U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19−cv−02676−RDM

TYPE−E

L.M.−M. et al v. CUCCINELLI et al Assigned to: Judge Randolph D. Moss Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 09/06/2019 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

L.M.−M.

represented by John T. Lewis , III DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Email: jlewis@democracyforward.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Manoj Govindaiah REFUGEE AND IMMIGRANT CENTER FOR EDUCATON AND LEGAL SERVICES 802 Kentucky Avenue San Antonio, TX 78201 United Sta 210−787−3745 Fax: 210−787−3745 Email: manoj.govindaiah@raicestexas.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley Jenkins CATHOLIC LEGAL IMMIGRATION NETWORK, INC. 8757 Georgia Avenue Suite 850 Silver Spring, MD 20910 301−565−4820 Fax: 301−565−4820 Email: bjenkins@cliniclegal.org ATTORNEY TO BE NOTICED

Plaintiff
B.M.−M. A minor, by and through her Next Friend, L.M.−M.

represented by John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff V.M.−M. A minor, by and through her Next Friend, L.M.−M.
Plaintiff M.A.−H.
Plaintiff I.M.−A. A minor, by and through her Next Friend, M.A.−H.
Plaintiff S.G.−C.
Plaintiff

represented by John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by

B.O.−G. A minor, by and through her Next Friend, S.G.−C.
Plaintiff REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES
V. Defendant KENNETH T. CUCCINELLI, II In his purported official capacity as acting Director of U.S. Citizenship and Immigration Services

John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by John T. Lewis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manoj Govindaiah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar U.S. DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 598−8060 Email: Archith.Ramkumar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julian Michael Kurz U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 616−4962 Email: julian.m.kurz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham U.S. DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 353−5049 Email: james.burnham@usdoj.gov TERMINATED: 02/07/2020

Defendant KEVIN K. MCALEENAN In his official capacity as acting Secretary of Homeland Security
Defendant U.S. DEPARTMENT OF HOMELAND SECURITY
Defendant U.S. CITIZENSHIP & IMMIGRATION SERVICES
Amicus MORTON ROSENBERG

ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julian Michael Kurz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/07/2020 ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julian Michael Kurz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/07/2020 ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julian Michael Kurz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/07/2020 ATTORNEY TO BE NOTICED
represented by Gregory M. Lipper CLINTON & PEED 777 6th Street, NW 11th Floor Washington, DC 20001 (202) 996−0919 Fax: (202) 204−6320 Email: glipper@clintonpeed.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/06/2019
09/06/2019 09/06/2019
09/10/2019 09/11/2019 09/11/2019 09/13/2019
09/19/2019 09/20/2019 09/25/2019 09/26/2019

# Docket Text
1 COMPLAINT against KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400, receipt number 4616100516) filed by S.G.−C., B.M.−M., M.A.−H., I.M.−A., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, L.M.−M., B.O.−G., V.M.−M.. (Attachments: # 1 Civil Cover Sheet, # 2 Certificate of Service)(ztd) (Entered: 09/10/2019)
2 SEALED MOTION filed by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, S.G.−C., V.M.−M.. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Certificate of Service, # 2 Text of Proposed Order, # 3 Exhibit)(ztd) (Entered: 09/10/2019)
3 SEALED ORDER re 2 SEALED MOTION filed by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, S.G.−C., V.M.−M.. (This document is SEALED and only available to authorized persons.) filed by M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, B.O.−G., S.G.−C., L.M.−M., B.M.−M., V.M.−M., I.M.−A..(This document is SEALED and only available to authorized persons.)Signed by Chief Judge Beryl A. Howell on 9/6/19.(ztd) (Entered: 09/10/2019)
4 SUMMONS (6) Issued Electronically as to KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(ztd) (Entered: 09/10/2019)
5 STANDING ORDER: The parties are hereby ORDERED to comply with the directives set forth in the attached Standing Order. See document for details. Signed by Judge Randolph D. Moss on 09/11/2019. (lcrdm2, ) (Entered: 09/11/2019)
6 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES (Lewis, John) (Entered: 09/11/2019)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KENNETH T. CUCCINELLI, II served on 9/12/2019; KEVIN K. MCALEENAN served on 9/12/2019; U.S. CITIZENSHIP & IMMIGRATION SERVICES served on 9/12/2019; U.S. DEPARTMENT OF HOMELAND SECURITY served on 9/12/2019, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 9/13/19., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/13/2019. ( Answer due for ALL FEDERAL DEFENDANTS by 11/12/2019.) (Attachments: # 1 Declaration)(Lewis, John) (Entered: 09/13/2019)
8 Joint MOTION for Briefing Schedule and Stipulation by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., S.G.−C., V.M.−M. (Attachments: # 1 Text of Proposed Order)(Lewis, John) (Entered: 09/19/2019)
9 NOTICE of Appearance by Manoj Govindaiah on behalf of All Plaintiffs (Govindaiah, Manoj) (Entered: 09/20/2019)
10 NOTICE of Appearance by Julian Michael Kurz on behalf of All Defendants (Kurz, Julian) (Entered: 09/25/2019)
MINUTE ORDER: Upon consideration of the parties' joint proposed briefing schedule, Dkt. 8, it is hereby ORDERED that the motion is GRANTED. The following schedule shall govern future proceedings in this matter: Plaintiffs shall file their motion for preliminary injunction on or before September 27, 2019; Defendants shall file their opposition on or before October 21, 2019; and Plaintiffs shall file their reply on or before October 28, 2019. It is further ORDERED that the parties shall appear for oral argument on Plaintiffs' motion for preliminary injunction on December 3, 2019, at 10:00a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 09/26/2019.

09/26/2019 09/27/2019
09/27/2019
09/27/2019 09/28/2019 10/07/2019 10/08/2019 10/08/2019 10/08/2019 10/21/2019 10/21/2019
10/21/2019

(lcrdm2, ) (Entered: 09/26/2019)
Set/Reset Deadlines/Hearings: Plaintiffs shall file their motion for preliminary injunction on or before 9/27/2019; Plaintiffs shall file their motion for preliminary injunction on or before 10/21/2019; Plaintiffs shall file their reply on or before 10/28/2019. Motion Hearing set for 12/3/2019, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 09/26/2019)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Bradley Jenkins, :Firm− Catholic Legal Immigration Network, Inc., :Address− 8757 Georgia Ave., Suite 850, Silver Spring, MD 20910. Phone No. − (301) 565−4820. Filing fee $ 100, receipt number 0090−6404536. Fee Status: Fee Paid. by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, S.G.−C., V.M.−M. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Lewis, John) (Entered: 09/27/2019)
12 MOTION for Preliminary Injunction by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, S.G.−C., V.M.−M. (Attachments: # 1 Declaration of Bridget Cambria, # 2 Declaration of Shalyn Fluharty, # 3 Declaration of L.M.−M., # 4 Declaration of M.A.−H., # 5 Declaration of Andrea Meza, # 6 Declaration of Catherine Monk and Exhibits, # 7 Declaration of Dr. Anita Ravi, # 8 Text of Proposed Order)(Lewis, John) Modified on 1/8/2020 to correct docket event/text (jf). (Entered: 09/27/2019)
29 MOTION for Partial Summary Judgment by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., S.G.−C., V.M.−M. (See Minute Order filed on 01/09/2020) (jf) (Entered: 01/24/2020)
MINUTE ORDER: Upon consideration of Plaintiffs' Motion for Leave to Appear Pro Hac Vice, Dkt. 11, it is hereby ORDERED that the motion is GRANTED. Bradley Jenkins is hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 09/28/2019. (lcrdm2, ) (Entered: 09/28/2019)
13 Consent MOTION for Leave to File Amicus Brief by MORTON ROSENBERG (Attachments: # 1 Exhibit Amicus Brief) (jf) (Entered: 10/08/2019)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− J. Carl Cecere, :Firm− Cecere PC, :Address− 6035 McCommas Blvd.. Phone No. − 469−600−9455. Fax No. − NA Filing fee $ 100, receipt number ADCDC−6430083. Fee Status: Fee Paid. by MORTON ROSENBERG (Attachments: # 1 Affidavit Declaration of J. Carl Cecere, # 2 Text of Proposed Order Proposed Order)(Lipper, Gregory) (Entered: 10/08/2019)
MINUTE ORDER: Upon consideration of Morton Rosenberg's unopposed motion for leave to file an amicus curiae brief, Dkt. 13, it is hereby ORDERED that the motion is GRANTED. The brief that Mr. Rosenberg attached to his motion, Dkt. 13−1, is hereby deemed FILED. Signed by Judge Randolph D. Moss on 10/08/2019. (lcrdm2, ) (Entered: 10/08/2019)
15 AMICUS BRIEF by MORTON ROSENBERG. (ztd) (Entered: 10/09/2019)
16 NOTICE of Appearance by Archith Ramkumar on behalf of All Defendants (Ramkumar, Archith) (Entered: 10/21/2019)
17 Memorandum in opposition to re 12 MOTION for Preliminary Injunction filed by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration of Ashley Caudill−Mirillo, # 2 Declaration of Paul Johnson, # 3 Declaration of Michelle Monroe, # 4 Declaration of Julianna Blackwell)(Ramkumar, Archith) (Entered: 10/21/2019)
18 ADMINISTRATIVE RECORD Notice of Electronic Filing by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Index−Administrative Record, # 2 Exhibit Certification of Administrative Record, # 3 Exhibit Administrative Record)(Ramkumar, Archith) (Entered: 10/21/2019)

10/22/2019 10/28/2019 11/19/2019 11/20/2019 12/01/2019 12/03/2019
12/10/2019
12/10/2019 12/11/2019

MINUTE ORDER: Upon consideration of Amici's Motion for Leave to Appear Pro Hac Vice, Dkt. 14, it is hereby ORDERED that the motion is GRANTED. Joseph Carl Cecere is hereby granted leave to appear pro hac vice in this case. Signed by Judge Randolph D. Moss on 10/21/2019. (lcrdm2, ) (Entered: 10/22/2019)
19 REPLY to opposition to motion re 12 MOTION for Preliminary Injunction filed by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, S.G.−C., V.M.−M.. (Lewis, John) (Entered: 10/28/2019)
20 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Ramkumar, Archith) (Entered: 11/19/2019)
MINUTE ORDER: Upon consideration of Defendants' Consent Motion for an Extension of Time for Defendants to Answer or Otherwise Respond to the Complaint, Dkt. 20, it is hereby ORDERED that Defendants' Motion is GRANTED. Defendants shall file their answer or otherwise respond to the Complaint within fourteen days of the Court's issuance of its ruling on Plaintiffs' pending preliminary injunction motion. Signed by Judge Randolph D. Moss on 11/20/2019. (lcrdm2, ) (Entered: 11/20/2019)
21 NOTICE of Appearance by James Mahoney Burnham on behalf of All Defendants (Burnham, James) (Entered: 12/01/2019)
Minute Entry for proceedings held before Judge Randolph D. Moss: Motion Hearing held on 12/3/2019 re: 12 MOTION for Preliminary Injunction filed by M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, B.O.−G., S.G.−C., L.M.−M., B.M.−M., V.M.−M., and I.M.−A. Plaintiffs' statement of material facts and any additional factual submission, in support thereof, are due by 12/10/2019; Defendants' response and supplemental brief are due 12/17/2019; Plaintiffs' response to Defendants' supplemental brief is due by 12/24/2019. Briefs shall be no more than 25 pages. (Court Reporter: Sara Wick.) (kt) (Entered: 12/03/2019)
22 NOTICE of Filing Statement of Undisputed Material Facts by B.M.−M., B.O.−G., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, S.G.−C., V.M.−M. re 12 MOTION for Preliminary Injunction (Attachments: # 1 Statement of Facts, # 2 Declaration Supplemental Declaration of Shalyn Fluharty, # 3 Declaration Declaration of I.M.−A., # 4 Declaration Supplemental Declaration of L.M.−M., # 5 Declaration Supplemental Declaration of M.A.−H., # 6 Declaration Supplemental Declaration of Andrea Meza, # 7 Text of Proposed Order)(Lewis, John) (Entered: 12/10/2019)
23 NOTICE of Voluntary Dismissal re S.G.−C. and B.O.−G. (Lewis, John) (Entered: 12/10/2019)
24 TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on 12/3/19; Page Numbers: 1−122. Court Reporter/Transcriber Sara A. Wick, RPR, CRR, Telephone number 202−354−3284, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 1/1/2020. Redacted Transcript Deadline set for 1/11/2020. Release of Transcript Restriction set for 3/10/2020.(ztnr) (Entered: 12/11/2019)

12/17/2019
12/17/2019 12/17/2019 12/24/2019 01/09/2020
01/09/2020 01/24/2020 01/27/2020 02/04/2020 02/07/2020 03/01/2020
03/01/2020

25 SUPPLEMENTAL MEMORANDUM re 12 Motion for Preliminary Injunction by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration Supplemental Declaration of Ashley Caudill−Mirillo)(Ramkumar, Archith) Modified text and linkage on 12/18/2019 (ztd). (Entered: 12/17/2019)
26 RESPONSE re 22 Notice (Other),, filed by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Ramkumar, Archith) (Entered: 12/17/2019)
27 SUPPLEMENTAL MEMORANDUM to re Motion Hearing,,, Set Deadlines,, Defendants' Statement of Undisputed Material Facts filed by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (Ramkumar, Archith) (Entered: 12/17/2019)
28 SUPPLEMENTAL MEMORANDUM to re 12 MOTION for Partial Summary Judgment filed by B.M.−M., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, V.M.−M.. (Attachments: # 1 Opposition to Defendants' Statement of Undisputed Material Facts)(Lewis, John) (Entered: 12/24/2019)
MINUTE ORDER: As previously advised, and with consent of the parties, it is hereby ORDERED that, pursuant to Federal Rule of Civil Procedure 65(a)(2), the pending motion for preliminary injunction, Dkt. 12, shall be treated as a partial motion for summary judgment. The Clerk of the Court is directed to create the following events on the docket: (i) Plaintiffs' Motion for Partial Summary Judgment, dated September 27, 2019, and (ii) Defendants' Motion for Partial Summary Judgment, dated December 17, 2019. Signed by Judge Randolph D. Moss on 01/09/2020. (lcrdm2, ) (Entered: 01/09/2020)
30 MOTION for Partial Summary Judgment by KENNETH T. CUCCINELLI, II, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY. (See Minute Order filed on 01/09/2020) (jf) (Entered: 01/24/2020)
31 NOTICE Regarding Relevant Pending D.C. Circuit Cases by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY (Ramkumar, Archith) (Entered: 01/24/2020)
32 RESPONSE re 31 Notice (Other) filed by B.M.−M., I.M.−A., L.M.−M., M.A.−H., REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, V.M.−M.. (Lewis, John) (Entered: 01/27/2020)
33 MOTION to Withdraw as Attorney by KENNETH T. CUCCINELLI, II, KEVIN K. MCALEENAN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY (Burnham, James) (Entered: 02/04/2020)
MINUTE ORDER: Upon consideration of Attorney Burnham's motion to withdraw appearance 33 , it is hereby ORDERED that the motion is GRANTED. Signed by Judge Randolph D. Moss on 02/07/2020. (lcrdm2, ) (Entered: 02/07/2020)
34 MEMORANDUM OPINION AND ORDER: granting in part and denying in part Plaintiffs' partial motion for summary judgment, Dkt. 29, and granting in part and denying in part Defendants' partial motion for summary judgment, Dkt. 30. See document for details. Signed by Judge Randolph D. Moss on 03/01/2020. (lcrdm2, ) Modified on 3/2/2020 to change document type to "Opinion" (kt). (Entered: 03/01/2020)
MINUTE ORDER: In light of the Court's Memorandum Opinion and Order, Dkt. 34 , the parties are hereby ORDERED to file a joint status report on or before March 13, 2020, proposing recommended next steps for this litigation, including whether the Court should enter final judgment pursuant to Rule 54(b). Signed by Judge Randolph D. Moss on 03/01/2020. (lcrdm2, ) (Entered: 03/01/2020)

 
 Case 1:19-cv-02676-RDM Document 1 Filed 09/06/19 Page 1 of 68

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

L.M.-M., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005,
B.M.-M., a minor, by and through her Next Friend, L.M.-M., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005,
V.M.-M., a minor, by and through her Next Friend, L.M.-M., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005,
M.A.-H., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005,
I.M.-A., a minor, by and through her Next Friend, M.A.-H., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005,
S.G.-C., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005,
B.O.-G., a minor, by and through her Next Friend, S.G.-C., c/o Democracy Forward Foundation 1333 H St. NW Washington, DC 20005, and
REFUGEE & IMMIGRANT CENTER FOR EDUCATION & LEGAL SERVICES, 1305 N. Flores Street

Case No.

Case 1:19-cv-02676-RDM Document 1 Filed 09/06/19 Page 2 of 68
San Antonio, Texas 78212,
Plaintiffs,
vs.
KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services,
20 Massachusetts Ave NW, Washington, DC 20529,
U.S. CITIZENSHIP & IMMIGRATION SERVICES,
20 Massachusetts Ave NW, Washington, DC 20529,
KEVIN K. MCALEENAN, in his official capacity as acting Secretary of Homeland Security,
2707 Martin Luther King Jr Ave SE, Washington, DC 20528,
U.S. DEPARTMENT OF HOMELAND SECURITY,
2707 Martin Luther King Jr Ave SE, Washington, DC 20528, and
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:19-cv-02676-RDM Document 1 Filed 09/06/19 Page 3 of 68
TABLE OF CONTENTS
JURISDICTION AND VENUE ..................................................................................................... 4 PARTIES ........................................................................................................................................ 4 LEGAL BACKGROUND .............................................................................................................. 5
I. The United States’ Duty to Provide Refuge to Victims of Persecution.................. 5 II. The Expedited Removal System ............................................................................. 7 III. United States Citizenship and Immigration Services............................................ 11 IV. The Appointments Clause and the Federal Vacancies Reform Act...................... 13 FACTUAL ALLEGATIONS ....................................................................................................... 15 I. The Challenges Facing Asylum Seekers at the Dilley and Karnes Detention
Centers .................................................................................................................. 15 The Dilley and Karnes Detention Centers ................................................ 15 The Difficulty of Navigating the Credible Fear Process .......................... 18 The Importance of Adequate Consultation and Legal Orientation ........... 20
II. The Trump Administration’s Animus Toward Asylum Seekers .......................... 24 III. The President’s Unlawful Appointment of Mr. Cuccinelli................................... 31 IV. Mr. Cuccinelli’s Unlawful Asylum Directives ..................................................... 38
Shortening Asylum Seekers’ Time to Prepare for Interviews .................. 39 Denying Virtually All Continuances ........................................................ 41 Eliminating In-Person Orientation ............................................................ 43 V. Plaintiffs’ Harms from the Unlawful Asylum Directives ..................................... 45 Individual Plaintiffs .................................................................................. 45 1. L.M.-M., B.M.-M., and V.M.-M. ................................................. 47 2. M.A.-H. and I.M.-A. ..................................................................... 48 3. S.G.-C. and B.O.-G. ...................................................................... 49 Refugee and Immigrant Center for Education and Legal Services........... 50 CLAIMS FOR RELIEF ................................................................................................................ 53 Count One (Violation of 8 U.S.C. § 1225 and its implementing regulations, 8 C.F.R. §§ 208.30, 235.3).................................................................................... 53 Count Two (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)) ...... 54 Count Three (Violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706(2)(D)) ............................................................................................................. 55 Count Four (Violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.)...................... 56 Count Five (Violation of the First Amendment, U.S. Const. amend. I) ........................... 58
i

Case 1:19-cv-02676-RDM Document 1 Filed 09/06/19 Page 4 of 68 Count Six (Violation of the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.) .... 59 Count Seven (Violation of the Appointments Clause of the U.S. Constitution,
U.S. Const. art. II, § 2, cl. 2) ................................................................................. 60 Count Eight (Ultra Vires Action) ..................................................................................... 61 REQUEST FOR RELIEF ............................................................................................................. 61
ii

