Court: Court of Appeals for the D.C. Circuit; December 16, 2018; Federal Appellate Court
Emmet G. Sullivan, United States District Judge, outlines the historical context and legal framework surrounding the Refugee Act of 1980, which aimed to aid individuals facing persecution in their home countries. In subsequent amendments to immigration laws, Congress established an expedited removal process that allows for the summary removal of aliens unless they demonstrate a credible fear of persecution. A "credible fear" is defined as a significant possibility of establishing eligibility for asylum.
In this case, twelve plaintiffs, including adults and children, reported serious abuses in their home countries during their credible fear interviews but had their claims denied based on standards from a precedential decision, Matter of A-B. The plaintiffs argue that the credible fear policies, which include heightened standards from this decision and a DHS Policy Memorandum, violate the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA).
The Court is currently considering several motions, including the plaintiffs' motions for a preliminary injunction and summary judgment, and the government's motions to strike certain exhibits and for summary judgment. The Court finds that multiple credible fear policies infringe upon the APA and INA, asserting that these policies diverge from congressional intent and asserting that it is Congress's will, not executive discretion, that should dictate the standards for expedited removal. The opinion is structured into parts: Part I provides background, Part II addresses the plaintiffs' motion for additional evidence, and Part III discusses the jurisdiction and legal standards relevant to the case.
The Court finds that, with the exception of two policies, the new credible fear policies implemented by the government are arbitrary, capricious, and violate immigration laws. It vacates these unlawful policies and permanently enjoins the government from applying them or removing plaintiffs currently in the U.S. without proper credible fear determinations. Additionally, the Court orders the government to return unlawfully deported plaintiffs to the U.S. and provide them with new credible fear determinations that comply with immigration laws.
The legal background emphasizes the 1980 Refugee Act, which amended the Immigration and Nationality Act (INA) to align U.S. laws with international obligations under the United Nations Protocol Relating to the Status of Refugees. Congress aimed to ensure that U.S. refugee law reflected a commitment to human rights and provided a generous standard for asylum. The INA gives the Attorney General discretion to grant asylum to removable aliens, contingent upon the alien being classified as a 'refugee,' defined as a person unable or unwilling to return to their home country due to persecution or a well-founded fear of persecution based on specific protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. Furthermore, asylum eligibility extends to cases involving harm from non-governmental actors if the government is unable or unwilling to control the persecutor.
The expedited removal process, established under 8 U.S.C. § 1225, allows for the swift removal of aliens who arrive in the U.S. without proper documentation. Prior to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), individuals seeking admission had a right to a full hearing before an immigration judge. The IIRIRA introduced a summary removal process aimed at quickly addressing the claims of undocumented aliens while ensuring those claiming asylum receive a prompt assessment of their claims. If an alien indicates an intention to apply for asylum or expresses a fear of persecution, they are entitled to an interview with a USCIS asylum officer, who must conduct the process in a nonadversarial manner and evaluate the credibility of the alien's claims.
Congress intended for the credible fear determination to have a low screening standard to prevent the return of genuine asylum seekers to persecution. A credible fear is defined as a significant possibility that the alien could establish eligibility for asylum, based on the officer's assessment of the alien's statements and other relevant facts. If an alien is found to have a credible fear, they are removed from the expedited process and referred to a standard removal hearing before an immigration judge, where they can fully present their asylum claim and appeal adverse decisions.
Should the asylum officer determine that there is no credible fear, the alien may request a review by an immigration judge, whose decision is typically final and subject to limited appeal. Judicial review of expedited removal orders is restricted, with courts lacking jurisdiction to review individual applications of § 1225(b)(1), including credible fear determinations, except in specific circumstances outlined in 8 U.S.C. § 1252.
The statute, with exceptions noted in section 1252(e), restricts judicial review by courts concerning expedited removal orders. Specifically, it prohibits the review of: 1) individual determinations or related claims regarding expedited removal; 2) the Attorney General's decision to implement expedited removal; and 3) the procedures adopted by the Attorney General under section 1225(b)(1). Section 1252(e) does permit judicial review in two scenarios related to credible fear determinations: a habeas corpus proceeding to assess if a petitioner was wrongly removed (e.g., being a lawful permanent resident or granted asylum) and a systemic challenge against written policies issued by the Attorney General regarding expedited removal, with jurisdiction limited to the U.S. District Court for the District of Columbia.
Additionally, the Attorney General possesses statutory authority over immigration law and may issue binding decisions. On June 11, 2018, then-Attorney General Sessions issued a precedential decision in Matter of A-B, reversing an asylum grant to a Salvadoran woman who fled domestic violence. This decision overruled the previous ruling in Matter of A-R-C-G, which recognized a particular social group of married women in Guatemala unable to leave abusive relationships. The Attorney General criticized A-R-C-G for misapplying precedent and lacking necessary legal analysis. He asserted that claims related to domestic or gang violence by non-governmental actors generally do not qualify for asylum, thus establishing a high threshold for credible fear assessments in such cases. The Attorney General detailed the legal standards for determining asylum eligibility based on persecution from non-governmental actors, particularly focusing on domestic abuse and gang violence claims.
The Attorney General stated that social groups vulnerable to private criminal activity may not meet the specificity required for asylum claims since many individuals in society could be victimized. The persecution requirement for asylum has three elements: intent to target a belief or characteristic, severe harm, and government involvement or inability to control the perpetrators. An alien claiming persecution by private actors must demonstrate that the government either condoned the actions or was completely helpless to protect victims. Additionally, if an alien's mistreatment is motivated by factors outside the five statutory grounds for asylum, they cannot be considered a refugee. Using the Matter of A-R-C-G case as an example, the Attorney General noted that the absence of evidence linking the mistreatment to the victim's social group undermined the asylum claim. The matter was remanded to the immigration judge for further proceedings.
