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Kiakombua v. Wolf Opinion Filed as Supplemental Authority — East Bay Sanctuary v. Barr
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Exhibit A, Document 121-1 filed 11/04/20 in Case 4:19-cv-04073-JST, a 38-page Memorandum Opinion of United States District Judge Ketanji Brown Jackson, Maria M. Kiakombua, et al. v. Chad F. Wolf, et al., No. 19-cv-1872 (KBJ), 2020 WL 6392824, in the United States District Court, District of Columbia, filed 10/31/2020. The opinion concerns USCIS's Lesson Plan on Credible Fear of Persecution and Torture Determinations. It states that Plaintiffs' motion for summary judgment will be GRANTED with respect to their first claim for relief and Defendant's cross-motion will be DENIED. The Lesson Plan will be VACATED in its entirety, and Defendants will be ENJOINED to void each Plaintiff's existing credible fear determination.
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“Kiakombua v. Wolf Opinion Filed as Supplemental Authority — East Bay Sanctuary v. Barr.”
Original at archive.org, No. 4:19-cv-04073-JST, Doc. 121-1. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/east-bay-sanctuary-v-barr/2020-11-04-kiakombua-opinion-supplemental-authority-dkt-121-1/
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Case 4:19-cv-04073-JST Document 121-1 Filed 11/04/20 Page 1 of 38
EXHIBIT “A”
Case 4:19-cv-04073-JST Document 121-1 Filed 11/04/20 Page 2 of 38
MARIA M. KIAKOMBUA, et al., Plaintiffs, v. CHAD F...., 2020 WL 6392824...
A. Motions To Dismiss Under Federal Rule Of Civil
2020 WL 6392824 Procedure 12(b)(1) 24
Only the Westlaw citation is currently available.
United States District Court, District of Columbia. B. Rule 56 Motions For Summary Judgment With Respect
To Legal Claims That Assail Agency Action Under The
MARIA M. KIAKOMBUA, et al., Plaintiffs, APA And Otherwise 26
v.
IV. ANALYSIS 27
CHAD F. WOLF, in his official capacity
as Acting Secretary of the Department of A. Plaintiffs Have Article III Standing To Challenge The
Lesson Plan, And Defendants Have Not Established
Homeland Security, et al., Defendants.
That Plaintiffs’ Claims Are Moot 29
No. 19-cv-1872 (KBJ) 1. Plaintiffs Suffered An Injury In Fact, Which Is
| Fairly Traceable To The Lesson Plan, And May Be
Filed 10/31/2020 Redressed By An Order Vacating The Lesson Plan
And Requiring New Credible Fear Determinations 29
MEMORANDUM OPINION 2. Defendants Have Not Persuasively Demonstrated
Mootness 34
KETANJI BROWN JACKSON United States District Judge
B. This Court Has Subject-Matter Jurisdiction To Review
Agency Action That Allegedly Violates Provisions Of
TABLE OF CONTENTS The INA 40
*1 I. INTRODUCTION 1 1. Section 1252(e)(3)(A) Of The INA Preserves This
Court's Subject-Matter Jurisdiction Under 28 U.S.C.
II. BACKGROUND 5 § 1331 In These Circumstances 43
A. Credible Fear Screenings And The U.S. Asylum Process 2. Plaintiffs’ Claims Are Not Time-Barred 50
5
C. The Lesson Plan Violates The INA And Its
B. USCIS's “Lesson Plan On Credible Fear Of Persecution Implementing Regulations 53
And Torture Determinations” 10
1. The INA And Its Regulations Plainly Establish
C. Plaintiffs’ Asylum-Related Experiences 12 A Two-Stage Framework To Demonstrate Asylum
Eligibility In The Expedited Removal Context,
1. Maria Kiakombua 13
And Provide Standards For Making The Required
2. “Sofia” and “Julia” 14 Assessment At Each Stage Of The Process 55
3. “Ana” and “Emma” 16 2. Certain Provisions Of The Lesson Plan Conflate
The Initial Credible Fear Screening Standards With
D. Procedural History 17 The Requirements For Asylum Eligibility, And Are
Thus Manifestly Inconsistent With The INA's Express
1. Plaintiffs’ Legal Claims 18
Prescriptions 60
2. The Parties’ Cross-Motions For Summary Judgment
a. The Lesson Plan Requires That A Noncitizen “Identify
20
More Than Significant Evidence That The Applicant
Is A Refugee Entitled To Asylum” In Order To Pass
III. LEGAL STANDARDS 24
The Credible Fear Screening 60
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b. The Lesson Plan Imports Factors That Are Relevant I. INTRODUCTION
For Asylum Relief During The Full Removal The Department of Homeland Security (“DHS”)—and, in
Proceeding Stage Into The Initial Credible Fear particular, DHS's sub-agency, the United States Citizenship
Determination Process 62 and Immigration Services (“USCIS”)—is tasked with
the responsibility of training federal employees to make
c. The Lesson Plan Places A Burden On The sensitive and consequential judgments concerning the asylum
Asylum Seeker Who Suffered Past Persecution
eligibility of noncitizens seeking refuge in the United States.1
To Show Unchanged Country Conditions And
Federal law specifically prescribes the substantive standards
The Unavailability Of Internal Relocation As
that front-line asylum officers apply in order to identify those
Prerequisites For A Favorable Credible Fear
noncitizens designated for expedited removal who have a
Determination 65
“credible fear or persecution” in their home countries and are
3. Certain Provisions Of The Lesson Plan Are Based thus entitled to a more probing evaluation of their asylum
Upon An Unreasonable Interpretation Of The INA's request in the context of a full removal hearing. See, e.g., 8
Asylum Review Process 67 U.S.C. § 1225(b)(1)(B); 8 C.F.R. § 208.30; see also Illegal
Immigration Reform and Immigrant Responsibility Act of
a. The Lesson Plan's Mandate That Noncitizens 1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, 110 Stat.
