Kiakombua v. McAleenan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MARIA M. KIAKOMBUA, et al., )
)
Plaintiffs, )
)
v. ) No. 19-cv-1872 (KBJ)
)
CHAD F. WOLF, in his official capacity as )
Acting Secretary of the Department of )
Homeland Security, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................. 1
II. BACKGROUND ................................................................................................... 5
A. Credible Fear Screenings And The U.S. Asylum Process .................................. 5
B. USCIS’s “Lesson Plan On Credible Fear Of Persecution And Torture
Determinations” ............................................................................................ 10
C. Plaintiffs’ Asylum-Related Experiences ........................................................ 12
1. Maria Kiakombua .................................................................................... 13
2. “Sofia” and “Julia” .................................................................................. 14
3. “Ana” and “Emma” ................................................................................. 16
D. Procedural History ........................................................................................ 17
1. Plaintiffs’ Legal Claims ........................................................................... 18
2. The Parties’ Cross-Motions For Summary Judgment ................................ 20
III. LEGAL STANDARDS ........................................................................................ 24
A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(1) ............ 24
B. Rule 56 Motions For Summary Judgment With Respect To Legal Claims
That Assail Agency Action Under The APA And Otherwise ........................... 26
IV. ANALYSIS ......................................................................................................... 27
A. Plaintiffs Have Article III Standing To Challenge The Lesson Plan, And
Defendants Have Not Established That Plaintiffs’ Claims Are Moot .............. 29
1. Plaintiffs Suffered An Injury In Fact, Which Is Fairly Traceable To
The Lesson Plan, And May Be Redressed By An Order Vacating The
Lesson Plan And Requiring New Credible Fear Determinations ................ 29
2. Defendants Have Not Persuasively Demonstrated Mootness ..................... 34
B. This Court Has Subject-Matter Jurisdiction To Review Agency Action
That Allegedly Violates Provisions Of The INA ............................................ 40
1. Section 1252(e)(3)(A) Of The INA Preserves This Court’s
Subject-Matter Jurisdiction Under 28 U.S.C. § 1331 In These
Circumstances ........................................................................................ 43
2. Plaintiffs’ Claims Are Not Time-Barred ................................................... 50
C. The Lesson Plan Violates The INA And Its Implementing Regulations ........... 53
1. The INA And Its Regulations Plainly Establish A Two-Stage
Framework To Demonstrate Asylum Eligibility In The Expedited
Removal Context, And Provide Standards For Making The Required
Assessment At Each Stage Of The Process ............................................... 55
2. Certain Provisions Of The Lesson Plan Conflate The Initial Credible
Fear Screening Standards With The Requirements For Asylum
Eligibility, And Are Thus Manifestly Inconsistent With The INA’s
Express Prescriptions .............................................................................. 60
a. The Lesson Plan Requires That A Noncitizen “Identify More Than
Significant Evidence That The Applicant Is A Refugee Entitled To
Asylum” In Order To Pass The Credible Fear Screening .................... 60
b. The Lesson Plan Imports Factors That Are Relevant For Asylum
Relief During The Full Removal Proceeding Stage Into The Initial
Credible Fear Determination Process ................................................. 62
c. The Lesson Plan Places A Burden On The Asylum Seeker Who
Suffered Past Persecution To Show Unchanged Country Conditions
And The Unavailability Of Internal Relocation As Prerequisites
For A Favorable Credible Fear Determination .................................... 65
ii
3. Certain Provisions Of The Lesson Plan Are Based Upon An
Unreasonable Interpretation Of The INA’s Asylum Review Process ......... 67
a. The Lesson Plan’s Mandate That Noncitizens Provide “Evidence”
And “Facts” That Pertain To “Every Element” Of Their Asylum
Claim Is Plainly Unreasonable Given The Statutory Requirements ..... 67
b. The Lesson Plan Unreasonably Permits Asylum Officers To
Require Corroboration In The Context Of The Credible Fear
Interview Process .............................................................................. 70
c. The Lesson Plan Unreasonably Requires The Screening Officer
To Consider Whether The Noncitizen’s Home Government Has
“Abdicated Its Responsibility” To Control Persecution ...................... 73
D. The Unlawful Provisions Of The Lesson Plan Cannot Be Severed From The
Remainder Of The Document, So The Court Will Exercise Its Equitable
Authority To Vacate The Entire Lesson Plan And Will Also Order New
Credible Fear Determinations For These Plaintiffs ......................................... 76
1. Vacatur Is An Appropriate Remedy Under These Circumstances .............. 78
2. The Unlawful Provisions Of The Lesson Plan Are Not Severable
From The Remainder Of The Document, Such That Vacatur Of
The Entire Lesson Plan Is Required ......................................................... 87
3. Plaintiffs Are Entitled To New Credible Fear Determinations ................... 92
V. CONCLUSION ................................................................................................... 95
iii
I. INTRODUCTION
The Department of Homeland Security (“DHS”)—and, in particular, DHS’s sub-
agency, the United States Citizenship and Immigration Services (“USCIS”)—is tasked
with the responsibility of training federal employees to make sensitive and
consequential judgments concerning the asylum eligibility of noncitizens seeking refuge
in the United States. 1 Federal law specifically prescribes the substantive standards that
front-line asylum officers apply in order to identify those noncitizens designated for
expedited removal who have a “credible fear or persecution” in their home countries
and are thus entitled to a more probing evaluation of their asylum request in the context
of a full removal hearing. See, e.g., 8 U.S.C. § 1225(b)(1)(B); 8 C.F.R. § 208.30; see
also Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (amending 8 U.S.C. § 1101 et seq.).
USCIS has also developed a related training course for its screening officers, which
utilizes a manual titled the “Lesson Plan on Credible Fear of Persecution and Torture
Determinations.” (Ex. 1 to Admin. Record (“Lesson Plan”), ECF No. 61-1, at 2–38.) 2
That document—which the agency colloquially refers to as “the Lesson Plan”—purports
“to explain [to asylum officers] how to determine whether an alien subject to expedited
removal or an arriving stowaway has a credible fear of persecution or torture.” (Id. at
2.) According to USCIS, the Lesson Plan enables asylum officers “to correctly make a
1
This Memorandum Opinion employs the term “noncitizen” in lieu of the term “alien” to refer to “any
person who is not a citizen or national of the United States.” Pereira v. Sessions, 138 S. Ct. 2105, 2110
n.1 (2018). The latter is commonly used in immigration-related statutes and regulations. See, e.g., 8
U.S.C. § 1101(a)(3).
2
Page-number citations to the documents that the parties and the Court have filed refer to the page
numbers that the Court’s Electronic Case Filing (“ECF”) system automatically assigns.
credible fear determination consistent with the statutory provisions, regulations,
policies, and procedures that govern whether the applicant has established a credible
fear of persecution or a credible fear of torture.” (Id.)
The instant action challenges that proposition. Plaintiffs Maria Kiakombua, Ana,
Emma, Sofia, and Julia (collectively “Plaintiffs”) are noncitizens subject to expedited
removal who allege that, sometime between May and June of 2019, USCIS screening
officers made adverse credible fear determinations with respect to each of them
pursuant to the Lesson Plan’s directives. (See Suppl. First Am. Compl. (“Am.
Compl.”), ECF No. 62-2, ¶¶ 8, 14, 21, 23, 25, 27.) Plaintiffs assert, inter alia, that the
current version of the Lesson Plan is unlawfully designed “to drive down the rate at
which asylum seekers pass the screenings and avoid summary deportation[,]” and that it
does so by, among other things, directing asylum officers to make credible fear
determinations in a manner that is manifestly inconsistent with the governing statutory
and regulatory requirements. (Id. ¶ 72; see, e.g., id. ¶ 85 (“[T]he Lesson Plan
misrepresents the substantive law to be considered by the asylum officer to evaluate
potential eligibility for asylum or other humanitarian protection[.]”).) For example,
according to Plaintiffs, the Lesson Plan “converts the credible fear determination from
an inquiry into whether an asylum seeker could establish eligibility for relief in the
future” (id. ¶ 81), as the Immigration and Nationality Act (“INA”) provides, see 8
U.S.C. § 1225(b)(1)(B)(v), “into an adjudication on whether the asylum seeker actually
has established eligibility” during the initial screening phase (Am. Compl. ¶ 81).
Similarly, Plaintiffs allege that the Lesson Plan “increases the evidentiary burden the
asylum seeker must carry to pass a credible fear screening” insofar as it “impos[es] an
2
unlawful corroboration requirement; requir[es] the asylum seeker to present more than
significant evidence of eligibility . . . ; and plac[es] the onus on the asylum seeker to
produce testimony that is in fact the officer’s duty to elicit.” (Id. ¶ 83 (internal
quotation marks omitted).)
Plaintiffs’ three-count lawsuit, which has been filed against the Attorney
General, DHS, USCIS, the Refugee, Asylum, and International Operations (“RAIO”)
Directorate, and United States Customs and Border Protection (“CBP”) (collectively,
“Defendants”), claims that: (1) the current Lesson Plan is inconsistent with the
provisions of certain immigration-related statutes, other federal laws, and customary
international law (see Am. Compl. ¶¶ 89–98 (“First Claim for Relief”)); (2) Defendants
failed to follow notice-and-comment rulemaking procedures when they crafted the
current Lesson Plan, in violation of the procedural requirements of the Administrative
Procedure Act (“APA”) (id. ¶¶ 99–103 (“Second Claim for Relief”)); and (3) as it is
currently constituted, the Lesson Plan transgresses the Due Process Clause of the Fifth
Amendment to the United States Constitution (see id. ¶¶ 104–08 (“Third Claim for
Relief”)).
Before this Court at present are the parties’ cross motions for summary judgment
concerning Plaintiffs’ legal claims. (See Defs.’ Mem. in Supp. of Mot. for Summ. J.
(“Defs.’ Mot.”), ECF No. 31-1; Pls.’ Mem. in Supp. of Cross-Mot. for Summ. J. and in
Opp’n to Defs.’ Mot. (“Pls.’ Mot.”), ECF No. 36-1; Defs.’ Mem. of Law in Opp’n to
Pls.’ Mot. and Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 49; Pls.’ Reply
Mem. of Law in Supp. of Pls.’ Mot. (“Pls.’ Reply”), ECF No. 60.) In their motion,
Defendants make a host of threshold arguments, including that Plaintiffs lack Article III
3
standing (see Defs.’ Mot. at 24), that Plaintiffs’ claims are moot (see Defs.’ Reply at
13), and that the Court does not have subject-matter jurisdiction over the claims in
Plaintiffs’ pleading (see Defs.’ Mot. at 30–31). Defendants also contend that “the
Lesson Plan is not actionable under either the APA or the INA” (id. at 37) and that
Plaintiffs’ claims fail on the merits in any event (id. at 47). Defendants further
maintain that, even if the Court finds that Plaintiffs’ claims are meritorious, the only
available remedy is a declaration that the Lesson Plan is unlawful. (Id. at 63.)
Plaintiffs’ filings counter each of Defendants’ threshold arguments (see, e.g., Pls.’ Mot.
at 22–23, 32), and insist that there are “numerous independent grounds” for concluding
that the Lesson Plan is unlawful (id. at 39 (asserting that the Lesson Plan contradicts
the INA, was revised in an arbitrary and capricious manner, was not amended through
notice-and-comment rulemaking, and/or violates the Due Process Clause)). Plaintiffs
also maintain that the INA does not curtail this Court’s authority to issue any
appropriate equitable remedy. (See id. at 63.)
For the reasons explained fully below, the Court concludes that there is no
threshold impediment to its reaching the merits of Plaintiffs’ legal claims, and that
certain provisions of the Lesson Plan are manifestly inconsistent with the INA and its
implementing regulations as a matter of law. Moreover, because the unlawful
provisions of the Lesson Plan cannot be severed from the remainder of the document,
this Court finds that the entire document must be vacated, which is a remedy that the
Court retains full equitable power to order under the circumstances presented in this
case. In addition, to remedy the application of unlawful standards in the context of the
screening processes that USCIS undertook to evaluate Plaintiffs’ asylum eligibility, the
4
Court will require USCIS to provide new credible fear determinations for each Plaintiff.
Thus, Plaintiffs’ motion for summary judgment will be GRANTED with respect
to their first claim for relief, and Defendant’s cross-motion for summary judgment will
be DENIED. Furthermore, the Lesson Plan will be VACATED in its entirety, and
Defendants will be ENJOINED to void each Plaintiff’s existing credible fear
determination and provide Plaintiffs with new credible fear interviews, as necessary for
Defendants to make a lawful determination regarding whether each Plaintiff has a
credible fear of persecution that entitles her to a full removal hearing. A separate Order
consistent with this Memorandum Opinion will follow.
II. BACKGROUND
A. Credible Fear Screenings And The U.S. Asylum Process
For almost a century, Congress has recognized that citizens of foreign states are
sometimes forced to flee from persecution in their home countries, and it has been the
policy of the United States government that this country ought to serve as a place of
refuge for persons who are in such distress. “[T]he language through which Congress
has implemented this policy since 1947 has changed slightly from time to time[,]” but
“the basic policy has remained constant—to provide a haven for homeless refugees and
to fulfill American responsibilities in connection with the International Refugee
Organization of the United Nations.” Rosenberg v. Yee Chien Woo, 402 U.S. 49, 52
(1971). The Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified at 8
U.S.C. §§ 1157–1159), specifically embraces the United States’ commitment to
providing safe harbor for refugees insofar as it acknowledges “the historic policy of the
United States to respond to the urgent needs of persons subject to persecution in their
5
homelands,” and “encourage[s] all nations to provide assistance and resettlement
opportunities to refugees to the fullest extent possible[,]” 8 U.S.C. § 1521 note; see also
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987).
In keeping with this well-settled policy, over the course of the last four decades,
Congress has codified various procedures that govern how the United States will
evaluate and process the admission requests of refugees. Federal law provides that “any
person who is outside any country of such person’s nationality” and who is “unable or
unwilling to return to . . . that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion” qualifies as a “refugee[.]” 8 U.S.C. § 1101(a)(42)(A).
Statutes authorize the Attorney General to grant “asylum” to any refugee, id.
§ 1158(b)(1)(A), and further mandate that even when a noncitizen is subject to a rapid
expulsion process known as “expedited removal” (because they fit within an established
category of persons who can be summarily removed without full hearings or other
process), such noncitizen can only be so removed if she does not have “an intention to
apply for asylum under [8 U.S.C. § 1158] or a fear of persecution.” Id.
§ 1225(b)(1)(A)(i). 3
3
Expedited removal is a statutorily authorized process that permits the government to reject the entry
into the United States of certain categories of noncitizens “without further hearing or review.”
8 U.S.C. § 1225(b)(1)(A)(i). By statute, the Attorney General has “sole and unreviewable discretion”
to “designate[]” for expedited removal “any or all” noncitizens who are deemed inadmissible (as
defined by sections 1182(a)(6)(C) and (a)(7) of the INA) and who have “not affirmatively shown” that
they have “been physically present in the United States continuously for the 2-year period immediately
prior to the date of the determination of inadmissibility[.]” Id. § 1225(b)(1)(A)(iii)(I)–(II). The
Attorney General has conferred this designation authority to DHS, see Inspection and Expedited
Removal of Aliens, 62 Fed. Reg. 10,312, 10,355 (Mar. 6, 1997); 6 U.S.C. § 557 (2003), which, until
recently, opted to designate for expedited removal only those inadmissible noncitizens who were
encountered near the border and had been in the country for no longer than 14 days, see Designating
6
Significantly for present purposes, federal immigration law plainly establishes
that, for those noncitizens who are designated for expedited removal—such as the five
individual plaintiffs in this case—applying for asylum is a two-stage process. To start,
if a noncitizen encounters a CPB agent or other immigration officer and “indicates
either an intention to apply for asylum . . . or a fear of persecution” in their home
country, the immigration officer is required to “refer the alien for an interview by a[]
[USCIS] asylum officer,” who has the responsibility of determining whether or not the
individual has a credible “fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(ii). This
initial evaluation is a “screening interview[,]” Dep’t of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959, 1965 (2020), and it poses a “low bar” for asylum
applicants, id. at 1967; see also Regulations Concerning the Convention Against
Torture, 64 Fed. Reg. 8,478, 8,479 (Feb. 19, 1999) (noting that the credible fear
determination merely permits a screening officer to “quickly identify potentially
meritorious claims to protection and to resolve frivolous ones with dispatch”). Thus,
for the purpose of an asylum officer’s credible fear assessment, the noncitizen need not
demonstrate “that he or she is in fact eligible for asylum[.]” Thuraissigiam, 140 S. Ct.
at 1965 (emphasis in original). Rather, according to the statute, “the term ‘credible fear
of persecution’ means that there is a significant possibility, taking into account the
credibility of the statements made by the alien in support of the alien’s claim and such
Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004). In July of 2019, DHS
issued a notice that expands the categories of individuals who are subject to expedited removal, to
include all inadmissible noncitizens located “anywhere in the United States” who have “not been
physically present in the United States continuously for the [preceding] two-year period[.]”
Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,414 (July 23, 2019).
7
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).
The applicable statute, i.e., section 1225(b) of Title 8 of the United States Code,
also plainly addresses the consequences of a positive or adverse credible fear finding
during this initial screening process. If the asylum officer determines that the
noncitizen has a credible fear of persecution, the individual “shall be detained for
further consideration of the application for asylum,” 8 U.S.C. § 1225(b)(1)(B)(ii), and,
thus, shall proceed to the full proceeding stage of the asylum application process, see 8
C.F.R. § 208.30(f) (“If an alien . . . is found to have a credible fear of persecution or
torture, the asylum officer will . . . issue a Form I-862, Notice to Appear, for full
consideration of the asylum and withholding of removal claim in proceedings” under
section 1229a of Title 8 of the United States Code). By contrast, if the asylum officer
determines that the noncitizen does not have a credible fear of persecution, “the officer
shall order the alien removed from the United States without further hearing or review.”
8 U.S.C. § 1225(b)(1)(B)(iii)(I). At that point, the noncitizen can ask an immigration
judge to review the negative credible fear determination, see id. §§ 1225(b)(1)(B)(iii)
(I)–(III), and if such a review is requested, the immigration judge reviews the matter de
novo, based on the “record of the [asylum officer’s] negative credible fear
determination,” 8 C.F.R. § 1208.30(g)(2)(ii), supplemented with any additional “oral or
written statement” that the immigration judge decides, in her sole discretion, to receive
into evidence, id. § 1003.42(c). The immigration judge must also give the noncitizen
the opportunity to be heard and questioned, either in person or via remote connection.
See 8 U.S.C. § 1225(b)(1)(B)(iii)(III). However, with or without additional evidence,
8
the immigration judge’s review is a “highly expedited” affair that “is meant to conclude
within 24 hours.” Make the Rd. New York v. Wolf (“MTRNY II”), 962 F.3d 612, 619
(D.C. Cir. 2020).
Ultimately, if the immigration judge concludes that the noncitizen has a credible
fear of persecution, the asylum officer’s negative credible fear determination will be
vacated, and the agency will place the individual into full removal proceedings, see 8
C.F.R. §§ 208.30(e)(5), 1003.42(f), 1208.30(g)(2)(iv)(B); see also 8 U.S.C.
§ 1225(b)(1)(B)(ii), by serving on the noncitizen and filing with the immigration court a
Notice to Appear, see 8 C.F.R. § 235.6(a)(1)(iii); id. § 1239.1(a). 4 But if the
immigration judge concurs with the asylum officer’s decision that the noncitizen does
not have a credible fear of persecution, then the individual will be “removed from the
United States without further hearing or review.” 8 U.S.C. § 1225(b)(1)(B)(iii)(I); see
also 8 C.F.R. § 1208.30(g)(2)(iv)(A). Moreover, and importantly, the noncitizen’s bid
for asylum ends there, because the INA expressly prohibits further review of the
negative credible fear determination, whether by the Board of Immigration Appeals
(“BIA”) or in federal court. See 8 U.S.C. §§ 1225(b)(1)(C), 1252(a)(2)(A)(iii), (e)(2);
see also 8 C.F.R. § 1003.42(f).
4
This Court takes judicial notice of the fact that, at the time that Plaintiffs were evaluated for credible
fear, 47% of those who received a negative credible fear determination sought review by an
immigration judge, and only 20% of those were overturned upon review. See Executive Office for
Immigration Review, Adjudication Statistics, Credible Fear and Asylum Process: Fiscal Year (FY)
2019 Quarter 2 (June 21, 2019), http://perma.cc/9DSX-LDUE. Cf. Cannon v. District of Columbia,
717 F.3d 200, 205 n.2 (D.C. Cir. 2013) (taking judicial notice of the contents of a document posted on a
government website).
9
B. USCIS’s “Lesson Plan On Credible Fear Of Persecution And Torture
Determinations”
Given the significance of the credible fear determination with respect to the
asylum process, it is not surprising that Congress has authorized the agency that is
responsible for executing immigration policy (that is, DHS) to “establish such
regulations” as it deems “necessary for carrying out” the asylum-screening process
described above, see 8 U.S.C. § 1103(a)(3), and also to “issue such instructions” as are
necessary to “control, direct[], and supervis[e] . . . all employees” of DHS, so as to
ensure that the complex statutory immigration system is being administered properly,
id. § 1103(a)(1)–(3). The importance of proper training for agency officials is
expressly acknowledged by statute: the INA specifically states that training must be
provided for all “officers adjudicating asylum cases under section 1158[,]” id.
