U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-02117-TJK

CAPITAL AREA IMMIGRANTS' RIGHTS COALITION et al v. TRUMP et al Assigned to: Judge Timothy J. Kelly Case in other court: USCA, 20-05273 Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 07/16/2019 Date Terminated: 07/15/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION

represented by Craig Alan Hoover HOGAN LOVELLS 555 13th Street, NW Washington, DC 20004-1161 (202) 637-5694 Fax: 202-637-5910 Email: craig.hoover@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kaitlin Welborn ACLU OF ALABAMA P.O. Box 6179 Montgomery, AL 36106 334-265-2754 Email: kwelborn@aclualabama.org TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Kumar Katyal HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5528 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

T. Clark Weymouth HOGAN LOVELLS US LLP 555 Thirteenth St. N.W. Washington, DC 20004 (202) 637-8633 Email: t.weymouth@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt HOGAN LOVELLS US LLP 390 Madison Ave New York, NY 10017 212-918-5547 Email: thomas.schmidt@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty U.S. ATTORNEY'S OFFICE 1801 California Street Suite 1600 Denver, CO 80202 303-454-0101 Fax: 303-454-0411 Email: elizabeth.hagerty@usdoj.gov TERMINATED: 01/02/2020
Hardy Vieux HUMAN RIGHTS FIRST 805 15th Street, NW Suite 900 Washington, DC 20005 (202) 888-7607 Fax: (202) 543-5999 Email: vieuxh@humanrightsfirst.org ATTORNEY TO BE NOTICED
Mitchell Pearsall Reich HOGAN LOVELLS US LLP 555 Thirteenth St. N.W. Washington, DC 20004 (202) 637-5833

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

Email: mitchell.reich@hoganlovells.com ATTORNEY TO BE NOTICED
Patricia Stottlemyer HUMAN RIGHTS FIRST 805 15th Street, NW Suite 900 Washington, DC 20005 (202) 370-3317 Email: StottlemyerP@humanrightsfirst.org ATTORNEY TO BE NOTICED
Justin Bernick HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004 (202) 637-5485 Email: justin.bernick@hoganlovells.com ATTORNEY TO BE NOTICED
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah REFUGEE AND IMMIGRANT CENTER FOR EDUCATON AND LEGAL SERVICES 802 Kentucky Avenue San Antonio, TX 78201 United Sta 210-787-3745 Fax: 210-787-3745 Email: manoj.govindaiah@raicestexas.org

Plaintiff Z.B.M.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neal Kumar Katyal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
T. Clark Weymouth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
Hardy Vieux (See above for address) ATTORNEY TO BE NOTICED
Mitchell Pearsall Reich (See above for address) ATTORNEY TO BE NOTICED
Patricia Stottlemyer (See above for address) ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) ATTORNEY TO BE NOTICED
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address)

Plaintiff C.C.R.O.
Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020

Y.G.C.
Plaintiff D.L.R.

represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff M.Y.R.B.
Plaintiff N.G.R.L.

Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020

Plaintiff HUMAN RIGHTS FIRST
Plaintiff W.M.R.O.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick

Plaintiff J.M.M.
Plaintiff

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020
represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020

K.M.V.M.

represented by Craig Alan Hoover (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Bernick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kaitlin Welborn (See above for address) TERMINATED: 04/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas P. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Hagerty (See above for address) TERMINATED: 01/02/2020

V.
Defendant
DONALD J. TRUMP in his official capacity as President of the United States

represented by Erez Reuveni U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 307-4293 Fax: (202) 305-7000 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 307-6482

Defendant WILLIAM P. BARR in his official capacity as Attorney General of the United States
Defendant KEVIN K. MCALEENAN in his official capacity as Acting Secretary of Homeland Security

Fax: (202) 514-8071 Email: scott.g.stewart@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 616-4458 Fax: (202) 305-7000 Email: lauren.c.bingham@usdoj.gov ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED

Defendant KENNETH T. CUCCINELLI, II in his official capacity as Acting Director of U.S. Citizenship and Immigration Services
Defendant JOHN P. SANDERS in his official capacity as Acting Commissioner of U.S. Customs and Border Protection
Defendant MATTHEW T. ALBENCE in his official capacity as Acting Director of Immigration and Customs Enforcement

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED

Defendant JAMES MCHENRY in his official capacity as Director of the Executive Office for Immigration Review
Defendant U.S. DEPARTMENT OF JUSTICE TERMINATED: 08/18/2019
Defendant U.S. DEPARTMENT OF HOMELAND SECURITY

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. CITIZENSHIP & IMMIGRATION SERVICES
Defendant U.S. CUSTOMS & BORDER PROTECTION
Defendant U.S. IMMIGRATION & CUSTOMS ENFORCEMENT

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED

Defendant EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Amicus KIDS IN NEED OF DEFENSE (KIND)
Amicus PROFESSORS OF IMMIGRATION LAW
Amicus IMMIGRATION REFORM LAW INSTITUTE

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Crowell Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Mark S. Raffman GOODWIN PROCTER LLP 1900 N St NW Washington, DC 20036 202-346-4259 Email: mraffman@goodwinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin Matthew Lamb WILMER, CUTLER, PICKERING, HALE & DORR, LLP. 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 Email: kevin.lamb@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence J. Joseph LAW OFFICE OF LAWRENCE J. JOSEPH 1250 Connecticut Avenue, NW Suite 700-1A Washington, DC 20036 (202) 355-9452

Fax: (202) 318-2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

07/16/2019 1

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Docket Text
COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-6258216) filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC..
(Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons, # 14 Summons, # 15 Summons)(Bernick, Justin) (Entered: 07/16/2019)
NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 1:18-cv-2718; 1:18-cv-2838. (Bernick, Justin) (Entered: 07/16/2019)
MOTION for Temporary Restraining Order by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL
SERVICES, INC. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Michelle Garza Pareja, # 3 Declaration of Claudia Cubas, # 4 Text of Proposed Order, # 5 Declaration of Counsel Regarding Compliance with Local Rule 65.1)(Bernick, Justin). Added MOTION for Preliminary Injunction on 7/18/2019 (znmw). (Entered: 07/16/2019)
MOTION to Expedite Hearing by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (Attachments: # 1 Text of Proposed Order)(Bernick, Justin) (Entered: 07/16/2019)
Case Assigned to Judge Randolph D. Moss. (zsb) (Entered: 07/17/2019)
MINUTE ORDER: In filing the present action, Plaintiffs indicated that the matter should be designated as related to O.A. et al. v. Trump et al., 18-cv-2718, pursuant to Local Rule 40.5(a)(3). To ensure that the matter is properly assigned, Plaintiffs are hereby

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ORDERED to show cause before 7:00 p.m. July 17, 2019, why this case should be treated as related to O.A. v. Trump. Defendants may also file a brief before 7:00 p.m. today expressing their views on whether and, if so, why the cases should be treated as related. The Court recognizes that this is a very abbreviated schedule but has concluded that expedition is necessary in light of the pending motion for a temporary restraining order. Signed by Judge Randolph D. Moss on 7/17/2019. (lcrdm1, ) (Entered: 07/17/2019)
NOTICE of Appearance by Erez Reuveni on behalf of All Defendants (Reuveni, Erez) (Entered: 07/17/2019)
RESPONSE re 2 NOTICE of Related Case by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Reuveni, Erez) Modified event title on 7/18/2019 (znmw). (Entered: 07/17/2019)
RESPONSE TO ORDER TO SHOW CAUSE re Order,,, filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC.. (Bernick, Justin) Modified event title on 7/18/2019 (znmw). (Entered: 07/17/2019)
CERTIFICATE OF SERVICE by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL
SERVICES, INC. re 7 Response to Order of the Court . (Bernick, Justin) (Entered: 07/17/2019)
NOTICE OF SUPPLEMENTAL AUTHORITY by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (Attachments: # 1 Exhibit A)(Bernick, Justin) (Entered: 07/17/2019)
NOTICE of Appearance by Mitchell Pearsall Reich on behalf of CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION

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AND LEGAL SERVICES, INC. (Reich, Mitchell) (Entered: 07/18/2019)
NOTICE of Appearance by Elizabeth Hagerty on behalf of All Plaintiffs (Hagerty, Elizabeth) (Entered: 07/18/2019)
MINUTE ORDER: Local Rule 40.5(a)(3) provides that "[c]ivil, including miscellaneous, cases are deemed related when the earliest is still pending on the merits in the District Court and they (i) relate to common property, or (ii) involve common issues of fact, or (iii) grow out of the same event or transaction or (iv) involve the validity or infringement of the same patent." "The fundamental rationale for the general rule requiring random assignment of cases is to ensure greater public confidence in the integrity of the judicial process. The rule guarantees fair and equal distribution of cases to all judges, avoids public perception or appearance of favoritism in assignments, and reduces opportunities for judge-shopping." Tripp v. Executive Office of the President, 196 F.R.D. 201, 202 (D.D.C. 2000) (Calendar Committee three-judge panel). Because the two cases at issue, O.A. et al. v. Trump et al., 18-cv-2718 and CAIR et al. v. Trump et al., 19-cv-2117, involve APA challenges to different interim final rules enacting different policies based on different administrative records, the Court has determined that they are not related for the purposes of Local Rule 40.5(a)(3). That the cases may involve some overlapping legal issues and similar factual contentions relating to standing does not change this conclusion. Thus, it is hereby ORDERED that this case shall be randomly reassigned pursuant to Local Rule 40.3(a). Signed by Judge Randolph D. Moss on 7/18/2019. (lcrdm1, ) (Entered: 07/18/2019)
Case randomly reassigned to Judge Christopher R. Cooper. Judge Randolph D. Moss is no longer assigned to the case. (rj) (Entered: 07/18/2019)
Case randomly reassigned to Judge Timothy J. Kelly. Judge Christopher R. Cooper is no longer assigned to the case. (rj) (Entered: 07/18/2019)
MINUTE ORDER: The parties shall appear for a telephonic status conference today, July 18, 2019, at 4:30 p.m. to discuss Plaintiffs' 4
Motion for Expedited Hearing. The parties shall promptly contact the Courtroom Deputy at (202) 354-3495 to make arrangements to do so. Signed by Judge Timothy J. Kelly on 7/18/2019. (lctjk2) (Entered: 07/18/2019)

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SUMMONS (14) Issued Electronically as to All Defendants, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 07/18/2019)
Minute Entry for proceedings held before Judge Timothy J. Kelly: Telephone Status Conference held on 7/18/2019. Order to be issued
by the court. Hearing on 3 MOTION for Temporary Restraining Order set for 7/22/2019 at 2:00 PM in Courtroom 11 before Judge Timothy J. Kelly. (Court Reporter: Patricia KaneshiroMiller) (kh) (Entered: 07/18/2019)
MINUTE ORDER: As discussed at the telephonic status conference held today, it is hereby ORDERED that Defendants shall file their
opposition to Plaintiffs' 3 Motion for Temporary Restraining Order by July 20, 2019, at 10:00 a.m., and Plaintiffs shall file their reply in support of their motion by July 21, 2019, at 6:00 p.m. The parties shall appear for a hearing on Plaintiffs' motion for a temporary restraining order on July 22, 2019, at 2:00 p.m. in Courtroom 11. It is further ORDERED that Defendants shall file the administrative record as soon as practicable, and no later than July 23, 2019, at 8:00 p.m. In light of this order, Plaintiffs' 4
Motion for Expedited Hearing is hereby DENIED AS MOOT. Signed by Judge Timothy J. Kelly on 7/18/2019. (lctjk2) (Entered: 07/18/2019)
NOTICE of Appearance by Scott Grant Stewart on behalf of All Defendants (Stewart, Scott) (Entered: 07/19/2019)
RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/19/2019. Answer due for ALL FEDERAL DEFENDANTS by 9/17/2019. (Hagerty, Elizabeth) (Entered: 07/19/2019)
LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION (Hagerty, Elizabeth) (Entered: 07/19/2019)
LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (Hagerty, Elizabeth) (Entered: 07/19/2019)

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MOTION for Leave to File A Brief Amicus Curiae by KIDS IN NEED OF DEFENSE (KIND) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Raffman, Mark) (Entered: 07/19/2019)
Memorandum in opposition to re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: # 1 Text of Proposed Order)(Reuveni, Erez) (Entered: 07/20/2019)
ADMINISTRATIVE RECORD by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: # 1 Administrative Record Part 1, # 2 Administrative Record Part 2, # 3 Administrative Record Part 3, # 4 Administrative Record Part 4, # 5 Administrative Record Part 5, # 6 Administrative Record Part 6, # 7 Administrative Record Part 7, # 8 Administrative Record Part 8, # 9 Administrative Record Part 9)(Reuveni, Erez) (Entered: 07/20/2019)
REPLY to opposition to motion re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC.. (Bernick, Justin) (Entered: 07/21/2019)
NOTICE of Appearance by Kaitlin Welborn on behalf of All Plaintiffs (Welborn, Kaitlin) (Entered: 07/22/2019)
Minute Entry for proceedings held before Judge Timothy J. Kelly:
Motion Hearing held on 7/22/2019 re 3 MOTION for

Temporary Restraining Order. Oral argument heard and taken under advisement. (Court Reporter: Timothy Miller) (kh) (Entered: 07/22/2019)

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NOTICE of Appearance by T. Clark Weymouth on behalf of All Plaintiffs (Weymouth, T.) (Entered: 07/22/2019)

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NOTICE of Appearance by Neal Kumar Katyal on behalf of All Plaintiffs (Katyal, Neal) (Entered: 07/22/2019)

07/22/2019 26

NOTICE of Appearance by Manoj Govindaiah on behalf of REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (Govindaiah, Manoj) (Entered: 07/22/2019)

07/23/2019

27 NOTICE of Appearance by Lauren Crowell Bingham on behalf of MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Bingham, Lauren) (Entered: 07/23/2019)

07/23/2019

MINUTE ORDER: It is hereby ORDERED that the parties shall

appear for an oral ruling on Plaintiffs' 3 Motion for Temporary Restraining Order on July 24, 2019, at 10:00 a.m. in Courtroom 11. If counsel wish to appear telephonically, they shall contact the Courtroom Deputy at (202) 354-3495 to make arrangements to do so. Signed by Judge Timothy J. Kelly on 7/23/2019. (lctjk2) (Entered: 07/23/2019)

07/24/2019

Minute Entry for proceedings held before Judge Timothy J. Kelly: Oral Ruling held on 7/24/2019. For the reasons stated on the record

in open court, Plaintiff's 3 MOTION for Temporary Restraining Order is DENIED. (Court Reporter: Timothy Miller) (kh) (Entered: 07/24/2019)

07/24/2019

28 TRANSCRIPT OF ORAL RULING before Judge Timothy J. Kelly held on 7-24-19; Page Numbers: 1-16; Date of Issuance: 7-24-19; Court Reporter: Timothy R. Miller, Telephone Number (202) 3543111. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order

07/25/2019
07/29/2019 29

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 8/14/2019. Redacted Transcript Deadline set for 8/24/2019. Release of Transcript Restriction set for 10/22/2019.(Miller, Timothy) (Entered: 07/24/2019)
MINUTE ORDER: Despite the Court's instruction at the oral ruling held on July 24, 2019, it is hereby ORDERED that the parties shall meet, confer, and file a joint status report no later than Monday, July 29, 2019, proposing how they would like to proceed in this matter. That report shall address, in particular, whether the Government, if it has not already done so, intends to seek a stay of the District Court for the Northern District of California's order entering a preliminary injunction in Case No. 19-cv-04073-JST, ECF No. 42, and further whether, in light of that order, the parties
in this case will consent to holding Plaintiffs' 3 Motion for Preliminary Injunction in abeyance and proceed to summary judgment briefing on Plaintiffs' claims. It is further ORDERED that Defendants shall file their response to Movant KIND's 19
Motion for Leave to File an Amicus Brief by Monday, July 29, 2019. Signed by Judge Timothy J. Kelly on 7/25/2019. (lctjk2) (Entered: 07/25/2019)
RESPONSE re 19 MOTION for Leave to File A Brief Amicus Curiae filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE,

U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Reuveni, Erez) (Entered: 07/29/2019)

07/29/2019 30

Joint STATUS REPORT by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC.. (Bernick, Justin) (Entered: 07/29/2019)

07/30/2019

MINUTE ORDER: Upon consideration of the parties' 30 Joint Status Report, it is hereby ORDERED that the following schedule shall govern further proceedings: (1) Plaintiffs shall file their motion for summary judgment by August 27, 2019; (2) Defendants shall file their consolidated cross-motion for summary judgment and opposition to Plaintiffs' motion by September 17, 2019; (3) Plaintiffs shall file their consolidated reply in support of their motion and opposition to Defendants' cross-motion by September 24, 2019; (4) and Defendants shall file their reply in support of their cross-motion by October 1, 2019. The parties shall appear for a hearing on their motions on October 16, 2019, at 2:00 p.m. in Courtroom 11. Upon consent of the parties, the Court shall hold Plaintiffs' Motion for Preliminary Injunction in abeyance in light of the preliminary injunction entered by the District Court for the Northern District of California in East Bay Sanctuary Covenant v. Barr, Case No. 19-cv-4073-JST, ECF No. 42. Plaintiffs are, of course, entitled to renew their motion if that injunction is stayed or vacated in whole or in part. Signed by Judge Timothy J. Kelly on 7/30/2019. (lctjk2) (Entered: 07/30/2019)

08/06/2019

31 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Amended Complaint, # 3 Declaration of J.M.M., # 4 Declaration of D.L.R., # 5 Declaration of Z.B.M., # 6 Declaration of Y.C.G., # 7 Declaration of M.Y.R.B., # 8 Declaration of K.M.V.M., # 9 Declaration of W.M.R.O., # 10 Declaration of C.C.R.O., # 11 Declaration of N.G.R.L., # 12 Text of Proposed Order, # 13 Certificate of Service)(Bernick, Justin) (Entered: 08/06/2019)

08/09/2019

32 TRANSCRIPT OF TEMPORARY RESTRAINING ORDER HEARING before Judge Timothy J. Kelly held on 7-22-19; Page Numbers: 1-156; Date of Issuance: 8-9-19; Court Reporter: Timothy R. Miller, Telephone Number (202) 354-3111. Transcripts

08/12/2019 33
08/12/2019 34
08/16/2019 35
08/18/2019 36
08/18/2019 37

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 8/30/2019. Redacted Transcript Deadline set for 9/9/2019. Release of Transcript Restriction set for 11/7/2019.(Miller, Timothy) (Entered: 08/09/2019)
NOTICE of Appearance by Patricia Stottlemyer on behalf of All Plaintiffs (Stottlemyer, Patricia) (Entered: 08/12/2019)
NOTICE of Appearance by Hardy Vieux on behalf of All Plaintiffs (Vieux, Hardy) (Entered: 08/12/2019)
RESPONSE re 31 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (This document is SEALED and only available to authorized persons.) filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC.. (Bernick, Justin) (Entered: 08/16/2019)
MEMORANDUM OPINION & ORDER granting Plaintiffs' 31 Motion for Leave to File Using Pseudonyms and Under Seal. See Order for details. Signed by Judge Timothy J. Kelly on 8/18/2019. (lctjk2) (Entered: 08/18/2019)
AMENDED COMPLAINT against All Defendants filed by REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, Z.B.M., C.C.R.O., Y.G.C., D.L.R., M.Y.R.B., N.G.R.L., Human Rights First,

08/18/2019 38
08/20/2019 39
08/20/2019 40
08/21/2019 41

W.M.R.O., J.M.M., K.M.V.M..(Hagerty, Elizabeth) (Entered: 08/18/2019)
MEMORANDUM re 31 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC. (This document is SEALED and only available to authorized persons.) filed by REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., Human Rights First, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Hagerty, Elizabeth) (Entered: 08/18/2019)
RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on 7/22/2019; WILLIAM P. BARR served on 7/23/2019; KENNETH T. CUCCINELLI served on 7/22/2019; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW served on 7/22/2019; KEVIN K. MCALEENAN served on 7/22/2019; JAMES MCHENRY served on 7/22/2019; JOHN P. SANDERS served on 7/22/2019; DONALD J. TRUMP served on 7/25/2019; U.S. CITIZENSHIP & IMMIGRATION SERVICES served on 7/22/2019; U.S. CUSTOMS & BORDER PROTECTION served on 7/22/2019; U.S. DEPARTMENT OF HOMELAND SECURITY served on 7/22/2019; U.S. DEPARTMENT OF JUSTICE served on 7/23/2019; U.S. IMMIGRATION & CUSTOMS ENFORCEMENT served on 7/23/2019 (Hagerty, Elizabeth) (Entered: 08/20/2019)
PROPOSED BRIEFING SCHEDULE re Order,,,,, Set Deadlines/Hearings,,,, by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Bernick, Justin) (Entered: 08/20/2019)
MOTION for Preliminary Injunction by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M. (Attachments: # 1 Memorandum in Support, # 2 Declaration

08/22/2019
08/28/2019 42
08/28/2019 43

(Supplemental) of Claudia Cubas, # 3 Declaration (Supplemental) of Michelle Garza Pareja, # 4 Declaration of Sharon McBride,
# 5 Declaration of Lisa Frydman, # 6 Text of Proposed Order, # 7 Certificate of Service)(Bernick, Justin) (Entered: 08/21/2019)
MINUTE ORDER: Upon consideration of the parties' 40 Joint Statement, it is hereby ORDERED that the following schedule shall govern further proceedings: (1) Defendants shall file their
opposition to Plaintiffs' 41 Motion for Preliminary Injunction by August 28, 2019; (2) Plaintiffs shall file their reply by September 3, 2019; and (3) the parties shall appear for a hearing on Plaintiffs' motion on September 11, 2019, at 2:00 p.m. in Courtroom 11. The parties may, where feasible, incorporate by reference any arguments made in their briefing on Plaintiffs' motion for a temporary restraining order. Furthermore, Defendants are permitted to file a consolidated memorandum in opposition addressing both Plaintiffs' motion in this case and the plaintiffs' motion for a preliminary injunction in the related case, I.A. et al. v. Barr et al., Civil Action No. 19-2530, provided that Defendants file the memorandum on both dockets. It is further ORDERED that, upon the parties' request, the briefing schedule entered by the Court on July 30, 2019, concerning the parties' cross-motions for summary judgment is hereby held in abeyance pending resolution of Plaintiffs' renewed motion for a preliminary injunction. Signed by Judge Timothy J. Kelly on 8/22/2019. (lctjk2) (Entered: 08/22/2019)
MOTION for Leave to File a Brief as Amicus Curiae by Professors of Immigration Law (Attachments: # 1 Proposed Amicus Brief, # 2 Text of Proposed Order)(Lamb, Kevin) (Entered: 08/28/2019)
RESPONSE re 41 MOTION for Preliminary Injunction filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit,

# 13 Exhibit, # 14 Exhibit, # 15 Exhibit)(Bingham, Lauren) (Entered: 08/28/2019)

08/28/2019

44 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit)(Bingham, Lauren) (Entered: 08/28/2019)

08/29/2019

45 Consent MOTION for Leave to File Memorandum of Law in Support of Defendants as Amicus Curiae by IMMIGRATION REFORM LAW INSTITUTE (Attachments: # 1 Exhibit Proposed Amicus Memo of Law, # 2 Exhibit Exhibit to Proposed Memo, # 3 Text of Proposed Order Proposed Order)(Joseph, Lawrence) (Entered: 08/29/2019)

09/03/2019 46

REPLY to opposition to motion re 41 MOTION for Preliminary Injunction filed by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Bernick, Justin) (Entered: 09/03/2019)

09/04/2019

MINUTE ORDER granting Defendants' 44 Unopposed Motion to File Exhibits Under Seal. In light of the Court's 36

Memorandum Opinion & Order and Defendants' obligations under 8 C.F.R. § 208.6, and upon consideration of the relevant factors set forth in United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1980), including the fact that no party objects, it is hereby ORDERED that Defendants' motion is GRANTED. Exhibits A through O, attached to the motion as ECF No. 44-1 through ECF No. 44-15, the last of which the Court presumes is incorrectly marked Exhibit N, shall remain under seal. Signed by Judge Timothy J. Kelly on 9/4/2019. (lctjk2) (Entered: 09/04/2019)

09/04/2019
09/05/2019 09/09/2019

47 SEALED DOCUMENT (Exhibit A) filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. re 43
Response to motion,, filed by U.S. CUSTOMS & BORDER PROTECTION, KEVIN K. MCALEENAN, KENNETH T. CUCCINELLI, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, DONALD J. TRUMP, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JOHN P. SANDERS, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, MATTHEW T. ALBENCE, WILLIAM P. BARR, JAMES MCHENRY. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N, # 14 Exhibit N) (ztth) (Entered: 09/05/2019)
48 NOTICE of Appearance by Craig Alan Hoover on behalf of C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M. (Hoover, Craig) (Entered: 09/05/2019)
MINUTE ORDER: Consistent with the structure of the hearing on Plaintiffs' motion for a temporary restraining order, the Court plans to ask the parties a set of prepared questions at the consolidated hearing scheduled for September 11, 2019, on Plaintiffs' 41
Motion for Preliminary Injunction and the plaintiffs' comparable motion in the related case, I.A. et al. v. Barr et al., Civil Action No. 19-2530. Accordingly, and in light of the numerous common issues presented by the cases, it is hereby ORDERED that Plaintiffs shall confer with the plaintiffs in the related case to discuss a mutually agreeable plan for responding to the Court's questioning on those common issues. The Court will not tolerate duplicative arguments from both sets of plaintiffs. Signed by Judge Timothy J. Kelly on 9/9/2019. (lctjk2) (Entered: 09/09/2019)

09/09/2019 09/09/2019
49 09/09/2019
09/13/2019

MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a telephonic status conference on September 10, 2019, at 9:00 a.m. The parties shall confer in light of the District Court for the Northern District of California's order reinstating the scope of injunctive relief in East Bay Sanctuary Covenant et al. v. Barr et al., Case No. 19-cv-04073-JST, ECF No. 73, and be prepared to discuss how they would like to proceed in this case. The parties shall promptly contact the Courtroom Deputy at (202) 354-3495 to make arrangements to do so. Signed by Judge Timothy J. Kelly on 9/9/2019. (lctjk2) (Entered: 09/09/2019)
PROPOSED BRIEFING SCHEDULE by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Bernick, Justin) (Entered: 09/09/2019)
MINUTE ORDER: Upon consideration of the parties' 49 Joint Statement on Scheduling Concerning Plaintiffs' Motions for Preliminary Injunction, and in light of the renewed injunction issued by the District Court for the Northern District of California in East Bay Sanctuary Covenant et al. v. Barr et al., Case No. 19cv-04073-JST, ECF No. 73, it is hereby ORDERED that
Plaintiffs' 41 Motion for Preliminary Injunction is held in abeyance, and the hearing on that motion scheduled for September 11, 2019, is VACATED. Plaintiffs are entitled to renew their motion if that injunction is stayed or vacated in whole or in part. It is further ORDERED that within two days of the Supreme Court's decision on the application for a stay pending appeal in Barr et al. v. East Bay Sanctuary Covenant et al., No. 19A230, the parties shall promptly confer and propose a schedule concerning crossmotions for summary judgment. In light of this order, the telephonic status conference scheduled for September 10, 2019, is hereby VACATED. Signed by Judge Timothy J. Kelly on 9/9/2019. (lctjk2) (Entered: 09/09/2019)
MINUTE ORDER: It is hereby ORDERED that the deadline to submit a joint proposed schedule concerning cross-motions for summary judgment is EXTENDED to September 16, 2019. Signed by Judge Timothy J. Kelly on 9/13/2019. (lctjk2) (Entered: 09/13/2019)