Provide “Evidence” And “Facts” That Pertain To 3009-546 (amending 8 U.S.C. § 1101 et seq.). USCIS has also
“Every Element” Of Their Asylum Claim Is Plainly developed a related training course for its screening officers,
Unreasonable Given The Statutory Requirements 67 which utilizes a manual titled the “Lesson Plan on Credible
Fear of Persecution and Torture Determinations.” (Ex. 1 to
b. The Lesson Plan Unreasonably Permits Asylum
Admin. Record (“Lesson Plan”), ECF No. 61-1, at 2–38.)2
Officers To Require Corroboration In The Context Of
That document—which the agency colloquially refers to as
The Credible Fear Interview Process 70
“the Lesson Plan”—purports “to explain [to asylum officers]
c. The Lesson Plan Unreasonably Requires The how to determine whether an alien subject to expedited
Screening Officer To Consider Whether The removal or an arriving stowaway has a credible fear of
Noncitizen's Home Government Has “Abdicated Its persecution or torture.” (Id. at 2.) According to USCIS,
Responsibility” To Control Persecution 73 the Lesson Plan enables asylum officers “to correctly make
a credible fear determination consistent with the statutory
*2 D. The Unlawful Provisions Of The Lesson Plan provisions, regulations, policies, and procedures that govern
Cannot Be Severed From The Remainder Of The whether the applicant has established a credible fear of
Document, So The Court Will Exercise Its Equitable persecution or a credible fear of torture.” (Id.)
Authority To Vacate The Entire Lesson Plan And Will
Also Order New Credible Fear Determinations For The instant action challenges that proposition. Plaintiffs
These Plaintiffs 76 Maria Kiakombua, Ana, Emma, Sofia, and Julia (collectively
“Plaintiffs”) are noncitizens subject to expedited removal who
1. Vacatur Is An Appropriate Remedy Under These
allege that, sometime between May and June of 2019, USCIS
Circumstances 78
screening officers made adverse credible fear determinations
2. The Unlawful Provisions Of The Lesson Plan Are Not with respect to each of them pursuant to the Lesson Plan's
Severable From The Remainder Of The Document, directives. (See Suppl. First Am. Compl. (“Am. Compl.”),
Such That Vacatur Of The Entire Lesson Plan Is ECF No. 62-2, ¶¶ 8, 14, 21, 23, 25, 27.) Plaintiffs assert, inter
Required 87 alia, that the current version of the Lesson Plan is unlawfully
designed “to drive down the rate at which asylum seekers
3. Plaintiffs Are Entitled To New Credible Fear pass the screenings and avoid summary deportation[,]” and
Determinations 92 that it does so by, among other things, directing asylum
officers to make credible fear determinations in a manner
V. CONCLUSION 95 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
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be considered by the asylum officer to evaluate potential Defs.’ Mot. at 30–31). Defendants also contend that “the
eligibility for asylum or other humanitarian protection[.]”).) Lesson Plan is not actionable under either the APA or the
For example, according to Plaintiffs, the Lesson Plan INA” (id. at 37) and that Plaintiffs’ claims fail on the merits
“converts the credible fear determination from an inquiry into in any event (id. at 47). Defendants further maintain that,
whether an asylum seeker could establish eligibility for relief even if the Court finds that Plaintiffs’ claims are meritorious,
in the future” (id. ¶ 81), as the Immigration and Nationality the only available remedy is a declaration that the Lesson
Act (“INA”) provides, see 8 U.S.C. § 1225(b)(1)(B)(v), “into Plan is unlawful. (Id. at 63.) Plaintiffs’ filings counter each
an adjudication on whether the asylum seeker actually has of Defendants’ threshold arguments (see, e.g., Pls.’ Mot. at
established eligibility” during the initial screening phase (Am. 22–23, 32), and insist that there are “numerous independent
Compl. ¶ 81). Similarly, Plaintiffs allege that the Lesson grounds” for concluding that the Lesson Plan is unlawful (id.
Plan “increases the evidentiary burden the asylum seeker at 39 (asserting that the Lesson Plan contradicts the INA,
must carry to pass a credible fear screening” insofar as it was revised in an arbitrary and capricious manner, was not
“impos[es] an unlawful corroboration requirement; requir[es] amended through notice-and-comment rulemaking, and/or
the asylum seeker to present more than significant evidence violates the Due Process Clause)). Plaintiffs also maintain that
of eligibility ...; and plac[es] the onus on the asylum seeker the INA does not curtail this Court's authority to issue any
to produce testimony that is in fact the officer's duty to appropriate equitable remedy. (See id. at 63.)
elicit.” (Id. ¶ 83 (internal quotation marks omitted).)
For the reasons explained fully below, the Court concludes
*3 Plaintiffs’ three-count lawsuit, which has been filed that there is no threshold impediment to its reaching the merits
against the Attorney General, DHS, USCIS, the Refugee, of Plaintiffs’ legal claims, and that certain provisions of the
Asylum, and International Operations (“RAIO”) Directorate, Lesson Plan are manifestly inconsistent with the INA and
and United States Customs and Border Protection (“CBP”) its implementing regulations as a matter of law. Moreover,
(collectively, “Defendants”), claims that: (1) the current because the unlawful provisions of the Lesson Plan cannot
Lesson Plan is inconsistent with the provisions of be severed from the remainder of the document, this Court
certain immigration-related statutes, other federal laws, finds that the entire document must be vacated, which is a
and customary international law (see Am. Compl. ¶¶ 89– remedy that the Court retains full equitable power to order
98 (“First Claim for Relief”)); (2) Defendants failed to under the circumstances presented in this case. In addition, to
follow notice-and-comment rulemaking procedures when remedy the application of unlawful standards in the context
they crafted the current Lesson Plan, in violation of the of the screening processes that USCIS undertook to evaluate
procedural requirements of the Administrative Procedure Act Plaintiffs’ asylum eligibility, the Court will require USCIS to
(“APA”) (id. ¶¶ 99–103 (“Second Claim for Relief”)); and (3) provide new credible fear determinations for each Plaintiff.
as it is currently constituted, the Lesson Plan transgresses the
Due Process Clause of the Fifth Amendment to the United Thus, Plaintiffs’ motion for summary judgment will be
States Constitution (see id. ¶¶ 104–08 (“Third Claim for GRANTED with respect to their first claim for relief, and
Relief”)). Defendant's cross-motion for summary judgment will be
DENIED. Furthermore, the Lesson Plan will be VACATED
Before this Court at present are the parties’ cross motions for in its entirety, and Defendants will be ENJOINED to
summary judgment concerning Plaintiffs’ legal claims. (See void each Plaintiff's existing credible fear determination
Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mot.”), and provide Plaintiffs with new credible fear interviews, as
ECF No. 31-1; Pls.’ Mem. in Supp. of Cross-Mot. for Summ. necessary for Defendants to make a lawful determination
J. and in Opp'n to Defs.’ Mot. (“Pls.’ Mot.”), ECF No. 36-1; regarding whether each Plaintiff has a credible fear of
Defs.’ Mem. of Law in Opp'n to Pls.’ Mot. and Reply in Supp. persecution that entitles her to a full removal hearing. A
of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 49; Pls.’ Reply separate Order consistent with this Memorandum Opinion
Mem. of Law in Supp. of Pls.’ Mot. (“Pls.’ Reply”), ECF will follow.