§ 1157(f), and with respect to the “asylum officer[s]” who conduct credible fear
interviews in particular, the INA requires such officers to receive “professional training
in country conditions, asylum law, and interview techniques comparable to that
provided to full-time adjudicators of [asylum] applications[,]” id. § 1225(b)(1)(E)(i).
DHS has also promulgated regulations that require asylum officers to receive “special
training in international human rights law, nonadversarial interview techniques, and
other relevant national and international refugee laws and principles.” 8 C.F.R.
§ 208.1(b). Indeed, “[a]s of February 2020, training for [USCIS] asylum officers
consisted of at least 9 weeks of formal training and 3 to 4 weeks of additional credible
fear training for asylum officers in offices with heavy credible fear caseloads[,]” as well
as “4 hours per week of ongoing training.” A.B.-B. v. Morgan, No. 20-cv-846, 2020
WL 5107548, at *7 (D.D.C. Aug. 31, 2020).
10
In accordance with its statutory and regulatory obligation to train its asylum
officers, USCIS publishes a guidance document that it calls the “Lesson Plan on
Credible Fear of Persecution and Torture Determinations.” (See Lesson Plan at 2–38.)
To this Court’s knowledge, there have been at least six versions of this particular
Lesson Plan, dated April 14, 2006 (see ECF No. 61-3, at 2), March 7, 2013 (see ECF
No. 61-5, at 2–40), February 28, 2014 (see ECF No. 61-4, at 2–48), February 13, 2017
(ECF No. 61-2, at 2–48), April 30, 2019 (see ECF No. 61-1, at 2–38), and September
30, 2019 (see ECF No. 58-1, at 2–39). The April 2019 version of the Lesson Plan was
in effect when asylum officers made the adverse credible fear determinations in
Plaintiffs’ cases. (See Am. Compl. ¶ 8.) 5
The April 2019 Lesson Plan is 37 pages long, and is divided into eleven sections.
At the outset, the document purports “to explain how to determine whether an alien
subject to expedited removal or an arriving stowaway has a credible fear of persecution
or torture[,]” so that asylum officers “will be able to correctly make a credible fear
determination consistent with the statutory provisions, regulations, policies, and
procedures that govern whether the applicant has established a credible fear of
persecution or a credible fear of torture.” (Lesson Plan at 2.) The Lesson Plan then
proceeds to instruct asylum officers how to “[i]dentify which persons are subject to
expedited removal” (id.; see id. at 7–10), and then discusses the function of the credible
5
Plaintiffs have requested that their claims with respect to the allegedly unlawful aspects of the April
2019 Lesson Plan be applied to the now-effective September 2019 version of the Lesson Plan as well,
given that the document did not change in any relevant respect when the September 2019 version
issued. (See Pls.’ Mot. for Leave to File Suppl. Pleading, ECF No. 62.) The Court granted Plaintiffs’
request on October 31, 2020 (see Minute Order of Oct. 31, 2020), and accordingly, throughout this
Memorandum Opinion, any references to the “Lesson Plan” should be construed as a reference to both
versions of that document (April 2019 and September 2019).
11
fear screening (see id. at 10), followed by a description of the concept of a “credible
fear” of persecution or torture that also addresses the standard of proof required to
establish a credible fear (see id. 10–14). In this regard, the Lesson Plan specifically
instructs that “the credible fear significant possibility standard of proof . . . requires the
applicant to identify more than significant evidence that the applicant is a refugee
entitled to asylum” (id. at 13 (internal quotation marks omitted)), and that, “even where
the officer might otherwise find the testimony credible[,]” an asylum officer can require
the credible fear interviewee to “provide evidence that corroborates the applicant’s
testimony” (id. at 12). The Lesson Plan focuses next on the procedures for making a
credible fear determination: it directs asylum officers how to evaluate credibility in a
credible fear interview (see id. at 14–18), and identifies the “elements” that are
necessary for establishing a credible fear of persecution (see id. at 19–26) or a credible
fear of torture (see id. at 26–32). The document also states that, “[i]n order to establish
a credible fear of persecution, the applicant must establish each one of the elements” of
her asylum claim. (Id. at 20.) It then moves on to addressing auxiliary matters such as
the applicability of bars to asylum (see id. at 32–33), and the treatment of dependents
(see id. at 33–34), before closing with a summary overview (see id. at 35–38).
C. Plaintiffs’ Asylum-Related Experiences
Beginning in the spring of 2019, at around the same time as the USCIS issued the
April 2019 version of the Lesson Plan, the five individual plaintiffs in this case were
deemed subject to expedited removal, after which they expressed an intention to apply
for asylum. Each Plaintiff then proceeded to have a credible fear screening interview
with a USCIS asylum officer, and each was found not to have a credible fear of
12
persecution, notwithstanding the alleged circumstances under which she had left her
home country and arrived in the United States. What follows is a brief recounting of
the complaint’s allegations concerning each Plaintiff’s asylum-related experiences, as
well as her efforts to challenge the adverse credible fear determination that prevented
her from proceeding to the full asylum application review process.
1. Maria Kiakombua
Plaintiff Maria Kiakombua allegedly “fled her home in Angola to escape her
boyfriend, a member of the country’s military, who beat her—sometimes with a
machete—and threatened to kill her if she left him” (Compl., ECF No. 1, ¶ 8), and to
find refuge from “repeated attacks . . . at the hands of government officials” (id.), who
were “associated with Ms. Kiakombua’s boyfriend [and] came to her home and raped
her in the presence of her children, due in part to her failure to abide by societal norms
regarding the proper role and behavior of women” (id. ¶ 12). According to the
complaint, Kiakombua “reached the U.S. border and sought asylum” in April of 2019,
“but an asylum officer found that she lacked a credible fear under the Lesson Plan.”
(Id. ¶¶ 8, 12.) In May of 2019, “[a]n immigration judge subsequently agreed” with the
asylum officer’s conclusion (id. ¶ 13), and Kiakombua was then “detained in the
custody of the Department of Homeland Security” pending removal to Angola (id.
¶ 12). On June 6, 2019, through “the assistance of pro bono immigration consultant[,]”
Kiakombua sought “reconsideration of the asylum officer’s negative credible fear
determination” (Am. Compl. ¶ 15), but that request was denied after a follow-up
interview (see id. ¶ 16).
13
 Kiakombua filed the instant lawsuit on June 25, 2019. (See id. ¶ 17.) The
following day Kiakombua (through counsel) “requested that Defendants voluntarily
agree to stay [her] expedited removal, to obviate the need for Ms. Kiakombua to request
that relief from the Court” (id. ¶ 18), and one day later, on June 27, 2019, USCIS
notified Kiakombua that the agency “had sua sponte reconsidered its prior denial of her
June 6, 2019[,] request for reconsideration, and had found that Ms. Kiakombua has a
credible fear” (id. ¶ 19). Kiakombua remains detained in USCIS custody (see id. ¶ 13),
and has apparently been served with a Notice to Appear for full removal proceedings at
a date and time “TBD” (see Sealed Ex. D to Defs.’ Reply (“Kiakombua NTA”), ECF
No. 4, at 2).
On June 28, 2019, Kiakombua’s counsel filed an amended complaint that names
four additional plaintiffs, each of whom is proceeding under a pseudonym. (See Am.
Compl. ¶¶ 20, 22, 24, 26.) 6
2. “Sofia” and “Julia”
Sofia is a Cuban “medical doctor” who is married to a U.S. lawful permanent
resident. (Id. ¶ 24.) Sofia allegedly “opposes Cuba’s ruling party, [and] has made her
views known through her political positions and refusal to acquiesce in demands of
government officials.” (Id.) According to the amended complaint, the Cuban
government “has accused [Sofia] of being anti-revolutionary and subjected her to
6
These four plaintiffs filed a motion to proceed pseudonymously on June 28, 2019. (See Pls.’ Mot. for
Leave to Proceed Under Pseudonyms, ECF No. 7.) The Court granted this motion, and determined that,
“[w]hen weighed against the minimal interest in disclosure of the identities of the Pseudonymous
Plaintiffs, the Pseudonymous Plaintiffs’ significant interest in maintaining anonymity at this early stage
in the litigation is more than sufficient to overcome any general presumption in favor of open
proceedings.” (See Order, ECF No. 12, at 9.)
14
surveillance, threats, and detention[,]” and “[t]he fear and stress Sofia experienced as a
result of the Cuban government’s actions led her to miscarry a pregnancy and ultimately
to decide to flee to the United States immediately, rather than risk waiting in Cuba until
her husband’s petition [on her behalf] was processed.” (Id.) Sofia came to the United
States in April of 2019, seeking asylum, but an “asylum officer determined—pursuant
to a credible fear process governed by the unlawful standards and procedures contained
in the Lesson Plan, and after an interview that lasted under ninety minutes, including
interpretation—that Sofia lacked a credible fear of persecution or torture.” (Id. ¶ 25.)
“An immigration judge subsequently agreed” and Sofia’s request for reconsideration
was denied (id.); thus, Sofia “was deported to Cuba, where she has been questioned by
the authorities about why she fled[,]” and where she “lives in constant fear of further
governmental threats and harassment” (id.).
According to the amended complaint, Julia has also been deported back to her
home country (El Salvador) after a negative credible fear determination in May of 2019
that was subsequently affirmed by an immigration judge. (See id. ¶ 27.) Julia allegedly
“fled El Salvador after witnessing the murder of a neighbor committed by gang
members” and after receiving multiple death threats from that gang “if she reported
their crime to the police.” (Id. ¶ 26.) The amended complaint alleges that Julia came to
the United States seeking protection in April of 2019, but an asylum officer determined
that she “lacked a credible fear of persecution or torture” under the newly revised
Lesson Plan. (Id. ¶¶ 26–27.)
15
3. “Ana” and “Emma”
Ana was allegedly “forced to flee El Salvador after receiving death threats from
gang members who targeted her husband, [who is] a landowner, and his family.” (Id.
¶ 20.) According to the amended complaint, “[i]n addition to sending death threats to
[Ana], the gang members threatened several other family members and shot her husband
and her nine-year-old granddaughter, although both survived.” (Id.) The local “police
were of little assistance” and, therefore, in May of 2019, Ana sought refuge in the
United States. (Id.) After “an asylum officer determined[,]” allegedly pursuant to the
Lesson Plan, “that Ana lacked a credible fear of persecution or torture[,]” and “[a]n
immigration judge subsequently agreed[,]” Ana was detained pending removal. (Id.
¶ 21.)
Emma also allegedly “fled El Salvador fearing for her life and came to the
United States seeking protection in May [of] 2019.” (Id. ¶ 22.) According to the
amended complaint, Emma was “beaten and sexually abused by her brother[,]” and was
also “threatened and emotionally and physically abused by the father of her daughter[,]”
but she was unable to report him to the local authorities because of his “close
associations with the police.” (Id.) The amended complaint alleges that, in June of
2019, an asylum officer determined pursuant to the Lesson Plan “that Emma lacked a
credible fear of persecution or torture[,]” and Emma has been ordered detained pending
“her hearing with an immigration judge, who will review the negative decision issued
by the asylum officer.” (Id. ¶ 23.)
On July 8, 2019, Plaintiffs Ana and Emma filed an emergency motion for an
administrative stay of their impending removals (see Pls.’ Mot. for Admin. Stay of
16
Removal, ECF No. 13, at 1), which this Court granted—over Defendants’ objection on
jurisdictional grounds (see Defs.’ Opp’n to Pls.’ Mot. for Admin. Stay of Removal, ECF
No. 16)—“pending resolution of th[e] Court’s determination of whether it has
jurisdiction to enter a stay of removal in this case” (Order, ECF No. 18, at 2 (citing
Order Granting Temporary Stay of Removal, Grace v. Whitaker, No. 18-cv-1853, ECF
No. 21)). The next day, on July 9, 2019, an immigration judge purportedly determined
that Emma’s negative credible fear determination should be vacated (see Ex. A to
Defs.’ Mot. (“In the Matter of Emma”), ECF No. 31-3, at 2), and it appears that around
that same time Ana’s negative credible fear determination was reversed by the agency
sua sponte. Shortly thereafter, Notices to Appear for full removal proceedings at a date
and time “TBD” were issued to both Ana and Emma. (See Sealed Ex. A to Defs.’
Notice of Sealed Filing (“Ana’s NTA”), ECF No. 81-1, at 2; Ex. B to Defs.’ Notice of
Sealed Filing (“Emma’s NTA”), ECF No. 81-2, at 2.)
D. Procedural History
As mentioned above, Kiakombua filed her original complaint on June 25, 2019
(see Compl., ECF No. 1), and Ana, Emma, Sofia, and Julia joined with Kiakombua to
file an amended complaint three days later (see First Am. Compl., ECF No. 6), which
was subsequently supplemented and superseded (see Suppl. First Am. Compl. (“Am.
Compl.”), ECF No. 62-2). 7 Their pleading alleges that the asylum officers who
7
There are no material differences between the first amended complaint and the supplemented first
amended complaint. (See Ex. 2 to Pls.’ Mot. for Leave to File Suppl. Pleading, ECF No. 62-3
(including a redline comparing the first amended complaint to the supplemented first amended
complaint).) Accordingly, and consistent with this Court’s Minute Order of October 31, 2020, any
reference and citation throughout this Memorandum Opinion to the “Amended Complaint” should be
construed as referring to the “Supplemented First Amended Complaint.”
17
undertook to make their credible fear determinations relied on the April 2019 Lesson
Plan (see id. ¶¶ 14, 21, 23, 25, 27), and that the Lesson Plan’s credible fear guidance is
unlawful for three “independent” reasons (Pls.’ Mot. at 39).
1. Plaintiffs’ Legal Claims
Plaintiffs’ “First Claim for Relief” (see Am. Compl. ¶¶ 89–98) is brought under
section 1252(e)(3) of the INA: Plaintiffs allege that the Lesson Plan is one of the
agency’s written policies that is made reviewable pursuant to section 1252(e)(3) of the
INA, and that it must be “vacated” upon review (id. ¶ 98), because it is both not
“consistent with applicable provisions of [Subchapter II of the INA]” (id. ¶ 90 (quoting
8 U.S.C. § 1252(e)(3)(A)(ii)) (alteration in original)), as amended by the Refugee Act
(see id. ¶ 92), and “otherwise in violation of law” (id. ¶ 90 (quoting 8 U.S.C.
§ 1252(e)(3)(A)(ii)), insofar as it violates the arbitrary-and-capricious prohibition of the
APA (see id. ¶¶ 91, 96), the Convention Against Torture and its implementing
regulations (see id. ¶ 93), and “customary international law” (id. ¶¶ 94–95).
Plaintiffs’ “Second Claim for Relief” (id. ¶¶ 99–103) invokes section 706(2)(D)
of the APA, which authorizes courts to hold “unlawful and set aside” agency actions
that fail “to observe the procedure required by the APA” (id. ¶ 103 (citing 5 U.S.C.
§ 706(2)(D)). In this regard, the amended complaint alleges that the APA “requires
agency action that is substantive (or ‘legislative’) in nature to follow notice-and-
comment procedures” (id. ¶ 100), and that, even though the Lesson Plan “reflects one or
more substantive rules” (id. ¶ 101), “Defendants did not follow notice-and-comment
rulemaking procedures” (id. ¶ 102).
18
Plaintiffs’ “Third Claim for Relief” invokes the Due Process Clause of the Fifth
Amendment to the U.S. Constitution. (Id. ¶¶ 104–108.) Plaintiffs allege that they have
a constitutionally “protected interest . . . in not being removed to countries where they
face serious danger, persecution, and potential loss of life” (id. ¶ 105), and that,
although the Due Process Clause entitles them to a “fair hearing of their claims, and a
meaningful opportunity to establish their potential eligibility for asylum and other
forms of relief from removal” (id. ¶ 106), the Lesson Plan violates those rights by
“subjecting [Plaintiffs’] claims to unlawful, more burdensome legal standards” (id.
¶ 107), and therefore should “be enjoined” (id. ¶ 108).
Based on these alternative grounds for relief, Plaintiffs seek various remedies
(see Am. Compl. at 26–27 (“Prayer for Relief”)), including: (1) a declaration that the
Lesson Plan, all related guidance documents, and all credible fear proceedings
undertaken pursuant to the Lesson Plan are not consistent with the INA (see id. ¶ 4);
(2) an order vacating the entire Lesson Plan and prospectively enjoining its use (see id.
¶¶ 5–6); (3) vacatur of any negative credible fear determinations and removal orders
issued to Plaintiffs, and injunctive relief to provide them with new credible fear
screenings or, in the alternative, to place them in full removal proceedings (see id. ¶¶ 3,
7); and (4) as to Plaintiffs Sofia and Julia, who were deported, injunctive relief to
either parole them into the United States and provide them new credible fear interviews
under the correct legal standards (see id. ¶ 7), or, alternatively, place them in full
removal proceedings (see id.).
19
2. The Parties’ Cross-Motions For Summary Judgment
Following this Court’s administrative stay of Plaintiffs Ana’s and Emma’s
removals (see Order, ECF No. 18), the parties agreed to file cross-motions for summary
judgment in lieu of separately briefing various jurisdictional issues that Defendants
intended to raise concerning these Plaintiffs’ request for a stay of removal (see Defs.’
Mot., ECF No. 31-1; Pls.’ Mot., ECF No. 36-1). The parties’ cross-motions ripened on
October 10, 2019. (See Defs.’ Reply, ECF No. 49; Pls.’ Reply, ECF No. 60.) 8
In their motion for summary judgment, which takes a kitchen-sink approach,
Defendants first raise a number of threshold arguments concerning Plaintiffs’ lack of
Article III standing and the Court’s lack of subject-matter jurisdiction over Plaintiffs’
claims. They argue, for example, that this Court “should dismiss the Amended
Complaint because no Plaintiff has standing to challenge the Lesson Plan.” (Defs.’
Mot. at 24.) They also maintain that “the INA precludes the Court from exercising
jurisdiction over this case[,]” because (1) “the Lesson Plan does not ‘implement’ the
expedited removal statute” for the purpose of section 1252(e)(3)(A)(ii) (id. at 30), or
(2) “the Lesson Plan is not a statute, regulation, policy directive, policy guideline, or
procedure” within the meaning of section 1252(e)(3)(A)(ii) (id. at 30–31), or (3) the
Lesson Plan does not meet the “jurisdictional requirement that these challenges be filed
‘no later than 60 days after the date the challenged [action] . . . is first implemented’”
(Defs.’ Reply at 17 (quoting 8 U.S.C. § 1252(e)(3)(B))). Over the course of multiple
8
In addition, on September 20 and 27, 2020, three organizations filed amicus briefs in support of
Plaintiffs’ position: the Advocates for Human Rights (see ECF No. 46); the National Citizenship and
Immigration Services Council 119 (see ECF No. 47); and the Tahirih Justice Center (see ECF No. 55).
The Immigration Reform Law Institute filed an amicus brief in support of Defendants on August 30,
2019. (See ECF No. 35.)
20
filings submitted over many months, Defendants have also pressed another independent
ground for dismissal: that the entire dispute is moot, because “Defendants have placed
[Kiakombua, Ana, and Emma] into full § 1229a removal proceedings by filing a ‘Notice
to Appear’” (Defs.’ Reply at 13; see also Defs.’ Status Update on Mootness (“Defs.’
Mootness Notice”), ECF No. 80, at 1–2), and because Sofia and Julia “have been
removed” (Defs.’ Mootness Notice at 4).
With respect to the merits of Plaintiffs’ claims, Defendants generally contend
that “the Lesson Plan is not actionable under either the APA or the INA[,]” because it is
nothing more than “a training module that agency instructors are supposed to use to
train asylum officers to correctly make credible fear determinations consistent with
applicable law.” (Defs.’ Mot. at 37.) Defendants further argue, more specifically, that
the Lesson Plan is not a “‘rule’ as defined in the APA” (id.); does not “impose
obligations or confer rights on anybody” (id.); has “no legal significance” (id.); and is
not “final” within the meaning of the APA, and is therefore not subject to APA review
(id.). Additionally, Defendants argue that Plaintiffs’ INA claim fails because the
Lesson Plan does not “misstate the immigration statutes and DHS’s own regulations”
(id. at 48) and, instead, “reasonably portrays asylum and CAT law” (id. at 51).
Furthermore, according to Defendants, while Plaintiffs’ “due process claim also fails on
the merits” (id. at 60), Plaintiffs have not satisfied the threshold requirement of
establishing that “the Lesson Plan falls short of the minimum constitutional procedures
[the immigration] statutes purport to provide” (id. at 59 (citation omitted)). Lastly,
Defendants maintain that, even if the Court agrees with Plaintiffs on the merits, the
Court “may only determine the Lesson Plan’s lawfulness, and lacks statutory authority
21
to enjoin or vacate the Lesson Plan or stay removals.” (Id. at 63; see also id. at 67
(arguing that, accordingly, “the Court should dissolve its earlier stay [of removal]
order”).)
Plaintiffs’ cross-motion for summary judgment argues that each Plaintiff has “the
personal stake necessary to establish standing” under Article III, because each has
received a negative credible fear determination, and because “all five had their
protection claims evaluated under the Lesson Plan” that is being challenged in this
action. (Pls.’ Mot. at 32.) Thus, Plaintiffs say that their injuries are “traceable” to the
Lesson Plan and can be remedied by the Court. (Id.) Plaintiffs also argue that this
Court has jurisdiction over their claims, either pursuant to the express terms of section
1252(e)(3) of the INA, or pursuant to section 1331 of Title 28, given that section 1252
“as a whole” does not strip the Court’s section 1331 jurisdiction in this context. (Id. at
30 (internal quotation marks and citation omitted).) Plaintiffs further reject
Defendants’ contention that their claims have become moot as “utterly meritless[.]”