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Plaintiffs L.M.-M., B.M.-M., V.M.-M, M.A.-H., I.M.-A., S.G.-C., B.O.-G., and the Refugee & Immigrant Center for Education & Legal Services hereby sue Defendants Kenneth T. Cuccinelli II, in his purported official capacity as Acting Director of U.S. Citizenship and Immigration Services, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, U.S. Citizenship and Immigration Services, and the U.S. Department of Homeland Security, and allege as follows:
Defendants recently altered long-standing procedures in ways that unlawfully impinge on the right to seek asylum in the United States. This case challenges their new procedures.
The United States has a duty—one imposed by domestic law, international treaties, and the nation’s most fundamental commitments—to provide refuge to victims of persecution. That obligation has no less force in the context of the expedited removal system that Congress established in 1996 to promptly process asylum requests presented by people who have entered the United States without inspection. While the expedited removal statute provides an abbreviated process for assessing whether an asylum seeker’s fear of persecution is credible, Congress nevertheless specifically included critical protections as part of that assessment process, designed to ensure that asylum seekers understand their legal rights, have an adequate opportunity to consult with third parties, including counsel, and thus are able to meaningfully present their asylum claims.
Defendants have discarded long-standing protections in a series of recent directives that undermine the credible fear evaluation process (the “Asylum Directives” or the “Directives”). Until recently, asylum seekers were generally entitled to a minimum of 48 hours from the time they received notice of their interview or from the time of arrival to consult with
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third parties and to prepare for their interviews. Defendants have now reduced that time to a “full calendar day,” measured from the time an asylum seeker arrives at the ICE detention center— which, in practice, results in asylum seekers receiving notice the night before their interview, affording them but a few hours to prepare for an interview that could mean life or death (the “Shortened Wait Period Directive”). Also, prior to the Asylum Directives, asylum seekers could request continuances if they needed more time to consult with or retain counsel or other third parties, gather evidence, organize the presentation of facts that support their claims, arrange translation, or raise competency issues. Now continuances are virtually forbidden (the “Continuance Denial Directive”). Additionally, certain particularly vulnerable asylum seekers were long provided with an in-person legal orientation to ensure that they understood their rights. Now they are not (the “No Legal Orientation Directive”).
Individually and collectively, the Directives violate the Constitution and federal law. Specifically, the Directives undermine asylum seekers’ rights to consult with third parties, to prepare for their interviews, and to participate effectively in those interviews. The Directives are also arbitrary and capricious, because Defendants issued them without adequate consideration of the effect on asylum seekers, and procedurally invalid, because they were implemented without notice and comment. Moreover, by discriminating against, denying reasonable accommodations to, and ultimately, excluding asylum seekers with trauma-related and other mental and physical impairments, they violate the Rehabilitation Act. And, by preventing asylum seekers from associating and communicating with third parties, and vice versa, they violate the First Amendment.
Moreover, these directives were issued by an unlawful acting official: Kenneth T. Cuccinelli II, the purported Acting Director of U.S. Citizenship and Immigration Services
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(“USCIS”). Mr. Cuccinelli does not satisfy the legal requirements to serve as Acting USCIS Director under the Federal Vacancies Reform Act (“FVRA”) and the Appointments Clause of the U.S. Constitution. He therefore lacks lawful authority to serve as the USCIS Acting Director, and any directives he issues in that capacity are therefore invalid.
Through these Directives, Defendants have inflicted, and are inflicting, substantial irreparable harm to plaintiffs in this suit. Defendants, through the Directives, have harmed L.M.M., B.M.-M., V.M.-M, M.A.-H., I.M.-A., S.G.-C., and B.O.-G. (the “Individual Plaintiffs”), who are currently detained at the South Texas Family Residential Center in Dilley, Texas (the “Dilley Detention Center,” or “Dilley”) by depriving them of their rights under the governing statutes and regulations and by preventing them from effectively presenting their claims during their credible fear interviews. As a result of these unfair and unlawful changes, the Individual Plaintiffs, and many others like them, now face removal to countries where they face persecution and violence.
Defendants, through the Directives, have also harmed the Refugee and Immigrant Center for Education and Legal Services (“RAICES”), which provides pro bono legal services to asylum seekers at the Karnes County Residential Center in Karnes City, Texas (the “Karnes Detention Center,” or “Karnes”). Specifically, Defendants have made it even harder for RAICES to continue providing legal services to the women detained at Karnes, forcing them to divert resources in order to maintain even the limited offering of legal services that remain possible under the Directives.
For these reasons, and as described more fully below, the Court should declare that the Asylum Directives are unlawful and enjoin Defendants from continuing to apply them in
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processing and adjudicating asylum applications, and declare that Mr. Cuccinelli’s appointment as Acting USCIS Director is unlawful.
JURISDICTION AND VENUE This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331, because this action arises under federal law, and under 8 U.S.C. § 1252(e)(3). Venue is proper in this district under 28 U.S.C. § 1391(e), because Defendants are officers and agencies of the United States and are located in the District of Columbia, and under 8 U.S.C. § 1252(e)(3).
PARTIES Plaintiffs L.M.-M. and her minor children B.M.-M. and V.M.-M. are Honduran nationals seeking asylum in the United States. They are detained at the Dilley Detention Center. Plaintiffs M.A.-H. and her minor child I.M.-A. are Honduran nationals seeking asylum in the United States. They are detained at the Dilley Detention Center. Plaintiffs S.G.-C. and her minor child B.O.-G. are Honduran nationals seeking asylum in the United States. They are detained at the Dilley Detention Center. Plaintiff Refugee and Immigrant Center for Education and Legal Services, based in San Antonio, Texas, is a nonprofit legal services organization that coordinates the Karnes Pro Bono Project. Through the Karnes Pro Bono Project, RAICES provides pro bono legal services, advocacy, and litigation on behalf of detained individuals at the Karnes Detention Center. RAICES, through its staff and Karnes Pro Bono Project volunteers, has been active at the Karnes Detention Center since it opened, in July 2014, and has provided legal services to over 20,000 non-citizens detained at the Karnes Detention Center since that time. Defendant Kenneth T. Cuccinelli II is sued in his purported official capacity as Acting Director of U.S. Citizenship and Immigration Services.
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Defendant USCIS is a federal agency headquartered in Washington, DC, at 20 Massachusetts Ave NW, Washington, DC 20529.
Defendant Kevin K. McAleenan is sued in his official capacity as Acting Secretary of Homeland Security.
Defendant U.S. Department of Homeland Security (“DHS”) is a federal agency headquartered in Washington, DC at 2707 Martin Luther King Jr Ave SE, Washington, DC 20528.
LEGAL BACKGROUND I. The United States’ Duty to Provide Refuge to Victims of Persecution
The United States has long pledged to provide sanctuary to those fleeing persecution and suffering abroad. Emma Lazarus’s The New Colossus, inscribed at the base of the Statue of Liberty, describes the Statue as the “Mother of Exiles,” and famously declares:
Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door! “[W]elcoming homeless refugees to our shores” is “one of the oldest themes in America’s history,” and part of “our national commitment to human rights and humanitarian concerns.” S. Rep. No. 256, 96th Cong., 1st Sess. 1 (1979) (Senate Report on the Refugee Act of 1980).
This commitment to the protection of victims of persecution is reflected in binding international treaties signed by the United States in the wake of the atrocities that refugees experienced during the World War II era. In 1968, the United States acceded to the 1967 United Nations Protocol Relating to the Status of Refugees, and thereby “agreed to comply with the substantive provisions of Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees.” INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987). Under
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Article 33.1 of the Convention, the United States may not “return an alien to a country where his ‘life or freedom would be threatened’ on account” of a protected characteristic. Id. And, under Article 34, the United States “shall as far as possible facilitate the assimilation and naturalization of refugees.” Id. at 441.
To fulfill these international legal obligations, Congress enacted the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 105. “Congress’ intent in enacting the Refugee Act was to align domestic refugee law with the United States’ obligations under the Protocol, to give statutory meaning to ‘our national commitment to human rights and humanitarian concerns,’ and ‘to afford a generous standard for protection in cases of doubt.’” Grace v. Whitaker, 344 F. Supp. 3d 96, 106 (D.D.C. 2018) (quoting In Re S-P-, 21 I. & N. Dec. 486, 492 (B.I.A. 1998)).
Under the Refugee Act, “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1). Thus, Congress specifically decreed that whether a non-citizen lawfully entered the United States has no bearing on that person’s ability to seek asylum.
To be eligible for asylum, an asylum seeker must demonstrate “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42). A grant of asylum means that “the Attorney General shall not remove or return the alien to the alien’s country of nationality or, in the case of a person having no nationality, the country of the alien’s last habitual residence.” Id. § 1158(c)(1).
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If the asylum seeker does not receive a discretionary grant of asylum, the person may nonetheless be eligible for withholding of removal or protection under the Convention Against Torture, which is mandatory if they make the requisite showing of fear of persecution or torture and are not subject to any bars. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.16, 1208.18; Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005). II. The Expedited Removal System
“Prior to 1996, every person who sought admission into the United States was entitled to a full hearing before an immigration judge, and had a right to administrative and judicial review.” Grace, 344 F. Supp. 3d at 107.
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA established a new system for processing certain categories of recent entrants to the United States, commonly referred to as the “expedited removal system.” IIRIRA otherwise preserved the preexisting removal system, including, in relevant part, its guarantees that a non-citizen has “the privilege of being represented (at no expense to the Government) by such counsel … as he shall choose,” 8 U.S.C. § 1362, and that immigration judges must “prescribe safeguards to protect the rights and privileges” of non-citizens who lack mental competency, id. § 1229a(b)(3).
The expedited removal system allows DHS to remove certain non-citizens from the United States without a removal hearing before an immigration judge. Specifically, noncitizens who have engaged in fraud or misrepresentation to obtain admission to the United States, id. § 1182(a)(6)(C), or who lack proper documentation, id. § 1182(a)(7), can be “removed from the United States without further hearing or review.” Id. § 1225(b)(1)(A)(i).
The statute requires, however, that non-citizens who seek asylum must receive additional review before DHS may remove them. A non-citizen who indicates an intention to
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apply for asylum or a fear of persecution in his or her home country must be provided with an interview to demonstrate that their fear of persecution or torture is credible (commonly referred to as a “credible fear interview”). Id. § 1225(b)(l)(A)(ii). If an asylum officer determines that it is, the asylum seeker is placed in removal proceedings under Section 240 of the Immigration and Nationality Act and permitted to apply for asylum.
The credible fear standard is defined as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.” 8 U.S.C. § 1225(b)(1)(B)(v).
Congress incorporated this exception and its attendant protections because it recognized that “[e]xpediting the removal process … risks sending individuals who are potentially eligible for asylum to their respective home countries where they face a real threat, or have a credible fear of persecution.” Grace, 344 F. Supp. 3d at 107; see also Cardoza-Fonseca, 480 U.S. at 449 (“While deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country.”).1
Prior to a credible fear interview, the government “shall provide information concerning the asylum interview,” which includes a description of the process and the noncitizen’s legal rights. 8 U.S.C. § 1225(b)(1)(B)(iv).
1 See also 1 Report on Asylum Seekers in Expedited Removal, U.S. Comm’n on Int’l Religious Freedom (Feb. 2005), https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/Volume_I.pdf (explaining that Congress included these provisions out of concern “that bona fide asylum seekers not be removed to countries where they may be persecuted”).
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In particular, the asylum seeker is entitled to “consult with a person or persons of [their] choosing,” provided that “[s]uch consultation shall be at no expense to the Government and shall not unreasonably delay the process.” Id. The U.S. District Court for the District of Columbia has construed this statutory right of consultation to attach before a credible fear interview takes place. Am. Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 54 (D.D.C. 1998), aff’d, 199 F.3d 1352 (D.C. Cir. 2000).
DHS has enacted regulations to implement these statutory mandates. Specifically, pursuant to these regulations, at the time the inspecting officer refers an asylum seeker for a credible fear interview, the officer must provide the asylum seeker with a written disclosure on Form M-444, Information About Credible Fear Interview, that outlines the purpose of the interview process and the procedural rights of the asylum seeker. 8 C.F.R. § 235.3(b)(4)(i). The regulations reiterate that the asylum seeker “shall be given time to contact and consult with any person or persons of his or her choosing … in accordance with the policies and procedures of the detention facility where the alien is detained,” provided that contact and consultation “shall be at no expense to the government, and shall not unreasonably delay the process.” Id. § 235.3(b)(4)(ii). Similarly, the regulations governing the interview reiterate that the asylum officer may reschedule the interview if the applicant “is unable to participate effectively in the interview because of illness, fatigue, or other impediments,” that the asylum officer must verify that the asylum seeker received Form M-444 and possesses “an understanding of the credible fear determination process,” that the asylum seeker may consult with persons of their choosing, who may also attend the interview, and present a statement if permitted in the asylum officer’s
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discretion, that “the asylum officer shall arrange for the assistance of an interpreter” if necessary, and that “[t]he asylum officer shall create a summary of the material facts as stated by the applicant.” Id. § 208.30(d).
Under previous DHS policy at some detention centers, asylum seekers received a Form G-56, which informed them of the time of their interview, and then had a minimum of 48 hours to prepare for their credible fear interview, as well as the opportunity to request a continuance if they required additional time to prepare. At other facilities, the time began when the asylum seeker arrived at the detention center.2
Ultimately, the interview is intended to “elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.” Id. § 208.30(d). The asylum officer must also consider whether the asylum seeker’s “case presents novel or unique issues that merit consideration in a full hearing before an immigration judge.” Id. § 208.30(e)(4).
After the interview, the asylum officer “shall create a written record of his or her determination, including a summary of the material facts as stated by the applicant, any additional facts relied on by the officer, and the officer’s determination.” Id. § 208.30(e)(1).
If the asylum officer determines that the asylum seeker has a credible fear of persecution, then USCIS issues a Notice to Appear to the asylum seeker and places them in removal proceedings before an immigration judge, allowing them to apply for asylum. 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f).
2 Hamed Aleaziz, Immigrant Asylum-Seekers May Get Less Time To Prepare Their Cases Under A New Trump Administration Rule, BuzzFeed News (July 9, 2019), https://www.buzzfeednews.com/article/hamedaleaziz/immigrant-asylum-seekers-less-time-toprepare [hereinafter Aleaziz, Immigrant Asylum-Seekers].
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If the asylum officer determines that the asylum seeker does not have a credible fear of persecution, then the asylum seeker may receive only “prompt review by an immigration judge” of that determination, which “shall include an opportunity to be heard and questioned by the immigration judge,” but “shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days.” Id. § 1225(b)(1)(B)(iii)(II). In conducting that review, the immigration judge has access to “[t]he record of the negative credible fear determination.” 8 C.F.R. § 208.30(g)(2).
If the immigration judge agrees with the asylum officer’s negative determination, there is no provision for further review of that decision, though USCIS, in its discretion, may reconsider an initial negative determination. In fact, the government will generally work quickly to remove the asylum seeker from the United States. Moreover, non-citizens who are deemed unable to demonstrate credible fear and whom the immigration judge orders removed from the country are subject to a five-year bar on admission to the United States unless they qualify for a discretionary waiver. 8 U.S.C. § 1182(a)(9)(A)(i); 8 C.F.R. § 212.2.
In sum, the case of each asylum seeker in expedited removal turns on the effective presentation of their asylum claim at the credible fear interview. III. United States Citizenship and Immigration Services
The expedited removal system is administered in part by Defendant U.S. Citizenship and Immigration Services. In particular, USCIS employees conduct credible fear interviews.
Through the Homeland Security Act of 2002, Congress established USCIS as a subagency of the Department of Homeland Security and consolidated various Executive Branch immigration functions within DHS. See Pub. L. No. 107-296, Subtitle E, 116 Stat. 2195 (2002), codified at 6 U.S.C. § 271 et seq.
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The Homeland Security Act established the position of Director as the head of USCIS, and provided that he or she shall be “appointed by the President, by and with the advice and consent of the Senate.” 6 U.S.C. §§ 113, 271.
The USCIS Director has sweeping authority to “establish the policies” underlying the adjudication of immigration petitions and refugee and asylum applications, to “oversee the administration of such policies,” and to “establish national immigration services policies and priorities.” 6 U.S.C. § 271(a)(3).
The Homeland Security Act also transferred the authority of the Commissioner of the now-defunct Immigration and Naturalization Service (“INS”) to the USCIS Director, including: (1) adjudications of immigrant visa petitions; (2) adjudications of naturalization applications; (3) adjudications of asylum and refugee applications; (4) adjudications performed at service centers; and (5) all other adjudications previously performed by the INS after USCIS was established, as well as all personnel, infrastructure, and funding provided to support these functions. See id. § 271(b); Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).
The USCIS Director oversees the work of 19,000 USCIS employees and contractors working at more than 200 offices around the world.3 Each day, these employees and contractors within the USCIS Director’s purview adjudicate more than 26,000 requests for immigration benefits and process hundreds of refugee and asylum applications.
The Homeland Security Act enumerates five USCIS officers by name: the Chief of Policy and Strategy, the Legal Advisor, the Budget Officer, the Chief of the Office of Citizenship, and the Citizenship and Immigration Services Ombudsman. See id. §§ 271(c)-(f), 272.
3 See, e.g., About Us, USCIS, https://www.uscis.gov/aboutus (last visited Sept. 4, 2019). 12