No. 60.) In their motion, Defendants make a host of threshold
arguments, including that Plaintiffs lack Article III standing
(see Defs.’ Mot. at 24), that Plaintiffs’ claims are moot (see II. BACKGROUND
Defs.’ Reply at 13), and that the Court does not have subject-
A. Credible Fear Screenings And The U.S. Asylum
matter jurisdiction over the claims in Plaintiffs’ pleading (see
Process
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*4 For almost a century, Congress has recognized that home country, the immigration officer is required to “refer
citizens of foreign states are sometimes forced to flee from the alien for an interview by a[ ] [USCIS] asylum officer,”
persecution in their home countries, and it has been the who has the responsibility of determining whether or not
policy of the United States government that this country the individual has a credible “fear of persecution.” 8 U.S.C.
ought to serve as a place of refuge for persons who are in § 1225(b)(1)(A)(ii). This initial evaluation is a “screening
such distress. “[T]he language through which Congress has interview[,]” Dep't of Homeland Sec. v. Thuraissigiam, 140
implemented this policy since 1947 has changed slightly from S. Ct. 1959, 1965 (2020), and it poses a “low bar” for asylum
time to time[,]” but “the basic policy has remained constant applicants, id. at 1967; see also Regulations Concerning the
—to provide a haven for homeless refugees and to fulfill Convention Against Torture, 64 Fed. Reg. 8,478, 8,479 (Feb.
American responsibilities in connection with the International 19, 1999) (noting that the credible fear determination merely
Refugee Organization of the United Nations.” Rosenberg v. permits a screening officer to “quickly identify potentially
Yee Chien Woo, 402 U.S. 49, 52 (1971). The Refugee Act of meritorious claims to protection and to resolve frivolous ones
1980, Pub. L. No. 96-212, 94 Stat. 102 (codified at 8 U.S.C. with dispatch”). Thus, for the purpose of an asylum officer's
§§ 1157–1159), specifically embraces the United States’ credible fear assessment, the noncitizen need not demonstrate
commitment to providing safe harbor for refugees insofar as “that he or she is in fact eligible for asylum[.]” Thuraissigiam,
it acknowledges “the historic policy of the United States to 140 S. Ct. at 1965 (emphasis in original). Rather, according
respond to the urgent needs of persons subject to persecution to the statute, “the term ‘credible fear of persecution’ means
in their homelands,” and “encourage[s] all nations to provide that there is a significant possibility, taking into account the
assistance and resettlement opportunities to refugees to the credibility of the statements made by the alien in support of
fullest extent possible[,]” 8 U.S.C. § 1521 note; see also I.N.S. the alien's claim and such other facts as are known to the
v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987). officer, that the alien could establish eligibility for asylum[.]”
8 U.S.C. § 1225(b)(1)(B)(v).
In keeping with this well-settled policy, over the course
of the last four decades, Congress has codified various *5 The applicable statute, i.e., section 1225(b) of Title
procedures that govern how the United States will evaluate 8 of the United States Code, also plainly addresses the
and process the admission requests of refugees. Federal law consequences of a positive or adverse credible fear finding
provides that “any person who is outside any country of such during this initial screening process. If the asylum officer
person's nationality” and who is “unable or unwilling to return determines that the noncitizen has a credible fear of
to ... that country because of persecution or a well-founded persecution, the individual “shall be detained for further
fear of persecution on account of race, religion, nationality, consideration of the application for asylum,” 8 U.S.C.
membership in a particular social group, or political opinion” § 1225(b)(1)(B)(ii), and, thus, shall proceed to the full
qualifies as a “refugee[.]” 8 U.S.C. § 1101(a)(42)(A). Statutes proceeding stage of the asylum application process, see 8
authorize the Attorney General to grant “asylum” to any C.F.R. § 208.30(f) (“If an alien ... is found to have a credible
refugee, id. § 1158(b)(1)(A), and further mandate that even fear of persecution or torture, the asylum officer will ... issue
when a noncitizen is subject to a rapid expulsion process a Form I-862, Notice to Appear, for full consideration of the
known as “expedited removal” (because they fit within asylum and withholding of removal claim in proceedings”
an established category of persons who can be summarily under section 1229a of Title 8 of the United States Code). By
removed without full hearings or other process), such contrast, if the asylum officer determines that the noncitizen
noncitizen can only be so removed if she does not have “an does not have a credible fear of persecution, “the officer
intention to apply for asylum under [8 U.S.C. § 1158] or a fear shall order the alien removed from the United States without
of persecution.” Id. § 1225(b)(1)(A)(i).3 further hearing or review.” 8 U.S.C. § 1225(b)(1)(B)(iii)(I).
At that point, the noncitizen can ask an immigration judge
Significantly for present purposes, federal immigration law to review the negative credible fear determination, see id. §§
plainly establishes that, for those noncitizens who are 1225(b)(1)(B)(iii) (I)–(III), and if such a review is requested,
designated for expedited removal—such as the five individual the immigration judge reviews the matter de novo, based on
plaintiffs in this case—applying for asylum is a two-stage the “record of the [asylum officer's] negative credible fear
process. To start, if a noncitizen encounters a CPB agent or determination,” 8 C.F.R. § 1208.30(g)(2)(ii), supplemented
other immigration officer and “indicates either an intention with any additional “oral or written statement” that the
to apply for asylum ... or a fear of persecution” in their immigration judge decides, in her sole discretion, to receive
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into evidence, id. § 1003.42(c). The immigration judge must requires such officers to receive “professional training in
also give the noncitizen the opportunity to be heard and country conditions, asylum law, and interview techniques
questioned, either in person or via remote connection. See comparable to that provided to full-time adjudicators of
8 U.S.C. § 1225(b)(1)(B)(iii)(III). However, with or without [asylum] applications[,]” id. § 1225(b)(1)(E)(i). DHS has
additional evidence, the immigration judge's review is a also promulgated regulations that require asylum officers
“highly expedited” affair that “is meant to conclude within 24 to receive “special training in international human rights
hours.” Make the Rd. New York v. Wolf (“MTRNY II”), 962 law, nonadversarial interview techniques, and other relevant
F.3d 612, 619 (D.C. Cir. 2020). national and international refugee laws and principles.” 8
C.F.R. § 208.1(b). Indeed, “[a]s of February 2020, training
Ultimately, if the immigration judge concludes that the for [USCIS] asylum officers consisted of at least 9 weeks of
noncitizen has a credible fear of persecution, the asylum formal training and 3 to 4 weeks of additional credible fear
officer's negative credible fear determination will be vacated, training for asylum officers in offices with heavy credible
and the agency will place the individual into full removal fear caseloads[,]” as well as “4 hours per week of ongoing
proceedings, see 8 C.F.R. §§ 208.30(e)(5), 1003.42(f), training.” A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL
1208.30(g)(2)(iv)(B); see also 8 U.S.C. § 1225(b)(1)(B)(ii), 5107548, at *7 (D.D.C. Aug. 31, 2020).