(Pls.’ Resp. to Defs.’ Mootness Notice, ECF No. 82, at 1.) And as to the merits of their
claims, Plaintiffs contend that Defendants’ arguments for why “the Lesson Plan is
unreviewable” under the APA are all “red herrings” (Pls.’ Mot. at 36) and, in any event,
that the Court can set aside the Lesson Plan “on numerous independent grounds,”
including that: (1) “it is not consistent with the governing [immigration] statutes and
regulations” (id. at 39); (2) “it was revised in an arbitrary and capricious manner” and
(3) “it was required to, but did not, go through notice and comment rulemaking” (id.);
and (4) “it is not consistent with due process” (id.). Finally, in closing, Plaintiffs argue
22
that section 1252 “does not curtail this Court’s [traditional] authority to issue a [full]
remedy” in this case. (Id. at 63.)
The Court held a motions hearing on October 22, 2019 (see Minute Entry of Oct.
22, 2019), after which it ordered the parties to file supplemental briefs on the issue of
remedies, with a particular focus on whether the entire Lesson Plan had to be vacated if
Plaintiffs were successful or whether the allegedly unlawful provisions of the Lesson
Plan were severable from the remainder of the document. (See Pls.’ Suppl. Br. on
Severability, ECF No. 68; Defs.’ Suppl. Br. on Severability, ECF No. 69.) The Court
subsequently administratively stayed its consideration of the parties’ cross-motions and
supplemental briefs, pending the D.C. Circuit’s decision in Grace v. Barr (“Grace II”),
965 F.3d 883 (D.C. Cir. 2020). (See Minute Order of Mar. 5, 2020 (noting that Grace
II “present[ed] threshold issues concerning the meaning of various statutory terms”
under the INA, and “substantially similar questions of law arise in the context of the
present dispute”).) The D.C. Circuit released its opinion in Grace II on July 17, 2020,
after which this Court lifted its stay and ordered supplemental briefs on the impact of
Grace II with respect to the instant dispute. (See Minute Order of July 22, 2020; see
also Defs.’ Suppl. Brief Regarding Grace v. Barr (“Defs.’ Grace Brief”), ECF No. 72;
Pls.’ Suppl. Brief Regarding Grace (“Pls.’ Grace Brief”), ECF No. 76; Pls.’ Suppl.
Responsive Brief Regarding Grace (“Pls.’ Grace Reply”), ECF No. 77; Defs.’ Reply
Suppl. Brief Regarding Grace v. Barr (“Defs.’ Grace Reply”), ECF No. 78.) The
parties’ cross-motions for summary judgment are now ripe for decision.
23
III. LEGAL STANDARDS
Although Defendants’ motion is formally styled as a motion for summary
judgment (see Defs.’ Mot. at 1), Defendants vigorously contend, as threshold matter,
that “the Court lacks jurisdiction over this case and should dismiss it” (id. at 36).
Consequently, Defendants’ cross-motion is best construed as a motion to dismiss for
lack of subject-matter jurisdiction under Rule 12(b)(1) or, in the alternative, a motion
for summary judgment under Rule 56(a). See, e.g., Kirkham v. Société Air France, 429
F.3d 288, 291 (D.C. Cir. 2005); see also 10A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2713 (4th ed. 2020) (“[T]he label
attached to the motion should not prevent the court from deciding a summary-judgment
motion challenging the court’s subject-matter jurisdiction as a suggestion that the court
dismiss the action on that ground.”). Thus, the legal standards for both Rule 12(b)(1)
motions to dismiss and Rule 56 motions for summary judgment apply in the instant
circumstances.
A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1)—which authorizes a party to challenge
by motion the “lack of subject-matter jurisdiction[,]” Fed. R. Civ. P. 12(b)(1)—
“imposes on the court an affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority[,]” Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). “The requirement that jurisdiction be
established as a threshold matter springs from the nature and limits of the judicial
power of the United States and is inflexible and without exception.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (internal quotation marks and
24
alterations omitted); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (explaining that “[f]ederal courts are courts of limited jurisdiction” and,
thus, “possess only that power authorized by Constitution and statute”).
The doctrines of standing, mootness, and ripeness are “[t]hree inter-related”
doctrines that determine the “constitutional boundaries” of a court’s jurisdiction. Worth
v. Jackson, 451 F.3d 854, 855, 857 (D.C. Cir. 2006). Indeed, “the defect of standing is
a defect in subject matter jurisdiction[,]” Haase v. Sessions, 835 F.2d 902, 906 (D.C.
Cir. 1987), and so, too, is a motion to dismiss for mootness “properly brought under
Federal Rule of Civil Procedure 12(b)(1)[,]” Friends of Animals v. Salazar, 670 F.
Supp. 2d 7, 11 (D.D.C. 2009). Likewise, because a court’s subject-matter jurisdiction
is “a statutory requirement[,]” Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003) (internal quotation marks and citation omitted), “congressional
preclusion of judicial review is in effect jurisdictional” as well, Block v. Cmty.
Nutrition Inst., 467 U.S. 340, 353 n.4 (1984).
When ruling on a Rule 12(b)(1) motion, a court must “treat the complaint’s
factual allegations as true” and afford the plaintiff “the benefit of all inferences that can
be derived from the facts alleged.” Delta Air Lines, Inc. v. Exp.-Imp. Bank of U.S., 85
F. Supp. 3d 250, 259 (D.D.C. 2015) (internal quotation marks and citation omitted).
However, those factual allegations receive “closer scrutiny” than they would in the Rule
12(b)(6) context. Id. (internal quotation marks and citation omitted). Moreover, unlike
a Rule 12(b)(6) motion, the court may look to documents outside of the complaint in
order to evaluate whether or not it has jurisdiction to entertain a claim. See Jerome
Stevens Pharms., Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir. 2005). If the court
25
determines that the plaintiff lacks standing, or a claim is moot because it no longer
presents a live controversy, or the court has no statutory jurisdiction, then the court
lacks subject-matter jurisdiction to entertain the claim and must dismiss it. See Fed. R.
Civ. P. 12(b)(1), (h)(3).
B. Rule 56 Motions For Summary Judgment With Respect To Legal
Claims That Assail Agency Action Under The APA And Otherwise
Pursuant to Federal Rule of Civil Procedure 56, if a case raises “no genuine
dispute as to any material fact[,]” courts will ordinarily enter summary judgment in
favor of the party that “is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). And if both parties file cross-motions for summary judgment concerning issues
that “are purely legal in nature[,]” then “the entry of summary judgment for the party
entitled to prevail as a matter of law is appropriate.” Teva Pharms., Indus., Ltd. v.
F.D.A., 355 F. Supp. 2d 111, 116 (D.D.C. 2004), aff’d, 410 F.3d 51 (D.C. Cir. 2005).
But see Barr Labs., Inc. v. Thompson, 238 F. Supp. 2d 236, 244 (D.D.C. 2002)
(explaining, with respect to cross-motions for summary judgment, that “the court shall
grant summary judgment only if one of the moving parties is entitled to judgment as a
matter of law upon material facts that are not genuinely disputed”).
Notably, with respect to cross-motions for summary judgment concerning legal
claims that challenge agency action under the APA, the respective duties of the agency
and the court are well established: “it is the role of the agency to resolve factual issues
to arrive at a decision that is supported by the administrative record, whereas the
function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.”
Catholic Health Initiatives v. Sebelius, 658 F. Supp. 2d 113, 117 (D.D.C. 2009)
26
(internal quotation marks and citations omitted). However, if a plaintiff alleges that an
agency has engaged in conduct that directly contravenes a substantive statute that has a
cause of action for that violation—such as claims brought under section 1252(e)(3) of
the INA for agency conduct that is “not consistent with applicable provisions of this
subchapter [of the INA] or is otherwise in violation of law,” 8 U.S.C.
§ 1252(e)(3)(A)(ii)—“the Court is not limited to the administrative record in
conducting its legal analysis[,]” and “must take into account relevant legal authority,
including statutes, regulations, and agency authority[,]” Nio v. Dep’t of Homeland Sec.,
385 F. Supp. 3d 44, 59 (D.D.C. 2019). Those legal authorities are binding on both the
court and the agency, and the court will analyze them to determine which party, if any,
is entitled to judgment as a matter of law with respect to the plaintiff’s challenge to the
agency’s administrative action.
IV. ANALYSIS
The central question at issue in the instant case is whether the Lesson Plan’s
various pronouncements concerning the manner in which USCIS asylum officers are to
make credible fear determinations are irreconcilable with the statutory and regulatory
provisions that govern those screenings (see Am. Compl. ¶¶ 89–98) or, alternatively,
whether USCIS has violated other procedural or constitutional requirements (see id.
¶¶ 99–108) with respect to the Lesson Plan’s promulgation or its contents. As now
happens with fair frequency, Defendants have presented a slew of arguments concerning
various potential threshold impediments to the Court’s consideration of the merits of
Plaintiffs’ legal claims (see generally Defs.’ Mot. at 24–36)—sometimes all within a
27
single paragraph. 9 The Court’s evaluation of these sometimes conflated contentions has
required a methodical analysis of myriad legal issues, some of which the D.C. Circuit
has recently considered as well.
Ultimately, as explained below, the Court has determined that each of
Defendants’ threshold arguments fails, and that several provisions of the Lesson Plan
are patently at odds with the credible fear screening scheme that Congress has crafted.
Notably this fundamental flaw in the agency’s training materials manifests itself in
various ways—e.g., at times, USCIS has imported the standards and burdens that apply
only during full removal proceedings into the expedited removal screening process; at
other times, the agency makes pronouncements about the law that clash with the
applicable provisions of the INA itself. And because the unlawful provisions of the
Lesson Plan cannot be effectively severed from the remainder of the document, the
Court will exercise its standard equitable authority to vacate the entire Lesson Plan and
require USCIS to make new credible fear determinations with respect to each Plaintiff.
9
Defendants’ “Status Update on Mootness” (ECF No. 80) provides but one example of this muddled
approach. In a document that purports to address the mootness of Plaintiffs’ claims, Defendants write:
The claims of the remaining two Plaintiffs, Sofia and Julia, are also moot because
they have been removed, as Defendants have already explained. Additionally, Sofia
and Julia no longer have standing separately for each claim she seeks to press and
for form of relief sought. Sofia and Julia still need to have a live controversy as to
them—i.e., that their alleged injuries would be cured by the Court vacating their
credible fear determinations and ordering a new credible fear determination, based
on one or more out of the nine challenged provisions being unlawful as applied to
them. As previously explained, Sofia and Julia cannot identify what parts of the
operative Lesson Plan will be applied to them, nor can they establish that they have
a likelihood of receiving a negative credible fear determination from USCIS or from
an immigration judge not following the Lesson Plan. Their claims are moot, and to
the extent they are not, relief must be limited to the injuries Sofia and Julia can
show (e.g., which of the nine challenged Lesson Plan provisions are injuring them).
(Defs.’ Mootness Notice at 4–5 (internal quotation marks, citations, and alterations omitted).) Each of
these myriad assertions must be untangled from the others before it can be properly analyzed.
28
A. Plaintiffs Have Article III Standing To Challenge The Lesson Plan,
And Defendants Have Not Established That Plaintiffs’ Claims Are
Moot
1. Plaintiffs Suffered An Injury In Fact, Which Is Fairly Traceable To
The Lesson Plan, And May Be Redressed By An Order Vacating
The Lesson Plan And Requiring New Credible Fear Determinations
Defendants’ opening salvo is the contention that “no Plaintiff has standing to
challenge the Lesson Plan.” (Defs.’ Mot. at 24.) Thus, the Court begins by assessing
whether any Plaintiff has, in fact, demonstrated the “irreducible constitutional
minimum” circumstances necessary to invoke a federal court’s subject-matter
jurisdiction over a lawsuit, Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(internal quotation marks and citation omitted), which consist of three elements: injury
in fact, causation, and redressability, see Dominguez v. UAL Corp., 666 F.3d 1359,
1362 (D.C. Cir. 2012); see also J.D. v. Azar, 925 F.3d 1291, 1323–24 (D.C. Cir. 2019)
(“It is settled that in a case involving joined, individual plaintiffs bringing a shared
claim seeking a single remedy, Article III’s case-or-controversy requirement is satisfied
if one plaintiff can establish injury and standing.” (internal citation omitted)). As
further explained below, Plaintiffs are asylum seekers who underwent credible fear
interviews and who maintain that USCIS evaluators applied the unlawful provisions
contained in the Lesson Plan to determine that each Plaintiff lacked a credible fear.
Therefore, it is clear to this Court that Plaintiffs have suffered an injury in fact that is
fairly traceable to the challenged Lesson Plan and that is likely to be redressed by a
favorable ruling of this Court.
To start, there is no serious dispute that these Plaintiffs—who, again, allege that
USCIS officers evaluated their asylum requests pursuant to unlawful Lesson Plan
29
provisions, after which each Plaintiff was slated for expedited removal from the United
States based upon the officers’ negative credible fear determinations—have adequately
identified an injury in fact. This is because it is well established that a plaintiff has
standing to bring a claim concerning a procedural injury if she can show that the agency
failed to abide by a procedural requirement that was “designed to protect some
threatened concrete interest” of the plaintiff. Lujan v. Defs. of Wildlife, 504 U.S. 555,
573 n.8 (1992); see also, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14
(1978) (concluding that an applicant for admission had standing to challenge a
university’s affirmative action admissions program even though the applicant “had been
unable to prove that he would have been admitted in the absence of the [challenged]
program”); Grace v. Whitaker (“Grace I”), 344 F. Supp. 3d 96, 119 (D.D.C. 2018),
aff’d in relevant part, Grace II, 965 F.3d 883 (holding that plaintiffs had suffered an
injury in fact because they alleged that new “credible fear policies impermissibly raise
their burden and deny plaintiffs a fair opportunity to seek asylum and escape the
persecution they have suffered”). 10
Consequently, Defendants’ primary arguments with respect to Article III
standing are that these Plaintiffs’ alleged procedural injuries are not fairly traceable to
the Lesson Plan, and that, in any event, an order from this Court vacating the Lesson
Plan and requiring USCIS to undertake new credible fear determinations for these
Plaintiffs would not actually redress those injuries. (See Defs.’ Mot. at 27–29; see also
10
Defendants’ contention that Plaintiffs Kiakombua and Emma do not have an injury in fact because,
sometime after the complaint was filed, the agency revisited and/or vacated the negative credible fear
determination (see Defs.’ Mot. at 25–26) sounds in mootness, not Article III standing. Thus, it is
addressed in Section IV.A.2, infra.
30
Defs.’ Reply at 10–12.). On the traceability front, Defendants attempt to assail the
factual basis for Plaintiffs’ claim that it was the Lesson Plan that caused Plaintiffs’
alleged injuries; in this regard, Defendants argue that “Plaintiffs have produced zero
evidence that the Lesson Plan, and the new standards it allegedly pronounced, played
any role in Plaintiffs’ negative credible fear determinations.” (Defs.’s Mot. at 27.) But
“[a] plaintiff who alleges a deprivation of a procedural protection to which he is
entitled never has to prove that if he had received the [proper] procedure the substantive
result would have been altered.” Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89,
94 (D.C. Cir. 2002). Instead, “[a]ll that is necessary is to show that the procedural step
was connected to the substantive result.” Id. at 95 (emphasis added). And, here, there
is ample record evidence that connects the allegedly unlawful Lesson Plan provisions to
the credible fear determinations that the agency rendered with respect to each Plaintiff.
For one thing, it is clear that the April 2019 Lesson Plan was binding guidance
for USCIS asylum officers at the time that Plaintiffs’ interviews were conducted. Cf.
Fed. Forest Res. Coal. v. Vilsack, 100 F. Supp. 3d 21, 35 (D.D.C. 2015). Indeed, the
April 2019 Lesson Plan became effective on April 30, 2019 (see Lesson Plan at 2), and
Plaintiffs’ credible fear determinations took place between May and June of 2019 (see
Am. Compl., ¶¶ 8, 14, 21, 23, 25, 27). Moreover, according to DHS, when making
credible fear assessments, “Asylum Officers must continue to refer to the latest
applicable RAIO Lesson Plans for the most recent guidance on determining asylum
eligibility.” (Ex. 3 to Admin. Record, ECF No. 61-3, at 3.) Plaintiffs have also offered
the sworn declaration of a retired USCIS supervisory asylum officer as proof that the
officers do, in fact, reference the Lesson Plan when making credible fear
31
determinations; the declarant explains that the agency “requires” officers to follow the
Lesson Plan, and that USCIS uses it not only as a training material but also for
disciplinary purposes. (Ex. B to Pls.’ Mot., ECF No. 36-3, at 76–78.) Internal
memoranda from DHS further reveal that USCIS performs a quality assurance “review
of [credible fear] determinations based on the revised lesson plan[.]” (Ex. 28 to
Admin. Record, ECF No. 61-25, at 3 (emphasis added).) Thus, the Court finds that the
record evidence is sufficient to show that the challenged version of the Lesson Plan was
in effect at the time that Plaintiffs’ credible fear determinations were made, and that the
Lesson Plan’s prescriptions are binding on USCIS asylum officers, who use them to
determine whether asylum seekers have a credible fear as is necessary to establish their
asylum eligibility. Accordingly, Plaintiffs have demonstrated the requisite connection
between the Lesson Plan and their alleged harm, and have therefore established
traceability for the purpose of the Article III standing inquiry. See Mendoza v. Perez,
754 F.3d 1002, 1012 (D.C. Cir. 2014) (explaining that a plaintiff “need not show the
agency action would have been different had it been consummated in a procedurally
valid manner—the courts will assume this portion of the causal link”).
Defendants’ redressability argument is likewise unavailing. Again, Plaintiffs are
not asking the Court to require “DHS [to] reach any particular decision” about their
credible fear of persecution or torture; instead, they are merely requesting that this
Court order that the agency afford the procedures and “the consideration that they are
due under the statute.” Ramirez v. I.C.E., 338 F. Supp. 3d 1, 31 (D.D.C. 2018).
Defendants argue nevertheless that Plaintiffs’ alleged injury is not redressable, because
even if the Court requires USCIS asylum officers to evaluate Plaintiffs’ asylum
32
eligibility without reference to the allegedly tainted Lesson Plan provisions, such an
order does not pertain to the immigration judge’s subsequent review of the asylum
officer’s determination, and thus addresses “only one of two government actions that
both independently produce the same alleged harm.” Kaspersky Lab, Inc. v. Dep’t of
Homeland Sec., 311 F. Supp. 3d 187, 219 (D.D.C. 2018). (See also Defs.’ Mot. at 29
(emphasizing that “it was the Immigration Judge—not a USCIS asylum officer—who
made the ultimate call on whether each Plaintiff had a negative credible fear of
persecution or torture”).) In so arguing, Defendants once again misconstrue the
relevant injury, which is not the substantive determination regarding each Plaintiff’s
lack of a credible fear, but the asylum officer’s application of the allegedly unlawful
Lesson Plan when each Plaintiff’s credible fear determination was made. See Ctr. for
Biological Diversity v. E.P.A., 861 F.3d 174, 184–85 (D.C. Cir. 2017). And that harm
occurred at the point in which the asylum officer referenced the allegedly unlawful
Lesson Plan provisions, so it would be fully redressed by a court order that requires
new credible fear interviews for these Plaintiffs conducted by officers who do not rely
upon such allegedly unlawful standards when Plaintiffs’ asylum eligibility is assessed. 11
11
It is also worth noting that, under the current statutory scheme, the asylum officer’s adverse credible
fear finding and the immigration judge’s affirmance of that finding are not wholly independent: the
immigration judge’s review occurs only after an asylum officer has made a negative credible fear
finding, and that review is based primarily, if not exclusively, on the “record of the [asylum officer’s]
negative credible fear determination[.]” 8 C.F.R. § 1208.30(g)(2)(ii). Congress also intended for this
“de novo” review by the immigration judge to be quite cursory—i.e., “[it] is meant to conclude within
24 hours” of the adverse credible fear finding, MTRNY II, 962 F.3d at 619—such that, in practice, the
review amounts to “simply check[ing] a box on a form stating that the immigration officer’s decision
was ‘Affirmed[,]’” Thuraissigiam v. Dep’t of Homeland Sec., 917 F.3d 1097, 1118 (9th Cir. 2019),
rev’d on other grounds, 140 S. Ct. 1959 (2020). Thus, even if the relevant harm was Plaintiffs’
negative credible fear determinations, the interdependent nature of the initial adverse finding and the
immigration judge’s review means that the latter cannot be reasonably construed as a separate,
intervening cause of that injury.
33
In short, if Plaintiffs’ claim that the USCIS asylum officers who undertook to
determine whether they each had a credible fear of persecution or torture could not
lawfully reference the Lesson Plan when making that determination—as the Court must
assume for the purpose of evaluating standing, see City of Waukesha v. E.P.A., 320 F.3d
228, 235 (D.C. Cir. 2003)—then these Plaintiffs (to whom the Lesson Plan was applied
with respect to the adverse credible fear determination that each asylum officer made)
have established a procedural injury in fact that is fairly traceable to the challenged
agency action, and which an order of this Court could potentially redress.