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USCIS’s functions are further divided among four program offices: Administrative Appeals; Equal Opportunity & Inclusion; Privacy; and Investigations; and seven directorates: External Affairs; Immigration Records & Identity Services; Field Operations; Fraud Detection & National Security; Management; Refugee, Asylum & International Operations; and Service Center Operations.
The chiefs of each of these program offices and directorates report to the USCIS Deputy Director and Director.4 IV. The Appointments Clause and the Federal Vacancies Reform Act
The Constitution mandates a role for the United States Congress in the appointment of officers of the United States. This important role, enshrined in the Appointments Clause, “is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651, 659 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976)). These “significant structural safeguards” apply to the appointment of all officers—that is, any person afforded “significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. at 126, or who has “significant discretion” in their exercise of Executive Branch authority, Lucia v. SEC, 138 S. Ct. 2044, 2047 (2018).
Pursuant to the Appointments Clause, officers of the United States may be appointed by the President only “by and with the Advice and Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2. It further provides that only Congress, “by Law,” may vest the appointment of inferior officers in the President, the courts, or in the heads of departments, “as they [the
4 See USCIS, USCIS, https://www.uscis.gov/sites/default/files/USCIS/AboutUs/USCIS_OrgChart.pdf (last visited Sept. 4, 2019).
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Congress] think proper.” Id. Moreover, the Appointments Clause vests exclusive authority in Congress to “establish[] by Law” all Executive Branch offices. Id.
Recognizing that “[t]he constitutional process of Presidential appointment and Senate confirmation … can take time,” however, “[s]ince President Washington’s first term, Congress has given the President limited authority to appoint acting officials … without first obtaining Senate approval.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017). The Federal Vacancies Reform Act “is the most recent iteration of that interbranch accommodation.” Guedes v. ATF, 920 F.3d 1, 11 (D.C. Cir. 2019).
The FVRA permits an individual to serve in an acting capacity whenever “an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office.” 5 U.S.C. § 3345(a).
When that happens, the FVRA prescribes a default rule: “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.” 5 U.S.C. § 3345(a)(1); see also Guedes, 920 F.3d at 11 (“The default is for the ‘first assistant’ to take the helm.”).
“The next two paragraphs of § 3345(a) identify alternatives.” Southwest General, 137 S. Ct. at 936. Specifically, the President may select another individual to temporarily fill the vacancy if they “serve[] in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate,” 5 U.S.C. § 3345(a)(2), or if they “served in a position in [the] agency for not less than 90 days” at the GS-15 rate of pay, id. § 3345(a)(3). Reflecting the FVRA’s aim of providing the President with limited authority to
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name acting officials, these provisions allow the President to deviate from the FVRA’s first assistant default rule and select someone else if they have either received the Senate’s approval or have met certain seniority requirements.
The FVRA further provides that certain actions “taken by any person who is not acting” lawfully under the statute “shall have no force or effect.” 5 U.S.C. § 3348.
FACTUAL ALLEGATIONS I. The Challenges Facing Asylum Seekers at the Dilley and Karnes Detention
Centers This case principally concerns the Asylum Directives, a series of policy changes first implemented at the Dilley Detention Center, and later the Karnes Detention Center. For many of the asylum seekers detained at Dilley and Karnes, Defendants have chosen to initiate expedited removal proceedings rather than regular removal proceedings. Plaintiffs consist of several of the asylum seekers currently detained at Dilley who have been subjected to the Asylum Directives challenged in this litigation, and the Refugee and Immigrant Center for Educational and Legal Services, whose efforts to provide asylum seekers with legal assistance at the Karnes Detention Center are compromised by the Directives. The Dilley and Karnes Detention Centers In December 2014, ICE and the Corrections Corporation of America, a for-profit corporation that operates private prisons and detention facilities and that rebranded as “CoreCivic” in October 2016, opened the Dilley Detention Center. Unlike most ICE detention facilities, Dilley was not originally constructed to serve as an adult prison or jail. Instead, Corrections Corporation of America specifically designed and constructed Dilley pursuant to ICE specifications for the sole purpose of detaining mothers and their minor children.
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In March 2012, ICE and The GEO Group, Inc., another for-profit corporation that operates private prisons and detention facilities, opened the Karnes Detention Center. Karnes was originally intended to operate as an adult detention center. However, in July 2014, the GEO Group converted Karnes into a family detention center where ICE detained families through the spring of 2019. Beginning in April 2019, Karnes began principally detaining adult women without children.
At Dilley, ICE has the capacity to detain up to 2,400 mothers and children, although the actual population usually varies between 200 and 1,500, including at almost all times from 2016 through today. Most families detained at Dilley consist of a mother and one child. During 2016, ICE detained approximately 11,302 children at Dilley with a median age just under six.
At Karnes, the current population is approximately 1,300 adult women. As a family detention center, Karnes had capacity for approximately 850 parents and children. The vast majority of women currently detained at Karnes are asylum seekers who have recently arrived in the United States and have been placed into the expedited removal process.
Dilley and Karnes detain families and adult women, respectively, in secure facilities, behind tall fences monitored by flood lights and surveillance cameras. In 2015, a federal court concluded that the use of these facilities to detain families violated federal law.5
5 Franco Ordoñez, Judge Rules Against Family Detention Policy, McClatchy (July 25, 2015), https://www.mcclatchydc.com/news/nation-world/national/article28687876.html; see Flores v. Johnson, 212 F. Supp. 3d 864, 880 (C.D. Cal.), clarified on denial of reconsideration sub nom. Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015), aff’d in part, rev’d in part and remanded, 828 F.3d 898 (9th Cir. 2016), and aff’d in part, rev’d in part and remanded, 828 F.3d 898 (9th Cir. 2016).
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After visiting Dilley and Karnes, Congresswoman Judy Chu stated that they “looked so much like the Japanese-American internment camps of World War II.”6
Many of the families and women detained at Dilley and Karnes are from El
Salvador, Guatemala, and Honduras, countries with some of the highest violent crime rates in the world.7 The overwhelming majority of the families and adult women detained at Dilley and
Karnes have experienced severe forms of trauma, including child abuse, rape, incest, domestic
violence, and the persecution of their loved ones.
As a consequence of their past trauma, journey to the United States, and
detention, the women and minor children detained at Dilley and Karnes frequently suffer from
post-traumatic stress disorder, anxiety, and depression. In that respect, they are emblematic of asylum seekers in general, who report higher than normal incidences of these conditions.8 A
study of Central American migrants who arrived at the U.S. border, for example, found that 32
percent of the 234 adults interviewed met diagnostic criteria for PTSD, 24 percent for depression, and 17 percent for both disorders.9
6 “Deplorable”: Federal Judge Condemns For-Profit Texas Detention Centers for Immigrant Families, Democracy Now (July 29, 2015), https://www.democracynow.org/2015/7/29/deplorable_federal_judge_condemns_for_profit. 7 See, e.g., El Salvador, Dep’t of Justice, https://www.justice.gov/eoir/country/el-salvadotopical; Guatemala, U.S. Dep’t of Justice, https://www.justice.gov/eoir/country/guatemalatopical; Honduras, U.S. Dep’t of Justice, https://www.justice.gov/eoir/country/honduras-topical. 8 See, e.g., Israel Bronstein & Paul Montgomery, Psychological Distress in Refugee Children: A Systematic Review, 14 Clinical Child & Fam. Psychol. Rev. 44-56 (2011); Katy Robjant et al., Mental Health Implications of Detaining Asylum Seekers: Systematic Review, 194 Br. J. Psychiatry 306-12 (2009); Giulia Turrini et al., Common Mental Disorders in Asylum Seekers and Refugees: Umbrella Review of Prevalence and Intervention Studies, 11 Int’l J. Mental Health Sys. (2017). 9 Allen Keller et al., Pre-Migration Trauma Exposure and Mental Health Functioning Among Central American Migrants Arriving at the U.S. Border, 12 PLOS ONE (2017).
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The Difficulty of Navigating the Credible Fear Process The families and women detained at Dilley and Karnes have just completed an immensely arduous journey to the United States. The journey itself may have meant many days or weeks of travel, in challenging conditions, subject to significant risks of violence, kidnapping, rape, and trafficking, which compound their prior trauma. Once taken into CBP custody, they are often held in a freezing room referred to as the hielera, or “icebox,” and/or a caged area referred to as the perrera, or “dog pound.” Most are scared and tired; some may be sick or injured. Against this backdrop, the families and women detained at Dilley and Karnes, respectively, are expected to navigate the credible fear process—a process that may well mean the difference between life and death. The credible fear process as a whole can be difficult to comprehend, especially to one who has never heard of it and who has just arrived following an arduous journey with children. Asylum seekers often report that “they were intimidated and confused by the interview process and complex immigration court asylum proceedings that they had to navigate on their own while detained and without legal assistance.”10 Most of the women and minor children detained at Dilley and Karnes communicate only in Spanish, or in an indigenous language for which there may be limited interpretation support.11
10 “You Don’t Have Rights Here”: US Border Screening and Returns of Central Americans to Risk of Serious Harm, Human Rights Watch (Oct. 16, 2014), https://www.hrw.org/report/2014/10/16/you-dont-have-rights-here/us-border-screening-andreturns-central-americans-risk. 11 Molly Hennessy-Fiske, Immigrant Families in Detention: a Look Inside One Holding Center, L.A. Times (June 25, 2015), https://www.latimes.com/nation/la-na-dilley-detention-20150625story.html.
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The interview itself is, by its nature, psychologically demanding and difficult. It requires the asylum seeker to describe the circumstances that gave rise to their fear of persecution to an asylum officer. In almost every case, doing so will require summarizing deeply personal, stigmatizing, and traumatizing details, details that the asylum seeker may never have relayed to another person before, and then answering complicated and nuanced follow-up questions.
The fact of detention itself also makes it difficult for asylum seekers at Dilley and Karnes to prepare for their credible fear interviews. Asylum seekers generally have limited ability to communicate with third parties who can assist them in preparing for their interviews or in gathering crucial facts and evidence. At the same time, asylum seekers are in unfamiliar and often uncomfortable surroundings, and may have to devote time that they might otherwise use in preparing for their interviews to mandatory facility orientations and programs. Detention also “takes a severe psychological toll,” and can exacerbate “trauma, depression, and suicidal thoughts,” particularly among detained families.12
As mothers at Dilley prepare for their credible fear interviews, they are also caring for their minor children. Those children, who possess their own rights under immigration law, must themselves be prepared to navigate the credible fear process. However, the children generally have limited education or ability to participate in formal legal proceedings. That simultaneously makes it more difficult for the mother to present her own claims and imposes additional responsibility on her to ensure that her child’s rights are vindicated.
12 US: Trauma in Family Immigration Detention, Human Rights Watch (May 15, 2015), https://www.hrw.org/news/2015/05/15/us-trauma-family-immigration-detention-0.
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The Importance of Adequate Consultation and Legal Orientation Given the immense challenges facing asylum seekers at Dilley and Karnes, and in other facilities, an adequate opportunity to consult with third parties, including lawyers, and an adequate understanding of their legal rights during the credible fear process are essential. For five years prior to the No Legal Orientation Directive, USCIS officials at Dilley provided an oral, in-person legal orientation to asylum seekers upon arrival at the facility, where they would take questions from asylum seekers and confirm their preferred asylum officer gender and language for the interview. During that orientation, they would also provide the required Form M-444, which provides a written summary of the orientation information. That in-person orientation was the only time when asylum seekers were able to ask questions about the credible fear process and their legal rights. That orientation also provided the only means of transmitting information to asylum seekers, including children, who cannot read in one of the ten languages used for the Form M-444, and to confirm that asylum seekers with special needs, including physical or mental impairments or other competency issues, understand the information that they are given. Although other accommodations might be necessary in particular cases, the orientation constituted a type of reasonable accommodation for the needs of those asylum seekers. At or around the same time, USCIS provided asylum seekers at Dilley with the Form G-56, which informs them of the date and time of their credible fear interview. Before April 2019, when Karnes housed families as well, it also provided inperson orientation and the Form G-56. Since then, USCIS has only provided asylum seekers with the Form M-444, and GEO informs detained women about their scheduled interviews using a short slip of paper notifying them of their interview time. GEO also uses the slip of paper as a
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method of communication to notify women about meetings with counsel, medical screenings, and other appointments.
After the orientation at Dilley, asylum seekers could take any paperwork to a representative of the Dilley Pro Bono Project (“DPBP”), who could then assist the asylum seeker by explaining the credible fear process, providing legal counsel, connecting them with other professional assistance, or helping them collect necessary evidence and factual details. Similarly, asylum seekers at Karnes could take their paperwork to RAICES to receive assistance, although RAICES continues to face a backlog of asylum seekers.
Prior to the Shortened Wait Period Directive, asylum seekers, under USCIS policy, were afforded a minimum of 48 hours from the time they received the Form G-56 to prepare for their credible fear interview at Dilley. Asylum seekers at Karnes were entitled to a minimum of 48 hours from the time they arrived at the facility.
During that time, asylum seekers could consult with legal counsel or with other third parties, including family and medical and psychological professionals. That 48 hour consultation period also provided the first chance for many asylum seekers to begin to recuperate from their arduous journey north and their stay at the CBP facilities along the border, feel safe, help their children adjust to the facility and routine imposed by facility officials, and gather their thoughts and prepare in advance of their interviews.
That 48 hour consultation period was invaluable in ensuring that asylum seekers could avail themselves of their right to consult with third parties and participate fully in their credible fear interviews.
In general, the assistance of counsel greatly enhances an asylum seeker’s ability to press their claims. Asylum seekers who possess representation are two to ten times more likely
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to be granted asylum.13 “Lack of counsel not only disadvantages detainees but also burdens the system, since unrepresented cases are more difficult and time consuming for adjudicators to decide.”14
Specifically, counsel performs several critical functions in preparing for the interview. Counsel explains a confusing and complex administrative process;15 helps the asylum seeker articulate the facts of their situation in a clear and compelling way; gathers additional evidence and facts to support the asylum seeker’s claims; connects the asylum seeker’s experiences to the standards for granting asylum; assists the asylum seeker in obtaining additional time or accommodations, if necessary; and makes connections to other professionals to provide assistance. Prior to the Asylum Directives, RAICES was able to provide many of these services to individuals detained at Karnes. Its ability to do so, however, has been directly and negatively impacted by the Directives.
Aside from counsel, asylum seekers may need to speak to other individuals to gather necessary facts to show that their fear is credible. For example, an asylum seeker may know that she or he was persecuted on account of a protected characteristic, but not have access to the country conditions reports that would corroborate that such persecution is widespread. An asylum seeker may have been told by a relative that they needed to leave their home country, but not the nature of the threat, its details, or the surrounding context. Or an asylum seeker may
13 Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, U.S. Comm’n on Int’l Religious Freedom 52 (2016), https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf. 14 Id. 15 Moreover, many asylum seekers come from countries where they have observed that the authorities are corrupt, cannot be trusted, or are simply ineffective, and where administrative processes lack protections for confidentiality and fairness. Counsel must often spend substantial time reassuring the asylum seeker that what they say to U.S. authorities in the credible fear process will not be relayed to their persecutors.
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know all of the relevant facts, but fled their home country quickly, without time to obtain supporting documentation or other evidence. In such cases, time to consult with third parties, including relatives, friends, or previous neighbors, or with counsel, is necessary to ensure that the asylum seeker can obtain, organize, and present these details and material to the asylum officer.
The 48 hour consultation period also provides an opportunity to correct errors in the screening process. Border patrol agents often submit reports that contain misstatements and omissions that asylum seekers may only be able to correct with the assistance of counsel.16
The 48 hour consultation period is also critical to identify individuals with special needs, including physical or mental impairments. Many asylum seekers have serious traumarelated or competency issues. A minimum of 48 hours constituted a reasonable accommodation for the needs of disabled asylum seekers.
Moreover, a mental health evaluation can often serve as a crucial piece of evidence for an asylum seeker, bolstering her credibility by establishing that the trauma she has suffered impedes her ability to recount the circumstances that prompted her flight to the United States. Mental health evaluations also assist attorneys in determining if clients are competent to consent to representation and participate meaningfully in their cases.
Prior to the Continuance Denial Directive, USCIS also frequently granted continuances to asylum seekers who required additional time. For example, some asylum seekers may be unable to consult with counsel in the time provided to them; others may need additional time to become fully prepared for their interviews; some may have particularly complicated cases that require additional analysis; and still others may need additional time to make contact
16 See John Washington, Bad Information: Border Patrol Arrest Reports Are Full of Lies that Can Sabotage Asylum Claims, Intercept (Aug. 11, 2019), https://theintercept.com/2019/08/11/border-patrol-asylum-claim/.
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with third parties who possess information that would support their bona fide claims. Moreover, those with special needs, including physical or mental impairments, may also need additional time to consult with counsel or prepare for their interviews. These continuances constituted reasonable accommodations for the needs of disabled asylum seekers.
In sum, robust in-person legal orientation, an adequate time period within which to consult with counsel and third parties, and the availability of reasonable continuances are all essential to upholding an asylum seeker’s statutory and regulatory rights in the asylum process. II. The Trump Administration’s Animus Toward Asylum Seekers
Notwithstanding the difficulty of the long-standing, extant credible fear interview process, the Trump Administration has repeatedly attempted to curtail asylum seekers’ legal rights. It has done so out of animus toward asylum seekers, particularly asylum seekers of color, from countries Administration officials have publicly derided.
This effort has included, in addition to the Asylum Directives at issue in this lawsuit, the following actions:
a. Instructing U.S. Border Patrol officials to refer for criminal prosecution, and U.S. Department of Justice lawyers to prosecute, anyone who entered the United States between ports of entry, regardless of whether such individuals did so for purposes of claiming asylum.17 That “zero tolerance” policy has included parents traveling
17 See Decision Memorandum for the Secretary: Increasing Prosecutions of Immigration Violations, U.S. Dep’t of Homeland Security (Apr. 23, 2018), https://www.documentcloud.org/documents/4936568-FOIA-9-23-Family-SeparationMemo.html; Memorandum for Federal Prosecutors Along the Southwest Border: ZeroTolerance for Offenses Under 8 U.S.C. § 1325(a), U.S. Dep’t of Justice (Apr. 6, 2018), https://www.justice.gov/opa/press-release/file/1049751/download.
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with their children, causing them to be placed in separate detention settings in the policy colloquially known as “family separation.”18
b. Limiting the number of individuals who can request asylum at a port of entry along the U.S.-Mexico border each day in a process known as “metering.”19
c. Implementing a “remain in Mexico” policy through the so-called “Migrant Protection Protocols” (the “MPP”),20 under which non-Mexican asylum seekers
can be sent back to Mexico during the pendency of their immigration proceedings.21
d. Promulgating an interim final rule that, in combination with subsequently issued
presidential proclamations, made non-citizens ineligible for asylum if they entered the United States from Mexico outside a designated port of entry.22
18 Camila Domonoske & Richard Gonzales, What We Know: Family Separation and ‘Zero Tolerance’ at the Border, NPR (June 19, 2018), https://www.npr.org/2018/06/19/621065383/what-we-know-family-separation-and-zerotolerance-at-the-border. 19 James Fredrick, ‘Metering’ At the Border, NPR (June 29, 2019), https://www.npr.org/2019/06/29/737268856/metering-at-the-border. 20 See Migrant Protection Protocols, U.S. Dep’t of Homeland Security (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols [hereinafter Migrant Protection Protocols]. 21 See id.; see also Innovation Law Lab, et al. v. Nielsen, Case No. 19-cv-00807 (N.D. Cal. April 8, 2019), ECF No. 73 at 1. 22 O.A. v. Trump, 2019 WL 3536334 (D.D.C. 2019) (citing Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018); Addressing Mass Migration Through the Southern Border of the United States, 83 Fed. Reg. 57,661 (Nov. 9, 2018); Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 3,665 (Feb. 7, 2019); Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 21,229 (May 8, 2019)).
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e. Promulgating an interim final rule that bars individuals from being eligible to seek
asylum unless they first sought “protection from persecution or torture while in a
third country through which they transited en route to the United States.”23
f. Dramatically expanding the expedited removal authority through a notice
published in the Federal Register on July 23, 2019 to cover eligible non-citizens
deemed inadmissible and who, when encountered by a DHS official anywhere in
the United States, had been physically present in the United States for less than
two continuous years.24
g. Proposing to categorically deny work permits to those who have applied for
asylum after entering the United States outside of a port of entry, and to impose
significant delays for those who remain eligible for work authorization.25
h. Overall, declaring it to be “the policy of the executive branch to end the abuse of
parole and asylum provisions currently used to prevent the lawful removal of
removable aliens.”26
23 Asylum Eligibility and Procedural Modification, 84 Fed. Reg. 33,829, 33,830 (July 16, 2019). 24 Practice Alert: Implementation of Expedited Removal Expansion, Am. Immigr. Lawyers Ass’n (Aug. 30, 2019), https://www.aila.org/advo-media/aila-practice-pointers-and-alerts/trumpadministration-expands-expedited-removal. 25 See Hamed Aleaziz, The Trump Administration Plans to Deny Work Permits to AsylumSeekers Who Cross the Border, BuzzFeed News (Aug. 20, 2019), https://www.buzzfeednews.com/article/hamedaleaziz/asylum-work-permits-deny-trumpimmigration-policy [hereinafter Aleaziz, Trump Administration Plans to Deny Work Permits]; Ted Hesson, Trump Administration Advances Measures to Toughen Asylum Process, PoliticoPro (Aug. 27, 2019), https://subscriber.politicopro.com/employmentimmigration/whiteboard/2019/08/trump-administration-advances-measures-to-toughen-asylumprocess-3760412. 26 Executive Order: Border Security and Immigration Enforcement Improvements § 11 (Jan. 25, 2017), https://www.whitehouse.gov/presidential-actions/executive-order-border-securityimmigration-enforcement-improvements/; see also Implementing the President’s Border Security
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The Administration’s attempts to limit asylum are grounded in Administration officials’ animus toward those seeking asylum, particularly asylum seekers of color.
Specifically, President Trump has claimed that Haitians admitted under the temporary protected status (“TPS”) program “all have AIDS,” that Nigerians admitted through TPS came from “huts in Africa,” and he has questioned why the United States would admit “all these people from shithole countries” through programs like TPS, instead of focusing on bringing people from countries like Norway, a majority white country.27
President Trump has said, time and again, without evidence, that he believes the asylum process to be a “scam” and a “hoax,”28 and that asylum seekers are fraudsters reading canned statements instead of honestly describing their fear of persecution:
a. “We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password.”29
b. “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back
and Immigration Enforcement Improvement Policies, U.S. Dep’t of Homeland Security (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-thePresidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf. 27 Id. 28 Trump Says Some Asylum Seekers Are Gang Members, CBS News (Apr. 5, 2019), https://www.cbsnews.com/news/trump-says-some-asylum-seekers-are-gang-members-bordercalexico-2019-04-05-today/. 29 Donald J. Trump (@realDonaldTrump), Twitter (June 21, 2018, 8:12 AM), https://twitter.com/realDonaldTrump/status/1009770941604298753?s=20.
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from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents[.]”30 c. “The biggest loophole drawing illegal aliens to our borders is the use of fraudulent or meritless asylum claims to gain entry into our great country. An alien simply crosses the border illegally, finds a Border Patrol agent, and using well-coached language—by lawyers and others that stand there trying to get fees or whatever they can get—they’re given a phrase to read. They never heard of the phrase before. They don’t believe in the phrase. But they’re given a little legal statement to read, and they read it. And now, all of a sudden, they’re supposed to qualify. But that’s not the reason they’re here.”31 President Trump has claimed, without basis, that asylum seekers are gang members and drug traffickers.32 President Trump has described migrants from Central America as “[s]ome of the roughest people you have ever seen. People that look like they should be fighting for the [Ultimate Fighting Championship].” He has said they are merely following a script to establish their fear of persecution: “Asylum—oh give him asylum! He’s afraid, he’s afraid…. We don’t
30 Donald J. Trump (@realDonaldTrump), Twitter (June 24, 2018, 11:02 AM), https://twitter.com/realDonaldTrump/status/1010900865602019329?s=20. 31 Remarks by President Trump on the Illegal Immigration Crisis and Border Security, White House (Nov. 1, 2018), https://www.whitehouse.gov/briefings-statements/remarks-presidenttrump-illegal-immigration-crisis-border-security/. 32 The White House (@WhiteHouse), Twitter (Feb. 15, 2019, 1:07 PM), https://twitter.com/WhiteHouse/status/1096470982301224960?s=20.
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love the fact that he’s carrying the flag of Honduras or Guatemala or El Salvador only to say he’s petrified to be in his country.”33
President Trump repeatedly referred to a slow-moving group of migrants traveling towards the United States border as “an invasion” filled with “[m]any [g]ang [m]embers and some very bad people,”34 asserting, with no basis, that they were “not legitimate asylum seekers.”35
Similarly, Defendant Kenneth T. Cuccinelli II has a history of attacking immigrants, particularly immigrants of color, and their families. Specifically, Mr. Cuccinelli has compared immigrants to rats, raccoons, and other pests, arguing that a D.C. ordinance restricting pest control “is worse than our immigration policy” because “[y]ou can’t break up rat families.”36 He has argued that states should invoke “war powers” to combat an “invasion” of immigrants by “turn[ing] people back at the border”: “You just point them back across the river
33 Michelle Mark, Trump Mocks Asylum-Seekers At the Border, Says They ‘Look Like They Should Be Fighting for the UFC,’ Business Insider (Apr. 6, 2019), https://www.businessinsider.com/trump-mocks-asylum-seekers-calls-system-scam-2019-4. 34 Donald Trump (@realDonaldTrump), Twitter (Oct. 29, 2018, 10:41 AM), https://twitter.com/realDonaldTrump/status/1056919064906469376?s=20. 35 Benjamin Siegel et al., Trump Claims Crackdown Coming on Asylum Seekers, Says Troops Could Fire on Migrants if Rocks Thrown, ABC News (Nov. 1, 2018), https://abcnews.go.com/Politics/president-trump-address-immigration-crisis-white-houseremarks/story?id=58898094. 36 Nick Wing, Ken Cuccinelli Once Compared Immigration Policy To Pest Control, Exterminating Rats, HuffPost (July 26, 2013), https://www.huffpost.com/entry/ken-cuccinelliimmigration-rats_n_3658064.
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and let them swim for it.”37 He also blamed a father who died with his daughter attempting to
cross into the United States for their deaths because “that father is responsible for his decision.”38
Like President Trump, Mr. Cuccinelli has expressed his unfounded view that the
asylum process is corrupted by fraud: “Plenty of [the asylum seekers] are lying and saying they
want asylum and trying to make up cases for asylum.”39 He has even interpreted The New
Colossus to mean, “[g]ive me your tired and your poor who can stand on their own two feet and
who will not become a public charge.”40 He later clarified that Emma Lazarus’s poem, and the
charitable spirit embodied therein, “was referring back to people coming from Europe.”41
All told, these statements and actions illustrate the Trump Administration’s
animus toward asylum seekers, particularly asylum seekers of color. Courts have found similar
statements and actions to state a plausible claim that the Administration’s policies stem from
unlawful animus.42
37 John Binder, Exclusive–Ken Cuccinelli: States Can Stop Migrant Caravan ‘Invasion’ with Constitutional ‘War Powers,’ Breitbart (Oct. 23, 2018), https://www.breitbart.com/politics/2018/10/23/exclusive-ken-cuccinelli-states-can-stop-migrantcaravan-invasion-with-constitutional-war-powers/. 38 Philip Wegmann, Cuccinelli, the Immigration Hawk After Trump’s Own Heart, RealClearPolitics (July 21, 2019), https://www.realclearpolitics.com/articles/2019/07/21/cuccinelli_the_immigration_hawk_after_tr umps_own_heart_140831.html [hereinafter Cuccinelli, the Immigration Hawk]. 39 Sunday Morning Features Transcript, Fox News (June 30, 2019), https://www.foxnews.com/transcript/rep-tim-ryan-calls-trumps-historic-visit-to-the-dmz-anappeasement-tour. 40 Devan Cole and Caroline Kelly, Cuccinelli Rewrites Statue of Liberty Poem to Make Case for Limiting Immigration, CNN (Aug. 13, 2019), https://www.cnn.com/2019/08/13/politics/kencuccinelli-statue-of-liberty/index.html. 41 Id. 42 See, e.g., Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 518-20 (9th Cir. 2018), aff’g 298 F. Supp. 3d 1304, 1314-15 (N.D. Cal. 2018); Arab Am. Civil Rights League v. Trump, 2019 WL 3003455, at *10 (E.D. Mich. 2019); Int’l Refugee Assistance Project v. Trump, 373 F. Supp. 3d 650, 678 (D. Md. 2019); NAACP v. DHS, 364 F. Supp. 3d 568, 578 (D. Md. 2019); Saget v.
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The Asylum Directives similarly seek to frustrate and deter those seeking asylum and therefore stem from the same underlying animus. III. The President’s Unlawful Appointment of Mr. Cuccinelli
To implement his anti-immigration agenda, President Trump unlawfully appointed Defendant Kenneth T. Cuccinelli II to serve as Acting Director of USCIS through an end-run around the Federal Vacancies Reform Act and the Appointments Clause of the Constitution.
The President has long sought to appoint Mr. Cuccinelli as an executive branch official, and initially planned to appoint Mr. Cuccinelli as a so-called “czar” with comprehensive authority over federal immigration policy.43
On April 25, 2017, Lee Francis Cissna was nominated by President Trump to serve as USCIS Director. He was confirmed by the Senate on October 5, 2017 and took office on October 8, 2017.
On May 13, 2019, Mark Koumans was named Deputy Director of USCIS. At the time, the Deputy Director was designated as the first assistant to the office of the USCIS
Trump, 375 F. Supp. 3d 280, 371-74 (E.D.N.Y. 2019); CASA de Maryland v. Trump, 355 F. Supp. 3d 307, 325-26 (D. Md. 2018); La Union del Pueblo Entero v. Ross, 353 F. Supp. 3d 381, 395 (D. Md. 2018); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1108 (N.D. Cal. 2018), appeal filed, No. 18-16981 (9th Cir. 2018); Centro Presente v. DHS, 332 F. Supp. 3d 393, 415 (D. Mass. 2018); New York v. Dep’t of Commerce, 315 F. Supp. 3d 766, 810-11 (S.D.N.Y. 2018); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 276-79 (E.D.N.Y. 2018). 43 Maggie Haberman & Zolan Kanno-Youngs, Trump Expected to Pick Ken Cuccinelli for Immigration Policy Role, N.Y. Times (May 21, 2019), https://www.nytimes.com/2019/05/21/us/politics/trump-ken-cuccinelli-immigration.html.
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Director. Mr. Koumans’s career “spans nearly three decades of federal service … within the Department of Homeland Security … and the Department of State.”44
On May 24, 2019, Director Cissna informed his employees via email that he
would be resigning from the agency effective June 1. Mr. Cissna stated that he had submitted his resignation “at the request of the president.”45 The President reportedly “forced the resignation of
… Cissna” because he believed that Mr. Cissna “wasn’t doing enough” to pursue the President’s immigration agenda.46 Specifically, the President’s chief immigration adviser, Stephen Miller, had “been publicly agitating for weeks for Trump to fire Cissna.”47 Thus, President Trump
effectively fired Mr. Cissna.
Under the FVRA, Deputy Director Koumans—the first assistant to the Director—
automatically became Acting Director of USCIS upon Mr. Cissna’s termination.
However, on June 10, 2019, DHS announced that Mr. Cuccinelli would serve as Acting Director of USCIS, effective that same day.48
44 Mark Koumans, Acting Director, U.S. Citizenship and Immigration Services, USCIS, https://www.uscis.gov/about-us/leadership/mark-koumans-acting-director-us-citizenship-andimmigration-services (last visited Sept. 4, 2019) [hereinafter Mark Koumans]. 45 Dara Lind, Trump Pushes Out Head of Largest Immigration Agency—and Wants Ken Cuccinelli Instead, Vox (May 25, 2019), https://www.vox.com/2019/5/25/18639156/trumpcuccinelli-cissna-uscis-director [hereinafter Trump Pushes Out Head]. 46 Staunch Anti-Immigration Supporter Ken Cuccinelli Named to Top Immigration Post, CBS News (June 10, 2019), https://www.cbsnews.com/news/staunch-anti-immigration-supporter-kencuccinelli-named-to-top-immigration-post/ [hereinafter Staunch Anti-Immigration Supporter]; see also Cuccinelli Named Acting Head of Citizenship and Immigration Services, PBS News Hour (June 10, 2019), https://thehill.com/homenews/administration/447724-cuccinelli-namedacting-head-of-citizenship-and-immigration-services [hereinafter Cuccinelli Named Acting Head]. 47 Trump Pushes Out Head, supra. 48 Cuccinelli Named Acting Director of USCIS, USCIS (June 10, 2019), https://www.uscis.gov/news/news-releases/cuccinelli-named-acting-director-uscis.
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To appoint Mr. Cuccinelli as Acting Director, the Administration created a new office of “Principal Deputy Director,” designated the Principal Deputy Director as the first assistant to the USCIS Director for purposes of the FVRA, and appointed Mr. Cuccinelli as the Principal Deputy Director of USCIS. The Administration did so because it believed that these steps “would allow Cuccinelli to become acting director under a provision of the [FVRA].”49
Specifically, Acting Secretary of Homeland Security Kevin McAleenan appointed Mr. Cuccinelli as Principal Deputy Director in a memorandum dated June 10, 2019. That same day, Acting Secretary McAleenan issued an order amending the order of succession at USCIS to provide that the Principal Deputy Director would serve as first assistant to the Director of USCIS. Both documents stated that they would automatically terminate upon the appointment of a new USCIS Director.
Congress has not, either in the Homeland Security Act or elsewhere, authorized the establishment “by Law” of the office of Principal Deputy Director of USCIS, or designated that office as the first assistant to the office of the Director.
On information and belief, there are no publicly promulgated rules, directives, or other documents reflecting the creation of the office of Principal Deputy Director or that position’s designation as first assistant to the Director.
49 Ted Hesson, Cuccinelli Starts as Acting Immigration Official Despite GOP Opposition, Politico (June 10, 2019), https://www.politico.com/story/2019/06/10/cuccinelli-acting-uscisdirector-1520304.
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Mr. Koumans remains Deputy Director of USCIS, and his biography continues to
reflect his designation as “Acting Director,” even though it also lists Mr. Cuccinelli as “Acting Director.”50
Mr. Cuccinelli has never served in USCIS, any other component of DHS, nor any other federal agency, as either an elected or appointed official or as an employee.51
Senators from the President’s own party made clear that they would not vote to
confirm Mr. Cuccinelli as USCIS Director. Senate Majority Leader Mitch McConnell expressed
his “lack of enthusiasm” for Mr. Cuccinelli. Senator John Thune, the Senate Majority Whip,
stated that “he would have had a hard time getting confirmed,” and that appointing Mr.
Cuccinelli as the Acting Director was “probably the only way they could get him in there.”
Senators Chuck Grassley, Marco Rubio, and Mitt Romney also voiced concern over the President’s decision to appoint Mr. Cuccinelli.52
The President and his Administration were therefore “made aware that Cuccinelli would have a difficult time winning confirmation in the Senate.”53 Indeed, it was reported at the
time that “Cuccinelli stands almost no chance of being confirmed by the Senate if Trump were to nominate him to be the agency’s permanent director.”54
50 Mark Koumans, supra; see also Leadership, USCIS, https://www.uscis.gov/aboutus/leadership (last visited Sept. 4, 2019). 51 See Kenneth T. “Ken” Cuccinelli II Acting Director, USCIS, USCIS, https://www.uscis.gov/about-us/leadership/kenneth-t-ken-cuccinelli-ii-acting-director-uscis (last visited Sept. 4, 2019). 52 Jordain Carney, Republicans Warn Cuccinelli Won’t Get Confirmed by GOP Senate, The Hill (June 10, 2019), https://thehill.com/homenews/senate/447804-republicans-warn-cuccinelliwont-get-confirmed-by-gop-senate. 53 Staunch Anti-Immigration Supporter, supra. 54 Claire Hansen, Cuccinelli’s Appointment Seen as a Further Sign of Shift in Focus at USCIS, U.S. News (June 13, 2019), https://www.usnews.com/news/national-news/articles/2019-0613/cuccinellis-appointment-seen-as-a-further-sign-of-shift-in-focus-at-uscis [hereinafter
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In response to Mr. Cuccinelli’s appointment, the chairs of the House of Representatives Committees on the Judiciary, Oversight and Government Reform, and Homeland Security sent a letter to Acting Secretary of Homeland Security Kevin McAleenan. The letter voiced concern that “Mr. Cuccinelli was appointed in a manner that circumvents the Federal Vacancies Reform Act” because “Mr. Cuccinelli did not meet any of th[e] criteria” for appointment under the FVRA.55 The letter therefore requested several categories of documents to illuminate the circumstances of Mr. Cuccinelli’s appointment.56
A coalition of organizations that work to protect the rights of immigrants and/or to assist immigrants in seeking legal immigration status before the nation’s immigration agencies and the courts submitted a letter to the Attorney General and the U.S. Attorney for the District of Columbia, asking them to institute a proceeding for writ of quo warranto to remove Mr. Cuccinelli from office given the legal flaws in his appointment.57 Neither official has responded
Cuccinelli’s Appointment]; see also Geneva Sands, Ken Cuccinelli Takes Over as Acting Director of Citizenship and Immigration Services, CNN (June 10, 2019), https://www.cnn.com/2019/06/10/politics/cucinelli-uscis-acting-director/index.html (“Republican lawmakers have privately signaled to the White House should not nominate Cuccinelli [sic], or else he risks having another high-profile pick forced to withdraw, CNN has learned.”). 55 Letter from Jerrold Nadler, Chairman, House Comm. on the Judiciary, et al. to Acting Sec’y of Homeland Security Kevin K. McAleenan at 1 (June 19, 2019), https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/06-182019%20Letter%20to%20Acting%20Secretary%20McAleenan.pdf. 56 Id. at 2. 57 Letter from Democracy Forward et al. to Att’y Gen. William Barr & U.S. Att’y Jessie K. Liu (July 22, 2019), https://democracyforward.org/wp-content/uploads/2019/07/CuccinelliLetter.pdf.
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to that letter. Two other organizations also submitted a letter to Mr. McAleenan and Mr. Cuccinelli, addressing the flaws in Mr. Cuccinelli’s appointment.58
The President has neither named a nominee for USCIS Director, nor announced any intent or timetable to nominate someone.
On information and belief, Mr. Cuccinelli was named Principal Deputy Director and Acting Director of USCIS in significant part because the Senate would not confirm him if he were nominated to be USCIS Director.
On information and belief, President Trump intends for Mr. Cuccinelli to perform the functions and duties of USCIS Director indefinitely.
On information and belief, President Trump appointed Mr. Cuccinelli as Principal Deputy Director of USCIS, and as Acting Director of USCIS, for the unlawful purpose of circumventing the Senate’s mandatory role in the appointment of the USCIS Director.
Notwithstanding the mandate of the Appointments Clause, and in derogation of Congress’s constitutional role in staffing the executive branch, the President has repeatedly chosen to fill positions with acting officials who do not require Senate confirmation.
In just two and a half years, the President has named 28 acting cabinet secretaries—more than any of the past five presidents in their entire tenure in office.59 They have served an average of 50 days, which is also longer than the average for any of those five
58 Letter from Protect Democracy & Constitutional Accountability Ctr. to Acting Sec’y of Homeland Sec. Kevin McAleenan & Acting Dir. of USCIS Kenneth T. Cuccinelli (July 30, 2019), https://protectdemocracy.org/resource-library/document/cuccinelli-appointment-letter/. 59 Anne Joseph O’Connell, Acting Leaders: Recent Practices, Consequences, and Reforms, Brookings Institution (July 22, 2019), https://www.brookings.edu/research/acting-leaders/ [hereinafter Acting Leaders].
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presidents.60 In total, the Administration has had a full cabinet of Senate-confirmed officials for only four months.61
The President has particularly placed immigration and national security policy in
the hands of acting officials. Specifically, “the Trump administration has filled many Homeland Security Department posts with acting officials installed for lengthy periods of time.”62 At
present, only 41% of Senate-confirmed positions have been filled at the Department of Homeland Security.63 Acting officials currently serve as Secretary of Homeland Security,
Director of Immigration and Customs Enforcement, Director of Customs and Border Protection,
and Administrator of the Federal Emergency Management Agency.
The President has been transparent in explaining his reasons for using acting
officials, explaining that he prefers to do so because it is easier and more expedient than seeking
Senate confirmation. To wit, the President has stated,
a. “Well, I’m in no hurry. I have ‘acting.’ … I sort of like ‘acting.’ It gives me more flexibility.”64
60 Id. 61 Chiqui Esteban, Who’s in Charge? Many Months of Acting Cabinet Secretaries, Wash. Post (July 24, 2019), https://www.washingtonpost.com/politics/2019/07/24/whos-charge-manymonths-acting-cabinet-secretaries/. 62 Ted Hesson & Anita Kumar, Stephen Miller Ally Expected to Join Ken Cuccinelli at USCIS, Politico (June 13, 2019), https://www.politico.com/story/2019/06/13/zadrozny-cuccinelli-uscis1529112. 63 Editorial Board, An Administration of Temps, Bloomberg Opinion (July 25, 2019), https://www.bloomberg.com/opinion/articles/2019-07-25/trump-s-washington-has-an-actingofficials-problem [hereinafter An Administration of Temps]. 64 Felicia Sonmez, Trump Says He’s ‘in No Hurry’ to Replace Acting Cabinet Members, Wash. Post (Jan. 6, 2019), https://www.washingtonpost.com/politics/trump-says-hes-in-no-hurry-toreplace-acting-cabinet-members/2019/01/06/afac5fea-11e4-11e9-b6ad9cfd62dbb0a8_story.html.
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b. “It’s OK. It’s easier to make moves when they’re acting.” “I like acting because I can move so quickly. It gives me more flexibility.”65
c. “Acting gives you much greater flexibility. A lot easier to do things.”66 d. “I’m generally not going to make a lot of the appointments that would normally
be—because you don’t need them.”67 Purposefully staffing the executive branch with acting officials has serious repercussions for accountable governance. Acting officials bypass the Senate’s constitutional advice and consent role. They are thus “spared scrutiny by the Senate, which means less transparency in policy and fewer commitments for which office-holders might be held accountable.”68 Acting officials generally garner “diminished buy-in from the workers below them, relevant congressional committees, and the wider public.”69 IV. Mr. Cuccinelli’s Unlawful Asylum Directives Since taking office, Mr. Cuccinelli has stated that USCIS offers “privileges, not rights,” to immigrants and that USCIS is “a vetting agency, not a benefits agency.”70 His appointment signals “an agency-wide shift in focus from facilitating the lawful settlement of migrants to increasingly participating in the administration’s crackdown on immigration.”71
65 Transcript: President Trump on “Face the Nation,” CBS News (Feb. 3, 2019), https://www.cbsnews.com/news/transcript-president-trump-on-face-the-nation-february-3-2019/. 66 An Administration of Temps. 67 Randall Lane, Inside Trump’s Head: An Exclusive Interview with the President, and the Single Theory That Explains Everything, Forbes (Oct. 10, 2017), https://www.forbes.com/donald-trump/exclusive-interview/#501570b4bdec. 68 An Administration of Temps. 69 Acting Leaders. 70 Cuccinelli, the Immigration Hawk, supra. 71 Cuccinelli’s Appointment, supra.
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Despite having no lawful authority to do so, Mr. Cuccinelli has issued several Directives that alter aspects of the credible fear process, as well as other aspects of the United States’ legal immigration system.
Shortening Asylum Seekers’ Time to Prepare for Interviews On July 8, 2019, Mr. Cuccinelli promulgated, authorized, and/or implemented the Shortened Wait Period Directive, which shortens the mandatory window before the credible fear interview to one calendar day between an asylum seeker’s arrival at an ICE detention center and their credible fear interview.72 On information and belief, the Directive was provided to USCIS staffers, and/or contractors operating detention centers, in writing. On information and belief, the Directive was also implemented in the form of a change to the credible fear procedures manual that asylum officers use to process asylum seekers. USCIS also changed the “Credible Fear FAQ” on its website to note that “USCIS requires a wait of at least one full calendar day” before the interview, rather than “a wait of at least 48 hours,” effective July 8, 2019.73 The use of “one calendar day” rather than “24 hours” allows USCIS to permit less than 24 hours before a credible fear interview, so long as the interview occurs on the next calendar day. Moreover, while USCIS previously counted the 48 hours from the time that an
72 Aleaziz, Immigrant Asylum-Seekers. 73 Aline Barros, Trump Administration Expediting Initial Screenings of Asylum-Seekers, Voice of America (July 9, 2019), https://www.voanews.com/usa/trump-administration-expeditinginitial-screenings-asylum-seekers; Credible Fear FAQ, USCIS, https://www.uscis.gov/faqpage/credible-fear-faq#t12831n40242 (last updated July 8, 2018).
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asylum seeker received the Form G-56 at Dilley, it now counts it from the time of arrival at the detention center. On information and belief, these changes have also been issued in writing.
The Shortened Wait Period Directive was first implemented at the Dilley Detention Center on or after July 8, 2019. The Directive has since been implemented at the Karnes Detention Center as well.
In general, and as further detailed below, the Shortened Wait Period Directive gives asylum seekers less time to prepare for their interviews, to consult with third parties or counsel, and to recover from their dangerous journeys. It also forces asylum officers to accelerate the credible fear process.74
It also obstructs asylum seekers’ statutorily mandated right to consult with persons of their choosing before their credible fear interviews. See 8 U.S.C. § 1225(b)(1)(B)(iv).
In doing so, it violates DHS’s own regulations, which reiterate that asylum seekers have the right to consult so long as it does not “unreasonably delay” the process. 8 C.F.R. § 235.3(b)(4)(ii). A meaningful amount of time to consult with third parties before a lifeand-death interview patently does not constitute “unreasonable delay.” The Directive also unlawfully impedes those third parties from ensuring they can be present for the interview, if requested by the asylum seeker. Id. § 208.30(d).
Moreover, the Shortened Wait Period Directive prevents asylum seekers from participating fully in their interviews, contrary to DHS regulations. Specifically, it is harder for asylum seekers to “participate effectively,” given the length and difficulty of their journeys, or “understand[] … the credible fear determination process.” Id. It is also more difficult for asylum seekers to present “all relevant and useful information bearing on whether the applicant has a
74 Aleaziz, Immigrant Asylum-Seekers. 40