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); *6 In accordance with its statutory and regulatory obligation
4
id. § 1239.1(a). But if the immigration judge concurs with to train its asylum officers, USCIS publishes a guidance
the asylum officer's decision that the noncitizen does not document that it calls the “Lesson Plan on Credible Fear of
have a credible fear of persecution, then the individual will Persecution and Torture Determinations.” (See Lesson Plan
be “removed from the United States without further hearing at 2–38.) To this Court's knowledge, there have been at least
or review.” 8 U.S.C. § 1225(b)(1)(B)(iii)(I); see also 8 six versions of this particular Lesson Plan, dated April 14,
C.F.R. § 1208.30(g)(2)(iv)(A). Moreover, and importantly, 2006 (see ECF No. 61-3, at 2), March 7, 2013 (see ECF No.
the noncitizen's bid for asylum ends there, because the INA 61-5, at 2–40), February 28, 2014 (see ECF No. 61-4, at 2–
expressly prohibits further review of the negative credible 48), February 13, 2017 (ECF No. 61-2, at 2–48), April 30,
fear determination, whether by the Board of Immigration 2019 (see ECF No. 61-1, at 2–38), and September 30, 2019
Appeals (“BIA”) or in federal court. See 8 U.S.C. §§ (see ECF No. 58-1, at 2–39). The April 2019 version of the
1225(b)(1)(C), 1252(a)(2)(A)(iii), (e)(2); see also 8 C.F.R. § Lesson Plan was in effect when asylum officers made the
1003.42(f). adverse credible fear determinations in Plaintiffs’ cases. (See
Am. Compl. ¶ 8.)5
B. USCIS's “Lesson Plan On Credible Fear Of The April 2019 Lesson Plan is 37 pages long, and is
Persecution And Torture Determinations” divided into eleven sections. At the outset, the document
Given the significance of the credible fear determination purports “to explain how to determine whether an alien
with respect to the asylum process, it is not surprising that subject to expedited removal or an arriving stowaway
Congress has authorized the agency that is responsible for has a credible fear of persecution or torture[,]” so that
executing immigration policy (that is, DHS) to “establish asylum officers “will be able to correctly make a credible
such regulations” as it deems “necessary for carrying out” fear determination consistent with the statutory provisions,
the asylum-screening process described above, see 8 U.S.C. regulations, policies, and procedures that govern whether the
§ 1103(a)(3), and also to “issue such instructions” as applicant has established a credible fear of persecution or a
are necessary to “control, direct[ ], and supervis[e] ... all credible fear of torture.” (Lesson Plan at 2.) The Lesson Plan
employees” of DHS, so as to ensure that the complex then proceeds to instruct asylum officers how to “[i]dentify
statutory immigration system is being administered properly, which persons are subject to expedited removal” (id.; see
id. § 1103(a)(1)–(3). The importance of proper training for id. at 7–10), and then discusses the function of the credible
agency officials is expressly acknowledged by statute: the fear screening (see id. at 10), followed by a description of
INA specifically states that training must be provided for all the concept of a “credible fear” of persecution or torture
“officers adjudicating asylum cases under section 1158[,]” that also addresses the standard of proof required to establish
id. § 1157(f), and with respect to the “asylum officer[s]” a credible fear (see id. 10–14). In this regard, the Lesson
who conduct credible fear interviews in particular, the INA Plan specifically instructs that “the credible fear significant
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possibility standard of proof ... requires the applicant to to abide by societal norms regarding the proper role and
identify more than significant evidence that the applicant is behavior of women” (id. ¶ 12). According to the complaint,
a refugee entitled to asylum” (id. at 13 (internal quotation Kiakombua “reached the U.S. border and sought asylum” in
marks omitted)), and that, “even where the officer might April of 2019, “but an asylum officer found that she lacked a
otherwise find the testimony credible[,]” an asylum officer credible fear under the Lesson Plan.” (Id. ¶¶ 8, 12.) In May of
can require the credible fear interviewee to “provide evidence 2019, “[a]n immigration judge subsequently agreed” with the
that corroborates the applicant's testimony” (id. at 12). The asylum officer's conclusion (id. ¶ 13), and Kiakombua was
Lesson Plan focuses next on the procedures for making a then “detained in the custody of the Department of Homeland
credible fear determination: it directs asylum officers how Security” pending removal to Angola (id. ¶ 12). On June
to evaluate credibility in a credible fear interview (see id. at 6, 2019, through “the assistance of pro bono immigration
14–18), and identifies the “elements” that are necessary for consultant[,]” Kiakombua sought “reconsideration of the
establishing a credible fear of persecution (see id. at 19–26) asylum officer's negative credible fear determination” (Am.
or a credible fear of torture (see id. at 26–32). The document Compl. ¶ 15), but that request was denied after a follow-up
also states that, “[i]n order to establish a credible fear of interview (see id. ¶ 16).
persecution, the applicant must establish each one of the
elements” of her asylum claim. (Id. at 20.) It then moves on to Kiakombua filed the instant lawsuit on June 25, 2019. (See
addressing auxiliary matters such as the applicability of bars id. ¶ 17.) The following day Kiakombua (through counsel)
to asylum (see id. at 32–33), and the treatment of dependents “requested that Defendants voluntarily agree to stay [her]
(see id. at 33–34), before closing with a summary overview expedited removal, to obviate the need for Ms. Kiakombua
(see id. at 35–38). 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
C. Plaintiffs’ Asylum-Related Experiences June 6, 2019[,] request for reconsideration, and had found that
Beginning in the spring of 2019, at around the same time Ms. Kiakombua has a credible fear” (id. ¶ 19). Kiakombua
as the USCIS issued the April 2019 version of the Lesson remains detained in USCIS custody (see id. ¶ 13), and has
Plan, the five individual plaintiffs in this case were deemed apparently been served with a Notice to Appear for full
subject to expedited removal, after which they expressed an removal proceedings at a date and time “TBD” (see Sealed
intention to apply for asylum. Each Plaintiff then proceeded Ex. D to Defs.’ Reply (“Kiakombua NTA”), ECF No. 4, at 2).