2. Defendants Have Not Persuasively Demonstrated Mootness
In the realm of threshold jurisdictional contentions, Defendants also insist that
subsequent developments with respect to each Plaintiff have mooted all of the claims
that appear in Plaintiffs’ complaint. (See Defs.’ Reply at 12; see also Defs.’ Mootness
Notice at 1.) To hear Defendants tell it, “the challenged Lesson Plan is no longer
causing” Plaintiffs Kiakombua, Emma, and Ana “any legally cognizable injury[,]”
because they have “each received the relief they requested” (Defs.’ Reply at 12–13; see
also Defs.’ Mootness Notice at 1–4) insofar as USCIS has placed them “into full
§ 1229a removal proceedings by filing a Notice to Appear” (Defs.’ Reply at 13 (internal
quotation marks and citation omitted)). At the other end of the spectrum, Defendants
argue that, because Julia and Sofia “have [already] been removed” from the United
States, the consequences of the allegedly tainted adverse credible fear determination
have already played out with respect to them, rendering their legal claims moot. (Defs.’
Mootness Notice at 4.) Notably, it is Defendants’ “heavy burden” to show that there is
no longer any case or controversy with respect to a plaintiff’s claims, Honeywell Int’l,
34
Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (internal quotation
marks and citation omitted), and the Supreme Court has made clear that, “[a]s long as
the parties have a concrete interest, however small, in the outcome of the litigation, the
case is not moot[,]” Chafin v. Chafin, 568 U.S. 165, 172 (2013). This Court finds that
Defendants have not carried the heavy burden of establishing mootness, for the
following reasons.
First of all, Defendants have not demonstrated that Kiakombua, Emma, and Ana
have actually been placed into full removal proceedings. The relevant statutory and
regulatory provisions plainly establish not only that “[e]very removal proceeding . . . is
commenced by the filing of a notice to appear with the immigration court[,]” 8 C.F.R.
§ 1239.1(a), but also that notice of “the time, place, and date of [the] hearing” must be
given to the noncitizen before the commencement of removal proceedings, 8 C.F.R.
§ 1003.18(b); see also 8 U.S.C. § 1229(a)(1) (stating that, “[i]n removal proceedings
under section 1229a . . . , written notice (in this section referred to as a ‘notice to
appear’) shall be given in person to the alien . . . specifying . . . [t]he time and place at
which the proceedings will be held”). Yet, the Notices to Appear that Defendants have
provided to this Court do not contain a time or a date for Plaintiffs’ removal hearings,
and only Kiakombua’s and Ana’s Notices to Appear have been filed with the
immigration court. (See Kiakombua NTA at 2; Ana’s NTA at 2; Emma’s NTA at 2.) In
other contexts, the Supreme Court has made clear that, “[i]f the three words ‘notice to
appear’ mean anything . . . , they must mean that, at a minimum, the Government has to
provide noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would
enable them ‘to appear’ at the removal hearing in the first place.” Pereira v. Sessions,
35
138 S. Ct. 2105, 2115 (2018). Thus, a Notice to Appear that is incapable of triggering
the initiation of a removal proceeding—such as the ones provided to Plaintiffs
Kiakombua, Ana, and Emma—do not suffice to establish that these Plaintiffs are
presently in full removal proceedings within the meaning of the INA, such that their
claims have become moot.
The cases that Defendants rely upon to support their mootness assertion with
respect to these Plaintiffs are non-binding precedents from other jurisdictions and are
also wholly inapposite. In Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), for
example, the Fifth Circuit held that a noncitizen could not challenge the immigration
judge’s jurisdiction on appeal on the grounds that a statutorily defective Notice to
Appear had been filed with the immigration court. Although the panel held that, under
the applicable regulations, a Notice to Appear that lacks time-and-place information
may be sufficient to vest jurisdiction in the immigration court, see id. at 689–90, that
holding says nothing about whether, per the INA and its implementing regulations, the
agency must provide notice of the time and place of the full removal hearing and file
that notice with the immigration court in order for a noncitizen to be deemed to have
been placed in full removal proceedings, see 8 C.F.R. §§ 1003.18(b), 1239.1. And,
indeed, “Congress’s decision to nest ‘service’ of an NTA under ‘[i]nitiation of removal
proceedings’ suggests . . . that Congress intended for service” of a statutorily compliant
Notice to Appear “to operate as the point of commencement for removal proceedings.”
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1154 (11th Cir. 2019). And “the
agency [is] not free to redefine the point of commencement[,]” id., because “[i]f
Congress has defined a term, then an implementing regulation cannot re-define that
36
term in a conflicting way[,]” Ortiz-Santiago v. Barr, 924 F.3d 956, 961 (7th Cir. 2019).
Even if one assumes that the statutorily defective Notices to Appear that were
issued to Kiakombua, Ana, and Emma after commencement of the instant case were
sufficient to trigger full removal proceedings for these Plaintiffs, it is not at all clear
that the legal claims concerning the Lesson Plan have been mooted as a result. See O.A.
v. Trump, 404 F. Supp. 3d 109, 139–40 (D.D.C. 2019) (holding that the issuance of a
Notice to Appear after a complaint has been filed does not moot a plaintiff’s section
1252(e)(3) challenge). If there is any possibility that the prior adverse credible fear
determination could be used to thwart Plaintiffs’ efforts to obtain full consideration of
their asylum applications, then their claims are not moot, and, here, the credible fear
findings appear to remain a part of each Plaintiff’s record. (See Ex. 8 to Admin.
Record, ECF No. 61-8, at 19–20 (explaining that USCIS maintains “A-files of detained
aliens[,]” which include the asylum officer’s “Interview Notes—non-Q&A and Q&A
format, both handwritten and typed[,]” “Comments . . . regarding negative credible fear
determination[,]” and a “Memo of Adverse Information, if any.”); Ex. 11 to Admin.
Record, ECF No. 61-10, at 3 (showing that, as part of USCIS’s “Record of
Determination/Credible Fear Worksheet” (Form I-870), asylum officers inform
noncitizens that “[t]he statements [they] make today [at the credible fear interview] may
be used in deciding [their] claim and in any future immigration proceedings”).) The
Court also agrees with Plaintiffs’ argument that, by focusing exclusively on the
purported limitations on USCIS’s ability to switch these Plaintiffs’ statuses unilaterally
at this point in the process (without making any similar representations concerning the
power of any other defendant-agency to do so (see Defs.’ Mootness Notice at 3; Defs.’
37
Reply at 14)), “Defendants have failed to carry their burden of proving that there is no
possibility that the women could be returned to expedited removal” (Pls.’ Reply at 16).
Cf. United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953) (holding that such a
disclaimer “does not suffice to make a case moot although it is one of the factors to be
considered”).
Furthermore, to be clear: it is not Plaintiffs’ responsibility to establish a non-
speculative possibility of their being returned to expedited removal status, as
Defendants suggest. (See Defs.’ Mootness Notice at 3.) Rather, “a court may not
conclude that a defendant’s voluntary cessation of disputed conduct renders a case moot
unless the party urging mootness demonstrates[,]” among other things, that it is
“absolutely clear that the allegedly wrongful behavior could not reasonably be expected
to recur.” Zukerman v. U.S.P.S., 961 F.3d 431, 442–46 (D.C. Cir. 2020) (emphasis
added) (internal quotation marks and citation omitted); see also Hardaway v. D.C.
Hous. Auth., 843 F.3d 973, 980 (D.C. Cir. 2016) (rejecting the “tactic” of “attempting
to foist [the] burden onto” plaintiffs to establish that a case is not moot). And not only
have Defendants failed to make such showing under the instant circumstances, but
Plaintiffs’ counsel avers that there have, in fact, been instances where “DHS has taken
individuals in § 1229a proceedings and put them in expedited removal[.]” (Pls.’ Resp.
to Defs.’ Mootness Notice at 3.) Therefore, this Court concludes that Defendants have
failed to show that the claims Kiakombua, Ana, and Emma have brought are now moot.
Defendants’ argument that Sofia’s and Julia’s removals from the United States
have mooted their legal claims is even less persuasive. The D.C. Circuit permits the
continuation of similar challenges by noncitizens whom the government has already
38
removed. See, e.g., Am. Immigr. Laws. Ass’n v. Reno (“AILA II”), 199 F.3d 1352, 1363
(D.C. Cir. 2000) (noting that, “[w]hen an alien returned to his native country, nothing
prevented him from bringing suit here” under section 1252(e)(3) of the INA).
Moreover, this Court has little doubt that it could grant Sofia and Julia effective relief
notwithstanding the fact that they have been returned to their home countries; for
instance, the Court could order “the government to return to the United States the
plaintiffs who were unlawfully deported and to provide them with new credible fear
determinations consistent with the immigration laws.” Grace I, 344 F. Supp. 3d at 105,
aff’d in relevant part, Grace II, 965 F.3d at 909. It is also clear that the Court’s alleged
lack of authority to issue the requested relief does not render a legal claim moot. The
scope of relief “goes to the meaning of the [applicable statute] and the legal availability
of a certain kind of relief[,]” and it “confuses mootness with the merits” to argue that
the case no longer presents a live controversy because the court does not have the
authority to grant the requested relief. Chafin, 568 U.S. at 174.
Finally, this Court notes that moving a noncitizen from expedited removal to full
removal proceedings does not necessarily portend dismissal (on mootness grounds) of a
noncitizen’s challenge to expedited removal procedures. In the immigration context,
courts have consistently recognized the compelling concern that an agency whose
removal practices are challenged in court can effectively insulate itself from judicial
review by acting quickly to issue Notices to Appear or to expedite removal, and then
arguing that the court thereby lacks jurisdiction over those plaintiffs’ legal claims. See
O.A., 404 F. Supp. 3d at 140 (rejecting the argument that the court “would lose
jurisdiction under § 1252(e)(3) if the government moves the plaintiff from expedited to
39
full removal proceedings—up to the moment the Court enters final judgment”—because
“[t]hat reading of the statute would attribute to Congress an intent to empower the
government to avoid an unfavorable decision at any time,” and “[c]onsidered against
the backdrop of the usual rule, which fixes statutory jurisdiction at the time the
complaint is filed, that contention is a step too far”). In any event, at a minimum, this
concern raises the specter of a standard exception to mootness: the “capable of
repetition yet evading review” doctrine. Del Monte Fresh Produce Co. v. United States,
570 F.3d 316, 322 (D.C. Cir. 2009) (internal quotation marks and alterations omitted).
As Plaintiffs note (see Pls.’ Resp. to Defs.’ Mootness Notice at 7 n.6), Defendants
issued Notices to Appear to Kiakombua first, and then to Ana and Emma, within days
of learning about this lawsuit, presumably in an effort to moot their claims, which is
precisely what the “capable of repetition yet evading review” exception seeks to avoid.
See Del Monte, 570 F.3d at 322 (holding that a plaintiff may avoid dismissal by
demonstrating that “(1) the challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there is a reasonable expectation
that the same complaining party would be subjected to the same action again” (internal
quotation marks, citation, and alteration omitted)).
B. This Court Has Subject-Matter Jurisdiction To Review Agency Action
That Allegedly Violates Provisions Of The INA
The final threshold disagreement between the parties in this case centers around
the scope and meaning of section 1252 of Title 8 of the United States Code, and the
extent to which that statutory provision preserves, or eliminates, this Court’s subject-
matter jurisdiction over Plaintiffs’ claims concerning the Lesson Plan. Plaintiffs
maintain that “[t]he Lesson Plan is reviewable under the plain text of 8 U.S.C.
40
§ 1252(e)(3)[,]” which “expressly authorize[s] judicial review of ‘Challenges on the
validity of the [expedited removal] system’” and, in particular, challenges to written
regulations, policy directives, or guidelines that “implement” the expedited removal
statute (Pls.’ Mot. at 23); according to Plaintiffs, this grant of authority plainly
encompasses “[judicial] review of a written policy and procedure (the Lesson Plan)
issued by the Secretary of Homeland Security (through its component USCIS) to
implement” the asylum aspect of the expedited removal scheme (id. at 23–24).
Defendants respond that, while the Court might otherwise have had subject-matter
jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331, “the INA precludes the
Court from exercising jurisdiction over this case” precisely because Plaintiffs’ claims
concern the agency’s practices with respect to screening individuals for expedited
removal. (Defs.’ Mot. at 30.) In this regard, Defendants point to the fact that the INA
(specifically, 8 U.S.C. § 1252(a)(2)(A)) “bars district-court jurisdiction in cases
involving orders of expedited removal, other than as permitted by section 1252(e)”—a
subdivision that Defendants read as authorizing “review only of regulations and written
policies that establish the structure and procedures for the expedited removal system.”
(Id. (emphasis added)). In other words, in Defendants’ view, section 1252(e) is the
only potential basis for the exercise of this Court’s subject-matter jurisdiction over
Plaintiffs’ claims in light of section 1252(a)(2)(A), and the Court lacks jurisdiction
under section 1252(e)(3) because the Lesson Plan “does not ‘implement’ the expedited
removal statute[.]” (Id. at 30–31.) Defendants further maintain that the Lesson Plan
does not satisfy section 1252(e) because it “is not a . . . regulation, policy directive,
policy guideline, or procedure” and “Plaintiffs’ credible fear findings are not
41
reviewable expedited-removal ‘determinations’” (id.), and, regardless, Plaintiffs have
brought these claims more than 60 days after the alleged implementation of the
challenged instructions (see Defs.’ Reply at 17).
Defendants are correct to observe, at the outset, that section 1252 plainly
expresses Congress’s intention to strip federal courts of jurisdiction over the expedited
removal process “except as provided in subsection (e)[.]” 8 U.S.C. § 1252(a)(2)(A)
(emphasis added). As relevant here, subsection (e) of section 1252 states:
(e) Judicial review of orders under section 1225(b)(1)
...
(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under section 1225(b) of this
title and its implementation is available in an action instituted
in the United States District Court for the District of Columbia,
but shall be limited to determinations of—
(i) whether such section, or any regulation issued to
implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy directive,
written policy guideline, or 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 described in
clause (i) or (ii) of subparagraph (A) is first implemented.
Id. § 1252(e)(3)(A)–(B). However, as explained below, Defendants’ contentions about
the effect of section 1252(e) with respect to the scope of this Court’s subject-matter
jurisdiction miss the mark, and this is especially so in light of intervening D.C. Circuit
42
case law that illuminates the contours of section 1252(e)(3). In sum, this Court
maintains its view that 28 U.S.C. § 1331 provides subject-matter jurisdiction over
Plaintiffs’ claims, see Make the Rd. N.Y. v. McAleenan (“MTRNY I”), 405 F. Supp. 3d
1, 26–27 (D.D.C. 2019), aff’d in relevant part, MTRNY II, 962 F.3d at 624–25, and that
section 1252 of Title 8 does not strip federal courts of jurisdiction where, as here, the
claims at issue concern a written policy directive, guideline, or procedure that
implements the statutory expedited removal process, and are brought no later than 60
days after the agency promulgates the challenged policy or procedure.
1. Section 1252(e)(3)(A) Of The INA Preserves This Court’s Subject-
Matter Jurisdiction Under 28 U.S.C. § 1331 In These
Circumstances
The scope and purpose of the judicial review that the text of section 1252(e)(3)
expressly preserves is addressed in the legislative history of the provision. Senator
Orin Hatch explained that “[i]t was very important to [the drafters] that there be judicial
review of the implementation of the[] provisions” of the INA concerning expedited
removals, because, “[a]lthough review should be expedited, the INS and the Department
of Justice should not be insulated from review.” 142 Cong. Rec. S11,491 (daily ed.
Sept. 27, 1996) (statement of Sen. Hatch). In this regard, the D.C. Circuit has recently
held (not once but twice) that, “although much of section 1252 limits and channels
judicial relief directly into the federal appellate courts or habeas corpus proceedings,
subsection (e)(3) expressly provides in the expedited removal context for more
traditional judicial review of challenges on validity of the system, including agency
policies governing credible-fear interviews.” Grace II, 965 F.3d at 891 (internal
quotation marks, citations, and alterations omitted); see also MTRNY II, 962 F.3d at
43
625. Thus, whether section 1252(e)(3) is interpreted as a jurisdiction-granting
provision, see id. at 630, or as a provision that preserves the pre-existing jurisdiction of
the Court in the context of the INA’s other jurisdiction-stripping provisions, see id. at
624–25, it is clear that, per the language of section 1252(e)(3), this Court has
jurisdiction to review the kinds of agency actions and legal challenges that that
particular subdivision addresses, see id. at 624–30.
Of course, Defendants contend that Plaintiffs’ challenges to the Lesson Plan do
not fit within section 1252(e)(3)(A)’s prescribed judicial-review authorization, because
the Lesson Plan is not a “written policy directive, written policy guideline, or written
procedure” that “implement[s]” the expedited removal system that section 1225(b)
establishes. (See Defs.’ Mot. at 30–36.) This argument has little force, however, both
because of the plain language of section 1252(e)(3) and also due to the D.C. Circuit’s
reasoning in a recent binding opinion in Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020).
Grace involved a challenge to “a host of executive-branch policies adopted to
implement the expedited-removal provisions” of the INA, including a ruling by the
Attorney General and a guidance document that USCIS issued concerning that
adjudication. Grace II, 965 F.3d at 887, 889–90 (addressing Matter of A-B-, 27 I. & N.
Dec. 316, 321 (A.G. 2018), wherein the Attorney General had laid out new policies
concerning asylum claims based on persecution by non-state actors on account of an
applicant’s membership in a particular social group). With respect to the Attorney
General’s ruling, the D.C. Circuit held that A-B- qualified as an “implementation” of
section 1225(b) within the meaning of section 1252(e)(3), because A-B- “expressly
references the credible-fear standard and asylum officers’ role in implementing the
44
expedited-removal system[,]” and its “overarching purpose, moreover, is to interpret
section 1158’s phrase ‘membership in a particular social group,’ which Congress
incorporated into section 1225(b)[.]” Id. at 895. The D.C. Circuit panel also concluded
that A-B- qualified as a “written policy directive” or “written policy guideline” under
section 1252(e)(3), because “agencies can and do announce new policies in
adjudications[,]” especially in the immigration context, and if “the Attorney General
could immunize credible-fear policies from judicial review by simply announcing them
in section 1229a adjudications[,]” that “result would conflict with section 1252(e)(3)’s
purpose” and text. Id. The D.C. Circuit further held that the related USCIS guidance
document was a “written policy directive” or “guideline” that implements section
1225(b), because the document cited to section 1225(b), “describe[d] itself as a ‘policy
memorandum’ that ‘provides guidance’ to USCIS officers[,]” and “instruct[ed] ‘all
USCIS employees’ on how to apply A-B- ‘consistent[ly]’ throughout several types of
proceedings, including ‘credible fear . . . adjudications.’” Id. at 892 (internal citations
and emphasis omitted).
Drawing from the D.C. Circuit’s analysis in Grace II, it is clear to this Court that
the Lesson Plan also qualifies as a “written policy directive, written policy guideline, or
written procedure” that implements the expedited removal scheme and thus can be
challenged in federal court under section 1252(e)(3). 8 U.S.C. § 1252(e)(3)(A)(ii). To
begin with, the plain meaning of the statutory terms “directive” and “guideline” sweeps
broadly. See, e.g., Directive, Merriam-Webster Unabridged Dictionary (online ed.
2020) (defining “directive” as, inter alia, “something that serves to direct, guide, and
usually impel toward an action, attainment, or goal”); Guideline, Merriam-Webster
45
Unabridged Dictionary (online ed. 2020) (explaining that “guideline” is, with respect to
a government action, “an indication or outline of future policy or conduct”); cf. Syncor
Int’l Corp. v. Shalala, 127 F.3d 90, 93 (D.C. Cir. 1997) (defining the term “guidance”
in the APA context as “a general statement of policy”). Consistent with the breadth of
this plain language, courts in this circuit have generally suggested that the primary
statutory limitation on the types of policies concerning an agency’s expedited removal
practices that can be challenged pursuant to that section is not the type of document that
announces the policy, but the fact that any such policy must be written down. See, e.g.,
Am. Immigr. Laws. Ass’n v. Reno (“AILA I”), 18 F. Supp. 2d 38, 58 (D.D.C. 1998)
(holding that “unwritten” policies are unreviewable), aff’d, AILA II, 199 F.3d 1352. In
addition, Grace II tangentially involved DHS policies that had been included in a prior
version of the Lesson Plan at issue here, and the Circuit expressly indicated a lack of
actual (or serious) dispute concerning whether that version of the Lesson Plan
“reflect[s] USCIS’s consistent practice”—and thus qualifies as a policy or procedure—
especially given that, in Grace II, USCIS “nowhere claim[ed] that immigration officials
were free to depart” from the Lesson Plan. Grace II, 965 F.3d at 902 (internal
quotation marks and citations omitted).
Here, government counsel struggles valiantly to suggest that USCIS asylum
officers do have such freedom: he points out that the Lesson Plan “do[es] not carry the
force of law” (Defs.’ Mot. at 22), and argues that it “does not ordain or enact any
policy” (Defs.’ Reply at 15), but is merely an “interpretive material” that “just states
the law, as pronounced by statutes, regulations, and case law” (Defs.’ Mot. at 32–33).