Following this, USCIS issued interim guidance applying the Attorney General's standards to credible fear determinations and later finalized this guidance. This policy acknowledges the expedited removal statute and applies to both asylum and refugee status adjudications. It reiterates the need for aliens to prove that the government was unable or unwilling to control harm from private actors. Claims based on membership in vulnerable social groups, particularly those relating to domestic or gang violence, are generally insufficient for establishing asylum eligibility. Officers must integrate the standards from Matter of A-B when evaluating claims based on membership in a particular social group.
The Policy Memorandum introduces two directives for asylum officers that differ from the guidelines established in Matter of A-B. Firstly, it requires asylum officers to apply the case law from the relevant federal circuit court as long as it aligns with Matter of A-B. Secondly, while recognizing that the relevant circuit is where removal proceedings occur upon a positive credible fear determination, it also instructs officers to consider precedents from the Board and the circuit corresponding to the alien's physical location during the credible fear interview. The memorandum emphasizes that, under the clarified standards from Matter of A-B, few claims based on gang violence or domestic abuse related to social groups vulnerable to harm are likely to meet the "significant probability" threshold in credible fear screenings.
The factual and procedural background outlines the experiences of twelve plaintiffs—adults and children—who fled violence in Central America, seeking asylum in the U.S. Grace fled Guatemala after enduring severe abuse from her partner, who also threatened her children. Carmen escaped with her daughter from years of sexual abuse and targeted gang violence. Mina sought refuge after a gang's violent retribution against her family and threats against her life. Other plaintiffs, including Gina, Mona, Gio, Maria, Nora, and Cindy, recount similar harrowing experiences of abuse and threats from domestic partners or gangs. Each plaintiff received a credible fear determination but, despite their credible accounts, faced negative outcomes due to the implications of Matter of A-B. They subsequently sought review from an immigration judge, who upheld the asylum officers' decisions, leading to their final orders of removal or prior deportation. In response, the plaintiffs filed for a preliminary injunction and an emergency stay of removal on August 7, 2018.
Plaintiffs filed a motion for a stay of removal, citing imminent deportation risks for two of them, which the Court granted for those not yet deported. The parties subsequently initiated cross-motions for summary judgment concerning the Attorney General's decision and DHS's Policy Memorandum. Plaintiffs also submitted a motion to introduce evidence not included in the administrative record, which consists of various exhibits, such as declarations from plaintiffs and experts, government training materials, third-party country reports, newspaper articles, and public statements from officials. The government challenged these additional materials, asserting that judicial review under the APA should be limited to the administrative record that was available to the agency at the decision-making time.
The legal standard stipulates that a court must only consider the information that the agency reviewed, except under unusual circumstances. Such circumstances include instances where the agency overlooked adverse documents, if background information is necessary for assessing the agency's considerations, or if the agency's explanation of its actions is insufficient for judicial review. Plaintiffs argue for the inclusion of extra-record materials to assess whether the government's policies represent an unjustified departure from previous ones, to support their due process claim, and to evaluate their request for permanent injunctive relief.
In analyzing the first argument regarding the consideration of previous government policies, the Court will admit certain government training materials and brief but will exclude declarations explaining them, as these do not directly pertain to the determination of policy changes. The Court acknowledges that whether the credible fear policies signify a departure from past policies is an unresolved factual issue that cannot be adequately resolved based solely on the administrative record.
The Court must review prior policies, which are absent from the administrative record, to effectively analyze the case. It finds it appropriate to utilize extra-record information for this judicial review. While the government acknowledges that past policies can be assessed by reviewing them directly, it disputes the definition of what constitutes these past policies. The Court rejects the government's narrow interpretation and states that third-party declarations from former immigration officials are unnecessary for its review, as including such evidence would overly extend the limited extra-record exception.
In evaluating the plaintiffs' request for injunctive relief, the Court acknowledges the evidence they wish to introduce, which includes declarations from plaintiffs and reports on conditions in their home countries, as well as UNHCR reports. The government argues that the consolidation of preliminary injunction and summary judgment motions renders the preliminary injunction moot; the Court agrees but still needs to assess whether a permanent injunction is warranted should plaintiffs prevail on their claims. The Court will consider the plaintiffs' materials only if relevant to their claims of deviation from past policies or their request for injunctive relief, explicitly excluding evidence related to their due process claims, including opinions from immigration judges, public officials' statements, and newspaper articles.
The Court then addresses the government's jurisdictional arguments, asserting that it has jurisdiction under Section 1252(e)(3) to review plaintiffs' claims concerning the Matter of A-B. The government contends that Section 1252 restricts judicial review of these claims, while plaintiffs maintain that the statute allows for such review. Both parties agree that jurisdiction exists for policy challenges within the expedited removal system under subsection (e) of the statute, despite the broader prohibitions outlined in Section 1252(a)(2)(A).
Section 1252(e)(3) grants exclusive jurisdiction to the United States District Court for the District of Columbia for reviewing systemic challenges to the expedited removal system, including constitutional challenges to the statute or its regulations. Such challenges must be filed within sixty days of the implementation of the statute or regulation in question. The section specifically allows for judicial review regarding the constitutionality of section 1225(b) and whether any implementing regulation or policy is consistent with applicable law. The government argues that the Matter of A-B- decision does not implement section 1225(b), asserting that it pertains to asylum petitions under section 1158 and is merely an adjudication, not a written policy directive. However, the Court counters that the Matter of A-B- explicitly referenced section 1225(b) and established a legal standard for credible fear determinations, thus qualifying as implementation under section 1252(e)(3). The Court also emphasizes that administrative agencies can create legal policy through both rulemaking and adjudication, supporting its interpretation that Matter of A-B- falls within the jurisdictional scope of section 1252(e)(3).