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credible fear of persecution or torture” or address “novel or unique issues that merit consideration in a full hearing before an immigration judge,” both of which may require the assistance of counsel or other third parties to identify. Id. § 208.30(d), (e).
The Shortened Wait Period Directive also discriminates against individuals with physical or mental impairments, who generally need additional time to consult with third parties and to prepare for their interviews, by permitting USCIS officers to provide them with no more than a full calendar day without regard to their individual needs. The Directive also denies disabled asylum seekers a reasonable accommodation for their disabilities.
USCIS did not provide any formal statement of its reasons for adopting this change or provide an opportunity for notice and comment.
Denying Virtually All Continuances On July 8, 2019, Mr. Cuccinelli also promulgated, authorized, and/or implemented the Continuance Denial Directive, providing that USCIS must deny continuances of the credible fear interview “unless there are extraordinary circumstances.”75 On information and belief, USCIS has interpreted “extraordinary circumstances” to mean three sets of circumstances: (1) where the asylum seeker’s attorney of record has written proof of a simultaneous court proceeding that conflicts with the time of the scheduled interview; (2) where the asylum seeker is hospitalized in a manner that prevents them from participating in the interview (e.g., the asylum seeker is unconscious); and (3) where the facility has prevented an asylum seeker from consulting with their counsel (e.g., by preventing attorneys from entering the facility).
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USCIS does not permit continuances in any other circumstances, including if an asylum seeker has language or competency issues, is not prepared to proceed with the interview, has a physical or mental impairment that prevents them from fully and effectively participating in the interview, has an especially complicated asylum case, has not had an opportunity to consult with counsel, or needs additional time to obtain facts or evidence or consult with other third parties.
On information and belief, any asylum seeker who is denied a continuance by USCIS and then fails to appear at their credible fear interview will receive an automatic negative credible fear determination, regardless of the reasons for the failure to appear.
On information and belief, the Continuance Denial Directive was provided to USCIS staffers, and/or contractors operating detention centers, in writing.
On information and belief, the Directive was also implemented in the form of a change to the credible fear procedures manual that asylum officers use to process asylum seekers.
The Continuance Denial Directive was first implemented at the Dilley Detention Center on or after July 8, 2019. The Directive has since been implemented at the Karnes Detention Center as well.
The Continuance Denial Directive violates DHS’s own regulations, which expressly provide that an asylum officer may reschedule an interview if the asylum seeker “is unable to participate effectively in the interview because of illness, fatigue, or other impediments.” 8 C.F.R. § 208.30(d).
Further, the Continuance Denial Directive violates asylum seekers’ rights to consult with third parties, including counsel. The Directive prevents asylum seekers with
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language or capacity issues that make it difficult to communicate from seeking more time to consult, and precludes further consultation if it turns out to be necessary after initial discussions with third parties or counsel that reveal additional facts or legal issues that require further development.
For the same reasons, the Continuance Denial Directive impedes asylum seekers’ ability to participate fully in their credible fear interviews.
The Continuance Denial Directive also discriminates against individuals with physical or mental impairments by preventing them from obtaining needed additional time to consult with third parties and to prepare for their interviews. The Directive also denies disabled asylum seekers a reasonable accommodation for their disabilities.
USCIS did not provide any formal statement of its reasons for adopting this change or provide an opportunity for notice and comment.
Eliminating In-Person Orientation On July 8, 2019, USCIS also promulgated, authorized, and/or implemented the No Legal Orientation Directive, announcing that it would cease providing an oral, in-person legal orientation to those detained at the Dilley Detention Center, and that Customs and Border Protection would provide only the M-444 Form to inform asylum seekers of their legal rights. On information and belief, Mr. Cuccinelli promulgated, authorized, and/or implemented the No Legal Orientation Directive. On information and belief, the Directive was provided to USCIS staffers, and/or contractors operating the Dilley Detention Center, in writing. The No Legal Orientation Directive violates asylum seekers’ rights to receive “information concerning the asylum interview.” 8 U.S.C. § 1225(b)(1)(B)(iv). Asylum seekers at the Dilley Detention Center include minor children and others with language or competency
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issues. An in-person legal orientation is necessary to convey the required “information” to those
asylum seekers, and to ensure that they fully comprehend the information they have been given.
Similarly, the No Legal Orientation Directive violates the regulatory requirement that asylum
seekers possess “an understanding of the credible fear determination process,” 8 C.F.R.
§ 208.30(d).
Further, the No Legal Orientation Directive impedes asylum seekers’ ability to
participate fully in their credible fear interviews by limiting their understanding of what those
interviews entail and their rights within the credible fear process. In the past, legal orientation
was an important element of providing asylum seekers with information necessary to allow them
to invoke their rights and to participate effectively in the credible fear process.
The No Legal Orientation Directive also discriminates against individuals with
physical or mental impairments by denying them access to information about the credible fear
process in a format they can understand. The Directive also denies disabled asylum seekers a
reasonable accommodation for their disabilities.
USCIS did not provide any formal statement of its reasons for adopting this change or provide an opportunity for notice and comment.76
76 While not challenged in this litigation, Mr. Cuccinelli has improperly promulgated, authorized, and/or implemented multiple other directives pertaining to the immigration system pursuant to his purported authority as Acting USCIS Director. Specifically, he has: issued a directive pressing asylum officers to be skeptical of credible fear claims; issued a directive pressing asylum officers to consider the possibility, rather than the reasonableness, of internal relocation; diverted resources from USCIS to aid immigration enforcement; cracked down on immigrant sponsors; moved to curtail work permits for asylum seekers; signaled that he will favor some H-1B applications over others; moved to end categorical parole programs, including the Haitian Family Reunification Parole program and the Filipino World War II Veterans Parole program; curtailed the EB-5 program; issued new guidance limiting discretionary employment authorization for parole recipients; moved to deny work permits to asylum-seekers; and made it harder for children of servicemembers and government officials stationed abroad to become citizens.
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V. Plaintiffs’ Harms from the Unlawful Asylum Directives Each of the Plaintiffs has suffered harm as a result of Mr. Cuccinelli’s unlawful
Asylum Directives. Specifically, the Directives have deprived the Individual Plaintiffs of adequate time to consult with counsel and other persons of their choosing and prevented them from participating fully in the credible fear interview process. The Directives also disrupt RAICES’s operations at the Karnes Detention Center and force them to divert resources to provide legal and other assistance to asylum seekers. Each of these harms is exacerbated every day the Directives remain in effect and is irreparable.
Individual Plaintiffs At Dilley, asylum seekers are able to obtain legal services from the Dilley Pro Bono Project, which focuses on providing quick, limited-scope legal services to asylum seekers before their credible fear interviews. Specifically, DPBP works with the asylum seeker individually to prepare for his or her interview; connects the asylum seeker with other professionals, including pro bono medical and psychological professionals and asylum experts, as well as third parties that may possess critical information; analyzes the legal issues presented by the asylum seeker’s case and helps gather additional details and facts to support their claims; assesses whether the asylum seeker may need additional time, given any language or competency issues, or if the asylum seeker’s case is especially complicated; and, at times, accompanies the asylum seeker to their interview. If the asylum seeker receives a negative credible fear determination, DPBP will assist the asylum seeker in obtaining immigration judge review, prepare them for their hearing, and potentially attend the hearing with the asylum seeker. When Defendants had a policy of providing asylum seekers with 48 hours to prepare from the time they received the Form G-56, DPBP was able to process individuals in an orderly fashion and ensure that every individual had adequate time to receive assistance. DPBP
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could expect to get dozens of G-56 forms at specific times and be able to pre-schedule meetings within the subsequent 48 hours, as well as emergency meetings when necessary.
Under the Shortened Wait Period directive, that mandatory 48 hour time period has been slashed in half—at a minimum. USCIS requires only a “full calendar day,” which apparently need not be 24 hours. Moreover, USCIS counts a “full calendar day” from the date of arrival at an ICE detention center, not the date the Form G-56 was provided to the asylum seeker. Thus, at the Dilley Detention Center, asylum seekers frequently receive the Form G-56 the night before their morning interview.
In practice, asylum seekers have at most a few hours to prepare for the interviews, given that asylum seekers often have other orientations and tasks at the facility, may require medical care, and must sleep, eat, and care for their children. Now, asylum seekers frequently walk in to consult with DPBP staff with minutes left before their interviews, or they come in after their interviews, if at all.
Moreover, when asylum seekers require additional time to consult with their attorneys or other third parties, to prepare for their interviews, or because of language or competency issues, they cannot receive a continuance under the Continuance Denial Directive.
The No Legal Orientation Directive has also made it more difficult for asylum seekers to understand their legal rights, including their right to consult with third parties.
The Asylum Directives have been particularly harsh on individuals with physical and psychological disabilities, including trauma-related mental disorders. Many of the asylum seekers at the Dilley Detention Center have such disorders as a consequence of their persecution, journey to the United States, and detention. These individuals need increased time and attention to ensure that they are prepared for their credible-fear interviews, including continuances if
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necessary in order to consult with family members in their home countries, seek medical or professional assistance, receive special services from social workers or therapists, or receive other services or assistance critical to their preparation for their credible fear interview.
The Individual Plaintiffs were each harmed by the Asylum Directives as they sought to press their asylum claims during the credible fear process. Each of these harms can be redressed by this Court. The Individual Plaintiffs are entitled to new credible fear interviews scheduled after they have had adequate time to comprehend their legal rights, prepare for their interviews, and consult with third parties.
However, these directives threaten further irreparable harm without judicial relief. If the Defendants remove these parents and children—and hundreds like them each month—they will face significant risks of persecution, violence, and death. They may also be unable to return to the United States after removal, given the unstable situation they will be returned to in their country of origin, their existing trauma, lack of financial resources, and/or immigration laws. These consequences warrant expedited relief, including a stay of any removals ordered after processes governed by the Asylum Directives.
1. L.M.-M., B.M.-M., and V.M.-M. L.M.-M. and her minor children B.M.-M. and V.M.-M. arrived in the United States and were first detained on August 10, 2019; they purportedly received the Form M-444 on August 12; and they arrived at Dilley on August 14. They received the Form G-56 the evening of August 14. Prior to the Shortened Wait Period Directive, their interviews would have been scheduled no earlier than the evening of August 16; however, their interviews were scheduled for 10 AM on August 15. L.M.-M. and her family were therefore denied their statutory and
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regulatory rights to understand the credible fear process and consult with third parties, and were prevented from fully and effectively participating in the credible fear process.
L.M.-M. and her minor children B.M.-M. and V.M.-M. have a significant possibility that they would be able to establish eligibility for asylum, withholding of removal, and/or relief under the Convention against Torture. L.M.-M., who had a severe toothache during the interview, informed the asylum officer that she feared retaliation by the Honduran government for her political beliefs. She stated that her family had difficulty obtaining jobs, education, and medical care because of their political affiliation and that her children had been physically bullied by other students at their school. However, the asylum officer issued a negative credible fear determination.
While a DPBP attorney informed the immigration court that L.M.-M. had not been fully comfortable participating in the interview, and that she also feared severe violence from both a domestic partner and transnational criminal organizations that operate notoriously in Honduras, that determination was nonetheless affirmed by the immigration court. If removed from the country, L.M.-M. and her children would wish to return, if able and permitted to do so.
2. M.A.-H. and I.M.-A. M.A.-H. and her minor child I.M.-A. arrived in the United States on August 14, 2019; were first detained on August 18; and arrived at Dilley and purportedly received the Form M-444 on August 21. They received the Form G-56 at 7 PM on August 22. Prior to the Shortened Wait Period Directive, their interviews would have been scheduled no earlier than 7 PM on August 24; however, their interviews were scheduled for 8 AM on August 23. M.A-H. and her child requested a continuance on the grounds that they had been unable to consult with counsel before their interview. Specifically, while M.A.-H. was waiting to
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speak with DPBP staff, she was told to go to the medical unit for X-rays and was unable to return to the legal visitation trailer. That continuance was denied because those facts did not amount to an “exceptional circumstance.” When they appeared at the interview, M.A.-H. requested a continuance so they could have more time to consult and prepare for their interviews, but were only given thirty minutes. They returned and informed the asylum officer that they needed 24 hours, but were not given additional time because they were required “to go forward right now.” M.A.-H. also possesses a cognitive impairment that inhibits her understanding of the legal system and her communication with third parties. M.A.-H. and her child were therefore denied their statutory and regulatory rights to understand the credible fear process and consult with third parties, and were prevented from fully and effectively participating in the credible fear process.
M.A.-H. and her minor child I.M.-A. have a significant possibility that they would be able to establish eligibility for asylum, withholding of removal, and/or relief under the Convention against Torture. M.A-H. informed the asylum officer that members of transnational criminal organizations threw rocks at her house, but that the police were unable to respond in time to locate the perpetrators. She also stated that men would sometimes kidnap students at her daughter’s school. She further stated that she had been attacked because of her race and skin color. However, the asylum officer issued a negative credible fear determination. That determination was affirmed by the immigration court. If removed from the country, M.A.-H. and I.M.-A. would wish to return, if able and permitted to do so.
3. S.G.-C. and B.O.-G. S.G.-C. and her minor child B.O.-G. arrived in the United States and were first detained on August 18, 2019, and arrived at Dilley and purportedly received the Form M-444 from CBP on August 21. They received the Form G-56 the evening of August 22. Prior to the
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Shortened Wait Period Directive, their interviews would have been scheduled no earlier than the evening of August 24; however, their interviews were scheduled for 12:30 PM on August 23.
S.G.-C. and her family requested a continuance so they could have more time to consult and prepare for their interviews, but were denied on the grounds that consulting with an attorney was not an “exceptional circumstance,” and informed that their asylum claims would be terminated if they did not proceed. S.G.-C. and her family were therefore denied their statutory and regulatory rights to understand the credible fear process and consult with third parties, and were prevented from fully and effectively participating in the credible fear process.
S.G.-C. and her minor child B.O.-G. each have a significant possibility that they would be able to establish eligibility for asylum, withholding of removal, and/or relief under the Convention against Torture. S.G.-C. informed the asylum officer that she and her daughter had been threatened by a man who wanted her “to be his woman,” and that she was also afraid to return to her home because of potential violence from transnational criminal organizations and drug cartels. She also stated that the government and police cannot or would not protect her from harm. However, the asylum officer issued a negative credible fear determination. S.G.-C. was unable to present to the asylum officer additional details concerning her persecution: that, among other things, she was raped by members of a gang and faced significant gender-based persecution in Honduras. If removed from the country, S.G.-C. and B.O.-G. would wish to return, if able and permitted to do so.
Refugee and Immigrant Center for Education and Legal Services. RAICES focuses on providing quick, limited-scope legal services to asylum seekers at the Karnes Detention Center. RAICES strives to provide legal services prior to credible fear interviews, provides representation during credible fear interviews and associated immigration court hearings, and represents individuals in custody redetermination hearings and
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merits hearings before the San Antonio Immigration Court. RAICES also manages a free hotline for Karnes detainees that is staffed and regularly monitored.
Prior to April 2019, RAICES staff and volunteers regularly met with 100-150 individuals per day, and spent the majority of their time preparing asylum seekers for their upcoming credible fear interviews. In April 2019, when the population at Karnes changed from families to adults, Immigration and Customs Enforcement (“ICE”) made significant changes to the existing visitation procedures. As a result of these changes, RAICES’ access to Karnes detainees diminished significantly, and the number of detainees RAICES is able to visit on a daily basis has in turn decreased significantly. Now, RAICES staff meet with approximately 5070 detained persons per day.
These recent changes have forced RAICES to completely revise its processes in order to continue reaching as many Karnes detainees as possible. The Shortened Wait Period Directive and Continuance Denial Directive have exacerbated and solidified these revisions. As a consequence, RAICES has been forced to change the manner in which it provides legal counsel to its clients, and has diverted resources, including money and staff time, to ensure that it can continue to provide its services.
Specifically, the Shortened Wait Period Directive and Continuance Denial Directive have further accelerated the pace with which asylum seekers move through the credible fear process at the Karnes Detention Center. RAICES strives to meet asylum seekers prior to their credible fear interviews; now, however, RAICES frequently is unable to make contact with asylum seekers until after their credible fear interviews, if at all.
RAICES’s ability to meet with asylum seekers is a direct function of the pace with which asylum seekers move through the system. In July, when the USCIS Asylum Office
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was delayed for a brief period of time, RAICES was able to meet with almost all of the asylum seekers that requested its services. More recently, however, and after Defendants implemented the Asylum Directives at issue here, RAICES has again been unable to meet with most of the asylum seekers that require its assistance prior to their credible fear interviews.
Because the number of asylum seekers RAICES is able to meet has been greatly curtailed, RAICES has been forced to provide much of its legal services over the phone, via its toll free hotline. RAICES has had to divert additional resources to provide services through this medium, including by hiring additional staff, reallocating existing staff, such as paralegals, providing additional training to those staffers, and utilizing additional office equipment, like new phones, to keep up with the increased demand.
RAICES is also unable to obtain continuances for its clients, which it needs in order to attempt to provide them with additional counsel. In the few cases where RAICES has been able to make contact with an asylum seeker prior to a credible fear interview, it has encouraged those individuals to seek a continuance to allow time for consultation with counsel. But these efforts have generally been for naught; the asylum seeker has been forced to proceed with the interview regardless.
RAICES often serves individuals that possess trauma-related and other mental and physical impairments. The Shortened Wait Period and Continuance Denial Directives limit RAICES’s ability to provide these individuals with effective legal representation and to ensure that they are fully prepared for their credible fear interviews.
Because RAICES often cannot make contact with an asylum seeker until after their credible fear interview, RAICES has had to devote additional time and staff resources to attempting to obtain reversal of negative credible fear determinations. These proceedings are
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generally more complicated and time-intensive than credible fear interviews, and require substantial additional preparation.
Moreover, the Directives have prevented RAICES from forming attorney-client relationships with asylum seekers. Many asylum seekers lack adequate time to engage RAICES because of the Shortened Wait Period and Continuance Denial Directives. Because RAICES is the primary pro bono legal services provider at the Karnes Detention Center, the vast majority of asylum seekers that engage counsel choose RAICES to represent them.
Had the Asylum Directives been the subject of advance publication and noticeand-comment rulemaking under the Administrative Procedure Act, RAICES and/or affiliated organizations would have submitted comments opposing their adoption.
RAICES has standing to assert the rights of its asylum seeking clients. RAICES also has been independently injured by the Asylum Directives; RAICES possesses a close relationship with its many clients, including prospective future clients; and those clients face hindrances in asserting their claims, given their vulnerable immigration status, language and competency issues, detention, and the complexity of the credible fear process.
Each of these harms is irreparable, in that they constitute an ongoing disruption of RAICES’s operations, do lasting harm to RAICES’s clients, and force RAICES to spend resources, including staff time and money, that cannot be recouped. They would be redressed by an order holding unlawful and/or enjoining the Asylum Directives.
CLAIMS FOR RELIEF Count One
(Violation of 8 U.S.C. § 1225 and its implementing regulations, 8 C.F.R. §§ 208.30, 235.3) Plaintiffs repeat and incorporate by reference each of the foregoing allegations as
if fully set forth herein.
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Under federal law, judicial review is available regarding whether “a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement [the expedited removal system] is not consistent with applicable provisions … or is otherwise in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii). That provision extends to directives issued by USCIS. See 6 U.S.C. § 271(b); Martinez, 543 U.S. at 375 n.1.
Similarly, under the Administrative Procedure Act, the court shall “hold unlawful and set aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A).
By impeding asylum seekers’ ability to consult with persons of their choosing and preventing them from fully and effectively participating in the credible fear interview process, the Asylum Directives violate the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. § 1225, and its implementing regulations, 8 C.F.R. §§ 208.30, 235.3, and must be invalidated.
Count Two (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A))
Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein.
Under the Administrative Procedure Act, the court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).
In promulgating the Asylum Directives, Defendants failed to consider or address asylum seekers’ legitimate need and right to meaningfully consult with persons of their choosing, including counsel, prior to their credible fear interviews. 8 U.S.C. § 1225(b)(1)(B)(iv); AILA, 18 F. Supp. 2d at 54.
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Defendants’ decision therefore “failed to consider an important aspect of the problem, offered an explanation for [their] decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Defendants’ public explanations of the Directives, if any, are pretextual, and do not reflect Defendants’ true rationales for enacting these changes.
Defendants’ animus toward immigrants, particularly immigrants of color, motivated their decision to promulgate the Directives. Defendants’ decision therefore “relied on factors which Congress has not intended [them] to consider.” Id.
Defendants failed to provide an adequate justification for these changes in policy, especially given that these changes appear to “rest[] upon factual findings that contradict those which underlay its prior policy,” and that their prior policies “engendered serious reliance interests that must be taken into account,” including with respect to RAICES and other legal service providers. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
For at least these reasons, the Asylum Directives are arbitrary and capricious and an abuse of discretion, and must therefore be held unlawful and set aside.
Count Three (Violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706(2)(D))
Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein.
Under the Administrative Procedure Act, the court shall “hold unlawful and set aside agency action” that is “without observance of procedure required by law” 5 U.S.C. § 706(2)(D). The APA also provides that “[g]eneral notice of proposed rule making shall be
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published in the Federal Register,” that agencies must “give interested persons an opportunity to participate in the rule making,” and that substantive rules be published 30 days before their effective date. Id. § 553(b), (c), (d).
Defendants did not provide notice, an opportunity for comment, or advance publication before promulgating any of the Asylum Directives. The Directives are therefore unlawful and must be set aside.
Count Four (Violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.) Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein. Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., provides in pertinent part that “[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or … conducted by any Executive agency.” 209 U.S.C. § 794(a). DHS’s implementing regulations, 6 C.F.R. § 15.1 et seq., similarly mandate that Defendants not discriminate against individuals with a disability or deny equal access to their programs and benefits on that basis. The DHS regulations require that such individuals not “be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the Department,” id. § 15.49, and that each program or activity be operated in a manner that is “readily accessible to and usable by individuals with a disability,” id. § 15.50. The term “disability” means any “physical or mental impairment that substantially limits one or more major life activities.” 29 U.S.C. § 705(9)(A); 42 U.S.C. § 12102(1)(A). Major
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life activities include “learning, reading, concentrating, thinking, communicating, and working,” as well as “the operation of a major bodily function, including … neurological, brain … [and] endocrine … functions.” 42 U.S.C. § 12102(2)(A)-(B).
The trauma-related and other mental impairments exhibited by the Individual Plaintiffs, and individuals served by RAICES, qualify as “disabilities” under the Rehabilitation Act. See, e.g., Alexander v. Choate, 469 U.S. 287, 301 (1985) (holding that the Rehabilitation Act requires reasonable accommodations be provided for mental disabilities); Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034, 1051 (C.D. Cal. 2010) (granting safeguards for mentally ill immigrants in immigration court under the Rehabilitation Act). These trauma-related and other mental impairments are also, in part, the result of Defendants’ detention and processing policies.
Defendants administer the credible fear interview process as part of a DHSconducted program or activity, which is designed to provide Plaintiffs with the opportunity to receive asylum, withholding of removal, and/or relief under the Convention against Torture — benefits for which they would otherwise qualify.
The Asylum Directives unlawfully discriminate against these Plaintiffs by forcing them to participate in credible fear interviews without adequate time to prepare or consult with third parties, and without an adequate understanding of their legal rights. They also thereby fail to provide them with a reasonable accommodation and/or exclude them from the asylum process.
Moreover, Defendants’ practice has a disparate impact on these Plaintiffs and other mentally disabled individuals, who are forced to participate in credible fear interviews without reasonable accommodations and/or receive negative credible fear determinations due to their disabilities.
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Defendants would not have to fundamentally alter their programs or services to provide these Plaintiffs with a reasonable accommodation that would allow these Plaintiffs to participate fully and intelligibly in the credible fear interview process.
The Asylum Directives therefore violate the Rehabilitation Act and must be invalidated.
Count Five (Violation of the First Amendment, U.S. Const. amend. I) Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein. The First Amendment of the U.S. Constitution guarantees RAICES the right to communicate and associate with its clients and prospective clients who are seeking representation, to inform them about their legal rights, to discuss the possibility of legal representation, and to assist them with their legal claims in a confidential setting. Similarly, it guarantees the Individual Plaintiffs, and current and prospective clients of RAICES, the right to communicate and associate with their lawyers, or other third parties, for the same purposes. U.S. Const. amend. I; see also Procunier v. Martinez, 416 U.S. 396, 419 (1974) (“Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). The Asylum Directives unduly impede communication and association between the Individual Plaintiffs and their counsel, as well as between RAICES and its current or prospective clients. Specifically, the Shortened Wait Period Directive unduly limits the time that asylum seekers have to consult with counsel, or other third parties; the Continuance Denial Directive unduly bars asylum seekers from obtaining a continuance of their credible fear
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interview if they require additional time to consult; and the No Legal Orientation Directive unduly prevents asylum seekers from being informed of their legal rights, including the right to consult.
The Asylum Directives are not justified by any legitimate penological objective or any legitimate objective with respect to civil detention.
The Asylum Directives therefore violate the First Amendment and must be invalidated.
Count Six (Violation of the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.)
Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein.
Mr. Cuccinelli’s service as Acting Director is unlawful under the Federal Vacancies Reform Act. Mr. Cuccinelli did not satisfy the statute’s requirements: he was not serving as the first assistant to the office of the Director when the President terminated Mr. Cissna, nor does he currently serve in an office which was constituted as the first assistant to the office of the Director when the President terminated Mr. Cissna. Id. § 3345(a)(1). Nor has Mr. Cuccinelli “serve[d] in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate” or “in a position in [the] agency for not less than 90 days” at the GS-15 rate of pay. Id. § 3345(a)(2), (3).
Moreover, the previous Senate-confirmed Director, Mr. Cissna, was forced to resign by President Trump. Mr. Cissna was therefore effectively fired, and did not “resign” in the manner contemplated by the FVRA. 5 U.S.C. § 3345. Accordingly, the FVRA provides no authority for Mr. Cuccinelli to serve as Acting USCIS Director, even assuming he met the statutory requirements.
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There is also no statute or rule, directive, or other agency action published in the Federal Register that either establishes the office of “Principal Deputy Director” or designates the Principal Deputy Director as the first assistant to the office of the Director. The Principal Deputy Director therefore cannot serve as first assistant to the office of the USCIS Director.
Mr. Cuccinelli promulgated the Asylum Directives pursuant to the USCIS Director’s non-delegable authority to establish policies for the United States’ lawful immigration system. Those Directives therefore “shall have no force or effect.” 5 U.S.C. § 3348(d)(1). Similarly, the Directives are “not in accordance with law” under the Administrative Procedure Act. Id. § 706(2)(A). Thus, the Directives are unlawful and must be invalidated.
Count Seven (Violation of the Appointments Clause of the U.S. Constitution,
U.S. Const. art. II, § 2, cl. 2) Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. The Appointments Clause of the U.S. Constitution provides that officers of the United States may be appointed by the President “by and with the Advice and Consent of the Senate,” unless Congress has “by Law” authorized the appointment of an inferior officer by the President, the courts, or a department head. U.S. Const. art. II, § 2, cl. 2. The Appointments Clause also provides that Congress has exclusive authority to “establish[]” offices “by Law.” U.S. Const. art. II, § 2, cl. 2. As Acting USCIS Director and as the Principal Deputy Director performing the functions and duties of the USCIS Director, Mr. Cuccinelli exercises significant authority and discretion, and therefore serves as an officer for the purposes of the Appointments Clause. See, e.g., Lucia, 138 S. Ct. at 2051-52.
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Although he serves as an officer, Mr. Cuccinelli has not been nominated by the President and confirmed by the Senate. Nor has Congress enacted a law authorizing Mr. Cuccinelli to perform the functions and duties of USCIS Director without Senate confirmation. Nor has Congress enacted a law authorizing the creation of the office of Principal Deputy Director.
Defendants’ unconstitutional actions here are part of a broader pattern by President Trump of relying on acting officials across the executive branch, in derogation of the Senate’s constitutional authority and responsibility. These actions undermine one of the “significant structural safeguards of the constitutional scheme” provided by the Appointments Clause. Edmond, 520 U.S. at 659.
Plaintiffs filed suit to challenge the Asylum Directives shortly after those Directives were promulgated and Defendants had reasonable notice of the defect in Mr. Cuccinelli’s appointment. See Andrade v. Lauer, 729 F.2d 1475, 1500 (D.C. Cir. 1984). Thus, the Directives are unlawful and must be invalidated.
Count Eight (Ultra Vires Action) Courts have equitable authority to enjoin ultra vires agency action. See, e.g., Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949). Because Mr. Cuccinelli’s service is not authorized by the Federal Vacancies Reform Act or the Appointments Clause of the U.S. Constitution, any actions he or USCIS may take, including establishing and implementing the Asylum Directives, are ultra vires and must be enjoined. REQUEST FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
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declare that the Asylum Directives are unlawful, and that Mr. Cuccinelli’s