Those assertions (which contradict the position that the government took in Grace II)
46
are difficult to square with internal DHS memoranda that plainly indicate that the
agency itself understands the Lesson Plan to be binding on asylum officers. (See, e.g.,
Ex. 28 to Admin. Record, ECF No. 61-25, at 3; Ex. 3 to Admin. Record, ECF No. 61-3,
at 3.) Defendants fail to point to a single piece of evidence that supports their current
contention that the Lesson Plan is not binding on the officers that are required to apply
its prescriptions when they make credible fear determinations—and, to the contrary, all
of the evidence in front of this Court—including DHS internal memoranda—suggests
otherwise. See CropLife Am. v. E.P.A., 329 F.3d 876, 883 (D.C. Cir. 2003) (“[T]he
agency’s characterization of its own action is not controlling if it self-servingly
disclaims any intention to create a rule with the ‘force of law,’ but the record indicates
otherwise.”). And to the extent that the Lesson Plan’s provisions are binding on asylum
officers, they are not reasonably characterized as something other than a written policy
directive, guidance, or procedure, as Defendants now maintain.
Nor does it matter that the Lesson Plan is part of the “Asylum Division Officer
Training Course,” and that training materials are not explicitly listed as reviewable
documents under section 1252(e)(3)(A)(ii). (See Defs.’ Mot. at 32–33.) The Lesson
Plan itself belies Defendants’ argument, insofar as its express purpose is “to explain” to
asylum officers how to make a credible fear determination. (Lesson Plan at 2.) Thus,
there can be no doubt that the document is intended to guide and direct asylum officers
in making those determinations. It is also well established that the particular label that
an agency chooses to affix to a challenged policy is not dispositive of whether a written
policy document falls within the purview of section 1252(e)(3) of the INA, as the D.C.
Circuit made clear. See Grace II, 965 F.3d at 895–96. Given this, and also the
47
established fact that asylum officers are required to follow the Lesson Plan’s guidance
in this regard, the Lesson Plan unquestionably counts as a written policy directive,
policy guideline, or procedure within the meaning of section 1252(e)(3) of the INA.
The Court is also compelled to conclude that the Lesson Plan “implements” the
expedited removal statute for the purpose of section 1252(e)(3)(A). Consistent with the
D.C. Circuit’s holding in Grace II, an agency’s written recitation of its understanding
of the substantive and procedural standards of asylum law that pertain to credible fear
determinations is an implementation of the various procedures that section 1225(b)
requires. See Grace II, 965 F.3d at 892. The Lesson Plan is doing exactly that, insofar
as it is specifically designed to help the asylum officers whom section 1225(b) charges
with making credible fear determinations to fulfill that responsibility. Defendants’
responsive contention that the Lesson Plan does not qualify as an implementation of the
expedited removal scheme because an “‘implementation’ involves intentional action to
accomplish a specific obligation, not a collateral consequence of actions taken to
accomplish a different goal” (Defs.’ Mot. at 31 (emphasis added and citation
omitted))—an argument that was not raised in Grace II—is mistaken, because neither
the ordinary meaning of the word “implementation” nor the text of section
1252(e)(3)(A) includes such a specific intent requirement. See Bryan A. Garner, A
Dictionary of Modern Legal Usage 422 (2d ed. 2001) (explaining that the verb “to
implement” ordinarily means “to carry out”); Implement, Merriam-Webster Unabridged
Dictionary (online ed. 2020) (defining “implement” as, inter alia, to “give practical
effect to and ensure of actual fulfillment by concrete measures”); see also Grace II, 965
F.3d at 892 (determining whether an agency action was an “implementation” of section
48
1225(b) without considering whether it was the agency’s intent to implement that
provision).
In any event, even if Defendants are right that intentionality is required for
implementation under section 1252(e)(3), there is no question that, by issuing the
Lesson Plan, the agency intends to facilitate the first stage of the asylum review process
that section 1225(b) establishes: the very first page of the training manual announces
that the agency’s “purpose” in providing this Lesson Plan regarding credible fear
determinations is “to explain how to determine whether an alien subject to expedited
removal . . . has a credible fear of persecution or torture” (Lesson Plan at 2), which is a
task that an asylum officer has the indisputable duty to perform pursuant to the
expedited removal scheme established in 8 U.S.C. § 1225(b). Moreover, and perhaps
even more significantly, in the course of articulating what Plaintiffs maintain are new
and unlawful principles for evaluating credible fear, the Lesson Plan repeatedly and
specifically cites section 1225(b) and explicitly references the statutory standard for
credible fear determinations. (See, e.g., Lesson Plan at 6, 9, 12, 14, 19.) Cf. Grace II,
965 F.3d at 892 (relying on similar statements of purpose and citations to determine
whether a particular agency action “implements” section 1225(b)). Thus, USCIS
plainly intended the Lesson Plan to be used by its agents to carry out the task of making
credible fear assessments pursuant to section 1225(b), and as a result, this Court
concludes that the Lesson Plan is properly construed as a written policy directive,
guideline, or procedure that implements the provisions of the expedited removal statute
for the purpose of section 1252(e)(3).
49
2. Plaintiffs’ Claims Are Not Time-Barred
In their reply brief, Defendants pivot to yet another potential basis for asserting
that section 1252(e)(3)’s judicial review requirements are not satisfied under the
circumstances presented here; they contend that “Congress has imposed a jurisdictional
requirement that these challenges be filed ‘no later than 60 days after the date the
challenged section, regulation, directive, guideline, or procedure . . . is first
implemented[,]’” but “most of the 2019 Lesson Plan has been operative for years, to say
nothing of the underlying statutes, regulations, external policies, and other materials
cited in the Lesson Plan, much of which has also been operative for years.” (Defs.’
Reply at 17 (emphasis in the original).) 12 Assuming arguendo that the 60-day
requirement of section 1252(e)(3)(B) is jurisdictional in nature—which is not at all
clear, given that section 1252(e)(3) does not speak in jurisdictional terms, see MTRNY I,
405 F. Supp. 3d at 26, rev’d on other grounds, MTRNY II, 962 F.3d 612; see also
United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015) (observing that “most time
bars are nonjurisdictional”); Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (suggesting
that courts should “press[] a stricter distinction between truly jurisdictional rules . . .
and nonjurisdictional claim-processing rules” (internal quotation marks omitted)); but
see Vijender v. Wolf, No. 19-cv-3337, 2020 WL 1935556, at *2–6 (D.D.C. Apr. 22,
12
Defendants reference the 60-day requirement in their opening brief, but do not assert that the time bar
forecloses Plaintiffs’ claims in that context. (See Defs.’ Mot. at 33–34.) Rather, Defendants mention
that part of section 1252(e)(3) initially simply and solely to support their argument about the intended
meaning of the statutory term “implementation.” (See id. at 33 (asserting that “[t]he operation of the
statute of limitations under section 1252(e)(3) makes it all the more apparent that Congress did not
intend that an interpretation of the asylum or CAT standard in administrative training materials
constitutes a new implementation of section 1225(b)(1)”).) The first invocation of the 60-day timeframe
as a potential independent bar to the Court’s consideration of the merits of Plaintiffs’ claims appears in
Defendants’ reply brief. (See Defs.’ Reply at 18–19.)
50
2020) (concluding that the 60-day bar is jurisdictional)—Defendants’ insistence that
Plaintiffs’ claims concerning the Lesson Plan have been brought outside of the
prescribed 60-day window are far off base.
First of all, per the plain text of section 1252(e)(3), a legal claim concerning a
written policy directive, guidance, or procedure that implements the expedited removal
system is timely if the “action” is brought “no later than 60 days after the date the
challenged section, regulation, directive, guideline, or procedure . . . is first
implemented.” 8 U.S.C. § 1252(e)(3)(B) (emphasis added). Defendants have yet to
explain how language that appeared in the Lesson Plan for the first time in April of
2019 could possibly have been challenged previously. And, indeed, it is clear from
both the text and operation of section 1252(e)(3)(B) that, by enacting that provision,
Congress merely intended to limit the timing of court challenges to within 60 days of
when any particular policy prescription “first” issues.
Plaintiffs’ legal action unquestionably fits within that timeframe. The original
complaint in this case was filed on June 25, 2019 (see Compl., ECF No. 1, at 21)—
within 60 days of April 30, 2019, which is the date that is listed on the first page of the
relevant version of the Lesson Plan (see Lesson Plan at 2). Defendants concede that
“this challenge was brought within 60 days of the April 30th Lesson Plan being sent
out” (Hr’g Tr., ECF No. 65, at 41:4–5), and the D.C. Circuit has held that the 60-day
period in section 1252(e)(3)(B) begins to run on the “effective date” of the relevant
regulation or written policy, AILA II, 199 F.3d at 1355 (holding that, because the
challenged regulation was “effective April 1, 1997,” a challenge to that regulation “had
to be filed no later than sixty days after April 1”). Thus, the claims in Plaintiffs’
51
complaint, which concern an amended Lesson Plan that the agency first sent out less
than 60 days prior to the filing of this lawsuit, are timely.
There is really no basis in law or logic for Defendants to suggest otherwise.
Nevertheless, Defendants argue that section 1252(e)(3)(B) requires the Court to
determine which of the amended “parts of a reviewable agency document are [actually]
new” (Defs.’ Reply at 18), as distinguished from those amended sections that are
substantially similar to the prior iteration because, for example, only “some language on
the margins” has changed (Hr’g Tr. at 41:23–25). To support this contention, defense
counsel emphasizes that the agency has “discretion to reword” its guidance documents,
and argues that it should be able to do so without restarting the 60-day clock. (Id. at
42:7.) In the agency’s view, then, the Court must “figure out [what] degree of
deviance” there is between the prior version of a written policy provision and the
challenged amendment in order to determine whether such changes are sufficiently
substantive to restart the statutory clock. (Id. at 43:14–15.)
Nothing in the statute requires this result. In particular, section 1252(e)(3)
plainly authorizes judicial review of written policies, guidelines, or procedures that
implement the expedited removal statute, without regard to whether such policies
deviate substantively from an agency’s prior practices. Thus, consistent with binding
precedent, the “first” implementation language in section 1252(e)(3)(B) need not, and
should not, be read that broadly. Cf. MTRNY II, 962 F.3d at 623–24 (explaining that the
strong “presumption favoring judicial review of administrative action” applies “even
where, as here, the statute expressly prohibits judicial review—in other words, the
presumption dictates that such provisions must be read narrowly” (internal quotation
52
marks and citation omitted)). Accordingly, all that is necessary for timeliness under
section 1252(e)(3)(B) is what indisputably happened here: that the lawsuit Plaintiffs
have filed to challenge aspects of an agency’s written policy directive concerning
implementation of the expedited removal scheme is brought within 60 days of when the
agency issues the document that contains the challenged prescriptions.
C. The Lesson Plan Violates The INA And Its Implementing Regulations
Having determined that Plaintiffs have Article III standing to bring the claims in
this lawsuit, that Plaintiffs’ claims are not moot, and that the Court has subject-matter
jurisdiction to consider Plaintiffs’ legal challenge (see supra Sections IV.A–B), the
Court now turns to the merits of the complaint’s contention that the Lesson Plan is
unlawful. As a reminder, Plaintiffs have cited alternative and independent grounds for
this proposition, beginning with the contention that certain provisions of the Lesson
Plan are “not consistent with the governing [immigration] statutes and regulations”
pursuant to section 1252(e)(3). (Pls.’ Mot. at 39; see also Am. Compl. ¶ 90.) 13
To substantiate this particular claim, Plaintiffs’ complaint sets out various
examples of ways in which the Lesson Plan allegedly transgresses the INA and its
13
The parties here appear to agree that section 1252(e)(3) creates a cause of action to review the Lesson
Plan’s consistency with the INA (as amended) and its implementing regulations. (See Defs.’ Mot. at 55
(noting that section 1252(e)(3) is “the only available cause of action” for Plaintiffs’ claims); see also
Pls.’ Mot. at 39.) This Court has previously doubted whether section 1252(e)(3)’s reference to judicial
review of claims that agency’s written policies are “otherwise in violation of law” means that
“Congress sought to permit plaintiffs to police DHS’s compliance with the universe of potentially
applicable legal requirements under circumstances in which there would have otherwise been no relief
with respect to that violation[.]” MTRNY I, 405 F. Supp. 3d at 38. But, regardless, section 1252(e)(3)
contains an express cause of action for the claim that the agency’s policy prescriptions are “not
consistent with [the] applicable provisions of” the INA, 8 U.S.C. § 1252(e)(3)(ii), and that cause of
action (which also “exists, presumptively, with respect to every statute that confers guided discretion
upon agency actors”) “necessarily relates to the substantive standards that the INA itself prescribes.”
MTRNY I, 405 F. Supp. 3d at 38 n.20 (citing 8 U.S.C. § 1252(e)(3)(ii)).
53
implementing regulations. (See, e.g., Am. Compl. ¶ 85(c) (asserting that the Lesson
Plan “directs asylum officers to make negative credible fear determinations based on
what are actually discretionary factors, not eligibility criteria” (emphasis omitted)); id.
¶ 83 (arguing that the Lesson Plan “increases the evidentiary burden the asylum seeker
must carry to pass a credible fear screening”); see also Pls.’ Mot. at 39–50 (expounding
further upon the alleged conflict between the credible fear standards in the Lesson Plan
and those established by the INA and its related regulations).) For their part,
Defendants argue that there is no inconsistency between the provisions of the Lesson
Plan and the relevant substantive statutes and regulations. (See generally Defs.’ Mot. at
48–54; Defs.’ Reply at 32–40.)
As explained below, this Court finds that Plaintiffs have the better of this
argument. In reaching that conclusion, the Court has applied the well-worn deference
framework that governs a federal court’s determination of whether or not an agency has
faithfully interpreted the law in relation to its own pronouncements. See Grace II, 965
F.3d at 896 (noting that it is “well settled” that traditional principles of agency
deference “are applicable to the Attorney General’s interpretation of the INA” and its
implementing regulations (internal quotation marks and citation omitted)). Thus, to the
extent Plaintiffs are challenging Defendants’ interpretation of the INA, the Court asks
“whether Congress has directly spoken to the precise question at issue[,]” because
courts “must give effect to the unambiguously expressed intent of Congress.” Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). But “if the
statute is silent or ambiguous with respect to the specific issue, the question for the
court [becomes] whether the agency’s answer is based on a permissible construction of
54
the statute.” Id. at 843. And where Plaintiffs seek to challenge Defendants’
interpretation of regulations that implement the INA, the Court asks whether the
regulation is “genuinely” or “truly” ambiguous, “even after a court has resorted to all
the standard tools of interpretation.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). If
it is, then the relevant question becomes whether Defendants’ interpretation is
“reasonable” or “within the zone of ambiguity the court has identified after employing
all its interpretive tools.” Id. at 2415–16.
When this Court applies these standards to evaluate the bulk of the provisions of
the Lesson Plan that Plaintiffs point to as examples of the unlawful nature of this
guidance, the Court concludes that USCIS has unlawfully required screening officers to
make credible fear determinations in a manner that is manifestly inconsistent with the
two-stage asylum eligibility framework that the INA plainly establishes. In addition,
the Court finds that certain Lesson Plan provisions speak to aspects of the credible fear
process that neither Congress nor DHS has expressly addressed, but in so doing USCIS
improperly relies on unreasonable interpretations of the established statutory scheme.
Therefore, the Court concludes that various aspects of the Lesson Plan cannot be
squared with the INA’s mandates.
1. The INA And Its Regulations Plainly Establish A Two-Stage
Framework To Demonstrate Asylum Eligibility In The Expedited
Removal Context, And Provide Standards For Making The
Required Assessment At Each Stage Of The Process
To start, it bears repeating that, under the INA, DHS may designate certain
noncitizens for expedited removal, see 8 U.S.C. § 1225(b)(1)(A)(iii)(I)–(II), and the
process for determining whether those individuals will be granted asylum, or will be
removed from the United States swiftly, has two stages: (1) an initial screening to
55
determine whether or not the noncitizen has a credible fear of persecution or torture in
their home country (if she does not, she is slated for expedited removal without an
additional hearing), and (2) full removal proceedings, during which the noncitizen bears
the burden of establishing her eligibility for asylum.
Moreover, and importantly, the legal standard for whether or not a noncitizen
clears the first hurdle in this two-stage process—i.e., whether she is entitled to a
positive credible fear determination or an adverse one—is specifically addressed in the
INA. Section 1225(b) defines “credible fear of persecution” as follows:
For purposes of this subparagraph, the term “credible fear of
persecution” means that there is a significant possibility, taking
into account the credibility of the statements made by the alien
in support of the alien’s claim and such other facts as are known
to the officer, that the alien could establish eligibility for
asylum under section 1158 of this title.
Id. § 1225(b)(1)(B)(v). As relevant here, a noncitizen is eligible for asylum under
section 1158 if she demonstrates that she “is a refugee[,]” id. § 1158(b)(1)(A)—a term
that the statute defines as a noncitizen “who is unable or unwilling to return to . . . [her]
country because of [past] 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). 14
14
A “credible fear of torture” is defined by regulation, not statute, and has a meaning that is notably
different from the statutory standard that defines a credible fear of persecution. For example, instead
of turning on the “possibility” that the noncitizen “could establish” eligibility in the future, 8 U.S.C.
§ 1225(b)(1)(B)(v), the regulations that govern credible fear of torture state that “an alien will be found
to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is
eligible for withholding of removal or deferral of removal[,]” 8 C.F.R. § 208.30(e)(3) (emphasis
added). Because the complaint most clearly alleges that provisions of the Lesson Plan concerning the
determination of a credible fear of persecution conflict with the INA, the Court has only considered
Plaintiffs’ claims concerning the Lesson Plan’s consistency with the credible fear of persecution
56
The INA also specifically addresses the manner in which government officers
undertake to assess whether a noncitizen has a credible fear of persecution. A trained
“asylum officer” interviews the noncitizen, id. § 1225(b)(1)(B)(i), and determines
whether she has a credible fear of persecution, “taking into account the credibility of
the statements” of the applicant in support of her claim and “such other facts as are
known to the officer,” id. § 1225(b)(1)(B)(v). The applicable regulations clarify that
“[t]he purpose of the interview shall be to elicit all relevant and useful information
bearing on whether the applicant has a credible fear of persecution[,]” and that the
interview is to be conducted “in a nonadversarial manner[.]” 8 C.F.R. § 208.30(d).
During this credible fear interview, the noncitizen “may present other evidence”
concerning “whether the applicant has a credible fear of persecution or torture[,]” id.
§ 208.30(d)(4); however, such additional proof is only provided “if available[,]” and is
not required, id. Accordingly, courts have long held that “the credible fear interview
does not require the level of detail expected of the petitioner for an asylum claim[,]”
Yang v. Ashcroft, 99 F. App’x 124, 125 (9th Cir. 2004), especially since these “often
rushed” assessments can occur under “tense conditions,” Lin Ming Feng v. Sessions,
721 F. App’x 53, 55 (2d Cir. 2018). As a practical matter, a noncitizen “appearing at a
credible fear interview has ordinarily been detained since his or her arrival in the
United States and is therefore likely to be more unprepared, more vulnerable, and more
wary of government officials than an asylum applicant who appears for an interview
before immigration authorities well after arrival.” Zhang v. Holder, 585 F.3d 715, 724
process laid out in the INA and its implementing regulations.
57
(2d Cir. 2009). Moreover, the interviewee “is not represented by counsel, and may be
completely unfamiliar with United States immigration laws and the elements necessary
to demonstrate eligibility for asylum.” Ramsameachire v. Ashcroft, 357 F.3d 169, 179
(2d Cir. 2004) (Sotomayor, J.). Thus, this first stage of the asylum eligibility process is
intended to be a mere “screening interview[,]” Thuraissigiam, 140 S. Ct. at 1965,
during which “[t]he applicant need not show that he or she is in fact eligible for
asylum—a ‘credible fear’ equates to only a ‘significant possibility’ that the alien would
be eligible.” Id. (emphasis in original); see also Ferreira v. Lynch, 831 F.3d 803, 809
(7th Cir. 2016) (“[T]he credible-fear interview is not meant to be a detailed account of
the events supporting an applicant’s asylum claim[.]”). 15
It is also important to note that the noncitizens who are found to have a credible
fear of persecution after the credible fear interview are statutorily entitled to proceed to
the next stage of the process: section 1225(b)(1)(B)(ii) states unequivocally that, “[i]f
the officer determines at the time of the interview that an alien has a credible fear of
persecution (within the meaning of clause (v)), the alien shall be detained for further
consideration of the application for asylum” in the context of full removal proceedings.
8 U.S.C. § 1225(b)(1)(B)(ii) (emphasis added); see also 8 C.F.R. § 208.30(e)(5)(i)
(providing that a noncitizen who “is able to establish a credible fear of persecution but
15
The relevant legislative history confirms that Congress intended for the credible fear threshold “to be
a low screening standard for admission into the usual full asylum process.” 142 Cong. Rec. S11,491
(daily ed. Sept. 27, 1996) (statement of Sen. Hatch); see also 142 Cong. Rec. H11,081 (daily ed. Sept.
25, 1996) (statement of Rep. Hyde) (explaining that the “significant possibility” standard is lower than
the “more probable than not” language used in an earlier version of the bill). Cf. Inspection and
Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,320 (Mar. 6, 1997) (“The credible fear standard
sets a low threshold of proof of potential entitlement to asylum; many aliens who have passed the
credible fear standard will not ultimately be granted asylum.”).
58
appears to be subject to one or more of the mandatory bars to applying for, or being
granted, asylum . . . shall nonetheless” be placed in full removal proceedings).