When an agency formulates policy through adjudication, its dicta can express its policy, which it must follow or justify any deviations. The Matter of A-B- decision emphasizes that asylum officers are required to apply the specified standards in future credible fear determinations. This case illustrates how adjudicated decisions can shape agency policies. Specifically, the Board and immigration judges must assess asylum claims based on social group membership according to the articulated standards in Matter of A-B-, particularly regarding domestic or gang-related violence, which typically do not meet the credible fear standard.
The government's argument that the DHS Secretary, rather than the Attorney General, oversees the implementation of section 1225, and thus the Attorney General lacks authority over Matter of A-B-, is countered by the requirement that immigration judges adhere to the Attorney General's decisions. The Attorney General is responsible for the conduct of immigration judges, reinforcing their authority in the credible fear determination process.
The Court affirms its jurisdiction to hear the plaintiffs' claims, noting that there is no clear legislative intent in section 1252 indicating Congress sought to limit judicial review of these claims. The principle that judicial access should not be restricted without clear evidence of contrary intent supports the Court's position.
Congress has granted the Court jurisdiction to review systemic challenges to section 1225(b) under 8 U.S.C. 1252(e)(3). A strong presumption favors judicial review of administrative actions, as established in INS v. St. Cyr and reinforced by Weyerhaeuser Co. v. U.S. Fish and Wildlife Servs. This presumption applies to the plaintiffs' challenge of credible fear policies under the Administrative Procedure Act (APA). Additionally, any statutory ambiguities in immigration laws are resolved in favor of the alien, as noted in Cardoza-Fonseca and INS v. Errico. Consequently, any doubt regarding the applicability of 1252(e)(3) to the plaintiffs' claims should favor the plaintiffs.
The government contends that the Court lacks jurisdiction to review the Policy Memorandum under section 1252(e) for three reasons: (1) the Policy Memorandum primarily addresses the asylum standard and does not implement section 1225(b); (2) it merely explains the Matter of A-B and is therefore not reviewable; and (3) sections 1225 and 1252(e)(3) restrict judicial review to agency guidelines that create substantive rights, excluding interpretive documents like the Policy Memorandum.
The Court dismisses the first two arguments, stating that the Policy Memorandum explicitly applies to credible fear interviews and invokes section 1225 as its authority. The second argument is rejected since the Court has determined that Matter of A-B falls within section 1252(e)(3)'s jurisdiction. The government's third argument claims that section 1252(e)(3) only applies to legislative rules, arguing that Congress created a review mechanism solely for those. However, the Court finds these assertions insufficient to undermine its jurisdiction over the Policy Memorandum.
The Policy Memorandum is argued to be reviewable under the Administrative Procedure Act (APA) despite the government's claims that it is not a final agency action. The text clarifies that section 1252(e)(3) does not restrict its jurisdictional grant to legislative rules or final agency actions, as Congress did not exclude interpretive rules. The use of broader terms like "policy guidelines" in the statute indicates that notice and comment rulemaking is not required. The Court emphasizes its duty not to impose limitations that Congress did not include, affirming that plaintiffs' claims are within the jurisdiction granted by section 1252(e)(3).
Moreover, plaintiffs are found to have standing to challenge the Policy Memorandum. To establish standing, a plaintiff must show an actual injury that is traceable to the defendant's actions and likely to be redressed by a favorable ruling. The government contends that plaintiffs lack standing concerning policies in the Policy Memorandum based on the Matter of A-B-, arguing the Court lacks jurisdiction over it. However, the Court has determined it does have jurisdiction to review claims related to Matter of A-B-, undermining the government's argument regarding traceability and redressability of injuries stemming from the Policy Memorandum.
The government contends that plaintiffs lack a legally protected interest in the Policy Memorandum, which does not create rights or obligations, and therefore cannot demonstrate an injury in fact. However, plaintiffs argue they are not seeking to enforce a prior policy but are challenging the credibility of their fear determinations based on the credible fear policies established in Matter of A-B- and the Policy Memorandum. They assert that these policies unfairly increase their burden and impede their opportunity to seek asylum, violating the Administrative Procedure Act (APA) and immigration laws.
Additionally, the government claims that, even if the Court has jurisdiction, most claims are time-barred, as the challenged policies predate the statutory sixty-day period for filing claims. The government lists these policies as not being new, relying on existing precedent. The argument presents a challenge for standing, as it requires the Court to accept the government's characterization of the policies as not new, which risks deciding issues on the merits prematurely.
The Court must assess whether the credible fear policies differ from prior standards and whether an order could address plaintiffs' injuries. It acknowledges that the challenged policies have impacted plaintiffs and that a ruling declaring them unlawful could remedy these injuries. As plaintiffs have shown they have suffered an injury that is traceable to the policies and that judicial action can provide relief, they have standing to challenge the Policy Memorandum. Consequently, the Court can move forward to consider the merits of the plaintiffs' claims under the APA.
The application of Federal Rule of Civil Procedure 56 is deemed inapplicable in this context due to the limited role of the Court in reviewing the administrative record, as established in *Wilhelmus v. Geren*. The district court's function is to assess whether the evidence in the administrative record legally supports the agency's decision, following the standards outlined in the Administrative Procedure Act (APA). The plaintiffs challenge the new credible fear policies, alleging violations of the APA and the Immigration and Nationality Act (INA).
Two overlapping standards of APA review are pertinent: First, under 5 U.S.C. § 706(2)(A), agency actions must not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." For an agency action to withstand an arbitrary and capricious challenge, it must reflect "reasoned decision-making." A court cannot uphold an agency's adjudicatory action if it lacks adequate explanation or supporting precedent.
