-humantrafficking-t-nonimmigrant-status (last visited Sept. 24, 2018) (stating that only those who are “in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking” are eligible for T visas); see also U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/ humanitarian/victimshuman-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminalactivity-u-nonimmigrant-status (last visited Sept. 24, 2018) (considering that “[t]he crime occurred in the United Sates or violated U.S. law” to be a requirement for a U visas). 56 Battered Immigrant Protection Act of 1999: Hearing on H.R. 3083 Before the H. Comm. on the Judiciary, 106th Cong. 70 (2000) (statement of Rep. Sheila Jackson Lee) (“A battered woman who is not a legal resident, whose immigration status depends completely on her partner . . . may [be] prevented from leaving her husband or seeking asylum.”).
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for Refugees (“UNHCR”). The Supreme Court and, consequently, federal appellate courts, consider UNHCR guidance authoritative, particularly the guidance found in its often-cited Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva 2011 ed.) (“Handbook”).57 See INS v. Cardoza-Fonesca, 480 U.S. 421, 439 (1987) (relying on the Handbook’s analysis for the interpretation of the definition of “refugee”); see, e.g., RodriguezRoman v. INS, 98 F.3d 416, 425 (9th Cir. 1996) (“[The court] is also bound . . . to consider the principles established by the Handbook.”). The Handbook notes that women who suffer from gender-related persecution, such as “sexual violence, family/domestic violence, coerced family planning, [and] female genital mutilation” may qualify as refugees.58 That remains the case when there is “a risk of being persecuted at the hands of a non-State actor” such as a “husband [or] partner.”59 Matter of A-B- blatantly ignored the Handbook’s reasoning, which this Court must take into account. See Cardoza-Fonesca, 480 U.S. at 439 n. 22.
What is more, in recent years, UNHCR has recognized the heightened domestic abuse crisis, reiterating that it “takes the position that women who suffer serious domestic harm can qualify for refugee protection.”60 At a time when the UNHCR is declaring “a clear need for international protection” for women who are unsafe from gender-based violence in their home countries,61 the United States is turning these same women away. This Court should reject Matter of A-B-’s refusal

57 Available at http://www.unhcr.org/en-us/publications/legal/3d58e13b4/handbookprocedures-criteria-determining-refugee-status-under-1951-convention.pdf.
58 Handbook at 80.

59

Id. at 84.

60 See Women on the Run, supra n.34, at 36.

61

Id. at 44.

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to allow victims of domestic violence to seek asylum, which is contrary to the UNHCR’s guidelines

and to well-established federal and state policies.

CONCLUSION

For the foregoing reasons, the Amici States urge this Court to rule in the Plaintiffs’ favor.

Respectfully submitted,

KARL A. RACINE Attorney General for the District of Columbia

LOREN L. ALIKHAN Solicitor General

CAROLINE S. VAN ZILE Deputy Solicitor General

IRINA M. MAJUMDAR Assistant Attorney General Office of the Solicitor General

/s/ Stephanie Litos /cvz STEPHANIE LITOS Assistant Deputy Attorney General Civil Litigation Division

Office of the Attorney General 441 4th Street, NW, Suite 630 South Washington, D.C. 20001 (202) 724-6650 (202) 741-0647 stephanie.litos@dc.gov

XAVIER BECERRA Attorney General State of California 1300 I Street Sacramento, CA 95814

GEORGE JEPSEN Attorney General State of Connecticut 55 Elm Street Hartford, CT 06106

MATTHEW P. DENN Attorney General State of Delaware Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801

RUSSELL A. SUZUKI Attorney General State of Hawaii 425 Queen Street Honolulu, HI 96813
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Case 1:18-cv-01853-EGS Document 82 Filed 10/02/18 Page 22 of 22

LISA MADIGAN Attorney General State of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601
JANET T. MILLS Attorney General State of Maine 6 State House Station Augusta, ME 04333-0006
MAURA HEALEY Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108
GURBIR S. GREWAL Attorney General State of New Jersey 25 Market Street Trenton, NJ 08625
BARBARA D. UNDERWOOD Attorney General State of New York 28 Liberty Street New York, NY 10005
PETER F. KILMARTIN Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
MARK R. HERRING Attorney General State of Virginia 202 North 9th Street Richmond, VA 23219

TOM MILLER Attorney General State of Iowa 1305 East Walnut Street Des Moines, IA 50319
BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place Baltimore, MD 21202
LORI SWANSON Attorney General State of Minnesota 102 State Capitol 75 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155
HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo Street Santa Fe, NM 87501
ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street N.E. Salem, OR 97301
THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State Street Montpelier, VT 05609-1001
ROBERT W. FERGUSON Attorney General State of Washington 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100

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 Case 1:18-cv-01853-EGS Document 84 Filed 10/03/18 Page 1 of 36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRACE, et al.,

Civil Action No. 1:18-cv-01853-EGS

Plaintiffs, v.

Hon. Emmet G. Sullivan

JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States, et al.,

Defendants.

BRIEF OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION FOR SUMMARY
JUDGMENT
ANA C. REYES (D.C. Bar No. 477354) XIAO WANG (D.C. Bar No. 1035487) YOULIN YUAN (D.C. Bar No. 1613542) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 (202) 434-5000 (202) 434-5029 (fax)

Case 1:18-cv-01853-EGS Document 84 Filed 10/03/18 Page 2 of 36
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF AMICUS CURIAE ............................................................................................. vii SUMMARY OF ARGUMENT .......................................................................................................1 ARGUMENT ...................................................................................................................................2 I. THE UNITED STATES IS BOUND BY THE 1951 CONVENTION AND ITS
1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES ................................2 II. AS RECOGNIZED BY U.S. AND FOREIGN COURTS, UNHCR PROVIDES
AUTHORITATIVE GUIDANCE IN EVALUATING CLAIMS OF PERSECUTION BY NON-STATE ACTORS....................................................................3 III. VIOLENCE BY NON-STATE ACTORS—IN PARTICULAR, GANG VIOLENCE AND DOMESTIC VIOLENCE—CAN FORM THE BASIS FOR ASYLUM .............................................................................................................................7 A. The New Policies Erroneously State that Gang Violence and Domestic
Violence Claims Do Not Meet the “Unable or Unwilling” Standard ......................7 1. The New Policies Are Inconsistent with the Settled Meaning of the
“Unable or Unwilling” Standard..................................................................8 2. Gang Violence and Domestic Violence Claims Can Meet the
“Unable or Unwilling” Standard................................................................10 B. The New Policies Err in Their Particular Social Group Analysis .........................13
1. Protected Characteristics............................................................................15 2. Social Perception .......................................................................................17 3. Particularity................................................................................................19 C. The New Policies Err in Their Nexus Analysis .....................................................20 IV. RAISING THE CREDIBLE FEAR THRESHOLD RUNS COUNTER TO INTERNATIONAL LAW .................................................................................................22 V. CONCLUSION..................................................................................................................25
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TABLE OF AUTHORITIES U.S. CASES
Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014) ..................................................................... 6 Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc)...................................... 4 Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011)......................................................... 6 Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) ............................................................................ 20 Doe v. Holder, 736 F.3d 871 (9th Cir. 2013).................................................................................. 6 Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) .......................................................................... 6 Garcia v. U.S. Att’y Gen., 665 F.3d 496 (3d Cir. 2011) ................................................................. 6 INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)................................................................................. 2 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ................................................................... viii, 2, 3 INS v. Stevic, 467 U.S. 407 (1984) .............................................................................................. viii Kamar v. Sessions, 875 F.3d 811 (6th Cir. 2017) ........................................................................... 6 Lopez v. U.S. Att’y Gen., 504 F.3d 1341 (11th Cir. 2007).............................................................. 7 Matter of A-B-, 27 I.&N. Dec. 316 (A.G. 2018).................................................................... passim Matter of Acosta, 19 I.&N. Dec. 211 (B.I.A. 1985), overruled in part on other grounds by Matter
of Mogharrabi, 19 I.&N. Dec. 439 (B.I.A. 1987)..................................................................... 14 Matter of S-A-, 22 I. & N. Dec. 1328 (B.I.A. 2000) ..................................................................... 22 Matter of S-E-G-, 24 I.&N. Dec. 579 (B.I.A. 2008)............................................................... 14, 16 Matter of S-P-, 21 I. & N. Dec. 486 (B.I.A. 1996) (en banc) ......................................................... 3 Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005).................................................................. 4 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804)............................................... 3 Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008)..................................................................... 6 Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) ................................................................. 6, 17 Pavlova v. INS, 441 F.3d 82 (2d Cir. 2006).................................................................................... 6 R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014).............................................................................. 6
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Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015)............................................................................... 20 Ruiz-Cabrera v. Holder, 748 F.3d 754 (7th Cir. 2014) ................................................................ 20 Valdiviezo-Galdamez v. U.S. Att’y Gen., 502 F.3d 285 (3d Cir. 2007) ........................................ 16 Zhang v. Holder, 585 F.3d 715 (2d Cir. 2009) ............................................................................. 24
INTERNATIONAL CASES A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 (Austl.) ................................. 17, 18 AB (Slovakia), AF (Czech Republic) [2015] NZIPT 800734-738 (N.Z.) ....................................... 6 AZ (Trafficked Women) Thailand v. Sec’y of State for the Home Dep’t [2010] UKUT 118 (IAC)
..................................................................................................................................................... 6 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Can.)...................................... 5, 14, 16 Islam (A.P.) v. Sec’y of State for the Home Dep’t, and R. v. Immigration Appeal Tribunal &
Another Ex Parte Shah (A.P.) [1999] UKHL 20, [1999] 2 AC (HL) 629 (appeal taken from Eng.)...................................................................................................................................... 6, 14 Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 (Austl.) ............ 6, 18 Narvaez c. Canada (Citoyenneté et de l’Immigration), [1995] 2 F.C. 55 (Can.)............................ 6 Refugee Appeal No. 1312/93 Re GJ [1995] 1 NLR 387 (N.Z.) .................................................... 14 Refugee Appeal No. 71427/99 [2000] NZAR 545 (N.Z.) ............................................................... 6 Sec’y of State for the Home Dep’t v. K (FC), and Fornah (FC) v. Sec’y of State for the Home Dep’t [2006] UKHL 46, [2007] 1 A.C. (HL) 412 (appeal taken from Eng.) ........................... 14 Tobias Gomez v. Canada (Citizenship and Immigration), 2011 F.C. 1093 (Can.) .................. 5, 16 VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya v. Sec’y of State for the Home Dep’t [2008] UKAIT 00049 ........................................................................................................................... 16
STATUTES AND LEGISLATIVE HISTORIES 142 Cong. Rec. H11071 (daily ed. Sept. 25, 1996) ...................................................................... 23 42 Cong. Rec. H11054 (daily ed. Sept. 25, 1996) ........................................................................ 23 8 U.S.C. § 1101(a)(42) (2006) ....................................................................................................... vi 8 U.S.C. § 1158(b)(1)(B)(i) .......................................................................................................... 20
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H.R. Rep. No. 96-781 (1980).......................................................................................................... 2
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) ..................................................... 2
S. Exec. Doc. No. 14, 90th Cong., 2d Sess. 4 (1968) ..................................................................... 2
OTHER AUTHORITIES Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 ........................ v
DHS’s Position on Respt’s Eligibility for Relief, Matter of R-A-, A 73 753 922 (A.G. Feb. 19, 2004) ................................................................................................................................... 21, 22
Immigration and Refugee Board of Canada, Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression ¶ 8.6 (May 1, 2017) ... 9
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312 (Mar. 6, 1997) .................... 24
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.......................... v, 2
Special Rapporteur on Violence Against Women, its Causes and Consequences, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission, U.N. Doc. E/CN.4/1996/53 (Feb. 5, 1996)................................................................................................. 21
Statute of the Office of the UNHCR, U.N. Doc. A/RES/428(V) (Dec. 14, 1950) ......................... v
U.N. Centre for Soc. Dev. & Humanitarian Affairs, Violence Against Women in the Family, U.N. Doc. ST/CSDHA/2 (1989)............................................................................................ 17, 19, 21
U.S. State Dep’t, El Salvador 2017 Human Rights Report .............................................. 11, 12, 13
U.S. State Dep’t, Guatemala 2017 Human Rights Report............................................................ 13
UNHCR Exec. Comm., The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum No. 30 (XXXIV) (1983, revised 2009) ................................. 23, 24, 25
UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (Jan. 2007) ........................................................................................................................................... 2
UNHCR, Agenda for Protection, U.N. Doc. A/AC.96/965/Add.1 (June 26, 2002)....................... 3
UNHCR, Declaration of States Parties to the 1951 Convention and Its 1967 Protocol Relating to the Status of Refugees (Jan. 16, 2002) ................................................................................ vii, 23
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of AsylumSeekers from Afghanistan (Aug. 30, 2018) ................................................................................. 5
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Case 1:18-cv-01853-EGS Document 84 Filed 10/03/18 Page 6 of 36
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of AsylumSeekers from El Salvador, U.N. Doc. HCR/EG/SLV/16/01 (Mar. 15, 2016) ........ 11, 12, 18, 21
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of AsylumSeekers from Guatemala, U.N. Doc. HCR/EG/GTM/18/01 (Jan. 2018).................................. 12
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of AsylumSeekers from Honduras, U.N. Doc. HCR/EG/HND/16/03 (July 27, 2016) ................. 12, 15, 18
UNHCR, Executive Committee, http://www.unhcr.org/en-us/executive-committee.html ............. 4
UNHCR, Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status with Regard to the Problem of Manifestly Unfounded or Abusive Applications, U.N. Doc. EC/SCP/29 (Aug. 26, 1983) .................................................................................... 23
UNHCR, General Conclusion on International Protection No. 55 (XL) (Oct. 13, 1989).............. 4
UNHCR, Global Trends: Forced Displacement in 2017 (June 25, 2018) .................................... vi
UNHCR, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs (Mar. 2010) .................................................................................................................................. passim
UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/01 (May 7, 2002)......................................... passim
UNHCR, Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence Under Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions, U.N. Doc. HCR/GIP/16/12 (Dec. 2, 2016)................................................................................ 4, 7, 21
UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) ................ passim
UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked, U.N. Doc. HCR/GIP/06/07 (Apr. 7, 2006) ............................................................................................................................................... 9, 20
UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012) ............................................................................................. 5, 8
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/1P/4/ENG/REV.3 (1979, re-edited Jan. 1992; re-issued Dec. 2011) ....................... vi, 4, 8
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Case 1:18-cv-01853-EGS Document 84 Filed 10/03/18 Page 7 of 36 UNHCR, International Protection Considerations with Regard to People Fleeing Northeastern
Nigeria (the States of Borno, Yobe and Adamawa) and Surrounding Region—Update I (Oct. 2014) ........................................................................................................................................... 5 UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (Apr. 2001) ....................................................................................................................................... 8, 9 UNHCR, Note on International Protection, U.N. Doc. A/AC.96/815 (Aug. 31, 1993) ................ 2 UNHCR, Position on Returns to Southern and Central Somalia (Update I) (May 2016) ............. 5 UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico (Oct. 26 2015).................................................................. 13 United Kingdom Immigration Appellate Authority, Asylum Gender Guidelines ¶¶ 2B.2–3 (Nov. 1, 2000) ..................................................................................................................................... 10 USAID, Central America and Mexico Gang Assessment Report (Aug. 2006) ............................ 15 USCIS Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-, July 11, 2018 (PM-602-0162) passim
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INTEREST OF AMICUS CURIAE1 The Office of the United Nations High Commissioner for Refugees (“UNHCR”)2 has a
direct interest in this matter as the organization entrusted by the United Nations General Assembly
with responsibility for providing international protection to refugees and others of concern and,
together with national governments, for seeking permanent solutions to their problems. Statute of
the Office of the UNHCR ¶ 1, U.N. Doc. A/RES/428(V) (Dec. 14, 1950). UNHCR fulfills its
mandate by “[p]romoting the conclusion and ratification of international conventions for the
protection of refugees, supervising their application and proposing amendments thereto.” Id.
¶ 8(a). UNHCR’s supervisory responsibility is reflected in the Preamble and Article 35 of the
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (“1951 Convention”)3 and Article 2 of the Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (“1967 Protocol”).4 Those instruments oblige states to cooperate with UNHCR in
the exercise of its mandate and to facilitate its supervisory role. UNHCR’s guidance is relevant to
this Court’s interpretation of the 1951 Convention and its 1967 Protocol, as implemented in section
101(a)(42) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42) (2006).
UNHCR, which has won two Nobel Peace Prizes for its work, works in some 130 countries
at a time when there are 68.5 million people affected by forced displacement worldwide. UNHCR,
1 Plaintiffs consent to the filing of the proposed amicus brief. Defendants consent to the filing of the proposed amicus brief provided that it does not refer to or seek to introduce non-record factual material. As UNHCR takes no position directly on the merits of Plaintiffs’ claims, the brief does not refer to any factual materials relating to Plaintiffs. No person or entity other than UNHCR and its outside counsel authored this brief or provided any funding related to it. 2 This amicus brief does not constitute a waiver, express or implied, of any privilege or immunity which UNHCR and its staff enjoy under applicable international legal instruments and recognized principles of international law. See U.N. General Assembly, Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15, http://www.refworld.org/docid/3ae6b3902.html. 3 http://www.unhcr.org/3b66c2aa10.html. 4 http://www.unhcr.org/3b66c2aa10.html.
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Global Trends: Forced Displacement in 2017, at 2 (June 25, 2018).5 The views of UNHCR are informed by its more than six decades of experience supervising the treaty-based system of refugee protection. UNHCR’s interpretation of the 1951 Convention and its 1967 Protocol is both authoritative and integral to promoting consistency in the global regime for the international protection of refugees. The Supreme Court has consistently turned to UNHCR for assistance in interpreting the United States’ obligations under international refugee instruments. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 440 n.25 (1987); INS v. Stevic, 467 U.S. 407, 421 (1984).
UNHCR exercises its supervisory responsibility by issuing interpretative guidelines on the meaning of the 1951 Convention and its 1967 Protocol and other international refugee instruments, including the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa6 and the Cartagena Declaration on Refugees.7 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/1P/4/ENG/REV.3 (1979, re-edited Jan. 1992; re-issued Dec. 2011) (“Handbook”)8 represents the first such comprehensive guidance. At the request of States, including the United States, the Handbook has subsequently been complemented by the UNHCR Guidelines on International Protection and various Guidance Notes.
UNHCR has a specific interest in this matter because the new policies9 diverge from UNHCR guidance on the interpretation of (1) the standard to be applied in assessing whether states
5 http://www.unhcr.org/5b27be547.pdf. 6 http://www.refworld.org/docid/3ae6b36018.html. 7 http://www.refworld.org/docid/3ae6b36ec.html. 8 http://www.unhcr.org/3d58e13b4.html. 9 These new policies are reflected in Matter of A-B-, 27 I.&N. Dec. 316 (A.G. 2018), and USCIS’s July 11, 2018 Guidance, USCIS Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of AB-, July 11, 2018 (PM-602-0162) (“USCIS Guidance”).
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are “unable or unwilling” to provide effective protection against non-state agents of persecution, (2) the definition of a “particular social group,” and (3) the “nexus” requirement in relation to whether persecution by non-state actors may be “on account of” membership in a “particular social group.”
In addition, UNHCR has an interest in this matter because the new policies carry significant ramifications for the credible fear screening process. UNHCR’s responsibility for supervising the application of the 1951 Convention and its 1967 Protocol extends to guiding states on measures that help prevent the refoulement of asylum seekers or refugees, thus acknowledging that nonrefoulement is a cornerstone of the international refugee law regime. UNHCR, Declaration of States Parties to the 1951 Convention and Its 1967 Protocol Relating to the Status of Refugees ¶ 4 (Jan. 16, 2002).10 Access to fair and efficient asylum procedures is a foundational measure that prevents refoulement. While UNHCR recognizes that a State may establish accelerated processes, such processes must meet certain minimum standards to comply with international legal obligations.
UNHCR submits this brief to provide guidance to this Court on these obligations. Consistent with its approach in other cases, UNHCR takes no position directly on the merits of Plaintiffs’ claims but, through this brief, expresses its interest and concern with the interpretation and application of international refugee instruments as a matter of law and principle.
10 http://www.refworld.org/docid/3d60f5557.html. ix

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SUMMARY OF ARGUMENT UNHCR has long held that violence perpetrated by non-state actors, including gang and domestic violence, may constitute persecution undergirding an asylum claim based upon membership in a particular social group. Other States with significant jurisprudence on refugee status determination, such as Canada, the United Kingdom, Australia, New Zealand, and all European Union member states have reached the same conclusion—as has the United States historically. The new policies at issue, however, state that violence by non-state actors generally does not constitute a basis for asylum—or even a “credible fear” of persecution—based on their approach to (a) assessing the inability or unwillingness of the state to protect a person from persecution; (b) the interpretation of what constitutes a “particular social group,” and (c) the nexus between fear of persecution and membership in a particular social group. As a result, many victims of violence by non-state actors may not even have a meaningful opportunity to apply for asylum. In reaching this outcome, the new policies have interpreted the refugee definition in a manner at variance with the United States’ international obligations on a number of fronts. First, in assessing state protection, the new policies recast the “unable or unwilling” standard into one requiring a showing of “complete helplessness” or “condoned” action. Second, the new policies misconstrue the requirements for defining a particular social group, and further elevate a threshold that was already too high by international standards. Third, the new policies misapply the nexus requirement, creating an unjustified barrier to persons fleeing gang and domestic violence. Fourth, the new policies apply all of the aforementioned standards to the credible fear interview process—a process that should screen out only “clearly abusive” or “manifestly unfounded” claims. Imposing these standards at the initial screening stage jeopardizes the ability of decision-makers to recognize meritorious claims, thereby increasing the risk that the United States will be at variance with its obligation to non-refoulement.
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ARGUMENT I. THE UNITED STATES IS BOUND BY THE 1951 CONVENTION AND ITS 1967
PROTOCOL RELATING TO THE STATUS OF REFUGEES The 1951 Convention and its 1967 Protocol are the key international instruments governing the protection of refugees. These documents address who is a refugee, his or her rights and responsibilities, and the corresponding legal obligations of States. The 1967 Protocol binds parties to comply with the substantive provisions of Articles 2 through 34 of the 1951 Convention with respect to “refugees” as defined in Article 1A(2) of the 1951 Convention. 1967 Protocol art. 1(1)– (2). The 1967 Protocol also removes the geographic and temporal limitations from the 1951 Convention definition, thus universalizing the refugee definition. Id. art. 1(2)–(3). The core of both the 1951 Convention and its 1967 Protocol is the principle of non-refoulement, which obliges States not to return a refugee to any country where he or she would face persecution or a real risk of serious harm.11 In 1968, the United States acceded to the 1967 Protocol,12 thereby binding itself to the international refugee protection regime and the definition of a refugee as contained in the 1951 Convention. Congress enacted the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), expressly to “bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” Cardoza-Fonseca, 480 U.S. at 436–37 n.19 (citing H.R. Rep. No. 96-781, at 19); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999). The
11 The prohibition of refoulement applies to all refugees, including those who have not formally been recognized as such, and to asylum-seekers whose status has not yet been determined. UNHCR, Note on International Protection ¶ 11, U.N. Doc. A/AC.96/815 (Aug. 31, 1993), http://www.unhcr.org/refworld/docid/3ae68d5d10.html; UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol ¶¶ 26–31 (Jan. 2007), http://www.unhcr.org/refworld/docid/45f17a1a4.html. 12 H.R. Rep. No. 96-781, at 19 (1980), as reprinted in 1980 U.S.C.C.A.N. 160, 160; S. Exec. Doc. No. 14, 90th Cong., 2d Sess. 4 (1968).
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Refugee Act brings the United States into compliance with its international obligations under the
1967 Protocol and, by extension, the 1951 Convention. It should be interpreted and applied in a
manner consistent with those instruments. See Cardoza-Fonseca, 480 U.S. at 437 (by enacting
Refugee Act, Congress intended “that the new statutory definition of ‘refugee’ be interpreted in
conformance with the Protocol’s definition”); cf. Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains.”).
II. AS RECOGNIZED BY U.S. AND FOREIGN COURTS, UNHCR PROVIDES AUTHORITATIVE GUIDANCE IN EVALUATING CLAIMS OF PERSECUTION BY NON-STATE ACTORS UNHCR exercises its supervisory responsibility by issuing interpretive guidance on the
meaning of provisions contained in the 1951 Convention and its 1967 Protocol. The most
authoritative of this guidance is the UNHCR Handbook, which was prepared in 1979 at the request
of Member States, including the United States. Although the Handbook is not legally binding
upon U.S. officials, it nevertheless provides “significant guidance” in construing the 1967 Protocol
and in giving content to the obligations established therein. Cardoza-Fonseca, 480 U.S. at 439
n.22; see also Matter of S-P-, 21 I. & N. Dec. 486, 492 (B.I.A. 1996) (en banc). In 2002, UNHCR also began issuing a number of Guidelines,13 which have been welcomed
by the Executive Committee and the UN General Assembly.14 The Guidelines complement and
13 UNHCR, Agenda for Protection, U.N. Doc. A/AC.96/965/Add.1 (June 26, 2002), http://www.refworld.org/docid/3d4fd0266.html. 14 UNHCR’s governing Executive Committee was established by the United Nations’ Economic and Social Council in 1958. The Executive Committee functions as a subsidiary organ of the UN General Assembly and its report is submitted directly to the General Assembly for consideration. The Executive Committee’s functions include advising the High Commissioner in the exercise of his/her functions, and includes issuing Conclusions on International Protection (often referred to as “ExCom Conclusions”), which address issues in the field of refugee protection and serve as “international guidelines to be drawn upon by States, UNHCR and others when developing or orienting their policies on refugee issues.” See UNHCR, General
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update the Handbook by drawing upon international legal standards, judicial decisions, Executive Committee Conclusions, academic literature, and UNHCR’s views and experience. UNHCR also issues Guidance Notes to provide additional direction in specific areas. Courts have relied upon the Guidelines and Guidance Notes in assessing refugee claims, recognizing that UNHCR’s “analysis provides significant guidance for issues of refugee law.” Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017) (en banc).
Applied here, the Handbook, Guidelines, and Guidance Notes all affirm the well-settled principle that persecution by non-state actors may form the basis of an asylum claim. The Handbook expressly recognizes that asylum may be warranted by persecution “emanat[ing] from sections of the population . . . [whose] serious discriminatory or other offensive acts . . . are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.” Handbook ¶ 65. Non-state agents include “paramilitary groups, militias, insurgents, bandits, pirates, criminal gangs or organizations,” in addition to “neighbors, family members and other individuals.” Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence Under Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions ¶ 28, U.N. Doc. HCR/GIP/16/12 (Dec. 2, 2016) (“Armed Conflict Guidelines”).15
Conclusion on International Protection No. 55 (XL), ¶ p (Oct. 13, 1989). ExCom Conclusions are adopted through consensus by the States which are Members of the Executive Committee and can therefore be considered as reflecting their understanding of legal standards regarding the protection of refugees. At present, 102 states are Members of the Executive Committee, including the United States, which is one of the original members. UNHCR, Executive Committee, http://www.unhcr.org/en-us/executive-committee.html. 15 http://www.refworld.org/docid/583595ff4.html.
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Additionally, “rape and other forms of gender-related violence, such as dowry-related
violence, female genital mutilation, domestic violence, and trafficking” may also constitute
persecution “whether perpetrated by State or private actors.” Guidelines on International
Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951
Convention and/or Its 1967 Protocol Relating to the Status of Refugees ¶ 9, U.N. Doc. HCR/GIP/02/01 (May 7, 2002) (“Gender Guidelines”).16 UNHCR also recognizes potential
asylum claims for individuals persecuted by “family members, neighbors, or the broader community,” in, for example, cases of LGBTI people;17 by Al Shabaab in Somalia;18 by Boko Haram in Nigeria;19 and by the Taliban in Afghanistan.20
Consistent with UNHCR’s position, parties to the 1951 Convention and its 1967 Protocol
have recognized valid asylum claims stemming from persecution by non-state actors, including
persecution stemming from gang and domestic violence. See, e.g., Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Can.) (persecution by non-state paramilitary group);21 Tobias Gomez v. Canada (Citizenship and Immigration), 2011 F.C. 1093 (Can.) (gang violence);22 Narvaez c.
16 http://www.refworld.org/docid/3d36f1c64.html. 17 UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees ¶¶ 34–37, U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012), http://www.refworld.org/docid/50348afc2.html (“Sexual Orientation Guidelines). 18 UNHCR, Position on Returns to Southern and Central Somalia (Update I) ¶¶ 16–19, 23 (May 2016), http://www.refworld.org/docid/573de9fe4.html. 19 UNHCR, International Protection Considerations with Regard to People Fleeing Northeastern Nigeria (the States of Borno, Yobe and Adamawa) and Surrounding Region— Update I ¶ 11 (Oct. 2014), http://www.refworld.org/docid/5448e0ad4.html. 20 UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of AsylumSeekers from Afghanistan (Aug. 30, 2018), http://www.refworld.org/docid/5b8900109.html. 21 http://www.refworld.org/cases,CAN_SC,3ae6b673c.html. 22 http://www.refworld.org/cases,CAN_FC,56e6e5e14.html.
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Canada (Citoyenneté et de l’Immigration), [1995] 2 F.C. 55 (Can.) (domestic violence);23 Islam (A.P.) v. Sec’y of State for the Home Dep’t, and R. v. Immigration Appeal Tribunal & Another Ex Parte Shah (A.P.) [1999] UKHL 20, [1999] 2 AC (HL) 629 (appeal taken from Eng.) (domestic violence);24 AZ (Trafficked Women) Thailand v. Sec’y of State for the Home Dep’t [2010] UKUT 118 (IAC) (human trafficking by criminal gangs);25 Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 (Austl.) (domestic violence);26 AB (Slovakia), AF (Czech Republic) [2015] NZIPT 800734-738 (N.Z.) (skinhead group violence);27 Refugee Appeal No. 71427/99 [2000] NZAR 545 (N.Z.) (domestic violence).28
Nearly every U.S. circuit court has likewise recognized that violence by non-state actors may undergird a valid asylum claim. See, e.g., Aldana-Ramos v. Holder, 757 F.3d 9, 17 (1st Cir. 2014) (gang violence); Pavlova v. INS, 441 F.3d 82, 91 (2d Cir. 2006) (persecution by Russian Neo-Nazi group); Garcia v. U.S. Att’y Gen., 665 F.3d 496, 503 (3d Cir. 2011) (gang violence); Crespin-Valladares v. Holder, 632 F.3d 117, 128–29 (4th Cir. 2011) (gang violence); Eduard v. Ashcroft, 379 F.3d 182, 190 (5th Cir. 2004) (persecution by anti-Christian Islamist groups); Kamar v. Sessions, 875 F.3d 811, 819 (6th Cir. 2017) (honor killing by family members); R.R.D. v. Holder, 746 F.3d 807, 809 (7th Cir. 2014) (persecution by drug trafficking organizations); Ngengwe v. Mukasey, 543 F.3d 1029, 1036 (8th Cir. 2008) (forced marriage by family members); Doe v. Holder, 736 F.3d 871, 878 (9th Cir. 2013) (violence toward homosexuals by classmates); Niang v. Gonzales, 422 F.3d 1187, 1191–92, 1201–02 (10th Cir. 2005) (female genital mutilation by
23 http://www.refworld.org/cases,CAN_FC,3ae6b6e61c.html. 24 http://www.refworld.org/cases,GBR_HL,3dec8abe4.html. 25 http://www.refworld.org/cases,GBR_UTIAC,4bd58d912.html. 26 http://www.refworld.org/cases,AUS_HC,3deb326b8.html. 27 http://www.refworld.org/cases,NZ_IPT,55c868b54.html. 28 http://www.refworld.org/cases,NZL_RSAA,3ae6b7400.html.
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tribal members); Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (persecution by anti-government guerillas). III. VIOLENCE BY NON-STATE ACTORS—IN PARTICULAR, GANG VIOLENCE
AND DOMESTIC VIOLENCE—CAN FORM THE BASIS FOR ASYLUM The USCIS Guidance emphasizes that, “[i]n general, . . . claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for asylum [or] refugee status.” USCIS Guidance at 6; accord Matter of A-B-, 27 I.&N. Dec. at 320. That directive diverges from the UNHCR guidance, international case law, and U.S. precedent concerning non-state actors discussed above. Departure from this well-settled and foundational legal principle is due to erroneous interpretations of (a) the “unable or unwilling” standard, (b) the “particular social group” definition, and (c) the nexus requirement. The elevated standards in these areas form an impermissible obstacle for victims of persecution seeking to obtain asylum, particularly since the standards must—under the new policies—all be applied at the outset, at an individual’s credible fear interview. We discuss these various erroneous interpretations in turn. A. The New Policies Erroneously State that Gang Violence and Domestic
Violence Claims Do Not Meet the “Unable or Unwilling” Standard For violence perpetrated by non-state actors to constitute persecution, an individual must demonstrate that the state is “unable or unwilling” to provide adequate protection to victims. Guidance Note on Refugee Claims Relating to Victims of Organized Gangs ¶ 25 (Mar. 2010) (“Gang Note”);29 see Gender Guidelines ¶ 19; Armed Conflict Guidelines ¶ 30. Such a determination requires a “holistic and integrated analysis” and “judicious balancing” of several factors, including “the general state of law, order and justice in the country, and its effectiveness,
29 http://www.refworld.org/docid/4bb21fa02.html.
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including the resources available and the ability and willingness to use them properly and effectively to protect residents.” UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees ¶¶ 7, 15 (Apr. 2001) (“Interpreting 1951 Convention”).30
The new policies upend this holistic analysis. They require asylum-seekers to show that “the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.” USCIS Guidance at 6; Matter of A-B-, 27 I.&N. Dec. at 337. “The mere fact that a country . . . has problems effectively policing certain crimes, like domestic violence or gangrelated activities . . . cannot, by itself, establish eligibility for asylum.” USCIS Guidance at 6. In other words, under the new policies, occasional, piecemeal, or partial protection by a state will negate an asylum claim, even if that state is unable or unwilling to prevent violence in the vast majority of cases. As examined below, this unduly narrow construction of the “unable or unwilling” standard significantly diverges from the United States’ international obligations.
1. The New Policies Are Inconsistent with the Settled Meaning of the “Unable or Unwilling” Standard
The hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors. See Handbook ¶ 65 (acts constitute persecution “if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable to offer effective protection”); Gang Note ¶ 25 (harm can constitute persecution when the state is “unable to provide effective protection”). State protection is ineffective where “the police fail to respond to request for protection or the authorities refuse to investigate, prosecute or punish (non-state) perpetrators of violence . . . with due diligence.” Sexual Orientation Guidelines ¶¶ 34–37.
Merely enacting a law prohibiting persecutory practices is not enough: “Even though a particular State may have prohibited a persecutory practice (e.g., female genital mutilation), the
30 http://www.refworld.org/docid/3b20a3914.html.
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State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively.” Gender Guidelines ¶ 11. Despite best intentions and efforts, there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities. For example, in determining whether a state offers effective protection for human trafficking, UNHCR notes:
Whether the authorities in the country of origin are able to protect victims or potential victims of trafficking will depend on whether legislative and administrative mechanisms have been put in place to prevent and combat trafficking, as well as to protect and assist the victims and on whether these mechanisms are effectively implemented in practice. UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked ¶ 22, U.N. Doc. HCR/GIP/06/07 (Apr. 7, 2006) (“Trafficking Guidelines”);31 see also Interpreting 1951 Convention ¶ 15 (ability to offer effective protection requires examining “the general state of law, order and justice in the country, and its effectiveness, including the resources available and the ability and willingness to use them properly and effectively to protect residents”). Consistent with UNHCR’s interpretation, other parties to the 1951 Convention and its 1967 Protocol do not require complete helplessness, and recognize violence perpetrated by non-state parties as persecution whenever state protection is ineffective. Canada instructs decision-makers to “carefully assess . . . the degree of actual implementation, the effectiveness, and the durability of . . . legislative or other achievements” in determining the adequacy of state protection. Immigration and Refugee Board of Canada, Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression ¶ 8.6 (May 1, 2017).
31 http://www.refworld.org/docid/443679fa4.html.
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Similarly, the United Kingdom embraces a “practical standard” that examines actual practices and requires protection to be “meaningful, accessible, effective, and available to a woman regardless of her culture and position.” United Kingdom Immigration Appellate Authority, Asylum Gender Guidelines ¶¶ 2B.2–3 (Nov. 1, 2000).32
Turning the “unable or unwilling” into a “condoned” or “complete helplessness” requirement is a significant departure from this settled international standard. The new policies make the “unable or unwilling” prong harder to meet—an intention without support in international law. A state does not have to “condone” private violence to be “unwilling” or “unable” to offer protection, nor does a victim need to show the state’s “complete helplessness” for state protection to be unavailable or ineffective.
2. Gang Violence and Domestic Violence Claims Can Meet the “Unable or Unwilling” Standard
The new policies’ erroneous approach towards the “unable or unwilling” standard becomes all the more pronounced in the gang and domestic violence context. As noted, the new policies state that gang and domestic violence generally will not form the basis for a meritorious asylum claim because victims of such violence cannot demonstrate that the state was completely helpless or condoned private action. That directive runs counter to UNHCR’s on-the-ground experience.
To exercise its supervisory responsibility effectively, UNHCR has field offices in the vast majority of originating countries for asylum seekers, including El Salvador, Guatemala, and Honduras. Relying on in-depth research from these offices, material from independent country specialists, and other sources, UNHCR has carefully compiled country-specific Eligibility
32 http://www.refworld.org/docid/3ae6b3414.html. 10