With respect to the second stage of the asylum-eligibility process, asylum
seekers have a full hearing before an immigration judge, see 8 U.S.C. § 1229a, during
which they may be represented by counsel, see id. § 1362. The goal, in relevant part, is
to “refer[] to specific facts sufficient to demonstrate that the applicant is a refugee[,]”
id. § 1158(b)(1)(B)(ii), and if the judge “determines that the applicant should provide
evidence that corroborates otherwise credible testimony, such evidence must be
provided unless the applicant does not have the evidence and cannot reasonably obtain
the evidence[,]” id. Per the applicable regulations, “[t]he burden of proof is on the
applicant for asylum to establish that he or she is a refugee[,]” and the noncitizen “may
qualify as a refugee either because he or she has suffered past persecution or because he
or she has a well-founded fear of future persecution.” 8 C.F.R. § 208.13(a)–(b).
Finally, the INA and its implementing regulations make clear that even those
noncitizens who establish that they are eligible for asylum because they qualify as
refugees are not entitled to asylum under U.S. law. In other words, at the end of the
day, asylum is discretionary relief that the federal government “may grant” to anyone
the agency “determines . . . is a refugee” in the context of full removal proceedings.
8 U.S.C. § 1158(b)(1)(A) (emphasis added). DHS has promulgated regulations that lay
out various discretionary criteria to guide agency officials in deciding whether to grant
asylum to noncitizens. In particular, a noncitizen who demonstrates that she has been
persecuted in the past “shall also be presumed to have a well-founded fear of
persecution on the basis of the original claim[,]” 8 C.F.R. § 208.13(b)(1), although an
59
asylum officer can, “in the exercise of his or her discretion,” deny the asylum
application of a noncitizen entitled to such a presumption by making a finding, “by a
preponderance of the evidence[,]” that either “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of persecution”
or “[t]he applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality[,]” id. § 208.13(b)(1)(i). If the asylum officer makes
either finding, the noncitizen bears the burden of establishing that she “may be granted
asylum, in the exercise of the decision-maker’s discretion,” id. § 208.13(b)(1)(iii), for
“humanitarian reasons[,]” Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989),
including “compelling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution[,]” or when “there is a reasonable
possibility that he or she may suffer other serious harm upon removal to that country[,]”
8 C.F.R. § 208.13(b)(1)(iii).
2. Certain Provisions Of The Lesson Plan Conflate The Initial
Credible Fear Screening Standards With The Requirements For
Asylum Eligibility, And Are Thus Manifestly Inconsistent With
The INA’s Express Prescriptions
a. The Lesson Plan Requires That A Noncitizen “Identify More
Than Significant Evidence That The Applicant Is A Refugee
Entitled To Asylum” In Order To Pass The Credible Fear
Screening
The Lesson Plan specifically instructs USCIS asylum officers that “the credible
fear significant possibility standard of proof . . . requires the applicant to identify more
than significant evidence that the applicant is a refugee entitled to asylum[.]” (Lesson
Plan at 13 (internal quotation marks omitted).) This policy is in direct conflict with the
plain text of the INA and its regulations in three related ways.
60
First of all, the INA only requires that a credible fear interviewee have a
“significant possibility” of establishing her eligibility for asylum, 8 U.S.C.
§ 1225(b)(1)(B)(v), which is not the same as demanding “more than significant
evidence that the applicant is a refugee” (Lesson Plan at 13). These two standards
plainly differ, for at least the simple reason that the credible fear screening interview,
as Congress envisioned it, focuses primarily on the “statements” of the applicant during
the interview, not necessarily any evidence. 8 U.S.C. § 1225(b)(1)(B)(v); see also 8
C.F.R. § 208.30(d)(4) (providing that the noncitizen “may present other evidence” only
“if available”). By contrast, the Lesson Plan expressly requires the asylum officer to
evaluate the applicant’s evidence. And the fact that the “significant evidence” language
that appears in the Lesson Plan “comes from the D.C. Circuit” in a completely different
context (Defs.’ Reply at 34) is of no moment. It is entirely inapposite that a D.C.
Circuit panel once suggested that one of “the elements of a cause of action for negligent
or reckless spoliation of evidence” under D.C. law is “a significant possibility of
success of the potential civil action if the evidence were available[,]” and that, in that
respect, “‘significant possibility’ . . . implies a showing higher than the already
recognized standard of ‘significant evidence.’” Holmes v. Amerex Rent-A-Car, 180
F.3d 294, 297 (D.C. Cir. 1999) (quoting Holmes v. Amerex Rent-A-Car, 710 A.2d 846,
852, 854 (D.C. 1998)). Thus, Defendants cannot rely on that language or that reasoning
to contend that the Lesson Plan’s clear shift toward mandating an evidentiary showing
at the credible fear stage is consistent with what the INA requires.
Second, and similarly, applicants have a credible fear under the INA if there is a
significant possibility that they “could establish” that they are refugees during the next
61
stage of the process, 8 U.S.C. § 1225(b)(1)(B)(v) (emphasis added), which means that
the Lesson Plan’s requirement that a credible fear interviewee have significant evidence
that she “is a refugee” unquestionably heightens the bar (Lesson Plan at 13 (emphasis
added)). “Congress’ use of a verb tense is significant in construing statutes[,]” United
States v. Wilson, 503 U.S. 329, 333 (1992), and there is no doubt that the word “is”
connotes “a more certain determination” than “could[,]” Yusupov v. Att’y Gen. of U.S.,
518 F.3d 185, 201 (3d Cir. 2008) (focusing on a different provision of the INA).
Therefore, USCIS’s requirement of certainty, as conveyed by the use of the present
tense “is,” is in tension with Congress’s deliberate employment of the verb phrase
“could”—for the latter conveys that a possibility, rather than certainty, suffices at the
credible fear stage of the asylum-eligibility process.
Third, because even those noncitizens who ultimately manage to establish that
they qualify as refugees under the statute are thereby only rendered eligible for asylum,
see 8 U.S.C. § 1158(b)(1)(A), it is misleading to the point of conflict for the Lesson
Plan to require applicants to make a showing of entitlement to asylum at the credible
fear stage—or, indeed, at any point in the asylum-eligibility process. (See Lesson Plan
at 13.) And to the extent that this part of the Lesson Plan also appears to demand a
more substantial showing than what section 1225(b)(1)(B)(v) requires, it unlawfully
alters the credible fear standard. (See Pls.’ Mot. at 43–44.)
b. The Lesson Plan Imports Factors That Are Relevant For
Asylum Relief During The Full Removal Proceeding Stage
Into The Initial Credible Fear Determination Process
Under the INA, a noncitizen “who has suffered past persecution or who has a
well-founded fear of being persecuted in the future is eligible for asylum,” Gutierrez-
62
Rogue v. I.N.S., 954 F.2d 769, 771 (D.C. Cir. 1992) (internal quotation marks and
citation omitted); yet, the ultimate “decision whether to grant asylum is within the
discretion of the Attorney General[,]” id. The INA’s regulations identify particular
grounds for the discretionary denial of asylum to established refugees who suffered
persecution in the past, including “a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution” or the ability to “avoid
future persecution by relocating to another part of the applicant’s country of
nationality[.]” 8 C.F.R. § 208.13(b)(1)(i). This Court agrees with Plaintiffs that,
insofar as the Lesson Plan requires asylum officers to consider these kinds of
discretionary factors at the credible fear stage of the asylum eligibility process, it
plainly subverts the INA’s two-stage asylum scheme.
For instance, according to the Lesson Plan, if “internal relocation is reasonable,
the applicant does not have a credible fear of persecution.” (Lesson Plan at 16; see also
id. at 20 (making “a significant possibility that the applicant cannot reasonably
internally relocate within his or her country” one of the required elements for a positive
credible fear determination).) The Lesson Plan also specifically instructs USCIS
asylum officers that the following findings, taken together, “are sufficient to satisfy the
credible fear standard”: “(1) there is a significant possibility . . . that the applicant
experienced past persecution on account of a protected characteristic, (2) the conditions
that gave rise to such persecution continue to exist in the applicant’s home country, and
(3) the applicant could not avoid such persecution by relocating within his or her home
country[.]” (Id. at 19; see also id. at 36 (same).) And the Lesson Plan further indicates
63
that, “if the evidence does not establish . . . reasons why internal relocation is not
possible, a negative credible fear determination is appropriate.” (Id. at 19.)
These required findings, and the consequences of establishing them as set forth
in the Lesson Plan, bear no relationship to the assessments that Congress has prescribed
when credible fear determinations are made pursuant to the INA. Again, all that the
statute requires for a determination that the noncitizen has a credible fear of persecution
is a significant possibility that the asylum seeker could establish eligibility for asylum,
see 8 U.S.C. § 1225(b)(1)(B)(v), and once this statutory standard is satisfied, the
applicant must be deemed to have a credible fear of persecution. The statute says
nothing about country conditions or the ability of the person to relocate. And the fact
that the regulations list such factors as potential bases for the eventual denial of asylum
in the discretion of the agency after a full hearing is neither here nor there as far as the
initial credible fear screening is concerned; indeed, even when the agency is required to
deny asylum to certain refugees ultimately, it is clear that asylum officers must still
allow such persons to proceed beyond the credible fear stage of the process. Cf. 8
C.F.R. § 208.30(e)(5)(i) (indicating that not even mandatory grounds for denial of
asylum are sufficient to warrant an adverse determination at the credible fear stage).
This all means that USCIS is not free to add factors that the regulations
recognize at other stages of the process to the considerations that an asylum officer
must take into account during the credible fear assessment. Yet, that is precisely what
the Lesson Plan does. (See, e.g., Lesson Plan at 19–20, 25, 36). And, of course, the
mere fact that the Lesson Plan cites to the actual text of the regulations concerning the
discretionary factors in the margins of the relevant Lesson Plan pages (see, e.g., Lesson
64
Plan at 19 (citing 8 C.F.R. § 208.13(b)(1)) does not alleviate the conflict (see Defs.’
Mot. at 53 (asserting that the Lesson Plan “direct[s] students to read sections 208 and
235 of the INA, which are codified at 8 U.S.C. §§ 1158 and 1225 and which draw the
contrast between discretionary asylum and the non-discretionary credible fear process”
and suggesting that, as a result, “the Lesson Plan is completely consistent with the
INA”)). If anything, such citations only serve to create confusion, inasmuch as they
underscore the discrepancies between the Lesson Plan’s dictates and the statutes and
regulations upon which the agency’s training materials are purportedly based.
The bottom line is this: the Lesson Plan plainly contradicts the unambiguous text
of the INA and its implementing regulations in this significant regard, and nothing in
Defendants’ motion or argument demonstrates that the Lesson Plan faithfully describes
what the governing prescriptions establish regarding how USCIS asylum officers are
supposed to identify a noncitizen who has a credible fear of persecution.
c. The Lesson Plan Places A Burden On The Asylum Seeker
Who Suffered Past Persecution To Show Unchanged Country
Conditions And The Unavailability Of Internal Relocation
As Prerequisites For A Favorable Credible Fear
Determination
The third example in the category of direct contradictions between the
unambiguous text of the INA and the Lesson Plan is straightforward: the Lesson Plan
not only impermissibly requires asylum officers making credible fear assessments to
consider discretionary factors that are applicable only during the full asylum review
process, but also places the burden of making these showings on the asylum seeker. To
accomplish this, the Lesson Plan states that, unless the noncitizen “establish[es] each
one of the elements below,” he or she “must receive a negative credible fear
65
determination” (Lesson Plan at 20), and one of the listed elements is “Future Fear
(Well-Founded Fear)[,]” which the Lesson Plan says requires, among other things, a
showing by the noncitizen that is sufficient to “demonstrate[]” either “past persecution
based on continuing country conditions” or a “well-founded fear” of persecution (id.).
Another element that noncitizens must establish to avoid a negative credible fear
determination under the Lesson Plan concerns “Internal Relocation” (id. at 25); that is,
when the noncitizen fears persecution by non-government actors, she bears the burden
of demonstrating that there is “a significant possibility that the applicant cannot
reasonably internally relocate within his or her country” (id. at 25; see also id. at 20
(“[I]f the evidence does not establish a significant possibility . . . [that] internal
relocation is not possible, a negative credible fear determination is appropriate”)). In
this regard, the Lesson Plan specifically requires asylum officers “to assess whether an
applicant could relocate to another area of his or her home country in order to avoid the
alleged persecution[,]” because, “[i]f such internal relocation is reasonable, the
applicant does not have a credible fear of persecution.” (Id. at 16.)
These evidentiary burdens are plainly at odds with the regulations that pertain to
credible fear determinations. (See Pls.’ Mot. at 42–43.) For instance, under the
regulations, a presumption of asylum eligibility due to past persecution may be rebutted
at the full removal hearing stage if the agency shows, by a preponderance of the
evidence, that the conditions in the country of origin have changed. See 8 C.F.R.
§ 208.13(b)(1)(i)(A). But, as explained, in the Lesson Plan, it is the noncitizen who
must show that those country conditions continue even if her asylum request is based on
past persecution, and she must do so at the credible fear stage of the process. (See
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Lesson Plan at 20.) Furthermore, even though the regulations permit agency officials to
exercise the discretion to deny asylum when a preponderance of the evidence
establishes that an applicant who suffered past persecution might be able to reasonably
relocate within her country of origin, see 8 C.F.R. § 208.13(b)(1)(i)(B), the Lesson Plan
plainly flips that burden onto the shoulders of those credible fear interviewees (see
Lesson Plan at 16, 25). Thus, for this reason, too, this aspect of the Lesson Plan
conflicts with the INA’s implementing regulations.
3. Certain Provisions Of The Lesson Plan Are Based Upon An
Unreasonable Interpretation Of The INA’s Asylum Review Process
In addition to those parts of the Lesson Plan that contradict the express
requirements of the INA and its implementing regulations concerning what is necessary
for noncitizens to be considered to have a credible fear such that they advance to full
removal proceedings, as described above, other parts of the Lesson Plan establish
unreasonable standards for the credible fear determination with respect to matters that
Congress has not specifically addressed, given the thrust of what the INA and its
regulations prescribe. Put in Chevron and Kisor parlance, the following Lesson Plan
provisions can be said to be based on an unreasonable interpretation of the INA, and
thereby exceeded the reasonable boundaries of any ambiguity to be found in the statute
and related regulations.
a. The Lesson Plan’s Mandate That Noncitizens Provide
“Evidence” And “Facts” That Pertain To “Every Element”
Of Their Asylum Claim Is Plainly Unreasonable Given The
Statutory Requirements
During full removal proceedings, an asylum seeker must offer specific facts that
pertain to every element necessary to show that she is a refugee. See 8 U.S.C.
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§ 1158(b)(1)(B)(i) (“To establish that the applicant is a refugee within the meaning of
[section 1101(a)(42)(A) of the INA], the applicant must establish that race, religion,
nationality, membership in a particular social group, or political opinion was or will be
at least one central reason for persecuting the applicant.”); see also Matter of A-B-, 27
I. & N. Dec. 316, 340 (A.G. 2018), abrogated on other grounds, Grace II, 965 F.3d 883
(explaining that, during full removal proceedings, an asylum applicant “must present
facts that undergird each of the[] elements” necessary to establish eligibility for
asylum, and the agency “has the duty to determine whether those facts satisfy all of the
legal requirements for asylum”). But the INA is silent with respect to the standard of
proof that applies when a noncitizen is undergoing an assessment for credible fear of
persecution: all that Congress says is that there must be “a significant possibility . . .
that the alien could establish eligibility for asylum[.]” 8 U.S.C. § 1225(b)(1)(B)(v).
The Lesson Plan fills this gap by providing that “[t]he applicant bears the burden
of proof to establish a credible fear of persecution” by “produc[ing] sufficiently
convincing evidence that establishes the facts of the case, and that those facts must
satisfy every element of the relevant legal standard[.]” (Lesson Plan at 11.) It further
emphasizes that, “[i]n order to establish a credible fear of persecution, the applicant
must establish each one of the elements” listed in the Lesson Plan (id. at 20), and that
“[i]f the applicant is not able to establish all of the elements, the applicant must receive
a negative credible fear determination” (id.). According to the Lesson Plan, the
necessary elements that a noncitizen must establish at the credible fear stage, by
offering facts and evidence that go to each element, are: (1) a well-founded fear of
persecution, (2) based on either past persecution or a risk of future persecution (3) due
68
to membership in a particular social group, in addition to the discretionary elements for
denial of asylum discussed above, such as (4) continuing country conditions and
(5) inability to relocate internally. (See Lesson Plan at 21–26.)
The task of determining whether the Lesson Plan’s interpretation is a
“permissible” or “reasonable” one, Chevron, 467 U.S. at 843–44; Kisor, 139 S. Ct. at
2416, necessarily requires the Court to focus on the purpose of credible fear interviews
as Congress envisioned them, see Goldstein v. S.E.C., 451 F.3d 873, 881 (D.C. Cir.
2006) (explaining that, whether an agency’s construction is reasonable depends, in part,
“on the construction’s fit with the statutory language, as well as its conformity to
statutory purposes” (internal quotation marks and citation omitted)); see also Kisor, 139
S. Ct. at 2416 (same for regulatory provisions). As discussed above, it is clear beyond
cavil that the credible fear evaluation is intended to be merely an initial screening
interview that poses a relatively low bar for asylum applicants, see Thuraissigiam, 140
S. Ct. at 1965; see also Yang, 99 F. App’x at 125 (explaining that “the credible fear
interview does not require the level of detail expected of the petitioner for an asylum
claim”); therefore, the required reasonableness analysis need not detain the Court for
long.
Again, section 1225’s text plainly indicates that an asylum applicant can be
found to have a credible fear when the asylum officer concludes that the noncitizen
might be able to establish the elements of her claim with the assistance of counsel
during the subsequent full removal proceeding, even if the noncitizen cannot be said to
have established all of those elements at the time of her credible fear interview. (See
Pls.’ Reply at 29); see also 8 U.S.C. § 1225(b)(1)(B)(v). The INA’s implementing
69
regulations also make clear that the credible fear interview is only designed “to elicit all
relevant and useful information bearing on whether the applicant has a credible fear of
persecution,” 8 C.F.R. § 208.30(d), and USCIS’s Form I-870—which asylum officers
use to take notes during credible fear interviews—expressly indicates that “[t]here may
be areas of the individual’s claim that were not explored or documented for purposes of
this threshold screening” (Ex. 11 to Admin. Record, ECF No. 61-10, at 5).
In sum, it is entirely unreasonable for the Lesson Plan to demand that, during the
credible fear interview, the noncitizen establish “facts” that “satisfy every element” of
her future asylum claim as a prerequisite to getting a favorable credible fear
determination. (Lesson Plan at 11.) Imposing such a requirement is tantamount to
making asylum applicants prove that they are a refugee during their credible fear
interviews, even though Congress has made abundantly clear that a noncitizen need
only carry that burden after she has shown a credible fear of persecution and has been
placed in full removal proceedings. See 8 U.S.C. § 1158(b)(1)(B)(ii). Put another way,
even though the statute and regulations do not speak directly to the standard of proof
that is applicable at the credible fear stage of the asylum eligibility process, the one that
the Lesson Plan adopts is not based on a reasonable interpretation of those binding
statutory and regulatory requirements.
b. The Lesson Plan Unreasonably Permits Asylum Officers To
Require Corroboration In The Context Of The Credible Fear
Interview Process
The Lesson Plan erects another impermissible hurdle for noncitizens at the initial
stage of the asylum eligibility process, to the extent that it provides that “the asylum
officer is . . . entitled to determine that the applicant must provide evidence that
70
corroborates the applicant’s testimony, even where the officer might otherwise find the
testimony credible.” (Lesson Plan at 12.) The Lesson Plan states that, “[i]n cases in
which the asylum officer determines that the applicant must provide such evidence, the
asylum officer must provide the applicant notice and the opportunity to submit
evidence, and the applicant must provide the evidence unless the applicant cannot
reasonably obtain the evidence.” (Id. (emphasis in the original).) To be sure, at the
point in which the Lesson Plan provides this authority for asylum officers to mandate
corroboration, it cites the general statutory and regulatory provisions that apply to
credible fear determinations. (See id. (citing 8 U.S.C. § 1225(b)(1)(B)(v); 8 C.F.R.
§ 208.30(e)(2)).) But nothing about eliciting corroborating evidence appears in those
provisions. And, in fact, USCIS seems to have imported the corroboration standards
from the statutory provision that addresses full asylum proceedings, see 8 U.S.C.
§ 1158(b)(1)(B)(ii), and adopted those standards nearly verbatim with respect to the
Lesson Plan’s instructions for making a credible fear determination.
Thus, once again, the question for this Court is whether it is reasonable for the
agency to employ a standard that applies to full asylum proceedings—i.e., the authority
to request corroboration—in the context of the credible fear process, given the INA’s
purposes and in light of relevant statutory and regulatory language. See Chevron, 467
U.S. at 843–44; Kisor, 139 S. Ct. at 2416. And for the reasons that follow, given both
“the goals of the statute[,]” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d
650, 660 (D.C. Cir. 2011) (internal quotation marks and citation omitted), and the
“statutory purposes[,]” Abbott Labs. v. Young, 920 F.2d 984, 988 (D.C. Cir. 1990), the
71
Court cannot discern a reasonable fit between the Lesson Plan’s corroboration
requirement and the credible fear process that Congress created.