Second, the Court must consider the deference afforded to the government's interpretations of relevant statutory provisions. The parties dispute whether deference is warranted, and the Chevron framework provides guidance. Under Chevron's two-step test, the Court first determines if Congress has directly addressed the specific issue. If Congress's intent is clear, both the Court and the agency must adhere to that intent, utilizing traditional statutory construction methods such as examining the statute's text, legislative history, and purpose. If these methods yield a clear result, no deference to the agency's interpretation is appropriate.
When a court encounters a statute that is silent or ambiguous on an issue, it must apply the second step of the Chevron framework, which involves assessing whether the agency's interpretation is based on a permissible construction of the statute. To make this determination, the court utilizes traditional statutory interpretation tools, such as examining the statute's text, structure, and purpose. An agency's interpretation must be reasonable and consistent with the statute's intent. The overarching question for the court is whether the agency has acted within its statutory authority. Review under both the Administrative Procedure Act's (APA) arbitrary and capricious standard and Chevron step two is narrow, meaning courts should not replace agency judgment with their own. However, courts play a crucial role in ensuring that agencies engage in reasoned decision-making.
The plaintiffs challenge several credible fear policies related to immigration laws, specifically alleging that: 1) there is an unlawful general rule denying credible fear claims based on domestic or gang violence; 2) a heightened standard for persecution involving non-governmental actors; 3) a new rule for nexus requirements in asylum; 4) circular definitions of "particular social group" claims based on domestic violence; 5) demands for precise definitions of "particular social group" during credible fear determinations; and 6) a directive that adjudicators disregard circuit court precedents inconsistent with Matter of A-B and apply the law of the relevant circuit during credible fear interviews. The court will evaluate each of these challenged policies.
The government concedes that the new credible fear policies do not receive blanket Chevron deference but asserts that the Attorney General is entitled to such deference when interpreting ambiguous statutory terms within the Immigration and Nationality Act (INA). Specifically, Chevron deference applies to the Attorney General's interpretations that establish longstanding precedent or interpret prior agency regulations through case-by-case adjudication. The case Matter of A-B- is highlighted as it pertains to the "particular social group" requirement for asylum. The Supreme Court has affirmed that Chevron deference is relevant to the INA, which mandates the Attorney General's administration and enforcement of the statute. Courts must also defer to an agency's reasonable interpretation of its own precedents. The Attorney General's interpretation in Matter of A-B- regarding asylum based on domestic violence falls within this Chevron framework.
The first step in the Chevron analysis is determining whether Congress has provided a clear answer to the interpretive question using standard statutory interpretation methods. In this context, the term "particular social group" is deemed ambiguous. Under the asylum provisions, an alien present in the U.S. may be granted asylum if the Attorney General finds they qualify as a refugee, which includes those facing persecution based on their membership in a particular social group. However, the INA does not clarify the meaning of "particular social group," leaving it open to interpretation.
The term "particular social group" was introduced in the Immigration and Nationality Act (INA) through the Refugee Act of 1980, which aimed to protect refugees who cannot safeguard themselves from persecution in their home countries. Congress established a historic policy to address the urgent needs of persecuted individuals and provide humanitarian aid in asylum areas. Although the legislative history does not specify the meaning of "particular social group," it indicates Congress's intent to align U.S. refugee law with the 1968 Protocol, which the U.S. adopted. The acceptance of the refugee definition was based on the Protocol's language, suggesting that the Refugee Act should be interpreted in line with the United Nations' standards. The UNHCR Handbook, recognized by the Supreme Court as a significant interpretive tool, broadly defines "particular social group" as individuals with similar backgrounds, habits, or social status. This indicates Congress's intention for an expansive understanding of the term. The Refugee Act reflects the U.S. commitment to respond to the needs of persecuted persons and to encourage other nations to assist and resettle refugees.
Congress has not explicitly defined whether victims of domestic or gang-related persecution fit within the "particular social group" category for asylum claims. Consequently, the Court evaluates the Attorney General's interpretation, which generally excludes such claims at the credible fear stage, under Chevron step two. This analysis overlaps with the arbitrary and capricious standard of review mandated by the Administrative Procedure Act (APA). For agency actions to withstand this review, they must be based on reasoned decision-making, and coherence is essential in the agency's explanations.
Plaintiffs argue that the Attorney General's broad rule against recognizing credible fear claims based on domestic violence and gang-related persecution is arbitrary and capricious. They assert that this rule lacks foundation in immigration law, highlighting cases where immigration judges have accepted such claims. Additionally, they contend that this prohibition deviates from the established practice of individualized credible fear determinations based on specific case facts.
In response, the government claims no general rule against these claims exists, asserting that the only legal change was the overruling of prior case law. The government maintains that the Attorney General's decisions are lawful interpretations of asylum laws and merit deference, arguing that Congress intended the asylum statute to offer limited relief rather than address all forms of misfortune. The government further posits that issues surrounding domestic and gang violence in asylum claims have been contentious for a long time.
The Court rejects the notion that the Matter of A-B- decision and the associated Policy Memorandum establish a broad prohibition against positive credible fear determinations for asylum claims based on domestic or gang-related violence. Matter of A-B- requires immigration judges and asylum officers to evaluate claims based on specific social group membership according to established legal standards. It emphasizes that claims related to domestic or gang violence typically do not qualify for asylum and mandates a thorough analysis of each claim’s credibility. The Policy Memorandum reinforces that these standards must be applied when assessing credible fear claims linked to particular social groups.
The Court notes that implementing a general rule against such claims is arbitrary and capricious, lacking a legal foundation for a categorical exclusion of domestic violence or gang-related claims. This approach contradicts the individualized assessment mandated by the Immigration and Nationality Act (INA), which requires a detailed, case-specific analysis for each applicant. A blanket prohibition against claims from specific categories of perpetrators undermines Congress's intent to align U.S. refugee law with international standards.