to have a credible fear screening interview with a USCIS
asylum officer, and each was found not to have a credible fear On June 28, 2019, Kiakombua's counsel filed an amended
of persecution, notwithstanding the alleged circumstances complaint that names four additional plaintiffs, each of whom
under which she had left her home country and arrived in is proceeding under a pseudonym. (See Am. Compl. ¶¶ 20,
the United States. What follows is a brief recounting of the
22, 24, 26.)6
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. 2. “Sofia” and “Julia”
Sofia is a Cuban “medical doctor” who is married to a
U.S. lawful permanent resident. (Id. ¶ 24.) Sofia allegedly
1. Maria Kiakombua “opposes Cuba's ruling party, [and] has made her views
known through her political positions and refusal to acquiesce
*7 Plaintiff Maria Kiakombua allegedly “fled her home in
in demands of government officials.” (Id.) According to the
Angola to escape her boyfriend, a member of the country's
amended complaint, the Cuban government “has accused
military, who beat her—sometimes with a machete—and
[Sofia] of being anti-revolutionary and subjected her to
threatened to kill her if she left him” (Compl., ECF No. 1, ¶
surveillance, threats, and detention[,]” and “[t]he fear and
8), and to find refuge from “repeated attacks ... at the hands
stress Sofia experienced as a result of the Cuban government's
of government officials” (id.), who were “associated with Ms.
actions led her to miscarry a pregnancy and ultimately
Kiakombua's boyfriend [and] came to her home and raped
to decide to flee to the United States immediately, rather
her in the presence of her children, due in part to her failure
than risk waiting in Cuba until her husband's petition
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[on her behalf] was processed.” (Id.) Sofia came to the was also “threatened and emotionally and physically abused
United States in April of 2019, seeking asylum, but an by the father of her daughter[,]” but she was unable to report
“asylum officer determined—pursuant to a credible fear him to the local authorities because of his “close associations
process governed by the unlawful standards and procedures with the police.” (Id.) The amended complaint alleges that, in
contained in the Lesson Plan, and after an interview that June of 2019, an asylum officer determined pursuant to the
lasted under ninety minutes, including interpretation—that Lesson Plan “that Emma lacked a credible fear of persecution
Sofia lacked a credible fear of persecution or torture.” (Id. or torture[,]” and Emma has been ordered detained pending
¶ 25.) “An immigration judge subsequently agreed” and “her hearing with an immigration judge, who will review the
Sofia's request for reconsideration was denied (id.); thus, negative decision issued by the asylum officer.” (Id. ¶ 23.)
Sofia “was deported to Cuba, where she has been questioned
by the authorities about why she fled[,]” and where she On July 8, 2019, Plaintiffs Ana and Emma filed an emergency
“lives in constant fear of further governmental threats and motion for an administrative stay of their impending removals
harassment” (id.). (see Pls.’ Mot. for Admin. Stay of Removal, ECF No. 13,
at 1), which this Court granted—over Defendants’ objection
According to the amended complaint, Julia has also been on jurisdictional grounds (see Defs.’ Opp'n to Pls.’ Mot. for
deported back to her home country (El Salvador) after a Admin. Stay of Removal, ECF No. 16)—“pending resolution
negative credible fear determination in May of 2019 that of th[e] Court's determination of whether it has jurisdiction to
was subsequently affirmed by an immigration judge. (See enter a stay of removal in this case” (Order, ECF No. 18, at
id. ¶ 27.) Julia allegedly “fled El Salvador after witnessing 2 (citing Order Granting Temporary Stay of Removal, Grace
the murder of a neighbor committed by gang members” and v. Whitaker, No. 18-cv-1853, ECF No. 21)). The next day, on
after receiving multiple death threats from that gang “if she July 9, 2019, an immigration judge purportedly determined
reported their crime to the police.” (Id. ¶ 26.) The amended that Emma's negative credible fear determination should be
complaint alleges that Julia came to the United States seeking vacated (see Ex. A to Defs.’ Mot. (“In the Matter of Emma”),
protection in April of 2019, but an asylum officer determined ECF No. 31-3, at 2), and it appears that around that same time
that she “lacked a credible fear of persecution or torture” Ana's negative credible fear determination was reversed by
under the newly revised Lesson Plan. (Id. ¶¶ 26–27.) 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;
3. “Ana” and “Emma”
Ex. B to Defs.’ Notice of Sealed Filing (“Emma's NTA”), ECF
*8 Ana was allegedly “forced to flee El Salvador after No. 81-2, at 2.)
receiving death threats from gang members who targeted
her husband, [who is] a landowner, and his family.” (Id. ¶
D. Procedural History
20.) According to the amended complaint, “[i]n addition to
As mentioned above, Kiakombua filed her original complaint
sending death threats to [Ana], the gang members threatened
on June 25, 2019 (see Compl., ECF No. 1), and Ana, Emma,
several other family members and shot her husband and her
Sofia, and Julia joined with Kiakombua to file an amended
nine-year-old granddaughter, although both survived.” (Id.)
complaint three days later (see First Am. Compl., ECF No. 6),
The local “police were of little assistance” and, therefore,
which was subsequently supplemented and superseded (see
in May of 2019, Ana sought refuge in the United States.
(Id.) After “an asylum officer determined[,]” allegedly Suppl. First Am. Compl. (“Am. Compl.”), ECF No. 62-2).7
pursuant to the Lesson Plan, “that Ana lacked a credible Their pleading alleges that the asylum officers who undertook
fear of persecution or torture[,]” and “[a]n immigration judge to make their credible fear determinations relied on the April
subsequently agreed[,]” Ana was detained pending removal. 2019 Lesson Plan (see id. ¶¶ 14, 21, 23, 25, 27), and that
(Id. ¶ 21.) the Lesson Plan's credible fear guidance is unlawful for three
“independent” reasons (Pls.’ Mot. at 39).
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, 1. Plaintiffs’ Legal Claims
Emma was “beaten and sexually abused by her brother[,]” and
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*9 Plaintiffs’ “First Claim for Relief” (see Am. Compl. 6); (3) vacatur of any negative credible fear determinations
¶¶ 89–98) is brought under section 1252(e)(3) of the INA: and removal orders issued to Plaintiffs, and injunctive relief
Plaintiffs allege that the Lesson Plan is one of the agency's to provide them with new credible fear screenings or, in the
written policies that is made reviewable pursuant to section alternative, to place them in full removal proceedings (see
1252(e)(3) of the INA, and that it must be “vacated” upon id. ¶¶ 3, 7); and (4) as to Plaintiffs Sofia and Julia, who
review (id. ¶ 98), because it is both not “consistent with were deported, injunctive relief to either parole them into the
applicable provisions of [Subchapter II of the INA]” (id. United States and provide them new credible fear interviews
¶ 90 (quoting 8 U.S.C. § 1252(e)(3)(A)(ii)) (alteration in under the correct legal standards (see id. ¶ 7), or, alternatively,
original)), as amended by the Refugee Act (see id. ¶ 92), and place them in full removal proceedings (see id.).