The legislative history of the credible fear provision provides one lens through
which to view Congress’ intent with respect to a noncitizen’s burden during the credible
fear stage of the asylum application process. An early draft of the 1996 amendments to
the INA provided that, “in order to establish a credible fear of persecution, the
applicant for asylum would need to establish that ‘it is more probable than not that the
statements made by the alien in support of the alien’s claim are true, and . . . there is a
significant possibility, in light of such statements . . . that the alien could establish
eligibility for asylum.’” H. Rep. No. 104-469, at 529 (Mar. 4, 1996). However, certain
members of the House of Representatives and the Senate believed that that was “simply
too onerous a standard for an asylee to meet who has just escaped dangerous
persecution.” Id. And, ultimately, Congress “struck a compromise by rejecting the
higher standard of credibility included in the House bill” and adopting the enacted
credible fear provision, which was “intended to be a low screening standard for
admission into the usual full asylum process.” 142 Cong. Rec. S11,491 (daily ed. Sept.
27, 1996) (statement of Sen. Hatch).
It is certainly true that “credible fear interviewees are [reasonably] asked to
provide all of the reasons for their concern about being removed,” Zhang, 585 F.3d at
724 (emphasis in original), but “they are not required to give a detailed and specific
account of the bases for their claims, as applicants for asylum must in their asylum
application[,]” id. (internal quotation marks and citation omitted). Thus, the Lesson
Plan’s instruction that an asylum officer might require the interviewee to “provide
72
evidence that corroborates the applicant’s testimony, even where the officer might
otherwise find the testimony credible” (Lesson Plan at 12 (emphasis added))—i.e., even
when “the credibility of the statements made by the alien in support of the alien’s
claim” is not in question, 8 U.S.C. § 1225(b)(1)(B)(v)—clearly transforms the credible
fear interview, which is a mere screening process that is primarily focused on assessing
the noncitizen’s credibility as a means of determining whether she could ultimately and
eventually establish refugee status, into a probing quest for evidence that is virtually
indistinguishable from full asylum eligibility proceedings.
Consequently, this Court has little doubt that the Lesson Plan’s authorization of
demands for corroboration at the credible fear stage rests on an unreasonable
interpretation of what the INA and its implementing regulations allow. (See Pls.’ Mot.
at 46–47.)
c. The Lesson Plan Unreasonably Requires The Screening
Officer To Consider Whether The Noncitizen’s Home
Government Has “Abdicated Its Responsibility” To Control
Persecution
The Lesson Plan’s effort to assist asylum officers with the core task of
identifying when a noncitizen has a credible fear of persecution by defining the term
“persecution”—which the INA does not specifically address—is impermissible for
substantially similar reasons. At least ever since Matter of Acosta, 19 I. & N. Dec. 211
(B.I.A. 1985), the term “persecution” as it appears in the INA has been understood to
refer to “harm or suffering . . . inflicted either by the government of a country or by
persons or an organization that the government was unable or unwilling to control[,]”
id. at 222; see also generally Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062–69
(9th Cir. 2017) (collecting cases applying the “unable or unwilling” standard). In
73
Grace II, the D.C. Circuit set aside the agency’s attempts to recharacterize the “unable
or unwilling” standard as referring solely to circumstances in which the noncitizen’s
home country has “condoned the behavior or demonstrated a complete helplessness to
protect the victim.” Grace II, 965 F.3d at 897 (internal quotation marks and citation
omitted). 16 But USCIS continues in this impermissible vein with the language that it
has adopted in the Lesson Plan: it explains that, “[f]or a credible fear of persecution,
there must be a significant possibility the applicant can establish that the entity that
harmed the applicant (the persecutor) is . . . an entity that the government is unable or
unwilling to control[,]” but because “[a]sylum officers must recognize that no
government can guarantee the safety of each of its citizens or control all potential
persecutors at all times[,]” “[i]t is not sufficient for an applicant to assert that the
government lacks sufficient resources to address criminal activity[;] [r]ather, the
government must have abdicated its responsibility to control persecution.” (Lesson
Plan at 23–24 (emphasis added).)
This Court finds that the Lesson Plan’s guidance is a departure from prior agency
regulations and adjudications, and one that is not owed deference under Kisor, for
largely the same reasons that D.C. Circuit expressed in Grace II. Specifically, a
government need not entirely abdicate its protection duties in order to be unable to
control persecution by third parties. (See Pls.’ Mot. at 47 (arguing that the Lesson Plan
16
According to the D.C. Circuit, those two “formulations” of the standard for persecution are “hardly
interchangeable” for at least two reasons: first, “[a] government that ‘condones’ or is ‘completely
helpless’ in the face of persecution is obviously more culpable, or more incompetent, than one that is
simply ‘unwilling or unable’ to protect its citizens[,]” Grace II, 965 F.3d at 898–99; and, second, when
applied to the same set of facts, the two formulations may lead to opposite outcomes, see id. at 899
(discussing Rosales Justo v. Sessions, 895 F.3d 154, 159 (1st Cir. 2018)).
74
improperly “conflates the two prongs of the relevant standard—that the government be
‘unable or unwilling to control’ the persecutor”).) Moreover, that distinction is
important, because the Lesson Plan’s reformulation might well lead asylum officers to
make an adverse credible fear determination in cases where it would be appropriate to
find that the noncitizen does have a credible fear of persecution using the BIA’s unable-
or-unwilling standard.
To understand why this is so, consider the example that the D.C. Circuit
contemplated in Grace II: where a person seeks asylum after the murder of their child
due to the devastating impact of organized crime in their home community, the fact that
the local authorities “responded to the crime scene, took statements from the asylum
seeker and his wife, and autopsied the body[,]” Grace II, 965 F.3d at 899, indicates that
the government had not necessarily “abdicated its responsibility to control persecution”
(Lesson Plan at 24); however, if there is evidence that “organized criminals generally
operated with impunity” in the community nonetheless, the government can rightly be
said to be unable to offer its citizens protection, Grace II, 965 F.3d at 899.
Consequently, USCIS cannot reasonably instruct its officers that the hallmark of
“unwilling or unable” is that the government has abdicated its responsibility to protect
its citizens without running afoul of its prior pronouncement that a credible fear of
persecution can be established based on the government’s inability to afford adequate
protection. Cf. Kisor, 139 S. Ct. at 2417–18.
Defendants’ arguments to the contrary are not persuasive. Defendants maintain
that, “when read in context and with the deference it is due,” the Lesson Plan does not
unlawfully change the unable-or-unwilling standard; its “discussion of a government
75
abdicating its responsibility to control a persecutor is simply explanatory, provided as a
counterpoint to the explanation that it is not enough to merely show that the government
lacks resources[.]” (Defs.’ Reply at 37 (emphasis added).) But, of course, an
explanation that does not faithfully adhere to the statutory or regulatory standard that it
purports to explicate is owed no deference. See Circus Circus Casinos, Inc. v.
N.L.R.B., 961 F.3d 469, 483 (D.C. Cir. 2020) (“Courts do not defer to an agency’s
arbitrary and capricious interpretation of its own standard.”). And, here, as in Grace II,
the agency’s explanation portends a situation in which asylum officers “can choose
between the two standards”—“unwilling or unable” versus abdication of the duty to
protect—such that a noncitizen “appearing before one official may suffer deportation”
while an “identically situated” noncitizen “appearing before another may gain the right
to stay in this country.” Grace II, 965 F.3d at 900 (internal quotation marks, alteration,
and citation omitted).
Thus, this Court finds the Lesson Plan’s effort to illuminate the meaning of
“persecution” is not based on a reasonable interpretation of the “unable or unwilling”
standard that the agency had previously announced in its adjudications interpreting that
term, and is therefore impermissible.
D. The Unlawful Provisions Of The Lesson Plan Cannot Be Severed From
The Remainder Of The Document, So The Court Will Exercise Its
Equitable Authority To Vacate The Entire Lesson Plan And Will Also
Order New Credible Fear Determinations For These Plaintiffs
Based on the prior discussion, the Court has concluded that certain parts of
USCIS’s “Lesson Plan on Credible Fear of Persecution and Torture Determinations”
conflict with the INA and its implementing regulations in various ways, as Plaintiffs
76
allege in their complaint. (See Section IV.C., supra.) 17 Accordingly, Plaintiffs are
entitled to summary judgment with respect to the first claim for relief in their
complaint, given the Court’s conclusion that certain parts of the Lesson Plan
impermissibly conflict with the INA and its implementing regulations as a matter of
law. (See Am. Compl. ¶¶ 90, 92–93.) Plaintiffs have presented the remaining claims
for relief—including their contention that the Lesson Plan violates the notice-and-
comment provisions of the APA—in the “alternative” (Pls.’ Mot. at 39); therefore, the
Court need not proceed to evaluate Plaintiffs’ APA and constitutional claims at this
juncture. Instead, the question now becomes what remedy is appropriately afforded to
these Plaintiffs based upon their success in establishing their entitlement to relief with
respect to their first claim.
In this regard, Defendants insist that, per the terms of section 1252(e)(3), the
Court can only issue a declaratory judgment—i.e., the Court “may only determine the
17
The Court is not convinced that the other provisions of the Lesson Plan that are highlighted in
Plaintiffs’ complaint constitute similarly unlawful agency action. Specifically, the complaint alleges
that the Lesson Plan conflicts with the INA and its regulations in three additional respects. Plaintiffs
maintain that the Lesson Plan impermissibly (1) instructs that the asylum seeker must establish greater
than “a 1 in 10 chance of future persecution” (see Am. Compl. ¶ 82(b)); (2) requires asylum officers “to
measure the asylum seeker’s statements against information in Department of State-issued reports . . .
and to treat the reports as ‘objective’ fact” (see ¶ 84(a)); and (3) suggests that asylum officers “need
not provide the asylum seeker with an opportunity to address concerns that might lead to a negative
credibility determination” (see ¶ 84(b)). In this Court’s view, none of these provisions constitutes an
irreconcilable conflict between the Lesson Plan and the applicable statutory and regulatory provisions.
The Lesson Plan plainly clarifies that the Supreme Court’s discussion of a one-in-ten chance of
persecution in I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 431–32 (1987), was dicta. (See Lesson Plan at
21–22.) The applicable regulations permit asylum officers to rely on “material provided by the
Department of State[,]” see 8 C.F.R. § 208.12(a), and the Lesson Plan’s requirement that officers
consult such material does not conflict with that authorization. Nor does the Lesson Plan’s directive
that asylum officers “should follow up” on credibility concerns and “should give the applicant and
opportunity to explain all concerns” (Lesson Plan at 16 (emphasis added)) suggest that officers need
not do so in a manner that contradicts or undermines the asylum officers’ obligation to elicit all
relevant and useful information, as required under the applicable regulations, see 8 C.F.R. § 208.30(d),
and as clearly stated in the Lesson Plan (see Lesson Plan at 11).
77
Lesson Plan’s lawfulness, and lacks statutory authority to enjoin or vacate the Lesson
Plan or stay removals.” (Defs.’ Mot. at 63.) The Court rejects this unfounded
contention for the reasons explained below. To the contrary, it is well settled that
federal courts have equitable power to order the vacatur of unlawful agency conduct—
in whole or in part—and nothing in the INA restricts or withdraws that established
authority. Furthermore, in the instant case, it is appropriate for the Court to vacate the
Lesson Plan in its entirety, because the unlawful provisions are not severable from the
rest of the document. In addition, to ensure that Plaintiffs are made whole, the Court
has determined that a limited injunction that requires USCIS to void Plaintiff’s credible
fear determinations, and provide new ones as necessary to evaluate their entitlement to
press their asylum claims in full removal proceedings, is warranted.
1. Vacatur Is An Appropriate Remedy Under These Circumstances
It is blackletter law that vacatur is “a form of equitable relief that the Court may
award, withhold, and craft to fit the circumstances of the case before it.” Sierra Forest
Legacy v. Sherman, 951 F. Supp. 2d 1100, 1106 (E.D. Cal. 2013); see also 73A C.J.S.
Public Administrative Law and Procedure § 552 (Sept. 2020) (explaining that “vacatur
is a species of equitable relief”). Indeed, according to the D.C. Circuit, when a
reviewing court declares that the challenged action of an administrative agency violates
the law, vacatur is the “normal remedy,” Allina Health Servs. v. Sebelius, 746 F.3d
1102, 1110 (D.C. Cir. 2014), and the “ordinary result” that follows from the court’s
determination, Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409
(D.C. Cir. 1998). In essence, a vacatur order takes the unlawful agency action “off the
books[,]” AFL-CIO v. Chao, 496 F. Supp. 2d 76, 92 (D.D.C. 2007), which is an entirely
78
appropriate response when a plaintiff successfully establishes that the agency’s conduct
violates the law, see, e.g., Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety
and Health Admin., 920 F.2d 960, 966–67 (D.C. Cir. 1990).
It is notable that federal courts have equitable power to order vacatur even in the
absence of a specific statutory authorization. See 73A C.J.S. Public Administrative Law
and Procedure § 552 (Sept. 2020); see also Franklin v. Gwinnett Cty. Pub. Sch., 503
U.S. 60, 70–71 (1992) (“The general rule . . . is that absent clear direction to the
contrary by Congress, the federal courts have the power to award any appropriate relief
in a cognizable cause of action brought pursuant to a federal statute.”). But the
appropriateness of such relief is further underscored by the fact that Congress has
specifically prescribed this particular remedy when agency action violates the law and
the plaintiff brings her claim under the APA. See 5 U.S.C. § 706(2) (stating that, under
the specified circumstances, a “reviewing court shall . . . hold unlawful and set aside
agency action”).
Nothing in the INA divests the federal courts of their traditional power to vacate
unlawful agency action. (But see Defs.’ Mot. at 62–67.) In support of the argument
that this Court cannot vacate the Lesson Plan, Defendants first point to section
1252(e)(1)(A), which provides that “no court may enter declaratory, injunctive, or other
equitable relief in any action pertaining to an order to exclude an alien in accordance
with section 1225(b)(1) of this title except as specifically authorized in a subsequent
paragraph of this subsection[.]” 8 U.S.C. § 1252(e)(1)(A). The agency reads this
provision to strip federal courts of all such equitable remedies in all circumstances.
(See Defs.’ Mot. at 63.) But as the D.C. Circuit recently explained, section
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1252(e)(1)(A) is inapplicable to “challenges on the validity of the expedited-removal
system”—like the one at issue here—given that such challenges are “authorized in a
subsequent paragraph” of the INA, namely section 1252(e)(3). Grace II, 965 F.3d at
907 (internal quotation marks, citations, and alterations omitted). In addition, Congress
must have meant for section 1252(e)(1)(A)’s restrictions to apply only when a court is
called upon to examine “underlying credible-fear determinations[,]” id.; otherwise, it
would have “expressly authorized the district court to review expedited-removal
policies yet simultaneously prohibited it from issuing any remedies[,]” id.
Defendants’ second statutory argument (see Defs.’ Mot. at 66) is similarly
unpersuasive. The agency observes that section 1252(e)(3)(A) authorizes the United
States District Court for the District of Columbia to make a “determination[]” regarding
whether certain regulations and written policies are valid, see 8 U.S.C. § 1252(e)(3)(A),
and because a “determination” can theoretically be conceived of as a form of
declaratory relief, Defendants surmise that the sole “specifically authorized remedy” in
the relevant subsequent paragraph, as per section 1252(e)(1)(A), is a declaration that
the agency’s written policy is unlawful. (See Defs.’ Mot. at 66.) Of course, this
interpretation ignores the fact that section 1252(e)(3) is not addressed to remedies.
Moreover, the clear context of that provision’s reference to “determinations” is that
Congress is authorizing the United States District Court for the District of Columbia to
undertake judicial review of the implementation of the expedited removal scheme, but
further specifying that such review “shall be limited to determinations of” certain legal
issues, including whether the written policy directive, guideline, or procedure is
consistent with the INA. 8 U.S.C § 1252(e)(3)(A)(ii). Establishing that this Court is
80
authorized to determine specified legal issues cannot be logically equated with the
remedies that the Court may prescribe once such a determination has been made. See
Grace II, 965 F.3d at 907 (“‘Determination’ . . . denotes a decision, not a remedy.”)
What is more, the D.C. Circuit considered and rejected Defendants’ declaration-only
interpretation in Grace II, when it upheld in part an injunction that the district court had
issued as a remedy for a legal determination that the district judge made pursuant to
section 1252(e)(3). See id. at 908–09.
Still, Defendants argue that, even if the INA itself does not place limits on this
Court’s remedial powers, a vacatur is not appropriate in this case as a matter of the
equities. (See Defs.’ Mot. at 65 (citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory
Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993).) To be sure, courts “have commonly
remanded without vacating an agency’s rule or order where the failure lay in lack of
reasoned decisionmaking, [and] also where the order was otherwise arbitrary and
capricious[.]” Int’l Union, 920 F.2d at 966; see also Allied-Signal, 988 F.2d at 150
(remanding without vacating where the agency action is “inadequately supported”). But
where the agency action is “so crippled as to be unlawful[,]” and not simply
“potentially lawful but insufficiently or inappropriately explained[,]” it is clear beyond
cavil that the common “practice is to vacate the agency’s order[.]” Radio-Television
News Directors Ass’n v. F.C.C., 184 F.3d 872, 888 (D.C. Cir. 1999). Thus, Defendants
cannot reasonably dispute that vacatur is the norm where, as here, the deficiencies that
the court has identified are “substantively fatal[.]” Int’l Union, 920 F.2d at 967.
Defendants’ other remedy-related contention (see Defs.’ Mot. at 63) is also
baseless. They insist that, absent a class action—which Congress has expressly
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prohibited in this context, see 8 U.S.C. § 1252(e)(1)(B)—“the Court has no authority to
vacate or enter an injunction against the Lesson Plan,” but may only “order limited
systemic relief at the behest of individual aliens.” (Defs.’ Mot. at 63.) (See also Defs.’
Grace Brief at 12 (“[I]n no event, and for no claims, should any relief extend beyond
the five Plaintiffs here[.]”).) With this argument, Defendants have cast a standard order
that is directed solely to the agency that is before the court and that vacates a particular
policy directive that Plaintiffs have successfully challenged (without purporting to
create enforcement rights with respect to anyone other than Plaintiffs) as a “prospective
nationwide injunction” that inappropriately “reaches the future credible fear
determinations of hundreds of thousands of aliens ‘none of whom are parties to the
lawsuit,’ and ‘unconstrained by the requirements’ of Rule 23.” (Defs.’ Mot. at 65.)
Unfortunately for Defendants, this Court has seen this play before. See, e.g., MTRNY I,
405 F. Supp. 3d at 71 (rejecting similar contentions), rev’d on other grounds, MTRNY
II, 962 F.3d 612. And in the end, contrary to Defendants’ representations, it is the
“long-held understanding that once a rule is vacated, it is vacated for everyone.”
D.A.M. v. Barr, No. 20-cv-1321, 2020 WL 5525056, at *7 (D.D.C. Sept. 15, 2020).
It suffices to note here that the argument that a court can only vacate the
agency’s unlawful conduct with respect to the particular plaintiffs who have filed the
legal action that is before it has no grounding in the Article III doctrine or in any
federal statute of which this Court is aware. This argument also conveniently ignores
the fact that what is at issue in the lawsuit is the agency’s unlawful conduct—here, its
issuance of a binding instruction manual that contains provisions that conflict with the
INA—and that conduct, when it was undertaken, was not directed at the Plaintiffs in
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this lawsuit. Thus, where the legal claim at issue is the unlawfulness of an agency
action of general applicability, it makes no sense whatsoever to insist that a district
court limit its vacatur to address solely the impact of the unlawful agency action on the
plaintiffs. In fact, doing so is tantamount to transforming a facial challenge to agency
conduct into an as applied claim. It defies both law and logic.
It is also worth observing that no less an authority than the Supreme Court has
made it abundantly clear that injunctions and vacaturs are distinct remedies, and that
the latter is considered substantially less intrusive. See Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 165–66 (2010) (explaining that injunctive relief is “a drastic and
extraordinary remedy, which should not be granted as a matter of course[,]” whereas a
“partial or complete vacatur” of an agency’s action is a different, “less drastic remedy”
that, at times, might be “sufficient to redress” a plaintiff’s injury); see also Dep’t of
Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1916 n.7 (2020)
(recognizing this distinction by holding that affirmance of the “order vacating the
[agency action] makes it unnecessary to examine the propriety of the nationwide scope
of the injunctions”). And given the established and lengthy history of federal courts
employing their equitable powers to vacate unlawful agency actions, Defendants’
professed concern that a vacatur would “reach[] the future credible fear determinations
of hundreds of thousands of aliens none of whom are parties to the lawsuit” (Defs.’
Mot. at 65 (internal quotation marks and citation omitted)) is really neither here nor
there when it comes to demonstrating that this Court lacks the authority to issue a
vacatur order in this case. That is to say, the mere fact that a vacatur order may happen
to confer a possible benefit upon other individuals who are not before the Court—
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indeed, conceivably, any and every person who might have otherwise been subjected to
the government’s unlawful conduct benefits from its vacatur—is not a reason to
conclude that the Court lacks the power to nullify the unlawful government practice;
indeed, that collateral consequence is wholly irrelevant to the determination of whether
or not a standard vacatur order is appropriate to remedy the violation of law that the
court has pronounced. Regardless, if a court concludes that an agency action violates
the law, vacatur is routinely ordered to address that substantively unlawful conduct,
notwithstanding the alleged windfall that the nullification gives to nonparties (if being
shielded from violative agency action can even rationally be considered as such).