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Guidelines. The Eligibility Guidelines rigorously analyze factors relevant to asylum determinations, including the effectiveness of state protection.33
Based on its decades-long presence in countries affected by gang violence, UNHCR encourages decision-makers to examine “efforts to reform and expand the criminal justice system[,] establish[] witness protection programmes,” and—conversely—the “lack of measures to ensure security to individuals at risk of harm by gangs.” Gang Note ¶ 28. “The [s]tate [may] prove unable to provide effective protection, especially when certain gangs . . . yield considerable power and capacity to evade law enforcement or when the corruption is pervasive.” Id. ¶ 25. Likewise, the state “may be unwilling to protect a particular individual, for instance, because of their own financial interest in the gang activities or because they consider the person associated with or targeted by the gangs unworthy of protection.” Id.
In El Salvador, for example, gangs “exercise extraordinary levels of social control over the population of their territories.” UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador at 12, U.N. Doc. HCR/EG/SLV/16/01 (Mar. 15, 2016) (“El Salvador Guidelines”).34 Despite the formal existence of an anti-gang legal framework, “weakness and corruption” in the police and judiciary “contribute to creating a high level of impunity for crimes in El Salvador.” Id. at 23; see also U.S. State Dep’t, El Salvador 2017 Human Rights Report at 15 (“U.S. State Dep’t, El Salvador Report”). In gang-controlled territories, “the police—even the elite Anti-Gang Unit in high-profile cases—are usually not seen as offering a sufficient form of protection . . . , since their presence is only temporary and gangs
33 For a detailed explanation of the methodology used, see Affidavit of Janice Lyn Marshall, Staten v/Utlendingsnemnda (Regjeringsadvokaten) v. A, B, C, D, Oct. 26, 2015 (Nor.), http://www.refworld.org/docid/5b8900109.html. 34 http://www.refworld.org/docid/56e706e94.html.
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will return once the police move on after a few hours or days.” El Salvador Guidelines at 24; see U.S. State Dep’t, El Salvador Report at 19 (“The major gangs controlled their own territory. Gang members did not allow persons living in another gang’s controlled area to enter their territory.”). Gangs have their own infiltrators in the police and military, who warn about anti-gang operations and have access to weapons and uniforms. El Salvador Guidelines at 23.
Gangs’ “extraordinary levels of social control” and the state’s corresponding ineffectiveness in combating gang-related crimes are also pervasive in other Central American countries. See UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Honduras at 18–19, 38–39, U.N. Doc. HCR/EG/HND/16/03 (July 27, 2016) (“Honduras Guidelines”) (police are “not usually seen as offering a sufficient form of protection for residents who are threatened by gangs” and are “reported to acknowledge their fear at the inability of the State to protect them from assassination when they are off duty”);35 UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Guatemala at 34, U.N. Doc. HCR/EG/GTM/18/01 (Jan. 2018)36 (“[I]n certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection to inhabitants.”).
Equally, domestic violence victims also often do not receive effective protection from the state. In some Central American societies, “[i]mpunity for violence against women and girls remain a serious problem.” Honduras Guidelines at 39. The high impunity rate contributes to the victims’ “lack of confidence in . . . an ineffective and unsupportive justice system,” thus preventing them from even reporting domestic violence incidents to the authorities. El Salvador Guidelines
35 http://www.refworld.org/docid/579767434.html. 36 http://www.refworld.org/docid/5a5e03e96.html.
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at 25. The state’s ineffective protection against domestic violence is often exacerbated by its inability to protect against gang violence. In a study of 160 women from El Salvador, Guatemala, Honduras, and Mexico, UNHCR found that women “consistently stated that police and state law enforcement authorities were unable to provide sufficient protection from [] violence.” UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico at 4 (Oct. 26 2015).37 Many of the women’s partners were gang members or associates. Id. at 25. “[B]ecause these [criminal] groups were often [regarded as] the highest power in the neighborhoods, [the women] did not believe the government could protect them.” Id.; see also U.S. State Dep’t, El Salvador Report at 23; U.S. State Dep’t, Guatemala 2017 Human Rights Report at 17.
The above evidence reflects that—at least in some countries and in some instances—states may be unable or unwilling to offer effective protection to persons who have been persecuted by non-state actors. The new policies therefore err by directing that gang and domestic violence claims generally do not meet the “unable or unwilling” standard when assessing asylee’s application.
B. The New Policies Err in Their Particular Social Group Analysis The new policies also change the approach to asylum claims based upon “membership in a particular social group,” elevating the standard far beyond the international threshold. To be sure, although “membership in a particular social group” has long been an ambiguous legal term, Matter of A-B-, 27 I.&N. Dec. at 326, jurisprudence and commentary have over time helped clarify its meaning. UNHCR’s Social Group Guidelines adopt two approaches to defining a particular social group:
37 http://www.refworld.org/docid/56307e2a4.html.
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[A] particular social group is a group of persons who share a common characteristic other than their risk of being persecuted [the “protected characteristics” approach], or who are perceived as a group by society [the “social perception” approach]. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights. Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees ¶ 11, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) (“Social Group Guidelines”) (emphasis added).38 A particular social group must be identifiable through one of the approaches, not both. Gang Note ¶ 35. Several States have endorsed the “protected characteristics” approach without requiring social perception. See Ward, [1993] 2 S.C.R. at 689 (Can.); Islam and Shah, [1999] UKHL at 20; Sec’y of State for the Home Dep’t v. K (FC), and Fornah (FC) v. Sec’y of State for the Home Dep’t [2006] UKHL 46, [2007] 1 A.C. (HL) 412 (appeal taken from Eng.);39 Refugee Appeal No. 1312/93 Re GJ [1995] 1 NLR 387 (N.Z.).40 This either/or approach—first delineated in Matter of Acosta, 19 I.&N. Dec. 211, 233 (B.I.A. 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I.&N. Dec. 439 (B.I.A. 1987)—also guided U.S. asylum decisions until the Board of Immigration Appeals diverged in 2008 by requiring asylum-seekers to prove “social perception” and “particularity,” in addition to “protected characteristics.” Matter of S-E-G-, 24 I.&N. Dec. 579, 582, 589 (B.I.A. 2008). As UNHCR has noted, imposing these additional, heightened requirements is contrary to the object and purpose of the 1951 Convention, 1967 Protocol, and Social Group Guidelines.41
38 http://www.refworld.org/docid/3d36f23f4.html. 39 http://www.refworld.org/cases,GBR_HL,4550a9502.html. 40 http://www.refworld.org/cases,NZL_RSAA,3ae6b6938.html. 41 See UNHCR Amicus Curiae Br. in Support of Resp’t, Valdiviezo-Galdamez v. Holder (3d Cir. Apr. 14, 2009), http://www.refworld.org/docid/49ef25102.html.
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The new policies fail to correct this error. Instead, they maintain the additional, heightened requirements delineated in Matter of S-E-G-, and apply these requirements in a flawed manner to the facts at hand. These missteps compound one another, resulting in a position that is even further from the international consensus. Matter of A-B-, 27 I.&N. Dec. at 319, 335 (rejecting asylum for “[s]ocial groups defined by their vulnerability to private criminal activity,” including “groups comprising persons who are ‘resistant to gang violence’ and susceptible to violence from gang members on that basis”). UNHCR maintains that the U.S. approach—i.e., requiring protected characteristics, social visibility, and particularity—is inconsistent with international law. Even under a correct application of the heightened U.S. standard, however, UNHCR observes that people at risk of gang violence and domestic violence—both categories of victims of non-state persecution—may nonetheless constitute members of a particular social group.
1. Protected Characteristics The “protected characteristics” approach examines “whether a group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it.” Social Group Guidelines ¶ 6. As to gang violence, victims resisting forced recruitment may share innate or immutable characteristics, such as age, gender, and social status. Gang Note ¶ 36. To this point, a USAID study on Central American gangs found that youth between the ages of 8 and 18 were particularly vulnerable to recruitment. USAID, Central America and Mexico Gang Assessment Report 15 (Aug. 2006).42 UNHCR likewise notes that young people are more susceptible to recruitment because of their “age, impressionability, dependency, poverty and lack of parental guidance.” Gang Note ¶ 36; Honduras Guidelines at 15, 16. Additionally, “[p]ast actions or experiences, such
42 https://pdf.usaid.gov/pdf_docs/PNADG834.pdf.
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as refusal to join a gang, may be considered irreversible and thus immutable.” Id. ¶ 37; Social Group Guidelines ¶ 6; Matter of S-E-G-, 24 I.&N. Dec. at 584 (“[Y]outh who have been targeted for recruitment by, and resisted, criminal gangs may have a shared past experience, which, by definition, cannot be changed.”).
Consistent with this interpretation, parties to the 1951 Convention and its 1967 Protocol— including the United States—have held that gang violence victims or resisters to gang recruitment may form particular social groups under the protected characteristics approach. See Tobias Gomez, 2011 F.C. at 1093 (innate characteristics and shared past experience); AZ, [2010] UKUT at 118 (shared past experience); Valdiviezo-Galdamez v. U.S. Att’y Gen., 502 F.3d 285, 291 (3d Cir. 2007) (remanding to BIA to consider whether “young Honduran men who have been actively recruited by gangs and who have refused to join the gangs” constitute particular social group; noting that group “shares the characteristics of other groups that the BIA has found to constitute a ‘particular social group’”).
As to domestic violence, the particular social group applicable to such cases may be defined by gender alone, or by gender in combination with other characteristics related to relationship status. Both groups qualify under the “protected characteristics” approach. In UNHCR’s view, “sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics.” Social Group Guidelines ¶ 12; Gender Guidelines ¶ 30; see also Ward, 2 S.C.R. at 739 (contemplating a particular social group encompassing all women); VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya v. Sec’y of State for the Home Dep’t [2008] UKAIT 00049 (recognizing a particular social group of “women (girls) in Kenya”).43
43 http://www.refworld.org/docid/484d4a222.html.
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Alternatively, particular social groups may be defined by gender in combination with other factors. See, e.g., Niang, 422 F.3d at 1199. These other factors include relationship status, which may be unchangeable because of external religious, cultural, or legal constraints. Cf. U.N. Centre for Soc. Dev. & Humanitarian Affairs, Violence Against Women in the Family 33, U.N. Doc. ST/CSDHA/2 (1989) (“Violence Against Women”) (noting that men in Guatemala and El Salvador societies view “the women they live with [as] their possessions or chattels”).
The new policies erroneously hold that the proposed group in Matter of A-B-, “married women in Guatemala who are unable to leave their relationship,” is defined circularly by a fear of being subject to domestic violence. While a particular social group cannot be defined “exclusively by the persecution . . . or by a common fear of being persecuted,” “persecutory action toward a group may be a relevant factor” in determining the contours of that group. Social Group Guidelines ¶ 14; accord A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 (Austl.).44 Inability to leave a relationship may be caused by factors apart from the threat of harm from a domestic partner—because of, say, cultural or religious reasons. Among other things, women in domestic relationships in Guatemala and El Salvador are considered subordinate to, and under the control of, their male partners. Violence Against Women at 33. By assuming that “unable to leave their relationship” is equivalent to being “subject to domestic violence,” the new policies improperly conflate wider sociocultural norms that subordinate women to men in Central American societies.
2. Social Perception The social perception approach examines whether group members share a common characteristic that makes them a cognizable group or that sets them apart from society at large.
44 http://www.refworld.org/docid/3ae6b7180.html.
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Social Group Guidelines ¶ 7; see also A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 (Austl.).
Gang violence victims may constitute a particular social group under such an approach. In a society “where it is risky for people to oppose gangs, often in closely knitted neighborhoods that are effectively controlled by gangs, gang resisters may be set apart in society.” Gang Note ¶ 41. This situation is common in Central America, where gangs exert extraordinary social control. El Salvador Guidelines at 12; Honduras Guidelines at 18, 38. For example, in El Salvador, “[p]ersons who resist the authority of the local gang . . . are reportedly subject to swift and brutal retaliation from the gang.” El Salvador Guidelines at 13. Similar circumstances affect Hondurans. Honduras Guidelines at 18 (“Many gangs are reported to forbid inhabitants to show ‘disrespect’ for the gang [which can] encompass arguing with a gang member or refusing a request.”).
A particular social group of domestic violence victims can also satisfy the social perception requirement. See Social Group Guidelines ¶ 7 (“[W]omen . . . have been recognized under [the social perception analysis] as particular social groups.”). Being female “identif[ies] them as a group in society, subjecting them to different treatment and standards in some countries.” Gender Guidelines ¶ 30; see also Khawar, [2002] HCA 14, ¶ 35 (“Women in any society are a distinct and recognizable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.”). Moreover, in certain Central American countries, the intersection of gender and relationship status also identifies a socially distinct group. Women in domestic relationships are considered subordinate to, and under the control of, their male partners—a view that contributes to the serious problem of domestic violence in Guatemala and El Salvador. This in turn reinforces for men that “the women they live with are their possessions or chattels that they can treat as they wish and as they consider
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appropriate.” Violence Against Women at 33. A woman’s subordinate status places her in a segment of society that is not accorded protection from harm by a domestic partner.
3. Particularity As to “particularity,” the new policies assert that “[s]ocial groups defined by their vulnerability to private criminal activity likely lack . . . particularity [because] . . . broad swaths of society may be susceptible to victimization.” Matter of A-B-, 27 I.&N. Dec. at 335. Gang violence victims do not form a particular social group because they “are too diffuse” and “often come from all segments of society.” Id. (internal quotation marks omitted). However, under prevailing international standards, the size and diffusiveness of a proposed group are irrelevant. Social Group Guidelines ¶ 18 (“The size of the purported social group is not a relevant criterion in determining whether a particular social group exists within the meaning of Article 1A(2).”); id. ¶ 15 (“It is widely accepted in State practice that . . . there is no requirement that the group be ‘cohesive.’”). Looking outside the particular social group context, and towards the other protected grounds, broad swaths of society—“perhaps even . . . a majority of the population”—may share religious or political ideologies that are suppressed by the state. Id. ¶ 18. “[M]embers of a religion or holders of a political opinion” may likewise come from all segments of society. Id. ¶ 15. In short, there is no size or diffusiveness requirement for those seeking asylum on account of race, religious, nationality, or political opinion. It makes little sense to impose a set of more demanding requirements for asylum on account of membership in a particular social group, particularly as international guidance and U.S. case law embraces a “flexible” approach towards this protected ground. Id. ¶ 3 (“[M]embership in a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of group in various societies and evolving human
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rights norms.”); Rios v. Lynch, 807 F.3d 1123, 1124 (9th Cir. 2015) (particular social group is an “inherently flexible term”); Ruiz-Cabrera v. Holder, 748 F.3d 754, 757 (7th Cir. 2014) (same).
C. The New Policies Err in Their Nexus Analysis Under the INA, asylum seekers must demonstrate that a protected ground “was or will be at least one central reason for” the alleged persecution—a provision commonly known as the nexus requirement. 8 U.S.C. § 1158(b)(1)(B)(i); Cruz v. Sessions, 853 F.3d 122, 127–28 (4th Cir. 2017). On this point, the USCIS Guidance asserts that “when a private actor inflicts violence based on a personal relationship with the victim, the victim’s membership in a larger group often will not be ‘one central reason’ for the abuse.” USCIS Guidance at 6; Matter of A-B-, 27 I.&N. Dec. at 338– 39. According to the new policies, gang and domestic violence victims are targeted not because of their membership in a social group, but because of their “preexisting personal relationship” with the persecutors. Id. at 339. These instructions misapply the nexus requirement. Pursuant to the 1951 Convention, the protected ground need only be a “relevant contributing factor, though it need not be shown to be the sole, or dominant, cause” of the persecution. Gender Guidelines ¶ 20; Trafficking Guidelines ¶ 29. Nexus is established when “the harm is being visited upon the victim for reasons of a Convention ground.” Social Group Guidelines ¶ 21. When the persecutor is a non-state actor, nexus may also be established “where the risk of being persecuted at the hands of a non-state actor is unrelated to a Convention ground, but the inability or unwillingness of the state to offer protection is for reasons of a Convention ground.” Gender Guidelines ¶ 21; Social Group Guidelines ¶ 20. UNHCR recognizes these as separate ways to establish nexus: targeting by the private actor or non-protection by the government. As to gang violence, the necessary link between membership in a particular social group and persecution can be established by the “strategies, tactics or means and methods of [violence]
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of the persecutor.” Armed Conflict Guidelines ¶ 32; Gang Note ¶ 65. Because some Central American gangs exercise “extraordinary levels of social control over the population of their territories,” they do not tolerate “‘disrespect’ for the gang.” El Salvador Guidelines at 13. A key strategy to maintaining control is “swift and brutal retaliation” against any person who “resist[s] the authority of the local gang.” Id. at 13–14. For these gangs, a victim’s membership in a particular social group clearly serves as a contributing factor to persecution.
In the context of domestic violence, “if the State is unwilling to extend protection based on one of the five grounds, then she may [nonetheless] be able to establish a valid claim for refugee status: the harm visited upon her by her husband is based on the State’s unwillingness to protect her for reasons of a Convention ground.” Social Group Guidelines ¶ 22. Moreover, perpetrators in societies that oppress women often abuse their victims precisely because they are in a domestic relationship and unable to leave, a point previously acknowledged. See DHS’s Position on Respt’s Eligibility for Relief, Matter of R-A-, A 73 753 922, at 27 (A.G. Feb. 19, 2004) (“DHS R-A- Brief”) (“A group defined as ‘married women in Guatemala who are unable to leave the relationship’ . . . accurately identifies the reason why the persecutor chose his wife as his victim.”). The domestic relationship places the woman in a subordinate position, and her partner abuses her because of his corresponding belief in his right to control and abuse her, which society affirms. See Special Rapporteur on Violence Against Women, its Causes and Consequences, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission ¶¶ 27, 53, U.N. Doc. E/CN.4/1996/53 (Feb. 5, 1996);45 Violence Against Women at 33. Evidence of this nexus may come directly from the abuser and/or from circumstantial evidence (such as country condition information) that domestic
45 http://undocs.org/E/CN.4/1996/53.
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violence against women is accepted or supported by a state. A gendered social and cultural value system may implicate the state’s inability or unwillingness to protect domestic violence victims.
The new policies assert that domestic violence cases are not on account of the victims’ membership in a particular social group because the persecutors only target their partners, and do not “b[ear] any particular animosity toward women who were intimate with abusive partners.” Matter of A-B-, 27 I.&N. Dec. at 339. But whether or not the persecutors target female domestic partners of other men is irrelevant. The persecutor abuses his wife or partner specifically because she is his subordinate domestic partner and he can, with the approval of society (be it tacit or overt), exercise authority over her. That he does not abuse women over whom he does not perceive himself to have the same authority and control does not suggest that the abuse is not on account of the victim’s status as his subordinate domestic partner. Cf. Matter of S-A-, 22 I. & N. Dec. 1328, 1336 (B.I.A. 2000) (Islamic father persecuted daughter on account of her liberal beliefs, even though there was no evidence that he would persecute liberal daughters of other fathers). This point was made well in Matter of R-A-, where an analogy was drawn to a slave owner who beats his own slave but has neither the inclination nor the opportunity to beat his neighbor’s slave. It would still be reasonable under such circumstances to conclude that the beating was on account of the victim’s status as a slave. See DHS R-A- Brief at 34. IV. RAISING THE CREDIBLE FEAR THRESHOLD RUNS COUNTER TO
INTERNATIONAL LAW UNHCR recognizes “that national procedures for the determination of refugee status may usefully include [a] special provision for dealing in an expeditious manner with applications” that are “clearly abusive” or “manifestly unfounded.” UNHCR Exec. Comm., The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum No. 30 (XXXIV)
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(1983, revised 2009) (“UNHCR Exec. Comm., Manifestly Unfounded or Abusive Applications”).46 However, any such procedures must, taking into account “the grave consequences of an erroneous decision,” be “accompanied by appropriate procedural guarantees.” Id. “[T]he criteria for making . . . a determination should be defined in such a way that no application will be treated as manifestly unfounded or abusive unless its fraudulent character or its lack of any connection with the relevant criteria is truly free from doubt.” UNHCR, Follow-up on Earlier Conclusions of the SubCommittee on the Determination of Refugee Status with Regard to the Problem of Manifestly Unfounded or Abusive Applications ¶ 19, U.N. Doc. EC/SCP/29 (Aug. 26, 1983).47 The underlying purpose behind such procedural provisions is to safeguard non-refoulement, a foundational principle of the 1951 Convention and recognized as a norm of customary international law. UNHCR, Declaration of States Parties to the 1951 Convention and Its 1967 Protocol Relating to the Status of Refugees ¶ 4 (Jan. 16, 2002).48
Congress established the credible fear screening process to comport with non-refoulement. In the course of enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Congressman Henry Hyde emphasized that expedited removal would be accompanied by “major safeguards”—most notably the credible fear process—that would protect “against returning persons who meet the refugee definition to conditions of persecution.” 142 Cong. Rec. H11071, H11081 (daily ed. Sept. 25, 1996). Other representatives echoed this sentiment. See 142 Cong. Rec. H11054, H11066–67 (daily ed. Sept. 25, 1996) (“It is . . . important . . . that the process be fair [and] . . . not result in sending genuine refugees back to persecution.”).
46 http://www.unhcr.org/en-us/excom/exconc/3ae68c6118/problem-manifestly-unfoundedabusive-applications-refugee-status-asylum.html. 47 http://www.unhcr.org/en-us/excom/scip/3ae68cd30/follow-up-earlier-conclusions-subcommittee-determination-refugee-status.html. 48 http://www.refworld.org/docid/3d60f5557.html.
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Case law and statutory text further confirm that “credible fear” is an intentionally low threshold, which seeks only to extricate claims that clearly lack merit. See, e.g., Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10320 (Mar. 6, 1997) (“The credible fear standard sets a low threshold of proof of potential entitlement to asylum.”). The credible fear interview is “not designed to elicit all the details of an alien’s claim, but rather only to determine whether there is a significant possibility that the alien could establish eligibility for asylum.” Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009) (ellipses and internal quotation marks omitted) (citing 8 U.S.C. § 1225(b)(1)(B)(ii)); see also id. at 718 (“The purpose of this interview is to determine whether you may be eligible for asylum.”) (emphasis added).
Under the new policies, asylum officers “must factor the above standards”—i.e., the impermissibly high standards on “unable or unwilling,” particular social group, and nexus—into their credible fear determinations. USCIS Guidance at 9. Accordingly, “few gang-based or domestic-violence claims involving particular social groups defined by the members’ vulnerability to harm [will] . . . pass the ‘significant possibility’ test in credible fear screenings.” Id. at 10.
This process diverges from UNHCR’s view that, even in expedited removal, only “manifestly unfounded or abusive” applications should be initially excluded. UNHCR Exec. Comm., Manifestly Unfounded or Abusive Applications. As discussed above, violence by nonstate actors—including gang and domestic violence—can, in fact, undergird a valid asylum claim; such claims are therefore not categorically “manifestly unfounded or abusive.”
Although the USCIS Guidance notes that asylum officers must “consider the totality of the circumstances” and must bear in mind “whether the alien’s case presents novel or unique issues,” USCIS Guidance at 7, 9, the Guidance provides none of the “appropriate procedural guarantees,”
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UNHCR Exec. Comm., Manifestly Unfounded or Abusive Applications, to ensure that meritorious claims are heard rather than excluded at the credible fear stage. The lack of such safeguards jeopardizes the U.S. commitment to non-refoulement, and will only increase the risk that meritorious asylum seekers are returned to their country of origin. V. CONCLUSION
For the foregoing reasons, UNHCR submits that the new policies at issue are at variance with the United States’ international obligations under the 1951 Convention and its 1967 Protocol.
Respectfully submitted, /s/ Ana Reyes ANA C. REYES (D.C. Bar No. 477354) XIAO WANG (D.C. Bar No. 1035487) YOULIN YUAN (D.C. Bar No. 1613542) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 (202) 434-5000 (202) 434-5029 (fax)
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CERTIFICATE OF SERVICE
I hereby certify that on September 28, 2018, I filed this Motion with the United States District Court for the District of Columbia using the CM/ECF system, which will cause it to be served on all counsel of record.

Dated: September 28, 2018

Respectfully submitted
/s/ Ana Reyes ANA C. REYES (D.C. Bar No. 477354) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 (202) 434-5000 (202) 434-5029 (fax)

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 Case 1:18-cv-01853-EGS Document 106 Filed 12/19/18 Page 1 of 107

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRACE, et al., v.

Plaintiffs,

MATTHEW G. WHITAKER,1 Acting Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) ) No. 18-cv-01853 (EGS) ) ) ) ) ) )

MEMORANDUM OPINION When Congress passed the Refugee Act in 1980, it made its intentions clear: the purpose was to enforce the “historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” Refugee Act of 1980, § 101(a), Pub. L. No. 96–212, 94 Stat. 102 (1980). Years later, Congress amended the immigration laws to provide for expedited removal of those seeking admission to the United States. Under the expedited removal process, an alien could be summarily removed after a preliminary inspection by an immigration officer, so long as the alien did not have a credible fear of persecution by his or her country of origin. In

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes the current Acting Attorney General as the defendant in this case. “Plaintiffs take no position at this time regarding the identity of the current Acting Attorney General of the United States.” Civil Statement, ECF No. 101.

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creating this framework, Congress struck a balance between an efficient immigration system and ensuring that “there should be no danger that an alien with a genuine asylum claim will be returned to persecution.” H.R. REP. NO. 104-469, pt. 1, at 158 (1996).
Seeking an opportunity for asylum, plaintiffs, twelve adults and children, alleged accounts of sexual abuse, kidnappings, and beatings in their home countries during interviews with asylum officers.2 These interviews were designed to evaluate whether plaintiffs had a credible fear of persecution by their respective home countries. A credible fear of persecution is defined as a “significant possibility” that the alien “could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v). Although the asylum officers found that plaintiffs’ accounts were sincere, the officers denied their claims after applying the standards set forth in a recent precedential immigration decision issued by then-Attorney General, Jefferson B. Sessions, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
Plaintiffs bring this action against the Attorney General alleging violations of, inter alia, the Administrative Procedure Act (“APA”) and the Immigration and Nationality Act (“INA”),
2 Plaintiffs Grace, Carmen, Gio, Gina, Maria, Mina, Nora, and Mona are proceeding under pseudonyms.
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arguing that the standards articulated in Matter of A-B-, and a subsequent Policy Memorandum issued by the Department of Homeland Security (“DHS”) (collectively “credible fear policies”), unlawfully and arbitrarily imposed a heightened standard to their credible fear determinations.
Pending before the Court are: (1) plaintiffs’ combined motions for a preliminary injunction and cross-motion for summary judgment; (2) plaintiffs’ motion to consider evidence outside the administrative record; (3) the government’s motion to strike exhibits supporting plaintiffs’ motion for summary judgment; and (4) the government’s motion for summary judgment. Upon consideration of the parties’ memoranda, the parties’ arguments at the motions hearings, the arguments of amici,3 the administrative record, the applicable law, and for the reasons discussed below, the Court finds that several of the new credible fear policies, as articulated in Matter of A-B- and the Policy Memorandum, violate both the APA and INA. As explained in this Memorandum Opinion, many of these policies are inconsistent with the intent of Congress as articulated in the INA. And because it is the will of Congress—not the whims of the Executive—that determines the standard for expedited removal, the Court finds that those policies are unlawful.
3 The Court appreciates the illuminating analysis provided by the amici.
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Part I of this Opinion sets forth background information necessary to resolve plaintiffs’ claims. In Part II, the Court considers plaintiffs’ motion to consider evidence outside the administrative record and denies the motion in part. In Part III, the Court considers the parties’ cross-motions for summary judgment. In Part III.A, the Court considers the government’s arguments that this case is not justiciable and holds that this Court has jurisdiction to hear plaintiffs’ challenges to the credible fear policies. In Part III.B, the Court addresses the legal standards that govern plaintiffs’ claims. In Part III.C, the Court turns to the merits of plaintiffs’ claims and holds that, with the exception of two policies, the new credible fear policies are arbitrary, capricious, and in violation of the immigration laws. In Part III.D, the Court considers the appropriate form of relief and vacates the unlawful credible fear policies. The Court further permanently enjoins the government from continuing to apply those policies and from removing plaintiffs who are currently in the United States without first providing credible fear determinations consistent with the immigration laws. Finally, the Court orders the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with new credible fear determinations consistent with the immigration laws.
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I. Background Because the claims in this action center on the expedited
removal procedures, the Court discusses those procedures, and the related asylum laws, in detail.
A. Statutory and Regulatory Background The Refugee Act
In 1980, Congress passed the Refugee Act, Pub. L. No. 96212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-414, 66 Stat. 163 (1952)(codified as amended in sections of 8 U.S.C.). The “motivation for the enactment of the Refugee Act” was the “United Nations Protocol Relating to the Status of Refugees [“Protocol”],” INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987), “to which the United States had been bound since 1968,” id. at 432–33. Congress was clear that its intent in promulgating the Refugee Act was to bring the United States’ domestic laws in line with the Protocol. See id. at 437 (stating it is “clear from the legislative history of the new definition of ‘refugee,’ and indeed the entire 1980 Act . . . that one of Congress’ primary purposes was to bring United States refugee law into conformance with the [Protocol].”). The Board of Immigration Appeals (“BIA”), has also recognized that Congress’ intent in enacting the Refugee Act was to align domestic refugee law with the United States’ obligations under the Protocol, to give statutory meaning to “our national commitment to human rights
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and humanitarian concerns,” and “to afford a generous standard for protection in cases of doubt.” In Re S-P-, 21 I. & N. Dec. 486, 492 (B.I.A. 1998)(quoting S. REP. NO. 256, 96th Cong., 2d Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141, 144).
The Refugee Act created a statutory procedure for refugees seeking asylum and established the standards for granting such requests; the INA currently governs that procedure. The INA gives the Attorney General discretion to grant asylum to removable aliens. 8 U.S.C. § 1158(b)(1)(A). However, that relief can only be granted if the alien is a “refugee.” Id. The term “refugee” is defined as:
[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). “Thus, the ‘persecution or wellfounded fear of persecution’ standard governs the Attorney General’s determination [of] whether an alien is eligible for asylum.” Cardoza-Fonseca, 480 U.S. at 428. To establish refugee status, the alien must show he or she is someone who: (1) has suffered persecution (or has a well-founded fear of persecution) (2) on account of (3) one of five specific protected grounds:
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race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A). An alien fearing harm by non-governmental actors is eligible for asylum if the other criteria are met, and the government is “unable or unwilling to control” the persecutor. Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
Expedited Removal Process Before seeking asylum through the procedures outlined above, however, many aliens are subject to a streamlined removal process called “expedited removal.” 8 U.S.C. § 1225. Prior to 1996, every person who sought admission into the United States was entitled to a full hearing before an immigration judge, and had a right to administrative and judicial review. See Am. Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 41 (D.D.C. 1998)(describing prior system for removal). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) amended the INA to provide for a summary removal process for adjudicating the claims of aliens who arrive in the United States without proper documentation. As described in the IIRIRA Conference Report, the purpose of the expedited removal procedure
is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted . . . , while
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providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims. H.R. REP. NO. 104–828, at 209–10 (1996)(“Conf. Rep.”). Consistent with that purpose, Congress carved out an exception to the expedited removal process for individuals with a “credible fear of persecution.” See 8 U.S.C. § 1225(b)(1)(B)(ii). If an alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” the alien must be referred for an interview with a U.S. Citizenship and Immigration Services (“USCIS”) asylum officer. Id. § 1225(b)(1)(A)(ii). During this interview, the asylum officer is required to “elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture[.]” 8 C.F.R. § 208.30(d). The asylum officer must “conduct the interview in a nonadversarial manner.” Id. Expediting the removal process, however, risks sending individuals who are potentially eligible for asylum to their respective home countries where they face a real threat, or have a credible fear of persecution. Understanding this risk, Congress intended the credible fear determinations to be governed by a low screening standard. See 142 CONG. REC. S11491-02 (“The credible fear standard . . . is intended to be a low
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screening standard for admission into the usual full asylum process”); see also H.R. REP. NO. 104-469, pt. 1, at 158 (1996)(stating “there should be no danger that an alien with a genuine asylum claim will be returned to persecution”). A credible fear is defined as a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).
If, after a credible fear interview, the asylum officer finds that the alien does have a “credible fear of persecution” the alien is taken out of the expedited removal process and referred to a standard removal hearing before an immigration judge. See 8 U.S.C. § 1225(b)(1)(B)(ii), (v). At that hearing, the alien has the opportunity to develop a full record with respect to his or her asylum claim, and may appeal an adverse decision to the BIA, 8 C.F.R. § 208.30(f), and then, if necessary, to a federal court of appeals, see 8 U.S.C. § 1252(a)-(b).
If the asylum officer renders a negative credible fear determination, the alien may request a review of that determination by an immigration judge. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). The immigration judge’s decision is “final and may not be appealed” 8 C.F.R. § 1208.30(g)(2)(iv)(A),
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except in limited circumstances. See 8 U.S.C. § 1252(e). Judicial Review
Section 1252 delineates the scope of judicial review of expedited removal orders and limits judicial review of orders issued pursuant to negative credible fear determinations to a few enumerated circumstances. See 8 U.S.C. § 1252(a). The section provides that “no court shall have jurisdiction to review . . . the application of [section 1225(b)(1)] to individual aliens, including the [credible fear] determination made under section 1225(b)(1)(B).” 8 U.S.C. § 1252(a)(2)(A)(iii). Moreover, except as provided in section 1252(e), the statute prohibits courts from reviewing: (1) “any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an [expedited removal] order;” (2) “a decision by the Attorney General to invoke” the expedited removal regime; and (3) the “procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1).” Id. § 1252(a)(2)(A)(i), (ii) & (iv).
Section 1252(e) provides for judicial review of two types of challenges to removal orders pursuant to credible fear determinations. The first is a habeas corpus proceeding limited to reviewing whether the petitioner was erroneously removed because he or she was, among other things, lawfully admitted for
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permanent residence, or had previously been granted asylum. 8 U.S.C. § 1252(e)(2)(C). As relevant here, the second proceeding available for judicial review is a systemic challenge to the legality of a “written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement” the expedited removal process. Id. § 1252(e)(3)(A)(ii). Jurisdiction to review such a systemic challenge is vested solely in the United States District Court for the District of Columbia. Id. § 1252(e)(3)(A).
B. Executive Guidance on Asylum Claims Precedential Decision
The Attorney General has the statutory and regulatory authority to make determinations and rulings with respect to immigration law. See, e.g., 8 U.S.C. § 1103(a)(1). This authority includes the ability to certify cases for his or her review and to issue binding decisions. See 8 C.F.R. §§ 1003.1(g)-(h)(1)(ii).
On June 11, 2018, then-Attorney General Sessions did exactly that when he issued a precedential decision in an asylum case, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). In Matter of A-B-, the Attorney General reversed a grant of asylum to a Salvadoran woman who allegedly fled several years of domestic violence at the hands of her then-husband. Id. at 321, 346.
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The decision began by overruling another case, Matter of AR-C-G-, 27 I. & N. Dec. 388 (BIA 2014). Id. at 319. In A-R-C-G-, the BIA recognized “married women in Guatemala who are unable to leave their relationship” as a “particular social group” within the meaning of the asylum statute. 27 I. & N. Dec. at 392. The Attorney General’s rationale for overruling A-R-C-G- was that it incorrectly applied BIA precedent, “assumed its conclusion and did not perform the necessary legal and factual analysis” because, among other things, the BIA accepted stipulations by DHS that the alien was a member of a qualifying particular social group. Matter of A-B-, 27 I. & N. Dec. at 319. In so doing, the Attorney General made clear that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” id. at 320,4 and “[a]ccordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.” Id. at 320 n.1 (citing 8 U.S.C. § 1225(b)(1)(B)(v)).
The Attorney General next reviewed the history of BIA precedent interpreting the “particular social group” standard and again explained, at length, why A-R-C-G- was wrongly
4 Although Matter of A-B- discusses gang-related violence at length, the applicant in Matter of A-B- never claimed gang members had any involvement in her case. Id. at 321 (describing persecution related to domestic violence).
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decided. In so ruling, the Attorney General articulated legal standards for determining asylum cases based on persecution from non-governmental actors on account of membership in a particular social group, focusing principally on claims by victims of domestic abuse and gang violence. He specifically stated that few claims pertaining to domestic or gang violence by nongovernmental actors could qualify for asylum or satisfy the credible fear standard. See id. at 320 n.1.
The Attorney General next focused on the specific elements of an asylum claim beginning with the standard for membership in a “particular social group.” The Attorney General declared that “[s]ocial groups defined by their vulnerability to private criminal activity likely lack the particularity required” under asylum laws since “broad swaths of society may be susceptible to victimization.” Id. at 335.
The Attorney General next examined the persecution requirement, which he described as having three elements: (1) an intent to target a belief or characteristic; (2) severe harm; and (3) suffering inflicted by the government or by persons the government was unable or unwilling to control. Id. at 337. With respect to the last element, the Attorney General stated that an alien seeking to establish persecution based on the violent conduct of a private actor may not solely rely on the government’s difficulty in controlling the violent behavior. Id.
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Rather, the alien must show “the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims.” Id. (citations and internal quotation marks omitted).
The Attorney General concluded with a discussion of the requirement that an asylum applicant demonstrate that the persecution he or she suffered was on account of a membership in a “particular social group.” Id. at 338–39. He explained that “[i]f the ill-treatment [claimed by an alien] was motivated by something other than” one of the five statutory grounds for asylum, then the alien “cannot be considered a refugee for purpose of asylum.” Id. at 338 (citations omitted). He continued to explain that when private actors inflict violence based on personal relationships with a victim, the victim’s membership in a particular social group “may well not be ‘one central reason’ for the abuse.” Id. Using Matter of A-R-C-G- as an example, the Attorney General stated that there was no evidence that the alien was attacked because her husband was aware of, and hostile to, her particular social group: women who were unable to leave their relationship. Id. at 338-39. The Attorney General remanded the matter back to the immigration judge for further proceedings consistent with his decision. Id. at 346.
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Policy Memorandum Two days after the Attorney General issued Matter of A-B-, USCIS issued Interim Guidance instructing asylum officers to apply Matter of A-B- to credible fear determinations. Asylum Division Interim Guidance -- Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) (“Interim Guidance”), ECF No. 100 at 15–18.5 On July 11, 2018, USCIS issued final guidance to asylum officers for use in assessing asylum claims and credible fear determinations in light of Matter of A-B-. USCIS Policy Mem., Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-, July 11, 2018 (PM-6020162) (“Policy Memorandum”), ECF No. 100 at 4–13. The Policy Memorandum adopts the standards set forth in Matter of A-B- and adds new directives for asylum officers. First, like Matter of A-B-, the Policy Memorandum invokes the expedited removal statute. Id. at 4 (citing section 8 U.S.C. § 1225 as one source of the Policy Memorandum’s authority). The Policy Memorandum further acknowledges that “[a]lthough the alien in Matter of A-B- claimed asylum and withholding of removal, the Attorney General’s decision and this [Policy Memorandum] apply also to refugee status adjudications and
5 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed docket.
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reasonable fear and credible fear determinations.” Id. n.1 (citations omitted).
The Policy Memorandum also adopts the standard for “persecution” set by Matter of A-B-: In cases of alleged persecution by private actors, aliens must demonstrate the “government is unwilling or unable to control” the harm “such that the government either ‘condoned the behavior or demonstrated a complete helplessness to protect the victim.’” Id. at 5 (citing Matter of A-B-, 27 I. & N. Dec. at 337). After explaining the “condoned or complete helplessness” standard, the Policy Memorandum explains that:
In general, in light of the [standards governing persecution by a non-government actor], claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by nongovernment actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution. Id. at 9 (emphasis in original). Furthermore, the Policy Memorandum made clear that because Matter of A-B- “explained the standards for eligibility for asylum . . . based on a particular social group . . . if an applicant claims asylum based on membership in a particular social group, then officers must factor [the standards explained in Matter of A-B-] into their determination of whether an
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applicant has a credible fear . . . of persecution.” Id. at 12 (citations and internal quotation marks omitted).
The Policy Memorandum includes two additional directives not found in Matter of A-B-. First, it instructs asylum officers to apply the “case law of the relevant federal circuit court, to the extent that those cases are not inconsistent with Matter of A-B-.” Id. at 11. Second, although acknowledging that the “relevant federal circuit court is the circuit where the removal proceedings will take place if the officer makes a positive credible fear or reasonable fear determination,” the Policy Memorandum instructs asylum officers to “apply precedents of the Board, and, if necessary, the circuit where the alien is physically located during the credible fear interview.” Id. at 11–12. (emphasis added).
The Policy Memorandum concludes with the directive that “[asylum officers] should be alert that under the standards clarified in Matter of A-B-, few gang-based or domestic-violence claims involving particular social groups defined by the members’ vulnerability to harm may . . . pass the ‘significant probability’ test in credible-fear screenings.” Id. at 13.
C. Factual and Procedural Background Each of the plaintiffs, twelve adults and children, came to the United States fleeing violence from Central America and seeking refuge through asylum. Plaintiff Grace fled Guatemala
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after having been raped, beaten, and threatened for over twenty years by her partner who disparaged her because of her indigenous heritage. Grace Decl., ECF No. 12-1 ¶ 2.6 Her persecutor also beat, sexually assaulted, and threatened to kill several of her children. Id. Grace sought help from the local authorities who, with the help of her persecutor, evicted her from her home. Id.
Plaintiff Carmen escaped from her country with her young daughter, J.A.C.F., fleeing several years of sexual abuse by her husband, who sexually assaulted, stalked, and threatened her, even after they no longer resided together. Carmen Decl., ECF No. 12-2 ¶ 2. In addition to Carmen’s husband’s abuse, Carmen and her daughter were targeted by a local gang because they knew she lived alone and did not have the protection of a family. Id. ¶ 24. She fled her country of origin out of fear the gang would kill her. Id. ¶ 28.
Plaintiff Mina escaped from her country after a gang murdered her father-in-law for helping a family friend escape from the gang. Mina Decl., ECF No. 12-3 ¶ 2. Her husband went to the police, but they did nothing. Id. at ¶ 10. While her husband was away in a neighboring town to seek assistance from another police force, members of the gang broke down her door and beat
6 The plaintiffs’ declarations have been filed under seal. 18