09/16/2019 50
09/17/2019 51
09/18/2019
09/30/2019 52
09/30/2019 53

PROPOSED BRIEFING SCHEDULE by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Bernick, Justin) (Entered: 09/16/2019)
NOTICE OF RELATED CASE by All Defendants. Case related to Case No. 19-cv-2773. (Reuveni, Erez) (Main Document 51 replaced on 9/18/2019) (znmw). (Entered: 09/17/2019)
MINUTE ORDER: Upon consideration of the parties' 50 Joint Statement on Scheduling, it is hereby ORDERED that the parties'
briefs concerning Plaintiffs' 41 Motion for Preliminary Injunction shall be treated as cross-motions for summary judgment. The following schedule shall govern further proceedings as to those cross-motions: (1) each party shall file a statement of undisputed material facts by September 30, 2019; (2) each party shall file a response to the opposing party's statement of undisputed material facts by October 11, 2019; (3) Defendants shall file their consolidated supplemental brief by October 16, 2019; (4) Plaintiffs shall file their supplemental brief by October 23, 2019; and (5) the parties shall appear for a hearing on their cross-motions for summary judgment on October 28, 2019, at 2:00 p.m. in Courtroom 11. Upon the parties' joint request, and because Defendants intend to raise threshold jurisdictional issues in their supplemental briefing, it is further ORDERED that Defendants' deadline to
answer the 37 Amended Complaint is STAYED pending further order of the Court. Signed by Judge Timothy J. Kelly on 9/18/2019. (lctjk2) (Entered: 09/18/2019)
SUPPLEMENTAL MEMORANDUM re 41 Statement of Undisputed Material Facts from Defendants. (Attachments: # 1 Exhibit Declaration of Elizabeth Burgus, # 2 Exhibit N.B. Redacted Interview Notice)(Bingham, Lauren) Modified event title and link on 10/3/2019 (znmw). (Entered: 09/30/2019)
SUPPLEMENTAL MEMORANDUM re 41 Statement of Undisputed Material Facts from Plaintiffs. (Bernick, Justin) Modified event title and link on 10/3/2019 (znmw). (Entered: 09/30/2019)

10/03/2019 54
10/03/2019 55
10/11/2019 56
10/11/2019 57

NOTICE of correction and mootness by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, II, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Attachments: # 1 Exhibit)(Reuveni, Erez) (Entered: 10/03/2019)
SUPPLEMENTAL MEMORANDUM to re 52 Civil Statement, (corrected) filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, II, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Reuveni, Erez) (Entered: 10/03/2019)
RESPONSE re 53 Civil Statement filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, II, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Reuveni, Erez) (Entered: 10/11/2019)
RESPONSE re 55 Supplemental Memorandum, (Civil Statement) filed by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Attachments: # 1 Declaration of Kaitlin Welborn, # 2 Declaration of Prajakta Sonalker, # 3 Certificate of Service)(Hagerty, Elizabeth) (Entered: 10/11/2019)

10/16/2019 58
10/23/2019 59
10/24/2019
10/28/2019 11/07/2019
11/15/2019 60
01/02/2020 61

SUPPLEMENTAL MEMORANDUM to support motion for summary judgment filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, II, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Reuveni, Erez) (Entered: 10/16/2019)
SUPPLEMENTAL MEMORANDUM to Support Summary Judgment filed by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Bernick, Justin) (Entered: 10/23/2019)
MINUTE ORDER: The hearing on the parties' cross-motions for summary judgment scheduled for October 28, 2019, at 2:00 PM is hereby CONTINUED to November 4, 2019, at 2:00 PM. Should the parties have a scheduling conflict, they shall jointly contact the Courtroom Deputy as soon as practicable to reschedule to a mutually agreeable date and time. Signed by Judge Timothy J. Kelly on 10/24/19. (lctjk2) (Entered: 10/24/2019)
NOTICE of Hearing: The Motion Hearing currently set for 11/4/2019 is RESCHEDULED for 11/7/2019 at 2:30 PM in Courtroom 11 before Judge Timothy J. Kelly. (zkh) (Entered: 10/28/2019)
Minute Entry for proceedings held before Judge Timothy J. Kelly:
Motion Hearing held on 11/7/2019 re 41 cross motions for Summary Judgment. Oral argument heard and taken under advisement. (Court Reporter: Timothy Miller) (zkh) (Entered: 11/08/2019)
NOTICE of Appearance by Thomas P. Schmidt on behalf of All Plaintiffs (Schmidt, Thomas) (Entered: 11/15/2019)
NOTICE OF WITHDRAWAL OF APPEARANCE as to C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O.,

Y.G.C., Z.B.M.. Attorney Elizabeth Hagerty terminated. (Hagerty, Elizabeth) (Entered: 01/02/2020)

01/28/2020

62 TRANSCRIPT OF PROCEEDINGS before Judge Timothy J. Kelly held on November 7, 2019; Page Numbers: 1-89. Date of Issuance:January 28, 2020. Court Reporter/Transcriber Timothy R. Miller, RPR, CRR, NJ-CCR, Telephone number (202) 354-3111, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased fro m the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 2/18/2020. Redacted Transcript Deadline set for 2/28/2020. Release of Transcript Restriction set for 4/27/2020.(ztnr) (Entered: 01/28/2020)

03/05/2020 63

NOTICE OF SUPPLEMENTAL AUTHORITY by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M. (Bernick, Justin) (Entered: 03/05/2020)

03/20/2020 64

NOTICE of Upcoming Removal by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH THOMAS CUCCINELLI, II, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (Bingham, Lauren) (Entered: 03/20/2020)

03/23/2020

MINUTE ORDER: Upon consideration of Defendants' 64

Notice of Upcoming Removal, if Plaintiff J.M.M. intends to file a response to the Notice, Plaintiff J.M.M. shall do so by March 24, 2020, at 5:00 p.m. Signed by Judge Timothy J. Kelly on 3/23/2020. (lctjk1) (Entered: 03/23/2020)

03/24/2020 65

RESPONSE TO ORDER OF THE COURT re Order,, Set Deadlines, filed by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M.. (Attachments: # 1 Declaration)(Bernick, Justin) (Entered: 03/24/2020)

04/08/2020 66

RESPONSE re 63 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH THOMAS CUCCINELLI, II, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Bingham, Lauren) (Entered: 04/08/2020)

04/24/2020

67 MOTION to Withdraw as Attorney Kaitlin Welborn by C.C.R.O., CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, D.L.R., HUMAN RIGHTS FIRST, J.M.M., K.M.V.M., M.Y.R.B., N.G.R.L., REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, INC., W.M.R.O., Y.G.C., Z.B.M. (Welborn, Kaitlin) (Entered: 04/24/2020)

04/24/2020

MINUTE ORDER granting Plaintiffs' 67 Motion to Withdraw. It is hereby ORDERED that attorney Kaitlin Welborn is withdrawn as counsel of record for Plaintiffs. Signed by Judge Timothy J. Kelly on 4/24/2020. (lctjk1) (Entered: 04/24/2020)

06/01/2020

MINUTE ORDER granting the 19 , 42 , and 45 Motions for Leave to File Amicus Curiae Briefs. It is hereby ORDERED that the accompanying briefs and any exhibits thereto shall be deemed filed. The Court shall not consider any portions that offer or rely on extra-record evidence. See IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997) (noting that to consider extra-record evidence now would be to permit ex post supplementation of the record, which is not consistent with the prevailing standards of agency review). Signed by Judge Timothy J. Kelly on 6/1/2020. (lctjk1) (Entered: 06/01/2020)

06/01/2020 68
06/01/2020 69
06/01/2020 70
06/30/2020 71
06/30/2020 72
08/28/2020 73
08/31/2020 74

AMICUS BRIEF by KIDS IN NEED OF DEFENSE (KIND). (Attachment: # 1 Declaration) (ztth) (Entered: 06/03/2020)
AMICUS BRIEF by PROFESSORS OF IMMIGRATION LAW. (ztth) (Entered: 06/03/2020)
AMICUS BRIEF by IMMIGRATION REFORM LAW INSTITUTE. (Attachment: # 1 Exhibit - A) (ztth) (Entered: 06/03/2020)
ORDER granting Plaintiffs' 41 Motion for Summary
Judgment, denying Defendants' 43 Cross-Motion for Summary Judgment, and vacating the interim final rule. See Order for details. Signed by Judge Timothy J. Kelly on 6/30/2020. (lctjk1) (Entered: 06/30/2020)
MEMORANDUM OPINION in support of 71 Order granting
Plaintiffs' 41 Motion for Summary Judgment, denying
Defendants' 43 Cross-Motion for Summary Judgment, and vacating the interim final rule. Signed by Judge Timothy J. Kelly on 6/30/2020. (lctjk1) (Main Document 72 replaced on 7/7/2020) (zkh). (Entered: 06/30/2020)
NOTICE OF APPEAL TO DC CIRCUIT COURT as to 72
Memorandum & Opinion, 71 Order by U.S. CUSTOMS & BORDER PROTECTION, JAMES MCHENRY, WILLIAM P. BARR, DONALD J. TRUMP, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, MATTHEW T. ALBENCE, KEVIN K. MCALEENAN, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF JUSTICE, KENNETH THOMAS CUCCINELLI, II, U.S. CITIZENSHIP & IMMIGRATION SERVICES, JOHN P. SANDERS. Fee Status: No Fee Paid. Parties have been notified. (Reuveni, Erez) (Entered: 08/28/2020)
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

09/02/2020

appeal was filed by the government re 73 Notice of Appeal to DC Circuit Court. (zjf) (Entered: 08/31/2020)
USCA Case Number 20-5273 for 73 Notice of Appeal to DC Circuit Court,, filed by U.S. CUSTOMS & BORDER PROTECTION, KEVIN K. MCALEENAN, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, DONALD J. TRUMP, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE, JOHN P. SANDERS, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, MATTHEW T. ALBENCE, WILLIAM P. BARR, JAMES MCHENRY, KENNETH THOMAS CUCCINELLI, II. (zrdj) (Entered: 09/03/2020)

PACER Service Center Transaction Receipt

09/13/2020 12:20:19

PACER Login: crclearinghouse Client Code: Rogers

Description: Docket Report Search Criteria: 1:19-cv-02117-TJK

Billable Pages: 26

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2.60

 
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 Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 1 of 64

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Capital Area Immigrants’ Rights Coalition, 1612 K Street NW, #204 Washington, DC 20006;
Refugee and Immigrant Center for Education and Legal Services, Inc., 1305 North Flores Street San Antonio, TX 78212;
Human Rights First, 805 15th Street NW, #99900 Washington, DC 20005;
J.M.M., D.L.R., Z.B.M., Y.G.C., M.Y.R.B., K.M.V.M., W.M.R.O., C.C.R.O., and N.G.R.L.,
Plaintiffs,
v.
Donald J. Trump, in his official capacity as President of the United States, 1600 Pennsylvania Avenue NW Washington, DC 20500;
William Barr, in his official capacity as Attorney General of the United States, U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530;
Kevin McAleenan, in his official capacity as Acting Secretary of Homeland Security, 25 Murray Lane SW Washington, DC 20528;
Kenneth Cuccinelli, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue NW Room 4210, MS: 2120 Washington, DC 20529;

Civil Action No. 1:19-cv-02117-TJK
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 2 of 64
Mark A. Morgan, in his official capacity as Acting Commissioner of U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW MS: 1345 Washington, DC 20229;
Matthew Albence, in his official capacity as Acting Director of Immigration and Customs Enforcement, 500 12th Street SW Washington, DC 20536;
James McHenry, in his official capacity as Director of the Executive Office for Immigration Review, U.S. Department of Justice 5107 Leesburg Pike Falls Church, VA 22041;
U.S. Department of Justice, 950 Pennsylvania Avenue NW Washington, DC 20530;
U.S. Department of Homeland Security, 245 Murray Lane SW Mailstop 0485 Washington, DC 20528;
U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue NW Washington, DC 20529;
U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW Washington, DC 20229;
U.S. Immigration and Customs Enforcement, 500 12th Street SW Washington, DC 20536;
Executive Office for Immigration Review; U.S. Department of Justice 5107 Leesburg Pike Falls Church, VA 22041;
Defendants.
2

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 3 of 64
INTRODUCTION 1. Plaintiffs J.M.M., D.L.R., Z.B.M., Y.G.C., M.Y.R.B., K.M.V.M., W.M.R.O., C.C.R.O., N.G.R.L., Capital Area Immigrants’ Rights Coalition (“CAIR Coalition”), Refugee and Immigrant Center for Education and Legal Services, Inc. (“RAICES”), and Human Rights First (“HRF”) (together, “Plaintiffs”) bring this lawsuit to challenge the Government’s bar on asylum eligibility for individuals and families entering the United States across the southern border without first applying for protection from persecution or torture while in third countries through which they transited en route to the United States. 2. Our immigration laws, consistent with the United States’ international legal obligations, reflect Congress’s commitment to aid persons fleeing persecution who are “physically present in the United States or who arrive[] in the United States * * * irrespective of such alien’s status.” 8 U.S.C. § 1158(a)(1). 3. The Immigration and Nationality Act (“INA”) provides two exceptions under which individuals can be prevented from seeking asylum in the United States based on their connection with a third country: (1) where the United States has a bilateral or multilateral agreement with a “[s]afe third country” in which the alien would have access to “a full and fair procedure” for determining her eligibility for asylum or equivalent protections, id. § 1158(a)(2)(A), or (2) the alien was “firmly resettled” in another country before arriving in the United States, id. § 1158(b)(2)(A)(vi). The only country with which the United States has a “safe third party” agreement is Canada. 4. On July 16, 2019, without using the notice and comment procedures required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, the U.S. Executive Office for Immigration Review (“EOIR”), Department of Justice (“DOJ”), U.S. Citizenship and
3

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 4 of 64
Immigration Services (“USCIS”), and Department of Homeland Security (“DHS”) issued an interim final rule entitled “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829 (the “Rule”) that radically rewrites this statutory scheme.
5. The Rule creates a new third country-related exception to the INA’s presumption of asylum eligibility for those in the United States. Under its amendments to 8 C.F.R. §§ 208.13, 1208.13, an individual who “enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside of the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum,” unless she can show that she falls within one of three limited exceptions: (1) that she applied for protection from persecution or torture in at least one third country and received a final judgment of denial, (2) that she satisfies the definition of a “victim of a severe form of trafficking in persons” under 8 C.F.R. § 214.11, or (3) that the only third countries through which she transited to the United States were, at the time, not parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”). 84 Fed. Reg. 33,843.
6. The Rule’s amendments to 8 C.F.R. § 208.30(e)(5)(ii) subject individuals to a higher burden to avoid removal: “If the alien is found to be an alien described in § 208.13(c), then the asylum officer shall enter a negative credible fear determination with respect to the alien’s intention to apply for asylum,” and proceed to place the individual into full removal proceedings under Section 240 of the INA for consideration of her claims for withholding of removal under Section 241(b)(3) of the INA or for protection under the CAT. 84 Fed. Reg.
4

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 5 of 64
33,843-33,844. Either form of relief requires the individual to establish a “reasonable fear of persecution or torture,” rather than a credible fear, subject to limited review under the same “reasonable fear” standard by an immigration judge. 84 Fed. Reg. 33,843-33,844 (amending 8 C.F.R. § 208.30(e)(5)(ii)).
7. The Rule intentionally operates to strip asylum eligibility from many of those who need it most: migrants fleeing persecution and violence across the southern border of the United States. Such asylum seekers are disproportionately comprised of women, children, LGBT individuals, and other vulnerable populations at risk of violence in their home countries.
8. Plaintiffs respectfully ask the Court to issue an order declaring that the Rule violates the INA, the APA, and the Constitution, and enjoining its enforcement and implementation across the United States.
JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, the INA, the APA, and other federal statutes. 10. The Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the APA, 5 U.S.C. § 706; the Mandamus and Venue Act, 28 U.S.C. § 1361; Rules 23, 57, and 65 of the Federal Rules of Civil Procedure (“Federal Rules”); and the Court’s inherent equitable powers. 11. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)(2), (e)(1). Upon information and belief, a substantial part of the events giving rise to this claim occurred in this District, including the decision to implement the policy changes challenged in this action. 12. Each individual Defendant also is an officer of the United States sued in his or her official capacity, and the majority of Defendants reside in this District.
5

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 6 of 64
PARTIES J.M.M.
13. Plaintiff J.M.M. is a young woman from El Salvador seeking asylum in the United States. J.M.M. fled El Salvador in May 2018 and Mexico in July 2019 after years of threats, beatings, and sexual abuse from members of MS-13. In early 2017, a member of MS-13 began extorting J.M.M. The gang member threatened to hurt J.M.M.’s brother if she could not pay him. After four months of extortion, the gang member began to sexually assault J.M.M. He continued to rape and beat J.M.M. once a week for a year. J.M.M. never reported the extortion, threats, or sexual assaults to the police because the police are associated with MS-13; J.M.M. has witnessed the police refuse to arrest gang members.
14. In May of 2018, J.M.M. fled El Salvador for Mexico to escape abuse from MS13. Nevertheless, members of MS-13 found her in Mexico in the summer of 2019. Two gang members grabbed J.M.M. by the hair and beat her. They told her that they had J.M.M.’s and her brother’s information, and that they would find her wherever she was hiding. J.M.M. then fled Mexico for the United States.
15. J.M.M. entered the United States without inspection on July 16, 2019 and was quickly detained by U.S. immigration officials.
16. On July 22, 2019, J.M.M. underwent a credible fear interview by an asylum officer and received a negative determination because she was barred under the Rule.
17. On July 30, 2019, an immigration judge reversed the negative credible fear determination.
18. As of August 6, 2019, J.M.M. has not received a notice to appear (“NTA”) for a removal hearing under section 240 of the INA.
6

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 7 of 64
D.L.R. 19. Plaintiff D.L.R. is a young woman from Cuba seeking asylum in the United States. D.L.R. fled Cuba in June 2019 after being persecuted by the Cuban government for her opposition to communism. 20. In 2015, the Cuban Revolutionary Defense Committee (“CDR”) began to target D.L.R. because she refused to participate in the CDR’s meetings while she was at university due to her anti-communist beliefs. The CDR sent D.L.R. five subpoenas to appear at meetings in four months. The CDR also searched her house for “counter-revolutionary” evidence. When D.L.R. finally appeared at a CDR meeting, CDR officials told D.L.R. that she needed to begin supporting the CDR. 21. Throughout the next few years, the CDR continued to harass D.L.R. When the father of her daughter, who also opposes the CDR, visited her and her family in 2017, the CDR interrogated D.L.R. about why he had visited and whether he had given her counterrevolutionary information. In 2018, D.L.R.’s daughter’s preschool teacher told D.L.R. that her daughter’s school life would be more difficult if D.L.R. continued to oppose the CDR. 22. The CDR’s persecution escalated in 2019. The police arrested D.L.R. when she refused to vote in a constitutional election held earlier this year. In May 2019, the police arrested D.L.R. for refusing to participate in CDR meetings. A few weeks later, the police assaulted D.L.R. At that point D.L.R. decided to flee Cuba. 23. D.L.R. traveled through Nicaragua, Honduras, Guatemala, and Mexico before entering the United States. 24. D.L.R. presented at a United States port of entry on July 17, 2019 and requested asylum.
7

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 8 of 64
25. On July 21, 2019, D.L.R. underwent a credible fear interview by an asylum officer and received a negative determination.
26. On July 30, 2019, an immigration judge reversed the negative credible fear determination.
27. As of August 6, 2019, D.L.R. has not received a NTA. Z.B.M.
28. Plaintiff Z.B.M. is a young woman from Angola seeking asylum in the United States. Z.B.M. fled Angola in February 2019 after men kidnapped and attacked her because of her religion—Jehovah’s Witness—and her membership in the Bakongo tribe. Three men, whom Z.B.M. believes were police officers, bound Z.B.M. with rope and drove her far from home. Holding a gun to Z.B.M.’s head, the men beat Z.B.M. with a metal rod and threatened to kill her. The men said they had been sent to kidnap Z.B.M. by a local police officer from a different tribe who did not like Z.B.M.’s religion or her tribe. The next day, the attackers called Z.B.M. and told her she had 24 hours to leave Angola. The men threatened to kill her if she did not flee the country.
29. Z.B.M. decided to flee Angola the day after the attack. She fled to Ecuador and then crossed through Columbia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico before reaching the United States. On her journey Z.B.M. was robbed and saw people killed or injured.
30. Z.B.M. entered the United States without inspection on July 16, 2019 and was quickly detained by U.S. immigration officials.
31. On July 21, 2019, Z.B.M. underwent a credible fear interview by an asylum officer and received a negative determination.
8

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 9 of 64
32. On July 26, 2019, an immigration judge reversed the negative credible fear determination.
33. On or after July 29, 2019, the Department of Homeland Security issued Z.B.M. a document styled as a NTA. The document did not include a date or time for a hearing.
Y.G.C. 34. Plaintiff Y.G.C. is a young woman from Guatemala seeking asylum in the United States. In May 2019, a man whom Y.G.C. believes is a gang member began threatening her while she worked nights at a taco stand. The man would follow Y.G.C. and threatened to kill her if she did not agree to be “his woman.” The man also threatened that he would kill any other man seen with Y.G.C. In addition to these threats, the suspected gang member wanted Y.G.C. to extort her boss. 35. Y.G.C. attempted to file a criminal complaint against the man threatening her, but multiple police officers told Y.G.C. that they could not help her because she did not know the man’s real name—just the nickname he told her to call him. Because the man continued to threaten Y.G.C. after she attempted to file a complaint with the police, Y.G.C. fled Guatemala in June 2019. 36. Y.G.C. traveled through Mexico en route to the United States. She entered the United States without inspection on July 16, 2019 and was quickly detained by U.S. immigration officials. 37. On July 21, 2019, Y.G.C. underwent a credible fear interview by an asylum officer and received a negative determination. 38. On July 29, 2019, an immigration judge reversed the negative credible fear determination.
9

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 10 of 64
39. On or after July 31, 2019, the Department of Homeland Security issued Y.G.C. a document styled as a NTA. The document did not include a date or time for a hearing.
M.Y.R.B. 40. Plaintiff M.Y.R.B. is a young woman from Guatemala seeking asylum in the United States. M.Y.R.B. and her four-year-old son, B.R.B., fled Guatemala in July 2019 because she faced extortion from the Barrio 18 gang and because she was discriminated against for being an indigenous woman. 41. In April 2019, the Barrio 18 gang began extorting M.Y.R.B. Gang members told her that if she could not pay their weekly extortion, they would kill both her and her son. The gang continually raised the price; by the end of June, the extortion had increased from 500 quetzals to 25,000 quetzals. M.Y.R.B. and her son fled Guatemala once Barrio 18 realized she could no longer pay. 42. M.Y.R.B. could not report the extortion to the police because Barrio 18 members told her they would kill her if she went to the police. M.Y.R.B. believes the gang would follow through on that threat, as the gang killed her neighbor’ son after the neighbor reported the gang’s extortion to the police. 43. M.Y.R.B. also faced racial discrimination in Guatemala. M.Y.R.B. received constant insults and societal rejection because she is an indigenous woman. Multiple times the discrimination escalated to physical violence. For example, people pushed M.Y.R.B. towards the back of the bus and threw a plate of food in her face. 44. M.Y.R.B. did not apply for asylum in Mexico because her journey through Mexico to the United States was a perilous one. Once, a group of armed police officers stopped M.Y.R.B.’s bus and demanded payment before letting the bus leave. M.Y.R.B. gave the police
10

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 11 of 64
all of her money because she was afraid. Another time, a man sexually assaulted her and threatened to beat her family if she reported the assault.
45. M.Y.R.B. entered the United States without inspection on July 17, 2019 and was quickly detained by U.S. immigration officials.
46. On July 23, 2019, M.Y.R.B. underwent a credible fear interview by an asylum officer on behalf of herself and her son and received a positive determination.
47. As of August 6, 2019, M.Y.R.B. and her son have not received NTAs. K.M.V.M.
48. Plaintiff K.M.V.M. is a young woman from Honduras seeking asylum in the United States for herself and her six-year-old daughter. K.M.V.M. and her daughter fled Honduras in June 2019 after being repeatedly threatened by gang members. Last year, a violent gang took up residence in K.M.V.M.’s hometown. The town has no police presence. The community looked to K.M.V.M.’s brothers for aid in controlling the gang because her brothers were members of the military. The brothers alerted the police to the gang activity. The police visited the town twice, but did nothing else. The gang received news that the increased police attention was due to K.MV.M.’s brothers, and threatened her brothers, telling them that the gang has “the power to make anyone [it] want[s] disappear, wherever” and that the gang will “go[ ] after what” the brothers care about the most. Gang members also showed up at K.M.V.M.’s place of work, asking after K.M.V.M. and her mother by name.
49. K.M.V.M., her parents, and her daughter then moved to another town in Honduras. While there, they heard that the gang was still looking for them. They alerted the police, who agreed that they were in danger but told them there was nothing the police could do to protect them.
11

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 12 of 64
50. K.M.V.M. then fled with her daughter to the United States. She traveled through Guatemala and Mexico, and did not stop there because she believes the gang could reach her in either of those countries.
51. K.M.V.M. and her daughter entered the United States on July 17, 2019 and were quickly detained by U.S. immigration officials.
52. On July 24, 2019, K.M.V.M. underwent a credible fear interview of behalf of herself and her daughter. She received a negative credible fear determination.
53. On August 5, 2019, an immigration judge overturned that negative determination. 54. K.M.V.M. and her daughter remain detained at the South Texas Family Residential Center.
W.M.R.O. and C.C.R.O. 55. Plaintiffs W.M.R.O. and C.C.R.O. are unaccompanied minors from Honduras seeking asylum in the United States. W.M.R.O. and his twin sister, C.C.R.O., fled Honduras in June 2019 after being threatened by two men in their community. W.M.R.O.’s and C.C.R.O.’s older brother is gay, and is not accepted by Honduran society as a result. A few months prior to their departure from Honduras, two men came to their home and threatened W.M.R.O., C.C.R.O., and their family. The two men attempted to enter the home but were not permitted to do so. Instead they yelled through the door that because W.M.R.O.’s and C.C.R.O’s older brother was gay, that they would kill his family, their descendants, and finally him. 56. In June 2019, W.M.R.O. and C.C.R.O. fled Honduras to escape the death threats. They traveled through Guatemala and Mexico en route to the United States.
12