appointment as Acting USCIS Director is unlawful,

vacate the Directives;

enjoin Defendants from processing and adjudicating asylum applications under

the Directives, from removing asylum seekers who have been ordered removed under the

Directives, to return to the United States asylum seekers processed under the Directives and

subsequently removed, and to provide new credible fear interviews for asylum seekers processed

under the Directives, including, as applicable, the Individual Plaintiffs;

award Plaintiffs their costs, attorneys’ fees, and other disbursements for this

action; and

grant any other relief this Court deems appropriate.

Dated: September 6, 2019

Respectfully submitted,

____________________ John T. Lewis (D.C. Bar No. 1033826) Nitin Shah (D.C. Bar No. 156035) Benjamin Seel (D.C. Bar No. 1035286) Javier M. Guzman (D.C. Bar No. 462679) DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 (202) 448-9090 jlewis@democracyforward.org nshah@democracyforward.org bseel@democracyforward.org jguzman@democracyforward.org
Samuel J. Waldon* PROSKAUER ROSE LLP 1001 Pennsylvania Avenue, NW Suite 600 South Washington, DC 20004-2533 Telephone: (202) 416-6858 Facsimile: (202) 416-6899
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1. declare that the Asylum Directives are unlawful, and that Mr. Cuccinelli's

appointment as Acting USCIS Director is unlawful,

2. vacate the Directives;

3. enjoin Defendants from processing and adjudicating asylum applications under

the Directives, from removing asylum seekers who have been ordered removed under the

Directives, to return to the United States asylum seekers processed under the Directives and

subsequently removed, and to provide new credible fear interviews for asylum seekers processed

under the Directives, including, as applicable, the Individual Plaintiffs;

4. award Plaintiffs their costs, attorneys' fees, and other disbursements for this

action; and

5. grant any other relief this Court deems appropriate.

Dated: September 6, 2019

Respectfully submitted,

T. Lewis (D.C. Bar No. 1033826) itin Shah (D.C. Bar No. 156035) Benjamin Seel (D.C. Bar No. 1035286) Javier M. Guzman (D.C. Bar No. 462679) DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 (202) 448-9090 jlewis@democracyforward.org nshah@democracyforward.org bseel@democracyforward.org jguzman@democracyforward.org
Samuel J. Waldon* PROSKAUER ROSE LLP 1001 Pennsylvania Avenue, NW Suite 600 South Washington, DC 20004-2533 Telephone: (202) 416-6858 Facsimile: (202) 416-6899
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swaldon@proskauer.com Bradley Jenkins* CATHOLIC LEGAL IMMIGRATION NETWORK, INC. 8757 Georgia Ave., Suite 850 Silver Spring, MD 20910 (301)565-4820 bjenkins@cliniclegal.org Manoj Govindaiah (D.D.C. Bar ID TX0145) REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES 802 Kentucky Ave. San Antonio, TX 78201 (210) 787-3745 manoj.govindaiah@raicestexas.org Counsel for Plaintiffs *Application for admission pro hac vice
forthcoming
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

L.M.-M., et al.,
Plaintiffs,
v.
KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services, et al.,
Defendants.

Civil Action No. 19-2676 (RDM)

MEMORANDUM OPINION AND ORDER Under the Appointments Clause of Article II of the Constitution, the President must obtain “the Advice and Consent of the Senate” before appointing any principal officer of the United States and, unless Congress vests the appointment power in the President, a court, or a department head alone, before appointing any inferior officer as well. U.S. Const., Art. II, § 2, cl. 2. This requirement is “more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651, 659 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976) (per curiam)). By dividing authority between the President and the Senate, the Appointments Clause serves as a check on both branches of government and a means of “promot[ing] . . . judicious choice[s] of [persons] for filling the offices of the union.” The Federalist No. 76, at 454–59 (C. Rossiter ed. 1961) (A. Hamilton). “The constitutional process of Presidential appointment and Senate confirmation, however, can take time,” raising the prospect that the duties and functions assigned to an office requiring Presidential appointment and Senate confirmation (referred to as a “PAS”