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Mina until she could no longer walk. Id. ¶ 15. She sought asylum in this country after finding out she was on a “hit list” compiled by the gang. Id. ¶¶ 17–18.
The remaining plaintiffs have similar accounts of abuse either by domestic partners or gang members. Plaintiff Gina fled violence from a politically-connected family who killed her brother, maimed her son, and threatened her with death. Gina Decl., ECF No. 12-4 ¶ 2. Mona fled her country after a gang brutally murdered her long-term partner—a member of a special military force dedicated to combating gangs—and threatened to kill her next. Mona Decl., ECF No. 12-5 ¶ 2. Gio escaped from two rival gangs, one of which broke his arm and threatened to kill him, and the other threatened to murder him after he refused to deal drugs because of his religious convictions. Gio Decl., ECF No. 12-6 ¶ 2. Maria, an orphaned teenage girl, escaped a forced sexual relationship with a gang member who targeted her after her Christian faith led her to stand up to the gang. Maria Decl., ECF No. 12-7 ¶ 2. Nora, a single mother, together with her son, A.B.A., fled an abusive partner and members of his gang who threatened to rape her and kill her and her son if she did not submit to the gang’s sexual advances. Nora Decl., ECF No. 12-8 ¶ 2. Cindy, together with her young child, A.P.A., fled rapes, beatings, and shootings
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. Cindy Decl., ECF No. 12-9 ¶ 2.7 Each plaintiff was given a credible fear determination pursuant to the expedited removal process. Despite finding that the accounts they provided were credible, the asylum officers determined that, in light of Matter of A-B-, their claims lacked merit, resulting in a negative credible fear determination. Plaintiffs sought review of the negative credible fear determinations by an immigration judge, but the judge affirmed the asylum officers’ findings. Plaintiffs are now subject to final orders of removal or were removed pursuant to such orders prior to commencing this suit.8 Facing imminent deportation, plaintiffs filed a motion for preliminary injunction, ECF No. 10, and an emergency motion for stay of removal, ECF No. 11, on August 7, 2018. In their motion for stay of removal, plaintiffs sought emergency relief because two of the plaintiffs, Carmen and her daughter J.A.C.F., were “subject to imminent removal.” ECF No. 11 at 1. The Court granted the motion for emergency relief as to the plaintiffs not yet deported. The parties have since filed cross-
7 Each plaintiffs’ harrowing accounts were found to be believable during the plaintiffs’ credible fear interviews. Oral Arg. Hr’g Tr., ECF No. 102 at 37. 8 Since the Court’s Order staying plaintiffs’ removal, two plaintiffs have moved for the Court to lift the stay and have accordingly been removed. See Mot. to Lift Stay, ECF Nos. 28 (plaintiff Mona), 60 (plaintiff Gio).
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motions for summary judgment related to the Attorney General’s precedential decision and the Policy Memorandum issued by DHS. Further, plaintiffs have filed an opposed motion to consider evidence outside the administrative record. II. Motion to Consider Extra Record Evidence
Plaintiffs attach several exhibits to their combined application for a preliminary injunction and cross-motion for summary judgment, see ECF Nos. 10–2 to 10–7, 12-1 to 12-9, 64-3 to 64-8, which were not before the agency at the time it made its decision. These exhibits include: (1) declarations from plaintiffs; (2) declarations from experts pertaining to whether the credible fear policies are new; (3) government training manuals, memoranda, and a government brief; (4) third-party country reports or declarations; (5) various newspaper articles; and (6) public statements from government officials. Pls.’ Evid. Mot., ECF No. 66-1 at 7–16. The government moves to strike these exhibits, arguing that judicial review under the APA is limited to the administrative record, which consists of the “materials that were before the agency at the time its decision was made.” Defs.’ Mot. to Strike, ECF No. 88-1 at 20.
A. Legal Standard “[I]t is black-letter administrative law that in an APA case, a reviewing court ‘should have before it neither more nor less information than did the agency when it made its
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decision.’” Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709 F.3d 44, 47 (D.C. Cir. 2013)(quoting Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). This is because, under the APA, the court is confined to reviewing “the whole record or those parts of it cited by a party,” 5 U.S.C. § 706, and the administrative record only includes the “materials ‘compiled’ by the agency that were ‘before the agency at the time the decision was made,’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)(citations omitted).
Accordingly, when, as here, plaintiffs seek to place before the court additional materials that the agency did not review in making its decision, a court must exclude such material unless plaintiffs “can demonstrate unusual circumstances justifying departure from th[e] general rule.” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)(citation omitted). Aa court may appropriately consider extra-record materials: (1) if the agency “deliberately or negligently excluded documents that may have been adverse to its decision,” (2) if background information is needed to “determine whether the agency considered all of the relevant factors,” or (3) if the agency “failed to explain [the] administrative action so as to frustrate judicial review.” Id.
Plaintiffs make three arguments as to why the Court should 22