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 13 of 64
57. W.M.R.O and C.C.R.O. entered the United States without inspection on July 16, 2019 and were quickly detained by U.S. immigration officials. They were classified as unaccompanied minors and transferred to the custody of the Office of Refugee Resettlement.
58. Both W.M.R.O. and C.C.R.O. intend to apply for asylum. 59. On July 18, 2019, the Department of Homeland Security issued W.M.R.O. and C.C.R.O. documents styled as NTAs. Neither document contains a date or time for a hearing.
N.G.R.L. 60. Plaintiff N.G.R.L. is an unaccompanied minor from Honduras seeking asylum in the United States. N.G.R.L. fled Honduras in May 2019 after being raped and threatened by her stepfather. Approximately two years ago, N.G.R.L.’s stepfather raped her. In September 2018, N.G.R.L.’s sister committed suicide and left a note saying her stepfather had gotten her pregnant. After her sister’s suicide, N.G.R.L. filed a police report which resulted in her stepfather being held in jail for approximately three months. After his release in May 2019, he threatened N.G.R.L., telling her that she would regret reporting him to the police, that what happened to her sister will also happen to her, and that he will continue raping her. 61. N.G.R.L. fled Honduras shortly thereafter. She traveled through Guatemala and Mexico en route to the United States. N.G.R.L. remained in Mexico for approximately one month; however, she did not feel safe there. 62. On July 24, 2019, N.G.R.L. presented at a port of entry in the United States and was detained by U.S. immigration officials. She was classified as an unaccompanied minor and transferred to the custody of the Office of Refugee Resettlement.
13