“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
2. The Parties’ Cross-Motions For Summary Judgment
Convention Against Torture and its implementing regulations
(see id. ¶ 93), and “customary international law” (id. ¶¶ 94– Following this Court's administrative stay of Plaintiffs Ana's
95). and Emma's removals (see Order, ECF No. 18), the parties
agreed to file cross-motions for summary judgment in
Plaintiffs’ “Second Claim for Relief” (id. ¶¶ 99–103) invokes lieu of separately briefing various jurisdictional issues that
section 706(2)(D) of the APA, which authorizes courts to hold Defendants intended to raise concerning these Plaintiffs’
“unlawful and set aside” agency actions that fail “to observe request for a stay of removal (see Defs.’ Mot., ECF No. 31-1;
the procedure required by the APA” (id. ¶ 103 (citing 5 U.S.C. Pls.’ Mot., ECF No. 36-1). The parties’ cross-motions ripened
§ 706(2)(D)). In this regard, the amended complaint alleges on October 10, 2019. (See Defs.’ Reply, ECF No. 49; Pls.’
that the APA “requires agency action that is substantive
Reply, ECF No. 60.)8
(or ‘legislative’) in nature to follow notice-and-comment
procedures” (id. ¶ 100), and that, even though the Lesson
*10 In their motion for summary judgment, which takes
Plan “reflects one or more substantive rules” (id. ¶ 101),
a kitchen-sink approach, Defendants first raise a number of
“Defendants did not follow notice-and-comment rulemaking
threshold arguments concerning Plaintiffs’ lack of Article III
procedures” (id. ¶ 102).
standing and the Court's lack of subject-matter jurisdiction
over Plaintiffs’ claims. They argue, for example, that this
Plaintiffs’ “Third Claim for Relief” invokes the Due Process
Court “should dismiss the Amended Complaint because no
Clause of the Fifth Amendment to the U.S. Constitution. (Id.
Plaintiff has standing to challenge the Lesson Plan.” (Defs.’
¶¶ 104–108.) Plaintiffs allege that they have a constitutionally
Mot. at 24.) They also maintain that “the INA precludes the
“protected interest ... in not being removed to countries
Court from exercising jurisdiction over this case[,]” because
where they face serious danger, persecution, and potential
(1) “the Lesson Plan does not ‘implement’ the expedited
loss of life” (id. ¶ 105), and that, although the Due Process
removal statute” for the purpose of section 1252(e)(3)(A)(ii)
Clause entitles them to a “fair hearing of their claims, and a
(id. at 30), or (2) “the Lesson Plan is not a statute, regulation,
meaningful opportunity to establish their potential eligibility
policy directive, policy guideline, or procedure” within the
for asylum and other forms of relief from removal” (id. ¶
meaning of section 1252(e)(3)(A)(ii) (id. at 30–31), or (3)
106), the Lesson Plan violates those rights by “subjecting
the Lesson Plan does not meet the “jurisdictional requirement
[Plaintiffs’] claims to unlawful, more burdensome legal
that these challenges be filed ‘no later than 60 days after
standards” (id. ¶ 107), and therefore should “be enjoined” (id.
the date the challenged [action] ... is first implemented’
¶ 108).
” (Defs.’ Reply at 17 (quoting 8 U.S.C. § 1252(e)(3)(B))).
Over the course of multiple filings submitted over many
Based on these alternative grounds for relief, Plaintiffs seek
months, Defendants have also pressed another independent
various remedies (see Am. Compl. at 26–27 (“Prayer for
ground for dismissal: that the entire dispute is moot, because
Relief”)), including: (1) a declaration that the Lesson Plan, all
“Defendants have placed [Kiakombua, Ana, and Emma] into
related guidance documents, and all credible fear proceedings
full § 1229a removal proceedings by filing a ‘Notice to
undertaken pursuant to the Lesson Plan are not consistent
Appear’ ” (Defs.’ Reply at 13; see also Defs.’ Status Update
with the INA (see id. ¶ 4); (2) an order vacating the entire
on Mootness (“Defs.’ Mootness Notice”), ECF No. 80, at 1–
Lesson Plan and prospectively enjoining its use (see id. ¶¶ 5–
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2), and because Sofia and Julia “have been removed” (Defs.’ is unreviewable” under the APA are all “red herrings” (Pls.’
Mootness Notice at 4). Mot. at 36) and, in any event, that the Court can set aside the
Lesson Plan “on numerous independent grounds,” including
With respect to the merits of Plaintiffs’ claims, Defendants that: (1) “it is not consistent with the governing [immigration]
generally contend that “the Lesson Plan is not actionable statutes and regulations” (id. at 39); (2) “it was revised in an
under either the APA or the INA[,]” because it is nothing more arbitrary and capricious manner” and (3) “it was required to,
than “a training module that agency instructors are supposed but did not, go through notice and comment rulemaking” (id.);
to use to train asylum officers to correctly make credible fear and (4) “it is not consistent with due process” (id.). Finally,
determinations consistent with applicable law.” (Defs.’ Mot. in closing, Plaintiffs argue that section 1252 “does not curtail
at 37.) Defendants further argue, more specifically, that the this Court's [traditional] authority to issue a [full] remedy” in
Lesson Plan is not a “ ‘rule’ as defined in the APA” (id.); does this case. (Id. at 63.)
not “impose obligations or confer rights on anybody” (id.);
has “no legal significance” (id.); and is not “final” within *11 The Court held a motions hearing on October 22,
the meaning of the APA, and is therefore not subject to APA 2019 (see Minute Entry of Oct. 22, 2019), after which it
review (id.). Additionally, Defendants argue that Plaintiffs’ ordered the parties to file supplemental briefs on the issue
INA claim fails because the Lesson Plan does not “misstate of remedies, with a particular focus on whether the entire
the immigration statutes and DHS's own regulations” (id. Lesson Plan had to be vacated if Plaintiffs were successful
at 48) and, instead, “reasonably portrays asylum and CAT or whether the allegedly unlawful provisions of the Lesson
law” (id. at 51). Furthermore, according to Defendants, while Plan were severable from the remainder of the document. (See
Plaintiffs’ “due process claim also fails on the merits” (id. at Pls.’ Suppl. Br. on Severability, ECF No. 68; Defs.’ Suppl.