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office) can go unperformed if the President and Senate “cannot promptly agree on a replacement.” NLRB v. SW General, Inc., 137 S. Ct. 929, 934–35 (2017). Recognizing this reality, Congress has, since the early days of the Republic, authorized “the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation.” Id. at 934.
The Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3345 et seq., represents the “latest version of that authorization.” SW General, Inc., 137 S. Ct. at 934. Subject to exceptions not relevant here, it sets forth the exclusive means of temporarily filling vacancies in PAS offices. The default rule under the FVRA is that the “first assistant” to the vacant office automatically serves as the acting official when a vacancy arises. 5 U.S.C. § 3345(a)(1). That default rule applies unless the President, and only the President, directs that (1) a person who has been confirmed by the Senate to serve in another PAS office or (2) an officer or employee of the agency in question, who has worked for that agency in a senior position for at least 90 of the 365 days preceding the vacancy, “perform the functions and duties of the vacant office temporarily in an acting capacity.” Id. § 3345(a)(2) and (3). The question presented in this case is whether the acting Director of the United States Citizenship and Immigration Services (“USCIS”), Kenneth Cuccinelli II, was appointed in conformity with the FVRA.
The relevant events began on June 1, 2019, when Lee Francis Cissna, the Senateconfirmed Director of USCIS, resigned, and, as the FVRA prescribes, his “first assistant,” Deputy Director Mark Koumans, automatically assumed the post of acting Director. See Dkt. 22-1 at 14 (Pls.’ SUMF ¶¶ 81–84); Dkt. 17-2 at 5–7, 12 (USCIS order of succession); Dkt. 12-6 at 2 (Monk Decl. ¶ 6). Koumans’s tenure, however, was short-lived. Nine days after Director Cissna’s resignation, the then-serving acting Secretary of the Department of Homeland Security,
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Kevin McAleenan, appointed Cuccinelli “to serve as the Principal Deputy Director of [USCIS],” Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1), a position that did not exist prior to Cuccinelli’s appointment, see Dkt. 17-2 at 12 (Johnson Decl., Ex. 1 at D-1). That same day, acting Secretary McAleenan also revised USCIS’s order of succession, designating the newly created position of Principal Deputy Director as “the First Assistant and most senior successor to the Director of USCIS.” Dkt. 17-4 at 7 (Blackwell Decl., Ex. 2). These two changes—both of which occurred after the vacancy arose—allowed Cuccinelli to leapfrog Koumans to become USCIS’s acting Director.
But neither of these changes was designed to endure. Acting Secretary McAleenan specified that Cuccinelli’s appointment as Principal Deputy Director “will remain in effect until the earlier to occur of (1) the appointment of a Director of USCIS by the President of the United States, or (2) the express revocation of this appointment.” Id. at 5 (Blackwell Decl., Ex. 1). And acting Secretary McAleenan specified that the revised order of succession, which re-designated the Principal Deputy Director position as the “first assistant” to the Director, “will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President.” Id. at 7 (Blackwell Decl., Ex.2). In other words, as soon as the vacant office is filled, the status quo will be restored.
On July 2, 2019, three weeks after assuming his new office, Cuccinelli issued a memorandum announcing a revised policy for scheduling credible-fear interviews in expedited removal proceedings. AR 113. Under the revised policy, USCIS (1) reduced the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to “one full calendar day from the date of arrival at a detention facility,” AR 113 (“reduced-time-to-consult directive”), and (2) prohibited asylum officers from granting asylum
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seekers extensions of time to prepare for their credible-fear interviews, “except in the most extraordinary of circumstances,” id.; see also AR 114 (“prohibition-on-extensions directive”). Although not reflected in the memorandum, Plaintiffs assert that Cuccinelli also cancelled “[t]he in-person [legal] orientation process that was” previously “in place” at the Dilley Detention Center in Dilley, Texas. Dkt. 12-2 at 3–4 (Fluharty Decl. ¶¶ 6–7) (“in-person-orientation directive”). Before its cancellation, according to Plaintiffs, that policy “allowed asylum seekers to ask questions about their legal rights, provided the only means of transmitting information to asylum seekers who cannot read, and facilitated understanding for asylum seekers with special needs, including disabilities or competency issues.” Dkt. 12 at 18; see also Dkt. 12-2 at 3–4 (Fluharty Decl. ¶¶ 6–7). Taken together, Plaintiffs refer to these revised policies as the “Asylum Directives.”
Plaintiffs, five individual native Honduran asylum seekers (two adults and three of their minor children) and the Refugee and Immigrant Center for Education and Legal Services (“RAICES”), a nonprofit organization that provides legal services to refugees, challenge the lawfulness of the Asylum Directives on multiple grounds. First, they allege that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, as a result, the Asylum Directives must be set aside under the Appointments Clause, the FVRA, 5 U.S.C. § 3348(d)(1), the Administrative Procedure Act (“APA”), 5 U.S.C. §706(2)(A), and as ultra vires. Dkt. 1 at 63–68 (Compl. ¶¶ 225–36). Second, they allege that the Asylum Directives themselves are inconsistent with various statutory and regulatory requirements, including an asylum applicant’s statutory right to “consult with a person or persons of the alien’s choosing prior to the [crediblefear] interview,” 8 U.S.C. § 1225(b)(1)(B)(iv), and the regulatory authority of asylum officers freely to reschedule credible-fear interviews whenever the asylum seeker “is unable to participate
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effectively . . . because of illness, fatigue, or other impediments,” 8 C.F.R. § 208.30(d)(1). Dkt. 1 at 57–58 (Compl. ¶¶ 194–97). Third, they contend that the Asylum Directives are arbitrary and capricious because USCIS failed to consider how the Directives harm asylum seekers, acted based on “animus toward immigrants” and failed to provide an adequate justification for the policy changes. Id. at 58–59 (Compl. ¶¶ 198–204). Fourth, they further allege that USCIS failed to comply with the APA’s notice-and-comment and advanced-notice requirements. Id. at 59–60 (Compl. ¶¶ 207–08). Fifth, Plaintiffs maintain that the Asylum Directives discriminate against asylum seekers with “trauma-related and other mental impairments” in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. Id. at 60–62 (Compl. ¶¶ 209–18). Finally, they allege that the Asylum Directives violate the First Amendment by interfering with the ability of the individual Plaintiffs and RAICES “to communicate and [to] associate” with one another regarding the individual Plaintiffs’ legal rights. Id. at 62–63 (Compl. ¶¶ 219–23).
As explained below, the Court is satisfied that at least one Plaintiff has Article III standing and that the Court has statutory jurisdiction over Plaintiffs’ challenges to the reducedtime-to-consult and prohibition-on-extensions directives. The Court is not persuaded, however, that it has statutory jurisdiction over Plaintiffs’ challenge to the in-person-orientation directive. On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and prohibition-on-extensions directives. The remedy for that deficiency, moreover, is compelled by the FVRA and the APA: the Asylum Directives must be set aside. Finally, having reached that conclusion, the Court need not—and does not—reach Plaintiffs’ alternative legal challenges.
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I. BACKGROUND A. The Expedited Removal System
Congress first introduced the concept of expedited removal when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996. Pub. L. No. 104208, Div. C, 110 Stat. 3009–546, 3009 (1996) (codified as amended in scattered sections of 8 U.S.C.). Expedited removal procedures allow the Department of Homeland Security (“the Department”) to remove a subset of aliens—those arriving at the border and those who recently entered the United States without inspection—with considerably less process than the formal proceedings required to remove other aliens. See 8 U.S.C. § 1225(b)(1)(A)(i). IIRIRA, in particular, authorizes the Department to remove aliens subject to expedited removal procedures “without further hearing or review[.]” Id. If an alien subject to expedited removal “indicates either an intention to apply for asylum . . . or a fear of persecution,” however, then the immigration officer is required to “refer the alien for an interview by an asylum officer,” id. § 1225(b)(1)(A)(ii), who must determine whether the alien has a “credible fear of persecution,” id. § 1225(b)(1)(B).
IIRIRA sets out procedures that are to be used when an alien is referred to an asylum officer for a credible-fear interview. The alien must be “provide[d] [with] information concerning the asylum interview” and must be allowed to “consult with a person or persons of the alien’s choosing prior to the interview,” although “[s]uch consultation shall be at no expense to the Government and shall not unreasonably delay the process.” Id. § 1225(b)(1)(B)(iv). If the asylum officer determines that the alien has a credible fear of persecution, “the alien [is] detained for further consideration of the application for asylum,” id. § 1225(b)(1)(B)(ii), and is typically placed in formal removal proceedings. If the asylum officer determines that the alien does not
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have a credible fear of persecution, “the officer shall order the alien removed from the United States without further hearing or review.” Id. § 1225(b)(1)(B)(iii)(I).
USCIS oversees credible-fear interviews. Although the now-defunct Immigration and Naturalization Service (“INS”) once oversaw asylum applications, see, e.g., U.S. Department of Justice, Immigration and Naturalization, Asylum, 39 Fed. Reg. 41,832 (Dec. 3, 1974), the “functions” of adjudicating “asylum and refugee applications” and of “establish[ing] the policies for performing [that] function” were transferred to the Director of USCIS by the Homeland Security Act of 2002, Pub. L. No. 107-296, Subtitle E, 116 Stat. 2195 (codified at 6 U.S.C. § 271 et seq.), 6 U.S.C. § 271(a)(3)(A) and (b)(3). Consistent with those authorities, the USCIS Director establishes policies for processing aliens that have been referred to USCIS for a credible-fear determination. See, e.g., USCIS, Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of AB- (July 11, 2018), available at https://tinyurl.com/y6xt6j8l (last accessed March 1, 2020). B. Cuccinelli’s Appointment
On June 1, 2019, Lee Francis Cissna resigned as Director of USCIS, creating a vacancy in that PAS position. Dkt. 22-1 at 14 (Pls.’ SUMF ¶ 81); Dkt. 26 at 2 (Response to Pls.’ SUMF). Under USCIS’s order of succession at the time, Deputy Director Mark Koumans served as the Director’s “first assistant” and thus, pursuant to the FVRA’s default rule, automatically became the acting Director. Dkt. 12-6 at 13 (Monk Decl., Ex. 4). A few days later, on June 6, 2019, the Department’s Office of Human Capital & Training sent Kenneth Cuccinelli II a letter “[c]ongratulat[ing] [him] on [his] noncareer Senior Executive Service (SES) appointment as Principal Deputy Director, ES-0301, U.S. Citizenship and Immigration Service,” effective on June 10, 2019. Dkt. 17-3 at 5 (Monroe Decl., Ex. 1). Prior to his appointment to that position,
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Cuccinelli had never been employed by the federal government. Dkt. 12-6 at 9 (Monk Decl., Ex.
2). Although not stated in the letter, it is undisputed that the Principal Deputy Director position
did not exist prior to Cuccinelli’s appointment. Dkt. 22-1 at 14 (Pls.’ SUMF ¶ 85); Dkt. 26 at 2
(Response to Pls.’ SUMF). Consistent with the Department’s letter, on June 10, 2019, then-
acting Secretary McAleenan appointed Cuccinelli “to serve as the Principal Deputy Director of
[USCIS].” Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1). The appointment will expire without further
action upon “the appointment of a Director of USCIS by the President of the United States.” Id.
On the same day as Cuccinelli’s appointment, acting Secretary McAleenan also issued a
memorandum entitled “Amendment to the Order of Succession for [USCIS].” Id. at 7
(Blackwell Decl. Ex. 2). The memorandum consists of a single paragraph, which provides as
follows:
Pursuant to Paragraph II.K of Department of Homeland Security . . . Delegation No. 0106, DHS Orders of Succession and Delegations of Authority for Named Positions (last updated on April 10, 2019), I am exercising my reserved right to re-designate the order of succession for [USCIS] . . . . I hereby designate the Principal Deputy Director of USCIS as the First Assistant and most senior successor to the Director of USCIS in such order of succession. Annex D of DHS Delegation No. 0106 is hereby modified in accordance with this designation. This designation, and the corresponding modification to Annex D of DHS Delegation No. 0106, will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President. I reserve the right to amend or revoke this designation and such modification at any time.
Id. at 7 (Blackwell Decl. Ex. 2). The acting Secretary thus designated the newly created position
of Principal Deputy Director as the “first assistant” to the Director for purposes of the FVRA, see
Dkt. 17-2 at 5–6, 12 (Johnson Decl., Ex. 1), but only until the appointment of a new Director of
USCIS by the President, Dkt. 17-4 at 7 (Blackwell Decl., Ex. 2). As a result, on the first day
Cuccinelli reported to USCIS for work, he displaced Deputy Director Koumans as the acting
Director. See Dkt. 12-6 at 9 (Monk Decl., Ex. 2). That appointment—and the parallel
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designation—will expire when the vacant office is filled. Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1); id. at 7 (Blackwell Decl. Ex. 2). C. The Asylum Directives
On July 2, 2019, Cuccinelli sent the acting Secretary of Homeland Security a memorandum notifying him that, “effective July 8, 2019, USCIS [1] is reducing the credible fear . . . consultation period to one full calendar day from the date of arrival at the detention facility . . . and [2] will deny requests for extensions, as unreasonably delaying the process, except in the most extraordinary circumstances.” AR 113. The memorandum explained that the Immigration and National Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 et seq.), provides asylum seekers “in the credible fear process” the right “to consult with a person(s) of their choosing, as long as the consultation is at no expense to the government and does not unreasonably delay the process.” AR 113. Under the pre-existing policy, those held at Family Residential Centers (“FRCs”) were “given 72 hours after arrival at the facility and re-orientation by USCIS to seek and receive consultation,” and at all other detention facilities, “single adults [were] generally not interviewed until at least 48 hours after arrival at the detention facility in order to [be able to] seek and receive consultation before the interview [took] place.” Id.
According to the memorandum, Cuccinelli decided to reduce the credible-fear consultation period, and to limit the availability of extensions to only “the most extraordinary circumstances,” for two reasons. Id. First, he explained that USCIS had recently “completed revisions to [its] Form M-444, Information About Credible Fear Interview,” AR 113–14. USCIS gives that form to detainees upon their arrival at a detention facility to comply with its statutory and regulatory obligations to provide asylum seekers subject to expedited removal with
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“information concerning the asylum interview.” 8 U.S.C. § 1225(b)(1)(B)(iv); 8 CFR
§ 208.30(d)(2); 6 U.S.C. § 271(b)(3) (transferring to the Director responsibility for the function
of adjudicating asylum applications). By “using plain language principles in order to provide
greater clarity to the alien during the consultation process,” AR 113–14, Cuccinelli explained,
the revised M-444 form “makes the [credible-fear] process easier for aliens to understand,” and
thus justifies a shortened consultation period, AR 114. Second, the memorandum asserted,
without elaboration, that the policy shifts were also justified because “USCIS must do its part to
ensure the processing of aliens is not unduly delayed in light of the situation at the Southwest
Border.” AR 114. The memorandum’s concluding paragraph, repeated both rationales, stating:
Given the critical need [at the Southwestern border], coupled with the improvements made to the M-444[,] which makes the [credible-fear] process easier for aliens to understand, [the acting USCIS Director has] decided to reduce the timeframe for consultation to one full calendar day at both the FRCs and all other facilities. In practice, this means individuals will have longer than 24 hours to consult depending on when they arrive at the facility. Reducing the time period for consultation could lead to longer delays at a later point in the process for some cases, as USCIS may receive more frequent requests to reschedule interviews. However, USCIS is also establishing a new policy of requiring extraordinary circumstances warranting approval of a request to reschedule so that USCIS can ensure, consistent with the statute, that the consultation period does not unreasonably delay the overall process.
AR 114.
On July 8, 2019, USCIS updated its “Credible Fear Procedures Manual” to reflect the
policy changes announced in the memorandum. AR 115–17. The updated manual notes that it is
now the policy of “the Asylum Program to allow a minimum of one full calendar day to transpire
between the arrival of an alien at a detention site or receipt of initial M-444 (whichever is later)
and any credible[-]fear interview.” AR 117. It further states that “[i]f USCIS is prepared to
proceed with the interview after the consultation period has passed, asylum offices normally will
deny requests for extensions of the consultation period, . . . except in extraordinary
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circumstances.” Id. Finally, the updated manual notes that “[e]xtraordinary circumstances may include, but are not limited to, serious illness or mental or physical disability of the alien, a member of the alien’s immediate family, or the alien’s consultant, and facility issues that prevent the alien from contacting a consultant.” AR 117.
Although not memorialized in the memorandum, or in any other written policy produced in this litigation, Plaintiffs offer evidence that Cuccinelli adopted a third, significant change in policy relating to the ability of asylum seekers to prepare for their credible-fear interviews. Prior to issuance of the memorandum, “USCIS officials at [the Dilley Detention Center in South Texas] would provide an oral, in-person legal orientation, which allowed asylum seekers to ask questions about their legal rights.” Dkt. 12-2 at 3 (Fluharty Decl. ¶ 6). As part of that process:
[M]others and their minor children watched a video that explained the nature and purpose of the credible[-]fear interview . . . and sat down individually with an asylum officer who: (1) provided them with a written copy of Form M-444, (2) asked them if they had any questions regarding the interview process, (3) confirmed which language they speak and understand best, (4) confirmed whether the family prefers to speak with a male or female officer, and (5) provided the family with two copies of Form G-56, which indicated the day and time their interview would take place. Id. According to Plaintiffs, that process “has now been canceled.” Id. (Fluharty Decl. ¶ 7). D. Plaintiffs Plaintiff L.M.-M. is a Honduran national who, along with her two minor children, Plaintiffs B.M.-M. and V.M.-M, is “currently seeking asylum in the United States.” Dkt. 12-3 at 1 (L.M.-M. Decl. ¶ 1). She attests that she fled Honduras because she has been “targeted by the Honduran government” due to her “political opinion” and “because [her] partner and the father of [her] youngest child beat [and] raped” her, “hit [her] daughters,” “threatened to harm [her] if [she] ever left him, and when [she] did leave him, . . . continued to pursue and threaten [her].” Id. at 1–2 (L.M.-M. Decl. ¶ 2). On August 10, 2019, L.M.-M. and her daughters entered the
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United States and soon thereafter were detained and placed in expedited removal proceedings. Id. at 2 (L.M.-M. Decl. ¶ 4).
L.M.-M. and her daughters were detained at two separate facilities before they were transferred to the USCIS “detention center in Dilley, Texas on August 13, 2019.” Id. The day after they arrived, L.M.-M. attended a “Know Your Rights presentation” and spoke with a legal assistant from the Dilley Pro Bono Project for less than an hour. Id. at 3 (L.M.-M. Decl. ¶ 8). She continued to confer with the legal assistant for about forty-five minutes after dinner, but her appointment was cut short by the guards before she “finished discussing [her] case.” Id. at 3–4 (L.M.-M. Decl. ¶ 8). That same evening, she was given a “piece of paper” that said she had a meeting scheduled “in the asylum building” at 10:00 a.m. the next morning. Id. at 4 (L.M.-M. Decl. ¶ 9). The paper “did not explain what [her] appointment would be about or any other information about the credible[-]fear process.” Id.
L.M.-M. attests that, at her credible-fear interview the next day, she “was unable to talk about [her] fear of [her] abusive partner.” Id. at 4 (L.M.-M. Decl. ¶ 10). She also avers that she “was worn out and tired from the exhaustive intake process the day before as well as the many other appointments and meetings [she] had to attend.” Id. The interviewer determined that L.M.-M. did not have a credible fear of persecution, and that determination was “subsequently affirmed by an Immigration Judge.” Dkt. 22-1 at 23 (Pls.’ SUMF ¶ 151) (citing Dkt. 22-4 at 1 (Supp. L.M.-M. Decl. ¶ 2)). L.M.-M. and her children are currently subject to orders of expedited removal. See id.
Like L.M.-M., Plaintiff M.A.-H. is a Honduran national who, along with her minor daughter, Plaintiff I.M.-A., is seeking asylum in the United States. Dkt. 12-4 at 1 (M.A.-H. Decl. ¶ 1). Plaintiff M.A.-H. attests that she “suffered persecution in Honduras” because she supports
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the “National Party in Honduras;” that she endured “sexual abuse, rape, and physical abuse” while in Honduras; and that she feared that her daughter, who “ha[d] been stalked by . . . MS-13 [gang] members,”1 “would soon be kidnapped, drugged, and raped” in Honduras. Id. at 1–3 (M.A.-H. Decl. ¶¶ 3–9). Upon entering the United States, she and her daughter were detained by immigration officials, placed in expedited removal proceedings, and then transferred to the Dilley Detention Center. Id. at 5–6 (M.A.-H. Decl. ¶¶ 16, 22).
M.A.-H. and her daughter “arrived at Dilley on August 21 at 4:00 p.m.” Id. at 6 (M.A.H. Decl. ¶ 22). She received neither an M-444 form nor an in-person legal orientation. Id. USCIS officials did give her some “documents to sign,” which they assured her “were not legal documents.” Id. She signed the documents even though she was unable to read them, and, because the USCIS officials did not explain what the documents were, she did not understand what she was signing. Id. The next day she attended an orientation about the facility, received a medical examination, and sought a legal appointment—but there were no remaining appointments available that day. Id. at 6–7 (M.A.-H. Decl. ¶ 23). “[A]round 7:00 pm that night,” M.A.-H received a notice informing her that her credible-fear interview would take place at “8:00 am the next morning.” Id. at 7 (M.A.-H. Decl. ¶ 23). At 7:30 a.m., M.A.-H. went to look for a lawyer, but when she found one, the lawyer told her that there was insufficient “time to prepare [for her credible-fear interview] and that [she] should go and ask for more time in order to obtain legal orientation.” Id. (M.A.-H. Decl. ¶ 24). M.A.-H. requested “additional time to prepare and “was given 30 minutes.” Id. (M.A.-H. Decl. ¶ 25). She then returned to the lawyer, who advised her to request 24 hours to prepare, but the asylum officer denied that request and pressed forward with the interview. Id. In addition to being denied the opportunity
1 MS-13 is a transnational criminal organization. See Dkt. 12 at 44.
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to prepare or to substantively consult with counsel, the short turnaround time between arriving at Dilley and her credible-fear interview prevented M.A.-H. from “sp[eaking] with [her] brother[] or son,” both of whom had “additional information that would have helped [her] explain the circumstances that caused [her] fear and . . . [her] need to leave” Honduras. Id. (M.A.-H. Decl. ¶ 24).
Asylum officers determined that M.A.-H. and her minor daughter did not have a credible fear of persecution, and an Immigration Judge affirmed those determinations. Dkt. 22-1 at 27 (Pls.’ SUMF ¶ 188) (citing Dkt. 22-5 (Supp. M.A.-H. Decl. ¶ 13)). As a result, like L.M.-M. and her children, M.A.-H. and her daughter are subject to orders of expedited removal.2 See id. M.A.-H. attests that, due to the Asylum Directives, she did not have an adequate opportunity to prepare for her credible-fear interview and that, with additional time to consult, she “would have understood the process better” and “would have been in a better position to describe the threats facing [her] daughter” and the abuse that she herself had suffered. Dkt. 12-4 at 8 (M.A.-H. Decl. ¶ 26).
Plaintiff “RAICES is a . . . non-profit organization headquartered in San Antonio, Texas.” Dkt. 12-5 at 2 (Meza Decl. ¶ 3). Its stated “mission is to defend the rights of immigrants and refugees, empower individuals, families and communities, and advocate for liberty and justice.” Id. (Meza Decl. ¶ 4). Although RAICES accepts “cases of clients in detention centers throughout Texas,” it serves as “the primary non-profit service provider at” the Karnes County Residential Center in Karnes City, Texas (“Karnes”) and “strives to provide free, universal representation through all phases of the immigration process during detention at Karnes.” Id. at
2 Defendants have agreed not to remove any of the named Plaintiffs pending the adjudication of this motion. See Dkt. 8.
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2–3 (Meza Decl. ¶¶ 4–7). RAICES serves “between 80–95% of the population at Karnes” by, among other things, “conduct[ing] consultations and intakes, prepar[ing] detainees for their credible[-]fear interviews and represent[ing] detainees at their credible[-]fear interviews,” and “appealing negative decisions from their credible[-]fear interviews.” Id. at 3 (Meza Decl. ¶ 6–7). E. Procedural Background
The reduced-time-to-consult and prohibition-on-extensions directives took effect on July 8, 2019, see AR 113, and 60 days later, on September 6, 2019, the individual Plaintiffs and RAICES brought this suit, Dkt. 1, alleging that (1) Cuccinelli’s appointment to serve as acting Director of USCIS was unlawful under both the FVRA and the Appointments Clause and that, as a result, the Asylum Directives are invalid; (2) the Asylum Directives are, in any event, contrary to law, including the statutory requirement that USCIS provide asylum applicants with a meaningful opportunity to “consult with a person or persons of the alien’s choosing prior to the [credible-fear] interview,” 8 U.S.C. § 1225(b)(1)(B)(iv), and the regulatory authority of asylum officers freely to reschedule credible-fear interviews whenever the asylum seeker “is unable to participate effectively . . . because of illness, fatigue, or other impediments,” 8 C.F.R. § 208.30(d)(1); (3) the Asylum Directives are arbitrary and capricious; (4) USCIS failed to comply with the APA’s notice-and-comment and advanced-notice requirements; (5) the Asylum Directives violate the Rehabilitation Act, 29 U.S.C. § 701 et seq.; and (6) the Asylum Directives violate the First Amendment by interfering with the ability of the individual Plaintiffs and RAICES to communicate and associate regarding the asylum process.
Three weeks after filing their complaint, Plaintiffs moved for a preliminary injunction. Dkt. 12. That motion relies on only four of the claims set forth in the complaint—Plaintiffs’ FVRA challenge to Cuccinelli’s appointment; their contention that the Asylum Directives violate various statutory and regulatory requirements; their claim that the directives are arbitrary and
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capricious; and their Rehabilitation Act claim. Dkt. 12 at 12. On December 3, 2019, the Court held a hearing on Plaintiffs’ motion for a preliminary injunction. Minute Entry (Dec. 3, 2019). At the hearing, the Court raised the question whether that motion should be treated as an expedited motion for summary judgment, and neither Plaintiffs nor Defendants opposed proceeding in that fashion. Dkt. 24 at 6 (Dec. 3, 2019 Hrg. Tr.). The Court, accordingly, directed that Plaintiffs’ pending motion for a preliminary injunction be treated as a partial motion for summary judgment on counts I, II, IV, and VI of the complaint, see Fed. R. Civ. P. 65(a)(2); Minute Order (Jan. 9, 2020), and set a schedule for Plaintiffs’ to supplement their submission and for Defendants to respond to Plaintiffs’ motion for partial summary judgment, Entry Order (Dec. 3, 2019). Defendants, in turn, cross-moved for partial summary judgment on Counts I and II of the complaint. Dkt. 25 at 8.
II. ANALYSIS Before reaching the merits of Plaintiffs’ claims, the Court must determine whether it has jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). Defendants assert that the Court lacks jurisdiction for several reasons. First, they argue that neither the individual Plaintiffs nor RAICES has Article III standing. Dkt. 17 at 26–30. Second, they contend that RAICES lacks statutory standing to sue under the INA. Id. at 24. Third, they maintain that the Court’s statutory jurisdiction is limited to challenges to “written policy directive[s]” and thus does not include Plaintiffs’ challenge to the discontinuance of the in-person legal orientation program at the Dilley Detention Center. Id. at 25–26. As explained below, the Court agrees with Defendants’ final contention—that the Court lacks statutory
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jurisdiction over Plaintiffs’ challenge to the in-person-orientation directive.3 But with respect to the reduced-time-to-consult and prohibition-on-extensions directives, the Court concludes that the individual Plaintiffs have Article III standing and that those claims fall within the Court’s statutory jurisdiction. Finally, having reached that conclusion, the Court need not decide whether RAICES also has standing to pursue those same claims and to seek the same relief. See Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (“At least one plaintiff must have standing to seek each form of relief requested.”).
Because Defendant’s Article III standing argument turns in part on the scope of the Court’s statutory jurisdiction, the Court begins by addressing Defendants’ arguments concerning that issue.
Statutory Jurisdiction Although their arguments are cast in terms of Article III redressability, Defendants posit that the Court lacks statutory jurisdiction under 8 U.S.C. § 1252(e)—or 28 U.S.C. § 1331—to review an order of expedited removal, except under limited circumstances not present here. Dkt. 17 at 30. That argument rests on the premise that IIRIRA “does not authorize review of a credible-fear determination once an order of expedited removal has issued.” Id. Plaintiffs disagree and argue instead that asylum seekers subject to expedited removal orders may “challenge the policies by which [their expedited] orders [of removal] were issued.” Dkt. 19 at 11. The plain text of the statute and instructive D.C. Circuit precedent confirm that Plaintiffs have the better argument. That conclusion is not a total victory for Plaintiffs, however. Rather,
3 Earlier in the proceeding, Defendants also argued that the claims brought by two additional plaintiffs, S.G.-C and B.O.-G, were moot because their negative credible-fear determinations were overturned. Dkt. 17 at 22. That point was well taken. After oral argument on Plaintiffs’ motion for a preliminary injunction, Plaintiffs voluntarily dismissed those Plaintiffs from the case pursuant Federal Rule of Civil Procedure 41(a)(1)(A)(i). Dkt. 23.
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as explained below, Defendants are correct that the Court lacks statutory jurisdiction over one of Plaintiffs’ challenges.
IIRIRA expressly contemplates that its expedited removal provision, 8 U.S.C.§ 1225(b), and the regulations and policies adopted to implement that provision, might be subject to judicial challenge. The statute thus permits “judicial review of the . . . [expedited removal] system” and its implementing regulations and policies, Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000) (hereinafter “AILA”), but (1) limits the scope of relief available in habeas corpus and (2) channels and sets time limits on systemic challenges to the expedited removal system and the regulations and written guidance that implement it, see 8 U.S.C.§ 1252(e). Defendants contend that this provision precludes the Court from redressing the individual Plaintiffs’ injuries because, “once an order of expedited removal has issued,” an alien may obtain judicial review only in limited circumstances not applicable here. Dkt. 17 at 30. That contention fails for several reasons.
The Court’s analysis of the meaning IIRIRA’s channeling provision is guided by the “familiar principle of statutory construction: the presumption favoring judicial review of administrative action.” Kucana v. Holder, 558 U.S. 233, 251 (2010). Under that principle, which the courts have “consistently applied to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction,” if “a statute is reasonably susceptible to divergent interpretation,” courts must “adopt the reading that accords with the traditional understanding[]” that “executive determinations are generally subject to judicial review.” Id. (internal quotations omitted). Here, far from unambiguously foreclosing judicial review, IIRIRA’s channeling provision, § 1252(e), is best read to permit individual asylum seekers expeditiously to bring systemic challenges to IIRIRA’s expedited removal provision and
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its implementing regulations and policies, even if those individuals are subject to final orders of removal.