Case 1:19-cv-02117-TJK Document 37 Filed 08/18/19 Page 14 of 64
63. N.G.R.L. intends to apply for asylum. On July 24, 2019, the Department of Homeland Security issued N.G.R.L. a document styled as a NTA. The document does not include a date or time for a hearing.
CAIR Coalition 64. Plaintiff CAIR Coalition is a 501(c)(3) nonprofit legal services and advocacy organization with its principal place of business in the District of Columbia. CAIR Coalition provides direct legal services to migrant men, women, and children at risk of detention and deportation in the Washington, DC metropolitan area and beyond, including with respect to credible fear interviews in the course of removal procedures, asylum applications, and adversarial proceedings in immigration courts. The organization also engages in impact and advocacy work related to immigration and trains and supervises pro bono attorneys.
RAICES 65. Plaintiff RAICES is a 501(c)(3) nonprofit legal services and advocacy organization with offices in San Antonio, Austin, Corpus Christi, Dallas, Fort Worth, and Houston, Texas. Founded in 1986 as the Refugee Aid Project, RAICES has grown to become the largest immigration legal services provider in Texas. The organization provides consultations and direct legal services to immigrants and refugees in Texas, as well as to clients after they leave the state. In 2017 alone, RAICES closed 51,000 cases at no cost to its clients.
Human Rights First 66. Plaintiff HRF, formerly known as the Lawyers Committee for Human Rights, is a nonpartisan 501(c)(3) nonprofit international human rights organization with offices in New York City and Washington, DC. HRF has worked since 1978 to promote fundamental human rights and protect refugees’ rights. HRF grounds its refugee protection work in the standards set
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forth in the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, the CAT, and other international human rights instruments.
Defendants 67. Defendant Donald J. Trump is the President of the United States. In that capacity, he directs and oversees the activities of the executive agencies that have promulgated and seek to implement the Rule. He is sued in his official capacity. 68. Defendant William Barr is sued in his official capacity as Attorney General of the United States. The Attorney General is responsible for administering the U.S. immigration laws pursuant to 8 U.S.C. § 1103, and has the authority to grant noncitizens asylum and other relief. He also directs each of the component agencies within DOJ. Defendant Barr was Attorney General when DOJ issued the Rule challenged in this action, and approved it in the form in which it was published in the Federal Register. 69. Defendant Kevin McAleenan is sued in his official capacity as the Acting Secretary of Homeland Security. In that capacity, he is responsible for administering the U.S. immigration laws pursuant to 8 U.S.C. § 1103, has the authority to grant noncitizens asylum and other relief, and approved the Rule challenged in this action. He also directs each of the component agencies within Defendant DHS. Defendant McAleenan held this position at the time Defendant DHS issued the Rule challenged in this action. 70. Defendant Kenneth Cuccinelli is sued in his official capacity as the Acting Director of USCIS. In that capacity, he is responsible for overseeing asylum officers who adjudicate applicants’ asylum claims, including by conducting “credible fear” interviews pursuant to 8 U.S.C. § 1225(b)(1)(B). Defendant Cuccinelli held this position at the time Defendant USCIS issued the Rule challenged in this action.
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71. Defendant Mark A. Morgan is sued in his official capacity as the Acting Commissioner of U.S. Customs and Border Protection (“CBP”). In that capacity, he oversees the agency responsible for securing U.S. borders with respect to trade, immigration, and agricultural protection. Defendant Sanders held this position at the time the Rule challenged in this action was issued.
72. Defendant Mathew Albence is sued in his official capacity as the Acting Director of U.S. Immigration and Customs Enforcement (“ICE”). In that capacity, he is responsible for civil and criminal enforcement of federal laws governing border control, customs, trade, and immigration. Defendant Albence held this position at the time the Rule challenged in this action was issued.
73. Defendant James McHenry is sued in his official capacity as the Director of EOIR. In that capacity, he is responsible for the sub-agency of DOJ that conducts limited review of negative credible fear determinations made pursuant to 8 U.S.C. § 1225(b)(1)(B). Defendant McHenry held this position at the time Defendant EOIR issued the Rule challenged in this action.
74. Defendant DOJ is a cabinet-level department of the federal government responsible for enforcement of the laws of the United States. It issued the Rule challenged in this case.
75. Defendant DHS is a cabinet-level department of the federal government responsible for enforcing the immigration laws of the United States. Its component sub-agencies include Defendants USCIS, CBP, and ICE. It issued the Rule challenged in this case.
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76. Defendant USCIS is the sub-agency of DHS responsible for conducting interviews of asylum applicants through its asylum officers. It issued the Rule challenged in this case.
77. Defendant CBP is the sub-agency of DHS responsible for the initial processing and detention of noncitizens who are apprehended at or near U.S. borders. In that capacity, it will implement the Rule challenged in this case.
78. Defendant ICE is the sub-agency of DHS responsible for carrying out removal orders and overseeing immigration detention in the United States. In that capacity, it will implement the Rule challenged in this case.
79. Defendant EOIR is a sub-agency of DOJ. See 28 C.F.R. § 0.115. It is responsible for conducting limited review of negative credible fear determinations made pursuant to 8 U.S.C. § 1225(b)(1)(B). It also issued the Rule challenged in this case.
BACKGROUND Asylum Protections under International and Domestic Law 80. Under existing federal law, and consistent with the United States’ international legal obligations, individuals fleeing persecution and violence are entitled to pursue several forms of legal protection in the United States. 81. These forms of protection include (1) asylum, 8 U.S.C. § 1158; (2) withholding of removal, 8 U.S.C. § 1231(b)(3); and (3) protection under the CAT, see 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); 8 C.F.R. § 208.18. 82. Modern asylum procedures initially were established in the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, which revised the INA’s procedures for admission of refugees and
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announced that “it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible,” id. § 101(a) (codified as Note to 8 U.S.C. § 1521).
83. In creating the asylum provisions, Congress sought to bring the United States into compliance with its international obligations under the 1967 United Nations Protocol Relating to the Status of Refugees and the 1951 Convention Relating to the Status of Refugees. These and other international treaties reflect the United States’ obligations to permit refugees to seek asylum in its borders, to impose no penalties on asylum seekers based on their unlawful status, and to prevent the return (or “refoulement”) of individuals to countries where they would face persecution or torture.
84. It is a widely accepted principle of international refugee law that “asylum should not be refused solely on the ground that it could be sought from another State.” UNHCR Exec. Comm., Refugees Without an Asylum Country, Conclusion No. 15(h)(iv) (XXX) Oct. 16, 1979).1 The U.N. High Commissioner on Refugees has stated that before transferring asylumseekers to another country, a state “needs to guarantee that each asylum-seeker” will receive basic protections, including “access to fair and efficient procedures for the determination of refugee status,” “protect[ion] against refoulement,” and an “individual[ized] assesss[ment] as to the appropriateness of the transfer.” UNHCR, Guidance Note on bilateral and/or multilateral transfer arrangements of asylum seekers ¶ 3(vi) (May 2013) (emphasis added).
85. “Congress imbued these international commitments with the force of law when it enacted the Refugee Act of 1980,” and when it subsequently passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, “which
1 Available at https://www.unhcr.org/en-us/excom/exconc/3ae68c960/refugees-asylum-country. html.
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refashioned the above principles into their current form” in the INA. R-S-C v. Sessions, 869 F.3d 1176, 1178 (10th Cir. 2017). This “refashioning” in the INA included the modern prohibition on withholding of removal as to individuals threatened on account of race, religion, nationality, social group membership, or political opinion, 8 U.S.C. § 1231(b)(3)(A), 8 C.F.R. § 1208.16, and the guarantee that all noncitizens may apply for asylum on the same grounds, 8 U.S.C. § 1158(a)(1). See R-S-C, 869 F.3d at 1178.
86. As set forth above, 8 U.S.C. § 1158(a)(1) provides that “[a]ny alien who is physically present in the United States or who arrives in the United States * * * irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1).
87. Asylum may be granted to an individual who has a “well-founded fear of persecution” on the same five grounds enumerated in our international agreements: “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42)(A).
88. An applicant’s testimony is sufficient to sustain her burden to prove such wellfounded fear without corroboration if it “is credible, is persuasive, and refers to specific facts” sufficient to demonstrate that asylum may be warranted. Id. § 1158(b)(1)(B)(ii). A ten percent chance of harm is sufficient to establish a “well-founded fear.” Cardoza-Fonseca, 480 U.S. at 440; see, e.g., Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018).
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89. There are three principal ways in which individuals may seek asylum: a. First, where a noncitizen is not in any kind of removal proceedings, her
application is “affirmative.” See 8 C.F.R. § 208.2(a). She files an application with Defendant USCIS and has an interview with an asylum officer. Id. §§ 208.3, 208.4, 208.9.
b. Second, a noncitizen in ordinary removal proceedings under INA § 240, 8 U.S.C. § 1229a, may file a “defensive” application in order to prevent her removal, 8 C.F.R. § 208.2(b).
c. Third, a noncitizen in “expedited removal” proceedings under INA § 235, 8 U.S.C. § 1225—which apply to certain noncitizens who present at ports of entry or are apprehended after entering without inspection, see id. § 1225(b)(1)2—also may seek asylum to prevent her removal. If the individual indicates an intention to apply for asylum or a fear of persecution during the expedited removal process, she is entitled to a “credible fear” screening interview with an asylum officer. Id. § 1225(b)(1)(B). If the officer finds she has a “credible fear of persecution,” defined as a “significant possibility” that the alien could establish eligibility for asylum, she is then placed in ordinary removal proceedings under INA § 240 and permitted to apply for asylum as part of that process. Id.; 8 C.F.R. § 208.30(f). If the officer finds that the individual does not have a credible fear, the officer must provide her with a written notice of decision for review by an immigration judge. 8 C.F.R. § 208.30(g).
90. Withholding of removal separately offers protection to individuals facing persecution on the same five grounds for which asylum is available (race, religion, nationality, membership in a particular social group, or political opinion), 8 U.S.C. § 1231(b)(3)(A), and the
2 See also Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004) (expedited removal applies to those who entered without inspection and are apprehended within 14 days of entry and 100 miles of the border).
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domestic implementing legislation for the CAT offers individuals protection against return to countries where they are likely to be tortured,3 see Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242(b) (requiring implementation of CAT); 8 C.F.R. § 208.18.
91. Noncitizens may obtain withholding of removal and CAT relief in different ways, each of which is defensive:
a. Noncitizens can raise withholding of removal and CAT relief as defenses to ordinary removal proceedings. See 8 U.S.C. § 1231(b)(3). The applicant must demonstrate that it “is more likely than not that he would be subject to persecution on one of the [protected] grounds.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). Similarly, to obtain CAT relief, an applicant must demonstrate that it is “more likely than not that he or she would be would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
b. Alternatively, Defendant DHS has provided by regulation that aliens who are ordered removed because they committed aggravated felonies, 8 U.S.C. § 1228, or whose removals are reinstated because they entered unlawfully after a valid removal order, 8 U.S.C. § 1231, may avoid removal by showing a “reasonable fear” of persecution. 8 C.F.R. §§ 208.31(b), 1280.31(b). To establish such a “reasonable fear” an individual must establish “a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” Id. §§ 208.31(c),
3 The Government has recognized that “[f]ewer than 1,000 aliens per year, of any nationality, receive CAT protection.” 83 Fed. Reg. 55,947.
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1208.31(c).4 Individuals who show such a reasonable fear are referred to an immigration judge for full consideration of withholding of removal. Id. §§ 208.31(e), 1208.31(e).5
92. There is no “reasonable fear” screening process for noncitizens subject to
expedited removal. Such noncitizens only need to show a “credible fear” of persecution or
torture to advance to proceedings under INA § 240, in which they may raise claims for asylum,
withholding of removal, or CAT relief.
93. The INA imposes eligibility restrictions on asylum that it does not impose on
withholding of removal and CAT relief. See 8 U.S.C. § 1158(b)(1)(A).
94. Congress made a number of benefits available to those who obtain asylum,
including a path to U.S. citizenship, id. § 1427(a), and status adjustment from asylee to legal
permanent resident, id. § 1159(b).
95. The spouse and children of a person eligible for asylum likewise are derivatively
eligible for asylum. Id. § 1158(b)(3)(A).
96. Asylees also are exempt from removal, id. § 1158(c)(1)(A), may obtain
employment authorization in the United States, id. § 1158(c)(1)(B), may travel abroad without
the Government’s advance consent, id. § 1158(c)(1)(C), and may obtain public benefits, id.
§ 1613(b)(1).
4 “‘[T]he standard for showing entitlement to these forms of protection (a probability of persecution or torture)’” thus “‘is significantly higher than the standard for asylum (a wellfounded fear of persecution).’” 83 Fed. Reg. 55,942 (quoting Regulations Concerning the CAT, 64 Fed. Reg. 8,485); see also id. (“‘This . . . screening process is modeled on the credible-fear screening process, but requires the alien to meet a higher screening standard.’”). 5 If an asylum officer concludes that the individual does not present a reasonable fear and requests further review, an immigration judge performs a brief de novo review of the asylum officer’s decision. 8 C.F.R. §§ 208.31(g), 1208.31(g); Immigration Court Practice Manual, ch. 7.4(e)(iv)(E). If the immigration judge concurs with the asylum officer, the case is returned to DHS for the individual’s removal without further administrative appeal. 8 C.F.R. §§ 208.31(g)(1), 1208.31(g)(1). If the immigration judge disagrees, an application for withholding of removal and CAT relief is permitted. Id. §§ 208.31(g)(2), 1208.31(g)(2).
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97. These status adjustment and family eligibility benefits are not available in connection with other forms of relief for those fleeing persecution and violence, such as withholding of removal and CAT protection.
Individuals and Families Seeking Asylum at the Southern Border 98. Those who arrive at the southern border seeking asylum in the United States often are fleeing some of the most dangerous countries in the world. Many hail from El Salvador, Guatemala, and Honduras, often referred to collectively as the “Northern Triangle.” 99. According to the Government’s own findings in the Rule, 60% of the alien population crossing the border, and an “overwhelming majority” of those claiming fear of return to their home countries, are non-Mexican. 84 Fed. Reg. 33,838. 100. In FY2000, public statistics indicate that 98% of individuals apprehended at the southern border were Mexican. By FY2018, 52% of apprehensions were of individuals from the Northern Triangle.6 101. Between January 2018 and July 15, 2019, 60% of CAIR Coalition’s intakes of adults were for individuals from the Northern Triangle. Fewer than 15% of individuals were from Mexico. Almost 94% of the children for which CAIR Coalition conducted intakes during the same time period were from the Northern Triangle. 102. According to a recent report from the United Nations High Commissioner for Refugees, the Northern Triangle countries are experiencing epidemic levels of violence at the
6 Jill H. Wilson, R45489 Recent Migration to the United States from Central America: Frequently Asked Questions, Cong. Res. Serv. 2 (Jan. 29, 2019), https://crsreports.congress.gov/product/pdf/R/R45489.
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hands of “well-connected, armed, and dangerous criminal groups in the region,” which have utterly “surpassed the governments’ capacity to respond.”7
103. In particular, violence against women by armed groups has escalated dramatically throughout Central America in recent years, and those governments have failed to provide effective protection.8
104. As of 2016, El Salvador, Guatemala, and Honduras ranked first, third, and seventh, respectively, for rates of female homicides.9
105. In some instances, government actors have been charged with participating in such violence. For example, following a March 2017 protest against sexual violence and physical abuse at a Guatemalan government-run children’s shelter, 56 girls were locked inside the shelter and 41 died in a fire, for which state officials were charged.10
106. Violence against children likewise is prevalent in the region. As one example, Honduras is a particularly dangerous place for young people: In 2017, it was listed as the single most violent country for children under nineteen years old, with a homicide rate of more than thirty children per 100,000 inhabitants (about ten times the global average).11
7 See Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico at 58, UNHCR (Oct. 2015), https://goo.gl/6hVsam; see also Neither Security nor Justice: Sexual and Gender-based Violence and Gang Violence in El Salvador, Honduras, & Guatemala, KIND (2017). 8 Anjali Fleury, Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women, United Nations University (May 4, 2016), https://goo.gl/f8dspH. 9 Women on the Run at 2, supra. 10 Fatema Z. Sumar, Violence Against Women in Central America is a Powerful Factor in the Migration Crisis (Nov. 8, 2018); Andrew V. Pestano, Guatemala charges officials over shelter fire that killed 41 girls, UPI (Apr. 5, 2017), https://goo.gl/Zg1D86. 11 Parker Asmann, Ten Countries with Highest Child Homicide Rates All in LatAM: Report, InSight Crime (June 6, 2017), https://goo.gl/UC1Ea5.
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107. In particular, two rival gangs (MS-13 and Mara 18) fight for control over territory and recruit in urban and rural areas of Honduras.12 These gangs often target children as their weapons of war, because national anti-gang legislation carries less severe penalties for minors involved in gang activity than for adults.13 These young recruits are often forced to collect “taxes” or sell drugs, and those who refuse are often killed,14 while law enforcement officers frequently regard them as potential criminals or gang members.15
108. Corruption among Honduran law enforcement also has been widely reported; some police officers themselves work with the gangs, compounding the dangers to citizens.16
109. Reports of violence against lesbian, gay, bisexual, and transgender (“LGBT”) individuals in the Northern Triangle countries also are overwhelming, and frequently ignored by state governments.17 The United Nations High Commissioner for Refugees found in the course of a study that 88% of LGBT asylum seekers and refugees from the Northern Triangle reported having suffered sexual and gender-based violence in their home countries.18
12 See, generally, Gangs in Honduras, InSight Crime (Apr. 21, 2016), https://goo.gl/oL6nFn. 13 Honduras, Country Reports on Human Rights Practices for 2016 at 28, U.S. Dep’t of State (2016), https://goo.gl/7MpCCM. 14 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on his Mission to Honduras at 6, U.N. Human Rights Council, A/HRC/35/23/Add.1 (June 2017). 15 Id. at 14. 16 Sarah Chayes, When Corruption is the Operating System: The Case of Honduras at 29, Carnegie Endowment for International Peace (May 2017), https://goo.gl/nUFicM (“Of greater concern are the reports we heard in interviews of collusion between police and the youth gangs whose depredations it is their job to curb.”). 17 See Women on the Run at 27-30, supra. 18 No Safe Place, Amnesty Int’l at 7 (Nov. 2017), https://goo.gl/dNTUNm.
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110. According to the Honduran non-governmental organization Cattrachas, 264 LGBT individuals were killed in that country between 2009 and 2017; in most cases, those responsible were never brought to justice.19
111. According to Amnesty International, the “high levels of impunity and corruption in [Northern Triangle] countries mean authorities are unlikely to punish those responsible for crimes against LGBT people, particularly when security forces are responsible for the attacks.”20
112. In sum, migrants fleeing to the United States, and particularly from the Northern Triangle countries, often are running from life-or-death situations, leaving behind all they have to make a dangerous journey.
113. Many of these individuals have legitimate claims for asylum in the United States. According to data published by the United Nations High Commissioner for Refugees, in Fiscal Year 2015 82% of the women from El Salvador, Guatemala, Honduras, and Mexico who were subject to credible fear screenings by asylum officers in the United States were found to have a significant possibility of establishing eligibility for asylum or protection under the CAT.21
114. In a similar 2014 report, the United Nations High Commissioner for Refugees found that 58% of unaccompanied children interviewed from the Northern Triangle countries and Mexico were “forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.”22
19 No Safe Place: LGBTI Salvadorans, Guatemalans and Hondurans Seeking Asylum in Mexico (Nov. 27, 2017), https://goo.gl/79cG3H. 20 Id. 21 See Women on the Run n.2, UNHCR, https://goo.gl/6hVsam. 22 Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection at 6, UNHCR (2014), https://goo.gl/p3TGrW.
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Safety Risks and Difficulties in Obtaining Asylum in Mexico 115. The Rule posits that “[i]nstead of availing themselves of [Mexican asylum] protections, many aliens transiting through Central America and Mexico decide not to seek protection, likely based upon a preference for residing in the United States.” 116. That supposition ignores the reality that many asylum seekers are at risk of kidnapping, disappearance, trafficking, and sexual assault, among other harms, while in transit through third countries. That many choose to endure that dangerous journey through third countries for an opportunity to seek asylum in the United States, without stopping to press their claims in the intervening countries, is a telling indicator of the extreme risks of persecution and violence faced by asylum seekers both at home and in transit. 117. In Mexico, “refugees and migrants face acute risks of kidnapping, disappearance, sexual assault, trafficking, and other grave harms.”23 They are “targeted due to their inherent vulnerabilities as refugees but also on account of their race, nationality, gender, sexual orientation, gender identity, and other reasons.”24 118. Migrant females are particularly vulnerable. Data published by Amnesty International estimates that 60% of women and girls are raped while migrating across Mexico, and the estimates of some service providers are higher.25 119. “Some refugees” transiting through Mexico “have been trafficked into forced labor, while women and girls have been trafficked to Mexico’s southern border where they have been exploited in bars and night clubs that cater to police, military, and other forces.”26
23 AR703 [HRF, Fact Sheet, Is Mexico Safe for Refugees and Asylum Seekers? (Nov. 2018)]. 24 Id. 25 Alyson L. Dimmitt Gnam, Mexico’s Missed Opportunities to Protect Irregular Women Transmigrants: Applying a Gender Lens to Migration Law Reform, 22 Pac. Rim L. & Pol. J. 713, 722 (2013); see also Invisible Victims: Migrants on the Move in Mexico at 5, Amnesty International (2010), https://goo.gl/Bvs1RM.
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120. Rates of violence in Mexico also have been increasing, with more than 23,000 murder investigations opened in 2017 (the highest count on record).27
121. Upon arrival at the southern border of the United States, entry is often delayed
for many asylum-seekers. Defendant CBP engages in a well-documented practice of “metering,”
in which “officers only allow the asylum-seeker to cross the [international] line if space is available” in the port of entry.28 “When the ports of entry are full, CBP guidance states that
officers should inform individuals that the port is currently at capacity and that they will be permitted to enter once there is sufficient space and resources to process them.”29
122. Advocates have documented substantial delay times and long lines at designated
ports of entry such as Nogales, Arizona; El Paso and McAllen, Texas; and San Diego, California.30 Families may be camped out in heat exceeding 100 degrees.31
123. Left stranded while waiting for backlogs at ports of entry to clear, asylum
seekers are particularly vulnerable to kidnapping, extortion, and other violence by organized crime elements in northern Mexico.32 A study issued by HRF reported that local lawyers and
26 AR703. 27 Mexico murders hit record high, dealing blow to president, Reuters (Dec. 23, 2017), https://goo.gl/524yFF. 28 Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy, OIG-18-84 at 6, U.S. Office of Inspector Gen. (Sept. 27, 2018). 29 Id. 30 Adam Isacson et al., “Come Back Later”: Challenges for Asylum Seekers Waiting at Ports of Entry at 2-3, Washington Office on Latin Am. (Aug. 2018), https://goo.gl/euGQyY. 31 Id. at 3. 32 Isaacson, supra, at 7; see also Situation of Impunity and Violence in Mexico’s Northern Border Region, Washington Office on Latin America, Latin American Working Group, and Kino Border Initiative, March 2017, https://goo.gl/pYSySP (finding that “[v]iolence and crimes against migrants in Mexico’s northern border states have long been documented to include cases of disappearances, kidnappings, rape, trafficking, extortion, executions, and sexual and labor exploitation by state and non-state actors,” and that CBP’s refusal to permit the entry of migrants at ports of entry exposes individuals, families, and children to “organized crime and smugglers as
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shelter staff found that “most—if not all—migrants they encounter who had been turned away from the [Hidalgo] port of entry have been kidnapped and held for ransom” by cartel members waiting outside the port in Mexico.33
124. Even if seeking asylum in Mexico seemed desirable against this backdrop of safety risks, some migrants report that asylum claims have been more difficult to prove to Mexican authorities, that they did not have enough information about protections in Mexico, or that conditions in Mexico are sufficiently dangerous that seeking asylum there would not improve their safety.34
125. Mexico’s refugee agency, La Comision Mexicana de Ayuda a Refugiados (“COMAR”), lacks the resources and funding to adequately process asylum applications. This year, Mexico is on track to receive double the number of asylum applications from 2018—an increase of 30,000 applications.35
126. Despite this massive influx of applications, in 2019 COMAR received its lowest funding in seven years, with a budget of only $1.2 million. The head of COMAR recently explained that the agency is “simply trying to survive.”36
127. Asylum seekers have resorted to bribes to receive interviews with members of COMAR’s staff, which has around 50 members nationwide. Lines at COMAR offices have
well as corrupt state authorities unable to protect them or investigate the crimes they have suffered”). 33 Crossing the Line, supra, at 16. 34 Fleury, Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women, supra. 35 Lizbeth Diaz & Delphine Schrank, Mexico’s refugee agency turns to U.N. amid asylum surge, funding cuts, Reuters (May 21, 2019), https://www.reuters.com/article/us-usa-immigrationmexico/mexicos-refugee-agency-turns-to-u-n-amid-asylum-surge-funding-cutsidUSKCN1SS06N. 36 Id.
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stretched for multiple blocks.37 As of today, COMAR’s website lists only four offices, none of which are on the southern border with the U.S.38
128. Asylum seekers in Mexico have only 30 days to apply for asylum. Human
rights organizations report that many refugees are barred from asylum because of this time limitation.39
129. The time bar is particularly stringent given how little information migrants have
about asylum in Mexico. In one survey, three out of every four migrants who passed through a Mexican immigration detention center were not informed of their right to seek asylum.40
130. Asylum seekers apprehended by Mexican immigration officers may only pursue asylum from detention.41 Mexican detention centers suffer from overcrowding and rampant abuse. An 80-person detention center once held over 400 people.42 In one study, 94% of migrants in detention centers suffered abuse while detained.43
131. Mexican immigration officials reportedly threaten to detain migrants in
retaliation for applying for asylum. The threat of detention deters asylum seekers from pursuing their claims.44
37 Id. 38 Where is COMAR?, COMAR, https://www.gob.mx/comar/articulos/donde-esta-comar?idiom =es (last visited July 16, 2019). 39 HRF, Dangerous Territory: Mexico Still Not Safe for Refugees 7 (July 2017), https://www.humanrightsfirst.org/sites/default/files/HRF-Mexico-Asylum-System-rep.pdf. 40 Amnesty Int’l, Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central Americans Seeking Asylum 5 (Jan 2018), https://www.amnestyusa.org/wpcontent/uploads/2018/01/AMR4176022018-ENGLISH-05.pdf. 41 HRF, supra, at 8. 42 James Fredrick, Mexico Is Overwhelmed By Asylum Claims As It Ramps Up Immigration Enforcement, N.P.R. (June 14, 2019), https://www.npr.org/2019/06/14/732485182/mexico-isoverwhelmed-by-asylum-claims-as-it-ramps-up-immigration-enforcement. 43 HRF, supra, at 8. 44 Id.
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132. Even if migrants are able to apply for asylum in Mexico, they face difficulties
receiving it. Nonprofit organizations and attorneys in Mexico report that asylum adjudications are often unfair, inconsistent, and contrary to law.45
133. Asylum seekers often navigate this complicated process without legal
representation. When they are detained, asylum seekers are at times prevented from conferring with counsel.46
134. By Mexican law, COMAR must adjudicate asylum cases within 45 business
days. But some migrants have been waiting for over six months for a ruling.47 And with tens of
thousands of asylum requests reportedly pending, COMAR has been forced to turn to other
entities, including the United Nations, for assistance with additional funding and staffing.48
135. Asylum seekers “cannot work, go to school, or access certain features of
Mexico’s public health system” while their asylum claims are pending.49
136. Refugee organization statistics examining the “low rate of success on asylum
applications in Mexico” indicate that in 2017, only 11% of asylum applicants from the Northern Triangle were granted immigration protection (either asylum or complementary protection).50
45 Id. at 7. 46 Id. 47 Juan Montes, Upsurge of Asylum Requests Poses Challenge for Mexico, Wall Street Journal (June 13, 2019), https://www.wsj.com/articles/upsurge-of-asylum-requests-poses-challenge-formexico-11560418201. 48 Rafael Carranza, Mexico’s tiny refugee office seeks help to process record number of asylumseekers, Arizona Republic (June 24, 2019), https://www.azcentral.com/story/news/ politics/immigration/2019/06/24/united-nations-central-america-asylum-seekers-mexicorefugees-migrants/1549975001/; see also Protection and Reintegration: Mexico Reforms Migration Agenda in an Increasingly Complex Era, Migration Policy Institute, Fig. 2 (Mar. 7, 2019), https://www.migrationpolicy.org/article/protection-and-reintegration-mexico-reformsmigration-agenda. 49 Patrick Timmons, Mexico facing two-year backlog as asylum requests soar, United Press Int’l (Aug. 31, 2018), https://www.upi.com/Top_News/World-News/2018/08/31/Mexico-facing-twoyear-backlog-as-asylum-requests-soar/2031535567041/.
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137. Other asylum seekers in Mexico are “denied protection by COMAR officers who claim that refugees targeted by groups with national reach can safely relocate within their communities.”51
138. And according to evidence in the administrative record, Mexico “lack[s] an effective appeal process to correct wrongful denials of protection.”52
Safety Risks and Difficulties in Obtaining Asylum in Guatemala 139. The Rule also would require migrants fleeing Honduras and El Salvador by land to seek asylum in Guatemala (if not in Mexico) before seeking such protection in the United States. In Guatemala, however, asylum procedures are largely untested and thus far have proven inadequate to meet the needs of asylum seekers. 140. While crossing Guatemala, migrants are susceptible to the very violence and criminal activity that Guatemalans themselves are fleeing en masse.53 Migrants traversing Guatemala “constitute a particularly vulnerable social group subject to grave risks at the hands of gangs and other criminal elements.”54 Moreover, the Guatemalan government cannot “provide even a modicum of services or security for” such asylum seekers.55
50 Women’s Refugee Comm., Mexico Does Not Qualify as a Safe Third Country 3, https://www.womensrefugeecommission.org/images/zdocs/SafeThirdCountries.pdf (last visited July 16, 2019). 51 AR703. 52 Id. 53 U.S. State Dep’t, Guatemala 2018 Human Rights Report, https://www.state.gov/wpcontent/uploads/2019/03/GUATEMALA-2018.pdf. 54 Letter from Eric Schwartz, President, Refugees International to Marik String, Acting Legal Adviser, Office of the Legal Adviser, U.S. State Dep’t 2 (June 29, 2019), https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/5d1a58cf946d10000128348 1/1562007760092/Letter+to+Acting+Legal+Adviser+String+from+Eric+Schwartz.pdf. 55 Id.
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141. Guatemala also lacks a robust asylum system. Guatemala’s asylum agency has “fewer than 10 employees.”56 Its “migration and police authorities lack[ ] adequate training concerning the rules for establishing refugee status.”57 And the State Department has recognized that Guatemala’s “identification and referral mechanisms for potential asylum seekers [a]re inadequate.”58
142. Consistent with those shortcomings, only approximately 260 refugees sought asylum in Guatemala in 2018,59 compared with the tens of thousands of Guatemalans who have fled the country.60
143. The Rule makes no conclusions as to the adequacy of the Guatemalan asylum system beyond a note that the country is a party “to both the Refugee Convention and the Refugee Protocol.” 84 Fed. Reg. at 33,839.
The Government’s Escalating Responses to Southern Border Migration 144. Notwithstanding the dire conditions in many Central American countries, the rate of illegal border crossings is substantially down from its peak. 145. The number of migrants arrested at the southern border for attempting to cross unlawfully is at its lowest level since 1971: For Fiscal Year 2017, Defendant CBP reported
56 Zolan Kanno-Youngs, Asylum Deal With Guatemala Is Contentious, Despite U.S. Assurances, N.Y. Times (Aug. 1, 2019) 57 Guatemala 2018 Human Rights Report, supra, at 13. 58 Id. 59 Steve Holland & Sofia Menchu, Guatemala agrees to new migration measures to avoid Trump sanctions threat, Reuters (July 26, 2019), https://www.reuters.com/article/us-usa-immigrationguatemala/guatemala-agrees-to-new-migration-measures-to-avoid-trump-sanctions-threatidUSKCN1UL2KR?il=0. 60 Kanno-Youngs, supra.
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310,531 such arrests, down from 1,676,438 in 2000.61 The 2017 figures represented a 25% decrease since 2016 alone.62
146. The Rule itself similarly recognizes that the “overall number of apprehensions of illegal aliens was relatively higher two decades ago than it is today (around 1.6 million in 2000).”
147. Nonetheless, Defendants have targeted southern border asylum seekers in recent months with exceptionally strict policies and unlawful regulations.
148. In April 2018, the Administration announced a new “Zero Tolerance” policy on immigration, pursuant to which the Government began separating detained migrant parents and their children.63
149. Following immense public opposition and political pressure, the “Zero Tolerance” family separation policy was withdrawn by Executive Order for an indefinite period on June 20, 2018.64
150. On June 26, 2018, the U.S. District Court for the Southern District of California issued a preliminary injunction enjoining the Government from unlawfully detaining migrant
61 John Burnett, Arrests for Illegal Border Crossings Hit 46-Year Low, NPR (Dec. 5, 2017) https://goo.gl/xqqjTo; CBP Border Security Report, Fiscal Year 2017, CBP (Dec. 5, 2017), https://goo.gl/k2wmia. 62 Id. 63 Attorney Gen. Announces Zero-Tolerance Policy for Criminal Illegal Entry, DOJ (Apr. 6, 2018), https://goo.gl/sdsvQP; see also Attorney Gen. Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Admin., DOJ (May 7, 2018), https://goo.gl/ihRX79 (“If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”). 64 Exec. Order No. 13,841, Affording Congress an Opportunity to Address Family Separation, 83 Fed. Reg. 29,435 (June 25, 2018).
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parents without and apart from their children, and ordered the Government to reunite separated families within thirty days, absent a determination of parental unfitness or danger to the child.65
151. On November 15, 2018, following additional legal challenges, the Government
entered a class Settlement Agreement, approved by the U.S. District Court for the Southern
District of California, requiring Defendants to, inter alia, reconsider the asylum claims of classes of migrant parents and children who were unlawfully separated.66
152. In late 2018, among other statements, President Trump tweeted that individuals
would “have to apply for asylum in Mexico first, and if they fail to do that, the U.S. will turn them away.”67 On October 31, 2018, the President tweeted a video that contained inflammatory
footage depicting an immigrant convicted of murdering police officers followed by a migrant “caravan” breaking past a wall.68
153. On November 9, 2018, the Acting Attorney General and Secretary of Homeland
Security promulgated a new asylum policy imposing a “new mandatory bar on eligibility for
asylum” for “aliens who are subject to a presidential proclamation suspending or imposing
limitations on their entry into the United States pursuant to § 212(f) of the INA, 8 U.S.C.
§ 1182(f), or § 215(a)(1) of the INA, 8 U.S.C. § 1185(a)(1), and who enter the United States in
contravention of such a proclamation after the effective date of this rule.” 83 Fed. Reg. 55,939.
65 Ms. L v. U.S. Immigration & Customs Enforcement (“ICE”), 310 F. Supp. 2d 1133, 1149 (S.D. Cal. 2018). 66 Id.; Dkt. 321, Case No. 18-cv-0428 DMS (MDD) (S.D. Cal.) (Order Certifying Settlement Class and Granting Final Approval of Class Action Settlement) (Nov. 15, 2018); id. Dkt. 220-1 (Plan to address the asylum claims of class-member parents and children who are physically present in the United States) (Sept. 12, 2018). 67 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 21, 2018, 12:11 PM EDT), https://goo.gl/6Hx5Eb. 68 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 31, 2018, 1:18 PM EDT), https://goo.gl/cH9MD7. The video was denounced by numerous Republican and other elected officials.
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154. On November 9, 2018, the day after that policy was first announced, President Trump issued a Proclamation pursuant to 8 U.S.C. §§ 1182(f), 1185(a). The Proclamation immediately suspended “[t]he entry of any alien into the United States across the international boundary between the United States and Mexico,” applicable to aliens who enter the country after the date of the Proclamation and outside designated ports of entry. Proc. §§ 1, 2(a)-(b).
155. All noncitizens who entered the United States without inspection at the southern border were thus rendered immediately ineligible for asylum.
156. That rule was promptly subject to challenge in several of federal courts. On November 19, 2018, in a case brought by the American Civil Liberties Union (“ACLU”), the U.S. District Court for the Northern District of California issued a temporary restraining order enjoining the implementation of that policy nationwide. East Bay Sanctuary Covenant, et al. v. Trump, et al., Case No. 18-cv-06810, 2018 WL 6053140, at *21 (N.D. Cal. Nov. 19, 2018). The court concluded that the plaintiffs were likely to succeed on the merits of their claims, see id. at *10-17, that the organizational plaintiffs “made a clear showing that it is likely that they and their clients will suffer irreparable harm absent a TRO,” id. at *19, and that the public interest and balance of equities favor an injunction against the Rule, id. at *19-20.
157. On December 7, 2018, the Ninth Circuit issued its opinion denying the Government’s request for a stay of the district court’s temporary restraining order pending appeal. East Bay, Case No. 18-17274, 2018 WL 6428204 (9th Cir. Dec. 7, 2018).
158. On December 11, 2018, the Government filed an emergency application to the United States Supreme Court for a stay of the district court’s injunction. Application for Stay Pending Appeal, Trump v. East Bay Sanctuary Covenant, No. 18A615 (U.S. Dec. 11, 2018). The Supreme Court denied the request on December 21, 2018.
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159. On December 19, 2018, U.S. District Court for the Northern District of California issued a preliminary injunction as to the same policy. Litigation in the district court is stayed pending the Ninth Circuit’s resolution of the Government’s interlocutory appeal of its temporary restraining order and subsequent preliminary injunction.
160. Two related complaints were also filed in this Court. The first, O.A., et al. v. Trump, et al., No. 1:18-cv-02718 (D.D.C. Nov. 20, 2018), was brought on behalf of a set of individual plaintiffs who were subject to that policy. The second, S.M.S.R., et al. v. Trump, et al., No. 1:18-cv-02838 (D.D.C. Dec. 3, 2018), was brought on behalf of CAIR Coalition, RAICES, and individual plaintiffs subject to the policy. The O.A. and S.M.S.R. plaintiffs moved for temporary restraining orders and preliminary injunctions. The two cases were consolidated, and the parties moved for class certification and summary judgment on behalf of a nationwide class consisting of all noncitizen asylum-seekers who have entered or will enter the United States through the southern border but outside ports of entry after November 9, 2018.
161. On August 2, 2019, the Court granted summary judgment to the plaintiffs, vacated the rule in its entirety, and certified a plaintiff class consisting of all asylum-seekers subject to the rule.
The Rule 162. On July 16, 2019, Defendants issued the Rule, entitled “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829, without the thirty days’ advance notice and opportunity for public comment required under the APA, 5 U.S.C. § 553(b)-(d). 163. The Rule creates a new exception to the INA’s presumption of asylum eligibility for those present or arriving in the United States after transiting through third countries. Under the Rule’s amendments to 8 C.F.R. §§ 208.13, 1208.13, an individual who “enters, attempts to
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enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside of the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum.” 84 Fed. Reg. 33,843. The Rule applies unless an affected individual can show that she falls into one of three narrow exceptions: (1) she applied for protection from persecution or torture in at least one third country and received a final judgment of denial; she satisfies the definition of a “victim of a severe form of trafficking in persons” under 8 C.F.R. § 214.11; or the only third countries through which she transited to the United States were, at the time, not parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”). Id.
164. The Rule’s amendments to 8 C.F.R. § 208.30(e)(5)(ii) confirm that individuals subject to this revised policy will face a higher burden to avoid removal: “If the alien is found to be an alien described in § 208.13(c), then the asylum officer shall enter a negative credible fear determination with respect to the alien’s intention to apply for asylum,” and proceed to place the individual into full removal proceedings under Section 240 of the INA for consideration of her claims for withholding of removal under Section 241(b)(3) of the INA or for protection under the CAT. 84 Fed. Reg. 33,843-33,844.
165. Either alternative form of relief (withholding of removal or protection pursuant to the CAT) requires the individual to establish a more burdensome “reasonable fear of persecution or torture,” rather than a credible fear, subject to limited review under the same “reasonable fear” standard by an immigration judge. 84 Fed. Reg. 33,843-33,844 (amending 8 C.F.R. § 208.30(e)(5)(ii)).
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166. A set of Guidelines Regarding New Regulations Governing Asylum and Protection Claims, issued on July 15, 2019 by Defendant McHenry and sent to “[a]ll of EOIR,” summarizes the consequences of the Rule: “Aliens determined to be ineligible for asylum will still be screened, but in a manner that reflects that their only potentially viable claims would be for statutory withholding of removal or protection under the [CAT]. After determining the alien’s ineligibility for asylum under the credible-fear standard, an asylum officer will apply the reasonable-fear standard to assess whether further proceedings on a statutory withholding or CAT protection claim are warranted. If the asylum officer determines that the alien has not established a reasonable fear, the alien then can seek review of that decision from an immigration judge and will be subject to removal only if the immigration judge agrees with the negative reasonable-fear finding. Conversely, if either the asylum officer or the immigration judge determines that the alien clears the reasonable-fear threshold, the alien will be placed in section 240 proceedings, just like aliens who receive a positive credible-fear determination for asylum.”69
167. The rule does not provide for a categorical exemption for unaccompanied alien children (“UACs”), even though UACs are exempt from the safe third country bar. UACs who transit through a country en route to the United States will therefore be barred from seeking asylum unless they seek and are denied asylum in a third country first. 84 Fed. Reg. at 33,839.
168. The Rule’s purpose statement asserts that the Rule is intended to “more efficiently identify[] aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture. Aliens who transited through another country where protection was available, and yet did not seek
69 Guidelines Regarding New Regulations Governing Asylum and Protection Claims, EOIR (July 15, 2019), https://www.justice.gov/eoir/file/1183026/download (last visited July 16, 2019).
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protection, may fall within that category.” 84 Fed. Reg. 33,831. It claims that the Rule will “more efficiently identify[ ] aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture,” and that “[a]liens who transited through another country where protection was available, and yet did not seek protection, may fall within that category.” Id.
169. The Rule invokes two exceptions—the “good cause exception” and the “foreign affairs exception”—as a basis for dispensing with notice-and-comment and a 30-day delay in the effective date under 5 U.S.C. § 553(d). It states that there is good cause to forgo notice and comment because a delay in implementation might encourage a surge in migration across the southern border. It states that the rule “directly implicates the foreign policy and national security interest of the United States” because it involves “[t]he flow of aliens across the southern border, unlawfully or without appropriate travel documents.” 84 Feg. Reg. at 33,841.
170. Written or electronic comments regarding the Rule must be submitted on or before August 15, 2019. 84 Fed. Reg. 33,830.
Harms to Plaintiffs 171. Absent declaratory and injunctive relief against the Rule, each of the Plaintiffs will be severely and irreparably harmed. 172. Under the Rule, J.M.M., D.L.R., Z.B.M., Y.G.C., M.Y.R.B., K.M.V.M., W.M.R.O., C.C.R.O., and N.G.R.L. (the “Individual Plaintiffs”) are barred from seeking asylum in the United States because they entered the country through the southern border on or after July 16, 2019 after having transiting through at least one third country in which they did not first apply for asylum.
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173. As a result of the Rule, Individual Plaintiffs face elevated risks of removal to countries in which they face severe threats of persecution and violence. The Rule also deprives them of the other benefits of asylum, such as derivative eligibility for family members, work authorization, and a path to citizenship, that are not available in connection with other forms of protection from removal.
174. Plaintiffs CAIR Coalition, RAICES, and HRF (the “Organizational Plaintiffs”) will also be severely and irreparably harmed through diversion of their human and financial resources and injury to their abilities to serve their client populations consistent with their organizational missions.
175. The Organizational Plaintiffs are 501(c)(3) nonprofit organizations that provide assistance to asylum seekers in the United States, including individuals who crossed the southern border without applying for asylum in third countries.
176. Plaintiff CAIR Coalition is dedicated to providing legal services to migrant men, women, and children who are detained by ICE or the Office of Refugee Resettlement (“ORR”) in Virginia and Maryland. CAIR Coalition assists clients with applications for asylum, preparing for credible fear interviews, and adversarial proceedings in immigration courts. CAIR Coalition also trains and supervises legal professionals to provide similar assistance. Asylum applications are a critical component of CAIR Coalition’s organizational mission.
177. Asylum applications are a critical component of CAIR Coalition’s organizational mission. Each year, CAIR Coalition serves hundreds of clients seeking asylum who entered the United States at the southern border.
178. The Rule, if not enjoined, will irreparably frustrate CAIR Coalition’s mission to serve as many migrants lawfully seeking asylum as possible. Because Defendant DHS will
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summarily deport many asylum seekers before they reach the Washington, DC metropolitan area, CAIR Coalition will face a drastic reduction in its client base.
179. The Rule also will substantially limit the overall number of clients CAIR Coalition can serve. CAIR Coalition must create more complicated new resources and procedures to assist clients with their claims, in turn reducing how many clients the organization can reach. The Rule puts CAIR Coalition in a difficult position: raise more funds to serve the same number of clients, or reduce the number of clients served to fit within its current budget.
180. For example, CAIR Coalition will be forced to divert significant staff resources to analyzing and interpreting the Rule, overhauling its client information database, and preparing new informational and advocacy materials.
181. CAIR Coalition also will need to develop new materials and procedures for jail visits specifically for asylum seekers subject to the Rule. CAIR Coalition usually provides one orientation for all detainees, regardless of how they entered the country. Under the Rule, however, CAIR Coalition must develop a separate orientation for affected asylum seekers to explain the different standard for their credible fear interview and the limited forms of relief available, double the number of staff to conduct two orientations, and spend more staff time on the longer, more complicated dual orientation.
182. Under the Rule, CAIR Coalition also will expend more resources to prepare each affected asylum seeker for his or her credible fear interview. During the approximately 1,500 intake sessions for detained adults that CAIR Coalition conducts each year, a CAIR Coalition staff member typically spends about five to ten minutes with each adult eligible for such interview preparing them for their credible fear interview.
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183. Under the Rule, affected asylum seekers effectively will need to meet the higher “reasonable fear” standard rather than the traditional “credible fear” standard to obtain relief. To prevail in a reasonable fear interview, an individual must show effectively at least a 51% chance—i.e., that they “more likely than not”—will be persecuted or tortured in their home country. In contrast, in a credible fear interview, an individual must show an approximately 10% chance—i.e., that they have a “well-founded fear”—of persecution or torture in their home country. It is much more difficult for migrants to receive a positive determination in a reasonable fear interview. During 2018, only 62% of reasonable fear interviews CAIR Coalition was involved with received positive determinations, compared to 87% for credible fear interviews.
184. As a result of the heightened “reasonable fear” standard, each preparation session for an affected asylum seeker will take roughly twice the amount of time, roughly ten to twenty minutes per client, whether to elicit and prepare more facts to satisfy the higher standard or related to follow-up interviews. The Rule thus would cut in half the number of clients CAIR Coalition can prepare during each jail visit. And with finite resources and permission to make jail visits only a few times per month, CAIR Coalition will be unable to compensate for this loss.
185. CAIR Coalition will expend more resources during credible fear interviews for affected adult asylum seekers, too. Prior to the Rule, CAIR Coalition had stopped sending staff and volunteers to credible fear interviews in person because the overwhelming majority of clients received positive results. Instead, CAIR Coalition generally would review the transcripts from interviews with negative determinations.
186. Because the Rule will increase the standard for the interviews, it will be necessary to send staff and volunteer attorneys to as many interviews as possible to increase the likelihood
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that each client will have a fair chance to present her case. If CAIR Coalition staff members are busy attending these interviews, they will be unable to assist as many clients in trial proceedings under INA § 240.
187. Given the increased burden of proof that will be required at interviews, CAIR Coalition also anticipates that it will not be able to staff interviews with legal assistants or law student volunteers, as it sometimes has in the past.
188. CAIR Coalition also will need to recreate its now-defunct volunteer program for attending credible fear interviews as a result of the higher standard. Because of the Rule, CAIR Coalition already has discussed hiring another dedicated attorney or legal assistant to recruit and train volunteer lawyers to attend credible fear interviews.
189. The increased need for volunteer lawyers has a ripple effect on the rest of CAIR Coalition’s programs. Attorneys volunteering to attend credible fear interviews will have less time—or perhaps no more time—available to volunteer in other cases. This reduced volunteer capacity reduces the organization’s overall capacity to represent as many clients as possible, especially in trial proceedings.
190. Reduced volunteer capacity also will divert resources from other CAIR Coalition initiatives, such as providing translations or conducting country conditions research.
191. The Rule also will force CAIR Coalition to spend more time and resources on each child client, because all child cases will be time- and resource-intensive trial cases. Because the Rule prevents affected asylum seekers, including children, from obtaining asylum, their cases bypass the normal Asylum Office process and move directly to trial at immigration court.
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192. CAIR Coalition’s staff members will have to prepare for trial rather than an interview at the Asylum Office. And staff members who work with detained children will have less time available to work on each case, as the detained docket moves much faster than the timeframe at the Asylum Office.
193. Under the Rule, CAIR Coalition will have to spend more time and resources on cases for young mothers and their children as well. Each year, CAIR Coalition serves about twenty to thirty mothers and their migrant children who live in shelters. CAIR Coalition anticipates that, under the new Rule, it will have to significantly increase the total time that must be spent on each family’s case, because the mothers will be ineligible for asylum and their children unable to be counted as derivatives within a single application for relief.
194. The Rule also will jeopardize CAIR Coalition’s already tight budget. CAIR Coalition depends on law firms for 12% of its annual budget; if the organization places fewer asylum cases with volunteers at law firms, it is likely to receive fewer of these much-needed donations.
195. In addition, some of CAIR Coalition’s funding is tied to the number of adult clients that it serves each year. At the Caroline County, Virginia detention center, for example, CAIR Coalition receives funding to serve a targeted number of detained adults in trial proceedings each year. Since January 1, 2018, CAIR Coalition conducted 4,477 intakes with children and adults that it encountered detained either in Virginia or Maryland. The increased time it takes CAIR Coalition to serve each asylum seeker correspondingly reduces the overall numbers of people served. As a result, it is uncertain whether CAIR Coalition will be able to comply with its existing funding conditions tied to numbers of trial representations.
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196. The Rule’s lack of notice and comment procedures also irreparably compromised CAIR Coalition’s ability to inform the Government of the substantial and irreparable harms— both to the organization and its clients—that the policy would create. Commenting on rules and regulations is an important part of CAIR Coalition’s mission to improve the lives of migrants in the Washington, D.C. area. Had CAIR Coalition been given the opportunity to comment on the Rule, it would have done so.
197. RAICES is a 501(c)(3) nonprofit organization headquartered in San Antonio, Texas.
198. Founded in 1986 as the Refugee Aid Project by community activists in South Texas, RAICES has grown to be the largest immigration legal services provider in Texas. RAICES is a 501(c)(3) nonprofit organization headquartered in San Antonio, Texas, with other offices in Austin, Corpus Christi, Dallas, Fort Worth, and Houston. RAICES’s mission is to promote justice by providing free and low-cost legal services to underserved migrant children, families, and refugees in Texas. In 2017, RAICES closed approximately 51,000 cases at no cost to the client.
199. Absent an injunction, the Rule will irreparably harm RAICES in multiple ways, including by frustrating RAICES’s mission to serve as many migrant clients as possible. RAICES will be unable to represent the same number of clients that it does currently, both because fewer clients will be eligible for relief and because RAICES will spend more resources on each individual case. The Rule also will force RAICES to divert scarce resources away from other important programs to compensate for the additional time, procedures, and staff required to continue serving clients under the policy.
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200. The Rule will fundamentally reduce the capacity and divert the resources of RAICES’s Family Detention Services program, which will need to devise entirely new intake procedures at each of the detention centers it serves. Currently, the intake process is relatively short. Under the Rule, however, RAICES staff will need to conduct more extensive and timeconsuming intake questioning of each client. In particular, RAICES would need to determine whether the client crossed the southern border after traveling through a third country, whether the client sought protection in that third country, whether a decision was made on that application prior to the client’s arrival in the United States, and whether he or she is likely to meet the higher legal standards for alternative forms of relief.
201. The Rule also will require Family Detention Services to create an entirely new process for assisting affected asylum seekers with their credible fear interviews. For example, Family Detention Services currently assists most detainees at the detention facility in Karnes, Texas with their credible fear interviews.
202. Pro bono attorneys and law students often attend these interviews telephonically so that staff can focus on difficult or emergency cases.
203. Under the Rule, however, Family Detention Services will be forced to create a more time- and resource-intensive dual-track system to prepare clients for interviews: one for clients who entered before the effective date of the Rule or who meet its exceptions, and another entirely new system for affected asylum seekers who entered after the Rule’s effective date and fall under its new asylum eligibility bar.
204. Under the Rule, the shift from credible to reasonable fear interviews will be a significant one for Family Detention Services. The reasonable fear standard is much more difficult to meet than the credible fear standard.
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205. The program’s staff will spend double or triple the time interviewing and preparing each client to meet the higher reasonable fear standard. Due to the higher stakes, more staff will need to attend interviews, rather than relying on volunteers.
206. For the pro bono attorneys that still could attend, Family Detention Services will need to create new training resources on legal arguments that were rarely necessary during previous credible fear interviews. And RAICES would be unable to rely on law students and non-lawyers to attend these interviews, drastically reducing the program’s volunteer base.
207. As a result of the Rule and the foregoing resource-shifting, Family Detention Services might not be able to provide any assistance at credible fear interviews for asylum seekers unaffected by the policy.
208. Family Detention Services also will struggle under the weight of increased appeals under the Rule. These appeals are time-consuming for staff, who must prepare the client to testify and research legal arguments for immigration court. Family Detention Services will need to narrow its case acceptance criteria as the volume of appeals increases, further undermining the program’s commitment to universal representation.
209. Nor will Family Detention Services be able to rely on pro bono attorneys to represent clients in immigration court; unlike with telephonic credible fear interviews, few pro bono attorneys are available to represent clients in person at immigration court, especially in rural Texas.
210. The Rule also creates new burdens for RAICES’s Children’s Program. Under the Trafficking Victims Protection Reauthorization Act (“TVPRA”), removal proceedings for unaccompanied minors applying for asylum occur at the Asylum Office in a non-adversarial context, rather than in immigration court, to protect these vulnerable children.
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211. Under the Rule, however, unaccompanied minors who fail to apply for asylum in a third country will no longer be eligible for asylum. An Immigration Judge will hear the case for withholding of removal and protection under CAT. What has been a non-adversarial process using minimal resources therefore will become a lengthy and costly process for the Children’s Program. Staff will have to prepare formal briefings and sophisticated legal arguments for an Immigration Judge, both of which are uncommon for Asylum Office proceedings.
212. The adversarial process in immigration court is also a traumatic one for the children. Under the Rule, Children’s Program staff will expend tremendous time and resources preparing children not only for the contents of their testimony and cross-examination by a DHS attorney, but also for the emotional toll that testimony would take.
213. The Rule will add new obstacles for RAICES’s Community Immigration Services program as well, which provides legal services and representation to detained adults and nondetained adults and families.
214. Under the Rule, Community Immigration Services will spend at least double the traditional time on each family’s applications. Because each individual will have to submit a separate application, rather than one application per family, it will take significantly more time and resources for Community Immigration Services lawyers to assist families with their applications than before the policy. RAICES anticipates that, under the Rule, Community Immigration Services would need to assist with at least twice the current number of applications.
215. Community Immigration Services staff also may have to shift roles into other RAICES programs. If fewer clients are released from detention under the higher reasonable fear standard, Community Immigration Services lawyers will have a decreased population to serve. Family Detention Services and the Children’s Program, conversely, will be understaffed due to
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the increased burdens created by the Rule. RAICES will need to retrain Community Immigration Services staff to perform unfamiliar duties for other programs.
216. The Rule’s lack of notice and comment procedures also irreparably compromised RAICES’s ability to inform the Government of the substantial harms—both to the organization and its clients—that the policy would create. Commenting on rules and regulations is an important part of RAICES’s mission to improve the lives of migrants in Texas. In 2018, RAICES commented on four proposed rules and regulations. Had RAICES been given the opportunity to comment on the Rule, it would have done so.
217. Plaintiff Human Rights First operates one of the largest programs for pro bono legal representation of refugees in the nation, working in partnership with volunteer lawyers at leading law firms to provide legal representation, without charge, to thousands of indigent asylum applicants. In addition to its work in partnership with volunteers from leading law firms, HRF’s attorneys also represent asylum seekers in immigration-related proceedings, focusing on asylum and other protection-based forms of immigration status. HRF serves asylum seekers across the country, via its four offices located in Washington, D.C.; New York, New York; Houston, Texas; and Los Angeles, California.
218. In addition to its asylum representation work, HRF advocates for policies that protect and advance the rights of refugees and asylum seekers. HRF does this through a combination of engaging policy makers, research and reporting, and endeavoring to hold the United States government accountable to its international and domestic legal obligations.
219. The Rule will irreparably frustrate HRF’s mission to serve asylum seekers and advocate for meaningful access to the asylum system. Because Defendants will summarily remove asylum seekers before they reach the interior of the United States, HRF will likely face a
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drastic reduction in its client base. As a result of the higher standards imposed by the Rule, Human Rights First will have to spend more time preparing each impacted client for the various steps of their proceedings. Spending more time on cases affected by the Rule will, invariably, mean the organization will assist fewer clients.
220. HRF’s partnerships with volunteer attorneys from leading law firms would suffer as there would be fewer asylum seekers to represent. Further, HRF would need to expend significant resources in developing new training materials and re-training its nationwide network of pro bono attorneys to operate in a more complicated legal environment. Without these sustainable relationships with law firm partners, HRF could not succeed in its mission of operating one of the largest programs for pro bono legal representation of asylum seekers in the nation.
221. HRF would also need to develop new training materials for pro bono attorneys. To do so, the organization will need to divert staff and financial resources. For example, HRF would have to analyze and interpret the Rule, determine which clients and attorneys need specialized information or training on the impacts of the Rule.
222. This reduction in client base will, in turn, not only severely impair HRF’s ability to fulfill its mission, but also its financial health. If HRF places fewer clients with law firms due to the reduction in its client base and the more complicated nature of each case, HRF risks its current level of law firm-derived funding, which is often tethered to the level of the law firm’s engagement with HRF-mentored asylum cases. In addition, HRF will be at serious risk of losing funding tied to the number of clients it serves each year in certain areas.
223. The Rule’s lack of notice-and-comment procedures also irreparably compromises HRF’s ability to inform the Government of the substantial harms—both to the organization and
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its clients—that the Rule creates. Commenting on rules and regulations is an important part of HRF’s mission to improve the lives of migrants and to protect meaningful access to the asylum system. HRF frequently comments on rules and regulations related to protecting the interests of asylum seekers, and it often leads the efforts of civil society to analyze and advocate for regulations that protect access to asylum. Had HRF been given the opportunity to comment on the Rule before its issuance, it would have done so.
CAUSES OF ACTION COUNT I
(Substantive Violation of INA, 8 U.S.C. § 1158, and APA, 5 U.S.C. § 706) 224. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 225. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” “contrary to constitutional right, power, privilege, or immunity;” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” and “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)-(C). 226. The INA guarantees “[a]ny alien who is physically present in the United States or who arrives in the United States * * * irrespective of such alien’s status” the right to “apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1). The INA creates only two exceptions under which individuals can be prevented from seeking asylum in the United States because they passed through a third country: (1) where the United States has a bilateral or multilateral agreement with a “[s]afe third country” in which the alien would have access to “a full and fair procedure” for determining her eligibility
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for asylum or equivalent protections, id. § 1158(a)(2)(A), or (2) the alien was “firmly resettled” in another country before arriving in the United States, id. § 1158(b)(2)(A)(vi).
227. The Rule contravenes this statutory treatment of circumstances in which travel through third countries may legally impact asylum eligibility. In particular, under the Rule’s amendments to 8 C.F.R. §§ 208.13, 1208.13, an individual who “enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside of the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum,” unless she can show that one of three narrow exceptions applies.
228. In promulgating and implementing the Rule, Defendants have acted contrary to the INA. By purporting to deny asylum eligibility to those specifically entitled to seek it, the Rule violates the INA.
229. The Rule exceeds the Attorney General’s scope of delegated authority to establish “consistent” limitations and conditions on asylum eligibility and consideration of applications under 8 U.S.C § 1158(b)(2)(C), (d)(5)(B). In addition to contravening the plain terms of 8 U.S.C. § 1158(a)(1), the Rule introduces a limit on the availability of asylum that is dramatically different from the other restrictions on asylum specified in the statute itself.
230. Through their actions described in this Complaint, Defendants have violated the substantive requirements of the INA and APA. Defendants’ violations inflict immediate and irreparable harm upon Plaintiffs, both by preventing Individual Plaintiffs from accessing the asylum procedures to which they are entitled and severely compromising the number of asylumseekers that CAIR Coalition, RAICES, and HRF may serve consistent with their organizational missions.
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231. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek declaratory and injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT II (Violation of APA, 5 U.S.C. § 706, through Arbitrary and Capricious Action) 232. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 233. The APA requires courts to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 234. In promulgating the Rule, Defendants have acted arbitrarily and capriciously. The Rule’s proffered rationale is that an alien’s failure to seek asylum in a third country through which that alien transited on her way to the United States reveals that the alien is not “legitimately seeking urgent protection from persecution or torture” and therefore misuses the United States’ immigration system. 84 Fed. Reg. at 33,381. This rationale is unsupported by the evidence. 235. There is also no evidence that this Rule will “reduc[e] human smuggling” by discouraging aliens from seeking asylum in the United States, 84 Fed. Reg. at 33,381, given the increasingly dangerous conditions most of these aliens are fleeing. 236. The Rule lacks any reasoned basis for determining that a third country is sufficiently safe and asylum relief is sufficiently available, such that failure to seek asylum there reveals a meritless asylum claim. The Rule’s conclusion that Mexico and “all seven countries in
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Central America” offer adequate protections to asylum seekers is unsupported by the evidence. 84 Fed. Reg. at 33,839-40.
237. By failing to create an exception for unaccompanied minors, the Rule also eviscerates Congressional policy that unaccompanied minors are exempt from the safe third country bar. 8 U.S.C. §§ 279, 1158(a)(2)(E). The Rule lacks any acknowledgement of this deviation from existing policy, fails to offer meaningful justifications for such change, creates internal inconsistencies in the law, and does not represent reasoned agency action.
238. Through their actions described in this Complaint, Defendants have acted arbitrarily and capriciously in violation of the APA.
239. Defendants’ violations inflict immediate and irreparable harm upon all Plaintiffs, including by denying Individual Plaintiffs the opportunity to seek asylum in the United States and placing them at risk of deportation to countries in which they are endangered.
240. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek declaratory and injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT III (Violation of APA, 5 U.S.C. § 553, for Failure to Follow Notice and Comment Procedures)
241. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein.
242. The APA requires courts to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
243. The APA requires that agencies follow public notice-and-comment rulemaking procedures before promulgating regulations. See 5 U.S.C. § 553(b), (c). Defendants failed to
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provide notice and an opportunity for public comment on the Rule in any manner prior to its issuance on July 16, 2019.
244. The APA also presumptively requires that a substantive rule be published “not less than 30 days before its effective date.” Id. § 553(d). Defendants failed to publish the Rule, which affects asylum seekers’ substantive rights under the INA, as required by this provision.
245. The APA’s notice and comment exceptions related to “foreign affairs function[s] of the United States,” id. § 553(a)(1), and “good cause,” id. § 553(d)(3), are inapplicable.
246. Had the Rule been the subject of advance publication and notice-and-comment rulemaking under the APA, CAIR Coalition, HRF, and RAICES would have submitted comments opposing its adoption.
247. Defendants’ violations inflict immediate and irreparable harm upon Plaintiffs, which lack adequate remedies at law and seek declaratory and injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT IV (Due Process, U.S. Const. amend. V) 248. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 249. “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (internal quotation omitted); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to . . . due
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process of law.”). The Due Process Clause applies to Individual Plaintiffs and the other putative class members in the United States.
250. Under the Rule, Defendants will deny asylum seekers access to the asylum procedures to which they are entitled under the INA. See 8 U.S.C. § 1158(a)(1).
251. In addition, “an alien who has unlawfully entered the United States has a Fifth Amendment procedural due process right to petition the government for political asylum and a statutory procedural due process right to a meaningful or fair evidentiary hearing.” GutierrezRogue v. I.N.S., 954 F.2d 769, 772-73 (D.C. Cir. 1992) (citing Maldonado-Perez v. I.N.S., 865 F.2d 328, 332-33 (D.C. Cir. 1989)) (internal quotation marks and brackets omitted).
252. As discussed above, migrants have been afforded no process or access to fair hearings through which to seek asylum under the Rule, due to the policy’s categorical denial of eligibility for migrants who entered through the southern border outside designated ports of entry. Denying them any ability to be meaningfully heard on their asylum claims violates their Fifth Amendment rights to due process.
253. In addition, because minor children are derivatively eligible to receive asylum where their parents obtain asylum, see 8 U.S.C. § 1158(b)(3)(A), Defendants’ violations of the due process rights of adult asylum seekers violate the due process rights of derivatively eligible children in the putative class.
254. Defendants’ due process violations inflict immediate and irreparable harm upon asylum seekers, including Individual Plaintiffs, by denying them the opportunity to seek asylum in the United States based on an asylum bar that is impermissible under the INA. These violations of law also inflict immediate and irreparable harm on RAICES, CAIR Coalition, and
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HRF by compromising the services they can provide to clients and forcing them to drastically divert or redesign their programs.
255. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek declaratory and injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
COUNT V (Substantive Violation of Trafficking Victims Protection Reauthorization Act,
8 U.S.C. § 1158(b)(3)(C), and APA, 5 U.S.C. § 706) 256. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 257. As noted above, the TVPRA amended the INA to provide specific asylum protections for children. See 8 U.S.C. §§ 1158(b)(3)(C), 1232. 258. Pursuant to the TVPRA, unaccompanied children who enter the United States without inspection generally are not subject to expedited removal. Id. § 1232(a)(5)(D)(i). Instead, unaccompanied minors are placed in regular removal proceedings before Immigration Judges without having to pass credible fear interviews. Id. 259. Prior to reaching an Immigration Judge, an unaccompanied child presents her application for asylum to an asylum officer, who has “initial jurisdiction over any asylum application filed by an unaccompanied alien child” and can accept the application even for an unaccompanied child in removal proceedings. Id. § 1158(b)(3)(C). If the asylum officer denies the application, then the unaccompanied minor generally proceeds to present her application to the Immigration Judge, in addition to any other claims she may have for withholding of removal or CAT relief. See id. § 1232(a)(5)(D).
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260. As addressed above, this sequencing, which permits unaccompanied minors to present asylum claims to asylum officers in the first instance, is designed to further the TVPRA’s fundamental objective of protecting children. It ensures that when unaccompanied minors first recount the difficult and potentially traumatic facts underlying their asylum claims, they do so in a non-adversarial setting, rather than in the context of trial proceedings including crossexamination by DHS attorneys.
261. The Rule is directly contrary to the TVPRA. Asylum officers would be forced to issue negative findings on the asylum claims of unaccompanied children. The Rule contravenes the specific process that Congress set up for unaccompanied children.
262. Through their actions described in this Complaint, Defendants have violated the substantive requirements of the TVPRA and APA. Defendants’ violations inflict immediate and irreparable harm upon unaccompanied children by depriving them of the opportunity to seek asylum under the laws of the United States, especially the procedural protections created in the TVPRA, and by exposing them to the risk of forcible return to dangerous conditions in their home countries. Defendants’ violations also inflict immediate and irreparable harm on RAICES, CAIR Coalition, and HRF by compromising the services they can provide to unaccompanied minor clients and forcing them to drastically divert or redesign their children’s services programs.
263. Plaintiffs lack adequate remedies at law to address Defendants’ violations and seek declaratory and injunctive relief restraining Defendants from continuing to engage in the unlawful policy and practices alleged herein.
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COUNT VI (Mandamus, 28 U.S.C. § 1361) 264. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 265. Federal district courts have “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States, or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. 266. A plaintiff may obtain a writ of mandamus where she has a clear right to the relief sought, the defendant has a duty to do the act in question, and no other adequate remedy is available. Id. 267. Under the INA, “[a]ny alien who is physically present in the United States or who arrives in the United States * * * irrespective of such alien’s status” has the right to “apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1). Statutory exceptions to this presumptive asylum eligibility exist with respect to third country travel only (1) where the United States has a bilateral or multilateral agreement with a “[s]afe third country” in which the alien would have access to “a full and fair procedure” for determining her eligibility for asylum or equivalent protections, id. § 1158(a)(2)(A), or (2) the alien was “firmly resettled” in another country before arriving in the United States, id. § 1158(b)(2)(A)(vi). The United States’ only “safe third country” agreement is with Canada. 268. Defendants have a clear, nondiscretionary duty to permit noncitizens, including Individual Plaintiffs, to make asylum claims regardless of their decision not to apply for asylum in third countries, consistent with the foregoing statutory scheme. The Rule contravenes
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Defendants’ duty to permit such asylum claims in the United States based on impermissible extra-statutory criteria.
269. Plaintiffs have exhausted all other avenues of relief and have no other adequate remedy.
270. Defendants’ violations inflict immediate and irreparable harm upon Plaintiffs. 271. Individual Plaintiffs have a clear right to the asylum procedures set forth in 8 U.S.C. § 1158, and RAICES, CAIR Coalition, and HRF have a clear right to carry out their organizational programs and missions in the context of the lawful administration of asylum procedures set forth in the INA. Defendants have a non-discretionary duty to provide access to those procedures. There is no adequate remedy to Defendants’ violation, apart from ordering Defendants to carry out their duties to permit asylum claims consistent with the terms of the INA. Plaintiffs accordingly are entitled to mandamus relief.
COUNT VII (Declaratory Judgment) 272. Plaintiffs re-allege and incorporate by reference each of the foregoing paragraphs as though fully set forth herein. 273. Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and Federal Rule of Civil Procedure 57, this Court is empowered to issue a declaratory judgment regarding the Rule’s lawfulness under the Constitution, the INA, the APA, and other federal statutes. 274. An “actual, ripe controversy” exists between the parties concerning Defendants’ authority to issue the Rule and to implement and enforce its terms nationwide consistent with U.S. law. Committee on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 22 (D.D.C.
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2013). The Court has subject matter jurisdiction to adjudicate that dispute pursuant to 28 U.S.C. § 1331. See id.
275. Plaintiffs seek a declaratory judgment from the Court that the Rule is inconsistent with and unlawful under the Constitution and laws of the United States.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court:
a. Declare that the Rule is unauthorized by, and contrary to, the Constitution and laws of the United States;
b. Issue an order vacating the Rule and permanently enjoining Defendants from implementing or enforcing the Rule across the nation;
c. Issue a writ of mandamus requiring Defendants’ compliance with the terms of the INA, including the requirement that they provide asylum seekers with appropriate access to credible fear interviews to pursue their asylum claims; and
d. Award damages, attorneys’ fees, and any such additional relief as the interests of justice may require.
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Dated: August 6, 2019
Manoj Govindaiah RAICES, INC. 802 Kentucky Ave. San Antonio, TX 78212 Telephone: (210) 222-0964 Facsimile: (210) 212-4856 manoj.govindaiah@raicestexas.org
Counsel for Plaintiff Refugee and Immigrant Center for Education and Legal Services, Inc.
Adina Appelbaum* (Bar No. 1026331) CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION 1612 K Street NW, Suite 204 Washington, DC 20006 Telephone: (202) 899-1412 Facsimile: (202) 331-3341 adina@caircoalition.com
* Motion for admission forthcoming
Counsel for Plaintiff Capital Area Immigrants’ Rights Coalition
Hardy Vieux (Bar No. 474762) Patricia Stottlemyer (Bar No. 888252536) HUMAN RIGHTS FIRST 805 15th Street, N.W., Suite 900 Washington, D.C. 20005 Telephone: (202) 547-5692 Facsimile: (202) 553-5999 vieuxh@humanrightsfirst.org stottlemyerp@humanrightsfirst.org
Counsel for Plaintiff Human Rights First