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consider their proffered extra-record materials: (1) to evaluate whether the government’s challenged policies are an impermissible departure from prior policies; (2) to consider plaintiffs’ due process cause of action9; and (3) to evaluate plaintiffs’ request for permanent injunctive relief. Pls.’ Evid. Mot., ECF No. 66-1 at 2–12. The Court considers each argument in turn.
B. Analysis Evidence of Prior Policies
Plaintiffs first argue that the Court should consider evidence of the government’s prior policies as relevant to determining whether the policies in Matter of A-B- and the subsequent guidance deviated from prior policies without explanation. Id. at 8–11. The extra-record materials at issue include government training manuals, memoranda, and a government brief, see Decl. of Sarah Mujahid (“Mujahid Decl.”), ECF No. 103 Exs. E–J; Second Decl. of Sarah Mujahid (“Second Mujahid Decl.”), ECF No. 64-4, Exs. 1–3, and declarations from third parties explaining the policies are new, Decl. of Rebecca Jamil and Ethan Nasr, ECF No. 65-5.
The Court will consider the government training manuals,
9 The Court does not reach plaintiffs’ due process claims, and therefore will not consider the extra-record evidence related to that claim. See Second Mujahid Decl., ECF No. 64-4, Exs. 4–7; Second Mujahid Decl., ECF No. 64-4, Exs. 8-9; ECF No. 64-5.
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memoranda, and government brief, but not the declarations explaining them. Plaintiffs argue that the credible fear policies are departures from prior government policies, which the government changed without explanation. Pls.’ Evid. Mot., ECF No. 66-1 at 7–11. The government’s response is the credible fear policies are not a departure because they do not articulate any new rules. See Defs.’ Mot., ECF No. 57-1 at 17. Whether the credible fear policies are new is clearly an “unresolved factual issue” that the “administrative record, on its own, . . . is not sufficient to resolve.” See United Student Aid Funds, Inc. v. Devos, 237 F. Supp. 3d 1, 6 (D.D.C. 2017). The Court cannot analyze this argument without reviewing the prior policies, which are not included in the administrative record. Under these circumstances, it is “appropriate to resort to extra-record information to enable judicial review to become effective.” Id. at 3 (citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989)).
The government agrees that “any claim that A-B- or the [Policy Memorandum] breaks with past policies . . . is readily ascertainable by simply reviewing the very ‘past policies.’” Defs.’ Mot. to Strike, ECF No. 88-1 at 24. However, the government disagrees with the types of documents that are considered past policies. Id. According to the government, the only “past policies” at issue are legal decisions issued by the
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Attorney General, BIA, or courts of appeals. Id. The Court is not persuaded by such a narrow interpretation of the evidence that can be considered as past policies. See Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 255 (D.D.C. 2005)(finding training manual distributed as informal guidance “at a minimum” reflected the policy of the “Elections Crimes Branch if not the Department of Justice”).
Admitting third party-declarations from a retired immigration officer and former immigration judge, on the other hand, are not necessary for the Court in its review. Declarations submitted by third-parties regarding putative policy changes would stretch the limited extra-record exception too far. Accordingly, the Court will not consider these declarations when determining whether the credible fear policies constitute an unexplained change of position.
Evidence Supporting Injunctive Relief The second category of information plaintiffs ask the Court to consider is extra-record evidence in support of their claim that injunctive relief is appropriate. Pls.’ Evid. Mot., ECF No. 66-1 at 13–16. The evidence plaintiffs present includes plaintiffs’ declarations, ECF Nos. 12-1 to 12-9 (filed under seal); several reports describing the conditions of plaintiffs’ native countries, Mujahid Decl., ECF No. 10-3, Exs. K-T; and four United Nations High Commissioner for Refugees (“UNHCR”)
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reports, Second Mujahid Decl., ECF No. 64-4 Exs. 10–13. The materials also include three declarations regarding humanitarian conditions in the three home countries. Joint Decl. of Shannon Drysdale Walsh, Cecilia Menjívar, and Harry Vanden (“Honduras Decl.”), ECF No. 64-6; Joint Decl. of Cecilia Menjívar, Gabriela Torres, and Harry Vanden (“Guatemala Decl.”), ECF No. 64-7; Joint Decl. of Cecilia Menjívar and Harry Vanden (“El Salvador Decl.”), ECF No. 64-8.
The government argues that the Court need not concern itself with the preliminary injunction analysis because the Court’s decision to consolidate the preliminary injunction and summary judgment motions under Rule 65 renders the preliminary injunction moot. Defs.’ Mot. to Strike, ECF No. 88-1 at 12 n.1. The Court concurs, but nevertheless must determine if plaintiffs are entitled to a permanent injunction, assuming they prevail on their APA and INA claims. Because plaintiffs request specific injunctive relief with respect to their expedited removal orders and credible fear proceedings, the Court must determine whether plaintiffs are entitled to the injunctive relief sought. See Eco Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 370, n.7 (D.D.C. 2017)(“it will often be necessary for a court to take new evidence to fully evaluate” claims “of irreparable harm . . . and [claims] that the issuance of the injunction is in the public interest.”)(citation omitted). Thus, the Court will
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consider plaintiffs’ declarations, the UNHCR reports, and the country reports only to the extent they are relevant to plaintiffs’ request for injunctive relief.10
In sum, the Court will consider extra-record evidence only to the extent it is relevant to plaintiffs’ contentions that the government deviated from prior policies without explanation or to their request for injunctive relief. The Court will not consider any evidence related to plaintiffs’ due process claim. Accordingly, the Court will not consider the following documents: (1) evidence related to the opinions of immigration judges and attorneys, Second Mujahid Decl., ECF No. 64-4, Exs. 8–9, 14–17 and ECF No. 64-5; (2) statements of various public officials, Second Mujahid Decl., ECF No. 64-4, Exs. 4–7; and (3) various newspaper articles, Mujahid Decl., ECF No. 10-3, Exs. R-T, and Second Mujahid Decl., ECF No. 64-4, Exs. 14–17. III. Motion for Summary Judgment
A. Justiciability The Court next turns to the government’s jurisdictional arguments that: (1) the Court lacks jurisdiction to review plaintiffs’ challenge to Matter of A-B-; and (2) because the Court lacks jurisdiction to review Matter of A-B-, the
10 The Court will not consider three newspaper articles, Mujahid Decl., ECF No. 10-3, Exs. R–T, however, since they are not competent evidence to be considered at summary judgment. See Fed. R. Civ. P. 56(c).
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government action purportedly causing plaintiffs’ alleged harm, the plaintiffs lack standing to challenge the Policy Memorandum. Federal district courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A court must therefore resolve any challenge to its jurisdiction before it may proceed to the merits of a claim. See Galvan v. Fed. Prison Indus., 199 F.3d 461, 463 (D.C. Cir. 1999). The Court addresses each argument in turn.
The Court has Jurisdiction under Section 1252(e)(3) a. Matter of A-BThe government contends that section 1252 forecloses judicial review of plaintiffs’ claims with respect to Matter of A-B-. Defs.’ Mot., ECF No. 57-1 at 30–34. Plaintiffs argue that the statute plainly provides jurisdiction for this Court to review their claims. Pls.’ Mot., ECF No. 64-1 at 26–30. The parties agree that to the extent jurisdiction exists to review a challenge to a policy implementing the expedited removal system, it exists pursuant to subsection (e) of the statute. Under section 1252(a)(2)(A), no court shall have jurisdiction over “procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1)” except “as provided in subsection [1252](e).” Section 1252(e)(3) vests exclusive jurisdiction in the United States District Court for the District of Columbia to review
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“[c]hallenges [to the] validity of the [expedited removal] system.” Id. § 1252(e)(3)(A). Such systemic challenges include challenges to the constitutionality of any provision of the expedited removal statute or to its implementing regulations. See id. § 1252(e)(3)(A)(i). They also include challenges claiming that a given regulation or written policy directive, guideline, or procedure is inconsistent with law. Id. § 1252(e)(3)(A)(ii). Systemic challenges must be brought within sixty days of the challenged statute or regulation’s implementation. Id. § 1252(e)(3)(B); see also Am. Immigration Lawyers Ass'n, 18 F. Supp. 2d at 47 (holding that “the 60–day requirement is jurisdictional rather than a traditional limitations period”).
Both parties agree that the plain language of section 1252(e)(3) is dispositive. It reads as follows:
(3) Challenges on validity of the system (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of-(i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or
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written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law. 8 U.S.C. § 1252(e)(3). The government first argues that Matter of A-B- does not implement section 1225(b), as required by section 1252(e)(3). Defs.’ Mot., ECF No. 57-1 at 30–32. Instead, the government contends Matter of A-B- was a decision about petitions for asylum under section 1158. Id. The government also argues that Matter of A-B- is not a written policy directive under the Act, but rather an adjudication that determined the rights and duties of the parties to a dispute. Id. at 32. The government’s argument that Matter of A-B- does not “implement” section 1225(b) is belied by Matter of A-B- itself. Although A-B- sought asylum, the Attorney General’s decision went beyond her claims explicitly addressing “the legal standard to determine whether an alien has a credible fear of persecution” under 8 U.S.C. section 1225(b). Matter of A-B-, 27 I. & N. Dec. at 320 n.1 (citing standard for credible fear determinations). In the decision, the Attorney General articulated the general rule that claims by aliens pertaining to either domestic violence, like the claim in Matter of A-B-, or gang violence, a hypothetical scenario not at issue in Matter of A-B-, would likely not satisfy the credible fear determination
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standard. Id. (citing 8 U.S.C. § 1225(b)). Because the Attorney General cited section 1225(b) and the standard for credible fear determinations when articulating the new general legal standard, the Court finds that Matter of A-B- implements section 1225(b) within the meaning of section 1252(e)(3).
The government also argues that, despite Matter of A-B-’s explicit invocation of section 1225 and articulation of the credible fear determination standard, Matter of A-B- is an “adjudication” not a “policy,” and therefore section 1252(e)(3) does not apply. Defs.’ Mot., ECF No. 57-1 at 32–34. However, it is well-settled that an “administrative agency can, of course, make legal-policy through rulemaking or by adjudication.” Kidd Commc’ns v. F.C.C., 427 F.3d 1, 5 (D.C. Cir. 2005)(citing SEC v. Chenery Corp., 332 U.S. 194, 202–03 (1947)). Moreover, “[w]hen an agency does [make policy] by adjudication, because it is a policymaking institution unlike a court, its dicta can represent an articulation of its policy, to which it must adhere or adequately explain deviations.” Id. at 5. Matter of A-B- is a sweeping opinion in which the Attorney General made clear that asylum officers must apply the standards set forth to subsequent credible fear determinations. See NRLB v. Wyman Gordon Co., 394 U.S. 759, 765 (1969)(“Adjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein.”).
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Indeed, it is difficult to reconcile the government’s argument with the language in Matter of A-B-: “When confronted with asylum cases based on purported membership in a particular social group, the Board, immigration judges, and asylum officers must analyze the requirements as set forth in this opinion, which restates and where appropriate, elaborates upon, the requirements [for asylum].” 27 I. & N. Dec. at 319 (emphasis added). This proclamation, coupled with the directive to asylum officers that claims based on domestic or gang-related violence generally would not “satisfy the standard to determine whether an alien has a credible fear of persecution,” id. at 320 n.1, is clearly a “written policy directive” or “written policy guidance” sufficient to bring Matter of A-B- under the ambit of section 1252(e)(3). See Kidd, 427 F.3d at 5 (stating agency can “make legal-policy through rulemaking or by adjudication”). Indeed, one court has regarded Matter of A-B- as such. See Moncada v. Sessions, 2018 WL 4847073 *2 (2d Cir. Oct. 5, 2018)(characterizing Matter of A-B- as providing “substantial new guidance on the viability of asylum ‘claims by aliens pertaining to . . . gang violence’”)(emphasis added)(citation omitted).
The government also argues that because the DHS Secretary, rather than the Attorney General, is responsible for implementing most of the provisions in section 1225, the
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Attorney General lacks the requisite authority to implement section 1225. Defs.’ Reply, ECF No. 85 at 25. Therefore, the government argues, Matter of A-B- cannot be “issued by or under the authority of the Attorney General to implement [section 1225(b)]” as required by the statute. See 8 U.S.C. § 1252(e)(3)(A)(ii). The government fails to acknowledge, however, that the immigration judges who review negative credible fear determinations are also required to apply Matter of A-B-. 8 C.F.R. § 1208.30(g)(2); 8 C.F.R. § 103.10(b)(stating decisions of the Attorney General shall be binding on immigration judges). And it is the Attorney General who is responsible for the conduct of immigration judges. See, e.g., 8 U.S.C. § 1101(b)(4)(“An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe.”). Therefore, the Attorney General clearly plays a significant role in the credible fear determination process and has the authority to “implement” section 1225.
Finally, the Court recognizes that even if the jurisdictional issue was a close call, which it is not, several principles persuade the Court that jurisdiction exists to hear plaintiffs’ claims. First, there is the “familiar proposition that only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to
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judicial review.” Bd. of Governors of the Fed. Reserve Sys. v. MCorp. Fin., Inc., 502 U.S. 32, 44 (1991)(citations and internal quotation marks omitted). Here, there is no clear and convincing evidence of legislative intent in section 1252 that Congress intended to limit judicial review of the plaintiffs’ claims. To the contrary, Congress has explicitly provided this Court with jurisdiction to review systemic challenges to section 1225(b). See 8 U.S.C. § 1252(e)(3).
Second, there is also a “strong presumption in favor of judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 (2001). As the Supreme Court has recently explained, “legal lapses and violations occur, and especially so when they have no consequence. That is why [courts have for] so long applied a strong presumption favoring judicial review of administrative action.” Weyerhaeuser Co. v. United States Fish and Wildlife Servs., 586 U.S. __,__ (2018)(slip op., at 11). Plaintiffs challenge the credible fear policies under the APA and therefore this “strong presumption” applies in this case.
Third, statutory ambiguities in immigration laws are resolved in favor of the alien. See Cardoza–Fonseca, 480 U.S. at 449. Here, any doubt as to whether 1252(e)(3) applies to plaintiffs’ claims should be resolved in favor of plaintiffs. See INS v. Errico, 385 U.S. 214, 225 (1966)(“Even if there were some doubt as to the correct construction of the statute, the
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doubt should be resolved in favor of the alien.”). In view of these three principles, and the foregoing
analysis, the Court concludes that section 1252(a)(2)(A) does not eliminate this Court's jurisdiction over plaintiffs’ claims, and that section 1252(e)(3) affirmatively grants jurisdiction.
b. Policy Memorandum The government also argues that the Court lacks jurisdiction to review the Policy Memorandum under section 1252(e) for three reasons. First, according to the government, the Policy Memorandum “primarily addresses the asylum standard” and therefore does not implement section 1225(b) as required by the statute. Defs.’ Reply, ECF No. 85 at 30. Second, since the Policy Memorandum “merely explains” Matter of A-B-, the government argues, it is not reviewable for the same reasons Matter of A-B- is not reviewable. Id. Finally, the government argues that sections 1225 and 1252(e)(3) “indicate” that Congress only provided judicial review of agency guidelines, directives, or procedures which create substantive rights as opposed to interpretive documents, like the Policy Memorandum, which merely explain the law to government officials. Id. at 31– 33. The Court need not spend much time on the government’s first two arguments. First, the Policy Memorandum, entitled “Guidance for Processing Reasonable Fear, Credible Fear, Asylum,
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and Refugee Claims in Accordance with Matter of A-B-” expressly applies to credible fear interviews and provides guidance to credible fear adjudicators. Policy Memorandum, ECF No. 100 at 4 n.1 (“[T]he Attorney General’s decision and this [Policy Memorandum] apply also to . . . credible fear determinations.”). Furthermore, it expressly invokes section 1225 as the authority for its issuance. Id. at 4. The government’s second argument that the Policy Memorandum is not reviewable for the same reasons Matter of A-B- is not, is easily dismissed because the Court has already found that Matter of A-B- falls within section 1252(e)(3)’s jurisdictional grant. See supra, at 27-38.
The government’s third argument is that section 1252(e)(3) only applies when an agency promulgates legislative rules and not interpretive rules. Defs.’ Reply, ECF No. 85 at 30–33. Although not entirely clear, the argument is as follows: (1) the INA provides DHS with significant authority to create legislative rules; (2) Congress barred judicial review of such substantive rules in section 1252(a); (3) therefore Congress must have created a mechanism to review these types of legislative rules, and only legislative rules, in section 1252(e)(3)). Id. at 30–31. Folded into this reasoning is also a free-standing argument that because the Policy Memorandum is not a final agency action, it is not reviewable under the APA. Id. at 32.
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Contrary to the government’s assertions, section 1252(e)(3) does not limit its grant of jurisdiction over a “written policy directive, written policy guideline, or written procedure” to only legislative rules or final agency action. Nowhere in the statute did Congress exclude interpretive rules. Cf. 5 U.S.C. § 553(b)(3)(A)(stating subsection of statute does not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”). Rather, Congress used broader terms such as policy “guidelines,” “directives,” or “procedures” which do not require notice and comment rulemaking or other strict procedural prerequisites. See 8 U.S.C. § 1252(e)(3). There is no suggestion that Congress limited the application of section 1252(e)(3) to only claims involving legislative rules or final agency action, and this Court will not read requirements into the statute that do not exist. See Keene Corp. v. U.S., 508 U.S. 200, 208 (1993)(stating courts have a “duty to refrain from reading a phrase into the statute when Congress has left it out”).
In sum, section 1252(a)(2)(A) is not a bar to this Court's jurisdiction because plaintiffs’ claims fall well within section 1252(e)(3)’s grant of jurisdiction. Both Matter of A-B- and the Policy Memorandum expressly reference credible fear determinations in applying the standards articulated by the Attorney General. Because Matter of A-B- and the Policy
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Memorandum are written policy directives and guidelines issued by or under the authority of the Attorney General, section 1252(e)(3) applies, and this Court has jurisdiction to hear plaintiffs’ challenges to the credible fear policies.
Plaintiffs have Standing to Challenge the Policy Memorandum The government next challenges plaintiffs’ standing to bring this suit with respect to their claims against the Policy Memorandum only. Defs.’ Mot., ECF No. 57-1 at 35–39. To establish standing, a plaintiff “must, generally speaking, demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997)(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471–72 (1982)). Standing is assessed “upon the facts as they exist at the time the complaint is filed.” Natural Law Party of U.S. v. Fed. Elec. Comm'n, 111 F. Supp. 2d 33, 41 (D.D.C. 2000). As a preliminary matter, the government argues that plaintiffs lack standing to challenge any of the policies in the Policy Memorandum that rest on Matter of A-B- because the Court does not have jurisdiction to review Matter of A-B-. See Defs.’
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Mot., ECF No. 57-1 at 35, 37–39. Therefore, the government argues, plaintiffs’ injuries would not be redressable or traceable to the Policy Memorandum since they stem from Matter of A-B-. This argument fails because the Court has found that it has jurisdiction to review plaintiffs’ claims related to Matter of A-B- under 1252(e)(3). See supra, at 27-38.
The government also argues that because plaintiffs do not have a legally protected interest in the Policy Memorandum—an interpretive document that creates no rights or obligations— plaintiffs do not have an injury in fact. Defs.’ Reply, ECF No. 85 at 33. The government’s argument misses the point. Plaintiffs do not seek to enforce a right under a prior policy or interpretive guidance. See Pls.’ Reply, ECF No. 92 at 17–18. Rather, they challenge the validity of their credible fear determinations pursuant to the credible fear policies set forth in Matter of A-B- and the Policy Memorandum. Because the credible fear policies impermissibly raise their burden and deny plaintiffs a fair opportunity to seek asylum and escape the persecution they have suffered, plaintiffs argue, the policies violate the APA and immigration laws. See id.
The government also argues that even if the Court has jurisdiction, all the claims, with the exception of one, are time-barred and therefore not redressable. Defs.’ Mot., ECF No. 57-1 at 39–41. The government argues that none of the policies
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are in fact new and each pre-date the sixty days in which plaintiffs are statutorily required to bring their claims. Id. at 39–41. The government lists each challenged policy and relies on existing precedent purporting to apply the same standard espoused in the Policy Memorandum prior to its issuance. See id. at 39–41. The challenge in accepting this theory of standing is that it would require the Court to also accept the government’s theory of the case: that the credible fear policies are not “new.” In other words, the government’s argument “assumes that its view on the merits of the case will prevail.” Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008). This is problematic because “in reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)(citations omitted).
Whether the credible fear policies differ from the standards articulated in the pre-policy cases cited by the government, and are therefore new, is a contested issue in this case. And when assessing standing, this Court must “be careful not to decide the questions on the merits” either “for or against” plaintiffs, “and must therefore assume that on the merits the plaintiffs would be successful in their claims.” Id.
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Instead, the Court must determine whether an order can redress plaintiffs’ injuries in whole or part. Gutierrez, 532 F.3d at 925. There is no question that the challenged policies impacted plaintiffs. See Defs.’ Mot., ECF No. 57-1 at 28 (stating an “asylum officer reviewed each of [plaintiffs] credible fear claims and found them wanting in light of Matter of A-B-”). There is also no question that an order from this Court declaring the policies unlawful and enjoining their use would redress those injuries. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017)(stating when government actions cause an injury, enjoining that action will usually redress the injury).
Because plaintiffs have demonstrated that they have: (1) suffered an injury; (2) the injury is fairly traceable to the credible fear policies; and (3) action by the Court can redress their injuries, plaintiffs have standing to challenge the Policy Memorandum. Therefore, the Court may proceed to the merits of plaintiffs’ claims.
B. Legal Standard for Plaintiffs’ Claims Although both parties have moved for summary judgment, the parties seek review of an administrative decision under the APA. See 5 U.S.C. § 706. Therefore, the standard articulated in Federal Rule of Civil Procedure 56 is inapplicable because the Court has a more limited role in reviewing the administrative
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record. Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C. 2011)(internal citation omitted). “[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006)(internal quotation marks and citations omitted). “Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Wilhelmus, 796 F. Supp. 2d at 160 (internal citation omitted).
Plaintiffs bring this challenge to the alleged new credible fear policies arguing they violate the APA and INA. Two separate, but overlapping, standards of APA review govern the resolution of plaintiffs’ claims. First, under 5 U.S.C. § 706(2)(a), agency action must not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To survive an arbitrary and capricious challenge, an agency action must be “the product of reasoned decisionmaking.” Fox v. Clinton, 684 F.3d 67, 74–75 (D.C. Cir. 2012). The reasoned decisionmaking requirement applies to judicial review of agency adjudicatory actions. Id. at 75. A court must not uphold an adjudicatory action when the agency’s judgment “was neither adequately explained in its decision nor supported by agency
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precedent.” Id. (citing Siegel v. SEC, 592 F.3d 147, 164 (D.C. Cir. 2010)). Thus, review of Matter of A-B- requires this Court to determine whether the decision was the product of reasoned decisionmaking. See id. at 75.
Second, plaintiffs’ claims also require this Court to consider the degree to which the government’s interpretation of the various relevant statutory provisions in Matter of A-B- is afforded deference. The parties disagree over whether this Court is required to defer to the agency’s interpretations of the statutory provisions in this case. “Although balancing the necessary respect for an agency’s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter,” the familiar Chevron framework offers guidance. Id. at 75 (citing Gonzales v. Oregon, 546 U.S. 243, 255 (2006)).
In reviewing an agency's interpretation of a statute it is charged with administering, a court must apply the framework of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir. 1997). Under the familiar Chevron two-step test, the first step is to ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed
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intent of Congress.” Chevron, 467 U.S. at 842–43. In making that determination, the reviewing court “must first exhaust the ‘traditional tools of statutory construction’ to determine whether Congress has spoken to the precise question at issue.” Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 572 (2000)(citation omitted). The traditional tools of statutory construction include “examination of the statute’s text, legislative history, and structure . . . as well as its purpose.” Id. (internal citations omitted). If these tools lead to a clear result, “then Congress has expressed its intention as to the question, and deference is not appropriate.” Id.
If a court finds that the statute is silent or ambiguous with respect to a particular issue, then Congress has not spoken clearly on the subject and a court is required to proceed to the second step of the Chevron framework. Chevron, 467 U.S. at 843. Under Chevron step two, a court’s task is to determine if the agency’s approach is “based on a permissible construction of the statute.” Id. To make that determination, a court again employs the traditional tools of statutory interpretation, including reviewing the text, structure, and purpose of the statute. See Troy Corp. v. Browder, 120 F.3d 277, 285 (D.C. Cir. 1997)(noting that an agency’s interpretation must “be reasonable and consistent with the statutory purpose”). Ultimately, “[n]o matter how it is framed, the question a court faces when
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confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.” District of Columbia v. Dep’t of Labor, 819 F.3d 444, 459 (D.C. Cir. 2016)(citation omitted).
The scope of review under both the APA’s arbitrary and capricious standard and Chevron step two are concededly narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(stating “scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency”); see also Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)(stating the Chevron step two analysis overlaps with arbitrary and capricious review under the APA because under Chevron step two a court asks “whether an agency interpretation is ‘arbitrary or capricious in substance’”). Although this review is deferential, “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making.” Judulang, 565 U.S. at 53; see also Daley, 209 F.3d at 755 (stating that although a court owes deference to agency decisions, courts do not hear cases “merely to rubber stamp agency actions”).
With these principles in mind, the Court now turns to plaintiffs’ claims that various credible fear policies based on
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Matter of A-B-, the Policy Memorandum, or both, are arbitrary and capricious and in violation of the immigration laws.
C. APA and Statutory Claims Plaintiffs challenge the following alleged new credible fear policies: (1) a general rule against credible fear claims related to domestic or gang-related violence; (2) a heightened standard for persecution involving non-governmental actors; (3) a new rule for the nexus requirement in asylum; (4) a new rule that “particular social group” definitions based on claims of domestic violence are impermissibly circular; (5) the requirements that an alien articulate an exact delineation of the specific “particular social group” at the credible fear determination stage and that asylum officers apply discretionary factors at that stage; and (6) the Policy Memorandum’s requirement that adjudicators ignore circuit court precedent that is inconsistent with Matter of A-B-, and apply the law of the circuit where the credible fear interview takes place. The Court addresses each challenged policy in turn.
1. The General Rule Foreclosing Domestic Violence and Gang-Related Claims Violates the APA and Immigration Laws
Plaintiffs argue that the credible fear policies establish an unlawful general rule against asylum petitions by aliens with credible fear claims relating to domestic and gang violence. Pls.’ Mot., ECF No. 64-1 at 28.
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A threshold issue is whether the Chevron framework applies to this issue at all. “Not every agency interpretation of a statute is appropriately analyzed under Chevron.” Alabama Educ. Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006). The government acknowledges that the alleged new credible fear policies are not “entitled to blanket Chevron deference.” Defs.’ Reply, ECF No. 85 at 39 (emphasis in original). Rather, according to the government, the Attorney General is entitled to Chevron deference when he “interprets any ambiguous statutory terms in the INA.” Id. (emphasis in original). The government also argues that the Attorney General is entitled to Chevron deference to the extent Matter of A-B- states “long-standing precedent or interpret[s] prior agency cases or regulations through case-by-case adjudication.” Id. at 40.
To the extent Matter of A-B- was interpreting the “particular social group” requirement in the INA, the Chevron framework clearly applies. The Supreme Court has explained that “[i]t is clear that principles of Chevron deference are applicable” to the INA because that statute charges the Attorney General with administering and enforcing the statutory scheme. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (quoting 8 U.S.C. §§ 1103(a)(1), 1253(h)). In addition to Chevron deference, a court must also afford deference to an agency when it is interpreting its own precedent. U.S. Telecom Ass’n v.
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F.C.C., 295 F.3d 1326, 1332 (D.C. Cir. 2002)(“We [] defer to an agency’s reasonable interpretation of its own rules and precedents.”).
In this case, the Attorney General interpreted a provision of the INA, a statute that Congress charged the Attorney General with administering. See 8 U.S.C. § 1103(a)(1). Matter of A-Baddressed the issue of whether an alien applying for asylum based on domestic violence could establish membership in a “particular social group.” Because the decision interpreted a provision of the INA, the Chevron framework applies to Matter of A-B-.11 See Negusie v. Holder, 555 U.S. 511, 516 (2009)(stating it “is well settled” that principles of Chevron deference apply to the Attorney General’s interpretation of the INA).
a. Chevron Step One: The Phrase “Particular Social Group” is Ambiguous
The first question within the Chevron framework is whether, using the traditional tools of statutory interpretation including evaluating the text, structure, and the overall
11 The Policy Memorandum is not subject to Chevron deference. The Supreme Court has warned that agency “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” Christensen v. Harris Cnty, 529 U.S. 576, 587 (2000). Rather, interpretations contained in such formats “are entitled to respect . . . only to the extent that those interpretations have the power to persuade.” Id. (citations omitted).
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statutory scheme, as well as employing common sense, Congress has “supplied a clear and unambiguous answer to the interpretive question at hand.” Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018)(citation omitted). The interpretive question at hand in this case is the meaning of the term “particular social group.”
Under the applicable asylum provision, an “alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status” may be granted asylum at the discretion of the Attorney General if the “Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158. The term “refugee” is defined in section 1101(a)(42)(A) as, among other things, an alien who is unable or unwilling to return to his or her home country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). At the credible fear stage, an alien needs to show that there is a “significant possibility . . . that the alien could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).
The INA itself does not shed much light on the meaning of the term “particular social group.” The phrase “particular social group” was first included in the INA when Congress enacted the Refugee Act of 1980. Pub. L. No. 96-212, 94 Stat.
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102 (1980). The purpose of the Refugee Act was to protect refugees, i.e., individuals who are unable to protect themselves from persecution in their native country. See id. § 101(a)(“The Congress declares that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including . . . humanitarian assistance for their care and maintenance in asylum areas.”). While the legislative history of the Act does not reveal the specific meaning the members of Congress attached to the phrase “particular social group,” the legislative history does make clear that Congress intended “to bring United States refugee law into conformance with the [Protocol], 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.” CardozaFonseca, 480 U.S. at 436-37. Indeed, when Congress accepted the definition of “refugee” it did so “with the understanding that it is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.” Id. at 437 (citations omitted). It is therefore appropriate to consider what the phrase “particular social group” means under the Protocol. See id.
In interpreting the Refugee Act in accordance with the meaning intended by the Protocol, the language in the Act should be read consistently with the United Nations’ interpretation of the refugee standards. See id. at 438–39 (relying on UNHCR’s
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interpretation in interpreting the Protocol’s definition of “well-founded fear”). The UNHCR defined the provisions of the Convention and Protocol in its Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”).12 Id. As the Supreme Court has noted, the UNHCR Handbook provides “significant guidance in construing the Protocol, to which Congress sought to conform . . . [and] has been widely considered useful in giving content to the obligations that the protocol establishes.” Id. at 439 n.22 (citations omitted). The UNHCR Handbook codified the United Nations’ interpretation of the term “particular social group” at that time, construing the term expansively. The UNHCR Handbook states that “a ‘particular social group’ normally comprises persons of similar background, habits, or social status.” UNHCR Handbook at Ch. II B(3)(e) ¶ 77.
The clear legislative intent to comply with the Protocol and Congress’ election to not change or add qualifications to the U.N.’s definition of “refugee” demonstrates that Congress intended to adopt the U.N.’s interpretation of the word “refugee.” Moreover, the UNHCR’s classification of “social
12 Handbook of Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, available at http://www.unhcr.org/4d93528a9.pdf.
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group” in broad terms such as “similar background, habits, or social status” suggests that Congress intended an equally expansive construction of the same term in the Refugee Act. Furthermore, the Refugee Act was enacted to further the “historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands . . . . [and] it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible.” Maharaj v. Gonzales, 450 F.3d 961, 983 (9th Cir. 2006)(O’Scannlain, J. concurring in part)(citing Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102).
Although the congressional intent was clear that the meaning of “particular social group” should not be read too narrowly, the Court concludes that Congress has not “spoken directly” on the precise question of whether victims of domestic or gang-related persecution fall into the particular social group category. Therefore, the Court proceeds to Chevron step two to determine whether the Attorney General’s interpretation, which generally precludes domestic violence and gang-related claims at the credible fear stage, is a permissible interpretation of the statute.
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b. Chevron Step Two: Precluding Domestic and GangRelated Claims at the Credible Fear Stage is an Impermissible Reading of the Statute and is Arbitrary and Capricious
As explained above, the second step of the Chevron analysis overlaps with the arbitrary and capricious standard of review under the APA. See Nat'l Ass'n of Regulatory Util. Comm'rs v. ICC, 41 F.3d 721, 726 (D.C. Cir. 1994)(“[T]he inquiry at the second step of Chevron overlaps analytically with a court's task under the [APA].”). “To survive arbitrary and capricious review, an agency action must be the product of reasoned decisionmaking.” Fox v. Clinton, 684 F.3d 67, 74–75 (D.C. Cir. 2012). “Thus, even though arbitrary and capricious review is fundamentally deferential—especially with respect to matters relating to an agency's areas of technical expertise—no deference is owed to an agency action that is based on an agency's purported expertise where the agency's explanation for its action lacks any coherence.” Id. at 75 (internal citations and alterations omitted).
Plaintiffs argue that the Attorney General’s near-blanket rule against positive credible fear determinations based on domestic violence and gang-related claims is arbitrary and capricious for several reasons. First, they contend that the rule has no basis in immigration law. Pls.’ Mot., ECF No. 64-1 at 39–40. Plaintiffs point to several cases in which immigration
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judges and circuit courts have recognized asylum petitions based on gang-related or gender-based claims. See id. at 38–39 (citing cases). Second, plaintiffs argue that the general prohibition is arbitrary and capricious and contrary to the INA because it constitutes an unexplained change to the long-standing recognition that credible fear determinations must be individualized based on the facts of each case. Id. at 40–41.
The government’s principal response is straightforward: no such general rule against domestic violence or gang-related claims exists. Defs.’ Reply, ECF No. 85 at 44–47. The government emphasizes that the only change to the law in Matter of A-B- is that Matter of A-R-C-G- was overruled. Id. at 43. The government also argues that Matter of A-B- only required the BIA to assess each element of an asylum claim and not rely on a party’s concession that an element is satisfied. Id. at 45. Thus, according to the government, the Attorney General simply “eliminated a loophole created by A-R-C-G-.” Id. at 45. The government dismisses the rest of Matter of A-B- as mere “comment[ary] on problems typical of gang and domestic violence related claims.” Id. at 46.
And even if a general rule does exist, the government contends that asylum claims based on “private crime[s]” such as domestic and gang violence have been the center of controversy for decades. Defs.’ Reply, ECF No. 85 at 44. Therefore, the
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government concludes, that Matter of A-B- is a lawful interpretation and restatement of the asylum laws, and is entitled to deference. Id. Finally, the government argues that Congress designed the asylum statute as a form of limited relief, not to “provide redress for all misfortune.” Id.
The Court is not persuaded that Matter of A-B- and the Policy Memorandum do not create a general rule against positive credible fear determinations in cases in which aliens claim a fear of persecution based on domestic or gang-related violence. Matter of A-B- mandates that “[w]hen confronted with asylum cases based on purported membership in a particular social group . . . immigration judges, and asylum officers must analyze the requirements as set forth” in the decision. 27 I. & N. Dec. at 319. The precedential decision further explained that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Id. at 320. Matter of A-B- also requires asylum officers to “analyze the requirements as set forth in” Matter of A-B- when reviewing asylum related claims including whether such claims “would satisfy the legal standard to determine whether an alien has a credible fear of persecution.” Id. at 320 n.1 (citing 8 U.S.C. § 1225(b)). Furthermore, the Policy Memorandum also makes clear that the sweeping statements in Matter of A-B- must be applied to credible fear
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determinations: “if an applicant claims asylum based on membership in a particular social group, then officers must factor the [standards explained in Matter of A-B-] into their determination of whether an applicant has a credible fear or reasonable fear of persecution.” Policy Memorandum, ECF No. 100 at 12 (emphasis added).
Not only does Matter of A-B- create a general rule against such claims at the credible fear stage, but the general rule is also not a permissible interpretation of the statute. First, the general rule is arbitrary and capricious because there is no legal basis for an effective categorical ban on domestic violence and gang-related claims. Second, such a general rule runs contrary to the individualized analysis required by the INA. Under the current immigration laws, the credible fear interviewer must prepare a case-specific factually intensive analysis for each alien. See 8 C.F.R. § 208.30(e)(requiring individual analysis including material facts stated by the applicant, and additional facts relied upon by officer). Credible fear determinations, like requests for asylum in general, must be resolved based on the particular facts and circumstances of each case. Id.
A general rule that effectively bars the claims based on certain categories of persecutors (i.e. domestic abusers or gang members) or claims related to certain kinds of violence is
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inconsistent with Congress' intent to bring “United States
refugee law into conformance with the [Protocol].” Cardoza-
Fonseca, 480 U.S. at 436-37. The new general rule is thus
contrary to the Refugee Act and the INA.13 In interpreting
“particular social group” in a way that results in a general
rule, in violation of the requirements of the statute, the
Attorney General has failed to “stay[] within the bounds” of his
statutory authority.14 District of Columbia v. Dep’t of Labor,
819 F.3d at 449.
The general rule is also arbitrary and capricious because
it impermissibly heightens the standard at the credible fear
stage. The Attorney General’s direction to deny most domestic
violence or gang violence claims at the credible fear
13 The new rule is also a departure from previous DHS policy. See Mujahid Decl., Ex. F (“2017 Credible Fear Training”) (“Asylum officers should evaluate the entire scope of harm experienced by the applicant to determine if he or she was persecuted, taking into account the individual circumstances of each case.”). It is arbitrary and capricious for that reason as well. Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013)(“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.”)(emphasis added). 14 The Court also notes that domestic law may supersede international obligations only by express abrogation, Chew Heong v. United States, 112 U.S. 536, 538 (1884), or by subsequent legislation that irrevocably conflicts with international obligations, Reid v. Covert, 354 U.S. 1, 18 (1957). Congress has not expressed any intention to rescind its international obligations assumed through accession to the 1967 Protocol via the Refugee Act of 1980.
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determination stage is fundamentally inconsistent with the threshold screening standard that Congress established: an alien’s removal may not be expedited if there is a “significant possibility” that the alien could establish eligibility for asylum. 8 U.S.C. § 1225(b)(1)(B)(v). The relevant provisions require that the asylum officer “conduct the interview in a nonadversarial manner” and “elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.” 8 C.F.R. § 208.30(d). As plaintiffs point out, to prevail at a credible fear interview, the alien need only show a “significant possibility” of a one in ten chance of persecution, i.e., a fraction of ten percent. See 8 U.S.C. § 1225(b)(1)(B)(v); Cardoza-Fonseca, 480 U.S. at 439–40 (describing a well-founded fear of persecution at asylum stage to be satisfied even when there is a ten percent chance of persecution). The legislative history of the IIRIRA confirms that Congress intended this standard to be a low one. See 142 CONG. REC. S11491-02 (“[t]he credible fear standard . . . is intended to be a low screening standard for admission into the usual full asylum process”). The Attorney General’s directive to broadly exclude groups of aliens based on a sweeping policy applied indiscriminately at the credible fear stage, was neither adequately explained nor supported by agency precedent. Accordingly, the general rule against domestic violence and
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gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.
2. Persecution: The “Condoned or Complete Helplessness” Standard Violates the APA and Immigration Laws
Plaintiffs next argue that the government’s credible fear policies have heightened the legal requirement for all credible fear claims involving non-governmental persecutors. Pls.’ Mot., ECF No. 64-1 at 48.
To be eligible for asylum, an alien must demonstrate either past “persecution or a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42)(A). When a private actor, rather than the government itself, is alleged to be the persecutor, the alien must demonstrate “some connection” between the actions of the private actor and “governmental action or inaction.” See Rosales Justo v. Sessions, 895 F.3d 154, 162 (1st Cir. 2018). To establish this connection, a petitioner must show that the government was either “unwilling or unable” to protect him or her from persecution. See Burbiene v. Holder, 568 F.3d 251, 255 (1st Cir. 2009).
Plaintiffs argue that Matter of A-B- and the Policy Memorandum set forth a new, heightened standard for government involvement by requiring an alien to “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.” Matter of A-B-, 27 I. & N.
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Dec. at 337; Policy Memorandum, ECF No. 100 at 9. The government argues that the “condone” or “complete helplessness” standard is not a new definition of persecution; and, in any event, such language does not change the standard. Defs.’ Reply, ECF No. 85 at 55.
a. Chevron Step One: The Term “Persecution” is Not Ambiguous15
Again, the first question under the Chevron framework is whether Congress has “supplied a clear and unambiguous answer to the interpretive question at hand.” Pereira, 138 S. Ct. at 2113. Here, the interpretive question at hand is whether the word “persecution” in the INA requires a government to condone the persecution or demonstrate a complete helplessness to protect the victim.
The Court concludes that the term “persecution” is not ambiguous and the government’s new interpretation is inconsistent with the INA. The Court is guided by the longstanding principle that Congress is presumed to have incorporated prior administrative and judicial interpretations of language in a statute when it uses the same language in a subsequent enactment. See Sekhar v. United States, 570 U.S. 729, 733 (2013)(explaining that “if a word is obviously transplanted
15 Because the government is interpreting a provision of the INA, the Chevron framework applies.
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from another legal source, whether the common law or other legislation, it brings the old soil with it”); Lorillard v. Pons, 434 U.S. 575, 580 (1978)(stating Congress is aware of interpretations of a statute and is presumed to adopt them when it re-enacts them without change).
The seminal case on the interpretation of the term “persecution,” Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), is dispositive. In Matter of Acosta, the BIA recognized that harms could constitute persecution if they were inflicted “either by the government of a country or by persons or an organization that the government was unable or unwilling to control.” Id. at 222 (citations omitted). The BIA noted that Congress carried forward the term “persecution” from pre-1980 statutes, in which it had a well-settled judicial and administrative meaning: “harm or suffering . . . inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.” Id. Applying the basic rule of statutory construction that Congress carries forward established meanings of terms, the BIA adopted the same definition. Id. at 223.
The Court agrees with this approach. When Congress uses a term with a settled meaning, its intent is clear for purposes of Chevron step one. cf. B & H Med., LLC v. United States, 116 Fed. Cl. 671, 685 (2014)(a term with a “judicially settled meaning”
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is “not ambiguous” for purposes of deference under Auer v. Robbins, 519 U.S. 452 (1997)). As explained in Matter of Acosta, Congress adopted the “unable or unwilling” standard when it used the word “persecution” in the Refugee Act. 19 I. & N. Dec. at 222, see also Shapiro v. United States, 335 U.S. 1, 16 (1948)(Congress presumed to have incorporated “settled judicial construction” of statutory language through re-enactment). Indeed, the UNHCR Handbook stated that persecution included “serious discriminatory or other offensive acts . . . committed by the local populace . . . if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.” See UNHCR Handbook ¶ 65 (emphasis added). It was clear at the time that the Act was passed by Congress that the “unwilling or unable” standard did not require a showing that the government “condoned” persecution or was “completely helpless” to prevent it. Therefore, the government’s interpretation of the term “persecution” to mean the government must condone or demonstrate complete helplessness to help victims of persecution fails at Chevron step one.
The government relies on circuit precedent that has used the “condoned” or “complete helplessness” language to support its argument that the standard is not new. Defs.’ Reply, ECF No. 85 at 55. There are several problems with the government’s argument. First, upon review of the cited cases it is apparent
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that, although the word “condone” was used, in actuality, the courts were applying the “unwilling or unable” standard. For example, in Galina v. INS, 213 F.3d 955 (7th Cir. 2005), an asylum applicant was abducted and received threatening phone calls in her native country. Id. at 957. The applicant’s husband called the police to report the threatening phone calls, and after the police located one of the callers, the calls stopped. Id. The Court recognized that a finding of persecution ordinarily requires a determination that the government condones the violence or demonstrated a complete helplessness to protect the victims. Id. at 958. However, relying on the BIA findings, the Court found that notwithstanding the fact “police might take some action against telephone threats” the applicant would still face persecution if she was sent back to her country of origin because she could have been killed. Id. Therefore, the Court ultimately concluded that an applicant can still meet the persecution threshold when the police are unable to provide effective help, but fall short of condoning the persecution. Id. at 958. Despite the language it used to describe the standard, the court did not apply the heightened “condoned or complete helplessness” persecution standard pronounced in the credible fear policies here.
Second, and more importantly, under the government’s formulation of the persecution standard, no asylum applicant who
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received assistance from the government, regardless of how ineffective that assistance was, could meet the persecution requirement when the persecutor is a non-government actor.16 See Policy Memorandum, ECF No. 100 at 17 (stating that in the context of credible fear interviews, “[a]gain, the home government must either condone the behavior or demonstrate a complete helplessness to protect victims of such alleged persecution”). That is simply not the law. For example, in Rosales Justo v. Sessions, the United States Court of Appeals for the First Circuit held that a petitioner satisfied the “unable or unwilling” standard, even though there was a significant police response to the claimed persecution. 895 F.3d 154, 159 (1st Cir. 2018). The petitioner in Rosales Justo fled Mexico after organized crime members murdered his son. Id. at 157–58. Critically, the “police took an immediate and active interest in the [petitioner’s] son's murder.” Id. The Court noted that the petitioner “observed seven officers and a forensic team at the scene where [the] body was recovered, the police took statements from [petitioner] and his wife, and an
16 The Court notes that this persecution requirement applies to all asylum claims not just claims based on membership in a “particular social group” or claims related to domestic or gangrelated violence. See Matter of A-B-, 27 I. & N. Dec. at 337 (describing elements of persecution). Therefore, such a formulation heightens the standard for every asylum applicant who goes through the credibility determination process.
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autopsy was performed.” Id. The Court held that, despite the extensive actions taken by the police, the “unwilling or unable”
standard was satisfied because although the government was
willing to protect the petitioner, the evidence did not show
that the government was able to make the petitioner and his
family any safer. Id. at 164 (reversing BIA’s conclusion that the immigration judge clearly erred in finding that the police
were willing but unable to protect family). As Rosales Justo illustrates, a requirement that police condone or demonstrate
complete helplessness is inconsistent with the current standards under immigration law.17
Furthermore, the Court need not defer to the government’s
interpretation to the extent it is based on an interpretation of
court precedent. Indeed, in “case after case, courts have
affirmed this fairly intuitive principle, that courts need not,
and should not, defer to agency interpretations of opinions
written by courts.” Citizens for Responsibility & Ethics in
17 This departure is also wholly unexplained. As the Supreme Court has held, “[u]nexplained inconsistency is . . . a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the [APA].” See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46–57 (1983). The credible fear policies do not acknowledge a change in the persecution standard and are also arbitrary and capricious for that reason. See Fox Television Stations, Inc., 556 U.S. at 514, 515 (2009)(“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing [its] position.”).
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Washington v. Fed. Election Comm'n, 209 F. Supp. 3d 77, 87 (D.D.C. 2016)(listing cases). “There is therefore no reason for courts—the supposed experts in analyzing judicial decisions—to defer to agency interpretations of the Court's opinions.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002); see also Judulang, 565 U.S. at 52 n.7 (declining to apply Chevron framework because the challenged agency policy was not “an interpretation of any statutory language”).
To the extent the credible fear policies established a new standard for persecution, it did so in purported reliance on circuit opinions. The Court gives no deference to the government’s interpretation of judicial opinions regarding the proper standard for determining the degree to which government action, or inaction, constitutes persecution. Univ. of Great Falls, 278 F.3d at 1341. The “unwilling or unable” persecution standard was settled at the time the Refugee Act was codified, and therefore the Attorney General’s “condoned” or “complete helplessness” standard is not a permissible construction of the persecution requirement.
3. Nexus: The Credible Fear Policies Do Not Pose a New Standard for the Nexus Requirement
Plaintiffs next argue that the formulation of the nexus requirement articulated in Matter of A-B-that when a private actor inflicts violence based on a personal relationship with
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the victim, the victim’s membership in a larger group may well not be “one central reason” for the abuse—violates the INA, Refugee Act, and APA. The nexus requirement in the INA is that a putative refugee establish that he or she was persecuted “on account of” a protected ground such as a particular social group.18 See 8 U.S.C. § 1158(b)(1)(B)(i).
The parties agree that the precise interpretive issue is not ambiguous. The parties also endorse the “one central reason” standard and the need to conduct a “mixed-motive” analysis when there is more than one reason for persecution. See Defs.’ Mot., 57-1 at 47; Pls.’ Mot., ECF No. 64-1 at 53–54. The INA expressly contemplates mixed motives for persecution when it specifies that a protected ground must be “one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). Where the parties disagree is whether the credible fear policies deviate from this standard.
With respect to the nexus requirement, the government’s reading of Matter of A-B- on this issue is reasonable. In Matter of A-B-, the Attorney General relies on the “one central reason” standard and provides examples of a criminal gang targeting people because they have money or property or “simply because
18 Similar to the Attorney General’s directives related to the “unwilling or unable” standard, this directive applies to all asylum claims, not just claims related to domestic or gangrelated violence.
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the gang inflicts violence on those who are nearby.” 27 I. & N. Dec. at 338–39. The decision states that “purely personal” disputes will not meet the nexus requirement. Id. at 339 n.10. The Court discerns no distinction between this statement and the statutory “one central reason” standard.
Similarly, the Policy Memorandum states that “when a private actor inflicts violence based on a personal relationship with the victim, the victim’s membership in a larger group often will not be ‘one central reason’ for the abuse.” Policy Memorandum, ECF No. 100 at 9 (citing Matter of A-B-, 27 I. & N. Dec. at 338–39). Critically, the Policy Memorandum explains that in “a particular case, the evidence may establish that a victim of domestic violence was attacked based solely on her preexisting personal relationship with her abuser.” Id. (emphasis added). This statement is no different than the statement of the law in Matter of A-B-. Because the government’s interpretation is not inconsistent with the statute, the Court finds the government’s interpretation to be reasonable.
The Court reiterates that, although the nexus standard forecloses cases in which purely personal disputes are the impetus for the persecution, it does not preclude a positive credible fear determination simply because there is a personal relationship between the persecutor and the victim, so long as the one central reason for the persecution is a protected
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ground. See Aldana Ramos v. Holder, 757 F.3d 9, 18–19 (1st Cir. 2014)(recognizing that “multiple motivations [for persecution] can exist, and that the presence of a non-protected motivation does not render an applicant ineligible for refugee status”); Qu v. Holder, 618 F.3d 602, 608 (6th Cir. 2010)(“[I]f there is a nexus between the persecution and the membership in a particular social group, the simultaneous existence of a personal dispute does not eliminate that nexus.”). Indeed, courts have routinely found the nexus requirement satisfied when a personal relationship exists—including cases in which persecutors had a close relationship with the victim. See, e.g., BringasRodriguez, 850 F.3d at 1056 (persecution by family members and neighbor on account of applicant’s perceived homosexuality); Nabulwala v. Gonzalez, 481 F.3d 1115, 1117–18 (8th Cir. 2007)(applicant’s family sought to violently “change” her sexual orientation).
Matter of A-B- and the Policy Memorandum do not deviate from the “one central reason” standard articulated in the statute or in BIA decisions. See 8 U.S.C. § 1158(b)(1)(B)(i). Therefore, the government did not violate the APA or INA with regards to its interpretation of the nexus requirement.
4. Circularity: The Policy Memorandum’s Interpretation of the Circularity Requirement Violates the APA and Immigration Laws
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new rule that “particular social group” definitions based on
claims of domestic violence are impermissibly circular and
therefore not cognizable as a basis for persecution in a
credible fear determination. Pls.’ Mot., ECF No. 64-1 at 56–59.
Plaintiffs argue that this new circularity rule is inconsistent
with the current legal standard and therefore violates the
Refugee Act, INA, and is arbitrary and capricious.19 Id. at 57.
The parties agree that the formulation of the anti-circularity
rule set forth in Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242
(BIA 2014)—“that a particular social group cannot be defined
exclusively by the claimed persecution”—is correct. See Defs.’
Reply, ECF No. 85 at 62; Pls.’ Reply., ECF No. 92 at 30–31.
Accordingly, the Court begins with an explanation of that
opinion.
19 The government contends that plaintiffs’ argument on this issue has evolved from the filing of the complaint to the filing of plaintiffs’ cross-motion for summary judgment. Defs.’ Reply, ECF No. 85 at 61. In plaintiffs’ complaint, they objected to the circularity issue by stating the new credible fear policies erroneously conclude “that groups defined in part by the applicant’s inability to leave the relationship are impermissibly circular.” ECF No. 54 at 24. In their cross-motion for summary judgment, plaintiffs argue that the government’s rule is inconsistent with well-settled law that the circularity standard only applies when the group is defined exclusively by the feared harm. Pls.’ Mot., ECF No. 64-1 at 57. The Court finds that plaintiffs’ complaint was sufficient to meet the notice pleading standard. See 3E Mobile, LLC v. Glob. Cellular, Inc., 121 F. Supp. 3d 106, 108 (D.D.C. 2015)(explaining that the notice-pleading standard does not require a plaintiff to “plead facts or law that match every element of a legal theory”).
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The question before the BIA in Matter of M-E-V-G-, was whether the respondent had established membership in a “particular social group,” namely “Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose the gangs.” 26 I. & N. Dec. at 228. The BIA clarified that a person seeking asylum on the ground of membership in a particular social group must show that the group is: (1) composed of members who share an immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question. Id. at 237. In explaining the third element for membership, the BIA confirmed the rule that “a social group cannot be defined exclusively by the fact that its members have been subjected to harm.” Id. at 242. The BIA explained that for a particular social group to be distinct, “persecutory conduct alone cannot define the group.” Id.
The BIA provided the instructive example of former employees of an attorney general. Id. The BIA noted that such a group may not be valid for asylum purposes because they may not consider themselves a group, or because society may not consider the employees to be meaningfully distinct in society in general. Id. The BIA made clear, however, that “such a social group determination must be made on a case-by-case basis, because it is possible that under certain circumstances, the society would
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make such a distinction and consider the shared past experience to be a basis for distinction within that society.” Id. “Upon their maltreatment,” the BIA explained “it is possible these people would experience a sense of ‘group’ and society would discern that this group of individuals, who share a common immutable characteristic, is distinct in some significant way.” Id. at 243 (recognizing that “[a] social group cannot be defined merely by the fact of persecution or solely by the shared characteristic of facing dangers in retaliation for actions they took against alleged persecutors . . . but that the shared trait of persecution does not disqualify an otherwise valid social group”)(citations and internal quotation marks omitted). The BIA further clarified that the “act of persecution by the government may be the catalyst that causes the society to distinguish [a group] in a meaningful way and consider them a distinct group, but the immutable characteristic of their shared past experience exists independent of the persecution.” Id. at 243. Thus, such a group would not be circular because the persecution they faced was not the sole basis for their membership in a particular social group. Id.
With this analysis in mind, the Court now focuses on the dispute at issue. Here, plaintiffs do not challenge Matter of AB-’s statements with regard to the rule against circularity, but rather challenge the Policy Memorandum’s articulation of the
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rule. Pls.’ Mot., ECF No, 64-1 at 57–58. Specifically, they challenge the Policy Memorandum’s mandate that domestic violence-based social groups that include “inability to leave” are not cognizable. Id. at 58 (citations and internal quotation marks omitted). The Policy Memorandum states that “married women . . . who are unable to leave their relationship” are a group that would not be sufficiently particular. Policy Memorandum, ECF No. 100 at 6. The Policy Memorandum explained that “even if ‘unable to leave’ were particular, the applicant must show something more than the danger of harm from an abuser if the applicant tried to leave because that would amount to circularly defining the particular social group by the harm on which the asylum claim is based.” Id.
The Policy Memorandum’s interpretation of the rule against circularity ensures that women unable to leave their relationship will always be circular. This conclusion appears to be based on a misinterpretation of the circularity standard and faulty assumptions about the analysis in Matter of A-B-. First, as Matter of M-E-V-G- made clear, there cannot be a general rule when it comes to determining whether a group is distinct because “it is possible that under certain circumstances, the society would make such a distinction and consider the shared past experience to be a basis for distinction within that society.” 26 I. & N. Dec. at 242. Thus, to the extent the Policy
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Memorandum imposes a general circularity rule foreclosing such claims without taking into account the independent characteristics presented in each case, the rule is arbitrary, capricious, and contrary to immigration law.
Second, the Policy Memorandum changes the circularity rule as articulated in settled caselaw, which recognizes that if the proposed social group definition contains characteristics independent from the feared persecution, the group is valid under asylum law. Matter of M-E-V-G-, 26 I. & N. Dec. at 242 (Particular social group may be cognizable if “immutable characteristic of their shared past experience exists independent of the persecution.”). Critically, the Policy Memorandum does not provide a reasoned explanation for, let alone acknowledge, the change. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009)(“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing [its] position.”). Matter of A-B- criticized the BIA for failing to consider the question of circularity in Matter of A-R-C-Gand overruled the decision based on the BIA’s reliance on DHS’s concession on the issue. 27 I. & N. Dec. at 334-35, 33. Moreover, Matter of A-B- suggested only that the social group at issue in Matter of A-R-C-G- might be “effectively” circular. Id. at 335. The Policy Memorandum’s formulation of the circularity
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standard goes well beyond the Attorney General’s explanation in
Matter of A-B-. As such, it is unmoored from the analysis in Matter of M-E-V-G- and has no basis in Matter of A-B-. It is therefore, arbitrary, capricious, and contrary to immigration law.
5. Discretion and Delineation: The Credible Fear Policies Do Not Contain a Discretion Requirement, but the Policy Memorandum’s Delineation Requirement is Unlawful
Plaintiffs next argue that the credible fear policies
“unlawfully import two aspects of the ordinary removal context into credible fear proceedings.” Pls.’ Reply, ECF No. 92 at 32.
The first alleged requirement is for aliens to delineate the “particular social group” on which they rely at the credible
fear stage. Id. The second alleged requirement is that asylum adjudicators at the credible fear stage take into account certain discretionary factors when making a fair credibility determination and exercise discretion to deny relief.20 Id. at 32–33.
20 These discretionary factors include but are not limited to: “the circumvention of orderly refugee procedures; whether the alien passed through any other countries or arrived in the United States directly from her country; whether orderly refugee procedures were in fact available to help her in any country she passed through; whether he or she made any attempts to seek asylum before coming to the United States; the length of time the alien remained in a third country; and his or her living conditions, safety, and potential for long-term residency there.” Policy Memorandum, ECF No. 100 at 10.
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The government agrees that a policy which imposes a duty to delineate a particular social group at the credible fear stage would be a violation of existing law. Defs.’ Reply, ECF No. 85 at 67. The government also agrees that requiring asylum officers to consider the exercise of discretion at the credible fear stage “would be inconsistent with section 1225(b)(1)(B)(v).” Id. at 68. The government, however, argues that no such directives exist. Id. at 67–69.
The Court agrees with the government. There is nothing in the credible fear policies that support plaintiffs’ arguments that asylum officers are to exercise discretion at the credible fear stage. The Policy Memorandum discusses discretion only in the context of when an alien has established that he or she is eligible for asylum. Policy Memorandum, ECF No. 100 at 5 (“[I]f eligibility is established, the USCIS officer must then consider whether or not to exercise discretion to grant the application.”). Matter of A-B- also discusses the discretionary factors in the context of granting asylum. 27 I. & N. Dec. at 345 n.12 (stating exercising discretion should not be glossed over “solely because an applicant otherwise meets the burden of proof for asylum eligibility under the INA”)(emphasis added). Eligibility for asylum is not established, nor is an asylum application granted, at the credible fear stage. See 8 U.S.C. § 1225(b)(1)(B)(ii)(stating if an alien receives a positive
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credibility determination, he or she shall be detained for “further consideration of the application of asylum”). Since the credible fear policies only direct officers to use discretion once an officer has determined that an applicant is eligible for asylum, they do not direct officers to consider discretionary factors at the credible fear stage. See Policy Memorandum, ECF No. 100 at 10.
The Court also agrees that, with respect to Matter of A-B-, the decision does not impose a delineation requirement during a credible fear determination. The decision only requires an applicant seeking asylum to clearly indicate “an exact delineation of any proposed particular social group” when the alien is “on the record and before the immigration judge.” 27 I. & N. Dec. at 344. Any delineation requirement therefore would not apply to the credible fear determination which is not on the record before an immigration judge.
The Policy Memorandum, however, goes further than the decision itself and incorporates the delineation requirement into credible fear determinations. Unlike the mandate to use discretion, the Policy Memorandum does not contain a limitation that officers are to apply the delineation requirement to asylum interviews only, as opposed to credible fear interviews. In fact, it does the opposite and explicitly requires asylum officers to apply that requirement to credible fear
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determinations. Policy Memorandum, ECF No. 100 at 12. The Policy Memorandum makes clear that “if an applicant claims asylum based on membership in a particular social group, then officers must factor the [standards explained in Matter of A-B-] into their determination of whether an applicant has a credible fear or reasonable fear of persecution.” Id. at 12. In directing asylum officers to apply Matter of A-B- to credible fear determinations, the Policy Memorandum refers back to all the requirements explained by Matter of A-B- including the delineation requirement. See id. (referring back to section explaining delineation requirement). In light of this clear directive to “factor” in the standards set forth in Matter of AB-, into the “determination of whether an applicant has a credible fear” and its reference to the delineation requirement, it is clear that the Policy Memorandum incorporates that requirement into credible fear determinations. See id.21
The government argues, that to the extent the Policy Memorandum is ambiguous, the Court should defer to its
21 The Policy Memorandum also reiterates that “few gang-based or domestic-violence claims involving particular social groups defined by the members’ vulnerability to harm may . . . pass the ‘significant possibility’ test in credible-fear screenings.” Policy Memorandum, ECF No. 100 at 10. For this proposition, the Policy Memorandum refers to the “standards clarified in Matter of A-B-.” Id. This requirement for an alien to explain how they fit into a particular social group independent of the harm they allege, further supports the fact that there is a delineation requirement at the credible fear stage.
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interpretation as long as it is reasonable. The government cites no authority to support its claim that deference is owed to an agency’s interpretations of its policy documents like the Policy Memorandum. However, the Court acknowledges the government’s interpretation is “entitled to respect . . . only to the extent that those interpretations have the ‘power to persuade.’” Christensen v. Harris Cnty, 529 U.S. 576, 587 (2000)(citation omitted). For the reasons stated above, however, such a narrow reading of the Policy Memorandum is not persuasive. Because the Policy Memorandum requires an alien—at the credible fear stage— to present facts that clearly identify the alien’s proposed particular social group, contrary to the INA, that policy is arbitrary and capricious.
6. The Policy Memorandum’s Requirements Related to Asylum Officer’s Application of Circuit Law are Unlawful
Plaintiffs’ final argument is that the Policy Memorandum’s directives instructing asylum officers to ignore applicable circuit court of appeals decisions is unlawful. Pls.’ Mot., ECF No. 64-1 at 63.
The relevant section of the Policy Memorandum reads as follows:
When conducting a credible fear or reasonable fear interview, an asylum officer must determine what law applies to the applicant’s claim. The asylum officer should apply all applicable precedents of the Attorney General and the BIA, Matter of E-L-H-, 23 I&N Dec.
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814, 819 (BIA 2005), which are binding on all immigration judges and asylum officers nationwide. The asylum officer should also apply the case law of the relevant federal circuit court, to the extent that those cases are not inconsistent with Matter of A-B-. See, e.g., Matter of Fajardo Espinoza, 26 I&N Dec. 603, 606 (BIA 2015). The relevant federal circuit court is the circuit where the removal proceedings will take place if the officer makes a positive credible fear determination. See Matter of Gonzalez, 16 I&N Dec. 134, 135– 36 (BIA 1977); Matter of Waldei, 19 I&N Dec. 189 (BIA 1984). But removal proceedings can take place in any forum selected by DHS, and not necessarily the forum where the intending asylum applicant is located during the credible fear or reasonable fear interview. Because an asylum officer cannot predict with certainty where DHS will file a Notice to appear . . . the asylum officer should faithfully apply precedents of the Board and, if necessary, the circuit where the alien is physically located during the credible fear interview.
Policy Memorandum, ECF No. 100 at 11–12. Plaintiffs make two
independent arguments regarding this policy. First, they argue
that the Policy Memorandum’s directive to disregard circuit law
contrary to Matter of A-B-, violates the APA, INA, and the
separation of powers. Pls.’ Mot., ECF No. 64-1 at 64–68. Second,
plaintiffs argue that the Policy Memorandum’s directive
requiring asylum officers to apply the law of the circuit where
the alien is physically located during the credible fear
interview violates the APA and INA. Id. 68–71.
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a. The Policy Memorandum’s Directive to Disregard Contrary Circuit Law Violates Brand X
Plaintiffs’ first argument is that the Policy Memorandum’s directive that asylum officers who process credible fear interviews ignore circuit law contrary to Matter of A-B- is unlawful. Pls.’ Mot., ECF No. 64-1 at 63–68. Because the policy requires officers to disregard all circuit law regardless of whether the provision at issue is entitled to deference, plaintiffs maintain that the policy exceeds an agency’s limited ability to displace circuit precedent on a specific question of law to which an agency decision is entitled to deference. Id.
An agency’s ability to disregard a court’s interpretation of an ambiguous statutory provision in favor of the agency’s interpretation stems from the Supreme Court’s decision in Nat’l Cable & Telecomm’s Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). At issue in Brand X was the proper classification of broadband cable services under Title II of the Communications Act of 1934, as amended by the Telecommunications Act of 1996. Id. at 975. The Federal Communications Commission (“Commission”) had issued a Declaratory Rule providing that broadband internet service was an “information service” but not a “telecommunication service” under the Act, such that certain regulations would not apply to cable companies that provided broadband service. Id. at 989. The circuit court vacated the
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Declaratory Rule because a prior circuit court opinion held that a cable modem service was in fact a telecommunications service. Id. (citing AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir. 2000). The Supreme Court concluded that the circuit court erred in relying on a prior court’s interpretation of the statute without first determining if the Commission’s contrary interpretation was reasonable. Id. at 982.
The Supreme Court’s holding relied on the same principles underlying the Chevron deference cases. Id. at 982 (stating that the holding in Brand X “follows from Chevron itself”). The Court reasoned that Congress had delegated to the Commission the authority to enforce the Communications Act, and under the principles espoused in Chevron, a reasonable interpretation of an ambiguous provision of the Act is entitled to deference. Id. at 981. Therefore, regardless of a circuit court’s prior interpretation of a provision, the agency’s interpretation is entitled to deference as long as the court’s prior construction of the provision does not “follow[] from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Id. at 982. In other words, an agency’s interpretation of a provision may override a prior court’s interpretation if the agency is entitled to Chevron deference and the agency’s interpretation is reasonable. If the agency is not entitled to deference or if the agency’s interpretation is unreasonable, a
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court’s prior decision interpreting the same statutory provision controls. See Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 789 (D.C. Cir. 2012)(citation omitted)(finding that a court decision interpreting a statute overrides the agency’s interpretation only if it holds “that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion”).
The government argues that the Policy Memorandum’s mandate to ignore circuit law contrary to Matter of A-B- is rooted in statute and sanctioned by Brand X. Defs.’ Reply, ECF No. 85 at 70. Moreover, the government contends that the requirement “simply states the truism that the INA requires all line officers to follow binding decisions of the Attorney General.” Id. (citing 8 U.S.C. § 1103(a))(“determination and ruling by the Attorney General with respect to all questions of law shall be controlling”). The government also argues that plaintiffs have failed to point to any decisions that are inconsistent with Matter of A-B-, and therefore any instruction for an officer to apply Matter of A-B- notwithstanding prior circuit precedent to the contrary is permissible. The Policy Memorandum, according to the government, “simply require[s] line officers to follow [Matter of A-B-] unless and until a circuit court of appeals declares some aspect of it contrary to the plain text of the INA.” Defs.’ Reply, ECF No. 85 at 72.
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The government, again, minimizes the effect of the Policy Memorandum. As an initial matter, Brand X would only allow an agency’s interpretation to override a prior judicial interpretation if the agency’s interpretation is entitled to deference. Brand X, 545 U.S. at 982 (stating “agency construction otherwise entitled to Chevron deference” may override judicial construction under certain circumstances)(emphasis added). In this case, the government contends that Matter of A-B- only interprets one statutory provision: “particular social group.” See Defs.’ Mot., ECF No. 57-1 at 56 (stating “[t]he language that the Attorney General interpreted in [Matter of] A-B-, [is] the meaning of the phrase ‘particular social group’ as part of the asylum standard”). The Policy Memorandum, however, directs officers to ignore federal circuit law to the extent that the law is inconsistent with Matter of A-B- in any respect, including Matter of A-B-’s persecution standard. The directive requires officers performing credible fear determinations to use Brand X as a shield against any prior or future federal circuit court decisions inconsistent with the sweeping proclamations made in Matter of A-Bregardless of whether Brand X has any application under the circumstances of that case.
There are several problems with such a broad interpretation of Brand X to cover guidance from an agency when it is far from
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clear that such guidance is entitled to deference. First, a directive to ignore circuit precedent when doing so would violate the principles of Brand X itself is clearly unlawful. For example, when a court determines a provision is unambiguous, as courts have done upon evaluating the “unwilling and unable” definition, a court’s interpretation controls when faced with a contrary agency interpretation. Brand X, 545 U.S. at 982. The Policy Memorandum directs officers as a rule not to apply circuit law if it is inconsistent with Matter of A-B-, without regard to whether a specific provision in Matter of A-B- is entitled to deference in the first place. Such a rule runs contrary to Brand X.
Second, the government’s argument only squares with the Brand X framework if every aspect of Matter of A-B- is both entitled to deference and is a reasonable interpretation of a relevant provision of the INA. Indeed, Brand X does not disturb any prior judicial opinion that a statute is unambiguous because Congress has spoken to the interpretive question at issue. Brand X, 545 U.S. at 982 (“[A] judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”). If a Court does make such a determination, the agency is not free to supplant the Court’s
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interpretation for its own under Brand X. Id.22 Unless an
agency’s interpretation of a statute is afforded deference, a
judicial construction of that provision binds the agency,
regardless of whether it is contrary to the agency’s view. The
Policy Memorandum does not recognize this principle and
therefore, the government’s reliance on Brand X is misplaced.
Cf., e.g., Matter of Marquez Conde, 27 I. & N. Dec. 251, 255
(BIA 2018)(examining whether the particular statutory question
fell within Brand X).23
The government’s statutory justification fares no better.
It is true that pursuant to 8 U.S.C. § 1103(a), the Attorney
General’s rulings with respect to questions of law are
controlling; and they are binding on all service employees,
8 C.F.R. § 103.3(c). But plaintiffs do not dispute the fact that
22 Any assumption that the entirety of Matter of A-B- is entitled to deference also falters in light of the government’s characterization of most of the decision as dicta. Defs.’ Reply, ECF No. 85 at 44–47. (characterizing Matter of A-B“comment[ary] on problems typical of gang and domestic violence related claims.”) According to the government, the only legal effect of Matter of A-B- is to overrule Matter of A-R-C-G-. Any other self-described dicta would not be entitled to deference under Chevron and therefore Brand X could not apply. Brand X, 545 U.S. at 982 (agency interpretation must at minimum be “otherwise entitled to deference” for it to supersede judicial construction). Simply put, Brand X is not a license for agencies to rely on dicta to ignore otherwise binding circuit precedent. 23 Matter of A-B- invokes Brand X only as to its interpretation of particular social group. 27 I. & N. Dec. at 327. As the Court has explained above, that interpretation is not entitled to deference.
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asylum officers must follow the Attorney General’s decisions. The issue is that the Policy Memorandum goes much further than that. Indeed, the government’s characterization of the Policy Memorandum’s directive to ignore federal law only highlights the flaws in its argument. According to the government, the directive at issue merely instructs officers to listen to the Attorney General. Defs.’ Reply, ECF No. 85 at 70. Such a mandate would be consistent with section 1103 and its accompanying regulations. In reality, however, the Policy Memorandum requires officers conducting credible fear interviews to follow the precedent of the relevant circuit only “to the extent that those cases are not inconsistent with Matter of A-B-.” Policy Memorandum, ECF No. 100 at 11. The statutory and regulatory provisions cited by the government do not justify a blanket mandate to ignore circuit law.
b. The Policy Memorandum’s Relevant Circuit Law Policy Violates the APA and INA
Plaintiffs next argue that the Policy Memorandum’s directive to asylum officers to apply the law of the “circuit where the alien is physically located during the credible fear interview” violates the immigration laws. Pls.’ Mot., ECF No. 64-1, 68–71; Policy Memorandum, ECF No. 100 at 12. Specifically, Plaintiffs argue that this policy conflicts with the low screening standard for credible fear determinations established
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by Congress, and therefore violates the APA and INA. Pls.’ Reply, ECF No. 92 at 35–36. The credible fear standard, plaintiffs argue, requires an alien to be afforded the benefit of the circuit law most favorable to his or her claim because there is a possibility that the eventual asylum hearing could take place in that circuit. Id.
The government responds by arguing that it is hornbook law that the law of the jurisdiction in which the parties are located governs the proceedings. Defs.’ Reply, ECF No. 85 at 73. The government cites the standard for credible fear determinations and argues that it contains no requirement that an alien be given the benefit of the most favorable circuit law. Id. The government also argues that, to the extent there is any ambiguity, the government’s interpretation is entitled to some deference, even if not Chevron deference. Id. at 74.
This issue turns on an interpretation of 8 U.S.C. § 1225(b)(1)(B)(v), which provides the standard for credible fear determinations. That section explicitly defines a “credible fear of persecution” as follows:
For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.
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8 U.S.C. § 1225(b)(1)(B)(v). Applicable regulations further explain the manner in which the interviews are to be conducted. Interviews are to be conducted in an “nonadversarial manner” and “separate and apart from the general public.” 8 C.F.R. § 208.30(d). The purpose of the interview is to “elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture[.]” Id.
The statute does not speak to which law should be applied during credible fear interviews. See generally 8 U.S.C. § 1225(b)(1)(B)(v). However, the Court is not without guidance regarding which law should be applied because Congress explained its legislative purpose in enacting the expedited removal provisions. 142 CONG. REC. S11491-02. When Congress established expedited removal proceedings in 1996, it deliberately established a low screening standard so that “there should be no danger that an alien with a genuine asylum claim will be returned to persecution.” H.R. REP. No. 104-469, pt. 1, at 158. That standard “is a low screening standard for admission into the usual full asylum process” and when Congress adopted the standard it “reject[ed] the higher standard of credibility included in the House bill.” 142 CONG. REC. S11491-02.
In light of the legislative history, the Court finds plaintiffs’ position to be more consistent with the low screening standard that governs credible fear determinations.
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The statute does not speak to which law should be applied during the screening, but rather focuses on eligibility at the time of the removal proceedings. 8 U.S.C. § 1225(b)(1)(B)(v). And as the government concedes, these removal proceedings could occur anywhere in the United States. Policy Memorandum, ECF No. 100 at 12. Thus, if there is a disagreement among the circuits on an issue, the alien should get the benefit of that disagreement since, if the removal proceedings are heard in the circuit favorable to the aliens’ claim, there would be a significant possibility the alien would prevail on that claim. The government’s reading would allow for an alien’s deportation, following a negative credible fear determination, even if the alien would have a significant possibility of establishing asylum under section 1158 during his or her removal proceeding. Thus, the government’s reading leads to the exact opposite result intended by Congress.24
The government does not contest that an alien with a possibility of prevailing on his or her asylum claim could be denied during the less stringent credible fear determination, but rather claims that this Court should defer to the
24 The government relies on BIA cases to support its argument that the law of the jurisdiction where the interview takes place controls. See Defs.’ Mot., ECF No. 57-1 at 49. These cases address the law that governs the removal proceedings, an irrelevant and undisputed issue.
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government’s interpretation that this policy is consistent with the statute. Defs.’ Reply, ECF No. 85 at 74–75. Under Skidmore v. Swift & Co., the Court will defer to the government’s interpretation to the extent it has the power to persuade.25 See 323 U.S. 134, 140, (1944). However, the government’s arguments bolster plaintiffs’ interpretation more than its own. As the government acknowledges, and the Policy Memorandum explicitly states, “removal proceedings can take place in any forum selected by DHS, and not necessarily the forum where the intending asylum applicant is located during the credible fear or reasonable fear interview.” Policy Memorandum, ECF No. 100 at 12. Since the Policy Memorandum directive would lead to denial of a potentially successful asylum applicant at the credible fear determination, the Court concludes that the directive is therefore inconsistent with the statute. H.R. REP. NO. 104-469 at 158 (explaining that there should be no fear that an alien with a genuine asylum claim would be returned to persecution).26
Because the government’s reading could lead to the exact
25 The government cannot claim the more deferential Auer deference because Auer applies to an agency’s interpretation of its own regulations, not to interpretations of policy documents like the Policy Memorandum. See Auer v. Robbins, 519 U.S. 452, 461 (1997)(holding agencies may resolve ambiguities in regulations). 26 The policy is also a departure from prior DHS policy without a rational explanation for doing so. See Mujahid Decl., Ex. F (DHS training policy explaining that law most favorable to the applicant applies when there is a circuit split).
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harm that Congress sought to avoid, it is arbitrary capricious and contrary to law.
* * * * * In sum, plaintiffs prevail on their APA and statutory claims with respect to the following credible fear policies, which this Court finds are arbitrary and capricious and contrary to law: (1) the general rule against credible fear claims relating to gang-related and domestic violence victims’ membership in a “particular social group,” as reflected in Matter of A-B- and the Policy Memorandum; (2) the heightened “condoned” or “complete helplessness” standard for persecution, as reflected in Matter of A-B- and the Policy Memorandum; (3) the circularity standard as reflected in the Policy Memorandum; (4) the delineation requirement at the credible fear stage, as reflected in the Policy Memorandum; and (5) the requirement that adjudicators disregard contrary circuit law and apply only the law of the circuit where the credible fear interview occurs, as reflected in the Policy Memorandum. The Court also finds that neither the Policy Memorandum nor Matter of A-B- state an unlawful nexus requirement or require asylum officers to apply discretionary factors at the credible fear stage. The Court now turns to the appropriate remedy.27
27 Because the Court finds that the government has violated the INA and APA, it need not determine whether there was a
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D. Relief Sought Plaintiffs seek an Order enjoining and preventing the government and its officials from applying the new credible fear policies, or any other guidance implementing Matter of A-B- in credible fear proceedings. Pls.’ Mot., ECF No. 64-1 at 71–72. Plaintiffs also request that the Court vacate any credible fear determinations and removal orders issued to plaintiffs who have not been removed. Id. As for plaintiffs that have been removed, plaintiffs request a Court Order directing the government to return the removed plaintiffs to the United States. Id. Plaintiffs also seek an Order requiring the government to provide new credible fear proceedings in which asylum adjudicators must apply the correct legal standards for all plaintiffs. Id. The government argues that because section 1252 prevents all equitable relief the Court does not have the authority to order the removed plaintiffs to be returned to the United States. Defs.’ Reply, ECF No. 85 at 75–76. The Court addresses each issue in turn.
constitutional violation in this case. See Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989)(per curiam)(stating courts should be wary of issuing “unnecessary constitutional rulings”).
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1. Section 1252 Does Not Bar Equitable Relief a. Section 1252(e)(1)
The government acknowledges that section 1252(e)(3) provides for review of “systemic challenges to the expedited removal system.” Defs.’ Mot., ECF No. 57-1 at 11. However, the government argues 1252(e)(1) limits the scope of the relief that may be granted in such cases. Defs.’ Reply, ECF No. 85 at 75–76. That provision provides that “no court may . . . enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection.” 8 U.S.C. § 1252(e)(1)(a). The government argues that since no other subsequent paragraph of section 1252(e) specifically authorizes equitable relief, this Court cannot issue an injunction in this case. Defs.’ Reply, ECF No. 85 at 75–76.
Plaintiffs counter that section 1252(e)(1) has an exception for “any action . . . specifically authorized in a subsequent paragraph.” Since section 1252(e)(3) clearly authorizes “an action” for systemic challenges, their claims fall within an exception to the proscription of equitable relief. Pls.’ Reply, ECF No. 92 at 38.
This issue turns on what must be “specifically authorized in a subsequent paragraph” of section 1252(e). Plaintiffs argue
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the “action” needs to be specifically authorized, and the
government argues that it is the “relief.” Section 1252(e)(1)
states as follows:
(e) Judicial review of orders under section 1225(b)(1)
(1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may--
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or
(B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection.
The government contends that this provision requires that
any “declaratory, injunctive, or other equitable relief” must be
“specifically authorized in a subsequent paragraph” of
subsection 1252(e) for that relief to be available. Defs.’
Reply, ECF No. 85 at 75 (emphasis in original). The more natural
reading of the provision, however, is that these forms of relief
are prohibited except when a plaintiff brings “any action . . .
specifically authorized in a subsequent paragraph.” Id.
§ 1252(e)(1)(a). The structure of the statute supports this
view. For example, the very next subsection, 1252(e)(1)(b), uses
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the same language when referring to an action: “[A court may not certify a class] in any action for which judicial review is authorized under a subsequent paragraph of this subsection.” Id. § 1252(e)(1)(b)(emphasis added).
A later subsection lends further textual support for the view that the term “authorized” modifies the type of action, and not the type of relief. Subsection 1252(e)(4) limits the remedy a court may order when making a determination in habeas corpus proceedings challenging a credible fear determination.28 Under section 1252(e)(2), a petitioner may challenge his or her removal under section 1225, if he or she can prove by a preponderance of the evidence that he or she is in fact in this country legally.29 See 8 U.S.C. § 1252(e)(2)(c). Critically, section 1252(e)(4) limits the type of relief a court may grant if the petitioner is successful: “the court may order no remedy or relief other than to require that the petitioner be provided a hearing.” Id. § 1252(e)(4)(B). If section 1252(e)(1)(a) precluded all injunctive and equitable relief, there would be no need for § 1252(e)(4) to specify that the court could order no
28 Habeas corpus proceedings, like challenges to the validity of the system under 1252(e)(3), are “specifically authorized in a subsequent paragraph of [1252(e)].” 8 U.S.C. § 1252(e)(1)(a). 29 To prevail on this type of claim a petitioner must establish that he or she is an “alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158.” 8 U.S.C. § 1252(e)(2).
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other form of relief. Furthermore, if the government’s reading was correct, there should be a parallel provision in section 1252(e)(3) limiting the relief a prevailing party of a systemic challenge could obtain to only relief specifically authorized by that paragraph.
Indeed, under the government’s reading of the statute there could be no remedy for a successful claim under paragraph 1252(e)(3) because that paragraph does not specifically authorize any remedy. However, it does not follow that Congress would have explicitly authorized a plaintiff to bring a suit in the United States District Court for the District of Columbia and provided this Court with exclusive jurisdiction to determine the legality of the challenged agency action, but deprived the Court of any authority to provide any remedy (because none are specifically authorized), effectively allowing the unlawful agency action to continue. This Court “should not assume that Congress left such a gap in its scheme.” Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167, 180 (2005)(holding Title IX protected against retaliation in part because “all manner of Title IX violations might go umremedied” if schools could retaliate freely).
An action brought pursuant to section 1252(e)(3) is an action that is “specifically authorized in a subsequent paragraph” of 1252(e). See 8 U.S.C. § 1252(e)(1). And 1252(e)(3)
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clearly authorizes “an action” for systemic challenges to written expedited removal policies, including claims concerning whether the challenged policy “is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.” Id. § 1252(e)(3). Because this case was brought under that systemic challenge provision, the limit imposed on the relief available to a court under 1252(e)(1)(a) does not apply.30
b. Section 1252(f) The government’s argument that section 1252(f) bars injunctive relief fares no better. That provision states in relevant part: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [sections 1221–1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). The Supreme Court has explained that “Section 1252(f)(1) thus ‘prohibits federal courts from granting
30 Plaintiffs also argue that section 1252(e)(1) does not apply to actions brought under section 1252(e)(3). Section 1252(e)(1), by its terms, only applies to an “action pertaining to an order to exclude an alien in accordance with section 1225(b)(1).” Plaintiffs argue that the plain reading of section 1252(e)(3) shows that an action under that provision does not pertain to an individual order of exclusion, but rather “challenges the validity of the system.” Pls.’ Reply, ECF No. 92 at 12 (citing 8 U.S.C. § 1252(e)(3)). Having found that section 1252(e)(3) is an exception to section 1252(e)(1)’s limitation on remedies, the Court need not reach this argument.
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classwide injunctive relief against the operation of §§ 1221– 123[2].’” Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018)(citing Reno v. American–Arab Anti–Discrimination Comm., 525 U.S. 471, 481 (1999)). The Supreme Court has also noted that circuit courts have “held that this provision did not affect its jurisdiction over . . . statutory claims because those claims did not ‘seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.” Id. (citing Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)).
In this case, plaintiffs do not challenge any provisions found in section 1225(b). They do not seek to enjoin the operation of the expedited removal provisions or any relief declaring the statutes unlawful. Rather, they seek to enjoin the government’s violation of those provisions by the implementation of the unlawful credible fear policies. An injunction in this case does not obstruct the operation of section 1225. Rather, it enjoins conduct that violates that provision. Therefore, section 1252(f) poses no bar. See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 184 (D.D.C. 2015)(holding section 1252(f) does not limit a court’s ability to provide injunctive relief when the injunctive relief “enjoins conduct that allegedly violates [the immigration statute]”); see also Reid v. Donelan, 22 F. Supp. 3d 84, 90 (D. Mass. 2014)(“[A]n injunction ‘will not prevent the law from
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operating in any way, but instead would simply force the
government to comply with the statute.”)(emphasis in original)). Finally, during oral argument, the government argued that
even if the Court has the authority to issue an injunction in this case, it can only enjoin the policies as applied in
plaintiffs’ cases under section 1252(f). See Oral Arg. Hr’g Tr., ECF No. 102 at 63. In other words, according to the government,
the Court may declare the new credible fear policies unlawful,
but DHS may continue to enforce the policies in all other credible fear interviews. To state this proposition is to refute
it. It is the province of the Court to declare what the law is, see Marbury v. Madison, 5 U.S. 137, 177 (1803), and the government cites no authority to support the proposition that a Court may declare an action unlawful but have no power to
prevent that action from violating the rights of the very people it affects.31 To the contrary, such relief is supported by the
APA itself. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,
31 During oral argument, the government argued for the first time that an injunction in this case was tantamount to class-wide relief, which the parties agree is prohibited under the statute. See Oral Arg. Hr’g Tr., ECF No. 102 at 63; 8 U.S.C. § 1252(e)(1)(b)(prohibiting class certification in actions brought under section 1252(e)(3)). The Court finds this argument unpersuasive. Class-wide relief would entail an Order requiring new credible fear interviews for all similarly situated individuals, and for the government to return to the United States all deported individuals who were affected by the policies at issue in this case. Plaintiffs do not request, and the Court will not order, such relief.
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145 F.3d 1399, 1409-10 (D.C. Cir. 1998)(“We have made clear that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated – not that their application to the individual petitioners is proscribed.’”). Moreover section 1252(f) only applies when a plaintiff challenges the legality of immigration laws and not, as here, when a plaintiff seeks to enjoin conduct that violates the immigration laws. In these circumstances, section 1252(f) does not limit the Court’s power.
2. The Court Has the Authority to Order the Return of Plaintiffs Unlawfully Removed
Despite the government’s suggestion during the emergency stay hearing that the government would return removed plaintiffs should they prevail on the merits, TRO Hr’g Tr., Aug. 9, 2018, ECF No. 23 at 13-14 (explaining that the Department of Justice had previously represented to the Supreme Court that should a Court find a policy that led to a plaintiffs’ deportation unlawful the government “would return [plaintiffs] to the United states at no expense to [plaintiffs]”), the government now argues that the Court may not do so, see Defs.’ Reply, ECF No. 85 at 78–79.
In support of its argument, the government relies principally on Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir 2009) vacated, 130 S.Ct. 1235, reinstated in amended form, 605 F.3d
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1046 (D.C. Cir. 2010). In Kiyemba, seventeen Chinese citizens, determined to be enemy combatants, sought habeas petitions in connection with their detention in Guantanamo Bay, Cuba. 555 F.3d at 1024. The petitioners sought release in the United States because they feared persecution if they were returned to China, but had not sought to comply with the immigration laws governing a migrant’s entry into the United States. Id. After failed attempts to find an appropriate country in which to resettle, the petitioners moved for an order compelling their release into the United States. Id. The district court, citing exceptional circumstances, granted the motion. Id.
The United States Court of Appeals for the District of Columbia Circuit reversed. The Court began by recognizing that the power to exclude aliens remained in the exclusive power of the political branches. Id. at 1025 (citations omitted). As a result, the Court noted, “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Id. at 1026 (citation and internal quotation marks omitted). The critical question was “what law expressly authorized the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States.” Id. at 1026 (internal quotation marks omitted).
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In this case, the answer to that question is the
immigration laws. In fact, Kiyemba distinguished Supreme Court cases which “rested on the Supreme Court’s interpretation not of
the Constitution, but of a provision in the immigration laws.” Id. at 1028. The Court further elaborated on this point with the following explanation:
it would . . . be wrong to assert that, by ordering aliens paroled into the country . . . the Court somehow undermined the plenary authority of the political branches over the entry and admission of aliens. The point is that Congress has set up the framework under which aliens may enter the United States. The Judiciary only possesses the power Congress gives it to review Executive action taken within that framework. Since petitioners have not applied for admission, they are not entitled to invoke that judicial power.
Id. at 1028 n.12. The critical difference here is that plaintiffs have
availed themselves of the “framework under which aliens may
enter the United States.” Id. Because plaintiffs have done so, this Court “possesses the power Congress gives it to review
Executive action taken within that framework.” Id. Because the Court finds Kiyemba inapposite, the government’s argument that this Court lacks authority to order plaintiffs returned to the
United States is unavailing. It is also clear that injunctive relief is necessary for
the Court to fashion an effective remedy in this case. The
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credible fear interviews of plaintiffs administered pursuant to the policies in Matter of A-B- and the Policy Memorandum were fundamentally flawed. A Court Order solely enjoining these policies is meaningless for the removed plaintiffs who are unable to attend the subsequent interviews to which they are entitled. See, e.g., Walters v. Reno, 145 F.3d 1032, 1050–51 (9th Cir. 1998)(“[A]llowing class members to reopen their proceedings is basically meaningless if they are unable to attend the hearings that they were earlier denied.”).
3. Permanent Injunction Factors Require Permanent Injunctive Relief
A plaintiff seeking a permanent injunction must satisfy a four-factor test. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Plaintiffs must demonstrate they have: (1) suffered an irreparable injury; (2) that traditional legal remedies, such as monetary relief, are inadequate to compensate for that injury; (3) the balance of hardships between the parties warrants equitable relief; and (4) the injunction is not contrary to the public interest. See Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 695 (D.C. Cir. 2015).
Plaintiffs seek a permanent injunction, arguing that they have been irreparably harmed and that the equities are in their favor. Pls.’ Mot., ECF No. 64-1 at 73–74. The government has not responded to these arguments on the merits, and rests on its
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contention that the Court does not have the authority to order such relief. Defs.’ Reply, ECF No. 85 at 75–78. Having found that the Court does have the authority to order injunctive relief, supra, at 93–104, the Court will explain why that relief is appropriate.
Plaintiffs claim that the credible fear policies this Court has found to be unlawful have caused them irreparable harm. It is undisputed that the unlawful policies were applied to plaintiffs’ credible fear determinations and thus caused plaintiffs’ applications to be denied. See Defs.’ Mot., ECF No. 57-1 at 28 (stating an “asylum officer reviewed each of [plaintiffs] credible fear claims and found them wanting in light of Matter of A-B-”). Indeed, plaintiffs credibly alleged at their credible fear determinations that they feared rape, pervasive domestic violence, beatings, shootings, and death in their countries of origin. Based on plaintiffs’ declarations attesting to such harms, they have demonstrated that they have suffered irreparable injuries.32
The Court need spend little time on the second factor: whether other legal remedies are inadequate. No relief short of enjoining the unlawful credible fear policies in this case could
32 The country reports support the accounts of the Plaintiffs. See Mujahid Decl., ECF No. 10-3, Exs. K-T; Second Mujahid Decl., ECF No. 64-4 Exs. 10–13; Honduras Decl., ECF No. 64-6; Guatemala Decl., ECF No. 64-7; El Salvador Decl., ECF No. 64-8.
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provide an adequate remedy. Plaintiffs do not seek monetary compensation. The harm they suffer will continue unless and until they receive a credible fear determination pursuant to the existing immigration laws. Moreover, without an injunction, the plaintiffs previously removed will continue to live in fear every day, and the remaining plaintiffs are at risk of removal.
The last two factors are also straightforward. The balance of the hardships weighs in favor of plaintiffs since the “[g]overnment ‘cannot suffer harm from an injunction that merely ends an unlawful practice.’” R.I.L-R, 80 F. Supp. at 191 (citing Rodriguez, 715 F.3d at 1145). And the injunction is not contrary to the public interest because, of course, “[t]he public interest is served when administrative agencies comply with their obligations under the APA.” Id. (citations omitted). Moreover, as the Supreme Court has stated, “there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken v. Holder, 556 U.S. 418, 436 (2009). No one seriously questions that plaintiffs face substantial harm if returned to their countries of origin. Under these circumstances, plaintiffs have demonstrated they are entitled to a permanent injunction in this case.
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IV. Conclusion