The Court begins with the text of the statute. See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Defendants are correct that IIRIRA divests courts of jurisdiction to review “any individual determination or to entertain any other cause of action or claim arising from or relating to the implementation or operation of an order” of expedited removal, except as provided in 8 U.S.C. § 1252(e). See 8 U.S.C. § 1252(a)(2)(A)(i). It is also true that “no court shall have jurisdiction to review” any “procedures and policies adopted” by USCIS “to implement the” expedited review provisions of the IIRIRA, except as provided in 8 U.S.C. § 1252(e). Id. § 1252(a)(2)(A)(iv). Defendants incorrectly assert, however, that § 1252(e) permits this Court to consider only “whether the petitioner is an alien, whether the petitioner was actually ordered removed, or whether the petitioner can provide that he or she was lawfully admitted as a permanent resident, refugees, or asylee.” Dkt. 17 at 30. Implicit in Defendants’ argument is the suggestion that § 1252(e)(2)—the provision governing “habeas corpus proceedings”—constitutes the exclusive avenue of judicial recourse once the affected person is subject to an order of expedited removal. But that premise ignores the very next paragraph of § 1252(e)—entitled “challenges on validity of the system”—which provides for judicial review of systemic challenges to the expedited removal system and its implementing regulations or written policies.
Section 1252(e)(3) provides, in relevant part: (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of—
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(i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law. (B) Deadlines for bringing actions Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure . . . is implemented. 8 U.S.C. § 1252(e)(3).4 Under § 1252(e)(3), a court has jurisdiction to review “determinations” made in the expedited removal context if three conditions are satisfied: First, the plaintiff must challenge the constitutionality or lawfulness of § 1225(b)—IIRIRA’s expedited removal provision—or the constitutionality or lawfulness of “a regulation, written policy directive, written policy guidance, or written procedure” adopted to implement that provision. 8 U.S.C. § 1252(e)(3)(A). Second, the challenge must be “instituted in the United States District Court for the District of Columbia.” Id. Third, the action “must be filed no later than 60 days after the date the challenged section, regulation, directive, guidance, or procedure . . . is first implemented.” Id. § 1252(e)(3)(B).
4 Although IIRIRA refers to actions taken “by or under the authority of the Attorney General,” 8 U.S.C. § 1252(e)(3), those authorities were transferred to the Department of Homeland Security and USCIS following the creation of those agencies and the reassignment of responsibility for implementing the immigration laws from the INS to the Department of Homeland Security and USCIS. See, e.g., Homeland Security Act of 2002, Public Law 107–296, § 451(b)(3), 116 Stat. 2135, 2196 (transferring “function” of “adjudications of asylum . . . applications” from the Commissioner of the INS to the Director of the Bureau of Citizenship and Immigration Services, which eventually became USCIS).
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With one exception discussed below, the individual Plaintiffs’ claims satisfy all three conditions. Plaintiffs brought this action in the correct jurisdiction within 60 days of issuance of the Asylum Directives. The directives set forth in the July 2 memorandum were implemented on July 8, 2019, see AR 113, and Plaintiffs filed suit in this Court 60 days later, on September 6, 2019. Dkt. 1. The suit also challenges the lawfulness of two “written policy directive[s],” “policy guideline[s],” or “procedure[s],” 8 U.S.C. § 1252(e)(3)(A)(ii)—the reduced-time-toconsult and prohibition-on-extensions directives are memorialized in the July 2 memorandum and are also reflected in USCIS’s “Credible Fear Procedures Manual.” AR 113–17. Thus, the individual Plaintiffs’ claims fall squarely within the plain terms of § 1252(e)(3).
Had Congress intended to close the door to judicial review on aliens who are subject to final orders of expedited removal even when their challenges satisfy the requirements of § 1252(e)(3)—as Defendants contend—it knew how to say so. Section 1252(a)(2)(C), for example, provides that, with an exception not relevant here, “no court shall have jurisdiction to review a final order of removal against an alien who is removable by reason of having committed” certain criminal offenses. 8 U.S.C. § 1252(a)(2)(C). Although Congress provided that “no Court shall have jurisdiction to review . . . any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an [expedited] order of removal,” it included an express carve out for claims brought “as provided in [§ 1252(e)].” Id. § 1252(a)(2)(i); see also id. § 1252(a)(5) (reiterating the carve out for challenges pursuant to 8 U.S.C. § 1252(e)). Thus, the statute expressly contemplates that aliens may seek judicial review of written directives implementing the expedited removal system if the aliens satisfy the conditions set out in § 1252(e). See AILA, 199 F.3d at 1360 (“Congress meant to allow litigation challenging the [expedited removal] system by. . . aliens against whom the
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[expedited removal] procedures had been applied”). The individual Plaintiffs’ challenge is just such an action.
Defendants’ contention that § 1252(e) strips the Court of jurisdiction over the individual Plaintiffs’ challenge is also is at odds with the D.C. Circuit’s decision in American Immigration Lawyers Association v. Reno, 199 F.3d 1352 (D.C. Cir. 2000), a case that Defendants trumpet in support of their contention that RAICES lacks statutory standing. See, e.g., Dkt. 17 at 23. In AILA, the D.C. Circuit addressed a challenge to the expedited removal provision and its implementing regulations by immigrants’ rights organizations and by individual aliens on the ground that the statute and regulations violated the constitutional and statutory rights of the individual plaintiffs and of unnamed aliens who might someday be subject to them. 199 F.3d at 1357. The D.C. Circuit affirmed the district court’s dismissal of the individual plaintiffs on the ground that they filed suit after the 60-day period established by § 1252(e)(3) had expired. Id. That left, then, only the claims of the organizational plaintiffs. As to those claims, the D.C. Circuit rejected the contention that the organizational plaintiffs had standing to sue on behalf of aliens—who, according to the plaintiffs in that case, could not protect their own rights—because “nothing [would] prevent[]” “an alien returned to his native country” from bringing a systemic challenge to IIRIRA and its implementing regulations, so long as suit was brought within 60 days. Id. at 1362–63. But, if Defendants were correct that an alien ordered removed under § 1225(b) may sue only under § 1252(e)(2), that pillar of AILA would fall. Indeed, if Defendants were right, it is difficult to imagine when, if ever, anyone could bring a systemic challenge under § 1252(e)(3).
Defendants do advance one persuasive argument, however. That argument takes aim at Plaintiffs’ challenge to the portion of the Asylum Directives that, Plaintiffs say, discontinued
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USCIS’s policy of “providing an oral, in-person legal orientation to those detained at the Dilley Detention Center.” See Dkt. 1 at 47 (Compl. ¶ 155). As Defendants note, the problem with Plaintiffs’ challenge to the in-person-orientation directive is that § 1252(e)(3)(A)(ii) only provides this Court with jurisdiction to review “written policy directive[s], written policy guideline[s], or written procedure[s],” 8 U.S.C. § 1252(e)(3)(A)(ii) (emphasis added), and, according to the declaration of USCIS’s Deputy Chief of the Asylum Division, “USCIS has not promulgated, authorized or implemented any written policy that there shall not be an in person legal orientation for individuals seeking asylum at the Dilley Family Residential Center or any other location.” Dkt. 17-1 at 3 (Caudill-Mirillo Decl. ¶ 4) (emphasis added). The Court “must give effect, if possible, to every . . . word of [the] statute,” Williams v. Taylor, 529 U.S. 362, 404 (2002) (internal quotations and citations omitted), and, accordingly, cannot read § 1252(e)(3)(A) to reach “unwritten actions” of USCIS, see Khan v. Holder, 608 F.3d 325, 331 (7th Cir. 2010) (observing that § 1252(e)(3) bars review of “unwritten action” and expressing concerns about Congress’s decision to immunize unwritten action from judicial review); American Immigration Lawyers Association v. Reno, 18 F. Supp. 2d 38, 57–58 (D.D.C. 1998), aff’d, 199 F.3d 1352 (same). That conclusion forecloses Plaintiffs’ challenges to the in-person-orientation directive.
Article III Standing “Because Article III limits federal judicial jurisdiction to cases and controversies, see U.S. Const. art. III, § 2, federal courts are without authority” to decide disputes unless the plaintiff has standing—that is, “a personal stake in the outcome of the controversy [sufficient] to warrant [her] invocation of federal-court jurisdiction.” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “[T]he irreducible constitutional minimum of standing contains three elements”—injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First,
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injury in fact requires “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotations and citation omitted). Second, causation requires a “causal connection between the injury and the conduct complained of.” Id. That is, the injury must be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Id. (citation omitted) (internal quotes omitted). Finally, redressability requires a “likel[ihood], as opposed to mere speculati[on], that the injury will be redressed by a favorable decision.” Id. at 561 (citation omitted) (internal quotes omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements,” and the manner and degree of proof required varies based on the stage of the ligation. Id.
Defendants do not dispute that the Asylum Directives limited the time the individual Plaintiffs had to prepare and to consult before their credible-fear interviews took place. Instead, they argue that the individual Plaintiffs allege a violation of their “procedural” rights—their rights to have an opportunity meaningfully to consult with others and to prepare before their credible-fear interviews—but have failed to show that they have suffered any concrete injury as a result of that alleged procedural violation. See Dkt. 17 at 27. In other words, according to Defendants, the individual Plaintiffs “have not offered any tangible proof that the July 2 changes to the consultation period and the standard governing continuances would have had any impact on the outcome of their credible-fear interviews,” id., and have therefore failed to “satisfy the traceability [and] redressability” elements of Lujan, id.
Defendants’ argument misunderstands how standing is analyzed in procedural-rights cases. Although every case brought in an Article III court must satisfy the three “irreducible” elements of standing, a “person who has been accorded a procedural right to protect his concrete
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interests can assert that right without meeting all the normal standards for redressability and immediacy.” Lujan, 504 U.S. at 572 n.7. Thus, for example, a person “living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.” Id. That scenario, as the Supreme Court has explained, is very different from a case in which the plaintiff does not live near—and has no plans to live near—the hypothetical dam. Id.
As a starting point, a party asserting a procedural right must—like any other plaintiff— identify a “particularized injury” resulting from the government’s contemplated action. See Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc). Here, because the individual Plaintiffs sought and were denied asylum through allegedly unlawful procedures, they have identified a “particularized” and “concrete” interest. See Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1502 (D.C. Cir. 1988) (en banc) (observing that individuals suffer an injury in fact if their “asylum claims have been processed in [an] illegal manner”); see generally Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359, 363–66 (D.C. Cir. 2005) (Williams, J., concurring) (explaining that, as a general matter, a “judicially cognizable” interest satisfies Lujan’s “injury in fact” requirement). It is difficult to imagine an interest more “particularized” than a person’s interest in seeking asylum and avoiding the risk of deportation. Cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (“Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country.”).
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The individual Plaintiffs have also satisfied the causation prong of Lujan. To establish causation in a procedural-rights case, the plaintiff must establish “two causal links: ‘one connecting the omitted [procedural step] to some substantive government decision that may have been wrongly decided because of the lack of [that procedural requirement] and one connecting that substantive decision to the plaintiff’s particularized injury.’” Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 184 (D.C. Cir. 2017) (quoting Fla. Audubon Soc’y, 94 F.3d at 668). “Importantly, with respect to the first link, the party . . . need not show that but for the alleged procedural deficiency the agency would have reached a different substantive result.” Id. Rather, the plaintiff need establish only “that the procedural step was connected to the substantive result.” Id. (quoting Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 94 (D.C. Cir. 2002)).
Here, uncontroverted declarations proffered by the individual Plaintiffs establish that the denial of their asserted right to consult and to prepare for their credible-fear interviews was “connected to the substantive result.” Ctr. for Biological Diversity, 861 F.3d at 184 (citation omitted). As one Plaintiff explains, if she “had more time to prepare for the interview, [she] would have spoken with the Dilley Pro Bono Project and [she] would have understood the process better.” Dkt. 12-4 at 8 (M.A.-H. Decl. ¶ 26). She “would have been in a better position to describe the threats facing [her] daughter, which include[d] being kidnapped and trafficked by transnational criminal organizations” and would have been able to speak with her brother or son, both of whom had “additional information that would have helped [her] explain the circumstances in Honduras that caused [her] fear and [her] need to leave” Honduras. Id. (M.A.H. Decl. ¶¶ 24, 26–27). With respect to the second link, the party seeking to establish standing in a procedural-rights case must “demonstrate a causal connection between the agency action and
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the alleged injury.” Ctr. for Biological Diversity, 861 F.3d at 184 (quoting City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007)). That requirement is also easily satisfied here. But for the asylum officers’ determinations that the individual Plaintiffs did not have a credible fear of persecution, they would have been “detained for further consideration of [their] application[s] for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii).
The individual Plaintiffs’ alleged injuries are also redressable under the “relaxed redressability requirement” that applies in procedural-rights cases. Ctr. for Biological Diversity, 861 F.3d at 185 (quoting WildEarth Guardians v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013)). Under that standard, the individual Plaintiffs “need not show that compliance with” the rules that preceded promulgation of the Asylum Directives “would alter the” results of the credible-fear interviews. Id. (quoting Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5 (D.C. Cir. 2005)). Rather, they need establish only “that a revisitation of” the credible-fear inquiry “could reach a different conclusion.” Id. They have done so. Both of the adult individual Plaintiffs have offered declarations detailing additional, pertinent information that they would like to present and have attested that they did not present this information because the Asylum Directives deprived them of adequate time to confer with others. See Dkt. 12-3 at 5 (L.M.-M Decl. ¶ 13); Dkt. 12-4 at 8 (M.A.-H. Decl. ¶ 26). It is possible that, if given another chance, the individual Plaintiffs will fare no better than they did the first time. The Court, however, need decide only whether an asylum officer “could reach a different conclusion” with the additional information, and that undemanding test is satisfied on the present record.5
5 Defendants may not rely on the contention that Plaintiffs’ claims are not redressable because the individual Plaintiffs are subject to expedited orders of removal. Dkt. 17 at 30. As explained above, Defendants are incorrect —at least with respect to the reduced-time-to-consult and prohibition-on-extensions directives—that § 1252(e) strips this Court of jurisdiction to review the individual Plaintiffs’ claims.
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Plaintiffs’ FVRA challenge adds a twist to the Court’s standing analysis. If the Court were to hold that Cuccinelli was appointed in violation of the FVRA, USCIS might reinstate the Asylum Directives under the authority of a properly appointed official. That concern, however, is answered by an array of decisions from the Supreme Court, the D.C. Circuit, and this Court reaching the merits of challenges to actions “taken by . . . government official[s] on the ground that the official invalidly [held] office,” Andrade v. Lauer, 729 F.2d 1475, 1494 (D.C. Cir. 1984) (collecting cases), even when a properly appointed official might have reimposed the challenged action. Notably, the Supreme Court and the D.C. Circuit reached the merits in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), aff’d, 137 S. Ct. 929, a case—like this one—involving a challenge to an appointment under the FVRA. And although those decisions did not expressly address standing, other, similar decision have done so. See, e.g., State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015) (holding that a bank had standing to challenge the recess appointment of the Director of the Consumer Financial Protection Bureau because the bank was regulated by that agency); Olympic Fed. Sav. & Loan Ass’n v. Director, Office of Thrift Supervision, 732 F. Supp. 1183, 1188–89 (D.D.C. 1990) (holding that the plaintiff’s challenge to the appointment of the agency director and acting director was redressable, even though the plaintiff faced a continuing “threat of government intervention” by other officials).
Even setting this precedent aside, however, any redressability question raised by the individual Plaintiffs’ FVRA claim is put to rest by the principle that courts must assume, for purposes of assessing standing, that the Plaintiffs will prevail on the merits. See Cutler v. U.S. Dep't of Health & Human Servs., 797 F.3d 1173, 1179–80 (D.C. Cir. 2015) (observing that a court “must assume that the party asserting federal jurisdiction is correct on the legal merits of his claim,” including “that the requested relief would be granted” (internal quotation omitted)).
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Plaintiffs’ FVRA claim does not merely assert that Cuccinelli’s appointment was improper. It also posits that, under the FVRA, the directives “shall have no force or effect,” 5 U.S.C. § 3348(d)(1), and, that a properly appointment official may not ratify the directives, id. § 3348(d)(2), see Dkt. 28 at 17–21 (arguing that the FVRA requires vacatur of the Asylum Directives and precludes ratification). If Plaintiffs are right about the FVRA’s meaning, as the Court must assume for present purposes, the individual Plaintiffs will likely be entitled to new credible-fear interviews and will be able to take advantage of the additional time to prepare that they have now received. As a result, the individual Plaintiffs’ FVRA claims redressable.
** * The Court, accordingly, concludes that it has statutory jurisdiction over the individual Plaintiffs’ claims and that they have Article III standing. Having reached that conclusion, the Court need not decide whether RAICES also has standing to pursue those same claims and to seek the same relief. See Town of Chester, N.Y., 137 S. Ct. at 1651 (“At least one plaintiff must have standing to seek each form of relief requested in the complaint.”). Should subsequent developments suggest that the scope of relief available to the individual Plaintiffs and RAICES differs, the Court can return to the jurisdictional questions regarding RAICES’s challenges. Merits Plaintiffs challenge the Asylum Directives on a variety of grounds, several of which carry considerable force.6 The Court need reach only one of those grounds, though, because it is sufficient to resolve the case. That challenge asserts that the Asylum Directives were issued by
6 In light of the Court’s conclusion that it lacks statutory jurisdiction to consider Plaintiffs’ challenge related to the in-person-orientation directive, the Court will use the phrase “Asylum Directives” to refer only to the reduced-time-to-consult and prohibition-on-extensions directives for the remainder of this opinion.
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Cuccinelli in his capacity as acting Director of USCIS; that Cuccinelli was not lawfully appointed to that position under the FVRA and thus lacked the authority to issue the Directives; and that, accordingly, the Directives are invalid and without legal force or effect. As explained below, the Court agrees and will, accordingly, set aside the reduced-time-to-consult and prohibition-on-extensions directives.
1. Constitutional and Statutory Framework The Appointments Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States,” unless “the Congress . . . by Law vest[s] the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of the Departments.” U.S. Const. art. II, § 2, cl. 2. Principal officers, in other words, must be appointed by the President, with the advice and consent of the Senate, and inferior officers must be appointed in that same manner, unless Congress supplants that default rule by vesting the appointment power in the President, a court, or a department head. Edmond, 520 U.S. at 660. Here, the parties do not dispute that the Director of USCIS is an “officer[],” and “not mere[ly] [an] employee[]” of the agency, see Lucia v. SEC, 138 S. Ct. 2044, 2052 (2018), and they do not contend that Congress specified an alternative appointment process. As a result, the default rule applies, and only the President, with the advice and consent of the Senate, may appoint someone to serve in that position. The fact that an officer holds a PAS office does not mean, however, that one who performs the duties of that office in an acting capacity is also a PAS officer. The Supreme Court has long recognized that, when a “subordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.” United States v. Eaton, 169 U.S. 331, 343 (1898). Consistent with this understanding, Congress has provided the Executive
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Branch with the means of filling vacancies in PAS offices on a temporary basis since the earliest days of the Republic. See SW General, Inc., 137 S. Ct. at 935; Thomas A. Berry, S.W. General: The Court Reins in Unilateral Appointments, 2017 Cato Sup. Ct. Rev. 151, 153 (hereinafter “Berry, Unilateral Appointments”).
Although Congress enacted the first of these laws in 1792, see Act of May 8, 1792, ch. 37, § 8, 1 Stat. 281; see also SW General, Inc., 137 S. Ct. at 935 (quoting same), and enacted a series of related laws over the next seven decades, see, e.g., Act of Feb. 13, 1795, ch. 21, 1 Stat. 415; Act of Feb. 20, 1863, ch. 45, 12 Stat. 656, it did not enact the first comprehensive “Vacancies Act” until 1868, SW General, Inc., 137 S. Ct. at 935 (citing Act of July 23, 1868, ch. 227, 15 Stat. 168). The 1868 Act “expanded the number of PAS offices that the President could fill with acting officers,” and, of particular relevance here, it adopted “a default rule that the ‘first or sole assistant . . . shall’ perform” the functions of the vacant office, “with an exception allowing the President to instead fill the post with a person already serving in a PAS office.” SW General, Inc., 137 S. Ct. at 935. Although the Vacancies Act has been “amended several times over the subsequent decades,” it has retained the “core structure” established by the 1868 Act. See Berry, Unilateral Appointments, at 154.
The current iteration of the Vacancies Act, the FVRA, follows that structure. It provides that a vacancy in a PAS office can be filled in one of three ways. First, absent action by the President, “the first assistant to the office of such officer [who has died, resigned, or is otherwise unable to perform the functions and duties of the office] shall perform the functions and duties of the office temporarily in an acting capacity,” subject to certain limitations. 5 U.S.C. § 3345(a)(1) (emphasis added). Second, “the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with
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the advice and consent of the Senate, to perform the functions and duties of the vacant office,” again subject to certain limitations. Id. § 3345(a)(2). Third, “the President (and only the President) may direct an officer or employee of” the agency experiencing the vacancy “to perform the functions and duties of the vacant office,” but only if that individual served in a senior position in that agency for at least 90 days “during the 365-day period preceding” the occurrence of the vacancy. 7 Id. § 3345(a)(3).
2. Application of the FVRA to Cuccinelli’s Appointment The parties agree that the question whether Cuccinelli was lawfully appointed to serve as the acting Director of USCIS is answered, one way or another, by the FVRA. Within that framework, the parties focus their arguments on the question whether, as Plaintiffs contend, see Dkt. 12 at 34, the first-assistant default rule applies only to individuals serving as first assistants at the time the vacancy arises or, as Defendants contend, see Dkt. 17 at 38, the default rule also applies to individuals first appointed to the position of first assistant after the vacancy in the PAS office arises. That dispute poses a difficult question that the Office of Legal Counsel has answered differently at different times, compare 23 Op. O.L.C. 60, 63–64 (1999) (“the better understanding is that you must be the first assistant when the vacancy occurs in order to be the acting officer by virtue of being the first assistant”), with 25 Op. O.L.C. 177, 179–80 (2001) (rejecting that view), and that the courts have not had the occasion to resolve, see SW General, Inc., 796 F.3d at 76 (“Although we do not decide its meaning today,” the default rule “may refer to the person who is serving as first assistant when the vacancy occurs”). Now is not the time to
7 Specifically, the employee must be employed in a position for which the rate of pay “is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.” 5 U.S.C. § 3345(a)(3)(B).
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resolve that question because Cuccinelli’s appointment fails to comply with the FVRA for a
more fundamental and clear-cut reason: He never did and never will serve in a subordinate
role—that is, as an “assistant”—to any other USCIS official. For this reason alone, Defendants’
contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or
purpose of the FVRA.
The Court starts, as it must, the with the statutory text. See Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999). The FVRA provides in relevant part:
(a) If an officer of an Executive agency . . . whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;
(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or
(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—
(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and
(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.
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5 U.S.C. § 3345(a). Here, because the acting Secretary—and not the President—directed that Cuccinelli serve as the acting Director, and because he did not hold another PAS position at the time of his designation and had not previously served as an officer or employee of the Department of Homeland Security or USCIS, §§ 3345(a)(2) and (a)(3) are plainly inapt. Plaintiffs’ challenge to Cuccinelli’s status as acting Director of USCIS, accordingly, rises or falls based on whether Cuccinelli was “the first assistant to the office of [the] officer” who resigned— that is, the office of former-USCIS Director Cissna.
Because the FVRA does not provide a statutory definition of the phrase “first assistant,” see Federal Vacancies Reform Act of 1998, S. Rep. No. 105-250 at 12 (July 15, 1998) (hereinafter “Senate Report”), the Court must construe that phrase “in accordance with its ordinary or natural meaning,” FDIC v. Meyer, 510 U.S. 471, 476 (1994). Defendants contend that Cuccinelli’s service as acting USCIS Director is lawful “by dint of his appointment as Principal Deputy Director.” Dkt. 17 at 46. That argument, however, fails to confront the essential meaning of the word “assistant,” which under any plausible construction comprehends a role that is, in some manner and at some time, subordinate to the principal. An “assistant” is “one who acts as a subordinate to another or as an official in a subordinate capacity.” Assistant, Webster’s Third New International Dictionary at 132 (1993). A “first assistant,” in turn, is the senior or principal assistant to the official or office at issue—in other words, the assistant who is “foremost in rank” or the “chief” assistant. First, Webster’s Third New International Dictionary at 856 (1993). Thus, although the “first assistant” holds a rank senior to other “assistants,” he remains an “assistant” to the principal. Under that commonsense understanding of the meaning of the default provision, Cuccinelli does not qualify as a “first assistant” because he was assigned
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the role of principal on day-one and, by design, he never has served and never will serve “in a subordinate capacity” to any other official at USCIS.
Defendants fail to address this fundamental problem with Cuccinelli’s designation. Instead, they argue that the default rule does not require that an individual have served as the assistant to the particular PAS officeholder who left, thereby creating the vacancy; it is enough, in their view, that the acting official hold an office that is subordinate to the PAS office, even if that office was vacant at the time of the acting official assumed the position of “first assistant.” Dkt. 17 at 38–39. As noted above, the soundness of that contention is far from settled. But, for present purposes, the Court need not decide that question because, even under Defendants’ reading of the statute, Cuccinelli does not hold an office that was or that ever will serve as the “first assistant” to the office of the USCIS Director. The office of Principal Deputy Director was created after the vacancy in the office of the Director arose; that office was nominally designated as the office of the “first assistant” to the Director after the vacancy arose; and it will cease to exist as the office of the “first assistant” as soon as the PAS vacancy is filled. See Dkt. 17-4 at 5, 7 (Blackwell Decl., Ex. 1, Ex. 2). Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the “first assistant” to the Director. But labels—without any substance—cannot satisfy the FVRA’s default rule under any plausible reading of the statute.8
Defendants make a second argument that fails for the same reason. That argument focuses on § 3345(b)(1), which provides as follows:
8 To borrow from a long-running riff on the television show The Office, there may well be a difference between one who serves as “the assistant regional manager” and “the assistant to the regional manager.” But either way, that person is, at best, second in command. Here, the acting Secretary created a position that is second in command in name only.
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(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer under this section, if— (A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person— (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position of first assistant to the office of such office for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.
5 U.S.C. § 3345(b)(1). Subject to an exception not relevant here, this provision prevents a person from serving “as an acting official while nominated to fill the [vacant] office if the person was not the first assistant to the office for at least 90 of the 365 days preceding the vacancy.” SW General, Inc., 137 S. Ct. at 950 (Sotomayor, J., dissenting).
Defendants contend that § 3345(b)(1) makes sense only if it is possible for someone who is appointed to serve as the first assistant after the vacancy arose to serve in an acting capacity under § 3345(a)(1). Otherwise, Defendants contend, there was no reason for Congress to declare that, “[n]otwithstanding subsection (a)(1),” a first assistant who is nominated by the President to fill the PAS position may not serve as the acting officer if he did not serve as the first assistant “during the 365-day period preceding the date of the” vacancy. See Dkt. 17 at 42. That contention reads too much into the “notwithstanding” clause, which is merely a clarifying clause that does not speak to the scope of § 3345(a)(1). See SW General, Inc., 137 S. Ct. at 941 (“The ‘notwithstanding’ clause simply shows that (b)(1) overrides (a)(1), and nothing more.”). But, more importantly, like the preceding argument, even if it were sound it would be unavailing on the facts of this case. That is, even if Defendants were correct, and § 3345(b)(1)(A) implied that the first-assistant default rule found in § 3345(a)(1) includes those chosen to serve as first
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assistants after the relevant vacancy arose, that would not solve Defendants’ difficulty in this case because Cuccinelli was never and will never be the “assistant” to anyone or any office at USCIS—before or after the vacancy arose.
Historical practice can, at times, aid in defining phrases that Congress has used and reused in a series of statutory enactments. Nothing in the historical record of the Vacancies Act, however, counsels in favor of construing the phrase “first assistant” to include those who hold the title of “first assistant” but occupy an office that, in actuality, was not, is not, and never will be subordinate to the principal office. To the contrary, as recently as 1978, the Department of Justice “interpreted the term ‘first assistant’ as applying only to officials whose appointment has been specifically provided for by statute,” 2 Op. O.L.C. 113, 115 n.5 (citing 19 Op. A.G. 503 (1890); 28 Op. A.G. 95 (1909)); see also Doolin Sav. Bank, 139 F.3d at 209 n.3—that is, those who hold an office that Congress created as subordinate to the principal office, see, .e.g., 31 U.S.C. § 301 (establishing a Deputy Secretary of the Treasury and providing that the deputy shall carry out the duties and powers of the Secretary “when the office of Secretary is vacant”). To be sure, by the time Congress enacted the FVRA a practice had developed of designating some first assistants by regulation, and Congress was apparently aware of that practice. See Senate Report at 12 (“Other departments and agencies have established first assistants by regulation”); see also 23 Op. O.L.C. 60, 63 (1999). But those offices, like “first assistant” offices created by statute, existed before the principal office was vacated and continued to exist after that vacancy was filled.