Respectfully submitted,
HOGAN LOVELLS US LLP
/s/ Justin W. Bernick
Neal K. Katyal (Bar No. 462071) T. Clark Weymouth (Bar No. 391833) Craig A. Hoover (Bar No. 386918) Justin W. Bernick (Bar No. 988245) Mitchell P. Reich (Bar No. 1044671) Elizabeth Hagerty (Bar No. 1022774) Kaitlin Welborn (Bar No. 88187724) Heather A. Briggs (Bar No. 241719) Michael J. West* (Bar No. 1616572) 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 neal.katyal@hoganlovells.com t.weymouth@hoganlovells.com craig.hoover@hoganlovells.com justin.bernick@hoganlovells.com mitchell.reich@hoganlovells.com elizabeth.hagerty@hoganlovells.com kaitlin.welborn@hoganlovells.com
Thomas P. Schmidt Mohan Warusha Hennadige* 390 Madison Avenue New York, NY 10017 Facsimile: (212) 918-3100 thomas.schmidt@hoganlovells.com mohan.warushahennadige@hoganlovells.com
* Motion for admission pending
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Civil Action No. 1:19-cv-02117-TJK

CERTIFICATE OF SERVICE I hereby certify that on August 18, 2019, I electronically filed the foregoing document pursuant to the Court’s Memorandum Opinion and Order dated August 18, 2019, Dkt. 36, with the Clerk of the Court for the United States District Court for the District of Columbia by using the CM/ECF system. Counsel in the case are registered CM/ECF users, and service will be accomplished by the CM/ECF system.

August 18, 2019

Respectfully submitted,
HOGAN LOVELLS US LLP
/s/ Elizabeth Hagerty
555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 elizabeth.hagerty@hoganlovells.com

 
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 Case 1:19-cv-02117-TJK Document 71 Filed 06/30/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION et al.,
Plaintiffs,
v.
DONALD J. TRUMP et al., Defendants.

Civil Action No. 19-2117 (TJK)

I.A. et al., Plaintiffs,
v. WILLIAM BARR et al.,
Defendants.

Civil Action No. 19-2530 (TJK)

ORDER For the reasons stated in the Court’s Memorandum Opinion, Capital Area Immigrants’ Rights Coalition (CAIR) v. Trump, No. 19-cv-2117, ECF No. 72 (D.D.C. June 30, 2020), I.A. v. Barr, No. 19-cv-2530, ECF No. 55 (D.D.C. June 30, 2020), it is hereby ORDERED that Plaintiffs’ Motions for Summary Judgment, CAIR ECF No. 41, I.A. ECF No. 6, are GRANTED; it is further ORDERED that Defendants’ Cross-Motions for Summary Judgment, CAIR ECF No. 43, I.A. ECF No. 17, are DENIED; and it is further ORDERED that the interim final rule, Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019), is VACATED.

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This is a final, appealable Order. SO ORDERED.
Date: June 30, 2020

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

 
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION et al.,
Plaintiffs,
v.
DONALD J. TRUMP et al., Defendants.

Civil Action No. 19-2117 (TJK)

I.A. et al., Plaintiffs,
v. WILLIAM P. BARR et al.,
Defendants.