For the foregoing reasons, the Court holds that it has

jurisdiction to hear plaintiffs’ challenges to the credible fear

policies, that it has the authority to order the injunctive

relief, and that, with the exception of two policies, the new

credible fear policies are arbitrary, capricious, and in

violation of the immigration laws.

Accordingly, the Court GRANTS in PART and DENIES in PART

plaintiffs' cross-motion for summary judgment and motion to

consider evidence outside the administrative record. The Court

also GRANTS plaintiffs’ motion for a permanent injunction. The

Court further GRANTS in PART and DENIES in PART the government’s

motion for summary judgment and motion to strike.

The Court will issue an appropriate Order consistent with

this Memorandum Opinion.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge December 17, 2018

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 Case 1:18-cv-01853-EGS Document 105 Filed 12/19/18 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRACE, et al.,
Plaintiffs, v. MATTHEW G. WHITAKER, Acting Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 1:18-cv-01853 (EGS) ) ) ) )

ORDER The Court has considered the parties’ cross-motions for summary judgment, the memoranda and exhibits in support thereof, and the briefs in opposition thereto; plaintiffs’ motion to consider extra-record evidence, defendants’ motion to strike plaintiffs’ extra-record evidence, and the memoranda in support or in opposition thereto; oral argument; and the entire record in this action. Accordingly, and consistent with the accompanying Memorandum Opinion, the Court hereby GRANTS IN PART and DENIES IN PART plaintiffs’ cross-motion for summary judgment, and GRANTS IN PART and DENIES IN PART defendants’ motion for summary judgment. This Court hereby: 1. DECLARES that the following credible fear policies
contained in Matter of A-B-, 27 I. & N. Dec. 316 (A.G.

Case 1:18-cv-01853-EGS Document 105 Filed 12/19/18 Page 2 of 6
2018), the USCIS Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-, July 11, 2018 (PM-602-0162) (hereinafter “Policy Memorandum”), and/or the Asylum Division Interim Guidance – Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) (“Interim Guidance”), and challenged by plaintiffs, are arbitrary, capricious, and in violation of the immigration laws insofar as those policies are applied in credible fear proceedings:
a. The general rule against credible fear claims relating to domestic and gang violence. See Matter of A-B-, 27 I. & N. Dec. at 320 & n.1; Policy Memorandum, ECF No. 100 at 9, 12-13.
b. The requirement that a noncitizen whose credible fear claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.” Matter of A-B-, 27 I. & N. at 337; Policy Memorandum, ECF No. 100 at 5, 9, 13; Interim Guidance.
c. The Policy Memorandum’s rule that domestic violencebased particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable in credible fear proceedings. Policy Memorandum, ECF No. 100 at 8.
d. The Policy Memorandum’s requirement that, during the credible fear stage, individuals claiming credible fear must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground. Policy Memorandum, ECF No. 100 at 6, 12.
e. The Policy Memorandum’s directive that asylum officers conducting credible fear interviews should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.” Policy Memorandum, ECF No. 100 at 11.
f. The Policy Memorandum’s directive that asylum officers conducting credible fear interviews should

Case 1:18-cv-01853-EGS Document 105 Filed 12/19/18 Page 3 of 6
apply only the case law of “the circuit where the alien is physically located during the credible fear interview.” Policy Memorandum, ECF No. 100 at 1112.
2. VACATES each of the credible fear policies specified in paragraphs 1.a. through 1.f. above. Accordingly, the Court PERMANENTLY ENJOINS defendants and their agents from applying these policies with respect to credible fear determinations, credible fear interviews, or credible fear review hearings issued or conducted by asylum officers or immigration judges. Defendants shall provide written guidance or instructions to all asylum officers and immigration judges whose duties include issuing or conducting credible fear determinations, credible fear interviews, or credible fear review hearings, communicating that each of the credible fear policies specified in paragraphs 1.a. through 1.f. are vacated and enjoined and therefore shall not be applied to any such credible fear proceedings.
3. VACATES the negative credible fear determinations and any expedited removal orders issued to each plaintiff.
4. PERMANENTLY ENJOINS defendants from removing any plaintiffs currently in the United States without first providing each of them a new credible fear process consistent with the Court’s Memorandum Opinion and free from the unlawful policies enumerated in paragraphs 1.a. through 1.f. above or, in the alternative, full immigration court removal proceedings pursuant to 8 U.S.C. § 1229a. To ensure compliance with this injunction, any new credible fear process provided pursuant to this paragraph shall be accompanied by a written record consistent with 8 U.S.C. § 1225(b)(1)(B)(iii).
5. FURTHER ORDERS defendants to bring back into the United States, at no expense to plaintiffs, any plaintiff who has been removed pursuant to an expedited removal order prior to this Order and parole them into the United States, and provide each of them a new credible fear process consistent with the Court’s Memorandum Opinion and free from the unlawful policies enumerated in paragraphs 1.a. through 1.f. above or, in the alternative, full immigration court removal proceedings

Case 1:18-cv-01853-EGS Document 105 Filed 12/19/18 Page 4 of 6
pursuant to 8 U.S.C. § 1229a. To facilitate such plaintiffs’ return to the United States, defendants shall meet and confer with plaintiffs’ counsel within 7 days to develop a schedule and plan to carry out this portion of the injunction. To ensure compliance with this injunction, any new credible fear process provided pursuant to this paragraph shall be accompanied by a written record consistent with 8 U.S.C. § 1225(b)(1)(B)(iii). Defendants shall work in good faith to carry out the relief ordered in this paragraph and shall communicate periodically with plaintiffs’ counsel until the relief ordered in this paragraph is completed.
6. FURTHER ORDERS defendants to provide the plaintiffs, within 10 days of this Order, with a status report detailing any steps defendants have taken to comply with this injunction, including copies of all guidance and instructions sent to asylum officers and immigration judges pursuant to paragraph 2 above. Within 30 days and 60 days of this Order, defendants shall provide plaintiffs with a status report detailing any subsequent steps taken to comply with this injunction in the time period since the last report, including copies of all guidance and instructions sent to asylum officers and immigration judges pursuant to paragraph 2 above during that time frame.
The Court GRANTS plaintiffs’ cross-motion for summary
judgment as to their Administrative Procedure Act,
Immigration and Nationality Act, and Refugee Act challenges
concerning each of the policies enumerated in paragraphs
1.a. through 1.f. above, and defendants’ motion for summary
judgment is DENIED as to these same claims. The Court
DENIES plaintiffs’ cross-motion for summary judgment as to
their challenges concerning nexus and discretion, and
defendants’ motion for summary judgment is GRANTED as to
these same claims.