At oral argument, the Court asked counsel for Defendants whether, prior to enactment of the FVRA, there was any example of a person that became the “first assistant” to a PAS office after it became vacant (i.e., a “post-vacancy” first assistant) and thereby assumed the duties of
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the vacant PAS office. Dkt. 24 at 98–99 (Mot. Hr’g Tr. 98:19–99:4). Defendants answered the Court’s question in their supplemental brief, asserting that “the historical record prior to the FVRA’s enactment does not reveal a substantial practice of naming post-vacancy first assistants under the Vacancies Act.” Dkt. 25 at 18 n.4. The absence of a “substantial practice” is putting it mildly—in fact, Defendants failed to identify a single example of a post-vacancy first assistant serving in an acting capacity prior to enactment of the FVRA. That history casts some doubt on whether Congress intended the phrase “first assistant” to encompass those appointed to the firstassistant position after the vacancy arose. But this case goes far beyond that scenario and pushes doubt to disbelief. There is no evidence that at any time prior to Cuccinelli’s appointment did Congress or the Executive Branch imagine that an agency could create a new position after a vacancy arose; could then alter the agency’s order of succession to treat that new position as the “first assistant” to the vacant office; and could further specify that all would return to its original state once the PAS vacancy was filled.
The structure and purpose of the FVRA further confirm that Cuccinelli was not lawfully designated to serve as the acting Director of USCIS. See Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (court must “careful[ly] examin[e]” the “structure of the law itself”). The operative provisions of the FVRA take the following form: “The general rule is that the first assistant to the vacant office shall [automatically] become the acting officer.” SW General, Inc., 137 S. Ct. at 934–35. That default rule controls, except under two strictly defined circumstances. First, “the President (and only the President) may direct” that another PAS official temporarily perform the functions of the vacant office. 5 U.S.C. § 3345(a)(2). That is a limited group of potential designees; it is a group that has already passed the tests of Senate confirmation and presidential appointment; and the President must take personal responsibility
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for the designation.9 Second, “the President (and only the President) may direct an officer or employee of” the agency to temporarily perform the functions of the vacant office but only if that “officer or employee” worked at the agency for at least 90 days in the year before the vacancy arose and did so in a senior capacity (payable at least at the GS-15 level). 5 U.S.C. § 3345(a)(3). That is also a limited group; it is a group that is likely to include officials with both experience and seniority; and, again, the President must take personal responsibility for the designation.
Defendants’ reading of the FVRA would decimate this carefully crafted framework. The President would be relieved of responsibility and accountability for selecting acting officials, and the universe of those eligible to serve in an acting capacity would be vastly expanded. Except when the first assistant position is fixed by statute, the agency head—or, at times, even a subordinate agency official—could create a new office after the vacancy arose, designate that office as the “first assistant” to the vacant office, and fill the office with nearly anyone, regardless of whether that person had received prior Senate approval through the confirmation process and without regard to her seniority, experience, or tenure. One is left to wonder, if Congress had intended—or even imagined—such a result, why would it have gone to the trouble of requiring that “the President (and only the President)” act in order to overcome the default rule and why would it have limited the pool of potential presidential designees to PAS officials and
9 See Senate Report at 12 (“Under this legislation, when an acting officer is to be designated, as opposed to automatically gaining acting status as a first assistant, only the President may designate an acting officer in a position that requires Senate confirmation.”); id. at 13 (“This provision allows the President limited flexibility in appointing temporary officers, restricting the pool to persons who have already received Senate confirmation for their current position.”); see also Administrative Conference of the United States, Acting Agency Officials and Delegations of Authority 1 (Dec. 1, 2019) (noting that there are over 1,200 PAS positions in the Executive Branch), available at https://www.acus.gov/sites/default/files/documents/final-report-actingagency-officials-12012019.pdf.
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senior officials who had served in the agency at issue for at least 90 days in the year before the vacancy arose?
It is not an answer to say, as Defendants posited at oral argument, see Dkt. 24 (Mot. Hr’g Tr. 88:9–17), that paragraphs (a)(2) and (a)(3) have meaning at least as applied to first assistant positions created by statute, thus avoiding the risk of Executive Branch overreaching. Congress enacted the FVRA, in large part, to “recla[im]” its “Appointments Clause power,” SW General, Inc., 796 F.3d at 70, in the face of the long-standing Department of Justice “position that, in many instances, the head of an executive agency had independent authority apart from the Vacancies Act to temporarily fill vacant offices,” SW General, Inc., 137 S. Ct. at 935. Congress was concerned, most notably, that the Attorney General and other department heads had made frequent use of organic vesting and delegation statutes to assign the duties of PAS offices to officers and employees, with little or no check from Congress. See Senate Report at 3–4. In one case, for example, the Attorney General designated someone “brought in from outside Government to serve as Acting Assistant Attorney General for the Civil Rights Division . . . , immediately after the Senate refused to confirm him to that very office.” SW General, Inc., 137 S. Ct. at 936. That designation and many others like it prompted Congress to enact the FVRA. See Senate Report at 3–4. But that position did not have a statutory first assistant, nor did other offices that Congress pointed to as examples of Executive Branch overreach motivating the FVRA’s passage.10 See, e.g., Senate Report at 3 (discussing the Solicitor General and other
10 See, e.g., 28 U.S.C. § 504 (“The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Deputy Attorney General”); Reorganization Plan No. 5 of 1950, § 2 (renaming “The Assistant to the Attorney General” to “Deputy Attorney General”); 28 U.S.C. § 505 (“The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Solicitor General . . . .”); id. § 506 (“The President shall appoint, by and with the advice and consent of the Senate, 11 Assistant Attorneys
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positions at the Department of Justice). Simply put, overreaching in filling vacancies for positions that have statutorily designated first assistants was not the primary problem that Congress had in mind. See 5 U.S.C. § 3347(a)(1) (authorizing persons to perform the functions and duties of a vacant office if a statute expressly provides for such temporary performance by a particular officer or employee); Senate Report at 15–16.
** * For all of these reasons, the Court concludes that Cuccinelli was designated to serve as the acting Director of USCIS in violation of the FVRA. C. Remedy That leaves the question of remedy. 1. Asylum Directives The first form of relief that Plaintiffs seek is invalidation of the Asylum Directives, Dkt. 12 at 35—a form of relief that is necessarily circumscribed by the Court’s conclusion that it lacks statutory jurisdiction to consider Plaintiffs’ challenge to the in-person-orientation Directive, see supra Part II.A. In support of this request, Plaintiffs press two arguments, which the Court will consider in turn.
a. FVRA Plaintiffs’ first argument turns on whether Cuccinelli was performing a “function or duty” of the vacant office—that is, whether the Director’s issuance of a written policy governing
General . . . .”); 28 C.F.R. § 0.137(b) (requiring by regulation that the principal deputy in each PAS office within the Department of Justice serve as first assistant and, “[w]here there is no position of [p]rincipal [d]eputy to the PAS office,” providing that the Attorney General will designate a first assistant in writing).
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how USCIS processes credible-fear determinations is a “function or duty” of the USCIS Director office within the meaning of the FVRA. Under the FVRA’s vacant-office provision, if a person is not lawfully serving in conformity with the FVRA, “[a]n action taken” by that person “in the performance of any function or duty of [the] vacant office . . . shall have no force or effect” and “may not be ratified.” 5 U.S.C. § 3348(d)(1)–(2) (emphasis added); but cf. id. § 3348(e) (exempting certain offices not at issue here). The phrase “function or duty,” in turn, is defined as follows:
(2) the term “function or duty” means any function or duty of the applicable office that— (A) (i) is established by statute; and (ii) is required by statute to be performed by the applicable officer (and only that officer); or (B) (i)(I) is established by regulation; and (II) is required by such regulation to be performed by the applicable officer (and only that officer); and (ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs.
5 U.S.C. § 3348(a)(2)(A). Plaintiffs argue that, in issuing the Asylum Directives, Cuccinelli performed a “function”
of the USCIS Director office. As Plaintiffs and amicus curiae explain, and as Defendants do not dispute, Cuccinelli promulgated the Directives at issue pursuant to 6 U.S.C. § 271, see Dkt. 12 at 35; Dkt. 15 at 25; Dkt. 28 at 18, which assigns to the Director of USCIS the “[f]unctions” of (1) “establish[ing] the policies for performing [the] functions . . . transferred to the Director” by the Homeland Security Act “or otherwise vested in the Director by law,” 6 U.S.C. § 271(a)(3)(A), and (2) “establish[ing] national immigration services policies and priorities,” id. § 271(a)(3)(D);
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see also id. § 113(a)(1)(E) (establishing the PAS position of Director of the Bureau of Citizenship and Immigration Services, which was later renamed USCIS). Those functions, accordingly, are assigned by statute to the office of the USCIS Director, and they are not assigned by statute to any other office. In other words, according to Plaintiffs and amicus curiae, the function at issue is assigned by statute to the USCIS Director and only to the USCIS Director.
Although Defendants do not directly contest any of this, see Dkt. 25 at 1, 19 (arguing only that the Asylum Directives “could be ratified by another official”); id. at 20 (asserting that “relief should be limited to vacatur of the challenged Policies”), they do hint at a potential response in previewing a different argument that they might make at some point in the future. In a single page of their supplemental brief, Defendants assert that, even if the Court concludes that the directives were promulgated without legal authority, they “could be ratified by another official.” Dkt. 25 at 19. As Defendants acknowledge, no one has even attempted to ratify the directives and, accordingly, the question of ratification is hypothetical and not ripe for consideration. Id. Defendants’ ratification argument does have some bearing on the question currently before the Court, however, because the same definition of “function or duty” applies both to the provision that renders actions taken by those serving in violation of the FVRA to have “no force or effect” and to the provision that precludes ratification of any such action. Compare 5 U.S.C. § 3348(d)(1) with id. § 3348(d)(2).
Under Defendants’ reading of the statute, the phrase “function or duty” includes only “non-delegable duties”—that is, only those duties that are assigned to a single official and that may not be reassigned. See Dkt. 25 at 19. From that premise, Defendants then argue, or at least suggest, that no function or duty assigned to any Department of Homeland Security official other
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than the Secretary constitutes a “function or duty” within the meaning of the vacant-office provision of the FVRA. Id. That follows, according to Defendants, because the Department’s organic statute vests “[a]ll functions of all officers, employees, and organizational units of the Department” in the Secretary, 6 U.S.C. § 112(a)(3), and authorizes the Secretary to delegate any of his “functions to any officer” within the Department,” id. § 112(b)(1). See Dkt. 25 at 19. Put differently, in Defendants’ view, the functions assigned to the USCIS Director by the Homeland Security Act are not functions “required . . . to be performed by [the USCIS Director] . . . and only that officer” because the Department’s organic statute vests the Secretary with all the functions and duties of the Department. Because similar vesting and delegation statutes can be found throughout the Executive Branch, see Dkt. 28 at 19 n.6 (noting that “[e]very cabinet-level department has some version of [the Department’s] vesting and delegation statutes”),11 the logic of this position would cover all (or almost all) departments subject to the FVRA.
In considering these arguments, the Court starts, once again, with the statutory text. See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Here, the textual analysis turns on what Congress meant by inserting “and only that office” in both the statutory and regulatory prongs of the definition of “function or duty.” On the one hand, that clause could require that the statute or regulation at issue provide that the function or duty at issue is assigned to one particular office,
11 Plaintiffs support that contention with the following examples: 10 U.S.C. § 113(d) (Department of Defense); 20 U.S.C. §§ 3441, 3347, 3472 (Department of Education); 22 U.S.C. § 2651a(a) (Department of State); 28 U.S.C. § 510 (Department of Justice); 31 U.S.C. § 321(b), (c) (Department of the Treasury); 38 U.S.C. §§ 303, 512 (Department of Veterans Affairs); 42 U.S.C. §§ 3534(a), 3535(d) (Department of Housing and Urban Development); 42 U.S.C. §§ 7151, 7152, 7252 (Department of Energy); 43 U.S.C. § 1457c (Department of the Interior); 49 U.S.C. § 322(b) (Department of Transportation); Reorganization Plan No. 5 of 1950, § 2 (Department of Commerce); Reorganization Plan No. 6 of 1950, § 2 (Department of Labor); Reorganization Plan No. 2 of 1953, § 4 (Department of Agriculture); Reorganization Plan No. 3 of 1966, § 2 (Department of Health and Human Services). See Dkt. 28 at 19 n.6.
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just as the function of establishing policies for performing the functions of USCIS and establishing “national immigration services and polices” is assigned only to the office of the USCIS Director, 6 U.S.C. § 271(a)(3). Or, on the other hand, it could mean that the function may not be reassigned and is not subject to the department head’s general vesting-and-delegating authority. This latter reading is the one Defendants advocate. In their view, the vacant office provision of the FVRA applies only in those rare circumstances in which the function at issue is not only assigned to a single office but also may not be reassigned. See Dkt. 25 at 19. The Court is unpersuaded for two reasons.
First, the vacant-office provision specifies that, “[u]nless an officer or employee is performing the functions and duties” of the vacant office in accordance with the FVRA’s appointment requirements, 5 U.S.C. § 3345, its time limitations, id. § 3346, and its exclusivity provision, id. § 3347, “the office shall remain vacant” and, in the case of a subcabinet office, “only the head of such Executive agency may perform any function or duty of such office.” Id. § 3348(b). Significantly, this fallback provision presupposes that the head of the department will have authority to discharge the functions and duties of the vacant, subcabinet office. But, if Defendants’ understanding of the “functions or duties” of an office were accepted, the fallback would be rendered meaningless. It would apply only to cases, if any, where the relevant subcabinet office is the sole office permitted to perform the “functions or duties” at issue and where the department head’s vesting-and-delegation authority is insufficient to overcome that exclusive assignment of authority. And, more importantly, unless the vacant-office provision is implausibly read as an affirmative grant of authority otherwise denied to the department head, the fallback provision would apply only in circumstances where the department head has no authority to perform the functions of the vacant office. In other words, the fallback provision,
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which requires the department head to perform the functions of the vacant office, would apply only in those circumstances in which the department head lacks statutory authority to perform those functions.
This conundrum is avoided by reading the definition of “functions or duties” and fallback provisions in tandem. “[I]nterpretation of a phrase of uncertain reach” should not be “confined to a single sentence”—or here, two sentences, see 5 U.S.C. § 3348(a)(2)(A)(ii) & (B)(i)(II)—“when the text of the whole statute gives instruction as to its meaning,” Maracich v. Spears, 570 U.S. 48, 65 (2013). Here, any ambiguity in the meaning of “and only that officer” is resolved by reading that phrase in light of the fallback. The inclusion of a fallback in the statutory scheme accords with the fact that agency organic statutes typically vest “[a]ll functions of all officers, employees, and organizational units of the [d]epartment” in the department head, see, e.g., 6 U.S.C. § 112(a)(3); 28 U.S.C. § 509, and mandates that the department head exercise that authority with respect to the “functions and duties” of a vacant office, 5 U.S.C. § 3348(b). It follows that, however narrowly defined, the functions or duties of a subcabinet office must include the duties specifically assigned by statute to that office, even if the department’s organic statute generally vests the department head with all functions of the department. That is, the mere fact that a department head is also vested with all functions specifically vested in other department officers and employees cannot, standing alone, defeat the enforcement mechanisms found in the FVRA’s vacant-office provision.
A second textual clue supports this same conclusion and further clarifies what the statute allows and what it precludes. In enacting the FVRA, Congress recognized the need for administrative flexibility, see Senate Report at 13, and did not withdraw the vesting-anddelegation authority of the Executive Branch departments and agencies. But it also recognized
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that few PAS positions have “any meaningful statutory duties” and that the duties of these offices are, instead, defined by “internal departmental regulations” that “can be changed at will without undergoing the notice and comment process.”12 Id. at 18. To avoid circumvention of the vacant-office provision, Congress, accordingly, added a 180-day lookback to the definition of regulatorily assigned functions or duties. See 5 U.S.C. § 3348(a)(2)(B)(ii). The lookback provision thus defines the functions or duties of a vacant office to include those that were established by regulation and are “in effect at any time during the 180-day period preceding the date on which the vacancy occurs.” Id.
The 180-day regulatory lookback is at odds with Defendants’ contention that the statutory definition of “functions or duties” reaches only those duties that the agency may not reassign— that is, those duties that are, in accordance with Defendants’ lexicon, “non-delegable.” Dkt. 25 at 19. Contrary to Defendants’ reading of the statute, the lookback provision contemplates that agencies may and will use their organic authorities to issue rules reassigning duties and that duties subject to that authority may, at least at times, fall within the statutory definition of “functions or duties.” What matters under the vacant-office provision is whether the rules—i.e., the delegations and assignments—as they existed “at any time during the 180-day period preceding the date on which the vacancy occurs,” 5 U.S.C. § 3348(a)(2)(B)(ii), assigned the functions or duties to the vacant office and “only [to] that office[,]” id. § 3348(a)(2). If so, then
12 A delegation of authority to perform defined agency duties may be exempt from the noticeand-comment process as a rule of “agency organization.” See 5 U.S.C. § 553(b)(A); Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (“We hold that the Administrative Procedure Act does not require that all internal delegations of authority . . . be published in order to be effective.”); see generally Jennifer Nou, Subdelegating Powers, 117 Colum. L. Rev. 473, 518– 522, 521 (2017) (discussing the regulatory landscape of agency sub-delegations and observing that an agency head may, but need not, subject an internal sub-delegation to notice and comment).
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the statutory definition of “function or duty” is satisfied, and actions taken by a person who is not serving in conformity with the FVRA “in the performance of [that] function or duty” have “no force or effect.” 5 U.S.C. § 3348(d).
The only support Defendants offer for their more sweeping “non-delegable” argument is a citation to the D.C. Circuit’s decision in Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019). Dkt. 25 at 19. But the meaning of the vacant-office provision was neither disputed nor decided in Guedes. Indeed, neither below nor on appeal did the parties dispute whether the official’s appointment satisfied the FVRA, see Guedes v. ATF, 356 F. Supp. 3d 109, 138 (D.D.C. 2019), nor did the parties contest that, by the time the dispute reached the D.C. Circuit, the challenged rule had been validly ratified by a properly appointed official, see Guedes, 920 F.3d at 12; see also Bump-Stock-Type Devices, 84 Fed. Reg. 9,239, 9,240 (Mar. 14, 2019) (ratifying the final rule in dispute in Guedes). In any event, the word “non-delegable” appears nowhere in the statute, and instead is found only in the legislative history. See Senate Report at 18 (“The functions or duties of the office that can be performed only by the head of the executive agency are therefore defined as the non-delegable functions or duties of the officer as they existed at any point during the 180 days prior to the [vacancy][.]”). But even as used in the legislative history, the word does not have the meaning Defendants assign to it. To the contrary, the Senate Report uses the term in the same breath in which it affirms that the “non-delegable” functions and duties include those assigned by regulation 180 days before the vacancy arose, even if later reassigned. Id.
Finally, Defendants’ construction of the vacant-office provision is at odds with the statutory purpose of the FVRA. As Plaintiffs note, “[e]very cabinet-level department has some version of [a] vesting and delegation statute[].” Dkt. 28 at 19 n.6 (collecting statutory vesting
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and delegation statutes). It was the pervasive use of those vesting-and-delegation statutes, along with “the lack of an effective enforcement process,” that convinced Congress of the need to enact the FVRA. Senate Report at 7. Yet, if Defendants were correct that the mere existence of these vesting-and-delegation statutes (and the absence of an express statutory bar on vesting and delegating a specific function or duty) were sufficient to negate the enforcement mechanisms Congress included in the FVRA, Congress would have done little “to restore [the] constitutionally mandated procedures that must be satisfied before acting officials may serve in positions that require Senate confirmation.” Senate Report at 8; see also U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004) (“When a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent.”).
The Court recognizes that requiring department heads to perform the functions or duties of a vacant office could impose substantial burdens on those who already labor under enormous responsibilities. That choice, however, is not the Court’s, but Congress’s. Nor is the Executive Branch without tools to address this concern. In most circumstances, departments and agencies can avoid this burden if the first assistant lawfully assumes the acting role pursuant to § 3345(a)(1), or if the President directs that a PAS officer or eligible senior agency official assume that role pursuant to §§ 3345(a)(2) or (a)(3), respectively. When the 210-day clock on service of an acting official nears expiration, moreover, the President can extend the period by submitting a nomination for the vacant PAS office to the Senate. 5 U.S.C. § 3346(a). If that nomination is rejected, withdrawn, or returned, the acting official may serve for another 210 days, and, if a second nomination is submitted, she may continue to serve until that nominee is confirmed or for 210 days after the nomination is rejected, withdrawn, or returned.” Id. at
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§ 3346(b). Department heads and other officials may also delegate duties to multiple officials, so long as they do so 180 days before the vacancy arises. Id. § 3348(a)(2)(B)(ii). The Court’s holding, moreover, is a narrow one: the Court merely concludes that where, as here, a statute assigns a function to a single PAS office, and where, as here, the department head did not reassign that function using his vesting-and-delegation authority or any other authority at least 180 days before the vacancy occurred, that function is a “function or duty” of the vacant PAS office within the meaning of § 3348, and it must be performed either by a properly serving acting official or by the department head.
b. APA The Court, in any event, is also persuaded by Plaintiffs’ alternative theory—that, because Cuccinelli was exercising the authority of the USCIS Director in violation of the FVRA, the directives were not issued “in accordance with law,” and must, accordingly, be set aside under the APA. Dkt. 12 at 35 (quoting 5 U.S.C. § 706(2)(A)). The D.C. Circuit’s decision in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), provides helpful guidance on this point. That case involved a violation of the FVRA in the appointment of the acting general counsel of the NLRB. Id. at 69. But because the NLRB is expressly exempted from the vacant-office provision of the FVRA, the D.C. Circuit had to determine the consequences of the improper appointment without the aid of that provision. Id. at 78. In addressing that question, the Court of Appeals started with the premise that agency action taken without lawful authority is at least voidable, if not void ab initio.13 Id. at 79. It then considered whether one of two doctrines might save the action at issue that case.
13 Because the NLRB “did not seek certiorari on this issue,” the Supreme Court did “not consider it.” SW General, Inc., 137 S. Ct. at 938 n.2.
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Under the first such rule, the APA’s “rule of prejudicial error,” 5 U.S.C. § 706, reviewing courts must consider whether the agency’s error affected the outcome. Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010). “The burden to demonstrate prejudicial error is on the party challenging agency action,” but it “is ‘not . . . a particularly onerous requirement.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 410 (2009)). As in SW General, Inc., that rule does not pose a substantial hurdle to Plaintiffs’ claim here. 796 F.3d at 80. The Court “cannot be confident that” the same Directives “would have issued under an” acting Director “other than” Cuccinelli. Id.
Under the second such rule, the de facto officer doctrine, a court may “confer[] validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Id. at 81 (quoting Ryder v. United States, 515 U.S. 177, 180 (1995)). That doctrine, however, has seen substantial contraction over time and, under governing D.C. Circuit law, collateral attacks on an official’s authority are permitted when two requirements are satisfied:
First, the plaintiff must bring his action at or about the time that the challenged government action is taken. Second, the plaintiff must show that the agency or department involved has had reasonable notice under all of the circumstances of the claimed defect in the official’s title to office. Id. at 81–82 (quoting Andrade v. Lauer, 729 F.2d 1475, 1499 (D.C. Cir. 1984)). Here, Plaintiffs promptly brought suit within 60 days of the challenge action, and Defendants do not challenge the timeliness of the suit. Moreover, the Department had notice of the claimed defect in Cuccinelli’s service as early as June 18, 2019—eight days after Cuccinelli took office and before he issued the Asylum Directives—when the House Committee on the Judiciary sent acting Secretary McAleenan a letter expressing “deep concern” that “Cuccinelli was appointed in a manner that circumvents the [FVRA].” See U.S. House of Representatives, Committee on the
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Judiciary, Letter to Acting Secretary Kevin McAleenan (June. 18, 2019), available at https://tinyurl.com/s9xlzyy (last accessed Feb. 28, 2020).14 The de facto doctrine—which in any event was not raised as a defense, see Dkt. 25 at 19 n.5—would thus not pose a barrier to Plaintiffs’ challenge.
** * Thus, under either theory—application of the FVRA vacant-office provision or general principles of administrative law—the reduced-time-to-consult and the prohibition-on-extensions directives “have no force or effect,” 5 U.S.C. § 3348(d)(1), and must be “set aside” as action taken “in excess of statutory . . . authority,” 5 U.S.C. § 706. As Defendants acknowledge binding D.C. Circuit precedent requires that, “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual [plaintiffs] is proscribed.” Dkt. 25 at 23 n.6 (quoting Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998)). Although Defendants are correct that 8 U.S.C. § 1252(e)(1)(B) divests the Court of jurisdiction to certify a class, Plaintiffs have not asked the Court to do so, and the class action rule has no bearing on the nature of the relief that the Court must provide. To the contrary, the structure of 8 U.S.C. § 1252(e)(3) itself contemplates that courts may issue declaratory judgments relating to the “implementation of” the expedited removal provisions of IIRIRA that affect the interests of those not before the Court; most notably, to expedite resolution of any legal challenges, Congress required all challenges to the validity of new implementing rules or polices be brought within 60 days of their adoption. Id. § 1252(e)(3)(B). Defendants are also correct that the Supreme Court
14 Although the June 18, 2019 letter is not in the record, the Court takes judicial notice of that public document pursuant to Federal Rule of Evidence 201(b)(2).
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has cautioned that a district court vacating an agency action under the APA should not issue an injunction unless doing so would “have [a] meaningful practical effect independent of [the policy’s] vacatur.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010); see also OA v. Trump, 404 F. Supp. 3d 109, 153–54 (D.D.C. 2019). This is because “[a]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course” or where “a less drastic remedy . . . [is] sufficient to redress” the plaintiffs’ injury. Monsanto Co., 561 U.S. at 165. Thus, absent the need to take further action, the Court will decline Plaintiffs’ request for an injunction and will set aside the two directives at issue.
2. Removal Orders Plaintiffs also request that the Court set aside their individual removal orders “as well as those of any asylum seekers who were processed under the Directives but have not yet been removed.” Dkt. 28 at 26. Starting with the five remaining individual Plaintiffs, the Court must once again consider the “rule of prejudicial error.” 5 U.S.C. § 706. At this point, the question is not simply whether the Directives would have issued in the same form even if Koumans had not been replaced by Cuccinelli as acting Director, but whether the five individual Plaintiffs were prejudiced by the resulting reduced time to consult and to prepare for their credible-fear interviews. Having reviewed Plaintiffs’ extensive declarations, and given the minimal burden required to establish prejudicial error, Jicarilla Apache Nation, 613 F.3d at 1121 (“If prejudice is obvious to the court, the party challenging agency action need not demonstrate anything further.”), the Court is convinced that the negative credible-fear determinations that each of the five individual Plaintiffs received must be set aside. As a practical matter, this also means that their removal orders are deficient. If an alien indicates an intention to apply for asylum, expedited removal requires that an asylum officer
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conduct a credible-fear interview of any alien seeking asylum, and that has yet to occur here. See 8 U.S.C. § 1225(b)(1)(A)(ii). Until a legally sufficient interview occurs, the individual Plaintiffs are not subject to expedited removal. The Court will, accordingly, vacate their negative credible-fear determinations (and any removal orders that are premised on those determinations) and will remand their cases to USCIS for further proceedings consistent with this decision.
The Court is unconvinced, however, that it should extend this relief to other asylum seekers who were processed under the defective directives. Those individuals are not parties to this case, nor is this case a class action. This Court’s jurisdiction, moreover, is limited to claims brought challenging “determinations” made under the expedited removal provision of IIRIRA within 60 days of promulgation of the allegedly unlawful regulation or policy. 8 U.S.C. § 1252(e)(3). To be sure, the Court has concluded that the two directives are invalid and must be set aside. The consequences of that holding with respect to parties not before the Court, however, lies beyond this Court’s jurisdiction. See id. § 1252(a)(2) (“[N]o court shall have jurisdiction to review . . . any individual determination . . . except as provided in subsection (e)”); see also id. § 1252(e)(1) (“[N]o court may . . . certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized” under 8 U.S.C. § 1252(e)). The Court will, accordingly, deny Plaintiffs’ request to vacate the removal orders— or any negative credible-fear determinations—with respect to those who are not parties to this action.
CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiffs’ partial motion for summary judgment, Dkt. 29, and GRANTS in part and DENIES in part
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Defendants’ partial motion for summary judgment, Dkt. 30. The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-onextensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the inperson-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-toconsult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.
SO ORDERED. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: March 1, 2020
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