The Attorney General's interpretation of "particular social group" leading to a general rule exceeds statutory authority and is inconsistent with the Refugee Act and the INA. Furthermore, this general rule improperly raises the standards at the credible fear stage, conflicting with the legislative intent that an alien's removal cannot be expedited if there exists a "significant possibility" of establishing asylum eligibility.
Asylum officers are required to conduct interviews in a nonadversarial way and gather all pertinent information regarding an applicant's credible fear of persecution or torture, as outlined in 8 C.F.R. 208.30(d). To succeed in a credible fear interview, an applicant must demonstrate a "significant possibility" of persecution, defined as at least a ten percent chance, as supported by 8 U.S.C. 1225(b)(1)(B)(v) and case law, including Cardoza-Fonseca. Legislative history from the IIRIRA indicates that this credible fear standard is intentionally low to facilitate access to the asylum process.
The Attorney General's policy of broadly excluding certain groups of aliens at the credible fear stage lacks adequate explanation and contradicts established agency precedent, rendering it arbitrary and capricious under immigration laws. Additionally, the plaintiffs challenge heightened legal requirements imposed by the government for credible fear claims involving non-governmental persecutors, arguing that the government must demonstrate either its condonation of the acts or its complete helplessness to protect victims. This standard, derived from Matter of A-B- and a Policy Memorandum, is contested by the government as not being a new definition of persecution.
Under Chevron Step One, the court finds that the term "persecution" in the Immigration and Nationality Act (INA) is unambiguous and does not necessitate government involvement as proposed by the new interpretation. The court references established principles that Congress is assumed to adopt existing interpretations when enacting similar language, noting that Matter of Acosta remains a significant precedent in defining "persecution."
The BIA determined that persecution can occur through actions by the government or by individuals or organizations that the government is unable or unwilling to control. This interpretation aligns with Congress's intent as reflected in pre-1980 statutes, where "persecution" had an established judicial meaning related to harm or suffering. The BIA adopted this definition, affirming that when Congress uses a term with a settled meaning, it demonstrates clear intent for legal interpretation. The "unable or unwilling" standard, integral to the Refugee Act, does not require proof that the government condones persecution or is completely helpless to prevent it. The government's narrower interpretation, suggesting that such conditions are necessary, does not hold under Chevron step one scrutiny. The government referenced circuit precedents that mention "condoning" and "complete helplessness," but these cases, such as Galina v. INS, ultimately applied the broader "unwilling or unable" standard, recognizing that an applicant can still qualify as a victim of persecution if the authorities fail to provide effective protection, regardless of any actions they may have taken.
The court did not apply the heightened "condoned or complete helplessness" standard for persecution as outlined in the government’s credible fear policies. It emphasized that under the government's interpretation, no asylum seeker who received any governmental assistance, regardless of its ineffectiveness, could meet the persecution criterion if the persecutor is a non-government actor. The court referenced a specific case, Rosales Justo v. Sessions, where the First Circuit ruled that the "unwilling or unable" standard was satisfied despite significant police involvement in a murder case. The petitioner, who fled Mexico after organized crime killed his son, experienced substantial police action, yet the court determined that the police were willing but unable to ensure the petitioner’s safety, thereby illustrating that requiring police to condone persecution or show complete helplessness contradicts existing immigration law standards. The court asserted it need not defer to the government’s interpretation of court precedents and reaffirmed that judicial interpretations should guide standards for determining government action or inaction as persecution. The "unwilling or unable" standard was established when the Refugee Act was enacted, and therefore, the Attorney General's new standards are not a valid interpretation of the persecution requirement.
The plaintiffs argue that the nexus requirement as defined in Matter of A-B-—where a private actor’s violence based on a personal relationship may not qualify the victim's group membership as a "central reason" for abuse—contradicts the Immigration and Nationality Act (INA), the Refugee Act, and the Administrative Procedure Act (APA). The INA stipulates that a refugee must demonstrate persecution "on account of" a protected ground, and the parties agree on the "one central reason" standard and the necessity of a "mixed-motive" analysis when multiple reasons for persecution exist. Disagreement arises over whether the credible fear policies deviate from this standard. The government’s interpretation, which aligns with the "one central reason" standard from Matter of A-B-, asserts that purely personal disputes do not meet the nexus requirement. The Policy Memorandum clarifies that violence stemming from a personal relationship may not satisfy the “one central reason” criterion, although it allows for the possibility of a nexus if a protected ground is involved. The court finds the government's reading reasonable and consistent with the statute, noting that the presence of personal motivations does not preclude a credible fear determination as long as a protected ground is a central reason for the persecution. Furthermore, case law supports that the nexus requirement can be fulfilled even when personal relationships exist, and both Matter of A-B- and the Policy Memorandum do not deviate from the statutory standard. Thus, the court concludes that the government did not violate the APA or INA regarding the nexus requirement interpretation.
The plaintiffs contend that the Policy Memorandum introduces a new, impermissibly circular definition of "particular social group" related to domestic violence claims, which they argue is not valid for credible fear determinations. They assert this circularity rule contradicts existing legal standards and violates the Refugee Act and Immigration and Nationality Act (INA), deeming it arbitrary and capricious. Both parties acknowledge that the Board of Immigration Appeals (BIA) correctly established in *Matter of M-E-V-G.* that a social group cannot be defined solely by the persecution experienced by its members. The BIA outlined criteria for identifying a particular social group: members must share an immutable characteristic, the group must be defined with particularity, and it must be socially distinct within the relevant society. The BIA emphasized that persecution cannot be the exclusive basis for defining a social group, citing that a group of former employees of an attorney general may not qualify for asylum if society does not view them as distinct. However, the BIA allowed for case-by-case analysis, noting that persecution could lead to societal distinctions under certain circumstances. The plaintiffs are not contesting the BIA's rule against circularity but are instead challenging how the Policy Memorandum articulates this rule.