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Furthermore, consistent with the accompanying Memorandum Opinion, the Court GRANTS plaintiffs’ motion to consider extra record evidence with respect to evidence relevant to plaintiffs’ contentions that the government deviated from prior policies, as well as evidence relevant to plaintiffs’ request for injunctive relief. Accordingly, the following evidence submitted by plaintiffs is admitted into the record, and defendants’ motion to strike is DENIED with respect to this same evidence: Decl. of Sarah Mujahid (“Mujahid Decl.”), ECF No. 10-3, Exs. E-J; Second Decl. of Sarah Mujahid (“Second Mujahid Decl.”), ECF No. 64-4, Exs. 1-3; ECF Nos. 12-1 to 12-9 (filed under seal); Mujahid Decl., ECF No. 10-3, Exs. K-Q; Second Mujahid Decl., ECF No. 64-4, Exs. 10-13; Joint Decl. of Shannon Drysdale Walsh, Cecilia Menjivar, and Harry Vanden (“Honduras Decl.”), ECF No. 64-6; Joint Decl. of Cecilia Menjivar, Gabriela Torres, and Harry Vanden (“Guatemala Decl.”), ECF No. 64-7; Joint Decl. of Cecilia Menjivar and Harry Vanden (“El Salvador Decl.”), ECF No. 64-8.
Because the Court has declined to consider plaintiffs’ due process claim, the Court GRANTS defendants’ motion to strike with respect to evidence relating to plaintiffs’ due process claim. Accordingly, the Court will not consider the following documents relating to plaintiffs’ due process

Case 1:18-cv-01853-EGS Document 105 Filed 12/19/18 Page 6 of 6

claim: Second Mujahid Decl., ECF No. 64-4, Exs. 4-7, 8-9,

14-17, and ECF No. 64-5; and Mujahid Decl., ECF No. 10-3,

Exs. R-T. Plaintiffs’ motion to consider extra-record

evidence as to these same documents is DENIED without

prejudice.

The Court also GRANTS defendants’ motion to strike

with respect to the Decl. of Rebecca Jamil and Decl. of

Ethan Nasr, and plaintiffs’ evidence motion is DENIED as to

these same documents.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District December 19, 2018

 
 Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRACE, et al., v.

Plaintiffs,

MATTHEW G. WHITAKER, Acting Attorney General of the United States, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 18-1853 ) ) ) ) ) )

MEMORANDUM OPINION AND ORDER On December 19, 2018, the Court issued an Order vacating several policies promulgated by the Attorney General in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), a precedential immigration decision, and subsequent guidance issued by the Department of Homeland Security. See Order, ECF No. 105. The vacated policies related to the expedited removal process and credible fear determinations made by asylum officers. The Court held that these policies violated the Administrative Procedure Act and the immigration laws. Accordingly, the Court vacated the unlawful policies and permanently enjoined the government from applying the policies in future cases. The government now requests a stay, pending appeal of the Court’s Order, to enable the unlawful policies to continue to apply in all expedited removal cases, except the plaintiffs. For the following reasons, defendants' motion for stay is DENIED.

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 2 of 14
I. Legal Standard A court's decision to stay its final judgment pending
appeal is an extraordinary remedy that is an “intrusion into the ordinary process of . . . judicial review.” Nken v. Holder, 556 U.S. 418, 428 (2009); see also Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). The issuance of a stay is a matter of judicial discretion, not a matter of right, and the “party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken, 556 U.S. at 433-34. In exercising its discretion, a court considers the following four factors:
(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Cuomo, 772 F.2d at 974. It is “the movant’s obligation to justify the court’s exercise of such an extraordinary remedy.” Id. at 978. II. Discussion The Court begins with a discussion of general guidance from the Supreme Court about the four stay factors. “The first two factors of the traditional standard are the most critical. It is not enough that the chance of success on the merits be ‘better than negligible.’” Nken, 556 U.S. at 434 (citation omitted). “By
2

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the same token, simply showing some ‘possibility of irreparable injury,’ fails to satisfy the second factor.” Id. at 434–35 (internal citation omitted). “Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party.” Id. at 435. In the context of removal proceedings, courts must be mindful that the “Government's role as the respondent in every removal proceeding does not make the public interest in each individual one negligible.” Id. (citations omitted). With these principles in mind, the Court now turns to the four stay factors.
A. Likelihood of Success on the Merits In determining whether a stay should be granted, a “critical” factor is whether the moving party is likely to succeed on the merits. Id. at 434. The government confines its arguments to the claim that the Court has no authority to enjoin the operation of any expedited removal policies beyond that policies’ application to the plaintiffs. See Defs.’ Mot. to Stay, ECF No. 107. The government makes three principal arguments to support its position. First, the government points to section 1252(e)(3), the provision under which the plaintiffs have brought this case. See 8 U.S.C. § 1252(e)(3). Next, the government looks to the legislative
3

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history of the 1996 amendments to the Immigration and Nationality Act (“INA”). Finally, the government argues precedent in this Circuit “indicates” that its position is correct. The Court considers each argument in turn.
i. Section 1252(e)(3) The government first argues that the Congressional scheme precludes any injunctive relief that is not limited to the plaintiffs in this case. Defs.’ Mot. to Stay, ECF No. 107 at 2– 4. The Court has already rejected the various arguments made on this point in its Memorandum Opinion. ECF No. 106 at 98–101. Undaunted, the government now points to section 1252(e)(3) which grants the Court authority for “judicial review of determinations under section 1225(b) and its implementation.” Defs.’ Mot. to Stay, ECF No. 107 at 3. The government argues that such determinations may only be made individually and therefore the Court only had authority to review, and provide a remedy for, the plaintiffs’ individual determinations. Id. The government further argues that its position is supported by a provision that prohibits a court from certifying a class action in any action for which judicial review is authorized under 1252(e). See 8 U.S.C. § 1252(e)(1)(B). The Court is no more persuaded by the government’s arguments here than it was when the government made nearly identical arguments in its motion for summary judgment. See,
4

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e.g., Memorandum Opinion, ECF No. 106 at 100 n.30 (rejecting argument that an injunction in this case is tantamount to classwide relief). As the Court explained in its Memorandum Opinion, the government’s argument requires the Court to ignore the fact that section 1252(e)(3) authorizes a systemic legal challenge to a new expedited removal written policy directive issued under the authority of the Attorney General and contains no limitation on relief once a court makes a determination that a policy directive is unlawful. See 8 U.S.C. § 1252(e)(3).
Furthermore, the provision itself explicitly states that when a plaintiff brings a claim under section 1252(e)(3), the Court is “limited to determinations of . . . whether . . . a written policy directive . . . is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii). There is no statutory requirement, as the government argues, to declare a policy in violation of the law only as applied to the individual plaintiffs. Cf. 8 U.S.C. § 1252(f)(limiting injunctive relief to only the plaintiff when a plaintiff challenges the legality of a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)). To accept the government’s position would require the Court to ignore the systemic nature of this action. It also would require the Court to ignore the general rule that “[w]hen a reviewing court
5

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determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Nat’l Min. Ass'n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998)(citation omitted).
As to the prohibition on class actions, as the Court stated in its Memorandum Opinion, class-wide relief in this case would entail an order requiring new credible fear interviews for all immigrants who applied for asylum from June 11, 2018, the date of the Attorney General’s decision, and for the government to return to the United States every deported individual who was affected by the policies at issue in this case. Memorandum Opinion, ECF No. 106 at 100 n.30. The Court has ordered no such relief in this case.
ii. Legislative History The government next points to the legislative history of the 1996 amendments to the INA. Defs.’ Mot. to Stay, ECF No. 107 at 4 (citing H.R. REP. No. 104-469(I)). Noting that this Court relied extensively on the legislative history of the immigration law, the government argues the history demonstrates Congress’ intent to allow policies declared to be unlawful by a court to remain in place. Id. The government selectively quotes the legislative history to bolster its unpersuasive argument. The relevant section, however, states as follows:
6

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Section 306 also limits the authority of Federal courts other than the Supreme Court to enjoin the operation of the new removal procedures established in this legislation. These limitations do not preclude challenges to the new procedures, but the procedures will remain in force while such lawsuits are pending. In addition, courts may issue injunctive relief pertaining to the case of an individual alien, and thus protect against any immediate violation of rights. However, single district courts or courts of appeal do not have authority to enjoin procedures established by Congress to reform the process of removing illegal aliens from the U.S.
H.R. REP. No. 104-469(I) at 161 (emphasis added). This argument
is a repackaging of the government’s argument in its motion for
summary judgment that section 1252(f) precludes the court’s
injunction. See Memorandum Opinion, ECF No. 106 at 98. Again,
the Court agrees with the government that the Court would not
have the authority to enjoin, other than as to the plaintiffs,
“new removal procedures established” by the 1996 Amendments to
the INA, nor would it have “authority to enjoin procedures
established by Congress to reform the process of removing
illegal aliens from the U.S.” See H.R. REP. No. 104-469(I) at
161. The problem for the government is that this case does not
concern “procedures established by Congress” or a challenge to
the INA itself. See id. Rather, the plaintiffs have challenged
“written policy directive[s] [and] written policy guideline[s]”
established by the Attorney General. See 8 U.S.C. §
1252(e)(3)(A)(ii).
7

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 8 of 14
American Immigration Lawyers Ass'n v. Reno (“AILA”), 199 F.3d 1352, 1358 (D.C. Cir. 2000), is instructive. In AILA the plaintiffs challenged several provisions of IIRIRA, an Act of Congress, which established the expedited removal provisions enacted by the legislative branch. Id. In such a case, the Court would have been able to enjoin any unlawful provisions as to the plaintiffs in the case only because the plaintiffs challenged “removal procedures established by Congress.” See H.R. REP. No. 104-469(I) at 161.
In contrast, the plaintiffs here have challenged the action of the Attorney General, not legislation passed by Congress. Moreover, the plaintiffs requested that the Attorney General conform the policies to the immigration laws. See Memorandum Opinion, ECF No. 106 at 101 (explaining the plaintiffs do not challenge the statute but rather seek to enjoin the government from violating the statute). The unlawful policies in this case were not the result of action by the legislature, but rather a policy directive issued by the executive branch. Again, it is the will of Congress--not the whims of the executive--that determines the standard for expedited removal. And when there is an inconsistency, the latter must accede to the former.
8

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 9 of 14
iii. AILA and 8 U.S.C. Section 1252(f) The government, citing AILA, argues that the Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has “indicated” that relief in cases brought under section 1252(e)(3) should be limited to the parties before the Court, and only those parties. Defs.’ Mot. to Stay, ECF No. 107 at 5. AILA concerned the doctrine of third-party standing, and the organizational plaintiffs in that case sought to litigate the rights of aliens who were not parties to the suit. 199 F.3d at 1357. As the D.C. Circuit explained, the organizational plaintiffs alleged that the new statutory scheme "violated not their rights or the rights of their members, but the [rights] of unnamed aliens who were or might be subject to the statute and regulations." Id. Because the organizational plaintiffs did not have standing, the D.C. Circuit had no occasion to discuss the limits of an appropriate remedy. Id. at 1364 (holding “plaintiff organizations do not have standing to raise claims, whether statutory or constitutional, on behalf of aliens subjected to IIRIRA's expedited removal system”). The D.C. Circuit simply noted that the statutory scheme supported its view that litigants could not assert the rights of others in a 1252(e)(3) action. Id. at 1359. In support of this view, the Court pointed to two provisions relevant to this case: section 1252(e)(1)(B) which prohibits class actions; and section 1252(f)(1) which only
9

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 10 of 14
authorizes injunctive relief for the parties to a case when the parties challenge the legality of an immigration statute. Id.
As explained in this Court’s Memorandum opinion, section 1252(f)(1) only applies when a party is challenging the legality of a statute, and not when a party argues that the defendant’s actions violate the statute. ECF No. 106 at 101. In AILA, the organizational plaintiffs argued that the statute itself was unconstitutional, not that defendants were not complying with the statute, therefore the D.C. Circuit’s analysis of 1252(f) is wholly consistent with this Court’s Memorandum Opinion. As for the bar on class certification, the Court has already ruled that the injunction is not tantamount to class-wide relief. See supra at 6. In any event, AILA was an analysis of third-party standing, and the D.C. Circuit did not address what relief would be appropriate when a plaintiff that was subject to the expedited removal process successfully challenges a policy that violates the immigration laws. The government’s reliance on AILA is therefore misplaced.
In light of the foregoing analysis, the Court is not persuaded that the government is likely to prevail on appeal.
B. Irreparable Injury The Court next considers if the government has shown it will be “irreparably injured absent a stay.” Nken, 556 U.S. at 434. (citation omitted). The claimed irreparable injury must be
10

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 11 of 14
likely to occur; “simply showing some ‘possibility of irreparable injury’” is insufficient. Id. (citation omitted).
The government briefly states it will be irreparably harmed, arguing that “[a]n[] order that enjoins a governmental entity from enforcing actions taken pursuant to statutes enacted by the duly elected representatives of the people constitutes an irreparable injury.” Defs.’ Mot. to Stay, ECF No. 107 at 7. There are several problems with this argument. As stated above, and at length in the Memorandum Opinion, the plaintiffs have not challenged any action taken pursuant to statutes enacted by elected representatives. Rather, the challenged action at issue in this case was taken contrary to the immigration laws. The plaintiffs have invoked those immigration laws and the Court has found that several of the policies violate those laws. Moreover, this was not an action by the legislature, but rather a policy directive issued by the executive.
The government, therefore, has not shown that a stay of the Court’s order is necessary to avoid a likely irreparable injury in this case.
C. Substantial Injury to Other Parties and the Public Interest
The Court next addresses the second two factors, which “merge when the Government is the opposing party.” Nken, 556 U.S. at 434. The government briefly argues that no party will be
11

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 12 of 14
harmed if the Court grants the stay because the policies are enjoined as to all the plaintiffs in this case. Defs.’ Mot. to Stay, ECF No. 107 at 6. However, the government fails to acknowledge that the Court considers harm to non-parties. See Loving v. I.R.S., 920 F. Supp. 2d 108, 111 (D.D.C. 2013) (considering harm to non-parties if the Court granted the stay). In light of the Court’s finding that the heightened standard imposed by the policies is unlawful, it is clear that immigrants who allege credible fears of domestic or gang-related violence will be harmed by those policies.
The government does not appear to address the last factor, i.e., whether the stay is in the public interest. The Court recognizes that the public has an interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). However, "there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm," Nken, 556 U.S. at 436, as well as an interest in “ensuring that ‘statutes enacted by [their] representatives’ are not imperiled by executive fiat.” East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1255 (9th Cir. 2018)(citation omitted).
The Court is also mindful that the Supreme Court has cautioned against overbroad injunctions because, in certain
12

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 13 of 14
circumstances, they “may have a detrimental effect by foreclosing adjudication by a number of different courts and judges.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Other courts have highlighted concerns such as depriving non-parties the right of litigating in other forums; and the potential for forum shopping “which hinders the equitable administration of laws.” See California v. Azar, 911 F.3d 558, 583 (9th Cir. 2018). However, because of the unique statutory scheme for systemic challenges under section 1252(e)(3), none of these concerns are relevant here. Jurisdiction to review new written policy directives that implement the fair credibility determination process is limited to the United States District Court for the District of Columbia. 8 U.S.C. § 1252(e)(3)(A). Accordingly, the concern that an injunction in this case will foreclose adjudication by other courts, or encourage forum shopping for these types of claims, simply is not present. Similarly, there is no concern that the Court’s injunction will deprive non-parties “the right to litigate in other forums,” Azar, 911 F.3d at 583, since the District of Columbia is the only forum authorized by the statute.
Having considered the stay factors, the Court concludes that the government has failed to meet its burden to justify the Court’s exercise of the extraordinary remedy of staying its final judgment pending appeal. See Cuomo, 772 F.2d at 974.
13

Case 1:18-cv-01853-EGS Document 124 Filed 01/25/19 Page 14 of 14

III. Conclusion

For the foregoing reasons, the Court ORDERS that

defendants’ motion to stay the Court’s final judgment pending

appeal is DENIED.

SO ORDERED

Signed:

Emmet G. Sullivan United States District Judge January 25, 2019

14

 
 NOT YET SCHEDULED FOR ORAL ARGUMENT
No. 19-5013
In the United States Court of Appeals for the District of Columbia Circuit

GRACE, et al., Plaintiffs-Appellees,
v.
WILLIAM P. BARR, ATTORNEY GENERAL, et al., Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIV. NO. 18-1853) (THE HON. EMMET G. SULLIVAN, J.)
BRIEF OF AMICUS CURIAE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES IN SUPPORT OF
PLAINTIFFS-APPELLEES

ALICE FARMER UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
1800 Massachusetts Avenue, N.W. Washington, DC 20036 (202) 296-5191 (202) 296-5660 (fax)

ANA C. REYES ALEXANDER J. KASNER WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W. Washington, DC 20005 (202) 434-5000 (202) 434-5029 (fax) akasner@wc.com

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), amicus curiae makes the follow-
ing certification: (A) Parties, Intervenors, and Amici. Except for the following, all par-
ties, intervenors, and amici appearing before the district court and in this court are listed in the Brief for Appellants.
Amicus in support of Appellees is the United Nations High Commissioner for Refugees. Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and Circuit Rule 26.1, amicus United Nations High Commissioner for Refugees certifies that it is not a corporation, it has no parent corporation, and no publicly held corporation owns ten percent or more of its stock.
(B) Rulings Under Review. References to the rulings at issue appear in the Brief for Appellants.
(C) Related Cases. This case has not previously been before this Court or any other court for appellate review. To the best of the knowledge of amicus curiae and its counsel, all references to related cases appear in Brief for Appellees.
/s/ Alexander J. Kasner ALEXANDER J. KASNER
i

STATEMENT REGARDING CONSENT TO FILE AND AUTHORSHIP All parties to this appeal have consented to the filing of this brief. No person or entity other than amicus United Nations High Commis-
sioner for Refugees and its counsel authored this brief or provided any funding related to it.
ii

CERTIFICATE OF COUNSEL AS TO SEPARATE BRIEFING Pursuant to Circuit Rule 29(d), counsel certifies that a separate amicus brief is necessary to provide the perspective of the United Nations High Commissioner for Refugees (“UNHCR”). As recognized by the U.S. Supreme Court, UNHCR provides significant guidance on the United States’ obligations under international refugee conventions. This guidance was central to the district court’s opinion on appeal in this case, as well the respective Briefs of Appellants and Appellees.
/s/ Alexander J. Kasner ALEXANDER J. KASNER
iii

TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............................................................................................i
STATEMENT REGARDING CONSENT TO FILE AND AUTHORSHIP.............................................................................ii
CERTIFICATE OF COUNSEL AS TO SEPARATE BRIEFING ............. iii
TABLE OF AUTHORITIES ...............................................................................vi
GLOSSARY OF ABBREVIATIONS ............................................................... xiii
INTEREST OF AMICUS CURIAE....................................................................1
STATUTES AND REGULATIONS....................................................................4
SUMMARY OF ARGUMENT..............................................................................4
ARGUMENT ...........................................................................................................6
I. The United States Is Bound by the 1951 Convention and Its 1967 Protocol Relating to the Status of Refugees..............................................6
II. As Recognized By U.S. and Foreign Courts, UNHCR Provides Authoritative Guidance in Evaluating Claims of Persecution by NonState Actors....................................................................................................8
III. Violence by Non-State Actors, and in Particular, Domestic and Gang Violence, Can Form the Basis for Asylum ...............................................14
A. Matter of A-B- and the New Policies Erroneously State That Domestic and Gang Violence Claims Do Not Meet the “Unable or Unwilling” Standard ..............................................................................15
1. The New Policies and Matter of A-B- Are Inconsistent with the Settled Meaning of the “Unable or Unwilling” Standard ............16
iv

2. Domestic And Gang Violence Claims Can Meet the “Unable or Unwilling” Standard .........................................................................20
B. Matter of A-B- and the New Policies Err in Their Interpretation of the “Particular Social Group” Basis for Asylum ................................24 1. Protected Characteristics ................................................................27 2. Social Perception...............................................................................31 3. Particularity.......................................................................................33
CONCLUSION...................................................................................................... 34 CERTIFICATE OF COMPLIANCE................................................................36 CERTIFICATE OF SERVICE..........................................................................37
v

TABLE OF AUTHORITIES1

CASES

Page(s)

Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014) .................................................................................13
Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc)........................................................8, 9
Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011).............................................................................13
Doe v. Holder, 736 F.3d 871 (9th Cir. 2013).............................................................................13
Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004).............................................................................13
Garcia v. Sessions, 856 F.3d 27 (1st Cir. 2017) .................................................................................8
Garcia v. U.S. Att’y Gen., 665 F.3d 496 (3d Cir. 2011) ..............................................................................13
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)..............................................................................................7
*INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)..................................................................................2, 3, 7, 8
Kamar v. Sessions, 875 F.3d 811 (6th Cir. 2017).............................................................................13

1 Authorities upon which amicus chiefly relies are marked with asterisks, pursuant to Circuit Rule 28(a)(2).
vi

Page(s)
Lopez v. U.S. Att’y Gen., 504 F.3d 1341 (11th Cir. 2007).........................................................................14
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018)...................................... 3, 14, 16, 24, 26, 30, 33
Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985).....................................................................26
Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008)...............................................................26, 28
Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)...............................................................................9
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) ................................................................................8
N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009) (per curiam) ....................................................2
Negusie v. Holder, 555 U.S. 511 (2009)..............................................................................................2
Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008)...........................................................................13
Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005)...................................................................13, 29
Pavlova v. INS, 441 F.3d 82 (2d Cir. 2006) ................................................................................13
R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014).............................................................................13
Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015)...........................................................................34
vii

Page(s)
Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018) .......................................................................19, 20
Valdiviezo-Galdamez v. U.S. Att’y Gen., 502 F.3d 285 (3d Cir. 2007) ..............................................................................28 STATUTES AND LEGISLATIVE HISTORY
H.R. Rep. No. 96-781 (1980), as reprinted in 1980 U.S.C.C.A.N. 160; S. Exec. Rep. No. 14, 90th Cong., 2d Sess. 4 (1968) ...................................................................................................7
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980).............................7
OTHER AUTHORITIES A v Minister for Immigration & Ethnic Affairs
[1997] HCA 4 (Austl.) .................................................................................30, 31 AB (Slovakia), AF (Czech Republic)
[2015] NZIPT 800734-738 (N.Z.)......................................................................12
AZ (Trafficked Women) Thailand v. Sec’y of State for the Home Dep’t [2010] UKUT 118 (IAC)........................................................12, 28
Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689 (Can.) .....................................................................12, 25, 29
*Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137..........................................................................1
Immigration and Refugee Board of Canada, Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (May 1, 2017) .....................................................................................................18
viii

Page(s)
Islam (A.P.) v. Sec’y of State for the Home Dep’t, and Regina v. Immigration Appeal Tribunal & Another Ex Parte Shah (A.P.) [1999] UKHL 20, [1999] 2 AC (Hl) 629 (appeal taken from Eng.).....................................................................................................12, 25
Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 (Austl.) ...............................................................................12, 32
Narvaez c. Canada (Citoyennete et de l’Immigration), [1995] 2 F.C. 55 (Can.)......................................................................................12
*Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 ......................................................................2, 6
Refugee Appeal No. 1312/93 Re GJ [1995] 1 NLR 387 (N.Z.)..........................26
Refugee Appeal No. 71427/99 [2000] NZAR 545 (N.Z.) ....................................13
Sec’y of State for the Home Dep’t v. K (FC), and Fornah (FC) v. Sec’y of State for the Home Dep’t [2006] UKHL 46, [2007] 1 A.C. (HL) 412 (appeal taken from Eng.) ..........................................25
Statute of the Office of the UNHCR, U.N. Doc. A/RES/428(V) (Dec. 14, 1950) ..........................................................1
Tobias Gomez v. Canada (Citizenship and Immigration), 2011 F.C. 1093 (Can.)...................................................................................12, 28
U.N. Centre for Soc. Dev. & Humanitarian Affairs, Violence Against Women in the Family, U.N. Doc. ST/CSDHA/2 (1989) ........................................................................29
U.S. State Dep’t, El Salvador 2017 Human Rights Report.......................21, 22
*UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/1P/4/ENG/ REV.3 (1979, re-edited Jan. 1992; reissued Dec. 2011, reissued Feb. 2019)....................................................................................3, 9, 16
ix

Page(s)
UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (Jan. 2007).............................................................................................................8
UNHCR, Agenda for Protection, U.N. Doc. A/AC.96/965/Add.1 (June 26, 2002)......................................................................................................9
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (Aug. 30, 2018)...................................................................................................11
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador, U.N. Doc. HCR/EG/SLV/16/01 (Mar. 15, 2016) ........................... 21, 22, 31, 32
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Guatemala, U.N. Doc. HCR/EG/GTM/18/01 (Jan. 2018)...................................................23
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Honduras, U.N. Doc. HCR/EG/HND/16/03 (July 27, 2016) .......................... 22, 28, 31, 32
UNHCR, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs (Mar. 2010) ......................... 15, 21, 25, 27, 28, 31
UNHCR, Guidelines on International Protection No. 1: GenderRelated Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/01 (May 7, 2002) .............................. 10, 15, 17, 29, 32
UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) ................... 25, 27, 28, 29, 30, 33, 34 x

Page(s)
UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked, U.N. Doc. HCR/GIP/06/07 (Apr. 7, 2006) ...........................................17, 27, 33
UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012) ..........................11, 17
UNHCR, Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence Under Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions, U.N. Doc. HCR/GIP/16/12 (Dec. 2, 2016) ...............................................................................................10, 15
UNHCR, International Protection Considerations with Regard to People Fleeing Northeastern Nigeria (The States of Borno, Yobe and Adamawa) and Surrounding Region—Update I (Oct. 2014) ...........................................................................................................11
*UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (Apr. 2001) ................ 15, 16, 18, 25, 26, 27
UNHCR, Note on International Protection, U.N. Doc. A/AC.96/815 (Aug. 31, 1993) .............................................................7
UNHCR, Position on Returns to Southern and Central Somalia (Update I) (May 2016).......................................................................11
UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico (Oct. 26 2015).....................................................................23, 24, 31
xi

Page(s) United Kingdom Immigration Appellate Authority,
Asylum Gender Guidelines (Nov. 1, 2000) .....................................................18 USAID, Central America and Mexico Gang Assessment Report
(Aug. 2006).........................................................................................................27 VM (FGM-Risks-Mungiki-Kikuyu/Gikuyu) Kenya v. Sec’y
of State for the Home Dep’t, CG [2008] UKAIT 00049................................29
xii

GLOSSARY OF ABBREVIATIONS UNHCR ................................United Nations High Commissioner for Refugees 1951 Convention ....................... Convention Relating to the Status of Refugees,
July 28, 1951, 189 U.N.T.S. 137 1967 Protocol ..................................Protocol Relating to the Status of Refugees,
Jan. 31, 1967, 606 U.N.T.S. 267
xiii

INTEREST OF AMICUS CURIAE1 The Office of the United Nations High Commissioner for Refugees (“UNHCR”) has a direct interest in this matter as the organization entrusted by the United Nations General Assembly with responsibility for providing international protection to refugees and others of concern and, together with national governments, for seeking permanent solutions to their problems. Statute of the Office of the UNHCR, U.N. Doc. A/RES/428(V) ¶ 1 (Dec. 14, 1950). UNHCR fulfills its mandate by, among other things, “[p]romoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto.” Id. ¶ 8(a). UNHCR’s supervisory responsibility is also reflected in the Preamble and Article 35 of the Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (“1951 Convention”)2 and Article 2 of the Protocol
1 This amicus brief does not constitute a waiver, express or implied, of any privilege or immunity that UNHCR and its staff enjoy under applicable international legal instruments and recognized principles of international law. See U.N. General Assembly, Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15, http://www.refworld.org/docid/3ae6b3902.html. 2 <http://www.unhcr.org/3b66c2aa10.html>
1

Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (“1967 Protocol”).3 Those instruments obligate States to cooperate with UNHCR in the exercise of its mandate and to facilitate its supervisory role.
UNHCR, which has won two Nobel Peace Prizes for its efforts, works in some 130 countries, at a time when there are 70.8 million people affected by forced displacement worldwide. The views of UNHCR are informed by its close to seven decades of experience supervising the treaty-based system of refugee protection. UNHCR’s interpretation of the provisions of the 1951 Convention and its 1967 Protocol are both authoritative and integral to promoting consistency in the global regime for the international protection of refugees. Accordingly, the “Supreme Court has consistently turned [to UNHCR] for assistance in interpreting [U.S.] obligations under the Refugee Convention.” N-A-M- v. Holder, 587 F.3d 1052, 1061-62 (10th Cir. 2009) (Henry, J., concurring) (per curiam); see, e.g., Negusie v. Holder, 555 U.S. 511, 536-37 (2009); INS v. Cardoza-Fonseca, 480 U.S. 421, 439 (1987).
UNHCR exercises its supervisory responsibility in part by issuing interpretative guidelines on the meaning of international refugee instruments,
3 <http://www.unhcr.org/3b66c2aa10.html> 2

in particular the 1951 Convention and its 1967 Protocol. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/1P/4/ENG/REV.3 (1979, re-edited Jan. 1992; reissued Dec. 2011, re-issued Feb. 2019) (“Handbook”),4 represents the first such comprehensive guidance. The Supreme Court has noted that the Handbook provides “significant guidance in construing the [1967] Protocol, to which Congress sought to conform . . . [and] has been widely considered useful in giving content to the obligations that the protocol establishes.” Cardoza-Fonseca, 480 U.S. at 439 n.22. At the request of States, including the United States, and in the exercise of the Office’s supervisory responsibility, the Handbook has subsequently been complemented by the UNHCR Guidelines on International Protection and various Guidance Notes.
UNHCR has a specific interest in this matter because the Attorney General’s decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), and the USCIS Policy Memorandum (“new policies”), which rely on Matter of A-B-, are at variance with UNHCR’s authoritative interpretation of States’ obligations under the 1951 Convention and 1967 Protocol in several key respects. In
4 <http://www.unhcr.org/3d58e13b4.html> 3

particular, the new policies, and Matter of A-B- decision, diverge from UNHCR’s interpretations of (1) the standard used to assess whether states are “unable or unwilling” to provide effective protection against non-state agents of persecution, and (2) the definition of a “particular social group.”
Consistent with its approach in other cases, UNHCR takes no position directly on the merits of Appellees’ asylum claims.
STATUTES AND REGULATIONS All applicable statutes and regulations are contained in the Briefs for Appellants and Appellees, respectively.
SUMMARY OF ARGUMENT It is undisputed that persecution on account of one’s membership in a particular social group can form the basis for an asylum claim. Moreover, under both international and domestic law, persecution forming the basis for an asylum claim may be perpetrated by non-state actors. Applying these principles, other States with significant jurisprudence on refugee status determination, such as Canada, the United Kingdom, Australia, and New Zealand, have concluded that victims of domestic and gang violence may qualify for asylum on account of their membership in a particular social group.
4

Under the new policies at issue and Matter of A-B-, however, victims of violence by non-state actors, including victims of domestic and gang violence, are not generally eligible for asylum. This decision interprets the refugee definition in a manner at odds with the United States’ international obligations in several respects.
First, Matter of A-B- recasts the “unable or unwilling” standard for nonstate actors into one requiring “complete helplessness” or “condoned” action. The proper inquiry under international standards is whether the state is ineffective in combatting the persecutory practices or otherwise tolerates such persecution. Victims of domestic and gang violence, particularly in Central America, as documented by country conditions, may be able to meet this correct articulation of the standard.
Second, Matter of A-B- misconstrues the requirement for defining a particular social group. As an initial matter, under international law, members of a particular social group must show either that they share common characteristics beyond their persecution, or that they are perceived as a discrete group by society. U.S. law impermissibly requires both, and Matter of A-B- departs even further from international legal standards by misapplying each of those requirements to victims of domestic violence. Contrary to Matter of A-B- and
5

the new policies, women in domestic relationships share common characteristics beyond their persecution, and are often perceived as discrete, subordinate groups by their societies. And in further contrast to Matter of A-B-, the size of a particular social group is irrelevant under international law.
ARGUMENT I. THE UNITED STATES IS BOUND BY THE 1951 CONVENTION
AND ITS 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES The 1951 Convention and its 1967 Protocol are the key international instruments governing the protection of refugees. These documents address who is a refugee, his or her rights and responsibilities, and the corresponding legal obligations of States. The 1967 Protocol binds parties to comply with the substantive provisions of Articles 2 through 34 of the 1951 Convention with respect to “refugees” as defined in Article 1A(2) of the 1951 Convention. 1967 Protocol art. 1(1)-(2). The 1967 Protocol also removes the geographic and temporal limitations from the 1951 Convention definition, thus universalizing the refugee definition. Id. art. 1(2)-(3). The core of both the 1951 Convention and its 1967 Protocol is the principle of non-refoulement, which obliges States not to return a refugee to any country where he or she would face persecution or
6

a real risk of serious harm.5 In 1968, the United States acceded to the 1967
Protocol,6 binding itself to the international refugee protection regime and the
definition of a refugee in the 1951 Convention.
Congress enacted the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat.
102 (1980), to “bring United States refugee law into conformance with the 1967
United Nations Protocol Relating to the Status of Refugees,” Cardoza-Fon-
seca, 480 U.S. at 436-37 & n.19 (citing H.R. Rep. No. 96-781, at 19); see also
INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999). The Refugee Act brings the
United States into compliance with its international obligations under the 1967
Protocol and, by extension, the 1951 Convention. It should be interpreted and
applied in a manner consistent with those instruments. See Cardoza-Fonseca,
480 U.S. at 437 (by enacting Refugee Act, Congress intended “that the new
5 The prohibition of refoulement applies to all refugees, including those who have not formally been recognized as such, and to asylum-seekers whose status has not yet been determined. UNHCR, Note on International Protection ¶ 11, U.N. Doc. A/AC.96/815 (Aug. 31, 1993), http://www.unhcr.org/refworld/docid/3ae68d5d10.html; UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol ¶¶ 26-31 (Jan. 2007), http://www.unhcr.org/ refworld/docid/45f17a1a4.html. 6 H.R. Rep. No. 96-781, at 19 (1980), as reprinted in 1980 U.S.C.C.A.N. 160, 160; S. Exec. Rep. No. 14, 90th Cong., 2d Sess. 4 (1968).
7

statutory definition of ‘refugee’ be interpreted in conformance with the Protocol’s definition”); cf. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”). II. AS RECOGNIZED BY U.S. AND FOREIGN COURTS, UNHCR
PROVIDES AUTHORITATIVE GUIDANCE IN EVALUATING CLAIMS OF PERSECUTION BY NON-STATE ACTORS UNHCR exercises its supervisory responsibility by issuing interpretive guidance on the meaning of provisions in the 1951 Convention and its 1967 Protocol. Numerous courts, including the Supreme Court, have turned to UNHCR’s guidance for interpreting the 1951 Convention and 1967 Protocol. Cardoza-Fonseca, 480 U.S. at 438-39; Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1060-61 (9th Cir. 2017) (en banc). The most authoritative of this guidance is the UNHCR Handbook, which was prepared in 1979 at the request of Member States, including the United States. Although the Handbook is not legally binding upon U.S. officials, it provides “significant guidance” in construing the 1967 Protocol and in giving content to the obligations established therein. Cardoza-Fonseca, 480 U.S. at 439 n.22; see also Garcia v. Sessions, 856 F.3d 27, 55 n.31 (1st Cir. 2017).
8