Civil Action No. 19-2530 (TJK)

MEMORANDUM OPINION Plaintiffs in these related cases are immigrant-services organizations and individual asylum applicants. They challenge an interim final rule that significantly changes the United States’ asylum procedures. The rule categorically disqualifies aliens arriving at the southern border from receiving asylum unless they have already unsuccessfully sought similar protection in another country on their way here. Plaintiffs allege that the rule is unlawful for several reasons, including that it is contrary to the Immigration and Nationality Act and the Trafficking Victims Protection Reauthorization Act, is arbitrary and capricious, and was issued without notice-and-comment procedures required under the Administrative Procedure Act (APA). Plaintiffs in the first-filed case, CAIR, also allege that the rule violates asylum applicants’ Fifth

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Amendment due process rights. Defendants argue that this case is largely not justiciable, in part because the organizations lack standing, which deprives the Court of subject-matter jurisdiction over their claims.
Plaintiffs in CAIR moved for a temporary restraining order when they filed their complaint. At that time, Plaintiffs in that case included only nonprofit immigrant-services organizations. The Court denied their motion because they had not shown that, absent preliminary relief, they would suffer irreparable harm just because the rule would make it harder to serve asylum seekers. Those organizations then amended their complaint to add individual asylum applicants as plaintiffs and moved for a preliminary injunction. At about the same time, Plaintiffs in I.A.—a similar immigrant-services organization and individual asylum applicants as well—filed their suit and also moved for a preliminary injunction. After the Court consolidated the cases, all the parties jointly asked the Court to convert the motions for preliminary relief and the related briefing into cross-motions for summary judgment.
The Court holds that it has subject-matter jurisdiction over the claims brought by at least one organizational Plaintiff in each case. It also holds that Defendants unlawfully promulgated the rule without complying with the APA’s notice-and-comment requirements, because neither the “good cause” nor the “foreign affairs function” exceptions are satisfied on the record here. The Court thus need not reach Plaintiffs’ other claims concerning the validity of the rule. The Court will grant Plaintiffs’ motions for summary judgment, deny Defendants’ cross-motions, and vacate the rule.
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Background A. The Immigration and Nationality Act The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., governs much of the United States’ immigration system. Two portions of it are relevant to this case: the standards applied to asylum applications, and the procedures for expedited removal.
1. Asylum “Asylum is a form of discretionary relief that allows an otherwise removable alien who qualifies as a refugee to remain in the United States.” O.A. v. Trump, 404 F. Supp. 3d 109, 118 (D.D.C. 2019). Asylum provides individuals who qualify several distinct benefits: a path to citizenship, eligibility for certain government benefits, and the chance for family members to receive asylum as well. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,832 (July 16, 2019). There are other forms of relief granting removable aliens the right to stay in this country on humanitarian grounds, but none confer those same advantages. Id. Under the INA, any person physically in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). A person may file that application while she is in removal proceedings or independently. See id. §§ 8 U.S.C. 1225(b)(1)(A)(i), 1229a(c)(4). The former is sometimes called a defensive application and the latter an affirmative application. O.A., 404 F. Supp. 3d at 121. Some persons are categorically ineligible for asylum, and several such categories are defined by statute in the INA. See 8 U.S.C. § 1158(b)(2)(A). For example, an alien is ineligible if she committed certain crimes, is a danger to the community, or was firmly resettled in another country before arrival in the United States.1 Id. Assuming an applicant is not ineligible for some
1 Additionally, as discussed below, the INA allows the Attorney General to create additional categories of ineligibility. 8 U.S.C. § 1158(b)(2)(C).
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reason, under the INA, asylum may be granted only to an applicant physically present in the United States who is a “refugee,” i.e., someone with “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1158(a)(1), (b)(1)(A); id. § 1101(a)(42)(A).
After a person applies for asylum, she receives an interview with an asylum officer. Id. § 1225(b)(1)(A)(ii), (B). That officer determines whether the person is eligible for asylum—that is, first, whether she is categorically ineligible and, if not, second, whether she may be a refugee. Id. § 1158(b)(1)(A), (B)(i). The latter determination involves deciding whether the applicant has a “credible fear of persecution,” which exists when “there is a significant possibility” that a person is a refugee. Id. § 1225(b)(1)(B)(v).2 If after interviewing the applicant the officer determines that she has a credible fear of persecution, the applicant may be granted asylum in a subsequent proceeding if an immigration judge finds that she is a “refugee” under the statute. Id. § 1158(b)(1); 8 C.F.R. § 208.30(f). On the other hand, if the applicant is either ineligible or does not show a credible fear, the asylum officer enters a “negative credible fear determination.” See 8 C.F.R. § 208.30(g)(1). The applicant may appeal that determination to an immigration judge. Id. § 208.30(g)(2); see also 84 Fed. Reg. at 33,837–38. But as described below, if the immigration judge agrees with the asylum officer, the applicant is issued a final order of removal. 8 C.F.R. § 1208.30(g)(2)(iv)(A).
2 The Supreme Court has explained that an individual can qualify for asylum if she demonstrates a ten percent likelihood that she will be persecuted on the basis of race, religion, nationality, social group, or political opinion. INS v. Cardoza-Fonseca, 480 U.S. 421, 430–32, 439–40 (1987); see also O.A. v. Trump, 404 F. Supp. 3d 109, 120 n.3 (D.D.C. 2019). Thus, at the initial interview stage, an asylum applicant “need only show a ‘significant possibility’ of a one in ten chance of persecution, i.e., a fraction of ten percent.” Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C. 2018) (citation omitted).
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An applicant found ineligible for asylum may pursue other, more difficult avenues to avoid removal from the United States. First, she may seek withholding of removal under Section 241(b)(3) of the INA. See 8 U.S.C. § 1231(b)(3); 84 Fed. Reg. at 33,834. Doing so, however, requires her to prove to an immigration judge that “it is more likely than not” that she would be persecuted on a protected ground. 8 C.F.R. § 1208.16(b)(2). Second, she may seek protection under the regulations implementing Article 3 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105–277, § 2242(b), 112 Stat. 2681; 84 Fed. Reg. at 33,834. But doing so requires her to show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
As a result, these alternative paths ultimately require “a more substantial showing” than the standard in asylum cases. O.A., 404 F. Supp. 3d at 120. And on either path, an immigration officer performing an initial screening interview must use a more demanding standard than in asylum cases—whether the alien has “a reasonable fear of persecution or torture,” 8 C.F.R. § 208.30(e)(5)—which is satisfied only “if the alien establishes a reasonable possibility that he or she would be persecuted” because of a protected ground, id. § 208.31(c). See also 84 Fed. Reg. at 33,837 (explaining that the reasonable-fear screening standard is more demanding than the credible-fear standard applicable in asylum cases). Moreover, relief under either of these paths “does not preclude the government from removing the alien to a third country where the alien would not face persecution, does not establish a pathway to lawful permanent resident status and citizenship, and does not afford derivative protection for the alien’s family members.” O.A., 404 F. Supp. 3d at 120.
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2. Expedited Removal The INA sets up two types of removal proceedings: regular, under 8 U.S.C. § 1229a, and expedited, under 8 U.S.C. § 1225. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. The latter applies only to certain classes of individuals, including those who are screened out of the process by asylum officers. Expedited removal proceeds very quickly. As noted above, if an asylum officer enters a “negative credible fear determination” after interviewing an asylum applicant, the applicant may appeal that determination to an immigration judge. 8 C.F.R. § 208.30(g); id. § 1208.30(g). But if the immigration judge agrees with the asylum officer, the applicant is given a final order of removal. Id. § 1208.30(g)(2)(iv)(A). The entire process, by statute, takes no more than seven days. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). Another feature of expedited removal is the limited availability of judicial review. Congress in the IIRIRA significantly curtailed federal courts’ jurisdiction to review challenges to an individual’s order of removal from expedited removal proceedings. See generally 8 U.S.C. § 1252. And the IIRIRA includes several “channeling rules” which consolidate before the courts of appeals challenges that either seek review of a removal order or that involve questions arising from a removal action or proceeding. Id. § 1252(a)(5), (b)(9); see also O.A., 404 F. Supp. 3d at 126–38. B. The Rule Last year, the Departments of Justice and Homeland Security (“Departments”) jointly published an interim final rule entitled “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829 (July 16, 2019) (“Rule”). As discussed above, the INA authorizes the Attorney General to “by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). Relying
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on this provision, the Rule renders aliens seeking to enter the United States at its southern border categorically ineligible for asylum unless they first applied for similar protection in a third country they transited through (other than the country they fled) and were rejected there. 84 Fed. Reg. at 33,835.3 The Rule does not limit an alien’s ability to seek withholding of removal under either Section 241(b)(3) of the INA or the CAT. 84 Fed. Reg. at 33,834. But its categorical bar on asylum eligibility applies to adults and unaccompanied minors alike. See 84 Fed. Reg. at 33,839 n.7.
When issuing the Rule, the Departments explained that it is intended to curb the strain on the United States’ immigration system “by more efficiently identifying aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture.” Id. at 33,831. It also “aims to further the humanitarian purposes of asylum.” Id. According to the Departments, the Rule will deter aliens whose claims lack merit and will instead prioritize those who have no other options or have experienced more extreme forms of human trafficking. Id. The Rule also seeks to combat human smuggling by diminishing “the incentive for aliens without an urgent or genuine need for asylum to cross the border.” Id. And the Departments add that the Rule “will better position the United States as it engages in ongoing diplomatic negotiations with Mexico and the Northern Triangle countries.” Id.
3 The Rule excludes: (1) an alien who, while in transit to the United States, applied for and was denied protection for individuals fleeing persecution or torture; (2) an alien who is a “victim of a severe form of human trafficking,” 8 C.F.R. § 214.11; or (3) an alien who transited only through “a country or countries that were not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the CAT.” Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835 (July 16, 2019).
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The Rule took effect the day it was published. Id. at 33,830. The Departments invoked two exceptions to the APA’s usual requirements that regulations be published at least 30 days before they take effect and that the public be offered the opportunity to comment, 5 U.S.C. § 553 (b)–(d). According to the Departments, dispensing with the notice-and-comment period was “essential to avoid a surge of aliens who would have strong incentives to seek to cross the border during pre-promulgation notice and comment or during the 30-day delay in the effective date.” 84 Fed. Reg. at 33,841. Separately, they claimed that the Rule “involves a ‘foreign affairs function of the United States,’” id. (citation omitted), and therefore was exempt from notice-andcomment procedures, 5 U.S.C. § 553(a)(1). All the same, the Departments invited interested persons to submit comments that they represented would “be considered and addressed in the process of drafting the final rule.” 84 Fed. Reg. at 33,830. To date, the Departments have not promulgated a final rule.
C. Procedural History Capital Area Immigrants’ Rights Coalition (CAIR) and the Refugee and Immigrant Center for Education and Legal Services filed the first of these two actions, challenging the Rule on the same day it took effect. Capital Area Immigrants’ Rights Coal. (CAIR) v. Trump, No. 19cv-2117, ECF No. 1 (D.D.C. July 16, 2019). They immediately moved for a temporary restraining order. CAIR ECF No. 3. About a week later, the Court denied their motion. See CAIR, 2019 WL 3436501, at *4 (D.D.C. July 24, 2019). As the Court explained, Plaintiffs at that time, both of which were organizations, had failed to show that the Rule would irreparably harm them. Id. at *1–3. The Court also emphasized that Plaintiffs were not individual asylum seekers facing immediate removal. Id. at *2–3. Later, Plaintiffs in CAIR filed an amended complaint adding as new plaintiffs nine individuals and one additional organization. See CAIR ECF No. 37 (“CAIR Compl.”). The
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individual Plaintiffs, proceeding under pseudonyms, see CAIR ECF No. 36, are women and children who fled persecution and violence in Central America, Cuba, and Angola and transited through Mexico without applying for asylum there before crossing the United States’ southern border after the Rule took effect. CAIR Compl. ¶¶ 13–63. The organizational Plaintiffs remain immigrant-services nonprofits that assist asylum seekers in the United States. Id. ¶¶ 64–66. These Plaintiffs name as Defendants President Donald J. Trump, Attorney General William P. Barr, Acting Secretary of Homeland Security Chad F. Wolf,4 and related government agencies and leaders. Id. ¶¶ 67–79. About a month after the Rule was promulgated, the Tahirih Justice Center (“Tahirih”), another immigrant-services organization, and another group of individual asylum seekers brought a similar challenge to the Rule against most of the same defendants. I.A. v. Barr, No. 19-cv-2530, ECF No. 1 (D.D.C. Aug. 21, 2019). The I.A. Plaintiffs later filed an amended complaint adding more asylum seekers. See I.A. ECF No. 23 (“I.A. Compl.”).5
Plaintiffs in these cases bring mostly the same claims. They contend that the Rule violates the APA because it contradicts the INA and the Trafficking Victims Protection Reauthorization Act (TVPRA); is arbitrary and capricious for several reasons; and that the Departments issued it without the required notice-and-comment procedures. CAIR Compl. ¶¶ 224–47, 256–63; I.A. Compl. ¶¶ 126–40. Plaintiffs in the CAIR suit also allege that the Rule violates asylum seekers’ Fifth Amendment due process rights. CAIR Compl. ¶¶ 248–55.
4 Upon assuming office in November 2019, Chad Wolf was automatically substituted for Kevin McAleenan under Federal Rule of Civil Procedure 25(d). 5 The individual Plaintiffs in both cases, in accompanying declarations filed under seal, represent that they are fleeing threats of political persecution, severe violence, or death, and they state that they would fear for their own safety and that of their families if their names were disclosed as a result of their participation in this lawsuit. See CAIR ECF No. 36; I.A. ECF No. 26.
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Plaintiffs in both cases moved for a preliminary injunction on the same day. CAIR ECF No. 41; I.A. ECF No. 6. But after the Supreme Court stayed a nationwide injunction entered in the Northern District of California, see Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019), the parties jointly requested that the Court convert their motions and the responsive briefing into cross-motions for summary judgment. See CAIR ECF No. 50; see also Minute Orders of Sept. 18, 2019.
D. East Bay Sanctuary Covenant Litigation The same day the Rule was issued, another group of immigrant-services organizations challenged the Rule in the Northern District of California. See Complaint, East Bay Sanctuary Covenant v. Barr, No. 19-cv-4073-JST (N.D. Cal. July 16, 2019).6 The plaintiffs in that case moved the next day for a temporary restraining order, which the district court converted to a motion for a preliminary injunction. East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 935–36 (N.D. Cal. 2019). A week later, the district court in that case entered a nationwide injunction barring the defendants from implementing the Rule. Id. at 960. The defendants moved for a stay pending appeal, which the Ninth Circuit granted in part. East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 (9th Cir. 2019). Specifically, the Ninth Circuit narrowed the injunction’s scope to apply only within that circuit. Id. It also held that while it considered the appeal, the district court retained jurisdiction “to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.” Id. at 1030–31. A few weeks later, the district court restored the nationwide scope of the injunction. East Bay Sanctuary Covenant
6 The East Bay Sanctuary Covenant litigation challenging the Rule is separate from other similarly named litigation challenging a different asylum-related rulemaking. See East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018) (challenging a regulation issued by the Departments that, together with a presidential proclamation, effectively barred asylum for any alien who did not enter the United States at a designated port of entry).
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v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019). The defendants then applied to the Supreme Court for a stay of the district court’s injunction. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019). The Supreme Court granted the application and stayed the district court’s injunction pending appeal. Id. The Ninth Circuit has since affirmed the district court’s nationwide preliminary injunction. East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020).
Legal Standard Summary judgment is usually appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as matter of law.” Air Transp. Ass’n. of Am. v. Nat’l Mediation Bd., 719 F. Supp. 2d 26, 31–32 (D.D.C. 2010) (alteration in original) (citation omitted), aff’d, 663 F.3d 476 (D.C. Cir. 2011). In “a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the Court’s role is limited to reviewing the administrative record, so the standard set forth in Rule 56[] does not apply.” Id. at 32. In such cases, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Cottage Health Sys. v. Sebelius, 631 F. Supp. 2d 80, 90 (D.D.C. 2009).7
7 Plaintiffs argue—and Defendants contest—that the Court may consider evidence outside the administrative record. See CAIR ECF No. 59 at 1–2; I.A. ECF No. 50 at 10; CAIR ECF No. 58; I.A. ECF No. 48 (“Defs.’ Supp. Br.”). The Court need not decide this question because it finds the Rule procedurally deficient based only on the information in the administrative record.
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Analysis As described above, Plaintiffs allege that the Rule is unlawful for several reasons, and Defendants argue, as a threshold matter, that the Court lacks subject-matter jurisdiction over the organizational Plaintiffs’ claims. First, as it must, the Court considers Defendants’ justiciability arguments and concludes that at least one organizational Plaintiff in each case has standing, and that their claims fall within the INA’s zone of interests. Second, the Court turns to Plaintiffs’ claims and holds that because Defendants unlawfully failed to comply with the APA’s noticeand-comment requirements, the Rule must be vacated. For that reason, it need not consider Plaintiffs’ other challenges to the Rule. See Nat’l Family Planning & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227, 241 (D.C. Cir. 1992). A. Justiciability Defendants advance several challenges to the Court’s power to hear this case. With respect to the organizational Plaintiffs in both cases, Defendants argue that: (1) they lack standing to sue, and (2) their claims fall outside the relevant zone of interests. The Court addresses each in turn. Because the Court finds that at least one organization in each case has standing, it need not consider whether the individual Plaintiffs also have standing. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). For the same reason, the Court also need not consider whether the INA’s complex jurisdiction stripping and channeling provisions— which largely apply to individual aliens’ challenges that either seek review of a removal order or involve questions arising from a removal action or proceeding, see O.A., 404 F. Supp. 3d at 126– 38—divest the Court of jurisdiction. Indeed, the Defendants do not even appear to argue that these jurisdictional provisions apply to the organizational Plaintiffs, which are seeking to vindicate their own rights under the APA.
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1. Standing An organization may assert standing “on its own behalf, on behalf of its members or both.” Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, the organizational Plaintiffs in both CAIR and I.A. argue they have standing based on their own interests. See CAIR ECF No. 22 at 3–5; I.A. ECF No. 6 at 10–11. The Court must therefore determine whether they have shown an “actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Equal Rights Ctr., 633 F.3d at 1138 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). The Court’s standing inquiry is slightly different when a plaintiff seeks to vindicate a procedural right, such as having been unlawfully denied the opportunity to comment on a proposed rule. See Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). Specifically, “a plaintiff asserting a procedural violation must show ‘a causal connection between the government action that supposedly required the disregarded procedure and some reasonably increased risk of injury to its particularized interest.’” Iyengar v. Barnhart, 233 F. Supp. 2d 5, 12–13 (D.D.C. 2002) (quoting Fla. Audubon Soc’y. v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996)). A plaintiff asserting such a violation need not, however, show that the agency would have acted any differently. Mendoza, 754 F.3d at 1010. Yet even in the context of a procedural injury, “the injury in fact requirement is a hard floor of Article III jurisdiction that cannot be altered by statute.” Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 183 (D.C. Cir. 2017). Once a plaintiff clears that hurdle, though, “the normal standards for immediacy and redressability are relaxed.” Mendoza, 754 F.3d at 1010. The organizational Plaintiffs “bear[] the burden of establishing these elements,” which they must support “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At summary judgment, a
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plaintiff “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the summary judgment motion will be taken to be true.” Id. But when evaluating standing, the Court must assume that the organizational Plaintiffs would prevail on the merits of their claims. Conference Grp., LLC v. FCC, 720 F.3d 957, 962 (D.C. Cir. 2013). Additionally, “[a]t least one plaintiff must have standing to seek each form of relief requested in the complaint.” Town of Chester, 137 S. Ct. at 1651.
Defendants argue that the organizational Plaintiffs in both cases lack standing because they have not suffered a legally cognizable injury. To satisfy the injury-in-fact requirement, an organization must allege that it suffered a “concrete and demonstratable injury to [its] activities—with the consequent drain on [its] resources—[that] constitutes far more than simply a setback to the organization’s abstract social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The D.C. Circuit has articulated a two-prong test for determining whether an organization meets this standard. First, an organization must show that the challenged conduct “perceptibly impair[s] the organization’s ability to provide services.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015). This initial showing must also demonstrate a “direct conflict between the defendant’s conduct and the organization’s mission.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996) (emphasis omitted) (holding that such a conflict “is necessary—though not alone sufficient—to establish standing”). Second, an organization must show that it “used its resources to counteract [the alleged] harm.” Food & Water Watch, 808 F.3d at 919 (citation omitted); see also Spann, 899 F.2d at 27 (“Havens makes clear . . . that an organization establishes Article III injury if it alleges that purportedly illegal action increases the resources the group must devote to programs independent of its suit challenging the action.”).
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At least one organizational Plaintiff in each case has met this burden. Specifically, both CAIR and Tahirih have shown how the Rule will frustrate their ability to provide legal services directly to asylum applicants, a core component of their respective missions. CAIR ECF No. 412 (“Cubas PI Decl.”) ¶¶ 3–7, 19–22; I.A. ECF No. 6-1 (“Cutlip-Mason Decl.”) ¶¶ 6, 12–13, 19– 24. As discussed above, the Rule is intended to bar many individuals from qualifying for asylum. 84 Fed. Reg. at 33,835. As a result, individuals covered by the Rule may avoid removal only by meeting the heightened “reasonable fear” screening standard that applies in non-asylum withholding cases. See id. at 33,837. Both CAIR and Tahirih explain that preparing individuals for interviews in which that standard is applied is far more resource intensive; the Rule will therefore severely limit the number of individuals they may serve. Cubas PI Decl. ¶¶ 19, 22; Cutlip-Mason Decl. ¶¶ 20, 23. For example, CAIR “estimates that it will be able to serve 50% fewer asylum seekers under the Rule, based on its years of experience perfecting and timing its service delivery models, its client base statistics, and the human and fiscal resource shifting that it already is undertaking and will continue to undertake in an effort to respond to the Rule.” Cubas PI Decl. ¶ 19. Additionally, both organizations explain how the Rule requires them to now prepare children for their own proceedings. CAIR ECF No. 3-3 (“Cubas TRO Decl.”) ¶¶ 31–35; Cutlip-Mason Decl. ¶ 21. Tahirih also explains that the Rule will force more asylum claims to be filed defensively once an alien is in removal proceedings, requiring it to spend much more staff time on individual cases. Cutlip-Mason Decl. ¶ 19. As a result, like CAIR, Tahirih “will be forced to reduce the number of clients [it] can serve with [its] funding.” Id. ¶¶ 23–24. And both organizations also explain how the Rule requires them to divert resources to adapt to the Rule. Id. ¶ 24; Cubas TRO Decl. ¶¶ 16–19.
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These declarations—the substance of which Defendants do not contest—show that the Rule both conflicts with these organizations’ missions and inhibits their daily activities. See Ctr. for Responsible Sci. v. Gottlieb, 346 F. Supp. 3d 29, 38 (D.D.C. 2018). They also show that these organizations have and will continue to be required to expend resources to counteract the Rule. See O.A., 404 F. Supp. 3d at 143; see also Sierra Club v. Jewell, 764 F.3d 1, 7 (D.C. Cir. 2014) (explaining that an injury is sufficiently imminent when a plaintiff can show a “substantial probability of injury”) (citation omitted); Spann, 899 F.2d at 27. “No more is required to establish standing under Havens.” O.A., 404 F. Supp. 3d at 143.
Defendants make several arguments to the contrary, but ultimately none carries the day. First, they argue that organizations like CAIR and Tahirih have no cognizable interest under the INA; thus, they say, Havens is inapplicable. See CAIR ECF No. 43, I.A. ECF No. 17 (“Defs.’ Cross Mtn”) at 12. They appear to argue that the INA’s channeling provisions, 8 U.S.C. § 1252(a)(5) and (b)(9), together with the lack of a private statutory right of action, mean that these organizations cannot challenge the Rule even to the extent that it affects them. See id. The Court is unpersuaded. To begin with, Defendants have cited no case in which a court precluded an organization from challenging an immigration-related rule under the APA as a matter of law in this way. Indeed, the case law stands in stark contrast.8 More fundamentally, the text of Section 1252 provides no support for the proposition that organizations may not facially
8 See, e.g., O.A., 404 F. Supp. 3d at 126–38; Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Homeland Sec., 387 F. Supp. 3d 33, 45 (D.D.C. 2019); Auyda, Inc. v. Attorney Gen., 661 F. Supp. 33, 34 (D.D.C. 1987), aff’d sub nom. Ayuda, Inc. v. Attorney Gen., 848 F.2d 1297 (D.C. Cir. 1988); see also Daingerfield Island Protective Soc. v. Lujan, 797 F. Supp. 25, 29 (D.D.C. 1992) (noting that “the Supreme Court has held that under the APA, it is not necessary to find a private right of action under a particular statute in order to enforce a federal agency’s compliance with that statute”), aff’d sub nom. Daingerfield Island Protective Soc. v. Babbitt, 40 F.3d 442 (D.C. Cir. 1994).
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challenge under the APA immigration-related regulations that harm their own interests. And the specific channeling provisions cited by Defendants apply to challenges that either seek review of a removal order or involve questions arising from a removal action or proceeding. O.A., 404 F. Supp. 3d at 126–38; see Dep’t of Homeland Sec. v. Regents of the Univ. of California, No. 18587, 2020 WL 3271746, at *8 (U.S. June 18, 2020) (noting that § 1252(b)(9) “is certainly not a bar where, as here, the parties are not challenging any removal proceedings”).
Second, Defendants argue that CAIR and Tahirih lack third-party standing to challenge the Rule on behalf of aliens who might be removed. Defs.’ Cross Mtn at 12–13.9 But these organizations are not claiming standing on behalf of their clients, or any other individual asylum applicants. They are not challenging an immigration enforcement decision. Nor are they arguing they have standing because more of their clients may ultimately be denied asylum. Rather, the organizational Plaintiffs argue that the Rule will directly injure them by making it harder for them to conduct their own basic activities. Indeed, Defendants’ position would seem to preclude an organization from bringing an APA challenge to any rule that even tangentially relates to immigration.
9 Relatedly, Defendants also argue in passing that these organizational Plaintiffs lack standing to challenge policies related to an agency’s discretionary enforcement decisions as they relate to a third party. Defs.’ Cross Mtn at 12–13 (citing Linda R.S. v. Richard D., 410 U.S. 614 (1973) and related cases). Again, the organizational Plaintiffs are not relying on any third party, nor are they challenging the substance of any discretionary decision. Rather, they are challenging whether the agency adhered to the procedural requirements of the APA. And Defendants have identified no language in the statute suggesting that the INA precludes that sort of review. Defendants also point out that at least one judge on the D.C. Circuit has questioned the scope of cognizable organizational injuries under Havens, see People for the Ethical Treatment of Animals (PETA) v. U.S. Dep’t of Agric., 797 F.3d 1087, 1099, 1101–03 (D.C. Cir. 2015) (Millett, J., dubitante), but this Court lacks the power to sidestep binding Circuit precedent, United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997).
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Third, Defendants argue that while “the legal landscape may have partially changed” because of the Rule, “the organizations can still provide legal services.” Id. at 14. In Defendants’ view, then, they have not suffered a cognizable injury. But under the law of this Circuit, the injury requirement is not so demanding. O.A., 404 F. Supp. 3d at 143 (“Courts have never required an organization to prove that is it entirely hamstrung by challenged actions.”); see also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Homeland Sec., 387 F. Supp. 3d 33, 45 (D.D.C. 2019). Organizations satisfy the first prong of the injury inquiry if they show “that their activities have been impeded” in some way. Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (emphasis added); see also League of Women Voters of United States v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016) (finding a cognizable injury where “new obstacles unquestionably [made] it more difficult for [organizations] to accomplish their primary mission”); Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (noting that “an organization must allege that the defendant’s conduct ‘perceptibly impaired’ the organization’s ability to provide services in order to establish injury in fact”) (citation omitted); People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric. (PETA), 797 F.3d 1087, 1093 (D.C. Cir. 2015) (noting that “the key issue is whether the organization has suffered a concrete and demonstrable injury to its activities” (cleaned up)).
Fourth, Defendants argue that the injuries the organizational plaintiffs say the Rule will cause “are speculative and self-inflicted.” Defs.’ Cross Mtn at 14. While it is true that an organization may not base standing on “a ‘self-inflicted’ budgetary choice,” PETA, 797 F.3d at 1093 (citation omitted), that is not the case here. For example, these organizational Plaintiffs do not rely on harm flowing from expenses related to these lawsuits or budgetary decisions related to their advocacy. See id. Rather, as discussed above, they explain how the Rule will make it
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harder for them to provide their core representational services. See also Equal Rights Ctr., 633 F.3d at 1140 (noting that whether an injury is self-inflicted does not “depend on the voluntariness or involuntariness of the plaintiffs’ expenditures,” but whether “they undertook the expenditures in response to, and to counteract, the effects of the defendants’ alleged discrimination”). Additionally, while the Court “may reject as overly speculative those links which are predictions of future events,” Arpaio v. Obama, 797 F.3d 11, 21 (D.C. Cir. 2015) (citation omitted), CAIR and Tahirih do not rely on an attenuated chain of improbable causes and effects. Rather, their declarations persuasively “demonstrate a realistic danger of sustaining a direct injury,” and no more is required. Id.
Fifth, Defendants argue that the organizational Plaintiffs have not suffered a cognizable injury just because they “must adapt to the new requirements by spending more time on their clients’ cases, adjusting staffing, . . . analyzing the new policy[,] and revising training and orientation materials.” Defs.’ Cross Mtn at 15. If that were all a plaintiff had to show, say Defendants, “then any legal services or advocacy organization could sue in federal court whenever there is a change in the law.” Id. This argument has some intuitive appeal, but it is unsupported by D.C. Circuit precedent.
Indeed, the two cases that Defendants cite in support of this argument are inapposite. The passage they quote from the first case, Food & Water Watch, instructs only that an agency may not manufacture an injury by suing. 808 F.3d at 381–82; see also Spann, 899 F.2d at 27. They cite the second case, National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995), for the proposition that “[t]he mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.” Defs.’ Cross Mtn at 15–16. But that
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case is distinguishable from the situation here. There, an advocacy organization tried to assert an injury in part because it educated its members and the public about the consequences of new tax legislation, something that it would ordinarily do. Nat’l Taxpayers Union, 68 F.3d at 1434. The court in that case explained that plaintiffs “cannot convert [their] ordinary program costs into an injury in fact.” Id. But the court was careful to distinguish that case from others, such as Spann, where an organization had to expend greater resources on education in order to counteract the harm it had suffered. Id.; Spann, 899 F.2d at 28–29 (noting that “increased education and counseling could plausibly be required” to counteract defendants’ conduct). Indeed, the year before National Taxpayers Union, the Circuit held that an organization cleared the standing hurdle when the defendant’s conduct allegedly forced it to spend additional resources on community counseling and reduced the effectiveness of its outreach efforts. Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994). Defendants’ interpretation of National Taxpayers Union would seem to all but preclude a legal services organization from ever proving standing. That cannot be so. Cf. Ukrainian-Am. Bar Ass’n v. Baker, 893 F.2d 1374, 1378–80 (D.C. Cir. 1990).
Finally, Defendants argue that the organizational Plaintiffs may not rely on harm related to lack of notice and comment because they have not alleged a non-procedural injury. Defs.’ Cross Mtn at 16.10 Therefore, Defendants argue, they are impermissibly seeking to vindicate “a procedural right in vacuo.” Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)).
10 Defendants argue in passing that the Departments requested comments when promulgating the Rule, thereby “curing the very purported injuries Plaintiffs allege.” Defs.’ Cross Mtn at 16. This argument is unpersuasive. “Permitting the submission of views after the effective date is no substitute for the right of interested persons to make their views known to the agency in time to influence the rule making process in a meaningful way.” New Jersey v. EPA, 626 F.2d 1038, 1049 (D.C. Cir. 1980) (citation omitted)).
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But as discussed above, CAIR and Tahirih have shown cognizable concrete injuries caused by the Rule. Moreover, both have explained that they regularly submit comments to proposed rules before they go into effect and they would have done so here if they had been given the opportunity. Cubas TRO Decl. ¶ 40; Cutlip-Mason Decl. ¶ 25. Tahirih would have “explain[ed] why the Rule is contrary to domestic law, contrary to international law, and factually unsupported.” Cutlip-Mason Decl. ¶ 25. And CAIR would have “inform[ed] the Government of the substantial and irreparable harms—both to the organization and its clients—that the policy would create.” Cubas TRO Decl. ¶ 40. “The procedural right at stake here—the ability to comment on [a rule which categorically bars a large number of people from qualifying for asylum]—is quite obviously linked to their concrete interest, [providing assistance with asylum applications].” Iyengar, 233 F. Supp. 2d at 13. Thus, CAIR and Tahirih do not seek to vindicate merely a “procedural right without some concrete interest that is affected by the deprivation.” Summers, 555 U.S. at 496.11 And it does not matter that some organizational Plaintiffs have in fact commented, because that does not cure the Departments’ earlier failure. New Jersey v. EPA, 626 F.2d 1038, 1049 (D.C. Cir. 1980).
For these reasons, the Court finds that at least one organizational Plaintiff in each case has standing, and thus, the Court has subject-matter jurisdiction to hear their claims.
2. Zone of Interests Though not jurisdictional, the zone-of-interests test is a “tool for determining who may invoke the cause of action” in a statute. Lexmark Int’l, Inc. v. Static Control Components, Inc.,
11 See also Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002) (“All that is necessary is to show that the procedural step was connected to the substantive result.”); Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (“[T]he plaintiff must show that the government act performed without the procedure in question will cause a distinct risk to a particularized interest of the plaintiff.”).
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572 U.S. 118, 130 (2014). The test simply asks “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Id. at 127. For claims brought under the APA, “the test is not ‘especially demanding.’” Id. at 130 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (“We apply the test in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’” (citation omitted))). This is so because the APA “permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review.” Id. To satisfy the test, the Court must “look to whether [a plaintiff] fall[s] within the zone of interests sought to be protected by the substantive statute pursuant to which the [Departments] acted: the INA.” Mendoza, 754 F.3d at 1016. That said, no “indication of congressional purpose to benefit the would-be plaintiff” is required. Patchak, 567 U.S. at 225. Rather, the critical question “is whether the challenger’s interests are such that they ‘in practice can be expected to police the interests that the statute protects.’” Amgen, Inc. v. Smith, 357 F.3d 103, 109 (D.C. Cir. 2004) (citation omitted). The test bars suit “only when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that’ Congress authorized that plaintiff to sue.” Lexmark Int’l, 572 U.S. at 130 (citation omitted).
CAIR and Tahirih have no trouble clearing this low hurdle. First, their interests are neither inconsistent with nor marginally related to the INA. The INA includes a “statutory procedure for granting asylum to refugees,” INS v. Cardoza-Fonseca, 480 U.S. 421, 427 (1987), and these organizations help individuals navigate that procedure. See O.A., 404 F. Supp. 3d at 144. Moreover, the statute itself “includes provisions designed to ensure that pro bono legal services of the type that the organizational Plaintiffs provide are available to asylum seekers.”
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Id. (cleaned up). For example, the INA explicitly requires the Attorney General to advise an alien applying for asylum “of the privilege of being represented by counsel,” and further requires that the alien be provided a regularly updated list of persons “who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.” 8 U.S.C. § 1158(d)(4). Similar statutory requirements exist throughout the INA to ensure that aliens in both expedited and regular removal proceedings can be represented by counsel. See id. § 1228(a)(2), (b)(4)(B); id. § 1362. The Court has little trouble concluding that the organizational Plaintiffs’ interests fall within the zone of interests protected by the INA.
All the same, Defendants cite two cases they assert instruct otherwise. First, they point to a chambers opinion in which Justice O’Connor, sitting as a Circuit Justice, expressed her view that a legal assistance organization that assisted undocumented aliens fell outside the zone of interests of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99–603, 100 Stat. 3359. INS v. Legalization Assistance Project of Los Angeles Cty. Fed’n of Labor (LAP), 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers) (noting that the “IRCA was clearly meant to protect the interests of undocumented aliens, not the interests of organizations such as respondents”). To begin with, LAP represents the opinion of only a single Justice on an application for interim relief that arose under a statute other than the INA. See O.A., 404 F. Supp. 3d at 145; see also East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 769 n.10 (9th Cir. 2018); Kimble v. Swackhamer, 439 U.S. 1385, 1385 (1978) (Rehnquist, J., in chambers). But more importantly, recently the Supreme Court has consistently adopted a broader view of the test than the one Justice O’Connor espoused in LAP. See, e.g., Lexmark Int’l, 572 U.S. at 130; Patchak, 567 U.S. at 225. Indeed, in National Credit Union Administration v. First National Bank & Trust Co., the Supreme Court held—in an opinion authored by Justice Thomas over
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Justice O’Connor’s dissent—that the test is satisfied so long as “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute in question.” 522 U.S. 479, 492 (1998) (cleaned up). As discussed above, the organizational Plaintiffs here easily clear this hurdle.
Defendants also rely on Federation for American Immigration Reform, Inc. v. Reno (FAIR), 93 F.3d 897 (D.C. Cir. 1996). But that case does not help them either. In FAIR, an organization “dedicated to ‘ensuring that levels of legal immigration are consistent with the absorptive capacity of the local areas where immigrants are likely to settle’” challenged the government’s decision to parole Cuban immigrants. Id. at 899 (citation omitted). The Circuit held that the organization was outside the INA’s zone of interests because it could point to nothing in the INA that suggested Congress was concerned about the regional impact of immigration. Id. at 901–04. Here, by contrast, the organizational Plaintiffs have pointed to those portions of the INA that directly reference the asylum services they provide.
For these reasons, the Court finds that the zone-of-interests test does not bar the Court from considering the organizational Plaintiffs’ claims.
B. The APA’s Notice-and-Comment Requirements The APA generally requires substantive rules to be promulgated through notice-andcomment rulemaking.12 See 5 U.S.C. § 553. These procedures are not a mere formality. They “are designed (1) to ensure that agency regulations are tested via exposure to diverse public
12 The Rule itself does not suggest, and Defendants do not claim, that it is covered by the APA’s exception for non-legislative rules. See generally 84 Fed. Reg. 33,829; see also Clarian Health W., LLC v. Hargan, 878 F.3d 346, 356 (D.C. Cir. 2017) (“The APA mandates that substantive, legislative rules be promulgated only after public notice and comment, but it does not extend that requirement to ‘interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.’” (quoting 5 U.S.C. § 553(b)(3)(A))).
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comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.” Int’l Union, United Mine Workers v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). And they “attempt[] to provide a ‘surrogate political process’ that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process.” Regents of the Univ. of California, No. 18-587, 2020 WL 3271746, at *27 n.13 (Thomas, J., dissenting) (citation omitted)).
Because the Rule was promulgated without these procedures, the question for the Court is whether one of the APA’s exceptions to the usual requirements applies.13 Defendants assert that two do. First, under the “good cause” exception, an agency need not provide notice and an opportunity to comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). Second, under the “foreign affairs function” exception, the normal notice-and-comment