60), Plaintiffs have not satisfied the threshold requirement of Br. on Severability, ECF No. 69.) The Court subsequently
establishing that “the Lesson Plan falls short of the minimum administratively stayed its consideration of the parties’ cross-
constitutional procedures [the immigration] statutes purport motions and supplemental briefs, pending the D.C. Circuit's
to provide” (id. at 59 (citation omitted)). Lastly, Defendants decision in Grace v. Barr (“Grace II”), 965 F.3d 883 (D.C.
maintain that, even if the Court agrees with Plaintiffs on Cir. 2020). (See Minute Order of Mar. 5, 2020 (noting
the merits, the Court “may only determine the Lesson Plan's that Grace II “present[ed] threshold issues concerning the
lawfulness, and lacks statutory authority to enjoin or vacate meaning of various statutory terms” under the INA, and
the Lesson Plan or stay removals.” (Id. at 63; see also id. at “substantially similar questions of law arise in the context of
67 (arguing that, accordingly, “the Court should dissolve its the present dispute”).) The D.C. Circuit released its opinion
earlier stay [of removal] order”).) in Grace II on July 17, 2020, after which this Court lifted its
stay and ordered supplemental briefs on the impact of Grace
Plaintiffs’ cross-motion for summary judgment argues that II with respect to the instant dispute. (See Minute Order of
each Plaintiff has “the personal stake necessary to establish July 22, 2020; see also Defs.’ Suppl. Brief Regarding Grace
standing” under Article III, because each has received a v. Barr (“Defs.’ Grace Brief”), ECF No. 72; Pls.’ Suppl.
negative credible fear determination, and because “all five Brief Regarding Grace (“Pls.’ Grace Brief”), ECF No. 76;
had their protection claims evaluated under the Lesson Plan” Pls.’ Suppl. Responsive Brief Regarding Grace (“Pls.’ Grace
that is being challenged in this action. (Pls.’ Mot. at 32.) Thus, Reply”), ECF No. 77; Defs.’ Reply Suppl. Brief Regarding
Plaintiffs say that their injuries are “traceable” to the Lesson Grace v. Barr (“Defs.’ Grace Reply”), ECF No. 78.) The
Plan and can be remedied by the Court. (Id.) Plaintiffs also parties’ cross-motions for summary judgment are now ripe
argue that this Court has jurisdiction over their claims, either for decision.
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 III. LEGAL STANDARDS
jurisdiction in this context. (Id. at 30 (internal quotation marks Although Defendants’ motion is formally styled as a motion
and citation omitted).) Plaintiffs further reject Defendants’ for summary judgment (see Defs.’ Mot. at 1), Defendants
contention that their claims have become moot as “utterly vigorously contend, as threshold matter, that “the Court lacks
meritless[.]” (Pls.’ Resp. to Defs.’ Mootness Notice, ECF jurisdiction over this case and should dismiss it” (id. at 36).
No. 82, at 1.) And as to the merits of their claims, Plaintiffs Consequently, Defendants’ cross-motion is best construed as
contend that Defendants’ arguments for why “the Lesson Plan a motion to dismiss for lack of subject-matter jurisdiction
under Rule 12(b)(1) or, in the alternative, a motion for
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summary judgment under Rule 56(a). See, e.g., Kirkham v. the plaintiff “the benefit of all inferences that can be derived
Société Air France, 429 F.3d 288, 291 (D.C. Cir. 2005); see from the facts alleged.” Delta Air Lines, Inc. v. Exp.-Imp.
also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015) (internal
Kane, Federal Practice and Procedure § 2713 (4th ed. 2020) quotation marks and citation omitted). However, those factual
(“[T]he label attached to the motion should not prevent the allegations receive “closer scrutiny” than they would in the
court from deciding a summary-judgment motion challenging Rule 12(b)(6) context. Id. (internal quotation marks and
the court's subject-matter jurisdiction as a suggestion that citation omitted). Moreover, unlike a Rule 12(b)(6) motion,
the court dismiss the action on that ground.”). Thus, the the court may look to documents outside of the complaint in
legal standards for both Rule 12(b)(1) motions to dismiss and order to evaluate whether or not it has jurisdiction to entertain
Rule 56 motions for summary judgment apply in the instant a claim. See Jerome Stevens Pharms., Inc. v. F.D.A., 402 F.3d
circumstances. 1249, 1253 (D.C. Cir. 2005). If the court 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
A. Motions To Dismiss Under Federal Rule Of Civil jurisdiction, then the court lacks subject-matter jurisdiction to
Procedure 12(b)(1) entertain the claim and must dismiss it. See Fed. R. Civ. P.
Federal Rule of Civil Procedure 12(b)(1)—which authorizes 12(b)(1), (h)(3).
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 B. Rule 56 Motions For Summary Judgment With
within the scope of its jurisdictional authority[,]” Grand Respect To Legal Claims That Assail Agency Action
Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. Under The APA And Otherwise
2d 9, 13 (D.D.C. 2001). “The requirement that jurisdiction Pursuant to Federal Rule of Civil Procedure 56, if a case
be established as a threshold matter springs from the nature raises “no genuine dispute as to any material fact[,]” courts
and limits of the judicial power of the United States and will ordinarily enter summary judgment in favor of the party
is inflexible and without exception.” Steel Co. v. Citizens that “is entitled to judgment as a matter of law.” Fed. R. Civ.
for a Better Env't, 523 U.S. 83, 94–95 (1998) (internal P. 56(a). And if both parties file cross-motions for summary
quotation marks and alterations omitted); see also Kokkonen judgment concerning issues that “are purely legal in nature[,]”
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 then “the entry of summary judgment for the party entitled
(1994) (explaining that “[f]ederal courts are courts of limited to prevail as a matter of law is appropriate.” Teva Pharms.,
jurisdiction” and, thus, “possess only that power authorized Indus., Ltd. v. F.D.A., 355 F. Supp. 2d 111, 116 (D.D.C.
by Constitution and statute”). 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.