In 2002, UNHCR also began issuing a number of Guidelines,7 which have been welcomed by UNHCR’s Executive Committee and the UN General Assembly. The Guidelines complement and update the Handbook by drawing upon international legal standards, judicial decisions, Executive Committee Conclusions, academic literature, and UNHCR’s views and experience. UNHCR also issues Guidance Notes to provide additional direction in specific areas. Courts have relied upon the Guidelines and Guidance Notes in assessing refugee claims, recognizing that UNHCR’s “analysis provides significant guidance for issues of refugee law.” Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005); Bringas-Rodriguez, 850 F.3d at 1071.
Applied here, the Handbook, Guidelines, and Guidance Notes affirm the well-settled principle that persecution by non-state actors may give rise to an asylum claim. The Handbook recognizes that asylum may be warranted by persecution “emanat[ing] from sections of the population . . . [whose] serious discriminatory or other offensive acts . . . are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.” Handbook ¶ 65. Non-state actors of persecution include “paramilitary
7 UNHCR, Agenda for Protection, U.N. Doc. A/AC.96/965/Add.1 (June 26, 2002), http://www.refworld.org/docid/3d4fd0266.html.
9

groups, militias, insurgents, bandits, pirates, criminal gangs or organizations,” in addition to “neighbours, family members and other individuals.” UNHCR, Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence Under Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions ¶ 28, U.N. Doc. HCR/GIP/16/12 (Dec. 2, 2016) (“Conflict and Violence Guidelines”).8
Additionally, “rape and other forms of gender-related violence, such as dowry-related violence, female genital mutilation, domestic violence, and trafficking” may also constitute persecution “whether perpetrated by State or private actors.” UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees ¶ 9, U.N. Doc. HCR/GIP/02/01 (May 7, 2002) (“Gender Guidelines”).9
UNHCR recognizes potential asylum claims for individuals persecuted by non-state actors in a wide range of circumstances. For instance, LGBTI
8 <http://www.refworld.org/docid/583595ff4.html> 9 <http://www.refworld.org/docid/3d36f1c64.html>
10

people who are subject to persecution by “family members, neighbors, or the
broader community” may have valid asylum claims.10 Victims of campaigns of
violence by non-state actors also may have legitimate asylum claims, including
those fleeing persecution by Al Shabaab in Somalia;11 by Boko Haram in Ni-
geria;12 and by the Taliban in Afghanistan.13
Consistent with UNHCR’s interpretation of the governing treaties, par-
ties to the 1951 Convention and its 1967 Protocol have recognized valid asylum
claims stemming from persecution by non-state actors, including persecution
10 UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees ¶¶ 34-37, U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012), http://www.refworld.org/docid/50348 afc2.html (“Sexual Orientation Guidelines”). 11 UNHCR, Position on Returns to Southern and Central Somalia (Update I) ¶¶ 16-19, 23 (May 2016), http://www.refworld.org/docid/ 573de9fe4.html. 12 UNHCR, International Protection Considerations with Regard to People Fleeing Northeastern Nigeria (the States of Borno, Yobe and Adamawa) and Surrounding Region—Update I ¶ 11 (Oct. 2014), http://www.refworld.org/docid/5448e0ad4.html. 13 UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (Aug. 30, 2018), http://www.refworld.org/docid/5b8900109.html.
11

stemming from domestic and gang violence. See, e.g., Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Can.) (prosecution by non-state paramilitary group);14 Tobias Gomez v. Canada (Citizenship and Immigration), 2011 F.C. 1093 (Can.) (gang violence);15 Narvaez c. Canada (Citoyenneté et de l’Immigration), [1995] 2 F.C. 55 (Can.) (domestic violence);16 Islam (A.P.) v. Sec’y of State for the Home Dep’t, and Regina v. Immigration Appeal Tribunal & Another Ex Parte Shah (A.P.) [1999] UKHL 20, [1999] 2 AC (HL) 629 (appeal taken from Eng.) (domestic violence);17 AZ (Trafficked Women) Thailand v. Sec’y of State for the Home Dep’t [2010] UKUT 118 (IAC) (human trafficking by criminal gangs);18 Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 (Austl.) (domestic violence);19 AB (Slovakia), AF
14 <http://www.refworld.org/cases,CAN_SC,3ae66b673c.html> 15 <http://www.refworld.org/cases,CAN_FC,56e6e5e14.html> 16 <http://www.refworld.org/cases,CAN_FC,3ae6b6e61c.html> 17 <http://www.refworld.org/cases,GBR_HL,3dec8abe4.html> 18 <http://www.refworld.org/cases,GBR_UTIAC,4bd58d912.html> 19 <http://www.refworld.org/cases,AUS_HC,3deb326b8.html>
12

(Czech Republic) [2015] NZIPT 800734-738 (N.Z.) (skinhead group violence);20 Refugee Appeal No. 71427/99 [2000] NZAR 545 (N.Z.) (domestic violence).21
Nearly every U.S. court of appeals has likewise recognized that violence by non-state actors may undergird a valid asylum claim. See, e.g., AldanaRamos v. Holder, 757 F.3d 9, 17 (1st Cir. 2014) (gang violence); Pavlova v. INS, 441 F.3d 82, 91 (2d Cir. 2006) (persecution by Russian Neo-Nazi group); Garcia v. U.S. Att’y Gen., 665 F.3d 496, 503 (3d Cir. 2011), as amended Jan. 13, 2012 (gang violence); Crespin-Valladares v. Holder, 632 F.3d 117, 128-29 (4th Cir. 2011) (gang violence); Eduard v. Ashcroft, 379 F.3d 182, 190 (5th Cir. 2004) (persecution by anti-Christian Islamist groups); Kamar v. Sessions, 875 F.3d 811, 819 (6th Cir. 2017) (honor killing by family members); R.R.D. v. Holder, 746 F.3d 807, 809 (7th Cir. 2014) (persecution by drug trafficking organizations); Ngengwe v. Mukasey, 543 F.3d 1029, 1036 (8th Cir. 2008) (forced marriage by family members); Doe v. Holder, 736 F.3d 871, 878 (9th Cir. 2013) (violence toward homosexuals by classmates); Niang v. Gonzales, 422 F.3d 1187, 1191-92, 1201-02 (10th Cir. 2005) (female genital mutilation by tribal
20 <http://www.refworld.org/cases,NZ_IPT,55e868b54.html> 21 <http://www.refworld.org/cases,NZL_RSAA,3ae6b7400.html>
13

members); Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (persecution by anti-government guerillas). III. VIOLENCE BY NON-STATE ACTORS, AND IN PARTICULAR,
DOMESTIC AND GANG VIOLENCE, CAN FORM THE BASIS FOR ASYLUM The new policies direct that, “[i]n general, . . . claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for asylum [or] refugee status.” USCIS Guidance at 6. This directive is premised on the former Attorney General’s guidance in Matter of A-B-, which states that, “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” 27 I. & N. Dec. at 320. That guidance diverges from UNHCR guidance, international case law, and U.S. case law. Departure from this well-settled and foundational legal principle is due to erroneous interpretations of (a) the “unable or unwilling” standard, and (b) the “particular social group” definition. The elevated standards that Matter of A-B- imposes with respect to these elements impermissibly impede asylum claims by victims of persecution.
14

A. Matter of A-B- and the New Policies Erroneously State that Domestic and Gang Violence Claims Do Not Meet the “Unable or Unwilling” Standard
For violence perpetrated by non-state actors to constitute persecution, an individual must demonstrate that the state is “unable or unwilling” to provide adequate protection to victims. UNHCR, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs ¶ 25 (Mar. 2010) (“Gang Note”) (emphasis omitted);22 see Gender Guidelines ¶ 19; Conflict and Violence Guidelines ¶ 30. Such a determination requires a “[h]olistic and [i]ntegrated [a]nalysis” and “judicious balancing” of several factors, including “the general state of law, order and justice in the country, and its effectiveness, including the resources available and the ability and willingness to use them properly and effectively to protect residents.” UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees ¶¶ 7, 15 (Apr. 2001) (“Interpreting 1951 Convention”).23
The new policies upend this holistic analysis. They require asylum-seekers to show that “the government condoned the private actions or at least
22 <http://www.refworld.org/docid/4bb21fa02.html> 23 <http://www.refworld.org/docid/3b20a3914.html>
15

demonstrated a complete helplessness to protect the victim[].” USCIS Guidance at 6; Matter of A-B-, 27 I. & N. Dec. at 337. “The mere fact that a country . . . has problems effectively policing certain crimes, like domestic violence or gang-related activities . . . cannot, by itself, establish eligibility for asylum.” USCIS Guidance at 6. In other words, under that decision, occasional, piecemeal, or partial protection by a state will negate an asylum claim, even if the state is unable or unwilling to prevent violence in the vast majority of cases. This unduly narrow construction of the “unable or unwilling” standard significantly diverges from the United States’ international obligations.
1. The New Policies and Matter of A-B- Are Inconsistent with the Settled Meaning of the “Unable or Unwilling” Standard
The hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors. See Handbook ¶ 65 (acts constitute persecution “if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection”); see also Interpreting 1951 Convention ¶ 15 (providing that a state’s ability to offer effective protection measured by “the general state of law, order and justice in the country, and its effectiveness, including the resources available and the ability and willingness to use them properly and effectively
16

to protect residents”). State protection is ineffective where, for example, “the police fail to respond to requests for protection or the authorities refuse to investigate, prosecute or punish (non-State) perpetrators of violence . . . with due diligence.” Sexual Orientation Guidelines ¶¶ 34-37.
Merely enacting a law prohibiting persecutory practices is not enough: “Even though a particular State may have prohibited a persecutory practice . . . , the State may nevertheless . . . not be able to stop the practice effectively.” Gender Guidelines ¶ 11 (emphasis omitted). Despite best intentions and efforts, there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities.
For example, in determining whether a state offers effective protection from human trafficking, UNHCR notes:
Whether the authorities in the country of origin are able to protect victims or potential victims of trafficking will depend on whether legislative and administrative mechanisms have been put in place to prevent and combat trafficking, as well as to protect and assist the victims and on whether these mechanisms are effectively implemented in practice. UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Sta-
17

tus of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked ¶ 22, U.N. Doc. HCR/GIP/06/07 (Apr. 7, 2006);24 see also Interpreting 1951 Convention ¶ 15 (ability to provide effective protection requires examining “the general state of law, order and justice in the country, and its effectiveness, including the resources available and the ability and willingness to use them properly and effectively to protect residents”).
Consistent with UNHCR’s interpretation, other parties to the 1951 Convention and 1967 Protocol do not require complete helplessness and recognize violence by non-state actors as persecution whenever state protection is ineffective. See, e.g., Immigration and Refugee Board of Canada, Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression ¶ 8.6.5 (May 1, 2017) (instructing Canadian decision-makers to “carefully assess[] . . . the degree of actual implementation, the effectiveness, and the durability of” protection); United Kingdom Immigration Appellate Authority, Asylum Gender Guidelines ¶¶ 2B.2-3 (Nov. 1,
24 <http://www.refworld.org/docid/443679fa4.html> 18

2000) (setting forth United Kingdom’s “practical standard,” that protection be “meaningful, accessible, effective, and available to a woman”).25
Turning the “unable or unwilling” requirement into a “condoned” or “complete helplessness” requirement significantly departs from this settled international standard. The new policies make the “unable or unwilling” prong more difficult to meet, and the heightened test lacks any support in international law. A state does not have to “condone” private violence to be “unwilling” or “unable” to offer protection, nor does a victim need to show the state’s “complete helplessness” for state protection to be unavailable or ineffective.
The First Circuit recently determined as much in Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018). Although the Mexican government had displayed a “willingness to investigate” the murder of the applicant’s family member by non-governmental actors, its “efforts to investigate” could not guarantee that the applicant could be made safer or that the state would catch the perpetrators. Id. at 159, 163, 164. Overruling the Board, the Court deter-
25 <http://www.refworld.org/docid/3ae6b3414.html> 19

mined that the specific ineffectiveness of the Mexican government in preventing violence against the applicant met the “unwilling or unable” standard. Id. at 163-65.
2. Domestic and Gang Violence Claims Can Meet the “Unable or Unwilling” Standard
Matter of A-B- and the new policies’ erroneous approach to the “unable or unwilling” standard is all the more pronounced in the domestic and gang violence contexts and runs counter to UNHCR’s on-the-ground experience.
UNHCR has field offices in the vast majority of originating countries for asylum-seekers. Relying on in-depth research from these offices, material from independent country specialists, and other sources, UNHCR has carefully compiled country-specific Eligibility Guidelines. The Eligibility Guidelines rigorously analyze factors relevant to asylum determinations, including the effectiveness of state protection.26
Based on its decades-long presence in countries affected by gang violence, UNHCR encourages decision-makers to examine “efforts to reform and
26 See Affidavit of Janice Lyn Marshall, Staten v/Utlendingsnemnda (Regjeringsadvokaten) v. A, B, C, D, Oct. 26, 2015 (Nor.), https://www.refworld.org/docid/562f546c4.html (detailing methodology).
20

expand the criminal justice system[,] establish[] witness protection programmes,” and—conversely—the “lack of measures to ensure security to individuals at risk of harm by gangs.” Gang Note ¶ 28. “The [s]tate [may] prove unable to provide effective protection,” especially when gangs “yield considerable power and capacity to evade law enforcement or when the corruption is pervasive.” Id. ¶ 25. Likewise, the state “may be unwilling to protect a particular individual, for instance, because of their own financial interest in the gang activities or because they consider the person associated with or targeted by the gangs unworthy of protection.” Id.
In El Salvador, for example, gangs “exercise extraordinary levels of social control over the population of their territories.” UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador at 12, U.N. Doc. HCR/EG/SLV/16/01 (Mar. 15, 2016) (“El Salvador Guidelines”).27 Despite the formal existence of an anti-gang legal framework, “weakness and corruption” in the police and judiciary “contribute to creating a high level of impunity for crimes in El Salvador.” Id. at 23; see also U.S. State Dep’t, El Salvador 2017 Human Rights Report at 15 (“U.S.
27 <http://www.refworld.org/docid/56e706e94.html> 21

State Dep’t, El Salvador Report”). In gang-controlled territories, “the police—even the elite Anti-Gang Unit in high-profile cases—are usually not seen as offering a sufficient form of protection . . . , since their presence is only temporary and gangs will return once the police move on after a few hours or days.” El Salvador Guidelines at 24; see U.S. State Dep’t, El Salvador Report at 19 (“The major gangs controlled their own territory. Gang members did not allow persons living in another gang’s controlled area to enter their territory.”). Gangs have their own infiltrators in the police and military, who warn about anti-gang operations and have access to weapons and uniforms. El Salvador Guidelines at 23.
Gangs’ “extraordinary levels of social control” and the state’s corresponding ineffectiveness in combating gang-related crimes are also pervasive in other Central American countries. See UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Honduras at 18-19, 38-39, U.N. Doc. HCR/EG/HND/16/03 (July 27, 2016) (“Honduras Guidelines”) (police are “not usually seen as offering a sufficient form of protection for residents who are threatened by gangs” and are “reported to acknowledge their fear at the inability of the State to protect them from assas-
22

sination when they are off duty”);28 UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Guatemala at 34, U.N. Doc. HCR/EG/GTM/18/01 (Jan. 2018)29 (“[I]n certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection to inhabitants.”).
Equally, domestic violence victims often do not receive effective protection from the state. In some Central American societies, “[i]mpunity for violence against women and girls remain a serious problem.” Honduras Guidelines at 39. The high impunity rate contributes to victims’ “lack of confidence in . . . an ineffective and unsupportive justice system,” thus preventing them from even reporting domestic violence incidents to the authorities. El Salvador Guidelines at 25. The state’s ineffective protection against domestic violence is often exacerbated by its inability to protect against gang violence. In a study of 160 women from El Salvador, Guatemala, Honduras, and Mexico, UNHCR found that women “consistently stated that police and state law enforcement authorities were [unable] to provide sufficient protection from [] violence.” UNHCR, Women on the Run: First-Hand Accounts of Refugees
28 <http://www.refworld.org/docid/579767434.html> 29 <http://www.refworld.org/docid/5a5e03e96.html>
23

Fleeing El Salvador, Guatemala, Honduras, and Mexico at 25 (Oct. 26, 2015) (“Women on the Run”). Many of the women’s partners were gang members or associates. Id. at 25. “[B]ecause these [criminal] groups were often [regarded as] the highest powers in the[] neighborhoods, [the women] did not believe the government could protect them.” Id.
The above evidence reflects that—at least in some countries and in some instances—states may be unable or unwilling to offer effective protection to persons who have been persecuted by non-state actors. Matter of A-B- and the new policies err by directing that domestic and gang violence claims generally do not meet the “unable or unwilling” standard for obtaining asylum in cases of persecution by non-state actors.
B. Matter of A-B- and the New Policies Err in Their Interpretation of the “Particular Social Group” Basis for Asylum
Matter of A-B- and the new policies change the approach to asylum claims based upon “membership in a particular social group,” elevating the rule far beyond the international threshold. Although “membership in a particular social group” is on its face an ambiguous term, Matter of A-B-, 27 I. & N. Dec. at 326, jurisprudence and commentary have over time helped clarify its meaning. Based on international legal norms and State practice, UNHCR’s
24

Social Group Guidelines adopt two alternative approaches to defining a particular social group:
[A] particular social group is a group of persons who share a common characteristic other than their risk of being persecuted [the “protected characteristics” approach], or who are perceived as a group by society [the “social perception” approach]. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights. UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees ¶ 11, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) (“Social Group Guidelines”) (emphasis omitted).30 A particular social group must be identifiable through one of the approaches but need not satisfy both. Gang Note ¶ 35. Several States have endorsed the “protected characteristics” approach without requiring an applicant further to show that society perceives the applicant’s group as distinct. See Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689 (Can.); Islam and Shah, [1999] UKHL at 20; Sec’y of State for the Home Dep’t v. K (FC), and Fornah (FC) v. Sec’y of State for the Home Dep’t [2006] UKHL 46, [2007] 1 A.C. (HL) 412
30 <http://www.refworld.org/docid/3d36f23f4.html> 25

(appeal taken from Eng.);31 Refugee Appeal No. 1312/93 Re GJ [1995] 1 NLR 387 (N.Z.).32
This either/or approach to identifying a particular social group was first delineated in Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987). It guided U.S. asylum decisions for more than twenty years, until the Board diverged in 2008 by requiring asylum-seekers to prove social perception and particularity, in addition to protected characteristics. Matter of S-E-G-, 24 I. & N. Dec. 579, 582, 589 (B.I.A. 2008). As UNHCR has repeatedly remarked, imposing these additional, heightened requirements is contrary to the object and purpose of the 1951 Convention, 1967 Protocol, and Social Group Guidelines.33
Matter of A-B- amplifies this erroneous interpretation. See 27 I. & N. Dec. at 319, 335, 336 (rejecting asylum for “[s]ocial groups defined by their vulnerability to private criminal activity,” including “married women . . . who
31 <http://www.refworld.org/cases,GBR_HL,4550a9502.html> 32 <http://www.refworld.org/cases,NZL_RSAA,3ae6b6938.html> 33 See, e.g., UNHCR Amicus Curiae Br. in Supp. of Petitioner, ValdiviezoGaldamez v. Holder (3d Cir. Apr. 14, 2009), http://www.refworld. org/docid/49ef25102.html.
26

are unable to leave their relationships” (internal quotation marks omitted)). It maintains the additional, heightened requirements set forth in Matter of S-EG-, and, alongside the new policies, it applies these requirements in a flawed manner to the facts at hand. UNHCR maintains that the current U.S. approach—i.e., requiring protected characteristics, social perception, and particularity—is inconsistent with international law. Even under a correct application of the heightened, conjunctive U.S. standard, however, UNHCR observes that people at risk of domestic and gang violence by non-state actors may nonetheless constitute members of particular social groups.
1. Protected Characteristics The “protected characteristics” approach examines “whether a group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it.” Social Group Guidelines ¶ 6. As to gang violence, victims resisting forced recruitment may share innate or immutable characteristics, such as age, gender, and social status. Gang Note ¶ 36. To this point, a USAID study on Central American gangs found that youth between the ages of 8 and 18 were particularly vulnerable to recruitment. USAID, Central America and Mexico Gang Assessment Report
27

15 (Aug. 2006).42 UNHCR likewise notes that young people are more susceptible to recruitment because of their “age, impressionability, dependency, poverty and lack of parental guidance.” Gang Note ¶ 36; Honduras Guidelines at 15, 16. Additionally, “[p]ast actions or experiences, such as refusal to join a gang, may be considered irreversible and thus immutable.” Id. ¶ 37; Social Group Guidelines ¶ 6; Matter of S-E-G-, 24 I. & N. Dec. at 584.
Consistent with this interpretation, parties to the 1951 Convention and its 1967 Protocol—including the United States—have held that gang violence victims or resisters to gang recruitment may form particular social groups under the protected characteristics approach. See Tobias Gomez, 2011 F.C. at 1093 (innate characteristics and shared past experience); AZ, [2010] UKUT at 118 (shared past experience); Valdiviezo-Galdamez v. U.S. Att’y Gen., 502 F.3d 285, 291 (3d Cir. 2007) (remanding to BIA to consider whether “young Honduran men who have been actively recruited by gangs and who have refused to join the gangs” constitute a particular social group; noting that group “shares the characteristics of other groups that the BIA has found to constitute a ‘particular social group’”).
42 <https://pdf.usaid.gov/pdf_docs/PNADG834.pdf> 28

As to domestic violence, the particular social group applicable in such cases may be defined by sex alone or in combination with other characteristics related to relationship status. Both groups qualify under the “protected characteristics” approach. In UNHCR’s view, “sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics.” Social Group Guidelines ¶ 12; Gender Guidelines ¶ 30; see also Ward, 2 S.C.R. at 739 (contemplating a particular social group encompassing all women); VM (FGM-risksMungiki-Kikuyu/Gikuyu) Kenya v. Sec’y of State for the Home Dep’t, CG [2008] UKAIT 00049 (recognizing a particular social group of “women (girls) in Kenya”).34
Alternatively, particular social groups may be defined by sex in combination with other factors. See, e.g., Niang, 422 F.3d at 1199. These other factors include relationship status, which may be unchangeable because of external religious, cultural, or legal constraints. Cf. U.N. Centre for Soc. Dev. & Humanitarian Affairs, Violence Against Women in the Family 33, U.N. Doc.
34 <http://www.refworld.org/docid/484d4a222.html> 29

ST/CSDHA/2 (1989) (noting that men in Guatemala and El Salvador view “the women they live with [as] their possessions”).
Matter of A-B- erroneously holds that the proposed group in that case— “married women in Guatemala who are unable to leave their relationship”—is defined circularly by a fear of being subject to domestic violence. 27 I. & N. at 336. That is incorrect.
While a particular social group cannot be defined “exclusively by the persecution . . . or by a common fear of being persecuted,” “persecutory action toward a group may be a relevant factor” in determining the contours of that group. Social Group Guidelines ¶ 14; accord A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 (Austl.).35 Inability to leave a relationship may be caused by factors apart from the threat of harm from a domestic partner— because of cultural or religious reasons, for example. Among other things, women in domestic relationships in Guatemala and El Salvador endure the twin punishments of violence from male partners who feel “entitled to physical and emotional power,” and “widespread impunity for [such] acts of violence”
35 <http://www.refworld.org/docid/3ae6b7180.html> 30

by their cultures. Women on the Run at 17.36 Matter of A-B- improperly assumes that women are “unable to leave their relationship” solely on account of their fear of persecution.
2. Social Perception The social perception approach examines whether group members share a common characteristic that makes them a cognizable group or sets them apart from society at large. Social Group Guidelines ¶ 7; see also A v Minister [1997] HCA at 4. Gang violence victims may constitute a particular social group under such an approach. In a society “where it is risky for people to oppose gangs, often in closely knitted neighborhoods that are effectively controlled by gangs, gang resisters may be set apart in society.” Gang Note ¶ 41. This situation is common in Central America, where gangs exert extraordinary social control. El Salvador Guidelines at 12; Honduras Guidelines at 18, 38. For example, in El Salvador, “[p]ersons who resist the authority of the local gang . . . are reportedly subject to swift and brutal retaliation from the gang.” El Salvador
36 <http://www.refworld.org/docid/56307e2a4.html> 31

Guidelines at 13. Similar circumstances affect Hondurans. Honduras Guidelines at 18 (“Many gangs are reported to forbid inhabitants to show ‘disrespect’ for the gang . . . .”).
A particular social group defined by gender and relationship status can also satisfy the social perception requirement. See Social Group Guidelines ¶ 7 (“[W]omen . . . have been recognized under [the social perception] analysis as particular social groups.”). Being female “identif[ies] them as a group in society, subjecting them to different treatment and standards in some countries.” Gender Guidelines ¶ 30; see also Khawar, [2002] HCA 14, ¶ 35 (“Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.”).
Moreover, in certain Central American countries, the intersection of gender and relationship status also identifies a socially distinct group. Women in domestic relationships are subjected to high rates of domestic violence while under the “authority exercised by their” male partners. El Salvador Guidelines at 38. Domestic violence against wives and partners leaves them “often trapped” in the relationship, due both to the threat of further violence and to broader cultural stigmas against such women. Id. at 37.
32

3. Particularity As to “particularity,” Matter of A-B- asserts, and the new policies reiterate, that “[s]ocial groups defined by their vulnerability to private criminal activity likely lack . . . particularity [because] . . . broad swaths of society may be susceptible to victimization.” 27 I. & N. Dec. at 335.; see also id. (gang violence victims “are too diffuse” to form particular social group). That assertion departs from UNHCR’s guidance and puts the “particular social group” ground on unequal footing as compared to the other protected grounds for asylum. Under prevailing international standards, the size and diffusiveness of a proposed group are irrelevant. As UNHCR has explained, “The size of the purported social group is not a relevant criterion in determining whether a particular social group exists within the meaning of Article 1A(2).” Social Group Guidelines ¶ 18; see also id. ¶ 15 (“It is widely accepted in State practice that . . . there is no requirement that the group be ‘cohesive.’”). The other protected grounds for asylum are oftentimes shared by large segments of society. For example, broad swaths of society—“perhaps even . . . a majority of the population”—may share religious or political ideologies that are suppressed by the state. Id. ¶ 18. “[M]embers of a religion or holders of a
33

political opinion” may likewise come from all segments of society. Id. ¶ 15. In short, there is no size or diffusiveness requirement for individuals seeking asylum on account of race, religion, nationality, or political opinion. It makes little sense to impose a set of more demanding requirements for asylum on account of membership in a particular social group, particularly as international guidance and U.S. case law embrace a “flexible” approach towards this protected ground. Id. ¶ 3 (“[M]embership [in] a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of group[] in various societies and evolving . . . human rights norms.”); Rios v. Lynch, 807 F.3d 1123, 1124 (9th Cir. 2015) (particular social group is an “inherently flexible term”).
CONCLUSION For the foregoing reasons, UNHCR submits that the new policies and Matter of A-B- are at variance with the United States’ obligations under the 1951 Convention and 1967 Protocol.
34

JULY 31, 2019

Respectfully submitted,
/s/ Alexander J. Kasner ANA C. REYES ALEXANDER J. KASNER WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W. Washington, DC 20005 (202) 434-5000 (202) 434-5029 (fax) akasner@wc.com
ALICE FARMER UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
1800 Massachusetts Ave., N.W. Washington, DC 20036 (202) 296-5191 (202) 296-5660 (fax)

35

CERTIFICATE OF COMPLIANCE This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5)(A) and Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Century Expanded BT 14-point font. This brief complies with the type-volume limitations of Fed. R. App. P. 29(a)(5) and Fed. R. App. P. 32(a)(7) because it contains 6,437 words excluding the parts exempted by Fed. R. App. P. 32(f) and D.C. Circuit Rule 32(e)(1).

DATED: JULY 31, 2019

/s/ Alexander J. Kasner ALEXANDER J. KASNER

36

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system on July 31, 2019. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: JULY 31, 2019

/s/ Alexander J. Kasner ALEXANDER J. KASNER

37

 
 NOT YET SCHEDULED FOR ORAL ARGUMENT
No. 19-5013
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
WILLIAM P. BARR, et al., APPELLANTS, V. GRACE, et al., APPELLEES.
ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR THE DISTRICT OF COLUMBIA AND THE STATES OF CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, HAWAII,
ILLINOIS, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, NEVADA, NEW JERSEY, NEW YORK, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, VIRGINIA, AND WASHINGTON AS AMICI CURIAE IN SUPPORT OF APPELLEES
KARL A. RACINE Attorney General for the District of Columbia LOREN L. ALIKHAN Solicitor General CAROLINE S. VAN ZILE Deputy Solicitor General LEWIS T. PRESTON Assistant Attorney General Office of the Solicitor General Office of the Attorney General 441 4th Street, NW, Suite 630 South Washington, D.C. 20001 (202) 724-5680 lewis.preston@dc.gov

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and amici.—All parties, intervenors, and amici appearing before
the district court and in this Court are listed in the Brief for Appellants. B. Ruling under review.—References to the rulings at issue appear in the
Brief for Appellants. C. Related cases.—This case has not previously come before this Court.
Two related cases are identified in the Brief for Appellees.
i

TABLE OF CONTENTS STATEMENT OF INTEREST OF AMICI CURIAE ................................................1 SUMMARY OF ARGUMENT .................................................................................2 ARGUMENT .............................................................................................................4
I. Matter of A-B- And The Subsequent USCIS Guidelines Contravene Established Federal Law....................................................4
II. Matter of A-B- And The Subsequent USCIS Guidelines Contravene The Amici States’ Interest In Welcoming Individuals Seeking Asylum .................................................................8 A. Providing immigrants refuge from persecution not only fulfills our nation’s obligations, but it also strengthens States’ economies........................................................................8 B. Matter of A-B- is inconsistent with state, federal, and international policies intended to protect victims of domestic and gang-related violence..........................................13 1. Governments have long recognized that victims of domestic violence merit protection ................................14 2. Governments have long recognized the importance of protecting victims of gang-related violence...............19 C. Victims of domestic and gang-related violence fleeing from the Northern Triangle deserve the protection of the States and the United States ......................................................23
CONCLUSION ........................................................................................................29
ii

TABLE OF AUTHORITIES* Cases
Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) ......................................................28 Arizona v. United States, 567 U.S. 387 (2012)..........................................................2 Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) ...........................................................7 *Fiadjoe v. Attorney Gen. of U.S., 411 F.3d 135 (3d Cir. 2005).........................7, 28 Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) ......................7 *INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......................................... 5, 18, 19 INS v. Stevic, 467 U.S. 407 (1984) ............................................................................9 Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) ................................................6 Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).....................................................7 Sowe v. Mukasey, 538 F.3d 1281 (9th Cir. 2008) ....................................................26 United States v. Morrison, 529 U.S. 598 (2000) .....................................................16
Administrative Decisions Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).... 1,2,3,4, 7, 8, 13, 14, 18, 19, 23, 28 Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014)....................................................7
* Authorities upon which we chiefly rely are marked with asterisks. iii

Statutes and Regulations 8 U.S.C. § 1101 ............................................................................................... 5, 6, 17 8 U.S.C. § 1154 ........................................................................................................16 8 U.S.C. § 1158..........................................................................................................5 8 U.S.C. § 1225 .....................................................................................................5, 6 8 U.S.C. § 1229a .......................................................................................................6 8 C.F.R. § 235.3 ....................................................................................................5, 6 Cal. Labor Code § 246.5 ..........................................................................................15 Cal. Pen. Code § 182.5.............................................................................................19 Conn. Gen. Stat. § 54-82t.........................................................................................20 D.C. Code § 51-131 .................................................................................................15 725 Ill. Comp. Stat. § 173/20 ...................................................................................20 La. Rev. Stat. § 15:1403.1........................................................................................20 N.H. Rev. Stat. Ann. § 644:20 .................................................................................20 N.Y. Penal Law § 240.75.................................................................................. 15, 16 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102............................................9 Va. Code Ann. § 18.2-46.2 ......................................................................................19 Va. Code Ann. § 18.2-46.3 ......................................................................................20 Victims of Trafficking and Violence Protection Act of 2000,
Pub. L. No. 106-386, 114 Stat. 1464 (2000).......................................................17
iv

Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994)..........................................................................................16
Wash. Rev. Code § 49.76.........................................................................................15
Wash. Rev. Code § 9A.46.120.................................................................................20
W. Va. Code § 61-6-9 ..............................................................................................20 Other Authorities
Hippolyte d’Albis et al., Macroeconomic Evidence Suggests That Asylum Seekers Are Not a “Burden” for Western European Countries, Science Advances (Jun. 20, 2018) ....................................................10
Am. Bar Assoc., Domestic Violence Arrest Policies...............................................14
Am. Bar Assoc., Domestic Violence Civil Protection Orders (CPOs) ...................14 Am. Immigration Council, Immigrants in California (Oct. 4, 2017)......................12
Am. Immigration Council, Immigrants in the District of Columbia (Oct. 16, 2017) ....................................................................................................12
Am. Immigration Council, Immigrants in the United States (Oct. 4, 2017) ............................................................................................... 10, 12
Deborah Anker & Michael Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9 (1981) .............................................................................9
Dany Bahar, A Spicy Red Sauce and How Immigrants Generate Jobs and Growth in the US (Feb. 7, 2017)........................................................... 12, 13
Battered Immigrant Protection Act of 1999: Hearing on H.R. 3083 Before the H. Comm. on the Judiciary, 106th Cong. 70 (2000) ......18
BUILD, Support & Sponsorship..............................................................................21
v

Congressional Research Service, The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization (updated Apr. 2019) ..........................................................17
Congressional Research Service, Youth Gangs: Background, Legislation, and Issues (updated Jan. 2008) .......................................................21
Gang Resistance Education and Training ................................................................22
Brenan Hoban, Do Immigrants “Steal” Jobs from American Workers (Aug. 24, 2017) ...................................................................................................10
Humanitarian Innovation Fund, Gender Based Violence Interventions: Opportunities for Innovation (2016)..................................................................25
Int’l Rescue Comm., Families Seeking Asylum From Violence in Central America Are Not Criminals ................................................................................24
Oliver Jutersonke et al., Gangs, Urban Violence, and Security Interventions in Central America (Oct. 2015) ....................................................25
Rocio Cara Labrador & Danielle Renwick, Central America’s Violent Northern Triangle (Jun. 26, 2018)............................................................... 24, 26
Silva Mathema, They Are (Still) Refugees: People Continue to Flee Violence in Latin American Countries (Jun. 11, 2018) ........................................ 23, 24, 25
Claire McEvoy & Gergely Hideg, Small Arms Survey, Global Violent Deaths 2017 (2017) ......................................................25
Edmund McGarrell et al., Project Safe Neighborhoods – A National Program to Reduce Gun Crime: Final Project Report (Feb. 2009)...................22
Nadwa Mossaad & Ryan Baugh, Refugees and Asylees: 2016 (2018) .... 6, 9, 10, 24
The National Center for Victims of Crime, Victims’ Rights ...................................20
National Gang Center, Compilation of Gang Related Legislation ..........................19
vi

National Gang Center, Broader Urban Involvement and Leadership Development ....................................................................................21
New Am. Econ., New Americans and a New Direction, The Role of Immigrants in Reviving the Great Lakes Region (2017) ....................................11
Rebecca Oh, Foodhini Works With Immigrant Chefs to Deliver Home-Cooked Meals, NBC News (Jun. 29, 2017) .............................................13
Seth Robins, 3 Crime Factors Driving Northern Triangle Migrants Out, InSight Crime (Oct. 30, 2018) ............................................................................26
Statement of Senator Orrin Hatch, 142 Cong. Rec. 25347 (1996)............................6
United Nations High Comm’r for Refugees, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs (Mar. 2010) .....................22, 23
United Nations High Comm’r for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva 2011 ed.) .....................................................................................3, 18, 19
United Nations High Comm’r for Refugees, Women on the Run (Oct. 2015) ..25, 26
U.S. Citizenship & Immigration Servs., Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B- (July 11, 2018) ................... 1, 2, 3, 4, 7, 8, 13,14, 18, 23, 28
U.S. Citizenship & Immigration Servs., Victims of Human Trafficking: T Nonimmigrant Status .......................................................................................17
U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status.......................................................................................17
U.S. Dep’t of Justice, State Court Processing of Domestic Violence Cases (Mar. 21, 2008).........................................................................................16
U.S. Dep’t of Justice, Office of Justice Programs, Research Report, Reducing Gun Violence: The Boston Gun Project’s Operation Ceasefire (Sep. 2001)..........................................................................................21
vii