13 Defendants briefly suggest that the Rule does not constitute final agency action or is otherwise not ripe for review. Defs.’ Cross Mtn at 24–25. This argument appears only to apply to those Plaintiffs who are individual aliens, but in any event, as applied to the organizational Plaintiffs, it surely fails. Agency action is final if it (1) “mark[s] the consummation of the agency’s decisionmaking process,” so that it is not “of a merely tentative or interlocutory nature,” and (2) it is “one by which rights or obligations have been determined, or from which legal consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016). Here, for reasons already discussed, the Rule satisfies both criteria. Indeed, by its own terms, the Rule was effective immediately, and the organizational Plaintiffs had no opportunity to comment before it went into effect. 84 Fed. Reg. at 33,830. Additionally, the Rule is ripe for review because the issues it presents are “purely legal,” there is no reason to believe they “would benefit from a more concrete setting,” and—for the reasons just discussed—“the agency’s action is sufficiently final.” Teva Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303, 1308 (D.C. Cir. 2010) (citation omitted).
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requirements do not apply “to the extent that there is involved . . . a military or foreign affairs function of the United States.” Id. § 553(a)(1).
Despite their potentially broad sweep, the D.C. Circuit has instructed that these exceptions must be “narrowly construed” and “reluctantly countenanced.” New Jersey, 626 F.2d at 1045. The Circuit has also emphasized that the broader a rule’s reach, “the greater the necessity for public comment.” American Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). With these baseline principles in mind, the Court considers whether either the good cause or foreign affairs function exception applies here. Neither does.
1. The Good Cause Exception The APA permits an agency to dispense with notice-and-comment procedures when it finds that doing so would be “impracticable, unnecessary, or contrary to the public interest,” an exception said to require “good cause.” 5 U.S.C. § 553(b)(B). Here, Defendants assert that providing notice and comment would have been both impracticable and contrary to the public interest. 84 Fed. Reg. at 33,841. Even on top of the principles described above, the D.C. Circuit has set a high bar for satisfying good cause. As it recently explained, review of an “agency’s legal conclusion of good cause is de novo.” Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014). In other words, a court may not simply defer to an agency’s judgment about whether good cause exists. Rather, the Circuit instructs, a court must “examine closely” an agency’s stated rationale and the circumstances surrounding the agency’s decision. Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580 (D.C. Cir. 1981). The good cause inquiry is both “meticulous” and “demanding.” Sorenson, 755 F.3d at 706 (citation omitted). The Circuit has found notice-and-comment procedures sufficiently impracticable only in unusual cases, such as when “air travel security agencies would be unable to address threats
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posing ‘a possible imminent hazard to aircraft, persons, and property within the United States,’” or when “a rule was of ‘life-saving importance’ to mine workers in the event of a mine explosion.” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (citation omitted). And it has instructed that the public interest ground “is met only in the rare circumstance when ordinary procedures—generally presumed to serve the public interest—would in fact harm that interest.” Id. at 95. The good cause exception is therefore “appropriately invoked when the timing and disclosure requirements of the usual procedures would defeat the purpose of the proposal—if, for example, ‘announcement of a proposed rule would enable the sort of financial manipulation the rule sought to prevent.’” Id. (citation omitted).
Defendants argue that notice-and-comment rulemaking would have been impracticable and contrary to the public interest because that process would have led to a surge of asylum seekers at the southern border of the United States. 84 Fed. Reg. at 33,841. The Departments asserted upon the Rule’s promulgation that if it were published for notice and comment before becoming effective, smugglers might communicate its impending effects to potential asylum seekers, thus creating a “risk of a surge in migrants hoping to enter the country” beforehand. Id. They also asserted that pre-promulgation “notice and comment, or a delay in the effective date, would be destabilizing and would jeopardize the lives and welfare of aliens who could surge to the border to enter the United States before the rule took effect.” Id. According to the Departments, their “experience has been that when public announcements are made regarding changes in our immigration laws and procedures, there are dramatic increases in the numbers of aliens who enter or attempt to enter the United States along the southern border.” Id.
Common sense dictates that the announcement of a proposed rule may, at least to some extent and in some circumstances, encourage those affected by it to act before it is finalized. But
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this rationale cannot satisfy the D.C. Circuit’s standard in this case unless it is adequately supported by evidence in the administrative record suggesting that this dynamic might have led to the consequences predicted by the Departments—consequences so dire as to warrant dispensing with notice and comment procedures. See Sorenson, 755 F.3d at 707. After carefully examining the record, the Court finds that it does not contain sufficient evidence to justify invocation of the good cause exception.
The evidence that Defendants rely on begins—and for the most part ends—with a single newspaper article in the Washington Post from October 2018; indeed, it is the only specific evidence the Departments cited when promulgating the Rule. See 84 Fed. Reg. 33,841. That article includes several passages suggesting that: (1) after the United States abruptly stopped separating families who applied for asylum together in the spring of 2018, smugglers encouraged asylum seekers to bring their children and to speed up their efforts to reach the border; (2) those same smugglers may coach asylum seekers about what to tell interviewing officers so they can meet the credible fear standard; and (3) many months after the United States stopped separating families, a greater proportion of asylum applicants had brought children or other family members with them to the border. ECF No. 21-1 to 21-9 (“AR”) at 438–49.
Under Circuit precedent, this newspaper article alone does not provide good cause to bypass notice-and-comment rulemaking procedures for the reasons cited by Defendants. Even assuming that the Rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the Rule if notice-and-comment rulemaking had
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proceeded.14 In fact, the article lacks any data suggesting that the number of asylum seekers
increased at all during this time—only that more asylum seekers brought children with them.
Clearly, the article suggests that smugglers are not oblivious to major changes in United States’
immigration policy, and that they pass on the information they learn to some who may use it to
game the asylum process. None of that is surprising. But at bottom, the article does little if
anything to support Defendants’ prediction that undertaking notice-and-comment rulemaking
would have led to a dramatic, immediate surge of asylum applicants at the border that would
have had the impact they suggest. And other articles from the administrative record that Defendants cite either do not support, or even undermine, their prediction of such a surge.15
Defendants offer no other data or information that persuasively supports their prediction
of a surge. They point the Court to several charts that they argue support their invocation of
good cause. See Defs.’ Cross Mtn at 39–40. One shows the number of enforcement actions
undertaken by Customs and Border Protection at the southwest border from October 2016
14 The process of travelling through Mexico to the southern border of the United States to seek asylum, as described in the article, is risky for a host of reasons that have nothing to do with the Rule. Those risks are not at issue here. The question is whether there is an adequate basis for the Departments’ prediction that, if notice-and-comment rulemaking had proceeded, a surge of asylum seekers would have jeopardized life and defeated the purpose of the Rule, such that Defendants’ invocation of the good cause exception was justified. 15 For example, according to one article, about a month before the Rule was promulgated, the President tweeted twice that Guatemala was preparing to sign an agreement that would force migrants crossing through it to apply for asylum there and block them from seeking asylum elsewhere, including in the United States. AR at 635. But nothing in the record suggests that those tweets caused a surge at the southern border. Another article noted that “migrants themselves don’t necessarily know what asylum is or why they might or might not qualify for it,” and that some migrants incorrectly believe asylum outcomes turn on whether they have relatives in the United States. AR at 681. A third reported that while migrants are aware of “the basics”—for example, they “know to request asylum” and that families are less likely to be detained—they “generally lack understanding of United States immigration law.” AR at 768.
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through May 2019, broken down by the alien’s country of origin. See AR at 119. But the Court can glean little from that chart, other than that these enforcement actions decreased somewhat during the first six months of that period, increased gradually over the next few years, and then increased more sharply early in 2019. Defendants also point to a chart that depicts “Southwest Border Encounters of non-Mexican Aliens” each month from October 2012 to March 2019 and also contains some agency observations of that data. See AR at 208–20. But again, all this chart shows is that as of March 2019, more and more non-Mexican aliens were encountered at the southern border and that the agency projected the number to continue to rise for unspecified reasons. Interestingly, though, the agency’s observations reflect that even the relatively high number of encounters reported in March 2019 was not unprecedented; a higher number had been reported a decade earlier. AR at 210.
As far as providing a basis for predicting a surge of asylum seekers prompted by the publishing of the Rule for notice and comment, these numbers would be meaningful if Defendants explained that peaks or troughs in the data corresponded with regulatory or policy changes in the United States. But Defendants have not done so, and the Court cannot find any such analysis in the record.16 See Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 178 (D.D.C. 2016) (noting that “it is not the Court’s role to mine the record in an effort to identify potentially helpful evidence not identified by the parties”). At bottom, as Plaintiffs point
16 The record does suggest—and the Court does not doubt—that the United States’ immigration system at the southern border was significantly strained when the Rule was issued. For example, documents in the record show that more people were entering the United States without documents than had over the previous decade, AR at 676, and more of them were comprised of families or children, AR at 223, 682. But the Departments’ prediction of a surge to the border brought about by notice-and-comment procedures, on which they base their invocation of good cause, is a separate matter for which the record does not contain adequate support.
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out, Defendants—“despite studying migration patterns closely”—have “failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.” I.A. ECF No. 21 at 18. That failure is striking.
The Circuit’s decision in Tennessee Gas Pipeline v. Federal Energy Regulatory Commission, 969 F.2d 1141 (D.C. Cir. 1992), is instructive when it comes to evaluating an agency’s invocation of good cause based on its prediction. That case involved a rule that required natural gas pipeline companies to provide the Federal Energy Regulatory Commission (FERC) certain environmental information on their pipeline construction plans. 969 F.2d at 1143. FERC invoked the good cause exception to dispense with notice and comment, arguing that those procedures could contribute to environmental harm because the companies “may respond to the proposed changes in the regulations by commencing construction” to avoid regulatory uncertainty. Id. Judge Buckley, joined by Judges Ginsburg and Williams, rejected the agency’s argument because it had “provided little factual basis for its belief that pipelines [would] seek to avoid [the] future rule by rushing new construction and replacements with attendant damage to the environment.” Id. at 1145. Indeed, the court noted that FERC had provided only a single example where covered construction had led to environmental harm. Id. (observing that “evidence of a single violation . . . while not insubstantial, is a thin reed on which to base a waiver of the APA’s important notice and comment requirements”). The court also rejected the agency’s vague and conclusory invocation of its subject-matter expertise, observing that it “does not excuse the [agency’s] failure to cite such examples in support of its claim.” Id.; see also id. at 1146 (noting that “if the agency has . . . a wealth of practical experience on which to draw in order to justify its action, then it was not forced to rely on the ‘self-evident’ need for
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the interim rule”).17 To be sure, the court did not suggest that impending environmental harm or regulatory evasion could never constitute good cause. Rather, the court held, the agency had not provided a record sufficient to warrant invocation of the exception. See id. at 1145.
So too here. In Tennessee Gas Pipeline, the agency predicted a surge in potential pipeline construction; here, the Departments predicted a surge in potential asylum seekers. There, the agency thought that companies would act immediately to avoid more stringent regulatory requirements; here, the Departments say that so many asylum seekers would have acted so quickly to avoid more stringent requirements that a surge would have jeopardized their lives and the very purpose of the Rule. There, the agency fell back on its “ample practical experience,” id.; here, the Departments also rely on their “experience.” See 84 Fed. Reg. 33,841. And in both cases, the agencies failed to provide meaningful factual support for their predictions. The evidence offered by Defendants in this case—a newspaper article—is similarly too “thin [a] reed on which to base a waiver of the APA’s important notice and comment requirements.” 969 F.2d at 1145.
Still, Defendants argue that this Court should defer to the Departments’ invocation of good cause. See Defs.’ Supp. Br. at 4. Although the Circuit was clear in Sorenson that an agency’s legal conclusion of good cause is subject to de novo review, Defendants point out that in a footnote in that case, the Circuit acknowledged that courts should “defer to an agency’s
17 In Tennessee Gas Pipeline, 969 F.2d 1141, the Circuit also distinguished Mobil Oil Corp. v. Dept of Energy, 728 F.2d 1477 (Temp. Emer. Ct. App. 1983), a case relied on by Defendants. Mobil Oil, in the court’s view, presented unique circumstances. 969 F.2d at 1146. The agency in Mobil Oil issued a regulation “to equalize prices charged to different classes of customers by oil refiners during the energy crisis of the early 1970’s.” Id. But as the Circuit observed, “[i]t is well recognized that prices can be changed rapidly to accommodate shifts in regulatory policy.” Id. Defendants here offered no evidence from which the Court can reasonably conclude that migratory patterns change with anything approaching the speed of commodity prices. See id.
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factual findings and expert judgments therefrom, unless such findings and judgments are arbitrary and capricious.” 755 F.3d at 706 n.3.
The Sorenson footnote does not save Defendants’ good cause argument. To begin with, the record contains no information suggesting that the agency sought to confirm the accuracy of the article and so it is unclear whether the Court should afford it any deference. Cf. City of New Orleans v. SEC, 969 F.2d 1163, 1167 (D.C. Cir. 1992) (“We have held that an agency’s reliance on a report or study without ascertaining the accuracy of the data contained in the study or the methodology used to collect the data is arbitrary agency action, and the findings based on [such a] study are unsupported by substantial evidence.”) (alteration in original) (quotation omitted). The press, of course, is not infallible. Even so, the Court assumes for argument’s sake that the article contains findings of fact entitled to such deference. And the Court defers to them, so far as they go. For example, as discussed above, the Court does not doubt that smugglers adjust their sales pitches to some degree in response to changes in United States’ immigration policy. Similarly, the Court credits the Departments’ prediction that the number of non-Mexican aliens seeking asylum at the border would continue to increase as depicted, for whatever reason.
The question, though, is whether Defendants’ conclusory prediction of a surge in asylum seekers so great and so rapid as to threaten life or defeat the very purpose of the Rule if noticeand-comment procedures were followed is entitled to deference on this record. And Circuit precedent commands that it is not. As explained above, in Tennessee Gas Pipeline, the court found that there was “little factual basis” for the agency’s prediction, and thus did not defer to it, even though it was “hesitant to discount such forecasts” because they “necessarily involve deductions based on expert knowledge of the Agency.” 969 F.2d at 1145 (citation omitted). The same is true here.
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Sorenson itself provides another example of the Circuit declining to defer to an agency’s predictive judgment without an adequate record or explanation. In that case, Judge Rogers Brown, joined by Judges Griffith and Millett, rejected the agency’s invocation of good cause because, after closely examining the record, they concluded that “there were no factual findings supporting the reality of the threat”—a potential shortfall in a fund administered by the Federal Communications Commission (FCC). 755 F.3d at 706. That court emphasized that the administrative record did not reflect when the shortfall would occur or whether the FCC had considered reasonable alternatives—other than dispensing with notice and comment—to forestall it. See id. at 707. The record in this case suffers from similar shortcomings. For example, even assuming some increase in asylum applications were to occur if the Rule had been subject to notice-and-comment rulemaking, Defendants simply offer no factual basis or explanation for when or why that increase would ripen into a crisis so severe that it would justify bypassing those procedures. As in Sorenson, this Court in no way “exclude[s] the possibility” that the circumstances here “could conceivably justify bypassing the notice-and-comment requirement.” Id. at 707. But “this case does not provide evidence of such an exigency.” Id. And of course, the Court is limited to considering the evidence in the administrative record on which Defendants relied. See AFL-CIO v. Chao, 496 F. Supp. 2d 76, 82 (D.D.C. 2007).
Defendants also point to East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018). Defs.’ Cross Mtn at 40. In that case, several organizations challenged a regulation issued by the Departments that, together with a presidential proclamation, effectively barred asylum for any alien who did not enter the United States at a designated port of entry. See East Bay, 354 F. Supp. 3d at 1102. The regulation in that case was also issued without notice and comment, see id., and the Departments invoked the same two exceptions under § 553, see 83
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Fed. Reg. 55,934, 55,950–51 (Nov. 9, 2018). In granting a motion for a preliminary injunction, the district court nonetheless held in East Bay “that the Government is likely to prevail on its claim regarding the good cause exception” based on the same newspaper article referred to above. 354 F. Supp. 3d at 1115.
That decision is unpersuasive for several reasons. First, Ninth Circuit precedent does not require courts there to review an agency’s invocation of good cause de novo, as D.C. Circuit precedent requires this Court to do. East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1278 (9th Cir. 2020). Second, even under its more deferential standard, the Ninth Circuit has since rejected the district court’s conclusion that the newspaper article likely provided a basis to invoke the good cause exception. Id. And that conclusion echoed the earlier opinion of a different panel that denied a motion to stay the district court’s order granting a temporary restraining order pending appeal, in which the panel also held that the Departments’ “speculative” reasoning did not support invocation of the good cause exception. East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 777–78 (9th Cir. 2018).18
Finally, Defendants also cite the Supreme Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1, 34–35 (2010), to support their argument that “courts are ill-equipped to second-guess the Executive Branch’s prospective judgment.” Defs.’ Cross Mtn at 40–41. In Holder, the Court denied a constitutional challenge to a criminal statute prohibiting the provision of material support to a foreign terrorist organization. See Holder, 561 U.S. at 7–8 (citing 18 U.S.C. § 2339B). In so doing, Defendants point out, the Court noted that the “Government,
18 The newspaper article was apparently not part of the record when the first panel considered the matter. See East Bay, 950 F.3d at 1286 (“I agree with the majority that merely adding the twenty-five-word sentence from a Washington Post article was insufficient to justify changing the motions panel result.”) (Fernandez, J., concurring).
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when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.” Id. at 35.
There are many circumstances in which the law appropriately commands, as in Holder, that courts defer to the Executive Branch’s national security judgments. But even putting aside the many other differences between that case and this one, the record in that case consisted of far more than a newspaper article. There, the basis for the judgments of both Congress and the Executive about the material support statute—the latter’s set forth in an affidavit of a State Department official—were thoroughly explained to the Court. Those judgments were informed by extensive experience with how terrorist groups fund their activities, and the specific designated terrorist organizations at issue, which the Executive asserted had killed thousands. Id. at 29–30. Here, by contrast, the Departments rely on a single newspaper article that does not even directly address the key predictive judgment in question: the likelihood of a surge in asylum seekers so great and so rapid as to threaten human life or defeat the purpose of the Rule if noticeand-comment procedures were followed.
It bears emphasizing that in holding that the good cause exception does not apply, the Court does not suggest in any way that the Executive’s broader security concerns that prompted promulgation of the Rule were unfounded. The question for the Court is simply whether, on the record before it, the prediction of a surge offered by the Departments provided good cause to dispense with notice-and-comment procedures before the Rule took effect. For the reasons explained above, the Court holds that it did not.19
19 The Departments cite several other past rulemakings in which they say they invoked § 553’s good cause exception to avoid a similar surge. See 84 Fed. Reg. at 33,841. But to the Court’s
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2. The Foreign Affairs Function Exception The second exception Defendants invoke is the foreign affairs function exception. As noted above, notice-and-comment requirements do not apply “to the extent there is involved . . . a military or foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). Unlike the good cause exception, there is little case law in this Circuit, or elsewhere, to guide the Court’s application of this exception. Perhaps as a result, it presents a closer call. Still, the Court finds that Defendants’ arguments in favor of the exception come up short. Plaintiffs urge a narrow reading of the foreign affairs function exception. They note that several circuits have held that an agency may not invoke this exception just because a rule “implicates foreign affairs.” I.A. ECF No. 6 at 24 (internal quotation and citation omitted); CAIR ECF No. 41-1 at 18 (internal quotation marks omitted) (citing Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980)); see also Zhang v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995), superseded by statute on other grounds, by 8 U.S.C. § 1101(a)(42); Jean v. Nelson, 711 F.2d 1455, 1478 (11th Cir. 1983). Plaintiffs in CAIR argue that the Court should limit its interpretation of the exception to cover only those paradigmatic cases in which the rule at issue implements treaties or regulates foreign diplomats. CAIR ECF No. 41-1 at 18 (citing City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010) (applying the exception when an agency action concerned “the treatment of foreign missions”)). And in the alternative, Plaintiffs in both cases reference a test that some courts of appeals have
knowledge, none of those rulemakings were challenged for any reason, let alone for failure to proceed by notice-and-comment procedures. The task before the Court is to determine whether this rulemaking complied with the APA. The Court cannot conclude that an agency’s present conduct is lawful merely because the agency did something similar in the past. See Analysas Corp. v. Bowles, 827 F. Supp. 20, 25 (D.D.C. 1993) (“The court need not address whether [previous rulemakings] were proper; they are not before the court. What is before the court is the propriety of the present interim rule; the court determines that it, indeed, is contrary to law.”).
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adopted that extends this exception to circumstances where notice-and-comment procedures would create “definitely undesirable international consequences.” I.A. ECF No. 6 at 23 (internal quotation and citation omitted); CAIR ECF No. 41-1 at 19 (internal quotation marks omitted); see Yassini, 618 F.2d at 1360 n.4; see also Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008); Am. Ass’n of Exps. & Imps.-Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985); Jean, 711 F.2d at 1477. In Plaintiffs’ view, Defendants have failed to meet even that test. I.A. ECF No. 6 at 24–25; CAIR ECF No. 41-1 at 19–20. In contrast, Defendants offer up various reasons why, in their estimation, the Rule does in fact involve a foreign affairs function of the United States, including its relationship with ongoing international negotiations. See Defs.’ Cross Mtn at 41–42. And while Defendants reject the “definitely undesirable international consequences” test because “the statute requires no such showing,” they also argue, for many of these same reasons, that the Rule satisfies it in any event. Id. at 43–44.
The Court starts, as it must, with the text of the statute: notice-and-comment procedures are unnecessary “to the extent there is involved . . . a military or foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). The first part of that phrase, “to the extent there is involved,” applies to several other categories of rulemakings as well, including those involving public benefits, 5 U.S.C. § 553(a)(2), and the D.C. Circuit has interpreted the phrase in that context. Specifically, in Humana of South Carolina, Inc. v. Califano, the Circuit instructed— consistent with the duty to “narrowly construe” and “reluctantly countenance” such exceptions, New Jersey, 626 F.2d at 1045—that “to the extent that any one of the enumerated categories is clearly and directly involved in the regulatory effort at issue, the Act’s procedural compulsions are suspended.” 590 F.2d 1070, 1082 (D.C. Cir. 1978) (citations and quotations omitted)
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(emphasis added). As a result, a rule falls within the foreign affairs function exception only if it “clearly and directly” involves “a foreign affairs function of the United States.”
The APA does not define the key terms in the second part of that phrase—“foreign affairs” or “function”—and so the Court turns to dictionaries in use at the time of the APA’s enactment.20 The definition of “foreign affairs” is reasonably straightforward: it refers to the conduct of international relations between sovereign states. See Webster’s New International Dictionary 988 (2d ed. 1945) (defining foreign affairs to include “matters having to do with international relations and with the interests of the home country in foreign countries”). The meaning of “function,” on the other hand, is less so. The 1945 version of Webster’s New International Dictionary defines it as “[t]he natural and proper action of anything; special activity,” “[t]he natural or characteristic action of any power or faculty,” or “[t]he course of action which peculiarly pertains to any public officer in church or state; the activity appropriate to any business or profession; official duty.” Id. at 1019. “Function” thus appears to narrow the exception further; to be covered, a rule must involve activities or actions that are especially characteristic of foreign affairs. Applying these definitions, then, a “foreign affairs function” encompasses activities or actions characteristic to the conduct of international relations. And to sum up, to be covered by the foreign affairs function exception, a rule must clearly and directly involve activities or actions characteristic to the conduct of international relations.
20 See PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 130 (D.C. Cir. 2018) (en banc) (Griffith, J., concurring in the judgment) (noting that undefined terms are to be given “their ordinary meaning,” and that courts “generally begin[] with dictionaries”); MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 228–29 (1994) (observing that the time of enactment is “the most relevant time for determining a statutory term’s meaning”).
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As noted above, some circuits have adopted a test that would also permit the exception to be invoked when notice-and-comment procedures “would provoke definitely undesirable international consequences.” Am. Ass’n of Exps., 751 F.2d at 1249 (quotation omitted); see also Rajah, 544 F.3d at 437; Jean, 711 F.2d at 1478; Yassini, 618 F.2d at 1360 n.4. The D.C. Circuit has not adopted this test. And the Court declines to do so for three reasons.
First, this test is unmoored from the legislative text; it is lifted from the House Report relating to the APA.21 But as the Supreme Court has repeatedly instructed, “the authoritative statement is the statutory text, not the legislative history or any other extrinsic material,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). Thus, the Court declines to “rest[] its interpretation on legislative history,” which “is not the law.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018). Second, requiring negative consequences “would render the ‘military or foreign affairs function’ superfluous since the ‘good cause’ exception . . . would apply.” Mast Indus., Inc. v. Regan, 596 F. Supp. 1567, 1581 (Ct. Int’l Trade 1984) (citation omitted). Indeed, several courts have relied on this test to find both the foreign affairs function exception and the good cause exception satisfied on largely the same facts. See Nademi v. INS, 679 F.2d 811, 814 (10th Cir. 1982); Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981); Yassini, 618 F.2d at 1360–61. Third, the Second Circuit recently clarified that it applies this test exclusively to areas of the law “that only indirectly implicate international relations” rather than “quintessential foreign affairs functions such as diplomatic relations and the regulation of foreign
21 In full, the relevant sentence from the House Report reads: “The phrase ‘foreign affairs functions,’ used here and in some other provisions of the bill, is not to be loosely interpreted to mean any agency operation merely because it is exercised in whole or part beyond the borders of the United States but only those ‘affairs’ which so affect the relations of the United States with other governments that, for example, public rule-making provisions would provoke definitely undesirable international consequences.” H. Rep. No. 79-1980 at 257 (1946).
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missions,” which it characterized as “different.” City of New York, 618 F.3d at 202 (emphasis
added). “Such actions clearly and directly involve a foreign affairs function, and so fall within
the exception without a case-by-case iteration of specific undesirable consequences.” Id.
(citations and quotations omitted) (emphasis added). But this approach conflicts with the D.C.
Circuit’s admonition that a rule must “clearly and directly” involve the basis for the asserted exception—here, the foreign affairs function—full stop, without exception.22 Califano, 590 F.2d
at 1082.
Thus, the foreign affairs function exception plainly covers heartland cases in which a rule
itself directly involves the conduct of foreign affairs. For example, the exception covers
scenarios in which a rule implements an international agreement between the United States and
another sovereign state. Indeed, that is the only circumstance to which the D.C. Circuit has
applied it. Specifically, in International Brotherhood of Teamsters v. Pena, 17 F.3d 1478 (D.C.
22 Even if the Court were to adopt this test, the Rule would not satisfy it. The Departments assert that ongoing “negotiations [with Mexico and the Northern Triangle countries] would be disrupted if notice-and-comment procedures preceded the effective date of this rule.” 84 Fed. Reg. at 33,842. That disruption, in turn, would allegedly “provoke a disturbance in domestic politics in those countries, and would erode the sovereign authority of the United States to pursue the negotiating strategy it deems to be most appropriate as it engages its foreign partners.” Id. (cleaned up). But Defendants never explain—in their briefing or in a sworn declaration from an involved official—why any of those things would happen merely by allowing the public to comment on the Rule. The closest they get to bridging this gap is by arguing that “public participation and comments may impact and potentially harm the goodwill between the United States and [those countries],” id. But the Departments’ request for public comment (albeit after the Rule was in effect) severely undercuts this argument. 84 Fed. Reg. at 33,830. And in any event, a sizable gulf remains between potential harm to the goodwill between the United States and those countries and the kind of “definitely undesirable international consequences” that would satisfy the test. See, e.g., Rajah, 544 F.3d at 437 (noting that “sensitive foreign intelligence might be revealed in the course of explaining why some of a particular nation’s citizens are regarded as a threat” and that “relations with other countries might be impaired if the government were to conduct and resolve a public debate over why some citizens of particular countries were a potential danger to our security”).
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Cir. 1994), the Circuit held that the foreign affairs function exception applied to a Federal Highway Administration rule implementing a Memorandum of Understanding (MOU) between the United States and Mexico about the countries’ reciprocal recognition of each other’s commercial drivers’ licenses. The court noted that “the rule does no more” than carry out the United States’ “obligations to a foreign nation.” Id. at 1486. The rule in that case merely “added a sentence to [a] footnote” in a regulation specifying that the Administrator had determined that Mexican commercial drivers’ licenses met the United States’ standards. Id. at 1481; see also Commercial Driver’s License Reciprocity With Mexico, 57 Fed. Reg. 31,454 (July 16, 1992) (discussing the negotiations between the United States and Mexico and including the text of the MOU itself). The exception also certainly covers rules that regulate foreign diplomats in the United States. For example, in City of New York v. Permanent Mission of India to United Nations, the Second Circuit held that the exception covered an action by the State Department “exempt[ing] from real property taxes” any “property owned by foreign governments and used to house the staff of permanent missions to the United Nations or the Organization of American States or of consular posts.” 618 F.3d at 175. As the court observed, “the action taken by the State Department to regulate the treatment of foreign missions implicates matters of diplomacy directly.” Id. at 202 (emphasis added).
That Congress would categorically exclude rules like these from notice-and-comment procedures is unsurprising. These procedures enhance the rulemaking process by exposing proposed regulations to feedback from a broad set of interested parties. See Int’l Union, 407 F.3d at 1259. But comments are unlikely to impact a rule to which the United States has already effectively committed itself through international agreement. See Pena, 17 F.3d at 1486 (“After all . . . the agreement called for the United States to recognize Mexican [commercial divers’
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licenses] even if comments revealed widespread objections.”). Similarly, in the diplomatic context, agency action may be grounded in international reciprocity. See City of New York, 618 F.3d at 178 (noting that the State Department explained that its action “conforms to the general practice abroad of exempting government-owned property used for bilateral or multilateral diplomatic and consular mission housing”).
Here, however, the foreign affairs function exception does not excuse the Departments from failing to engage in notice-and-comment rulemaking before promulgating the Rule. The Rule overhauls the procedure through which the United States decides whether aliens who arrive at our southern border are eligible for asylum here, no matter the country from which they originally fled. These changes to our asylum criteria do not “clearly and directly” involve activities or actions characteristic of the conduct of international relations. They do not, for example, themselves involve the mechanisms through which the United States conducts relations with foreign states. Nor were they the product of any agreement between the United States and another country, regardless of any ongoing negotiations. To be sure, Defendants say they intended that the Rule would have downstream effects in other countries, and perhaps on those negotiations. Obviously, they expected that the Rule would cause more aliens to apply for protection in other countries before arriving in the United States and seeking asylum here. But these indirect effects do not clear the high bar necessary to dispense with notice-and-comment rulemaking under the foreign affairs function exception.
It may seem a quibble that the exception distinguishes between rules that “clearly and directly” involve activities characteristic of the conduct of international relations and those that have indirect international effects. And of course, the Court is bound to apply both Circuit precedent and the statutory text as it is, “even if it thinks some other approach might accord with
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good policy.” Loving v. IRS, 742 F.3d 1013, 1022 (D.C. Cir. 2014) (cleaned up). But it is worth pointing out that the Circuit’s holding in Califano and Congress’s use of the word “function”— instead of, say, “effects” or “implications”—prevent the foreign affairs function exception from swallowing the proverbial rule. There are many rulemakings that an agency might plausibly argue have downstream effects in other countries or on international negotiations in which the United States is perpetually engaged. Courts have, for example, warned that in the immigration context, the “dangers of an expansive reading of the foreign affairs exception . . . are manifest.” City of New York, 618 F.3d at 202. But this is true in other areas of the law as well. One agency might reach for a too-sweeping interpretation of the foreign affairs function exception to argue that a rule involving climate change that affects other countries is subject to the exception. Another might contend that a rule regarding domestic production of some good or commodity that impacts ongoing trade negotiations is covered. Thus, as Plaintiffs point out, courts of appeals have generally rejected the idea that the exception applies merely because a rule “implicate[s] foreign affairs,” City of New York, 618 F.3d at 202; see also Zhang, 55 F.3d at 744; Yassini, 618 F.2d at 1360 n.4, or “touche[s] on national sovereignty,” Jean, 711 F.2d at 1478. In the end, the narrowness of this exception does not mean that these agencies cannot take these hypothetical actions; it simply means that they are not excused from engaging in notice-andcomment rulemaking when they do.
Defendants argue that the Rule falls within the exception for two broad reasons, but neither passes muster. First, they say that the Rule implicates foreign affairs or the President’s foreign policy agenda. For example, they note that “the flow of aliens across the southern border directly implicates the foreign policy and national security of the United States.” Defs.’ Cross Mtn at 41 (cleaned up). They explain that the Rule is “linked intimately with the Government’s
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overall political agenda concerning relations with another country.” Id. at 43 (quoting Am. Ass’n
of Exps., 751 F.2d at 1249).23 And they add that the changes embodied in the Rule “involve the
relationship between the United States and its alien visitors that implicate our relations with
foreign powers, and implement the President’s foreign policy.”24 Id. (cleaned up). But for the
reasons already explained, although the Rule implicates foreign affairs at least indirectly, that
alone is not enough to satisfy the foreign affairs function exception.
Second, Defendants contend that notice-and-comment procedures would in some way
affect ongoing negotiations with other countries. For example, they assert that the Rule will
“facilitate ongoing diplomatic negotiations with foreign countries” about migration issues. Id. at
41 (quoting 84 Fed. Reg. at 33,842). They also argue that delaying the effective date of the Rule
would disturb the domestic political situation in other countries and hinder the United States’
23 Defendants go so far as to argue that this language should be the test for whether the foreign affairs function exception applies. Defs.’ Cross Mtn at 41. But for largely the same reasons the Court declines to adopt the “definitely undesirable international consequences” test, it declines to adopt this purported one as well. Nowhere does the statutory text suggest that being “linked intimately with the Government’s overall political agenda concerning relations with another country” meets the exception. And, as explained above, Congress could have—but did not— exempt rulemakings that merely affect or implicate foreign affairs. In addition, even the case from which Defendants pluck this language does not hold it out as a test for the exception; it is dicta. In fact, in that case the Federal Circuit held that the exception applied because notice and comment “would provoke definitely undesirable international consequences,” specifically, trade dumping. See Am. Ass’n of Exps., 751 F.2d at 1249 (quotation omitted). Finally, in that case the court appears to have weighed that the rule at issue involved authority Congress delegated to the President (that he then delegated to the agency) to negotiate export agreements with foreign countries and issue relevant regulations. See id. at 1241 (citing 7 U.S.C. § 1854 (1982)). Neither party here argues that the Rule involves power delegated to the President, or for that matter, that engaging in notice and comment rulemaking would unconstitutionally hinder any inherent constitutional power of the President. Contra Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018) (observing that 8 U.S.C. § 1182(f) “exudes deference to the President in every clause”).
24 Defendants do not argue that this case involves a challenge to the President’s own actions, which are “not reviewable . . . under the APA.” Franklin v. Massachusetts, 505 U.S. 788, 801 (1992).
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negotiating strategy. Id. at 42. And relatedly, they argue that the faster the Rule went into effect, the faster it would address the circumstances at our southern border, “thereby facilitating the likelihood of success in the United States’ ongoing negotiations with Mexico regarding regional and bilateral approaches to asylum, and supporting the President’s foreign-policy aims.” Id. (cleaned up). This argument gets Defendants no further. As explained above, downstream effects on foreign affairs or negotiations with other countries—either positive or negative—do not bring the Rule under this exception. And while negative international effects could well satisfy the good cause exception, Defendants do not make that argument, or back it up with an appropriate factual record, such as sworn declarations from appropriate officials.
Defendants also argue that the Court should defer to the Departments’ conclusion that the foreign affairs function exception applies. Defs.’ Supp. Br. at 4 (arguing that “principles of deference are heightened in the context of Defendants’ invocation of the ‘foreign affairs’ exception”). But they do not point to any case law suggesting that agencies are entitled to deference in interpreting the scope of the exception. That is hardly surprising. As this Circuit has explained, “an agency has no interpretive authority over the APA.” Sorenson, 755 F.3d at 706; see also Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 79 n.7 (D.C. Cir. 1999) (noting that “when it comes to statutes administered by several different agencies— statutes, that is, like the APA . . . —courts do not defer to any one agency’s particular interpretation”). And Defendants again point to cases like Holder, 561 U.S. at 35, see Defs.’ Supp. Br. at 5. The Court reiterates that there are many circumstances in which courts appropriately defer to the national security judgments of the Executive. But determining the scope of an APA exception is not one of them. As noted above, if engaging in notice-andcomment rulemaking before implementing the rule would have harmed ongoing international
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negotiations, Defendants could have argued that these effects gave them good cause to forgo