The Policy Memorandum mandates that social groups defined by "inability to leave" due to domestic violence are not recognized as cognizable, asserting that married women unable to leave their relationships lack sufficient particularity. It states that even if the term "unable to leave" were deemed particular, applicants must demonstrate more than the risk of harm if they attempt to leave, as this would create a circular definition tied to the harm underlying the asylum claim. This interpretation appears to misapply the circularity standard and overlooks the analysis from Matter of A-B.
Matter of M-E-V-G- emphasizes that there cannot be a blanket rule regarding group distinction, suggesting that societal recognition of shared past experiences can lead to valid social group definitions. The Policy Memorandum's general circularity rule fails to account for unique case characteristics, rendering it arbitrary and contrary to immigration law. Moreover, it alters the established circularity standard by dismissing independent characteristics of social groups, without providing a reasoned explanation for this change, as required by administrative law.
The Policy Memorandum's approach to circularity deviates significantly from prior case law, specifically criticizing the BIA for not considering circularity in prior decisions and suggesting that the social group at issue might only be "effectively" circular. The memorandum's formulation is thus seen as disconnected from established legal standards and is characterized as arbitrary, capricious, and inconsistent with immigration law. Additionally, plaintiffs argue that the credible fear policies improperly import aspects from regular removal procedures into credible fear assessments, labeling the delineation requirement as unlawful.
Aliens are required to identify a "particular social group" at the credible fear stage of asylum applications, according to a disputed policy. Asylum adjudicators must also consider discretionary factors when making credibility determinations, though this requirement is challenged. The government acknowledges that mandating the delineation of a particular social group at this stage would violate existing law and that requiring discretion to be exercised at this stage is inconsistent with relevant statutes. However, the government contends that no such directives currently exist in credible fear policies. The court agrees, confirming that credible fear policies do not instruct officers to exercise discretion at this stage, as discretion is only relevant once an applicant has established asylum eligibility. The Policy Memorandum discusses discretion only in the context of established eligibility for asylum and does not impose a delineation requirement during credible fear determinations. The Matter of A-B decision requires clear delineation only when the applicant is before an immigration judge, not at the credible fear stage. However, the Policy Memorandum extends this delineation requirement to credible fear determinations, mandating that if an applicant claims asylum based on membership in a particular social group, officers must incorporate the standards from Matter of A-B into their credible fear assessments.
The Policy Memorandum instructs asylum officers to apply the standards from *Matter of A-B-* when assessing credible fear determinations, explicitly incorporating the delineation requirement from that case. The government contends that any ambiguity in the Policy Memorandum warrants judicial deference to its interpretation, citing that deference is appropriate only if the interpretation is persuasive. However, the Court finds the narrow reading of the Policy Memorandum unconvincing, asserting that it improperly mandates aliens to clearly identify their proposed social groups at the credible fear stage, which contradicts the Immigration and Nationality Act (INA) and renders the policy arbitrary and capricious.
Additionally, the plaintiffs argue that the Policy Memorandum unlawfully directs asylum officers to ignore binding decisions from circuit courts. The Memorandum requires that asylum officers determine the applicable law for credible fear interviews, applying precedents from the Attorney General and the Board of Immigration Appeals (BIA), and federal circuit case law, provided they do not conflict with *Matter of A-B-*. The plaintiffs assert that this directive violates the Administrative Procedure Act (APA), the INA, and the principle of separation of powers, and also claim that the requirement for asylum officers to apply the law of the circuit where the alien is physically located during the interview is similarly unlawful under the APA and INA.
The plaintiffs argue that the Policy Memorandum directing asylum officers to disregard circuit law that contradicts the Matter of A-B- is unlawful. They contend that this policy exceeds an agency's authority to displace circuit precedent, as it requires officers to ignore all circuit law regardless of whether it is entitled to deference. The plaintiffs reference the Supreme Court's decision in Nat'l Cable Telecomm's Ass'n v. Brand X Internet Servs., which established that an agency's reasonable interpretation of an ambiguous statute can override a circuit court's prior interpretation, provided the court's interpretation does not stem from unambiguous terms of the statute. The government counters that the Policy Memorandum is justified by statute and aligns with Brand X principles, asserting that the Immigration and Nationality Act (INA) mandates that all line officers adhere to the Attorney General's binding decisions.
Plaintiffs have not identified any decisions that contradict the Matter of A-B, which the government argues permits officers to apply this decision despite prior circuit precedents. The Policy Memorandum mandates that officers adhere to Matter of A-B until a circuit court rules otherwise concerning the Immigration and Nationality Act (INA). The government downplays the Policy Memorandum's impact, suggesting that under *Brand X*, an agency's interpretation can supersede a judicial interpretation only if it is entitled to deference. Matter of A-B is said to interpret the concept of "particular social group" relevant to asylum claims, yet the Policy Memorandum instructs officers to disregard federal circuit law if it conflicts with Matter of A-B, including its persecution standard. This broad application of *Brand X* to agency guidance raises concerns, especially since it may unlawfully direct officers to ignore circuit precedent. A court's unambiguous statutory interpretation takes precedence over a conflicting agency interpretation, as established in *Brand X*. The government’s position relies on the assumption that all aspects of Matter of A-B warrant deference and are reasonable interpretations of the INA. However, if a court finds that a statute is unambiguous, that judicial interpretation binds the agency, preventing it from replacing the court's interpretation with its own.