U.S. Dep’t of Justice, Office of Juvenile Justice and Delinquency Prevention, Comprehensive Anti-Gang Initiative ..................................................................21
U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, El Salvador (2017).................................27
U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Guatemala (2017) ..................................27
U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Honduras (2017)....................................27
World Justice Project, Rule of Law Index 2017-2018 (2018)..................................26
viii

BIA DOJ INA UNHCR USCIS VAWA

GLOSSARY Board of Immigration Appeals Department of Justice Immigration and Nationality Act United Nations High Commissioner on Refugees United States Citizenship and Immigration Service Violence Against Women Act

ix

STATEMENT OF INTEREST OF AMICI CURIAE Amici curiae are the District of Columbia and the States of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington. The Amici States—who together are home to the majority of this country’s successful asylum grantees—have an interest in ensuring the availability of asylum-related protections for individuals and families with a well-founded fear of persecution due to domestic or gang-related violence. Such protections are crucial, not only to the vulnerable population involved, but also to facilitating the substantial contributions these individuals make in the Amici States’ economies and communities. The Amici States are concerned that former-Attorney General Jeff Sessions’s precedential opinion in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and the United States Citizenship and Immigration Services (“USCIS”) policy memorandum will undercut the longstanding, positive contribution made by these immigrant populations. The opinion and policy memorandum break sharply from prior precedent and call for the denial of asylum claims based on domestic and gang-related violence. The Amici States believe that those fleeing from domestic and gang-related violence should continue to receive a fair and individualized

opportunity to establish their eligibility for asylum, and that such an opportunity is consistent with federal law. If applicants with viable claims were turned away before establishing their eligibility, the Amici States would suffer both economically and culturally.
When the federal government fails to follow the law, it has very real consequences for the several States. This is especially so with immigration policy—it shapes the destiny of the nation, and of the individual States. See Arizona v. United States, 567 U.S. 387, 415 (2012). It is thus vitally important to the Amici States that courts police and protect the federal executive’s compliance with immigration and asylum law.
SUMMARY OF ARGUMENT The district court properly enjoined the United States from applying the policies set forth in Matter of A-B- and the related USCIS policy memorandum, which impermissibly heightened the standards for asylum claims. The United States has an obligation to welcome those forced from their homelands, and the Amici States are committed to fulfilling that obligation. Immigrants, including asylees, are a vital part of the Amici States’ communities. States benefit immensely from immigrants who build new lives here, and the Amici States strive to be places where immigrants can flourish. Immigrants contribute, for example, to state economies: they participate at every level of the workforce
2

and across all economic sectors. Excluding broad swaths of people from the opportunity to seek asylum by foreclosing their claims at the credible fear stage, as Matter of A-B- and the policy memorandum attempt to do, diminishes the Amici States’ economic and community development.
In addition, state and federal governments, as well as the United Nations High Commissioner on Refugees (“UNHCR”), have all recognized the need for specific protections against—and programs tailored to address—domestic and gang-related violence. Each of the 50 States and the District of Columbia has enacted civil and criminal provisions to protect victims of domestic violence, and the federal government too has acknowledged the need to assist immigrant women subject to domestic violence. The guidance found in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva 2011 ed.)1 makes clear that women who suffer from gender-based violence can qualify as refugees. Similarly, the States and the federal government have enacted programs and committed resources to preventing gang violence and ensuring that victims’ rights are respected. And the UNHCR has recognized that victims of gang violence may be eligible for asylum as well. Refusing victims of domestic and gang-related violence assistance—as Matter of A-B- and the policy
1 Available at https://tinyurl.com/yyfs6dbf. 3

memorandum would require—is thus contrary to state and federal policies and UNHCR guidelines.
Domestic and gang-related violence persist at crisis levels in Guatemala, El Salvador, and Honduras in particular, and the victims of this violence deserve to establish their eligibility for asylum and to seek protection in the States and the United States. In 2016, those countries produced nearly 30 percent of all asylum grantees. Women and girls are distinctly targeted: El Salvador and Honduras have the world’s highest rates of femicide. Domestic violence persists there, in part, because the laws prohibiting it are often poorly enforced or carry only minor penalties. Matter of A-B- and the policy memorandum deprive victims of domestic and gang-related violence of an opportunity to show that their government is unable or unwilling to protect them or that they have been targeted because of membership in a particular social group. As a result, Matter of A-B- would deprive States of the contributions that these victims might otherwise make if they were given refuge and the ability to thrive in our country—all because the federal government is defying its commitment to aid eligible refugees.
ARGUMENT I. Matter of A-B- And The Subsequent USCIS Guidelines Contravene
Established Federal Law. Together, the policies in Matter of A-B- and the policy memorandum subvert longstanding federal law, to the detriment of the States—as well as to the rule of
4

law itself. Matter of A-B- and the policy memorandum heighten the standards used in expedited removal proceedings, establishing a near categorical bar to asylum claims based on domestic or gang-related violence. Because these policies may be used to illegally foreclose victims of domestic or gang-related violence from attaining asylum protection, the district court properly enjoined the United States from implementing them.
Federal law provides that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1). To qualify for asylum, the individual must establish that she is a refugee, id. § 1158(b)(1)(A), meaning that she is “unable or unwilling to return” to her home country “because of a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). The applicant need not establish a fear of certain persecution; rather, according to the Supreme Court, she must simply show that persecution is a reasonable possibility. INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).
Eligibility for asylum is especially important for migrants reaching the United States who are subject to “expedited removal,” a summary deportation process without hearings or meaningful review. 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 235.3(b). Persons subject to expedited removal who express a fear of
5

returning to their home country or express an intent to apply for asylum must be referred to an asylum officer for a “credible fear determination,” which may entitle them to referral for regular removal proceedings before an immigration judge. 8 U.S.C. § 1225(b)(1)(A)(ii); see 8 C.F.R. § 235.3(b)(4); see also 8 U.S.C. § 1225(b)(1)(B)(ii), (v); 8 U.S.C. § 1229a. Because a negative credible fear determination is entitled to limited review, Congress designed these interviews to have a low threshold of proof.2 In 2016, for example, 75 percent of individuals referred to a credible fear interview met that standard.3
Asylum applicants fleeing from domestic and gang-related violence often claim a well-founded fear of persecution on account of their “membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A). Federal courts of appeals have recognized that such an applicant persecuted by non-state actors may still merit asylum if she establishes that the persecution was “committed by . . . forces the government is either unable or unwilling to control.” Knezevic v. Ashcroft, 367
2 See 142 Cong. Rec. 25347 (1996) (statement of Sen. Hatch) (“[T]he standard adopted in the conference report is intended to be a low screening standard for admission into the usual full asylum process.”). 3 Nadwa Mossaad & Ryan Baugh, Refugees and Asylees: 2016 at 6 (2018), https://tinyurl.com/yxblggst.
6

F.3d 1206, 1211 (9th Cir. 2014); 8 U.S.C. § 1101(a)(42)(A).4 Notably, in a 2014
decision, Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014), the BIA explicitly
acknowledged that victims of domestic violence targeted because of their gender
could qualify for asylum under prevailing law. Id. at 389 (holding that “married
women in Guatemala who are unable to leave their relationship” was a particular
social group and granting the applicant asylum).
Despite the entrenched and widespread recognition of the validity of
domestic violence and gang-related asylum claims, on June 11, 2018, Attorney
General Sessions issued Matter of A-B-, a precedential opinion that reversed the
BIA’s grant of asylum to an El Salvadoran woman who was brutalized by her
husband. 27 I&N Dec. at 321, 346. The opinion overruled the BIA’s decision in
Matter of A-R-C-G- and proposed that few claims based on domestic or gang-
related violence perpetrated by non-governmental actors would satisfy the credible
fear standard. Id. at 320 n.1. Following the publication of Matter of A-B-, USCIS
issued a policy memorandum for implementing that decision entitled “Guidance
4 See also Martinez v. Holder, 740 F.3d 902, 909-13 (4th Cir. 2014) (finding former gang membership to constitute a particular social group); Cece v. Holder, 733 F.3d 662, 672 (7th Cir. 2013) (determining “young Albanian women living alone” constituted a particular social group); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091-94 (9th Cir. 2013) (en banc) (recognizing that individuals who publicly testify against gangs may qualify as a particular social group); Fiadjoe v. Attorney Gen. of U.S., 411 F.3d 135, 160-62 (3d Cir. 2005) (overturning the BIA’s determination that a victim of incest and domestic violence did not qualify for asylum).
7

for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-.” App. 353-62. The policy memorandum reiterates in bold font the near-categorical rejection of asylum claims based on domestic and gang-related violence. App. 358.
Coupled together, Matter of A-B- and the policy memorandum repudiate legally recognized asylum protections for individuals and families fleeing from domestic and gang-related violence. The opinion and guidance make it exceedingly difficult for those vulnerable populations to establish their eligibility for asylum. As explained by appellees, Matter of A-B- and the policy memorandum contravene both existing statutes and precedent from multiple courts of appeals. These policies would, in effect, raise the bar for immigrants seeking to show a credible fear of persecution, and effectively exclude victims of gang and domestic violence from the asylum process. That result conflicts with the intent of Congress in drafting the Immigration and Nationality Act, and with the policies of Amici States. II. Matter of A-B- And The Subsequent USCIS Guidelines Contravene The
Amici States’ Interest In Welcoming Individuals Seeking Asylum. A. Providing immigrants refuge from persecution not only fulfills
our nation’s obligations, but it also strengthens States’ economies. The United States is a nation founded by immigrants, many of whom came here fleeing persecution. When the country became a signatory to the 1967 United
8

Nations Protocol Relating to the Status of Refugees (“Protocol”), it vowed to protect individuals escaping persecution. INS v. Stevic, 467 US 407, 416-17 (1984); see Mossaad & Baugh, supra, at 2. Congress affirmed this national commitment in the 1980 Refugee Act, declaring “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102, 102. Breaking from prior policies that restricted asylum based on geography and political preference, Congress sought to align the United States’ immigration policy with its international commitments by enacting a nondiscriminatory refugee policy that would apply uniformly.5
Amici States and their constituents fundamentally benefit when society lives up to the ideals of these commitments. Experience has shown that the benefits associated with immigration, including the asylum process, are reciprocal; not only do immigrants benefit from the opportunities associated with living in the United States, but the States and country as a whole benefit from immigrants. Detractors of our nation’s immigration and asylum laws have argued that immigrants—and
5 Deborah Anker & Michael Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9, 9-10, 63-64 (1981).
9

asylum seekers in particular—drain our nation’s resources. Nothing could be further from the truth, as the Amici States know from experience.6
Immigrants enhance the nation’s prosperity by contributing to the state and national economies. Nearly one in six workers is an immigrant.7 Nationally,
successful asylum grantees have a median age much lower than citizens, which
means that the majority of asylum grantees are of working age and thus contribute to the economic output of states and the country as a whole.8
Immigrants provide necessary labor in a variety of fields such as healthcare, manufacturing, food services, and agriculture,9 often taking jobs that native-born citizens either do not want or cannot fill.10 For example, in the Great Lakes region
6 For an empirical analysis of this point in a different context, see Hippolyte d’Albis et al., Macroeconomic Evidence Suggests that Asylum Seekers Are Not a “Burden” for Western European Countries, Science Advances (Jun. 20, 2018), https://tinyurl.com/y269tm7e. 7 Am. Immigration Council, Immigrants in the United States 2 (Oct. 4, 2017), https://tinyurl.com/y3h72n23. 8 See Mossaad, supra, at 8 (finding that 57 percent of those granted asylum in 2016 were between the ages of 18 and 44). 9 New Am. Econ., New Americans and a New Direction, The Role of Immigrants in Reviving the Great Lakes Region 6 (Oct. 2017), https://tinyurl.com/yxgt5u9x. 10 Brenan Hoban, Do Immigrants “Steal” Jobs from American Workers? (Aug. 24, 2017), https://tinyurl.com/y3xw8nvo.
10

of Wisconsin, Illinois, Michigan, Ohio, Pennsylvania, and New York,11 population growth fell behind the national average, resulting in decreased tax revenue and a reduction in jobs.12 However, as residents were leaving the area, immigrants began steadily moving into the region.13 Nearly half of the new residents in the Great Lakes region from 2000 to 2015 were foreign-born individuals, contributing to population growth in areas that otherwise would have declined.14 This increased population led to added jobs and increased wages for U.S.-born workers.15 What is more, these immigrants are keeping the workforce viable as baby boomers age into retirement.16
Additionally, immigrants pursue entrepreneurship at disproportionately high levels. Although nationally immigrants make up around 15 percent of the workforce, approximately 20 percent of business owners are immigrants, with even
11 New Am. Econ., supra at 6. 12 See id. at 7. 13 See id. at 7-8. 14 Id. at 8. 15 Id. at 2, 17, 32 16 Id. at 2, 12.
11

higher percentages in metropolitan areas.17 For example, immigrants make up over half of all business owners in the Washington, D.C. metropolitan area,18 and over 40 percent of the business owners in the Los Angeles metropolitan area.19 These companies, which employ both immigrants and non-immigrants, create jobs and support a thriving local economy.20 On a national level, in 2015 alone, immigrantowned companies generated $72.3 billion in business income.21
In California, for example, immigrant-owned businesses generated almost $22 billion in business income in 2015.22 One such business is Huy Fong Foods, which produces the popular Sriracha sauce.23 That company is led by David Tran, who escaped persecution in Vietnam and came to this country as a refugee in
17 See Immigrants in the United States, supra, at 4; see also Dany Bahar, A Spicy Red Sauce and How Immigrants Generate Jobs and Growth in the US (Feb. 7, 2017), https://tinyurl.com/y2qtkcww. 18 Am. Immigration Council, Immigrants in the District of Columbia 4 (Oct. 16, 2017), https://tinyurl.com/yx9xm42k. 19 Am. Immigration Council, Immigrants in California 4 (Oct. 4, 2017), https://tinyurl.com/ybe2bdpf. 20 See Bahar, supra. 21 Immigrants in the United States, supra, at 4. 22 Immigrants in California, supra, at 4. 23 See Bahar, supra.
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1978.24 With a factory located in Irwindale, California, Mr. Tran’s company employs hundreds of workers and brings in over $60 million in revenue yearly.25
Refugees and asylees are making similar contributions in other States. In the District of Columbia, for instance, the popular new business Foodhini, founded by the son of refugees, offers a delivery service for immigrant chefs selling homecooked meals.26 Majed Abdulraheem, one of the refugee chefs employed by Foodhini, worked as a cook in Syria before being displaced by the war. He is now again pursuing his dream of opening his own restaurant after making his way to the United States.27 By limiting the asylum process, Matter of A-B- and the policy memorandum will make it more difficult for refugees like Mr. Tran and Mr. Abdulraheem to bring their talents to the several States, which threatens the economic and cultural development of States and localities across the country.
B. Matter of A-B- is inconsistent with state, federal, and international policies intended to protect victims of domestic and gang-related violence.
Victims of domestic and gang-related violence also make important contributions to their communities—and are capable of doing so on a much greater
24 Id. 25 Id. 26 Rebecca Oh, Foodhini Works With Immigrant Chefs to Deliver HomeCooked Meals, NBC News (June 29, 2017), https://tinyurl.com/yydr8hbc. 27 Id.
13

scale when they are given safe haven. Indeed, such violence hampers the ability of victims to thrive and achieve their full potential. By allowing survivors to seek shelter in the several States, our nation’s immigration system encourages them to bring their talents here, where they can contribute to their new communities free from their abusers. Acknowledging the importance of protecting these individuals more broadly, many States have adopted strong policies to protect victims of domestic and gang-related violence.
1. Governments have long recognized that victims of domestic violence merit protection.
In issuing Matter of A-B- and the policy memorandum, the federal executive has attempted to unilaterally strip away an essential lifeline for victims of domestic violence. State, federal, and international policies have recognized the importance of protecting this vulnerable population from that harm, yet Matter of A-B- and the policy memorandum disregard this consensus.
States throughout the country recognize that domestic violence is a public health issue with staggering societal consequences. All 50 States and the District of Columbia have enacted both civil and criminal laws to protect the victims of domestic violence.28 These innovative laws demonstrate the States’ understanding
28 See Am. Bar Assoc., Domestic Violence Civil Protection Orders (CPOs) (Mar. 2014), https://tinyurl.com/yxtsf34a (describing state civil penalties for domestic violence and abuse); see also Am. Bar Assoc., Domestic Violence Arrest
14

that it “is in the public interest to reduce domestic violence, sexual assault, and [related crimes].”29 Washington’s Domestic Violence Leave Act is a prime example of innovative protections for, and States’ commitment to, victims of domestic violence.30 The Act grants victims the ability to take reasonable leave from work to handle the aftermaths of abuse, such as seeking legal or medical assistance.31 California’s Healthy Workplaces, Healthy Family Act functions in a similar manner by requiring employers to provide paid days off “for employees who are subjected to domestic violence, sexual assault, or stalking.”32 Additionally, recognizing the toll domestic violence takes on an individual’s ability to work, the District of Columbia allows individuals who leave work due to domestic abuse to recover unemployment compensation.33
In the criminal context, New York Penal Law § 240.75 is another example of innovative state domestic abuse policy. The law imposes heightened penalties
Policies (Jun. 2011), https://tinyurl.com/y6l3fhgb (describing state criminal laws and arrest policies). 29 See, e.g., Wash. Rev. Code § 49.76.010(1). 30 See id. § 49.76 et seq. 31 See id. § 49.76.030. 32 Cal. Labor Code § 246.5(a)(2). 33 D.C. Code § 51-131.
15

for repeat domestic abuse offenders by creating the crime of “aggravated family offense.”34 Indeed, nationally, the prosecution and conviction rate of state domestic abuse cases is significantly higher than that of non-domestic abuse cases.35
The federal government has also taken significant steps to deter and prevent domestic violence. In 1994, Congress enacted the comprehensive Violence Against Women Act (“VAWA”), Pub. L. No. 103-322, 108 Stat. 1902 (1994), with the goal of ensuring that all “persons within the United States shall have the right to be free from crimes of violence motivated by gender,” United States v. Morrison, 529 U.S. 598, 605 (2000). VAWA not only included protection for U.S. citizens facing domestic violence, but it also aided immigrants facing the same issues. The Act introduced new immigration procedures which enable those who “ha[ve] been battered or ha[ve] been the subject of extreme cruelty perpetrated by” a spouse or fiancé to self-petition for a visa. 8 U.S.C. § 1154(a)(1)(A)(iii)(bb). Moreover, Congress made significant appropriations advancing the purposes of VAWA through grants and creation of the Office on Violence Against Women
34 N.Y. Penal Law § 240.75. 35 See U.S. Dep’t of Justice, State Court Processing of Domestic Violence Cases 1 (Mar. 21, 2008), https://tinyurl.com/y5ype8nd.
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within the Department of Justice (“DOJ”).36 Since its inception, that office has administered over $8 billion in grants to State, local, and tribal governments, nonprofit organizations, and universities.37
In 2000, Congress heightened protections for immigrants who were victims of sex trafficking and domestic abuse. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464. It created two new categories of visas for those seeking admission to the United States—“T” visas for victims of sex trafficking, id. div. A § 107, 114 Stat. 1474-80 (codified at 8 U.S.C. § 1101(a)(15)(T)), and “U” visas for victims of other serious crimes, like domestic abuse, who testify against their attackers, id. div. B § 1513, 114 Stat. 1533-37 (codified at 8 U.S.C. § 1101(a)(15)(U)). With the passage of this Act, Congress recognized the importance of “providing battered immigrants . . . who [are] experiencing domestic violence at home with protection against deportation.” Id. § 1502(a)(2), 114 Stat. 1518. Indeed, in discussing the need for T and U visas, members of Congress noted that the visas would provide protection for domestic violence victims in the United States,38 who if coming to this country alone, could
36 Congressional Research Service, The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization 4 (updated Apr. 23, 2019). 37 Id. 38 See U.S. Citizenship & Immigration Servs., Victims of Human Trafficking: T Nonimmigrant Status, https://tinyurl.com/yxton2te (last visited July 20, 2019)
17

seek and qualify for asylum, but may have difficulty doing so when their abuser is
also within the United States.39 Yet, Matter of A-B-, which was issued solely by
the Attorney General, and the USCIS policy memorandum threaten to foreclose
asylum protection and contravene States’ and Congress’s desire to aid immigrants
who are victims of domestic abuse.
Moreover, a policy that categorically rejects asylum claims from victims of
domestic abuse is contrary to the guidelines set forth by the UNHCR. The
Supreme Court and, consequently, federal appellate courts, consider the guidance
found in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status (Geneva 2011 ed.) (“Handbook”) to be of particular
relevance when interpreting the INA. See Cardoza-Fonseca, 480 U.S. at 438-39
(relying on the Handbook’s analysis to interpret the definition of “refugee” in the
(stating that only those who are “in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking” are eligible for T visas); see also U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://tinyurl.com/hferp74 (last visited July 20, 2019) (considering that “[t]he crime occurred in the United Sates or violated U.S. law” to be a requirement for a U visa). 39 Battered Immigrant Protection Act of 1999: Hearing on H.R. 3083 Before the H. Comm. on the Judiciary, 106th Cong. 70 (2000) (statement of Rep. Sheila Jackson Lee) (“A battered woman who is not a legal resident, whose immigration status depends completely on her partner . . . may [be] prevented from leaving her husband or seeking asylum.”).
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INA). The Handbook notes that immigrants who suffer from gender-related persecution, such as “sexual violence, family/domestic violence, coerced family planning, [and] female genital mutilation” may qualify as refugees.40 That remains the case when there is “a risk of being persecuted at the hands of a non-State actor” such as a “husband [or] partner.”41 Matter of A-B- blatantly ignored the Handbook’s reasoning, which this Court should take into account when construing the INA. See Cardoza-Fonseca, 480 U.S. at 439 n.22.
2. Governments have long recognized the importance of protecting victims of gang-related violence.
Matter of A-B- also diverges from State, federal, and international policies designed to protect victims and communities from gang-related violence. States in particular have a strong policy commitment to deterring gang violence and aiding victims. Each State has provisions in its criminal code intended to address gang violence,42 recognizing that gang-related crimes may be exceedingly harmful. These provisions typically criminalize active participation in gangs43 and gang-
40 Handbook at 84. 41 Id. at 87. 42 See National Gang Center, Compilation of Gang Related Legislation, https://tinyurl.com/yxjwd5rp (last visited July 22, 2019). 43 See, e.g., Cal. Pen. Code § 182.5; Va. Code Ann. § 18.2-46.2.
19

related activities like solicitation of new members.44 State criminal codes also typically include penalty enhancements for gang-related violence: Virginia Code Section 18.2-46.3:3, for example, increases the penalty for gang activities undertaken on public school grounds and for recruitment targeting children. States have additionally passed legislation protecting witnesses and victims who testify against gang members, further underscoring their commitment to aiding these individuals.45
States have also partnered with and encouraged local governments to implement tailored strategies to combat this destabilizing form of violence. Programs like Boston, Massachusetts’s Operation Ceasefire, which has been noted for its effectiveness to reducing gang violence since its inception in 1996, represent a more holistic approach, involving preventative messaging and direct interventions like conflict mediation between gang members and potential
44 See, e.g., La. Rev. Stat. § 15:1403.1; N.H. Rev. Stat. Ann. § 644:20; Wash. Rev. Code § 9A.46.120. 45 See, e.g., Conn. Gen. Stat. § 54-82t; 725 Ill. Comp. Stat. § 173/20; W. Va. Code § 61-6-9. Victims are additionally supported by state victims’ rights acts and state constitutional amendments that, at minimum, entitle victims to certain information about criminal proceedings, and may offer additional protection and compensation. See The National Center for Victims of Crime, Victims’ Rights, https://tinyurl.com/yyr9bvnj (last visited July 22, 2019).
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victims.46 Operation Ceasefire relied on the involvement of social workers and
community organizations like churches to help divert at-risk youth away from gang activities.47 Project BUILD, an anti-gang program in Chicago, Illinois,
implemented an anti-gang curriculum in middle schools and hosted after-school
activities that reduced recidivism markedly, helping at-risk youth avoid falling into gang membership.48 These programs recognize the importance of creating
alternatives to gang life and, for young people who are targets for gang
recruitment, diverting them from a cycle of violence and victimization.
The federal government too is committed to protecting victims by investing
in programs to deter and remediate gang violence. It has invested significantly in
studying and piloting gang interventions and in improving collaboration between law enforcement agencies targeting gang-related violence.49 For example, federal
46 U.S. Dep’t of Justice, Reducing Gun Violence: The Boston Gun Project’s Operation Ceasefire (Sep. 2001), https://tinyurl.com/y5we6pdq. 47 Id. at 10. 48 National Gang Center, Broader Urban Involvement and Leadership Development, https://tinyurl.com/yy8zx59g (last visited July 22, 2019). BUILD, in its current iteration, receives public funding from Illinois and the U.S. Department of Education. BUILD, Sponsorship and Support, https://tinyurl.com/yxu5mofp (last visited July 29, 2019). 49 U.S. Dep’t of Justice, Office of Juvenile Justice and Delinquency Prevention, Comprehensive Anti-Gang Initiative, https://tinyurl.com/y3atzmdq (last visited July 22, 2019). For a selection of federal initiatives from the 1980s
21

funds support nationwide programming implementing anti-gang curricula in schools.50 DOJ also works closely with States and localities in developing and implementing gang violence reduction strategies. One of DOJ’s flagship programs, Project Safe Neighborhoods, builds upon the success of approaches pioneered at the local level.51 State and federal law enforcement policy thus recognizes the endemic nature of gang-related violence, and the need for innovative measures to help communities and victims of that violence.
Finally, similar to its guidance regarding domestic violence, UNHCR has noted that there are circumstances in which victims of gang violence can establish eligibility for asylum—specifically, by showing that they are members of a particular social group whose government has been unwilling and unable to protect them from persecution.52 UNHCR acknowledges that “individuals may be targeted
through 2008, see Congressional Research Service, Youth Gangs: Background, Legislation, and Issues (updated Jan. 2008). 50 See Gang Resistance Education and Training, https://www.greatonline.org/Home/About/What-Is-GREAT (last visited July 22, 2019). 51 See Edmund F. McGarrell et al., Project Safe Neighborhoods – A National Program to Reduce Gun Crime: Final Project Report at iii (Apr. 2009), https://tinyurl.com/y2e9kp4f (noting that the program expands upon Boston’s Operation Ceasefire and Richmond’s Project Exile). 52 UNHCR, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs 21 (Mar. 2010), https://tinyurl.com/y6lzlgjk.
22

because of their age, occupation, socio-economic status and their refusal to comply with gangs.”53
Matter of A-B- and the policy memorandum arbitrarily block the victims of such violence from asylum protection and thwart Amici States’ humanitarian and policy interest in protecting and supporting victims of gang violence—as well as the federal government’s own commitment to ameliorating gang activity.
C. Victims of domestic and gang-related violence fleeing from the Northern Triangle deserve the protection of the States and the United States.
Because of their focus on domestic and gang-related violence, Matter of AB- and the policy memorandum are likely to disproportionately affect asylum seekers from specific Central American countries. But those refugees deserve equal protection of the States and the United States and must have an opportunity to prove their eligibility for asylum. A large portion of asylum applicants fleeing from El Salvador, Honduras, and Guatemala, collectively known as the “Northern Triangle,” are women and children.54 This area is widely regarded as one of the most dangerous regions in the world.55 As the number of asylum applications from
53 See id. 54 Silva Mathema, They Are (Still) Refugees: People Continue to Flee Violence in Latin American Countries (Jun. 11, 2018), https://tinyurl.com/y5hozuz9. 55 Id.
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the region has increased in recent years, so too has the region’s share of successful claims,56 illustrating the continued validity and necessity of aiding these refugees fleeing persecution in its many forms.
The Northern Triangle is in close proximity to the United States and to thriving Amici States like California, yet violence and crime in the region is widespread and the vast majority is gang-related.57 Because of this violence, the Northern Triangle has been likened to “the deadliest war zones around the world.”58 Consistently, El Salvador, Honduras, and Guatemala rank among the top ten countries with the highest homicide rates in the world.59 In 2017, El Salvador
56 Mossaad, supra, at 7-8 (depicting in table 5 & 6 that in 2016 nearly 30 percent of successful affirmative and defensive asylum claimants came from the Northern Triangle). 57 See Mathema, supra. 58 Int’l Rescue Comm., Families Seeking Asylum from Violence in Central America Are Not Criminals, https://tinyurl.com/y4zk7x26 (last updated July 26, 2018). El Salvador and Honduras were roiled by decades long civil wars that killed hundreds of thousands. Rocio Cara Labrador & Danielle Renwick, Council on Foreign Relations, Central America’s Violent Northern Triangle (June 26, 2018), https://tinyurl.com/yxdpm2de. The prevalence of gang activity in the Northern Triangle today is inextricable from these violent conflicts. Id. 59 Labrador & Renwick, supra.
24

and Honduras were reported to have the highest rates of violent deaths per capita among countries not engaged in armed conflict.60
Women and children in the region are particularly vulnerable. El Salvador and Honduras hold the first- and second-highest rates of femicide in the world, respectively.61 In 2017, more than nine women were killed each week in El Salvador.62 Women are seen as targets for gangs.63 As one victim reported, “it’s never just sex with the one [gang member]; it’s forced sex with all of them.”64 To make matters worse, not only do these women face gang-related violence, but they also suffer from violence at home. Domestic violence and gang violence are often linked as abusers may use gang affiliation to intimidate their partners or threaten
60 Claire McEvoy & Gergely Hideg, Small Arms Survey, Global Violent Deaths 2017 at 25 (2017), https://tinyurl.com/y7tdxglt (ranking El Salvador as number one and Honduras as number three). 61 Humanitarian Innovation Fund, Gender Based Violence Interventions: Opportunities for Innovation 89-90 (2016), https://tinyurl.com/y4xjjmfa. 62 Mathema, supra. 63 United Nations High Comm’r for Refugees, Women on the Run 16 (Oct. 2015), https://tinyurl.com/y3p46cfo; see also Oliver Jutersonke et al., Gangs, Urban Violence, and Security Interventions in Central America at 6 (2009), https://tinyurl.com/y5g4rnqk (noting that pervasive machismo drives gang mobilization). 64 Women on the Run at 6.
25

them from leaving.65 Gang members and other abusers take advantage of weak institutions to perpetrate violence with impunity.66 Studies show that “[d]omestic violence in the [Northern Triangle] is commonplace and is rarely discussed openly.”67 And gangs target children for recruitment and attempt to coerce them to join through violence.68
Reports from the State Department show widespread human rights violations associated with domestic and gang-related violence. See Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (recognizing State Department Country Reports as “the most appropriate and perhaps the best resource for information on political situations in foreign nations”). In El Salvador, although there are laws that carry trivial prison sentences for domestic violence, these laws “remain[] poorly
65 Id. at 25 66 Id.; see also World Justice Project, Rule of Law Index 2017-2018 (2018), https://tinyurl.com/y2xuo72o (ranking countries in the Northern Triangle in the lowest third for adherence to rule of law, with Guatemala and Honduras ranked at 96 and 103 of 113 countries analyzed). 67 Women on the Run, supra, at 17. 68 Seth Robins, 3 Crime Factors Driving Northern Triangle Migrants Out, InSight Crime (Oct. 30, 2018), https://tinyurl.com/y2qf2plu; Labrador & Renwick, supra.
26

enforced.”69 Furthermore, “police officers, soldiers, and their families,”70 as well as “women and girls,” remain gang targets.71 Honduras fares no better, as there is
violence and harassment perpetrated by “organized criminal elements and gangs.”72
Additionally, in Guatemala, the most egregious human rights issues include
“killing of women because of their gender” and the gang recruitment of children,
many of whom are the victims of domestic abuse.73
These reports confirm the continued need to protect these individuals
escaping domestic and gang-related persecution. The Amici States do not contend
that all applicants who seek asylum based on domestic violence and gang-related
activity should automatically succeed on their claims. But under current law, such
claims require individualized analysis. In cases of non-governmental persecution,
including cases of domestic and gang-related violence, courts have held that
69 U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, El Salvador 23 (2017), https://tinyurl.com/yy2bas6v. 70 Id. at 10. 71 Id. at 1. 72 U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Honduras 13 (2017), https://tinyurl.com/yybzyzcs. 73 U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human Rights Practices for 2017, Guatemala 1, 19 (2017), https://tinyurl.com/y5l4w6lx.
27

applicants must show that the government is unable or unwilling to control the specific criminal actor. See Afriyie v. Holder, 613 F.3d 924, 931-34 (9th Cir. 2010). Matter of A-B-’s general rule against asylum claims based on domestic and gang-related violence ignores this necessarily individualized analysis. The prevalence of such persecution, as shown by the above data, evidences the inability of multiple countries to protect women and targets of gang violence. See Fiadjoe, 411 F.3d at 160-62 (considering evidence of widespread human rights abuses against women in concluding that the government was unable or unwilling to aid the petitioner).
The context and endemic nature of violence in the Northern Triangle underscores the potential for asylum seekers to establish that they are targeted because of membership in a particular social group. These claims must not be summarily disposed of as “unlikely” at the credible fear stage, as Matter of A-Binstructs. 27 I&N Dec. at 320. Matter of A-B- and the policy memorandum wrongfully deny asylum applicants any meaningful opportunity to establish their eligibility for asylum, and puts lives at risk as a result. It has long been the policy of the States and the United States to protect such victims—especially those fleeing persecution in neighboring countries—and the Court should enforce those protections here.
28

CONCLUSION For the foregoing reasons, the Amici States urge this Court to affirm the

judgment of the district court.

Respectfully submitted,

KARL A. RACINE Attorney General for the District of Columbia

LOREN L. ALIKHAN Solicitor General

CAROLINE S. VAN ZILE Deputy Solicitor General

/s/ Lewis T. Preston LEWIS T. PRESTON Assistant Attorney General Bar Number 1619187 Office of the Solicitor General

August 2019

Office of the Attorney General 441 4th Street, NW, Suite 630 South Washington, D.C. 20001 (202) 724-5680 lewis.preston@dc.gov

XAVIER BECERRA Attorney General State of California 1300 I Street Sacramento, CA 95814

PHILIP J. WEISER Attorney General State of Colorado 1300 Broadway, 10th Floor Denver, CO 80203

WILLIAM TONG Attorney General State of Connecticut 55 Elm Street Hartford, CT 06106

KATHLEEN JENNINGS Attorney General State of Delaware 820 North French Street Wilmington, DE 19801
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CLARE E. CONNORS Attorney General State of Hawaii 425 Queen Street Honolulu, HI 96813

KWAME RAOUL Attorney General State of Illinois 100 West Randolph Street Chicago, IL 60601

AARON M. FREY Attorney General State of Maine 6 State House Station August, ME 04333-0006

BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place Baltimore, MD 21202

MAURA HEALEY Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108

DANA NESSEL Attorney General State of Michigan P.O. Box 30212 Lansing, MI 48909

KEITH ELLISON

AARON D. FORD

Attorney General

Attorney General

State of Minnesota

State of Nevada

102 State Capitol

100 North Carson Street

75 Rev. Dr. Martin Luther King Jr. Carson City, NV 89701

Blvd.

St. Paul, MN 55155

GURBIR S. GREWAL Attorney General State of New Jersey 25 Market Street Trenton, NJ 08625

LETITIA JAMES Attorney General State of New York 28 Liberty Street New York, NY 10005

ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street N.E. Salem, OR 97301

JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania 1600 Arch Street Philadelphia, PA 19103

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PETER NERONHA Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
MARK R. HERRING Attorney General Commonwealth of Virginia 202 North 9th Street Richmond, VA 23219

THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State Street Montpelier, VT 05609-1101
ROBERT W. FERGUSON Attorney General State of Washington P.O. Box 40100 Olympia, WA 98504-0100

31

CERTIFICATE OF SERVICE I certify that on August 1, 2019, electronic copies of this brief were served through the Court’s ECF system to all counsel of record.
/s/ Lewis T. Preston LEWIS T. PRESTON CERTIFICATE OF COMPLIANCE I further certify that this brief complies with the type-volume limitation in Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because the brief contains 5,988 words, excluding exempted parts. This brief complies with the typeface and type style requirements of Federal Rule of Appellate Procedure 32(a)(5) and (6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Times New Roman 14 point. /s/ Lewis T. Preston LEWIS T. PRESTON