these procedures. And they could have provided an adequate factual record to support those

predictive judgments to which the Court could defer.25 But they did not do so.

*

*

*

For all the above reasons, the Court finds that the Rule is not exempt from the APA’s

notice-and-comment procedures. Because the Departments unlawfully dispensed with those

requirements, they issued the Rule “without observance of procedure required by law,” 5 U.S.C.

§ 706.

C. Remedy

The APA commands that courts “hold unlawful and set aside agency action[s]” taken

“without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). And the D.C. Circuit

has held that “[f]ailure to provide the required notice and to invite public comment . . . is a

fundamental flaw that ‘normally’ requires vacatur of the rule.” Heartland Reg’l Med. Ctr. v.

Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (citing Sugar Cane Growers Coop. of Fla. v.

Veneman, 289 F.3d 89, 97–98 (D.C. Cir. 2002)); see also Mack Trucks, 682 F.3d at 95 (“Because

EPA lacked good cause to dispense with required notice and comment procedures, we conclude

25 The portions of the administrative record that Defendants cite do not support a predictive judgment meriting deference that international negotiations would be harmed by notice-andcomment rulemaking. Some of those documents discuss an agreement between the United States and Mexico requiring aliens to remain in Mexico while their asylum cases in the United States are pending. See Defs.’ Cross Mtn at 42 (citing AR at 231–32, 537–57). Others include asylumrelated statistics. See id. (citing AR at 208–20, 222–30, 558–59). Still others include newspaper articles indicating that the United States is pressuring other countries to do more to help reduce the number of individuals who apply for asylum here. See id. (citing AR at 635–37, 698). But there is, for example, no sworn declaration from a relevant official that explains the nature of the ongoing negotiations and why notice-and-comment procedures would in fact harm them.
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the IFR must be vacated without reaching Petitioners’ alternative arguments.”). Having found that the Rule was enacted unlawfully, the Court sees no reason why it should not be vacated.
Defendants suggest several alternative remedies, but they offer no compelling reason why they make sense here. For example, they propose remand without vacatur. See ECF No. 62 83:21–84:17. And indeed, the D.C. Circuit has held—despite the text of the APA—that in some cases, a court may remand a defective rule without vacating it. See Allied–Signal, Inc. v. NRC, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (outlining the factors a court should consider when determining whether to remand without vacatur). That approach is not without some controversy. See Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring) (arguing that remand without vacatur is unlawful). But assuming it is ever appropriate, it is not warranted here.
Under Allied-Signal, to decide whether remand without vacatur is appropriate, courts look to two factors: “the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.” 988 F.2d at 150–51 (citation omitted). When the two factors are in equipoise, the resolution generally “turns on the Court’s assessment of the overall equities and practicality of the alternatives.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 270 (D.D.C. 2015).
As to the first factor, deficient notice “almost always require[s] vacatur,” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014); see also Shands Jacksonville Med. Ctr., 139 F. Supp. 3d at 268 (“The Court is unable to evaluate whether the Secretary’s decision was reasonable because her omission prevented the public from offering meaningful comments.”). And as discussed above, the protections that notice-and-comment procedures afford are
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especially important when the proposed regulation has an “expansive” reach, see Block, 655 F.2d at 1156, as the Rule does here. Moreover, offering the public the opportunity to comment after the fact is not a substitute. New Jersey, 626 F.2d at 1049–50. In addition, because Plaintiffs advance other colorable claims that the Rule is unlawful that the Court does not reach, “leaving the regulations in place during remand would ignore petitioners’ potentially meritorious challenges,” Natural Res. Def. Council v. EPA, 489 F.3d 1250, 1262 (D.C. Cir. 2007) (citation omitted).26 As to the second factor, Defendants have presented no evidence suggesting that “[t]he egg has been scrambled” so that “there is no apparent way to restore the status quo ante,” Sugar Cane Growers, 289 F.3d at 97. Indeed, that recent pandemic-related administrative action appears to have effectively closed the southern border indefinitely to aliens seeking asylum only underscores that vacatur of the Rule will not result in prohibitively disruptive consequences.27 Thus, both Allied-Signal factors weigh against remand without vacatur.
To be sure, courts in this Circuit have sometimes applied Allied-Signal, in one way or another, to stay vacatur when vacating a rule immediately would create confusion, see Chamber of Commerce v. SEC, 443 F.3d 890, 909 (D.C. Cir. 2006), when the parties both support a stay,
26 See also AFL-CIO v. Chao, 496 F. Supp. 2d 76, 93 (D.D.C. 2007) (“Vacatur thus has the virtue of eliminating the significant risk that unions will be forced in early 2008 to comply with a rule that this Court has found to be procedurally defective and whose substantive validity has not yet been confirmed.”). 27 See Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17,060 (Mar. 26, 2020); Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act, Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31,503 (May 26, 2020); see also Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico, 85 Fed. Reg. 16,547 (Mar. 24, 2020); Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico, 85 Fed. Reg. 37,745 (June 24, 2020).
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see Anacostia Riverkeeper, Inc. v. Jackson, 713 F. Supp. 2d 50, 52–55 (D.D.C. 2010), or “where a prolonged agency remand threatens to deprive one or more parties of significant rights,” Bauer v. DeVos, 332 F. Supp. 3d 181, 185 (D.D.C. 2018). But this case presents none of those situations.
Defendants also urge the Court to “limit any relief to the actual parties before the Court,” Defs.’ Supp. Br. at 5, pointing to Justice Thomas’s concurrence in Trump v. Hawaii, 138 S. Ct. 2392 (2018), id. at 7. But there, Justice Thomas addressed the propriety of nationwide injunctions, Trump, 138 S. Ct. at 2424–29, which is not the issue here. As the D.C. Circuit has explained—and as Defendants concede, see Defs.’ Supp. Br. at 9 n.1—“[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration in original) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)); see also O.A., 404 F. Supp. 3d at 153.28
Defendants also contend that vacatur is prohibited by several provisions of the INA, but again, the Court is not persuaded. They first argue that Section 1252(e)(1)’s prohibition on “declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with [expedited removal]” prohibits vacatur. Defs.’ Supp. Br. at 9–10.
28 Defendants’ reliance on the Fourth Circuit’s opinion in Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001), overruled by The Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012), is misplaced for the same reason. Defs.’ Supp. Br. at 6. The court in that case merely observed in dicta that the APA does not mandate nationwide injunctive relief. Virginia Soc’y for Human Life, 263 F.3d at 393–94. But even setting aside the practical challenges inherent in vacating the Rule only as to Plaintiffs in this case, see O.A., 404 F. Supp. 3d at 153, precedent in this Circuit instructs otherwise.
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But the organizational Plaintiffs, like CAIR and Tahirih, are not challenging any specific order to exclude an individual alien; they bring a facial challenge to the Rule. For that reason, Section 1252(e)(1) does not apply. Second, Defendants point to Section 1252(f)’s dictate that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–32] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Id. at 10–11. But again, that section does not apply here. The Rule was issued under 12 U.S.C. § 1158(b)(2)(c), see 84 Fed. Reg. at 33,835, not one of the provisions covered by Section 1252(f). See O.A., 404 F. Supp. 3d at 158. Moreover, by vacating the Rule, the Court is not enjoining or restraining the INA’s operation.29
Finally, Defendants argue that “in light of the Supreme Court’s order in Barr v. East Bay Sanctuary Covenant,” 140 S. Ct. 3 (2019), the Court should “stay the effect of any decision concerning relief pending resolution of East Bay.” Defs.’ Supp. Br. at 12–13. The Court sees no reason to do so. The parties in East Bay are still litigating the propriety and scope of preliminary relief, and the Supreme Court’s order simply stayed the nationwide scope of the preliminary injunction entered by the district court. At bottom, the Court can glean little from the Supreme
29 The Court sees no reason why the relief available to the organizational Plaintiffs would be governed by Section 1252. See Defs.’ Supp. Br. at 9–12. But even assuming it is, Defendants’ arguments also run headlong into Section 1252(e)(3), which authorizes courts in this District to make “determinations” about whether relevant regulations issued by the Attorney General are in violation of law. According to Defendants, the INA allows the Court only to issue these “determinations” from which no legal consequences flow. See id. at 10. But it would be very strange if Congress—in a section entitled “Challenges on validity of the system”—empowered this Court to determine that a regulation was unconstitutional but left it powerless to remedy it. Indeed, such a result could be inconsistent with Article III. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (noting that “a federal court has neither the power to render advisory opinions nor ‘to decide questions that cannot affect the rights of litigants in the case before them.’” (citation omitted)).
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Court’s one-paragraph order other than that a majority of Justices believed the factors meriting a stay were satisfied. See 140 S. Ct. at 3; see also Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers) (listing the factors the Supreme Court considers when deciding whether to grant a stay).
For these reasons, the Court holds that vacatur is the appropriate remedy and that neither remand without vacatur nor a stay of vacatur is warranted.
Conclusion For all these reasons, the Court will grant Plaintiffs’ Motions for Summary Judgment, CAIR ECF No. 41, I.A. ECF No. 6; deny Defendants’ Cross-Motions, CAIR ECF No. 43, I.A. ECF No. 17; and vacate the Rule. A separate order will issue.

Date: June 30, 2020

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

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