The Policy Memorandum has been criticized for failing to recognize the principle established in Brand X, leading to a misguided reliance by the government. The Attorney General’s rulings are binding on asylum officers, but the Policy Memorandum extends beyond merely instructing officers to follow these rulings. Instead, it mandates that credible fear interviews adhere to circuit precedent only when not conflicting with Matter of A-B, which does not support a broad disregard for circuit law.
Plaintiffs argue that the directive for asylum officers to apply the law of the circuit where the alien is physically located during credible fear interviews violates the immigration laws, particularly the low screening standard established by Congress. They contend that this standard necessitates offering the most favorable circuit law to the alien, as future asylum hearings may occur in that circuit. In response, the government maintains that the law of the jurisdiction governs proceedings and that the credible fear standard does not require consideration of the most favorable circuit law. They assert that, in case of ambiguity, their interpretation should receive some deference.
The crux of the issue hinges on the interpretation of 8 U.S.C. § 1225(b)(1)(B)(v), which defines "credible fear of persecution" and outlines the requirements for credible fear determinations. Regulations mandate that interviews must be conducted in a nonadversarial manner and aim to gather all relevant information regarding the applicant’s credible fear of persecution or torture.
The statute lacks explicit guidance on which law should govern credible fear interviews, as indicated in 8 U.S.C. 1225(b)(1)(B)(v). However, legislative intent from Congress during the establishment of expedited removal provisions in 1996 clarifies that a low screening standard was deliberately chosen to ensure that genuine asylum claimants are not returned to persecution. This low standard was meant to facilitate access to the full asylum process, rejecting a higher credibility standard proposed in earlier bills.
The Court finds that the plaintiffs’ interpretation aligns more closely with this low screening standard, as the statute emphasizes eligibility during removal proceedings rather than specific legal standards for screening. Given that removal proceedings can occur anywhere in the U.S., any circuit disagreements should benefit the alien's claim. The government’s interpretation risks deporting aliens who may have a substantial chance of winning asylum claims under section 1158, contradicting Congress's intent.
The government acknowledges potential denial during the less stringent credible fear determination but urges deference to its interpretation. However, the Court concludes that the government's arguments reinforce the plaintiffs' position. The Policy Memorandum's directives risk denying potentially successful asylum applicants at the credible fear stage, which is inconsistent with the statute, particularly regarding concerns raised in H.R. REP. NO. 104-469.
Consequently, the Court finds that the following credible fear policies are arbitrary, capricious, and contrary to law: 1) the general rule limiting credible fear claims for victims of gang-related and domestic violence based on their membership in a "particular social group"; 2) the heightened "condoned" or "complete helplessness" standard for persecution; 3) the circularity standard; 4) the delineation requirement at the credible fear stage; and 5) the directive that adjudicators must disregard contrary circuit law and apply only the law of the circuit where the credible fear interview occurs.
The Court determines that the Policy Memorandum and Matter of A-B- do not impose an unlawful nexus requirement or mandate the application of discretionary factors by asylum officers at the credible fear stage. Plaintiffs seek an injunction against the government’s new credible fear policies and any guidance implementing Matter of A-B- in credible fear proceedings. They request vacating credible fear determinations and removal orders for plaintiffs not yet removed, and for those removed, they seek an order for their return to the United States. Additionally, plaintiffs ask for new credible fear proceedings where proper legal standards are applied. The government contends that Section 1252 prevents equitable relief, arguing that the Court lacks authority to order the return of removed plaintiffs. The government acknowledges that Section 1252(e)(3) allows review of systemic challenges but argues that Section 1252(e)(1) limits the scope of relief, prohibiting equitable relief in actions related to exclusion orders unless explicitly authorized in subsequent paragraphs. Plaintiffs counter that Section 1252(e)(1) contains an exception for actions authorized in Section 1252(e)(3), asserting their claims fall within this exception. The debate centers on whether the "action" or the "relief" must be specifically authorized in the subsequent paragraphs of Section 1252(e). The government interprets the provision to require specific authorization for any equitable relief, while plaintiffs argue that the "action" itself is what's authorized.
The provision indicates that certain forms of relief are only permissible when a plaintiff initiates an "action specifically authorized" in a subsequent subsection, specifically section 1252(e)(1)(a). The statute's structure supports this interpretation; for instance, subsection 1252(e)(1)(b) similarly stipulates that class certification cannot occur for actions permitted under a later paragraph. Subsection 1252(e)(4) further clarifies that the term "authorized" pertains to the action type rather than the relief type, as it restricts the remedies a court can issue in habeas corpus cases related to credible fear determinations. Notably, if section 1252(e)(1)(a) entirely barred injunctive and equitable relief, subsection 1252(e)(4) would be unnecessary to delineate the limited relief available. The government's interpretation suggests a lack of remedy for successful claims under section 1252(e)(3), which is inconsistent with the legislative intent to provide jurisdiction for federal courts to assess the legality of agency actions. The case at hand falls under the systemic challenge provisions of section 1252(e)(3), meaning the restrictions on relief in section 1252(e)(1)(a) do not apply. The argument that section 1252(f) prohibits injunctive relief is similarly flawed, as this provision's language does not support such a broad limitation.
No court, except for the Supreme Court, has jurisdiction to enjoin or restrain the operation of sections 1221-1232, except in relation to individual aliens involved in proceedings under these sections, as outlined in 8 U.S.C. 1252(f)(1). The Supreme Court has clarified that this provision prohibits federal courts from granting classwide injunctive relief against these sections, as established in Jennings v. Rodriguez. However, circuit courts have maintained that this provision does not negate their jurisdiction over statutory claims that do not seek to enjoin the operation of immigration detention statutes but rather challenge unlawful conduct.
In the current case, plaintiffs do not aim to enjoin the expedited removal provisions or declare the statutes unlawful; instead, they seek to stop the government's alleged violation of these laws through the implementation of unlawful credible fear policies. An injunction sought does not obstruct section 1225 but rather compels compliance with it. Legal precedents support that injunctive relief is permissible when it addresses violations of immigration statutes rather than the statutes themselves.