The Court notes further that this typical result has rarely been an issue, because
an administrative agency that is acting in good faith and in the public’s interest can be
expected to heed the implications of the federal court’s ruling and desist voluntarily
from engaging in conduct that the court has deemed unlawful (at least pending its
appeal of the court’s determination) in any event. See Ramirez de Arellano v.
Weinberger, 745 F.2d 1500, 1565 (D.C. Cir. 1984) (en banc) (Scalia, J., dissenting)
(explaining that “it must be assumed that officers of the Executive Branch will honor
their oath to uphold the laws of the United States[,]” and therefore “once a court takes it
upon itself to pronounce that the actions challenged here are unlawful all of the adverse
effects of injunction . . . ensue”); see also Alsea Valley All. v. Dep’t of Commerce, 358
F.3d 1181, 1186 (9th Cir. 2004) (explaining that a vacatur “prohibits, as a practical
matter, the enforcement” of an unlawful agency action, but is not actually “the practical
equivalent of ‘enjoining’” the agency, and noting that such reasoning, “[t]aken to its
logical end,” would “classify as ‘injunctive’ all declaratory relief that deems an agency
84
rule unlawful”). It has apparently only been in recent years that federal agencies have
consistently and audaciously demanded an entitlement to persist in the unlawful
conduct despite a federal court’s ruling declaring that conduct unlawful, which has
manifested itself in the strange argument that Defendants have presented here—i.e., that
precisely because outsiders might benefit from a vacatur, the Court lacks the power to
vacate the agency action and must instead craft a remedy that permits the agency to
continue to act in flagrant violation of the law as the court has announced it to be with
respect to anyone who has not been joined as a party in the case before the court. 18
Yet, here as elsewhere, Defendants have failed to provide any persuasive reason
why the potential incidental benefit that is conferred to the rest of humanity when a
court addresses unlawful agency action by vacating the agency’s conduct is sufficiently
problematic, under the Constitution or otherwise, to justify limiting a federal court’s
traditional power to nullify the actions of the defendant when that challenged conduct
violates the law. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 37 (D.D.C. 2020)
(explaining that the “consequences” of a vacatur “with respect to parties not before the
Court” simply “lie[] beyond this Court’s jurisdiction”). And there is none, in light of
“[t]raditional administrative law principles[,]” which dictate that, “[w]hen a reviewing
18
As other district court judges have ably noted, “[f]or the [government] to suggest that they were
entitled . . . to basically ignore [a court’s] declaratory judgment until after appellate review is
exhausted is unsupported in the law.” Florida ex rel. Bondi v. Dep’t of Health & Human Servs., 780 F.
Supp. 2d 1307, 1316 (N.D. Fla. 2011) (internal quotation marks omitted). Moreover, as a practical
matter, “[t]he Court does not know how a court vacates a rule only as to one state, one district, or one
party[,]” N.M. Health Connections v. Dep’t of Health Human Servs., 340 F. Supp. 3d 1112, 1183
(D.N.M. 2018), or what “it [would] mean to ‘vacate’ a rule as to some but not other members of the
public[,]” O.A., 404 F. Supp. 3d at 153. Nevertheless, federal agencies appear to be making a
concerted effort to conscript the courts in this tedious self-censoring exercise on the seemingly
irrelevant grounds that non-parties may be tangentially affected if the court exercises its ordinary
equitable powers. See, e.g., MTRNY I, 405 F. Supp. 3d at 71.
85
court determines that agency regulations are unlawful, the ordinary result is that the
rules are vacated—not that their application to the individual petitioners is proscribed.”
Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989); see also Barr v. Am.
Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2351 n.8 (2020) (explaining that,
when “a provision [of law] is declared invalid[,]” the invalid provision “cannot be
lawfully enforced against others”—and not just “against the plaintiff”); Grace v.
Whitaker, No. 18-cv-1853, 2019 WL 329572, at *2 (D.D.C. Jan. 25, 2019) (“There is no
statutory requirement, as the government argues, to declare a policy in violation of the
law only as applied to the individual plaintiffs.”). In addition, Defendants’ limited
vacatur argument flies in the fact of the “fundamental” notion that “agency policy is to
be made, in the first instance, by the agency itself [and] not by courts[,]” Harmon, 878
F.2d at 494, since vacating or enjoining a rule of general applicability only with respect
to specific parties “would be drawing a line which the agency itself has never drawn[,]”
id. at 495.
Therefore, in addition to declaring that certain provisions of the Lesson Plan are
unlawful, this Court will proceed to vacate all or part of the Lesson Plan, as in the
ordinary course, to ensure that USCIS implements the Court’s determination with
respect to the agency’s unlawful action. Cf. A.B.-B., 2020 WL 5107548, at *9
(declaring that DHS’s policy to allow CBP officers to conduct credible fear interviews
instead of USCIS asylum officers violated the INA, and issuing a preliminary injunction
under section 1252(e)(3) that prohibits DHS from implementing its policy of
authorizing CBP officers to conduct credible fear screenings).
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2. The Unlawful Provisions Of The Lesson Plan Are Not Severable
From The Remainder Of The Document, Such That Vacatur Of The
Entire Lesson Plan Is Required
The next question that must be answered is whether the Court needs to vacate the
entire Lesson Plan, or whether the various unlawful provisions that Plaintiffs have
successfully identified can be severed from the rest of the document. This Court
ordered the parties to provide supplemental briefing on this issue (see Pls.’ Suppl. Brief
on Severability, ECF No. 68; Defs.’ Suppl. Brief on Severability, ECF No. 69), and
after a careful review of both the parties’ arguments and the governing legal standards,
the Court has concluded that the unlawful parts of the Lesson Plan described in Section
IV.C above cannot, and should not, be severed by the Court.
“Whether an administrative agency’s order or regulation is severable, permitting
a court to affirm it in part and reverse it in part, depends on the issuing agency’s
intent.” North Carolina v. F.E.R.C., 730 F.2d 790, 795–96 (D.C. Cir. 1984). The
necessary intent is ordinarily ascertained pursuant to a two-prong test: (1) whether “the
agency would have adopted the same disposition regarding the unchallenged portion of
the regulation if the challenged portion were subtracted[,]” and (2) whether the parts of
the regulation that remain can “function sensibly without the stricken provision[,]”
Carlson v. Postal Regulatory Comm’n, 938 F.3d 337, 351 (D.C. Cir. 2019) (internal
quotation marks, citations, and alternation omitted). With respect to the first prong,
severance “is improper if there is ‘substantial doubt’ that the agency would have
adopted the severed portion on its own.” Davis Cnty. Solid Waste Mgmt. v. E.P.A., 108
F.3d 1454, 1459 (D.C. Cir. 1997) (per curiam) (internal citation omitted). With respect
to the second factor, the Court asks whether severance “would severely distort the
87
[agency’s] program and produce a rule strikingly different from any the [agency] has
ever considered or promulgated[.]” MD/DC/DE Broadcasters Ass’n v. F.C.C.
(“MD/DC/DE I”), 236 F.3d 13, 23 (D.C. Cir. 2001).
Application of this standard severability analysis to the facts of the instant case
compels the conclusion that the unlawful portions of the Lesson Plan that the Court
discusses above are not severable for at least three reasons. First, the Lesson Plan’s
stated purpose is “to explain how to determine whether an alien subject to expedited
removal or an arriving stowaway has a credible fear of persecution or torture” (Lesson
Plan at 2), and the unlawful provisions that this Court has addressed speak directly to
critical aspects of the credible fear assessment, such that the Court has “substantial
doubt” that Defendants would have adopted a guidance document that excluded the
directives concerning the credible fear determination that this Court has found to be
unlawful. North Carolina, 730 F.2d at 796. Second, it is also hard to imagine how the
Lesson Plan “could function sensibly as a freestanding” guidance document without the
unlawful provisions. MD/DC/DE Broadcasters Ass’n v. F.C.C. (“MD/DC/DE II”), 253
F.3d 732, 735 (D.C. Cir. 2001). The various directives are so interwoven that it is
highly likely that severance would “severely distort” the binding instructions that the
agency has issued concerning how to administer the complex system of credible fear
determinations, resulting in a policy document that is “strikingly different” from prior
versions of the Lesson Plan. MD/DC/DE I, 236 F.3d at 23. Third, and even more to the
point, setting aside the post-hoc representations that Defendants have made in the
severance brief that the Court required them to file during the course of this litigation
(see, e.g., Defs.’ Suppl. Brief on Severability at 11), USCIS has not made any statement
88
or given any other indication that it ever intended any of the Lesson Plan’s provisions
to function independently of the rest, see Sierra Club v. F.E.R.C., 867 F.3d 1357, 1366
(D.C. Cir. 2017). Cf. AFL-CIO v. N.L.R.B., No. 20-cv-0675, 2020 WL 3041384, at *19
(D.D.C. June 7, 2020) (observing that, by stating that it “would adopt each of these
amendments individually, or in any combination, regardless of whether any of the other
amendments were made[,]” the agency had specifically addressed severability in the
challenged rule (internal citation omitted)).
Undaunted, Defendants assert that “[t]here is no doubt that USCIS would have
issued the Lesson Plan” without the challenged provisions, because “USCIS has
repeatedly revised its Lesson Plan” over the years, and “the vast majority of the Lesson
Plan under review in this case . . . has been included in several past iterations of the
Lesson Plan.” (Defs.’ Suppl. Brief on Severability at 11.) But this argument cuts
against the agency’s severability position instead of bolstering it. For one thing, it
appears that USCIS issues an entirely new Lesson Plan when there is an update, instead
of maintaining previous portions and repealing only certain segments as circumstances
change. (See, e.g., Defs.’ Status Report, ECF No. 58, at 1 (explaining that “the primary
effect of the September 2019 Lesson Plan[,]” which replaced the April 2019 Lesson
Plan, “is to incorporate a discussion of a new immigration administrative decision,
Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019)”).) This editorial prerogative
indicates the connectedness of the document’s directives and the agency’s apparent
view that particular provisions of this manual are not wholly independent of the rest.
Cf., e.g., Am. Petroleum Inst. v. E.P.A., 862 F.3d 50, 71–72 (D.C. Cir. 2017)
(explaining that the court could not find that two provisions were “wholly independent”
89
because “[a]t no point in the record does EPA propose keeping [one provision] and
repealing [the other]”). It is also clear from the redlined version of the Lesson Plan that
Plaintiffs have filed to indicate the changes that the agency made to produce the April
2019 version (see Ex. A to Pls.’ Mot., ECF No. 36-3, at 4–72) that the challenged
portions are not isolated in the least; they involve hundreds of line strikes and
additions, which manifests the author’s intent to integrate these edits into the training
materials in a manner that is comprehensive and wholesale. 19
That said, this Court acknowledges the validity of Defendants’ concern that
“completely vacating the Lesson Plan” with immediate effect “would leave USCIS
without an up-to-date training document reflecting the latest legal developments, and
instead force the agency to teach officers on materials that no longer reflect the law[.]”
(Defs.’ Suppl. Brief on Severability at 16.) Of course, this Court has ruled that the
current version of the training manual does not accurately reflect the law, and the
inability to rely on an unlawful policy document is the ordinary impact of the vacatur of
such agency action. Also, after more than a year of litigation over the particular
provisions of the Lesson Plan that are specifically identified in Plaintiffs’ complaint,
Defendants cannot reasonably complain that the Court’s ruling catches them off guard.
19
In support of their cross-motion for summary judgment, Plaintiffs have submitted additional evidence
and declarations, outside of the administrative record, including the redlined version of the Lesson
Plan. (See generally Exs. A–Q to Pls.’ Mot., ECF No. 36-3.) Defendants have moved to strike these
documents because, “[u]nder the APA, the district court’s review of merits issues must be based on the
record the agency presents to the reviewing court.” (Defs.’ Mem. in Supp. of Mot. to Strike Evidence
Outside of Admin. Record, ECF No. 52-1, at 3 (internal quotation marks and citation omitted).)
Defendants’ argument is inapposite where, as here, the Court is evaluating the remedies for non-APA
related claims, and Defendants make no argument as to why it would be inappropriate for the Court to
rely on such evidence with respect to these INA claims. Accordingly, Defendants’ motion to strike
evidence outside of the administrative record will be DENIED.
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The Court also finds it odd that USCIS argues both that a vacatur order would be
substantially disruptive because it would create “a vacuum on guidance for any new
developments in immigration law since 2017” (id. at 8), and that the provisions that the
Court has found unlawful are discrete and severable, because the April 2019 version
“has been included in several past iterations of the Lesson Plan” (id. at 11). The former
merely underscores the non-severability finding that the agency contests. And, if the
latter is the case, then responding to the vacatur should not be particularly onerous, for
the agency can rely on the allegedly substantially similar 2017 version of the Lesson
Plan while it fashions relevant updates that are consistent with the law.
Nor is this a case in which vacating the entire Lesson Plan would necessarily
create confusion, see Chamber of Commerce v. S.E.C., 443 F.3d 890, 909 (D.C. Cir.
2006) (staying a vacatur order on this ground), or deprive one or more parties of
significant rights, see Bauer v. DeVos, 332 F. Supp. 3d 181, 185 (D.D.C. 2018). The
instant detailed opinion explains why various provisions of the Lesson Plan violate the
INA, and thus should be sufficient to guide the agency’s reconsideration and
preparation of training materials that accurately describe the statutory and regulatory
requirements. Furthermore, and importantly, the Court is ever mindful that, at bottom,
the process of revising the Lesson Plan to conform with the INA and its regulations is
quintessentially the agency’s responsibility, and not this Court’s. Cf. Regents, 140 S.
Ct. at 1914 (noting that making “difficult decision[s]” concerning policy matters is the
“agency’s job”). This means that it would be less than prudent under the circumstances
presented in this case for the Court to undertake its own amendment process, by
identifying and striking only certain portions of the Lesson Plan; rather, given the
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integrated nature of the unlawful provisions and the lack of any indication that USCIS
intended for any portion to be severable, the better course of action is for the Court to
vacate the entire document, and thereby facilitate the agency’s own decisionmaking
processes concerning the necessary revisions. See, e.g., ACA Int’l v. F.C.C., 885 F.3d
687, 708 (D.C. Cir. 2018).
3. Plaintiffs Are Entitled To New Credible Fear Determinations
Lastly, this Court has determined that vacatur of the Lesson Plan is not sufficient
to redress Plaintiffs’ injuries fully, and that “specific injunctive relief” is necessary for
each individual Plaintiff (Pls.’ Reply at 40), for several reasons.
First, the instant circumstances satisfy the familiar four-factor test for injunctive
relief. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (holding that a
grant of injunctive relief requires consideration of the plaintiff’s irreparable injury, the
adequacy of the remedies available at law, the parties’ balance of hardships, and the
public interest). Plaintiffs’ sworn declarations establish the potential for irreparable
injury, insofar as they detail the rapes, beatings, shootings, and family deaths that
Plaintiffs experienced previously in their countries of origin and might experience again
in the future if their asylum applications are not re-evaluated in accordance with the
standards that the law prescribes, and if they are removed pursuant to such procedurally
defective credible fear determinations. (See Exs. B–G to Pls.’ Mot., ECF No. 36-3, at
79–111.) It is also sufficiently clear that, “without an injunction, the plaintiffs
previously removed will continue to live in fear every day, and the remaining plaintiffs
are at risk of removal.” Grace I, 344 F. Supp. 3d at 146, aff’d in relevant part, Grace
II, 965 F.3d 883. In other words, an order vacating the Lesson Plan and declaring it
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unlawful would provide only partial relief to Julia and Sofia, who have already been
removed, and to Kiakombua, Ana, and Emma, who seemingly remain subject to
unlawful removal orders. The balance of the hardships favors injunctive relief for
Plaintiffs’ benefit as well, because the government “cannot suffer harm from an
injunction that merely ends an unlawful practice[.]” R.I.L-R v. Johnson, 80 F. Supp. 3d
164, 191 (D.D.C. 2015) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir.
2013)). And the Supreme Court has further recognized that, although there is “a public
interest in prompt execution of removal orders[,]” there also “is a public interest in
preventing aliens from being wrongfully removed, particularly to countries where they
are likely to face substantial harm.” Nken v. Holder, 556 U.S. 418, 436 (2009). Thus,
this Court is satisfied that injunctive relief is proper.
Injunctive relief is also warranted because, given the Court’s findings and
conclusions regarding the unlawfulness of critical portions of the Lesson Plan and the
need for vacatur of the entire document, “there is ‘only one rational course’ for the
[a]gency to follow upon remand[,]” Berge v. United States, 949 F. Supp. 2d 36, 43
(D.D.C. 2013) (quoting Am. Fed’n of Gov’t Emps., AFL-CIO v. F.L.R.A., 778 F.2d 850,
862 n.19 (D.C. Cir. 1985)), which is to void the credible fear determination that were
made with respect to each Plaintiff pursuant to the unlawful Lesson Plan, and to provide
Plaintiffs with new credible fear determinations that do not apply the unlawful
standards in that document. As noted above, Defendants’ argument that the Court lacks
the authority to issue any kind of injunctive relief (see Defs.’ Mot. at 65) relies on an
interpretation of the INA that has been rejected on numerous occasions, by all levels of
the federal judiciary. See, e.g., R.I.L-R, 80 F. Supp. 3d at 184 (“[W]here a petitioner
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seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is
not enjoining the operation of the statute, and § 1252(f)(1) therefore is not implicated.”
(internal alternations, quotation marks, and citations omitted)); see also Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 481 (1999) (noting that section 1252(f)
only “prohibits federal courts from granting classwide injunctive relief against the
operation of §§ 1221–1231”); Grace II, 965 F.3d at 907 (explaining that section
1252(f)(1) “places no restriction on the district court’s authority to enjoin agency action
found to be unlawful”). Thus, nothing in the INA prevents this Court from enjoining
the agency to take certain actions to remedy prior unlawful agency conduct.
Notably, returning Plaintiffs Julia and Sofia (who have already been removed) to
the status quo ante means that Defendants will have to facilitate the return of these
Plaintiffs back to the United States, at no cost to Plaintiffs Julia and Sofia. See, e.g.,
Grace I, 344 F. Supp. 3d at 144 (holding that the Court has the authority to order the
return of plaintiffs unlawfully removed, and doing so), aff’d in relevant part, Grace II,
965 F.3d at 909. Consistent with this Court’s Order, these Plaintiffs must be afforded
every opportunity to meet with a properly trained USCIS asylum officer, and they must
be interviewed in accordance with the standards and requirements of the INA and its
implementing regulations. And they must not be made to fear the burden of having to
find the means of making the journey back to the United States border, or having to
incur the financial costs involved. Cf. Order, Grace v. Whitaker, No. 18-cv-01853, ECF
No. 105, at 3 (Dec. 19, 2018) (ordering “defendants to bring back into the United
States, at no expense to plaintiffs, any plaintiff who has been removed pursuant to an
expedited removal order prior to this Order”).
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With respect to Plaintiffs Kiakombua, Ana, and Emma, Defendants might opt to
confirm (through the issuance of proper Notices to Appear) that these Plaintiffs have
already cleared the credible fear hurdle, in lieu of providing new credible fear
screenings. However, if the agency determines that new credible fear interviews are
required, these Plaintiffs’ evaluations, too, must be fully consistent with the INA and its
regulations, and thus must not rely in any way upon the now invalidated Lesson Plan or
any of its unlawful provisions. Only if each Plaintiff’s circumstances are assessed anew
pursuant to, and consistent with, all applicable statutory and regulatory requirements
concerning the credible fear stage of the asylum application process will this Court’s
order enjoining Defendants to provide new credible fear determinations for Plaintiffs be
satisfied.
V. CONCLUSION
The INA and the regulations that federal agencies have promulgated to govern
the modern asylum application process plainly reflect “the historic policy of the United
States to respond to the urgent needs of persons subject to persecution in their
homelands[.]” 8 U.S.C. § 1521 note. One manifestation of this policy is the statute’s
two-stage process for evaluating asylum eligibility in the expedited removal context,
which includes an initial screening assessment of whether prospective asylum
applicants have a credible fear of persecution in their home countries. The credible fear
evaluation is meant to be a “low bar” for the noncitizen, insofar as the interviewing
officer need only determine that there is a significant possibility that the applicant
would be eligible for asylum. Thuraissigiam, 140 S. Ct. at 1965–67. Yet, as explained
in this Memorandum Opinion, USCIS’s amended “Lesson Plan on Credible Fear of
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Persecution or Torture” imports into the credible fear evaluation various standards and
burdens that apply only to the second stage of the statutory scheme, and places burdens
on credible fear interviewees that extend far beyond the reasonable boundaries of
Congress’s policy choices as reflected in the governing law. Thus, the Lesson Plan
qualifies as a written directive, guideline, or procedure that implements the expedited
removal scheme in a manner that unlawfully diverges from the INA and its
implementing regulations. See 8 U.S.C. § 1252(e)(3)(A)(ii).
As a result, this Court concludes that the parts of the Lesson Plan that conflict
with the INA and related regulations—identified in Section IV.C, supra—must be
DECLARED UNLAWFUL. Furthermore, because the unlawful parts are not severable
from the remainder of the document, the Lesson Plan must be VACATED in its
entirety, and the matter remanded to the agency for further consideration in light of this
Court’s opinion. In addition, as detailed in the accompanying Order, Defendants will
be ENJOINED to void the credible fear determinations that were previously made with
respect to each Plaintiff and to provide each Plaintiff with a new credible fear screening
that does not rely in any respect on the unlawful policies in the vacated Lesson Plan.
DATE: October 31, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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