The government contends that the Court can only enjoin the policies as they apply to the plaintiffs, allowing DHS to enforce these policies in other cases. This argument is rejected, as it contradicts the Court's authority to declare unlawful actions and enforce compliance. The Administrative Procedure Act (APA) reinforces that unlawful agency regulations should be vacated, not merely restricted to individual petitioners. Furthermore, section 1252(f) applies only when legality of immigration laws is contested, not when conduct violating these laws is challenged, thus affirming the Court's power in this matter.
The Court has the authority to order the return of plaintiffs who were unlawfully removed, despite the government's claim that it would return them if it loses on the merits. The government references Kiyemba v. Obama, where Chinese citizens detained at Guantanamo Bay sought release in the U.S. without complying with immigration laws. The D.C. Circuit reversed the district court's decision to release them, emphasizing that the power to exclude aliens lies with the political branches unless expressly authorized by law. The court noted that judicial review is limited to the framework created by Congress regarding alien entry into the U.S. The distinction in this case is that the plaintiffs have engaged with the immigration framework, allowing the Court to review the Executive's actions. Thus, the Court finds the government’s argument lacking and concludes that injunctive relief is necessary to provide an effective remedy.
Credible fear interviews conducted under the policies in Matter of A-B- and the Policy Memorandum were flawed, rendering court orders to enjoin these policies ineffective for plaintiffs who cannot attend required interviews. A permanent injunction is warranted, as plaintiffs must meet a four-factor test: 1) they have suffered irreparable injury; 2) traditional legal remedies are inadequate; 3) the balance of hardships favors equitable relief; and 4) the injunction aligns with public interest. Plaintiffs assert they have been irreparably harmed by the unlawful credible fear policies, which led to denied applications despite their credible claims of serious threats such as rape and violence in their home countries. They argue that no remedy other than an injunction against these policies is sufficient. The government has not addressed the merits of these claims, maintaining that the court lacks authority for such relief. However, the court has established it does possess this authority and finds the injunction appropriate. The balance of hardships favors plaintiffs, as the government would not suffer harm from ending unlawful practices, and public interest is served by ensuring compliance with administrative obligations and preventing wrongful removals to potentially dangerous situations.
Plaintiffs have shown substantial harm if returned to their countries of origin, justifying a permanent injunction. The Court affirms its jurisdiction over the plaintiffs' challenges to the credible fear policies and grants a permanent injunction while partially granting and denying the plaintiffs' and government’s motions for summary judgment. The Court finds that the new credible fear policies, except for two, are arbitrary, capricious, and violate immigration laws. The plaintiffs' credible fear interviews resulted in believable accounts, and while the Court acknowledges the analysis from amici, it notes that prior case discussions on gang violence do not apply as the specific claims involved domestic violence. The Court will not consider plaintiffs' due process claims or additional evidence related to those claims. It also dismisses certain newspaper articles as incompetent evidence for summary judgment. The Policy Memorandum does not receive Chevron deference, as agency interpretations in opinion letters and similar formats lack the force of law but may be respected if persuasive. The new rule diverges from previous DHS policy, emphasizing that asylum officers must consider the totality of harm experienced by applicants to assess persecution properly.
An agency altering its policies must provide a clear justification for the change rather than merely ignoring previous standards. Domestic law can only override international obligations through explicit abrogation or conflicting legislation, as established in Chew Heong v. United States and Reid v. Covert. Congress has not shown intent to withdraw from its international commitments under the Refugee Act of 1980. The Chevron framework applies since the government is interpreting the Immigration and Nationality Act (INA). The requirement of persecution for asylum claims encompasses all claims, not limited to specific social group membership or violence-related claims, thereby raising the standards for all applicants. The change in persecution criteria lacks adequate explanation, which could render it arbitrary and capricious under the Administrative Procedure Act (APA). The credible fear policies fail to recognize this change, further contributing to their arbitrary nature. The agency must acknowledge its position change, similar to directives concerning the "unwilling or unable" standard. The plaintiffs assert that the new credible fear policies exhibit circular reasoning, initially arguing against this in their complaint and later refining their stance in their summary judgment motion. The Court finds the plaintiffs' original complaint sufficient under the notice pleading standard, which does not require comprehensive detail on every legal element. Factors influencing asylum claims include the applicant's journey, attempts to seek asylum elsewhere, and conditions of safety and potential residency in third countries.
The Policy Memorandum emphasizes that claims related to gang violence or domestic violence involving vulnerable social groups often fail the 'significant possibility' test in credible-fear screenings. It references the standards from the Matter of A-B, which requires claimants to demonstrate their fit within a social group independently of the alleged harm, indicating a need for a clear delineation at the credible fear stage. The government argues that most of Matter of A-B is non-binding dicta, with its only legal effect being the overruling of Matter of A-R-C-G, and claims that agency interpretations must be entitled to deference under Chevron, but not on matters characterized as dicta. Auer deference, applicable only to an agency's interpretation of its own regulations, does not extend to the Policy Memorandum. The government's policy marks a departure from previous DHS practices without adequate rationale. The court finds that the government violated the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA) but does not need to address potential constitutional violations. Regarding habeas corpus and section 1252(e)(3), the court identifies that petitioners must prove their legal admission status or refugee status to prevail. The court clarifies that section 1252(e)(1) pertains only to exclusion orders, while section 1252(e)(3) challenges the validity of the system itself, establishing it as an exception to the limitations of section 1252(e)(1). The court rejects the government's argument that an injunction would constitute class-wide relief, noting that the plaintiffs do not seek such relief. Lastly, supporting country reports corroborate the plaintiffs' accounts.