The doctrines of standing, mootness, and ripeness are “[t]hree 2002) (explaining, with respect to cross-motions for summary
inter-related” doctrines that determine the “constitutional judgment, that “the court shall grant summary judgment only
boundaries” of a court's jurisdiction. Worth v. Jackson, 451 if one of the moving parties is entitled to judgment as a matter
F.3d 854, 855, 857 (D.C. Cir. 2006). Indeed, “the defect of of law upon material facts that are not genuinely disputed”).
standing is a defect in subject matter jurisdiction[,]” Haase
v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987), and so, Notably, with respect to cross-motions for summary judgment
too, is a motion to dismiss for mootness “properly brought concerning legal claims that challenge agency action under
under Federal Rule of Civil Procedure 12(b)(1)[,]” Friends the APA, the respective duties of the agency and the court
of Animals v. Salazar, 670 F. Supp. 2d 7, 11 (D.D.C. 2009). are well established: “it is the role of the agency to resolve
Likewise, because a court's subject-matter jurisdiction is “a factual issues to arrive at a decision that is supported by the
statutory requirement[,]” Akinseye v. District of Columbia, administrative record, whereas the function of the district
339 F.3d 970, 971 (D.C. Cir. 2003) (internal quotation marks court is to determine whether or not as a matter of law the
and citation omitted), “congressional preclusion of judicial evidence in the administrative record permitted the agency
review is in effect jurisdictional” as well, Block v. Cmty. to make the decision it did.” Catholic Health Initiatives v.
Nutrition Inst., 467 U.S. 340, 353 n.4 (1984). Sebelius, 658 F. Supp. 2d 113, 117 (D.D.C. 2009) (internal
quotation marks and citations omitted). However, if a plaintiff
*12 When ruling on a Rule 12(b)(1) motion, a court must alleges that an agency has engaged in conduct that directly
“treat the complaint's factual allegations as true” and afford contravenes a substantive statute that has a cause of action for
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that violation—such as claims brought under section 1252(e) Lesson Plan and require USCIS to make new credible fear
(3) of the INA for agency conduct that is “not consistent determinations with respect to each Plaintiff.
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 A. Plaintiffs Have Article III Standing To Challenge
conducting its legal analysis[,]” and “must take into account The Lesson Plan, And Defendants Have Not
relevant legal authority, including statutes, regulations, and Established That Plaintiffs’ Claims Are Moot
agency authority[,]” Nio v. Dep't of Homeland Sec., 385 F.
Supp. 3d 44, 59 (D.D.C. 2019). Those legal authorities are 1. Plaintiffs Suffered An Injury In Fact, Which Is Fairly
binding on both the court and the agency, and the court will Traceable To The Lesson Plan, And May Be Redressed By
analyze them to determine which party, if any, is entitled to An Order Vacating The Lesson Plan And Requiring New
judgment as a matter of law with respect to the plaintiff's Credible Fear Determinations
challenge to the agency's administrative action.
Defendants’ opening salvo is the contention that “no Plaintiff
has standing to challenge the Lesson Plan.” (Defs.’ Mot. at
IV. ANALYSIS 24.) Thus, the Court begins by assessing whether any Plaintiff
The central question at issue in the instant case is whether has, in fact, demonstrated the “irreducible constitutional
the Lesson Plan's various pronouncements concerning the minimum” circumstances necessary to invoke a federal
manner in which USCIS asylum officers are to make credible court's subject-matter jurisdiction over a lawsuit, Spokeo, Inc.
fear determinations are irreconcilable with the statutory v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotation
and regulatory provisions that govern those screenings (see marks and citation omitted), which consist of three elements:
Am. Compl. ¶¶ 89–98) or, alternatively, whether USCIS injury in fact, causation, and redressability, see Dominguez
has violated other procedural or constitutional requirements v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012); see
(see id. ¶¶ 99–108) with respect to the Lesson Plan's also J.D. v. Azar, 925 F.3d 1291, 1323–24 (D.C. Cir. 2019)
promulgation or its contents. As now happens with fair (“It is settled that in a case involving joined, individual
frequency, Defendants have presented a slew of arguments plaintiffs bringing a shared claim seeking a single remedy,
concerning various potential threshold impediments to the Article III's case-or-controversy requirement is satisfied if
Court's consideration of the merits of Plaintiffs’ legal claims one plaintiff can establish injury and standing.” (internal
(see generally Defs.’ Mot. at 24–36)—sometimes all within a citation omitted)). As further explained below, Plaintiffs are
single paragraph.9 The Court's evaluation of these sometimes asylum seekers who underwent credible fear interviews and
conflated contentions has required a methodical analysis of who maintain that USCIS evaluators applied the unlawful
myriad legal issues, some of which the D.C. Circuit has provisions contained in the Lesson Plan to determine that each
recently considered as well. Plaintiff lacked a credible fear. Therefore, it is clear to this
Court that Plaintiffs have suffered an injury in fact that is
*13 Ultimately, as explained below, the Court has fairly traceable to the challenged Lesson Plan and that is likely
determined that each of Defendants’ threshold arguments to be redressed by a favorable ruling of this Court.
fails, and that several provisions of the Lesson Plan are
patently at odds with the credible fear screening scheme To start, there is no serious dispute that these Plaintiffs—
that Congress has crafted. Notably this fundamental flaw who, again, allege that USCIS officers evaluated their asylum
in the agency's training materials manifests itself in various requests pursuant to unlawful Lesson Plan provisions, after
ways—e.g., at times, USCIS has imported the standards and which each Plaintiff was slated for expedited removal from
burdens that apply only during full removal proceedings into the United States based upon the officers’ negative credible
the expedited removal screening process; at other times, the fear determinations—have adequately identified an injury in
agency makes pronouncements about the law that clash with fact. This is because it is well established that a plaintiff has
the applicable provisions of the INA itself. And because the standing to bring a claim concerning a procedural injury if
unlawful provisions of the Lesson Plan cannot be effectively she can show that the agency failed to abide by a procedural
severed from the remainder of the document, the Court will requirement that was “designed to protect some threatened
exercise its standard equitable authority to vacate the entire 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.
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of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (concluding latest applicable RAIO Lesson Plans for the most recent
that an applicant for admission had standing to challenge guidance on determining asylum eligibility.” (Ex. 3 to Admin.
a university's affirmative action admissions program even Record, ECF No. 61-3, at 3.) Plaintiffs have also offered
though the applicant “had been unable to prove that he the sworn declaration of a retired USCIS supervisory asylum
would have been admitted in the absence of the [challenged] officer as proof that the officers do, in fact, reference the
program”); Grace v. Whitaker (“Grace I”), 344 F. Supp. 3d Lesson Plan when making credible fear determinations; the
96, 119 (D.D.C. 2018), aff'd in relevant part, Grace II, 965 declarant explains that the agency “requires” officers to
F.3d 883 (holding that plaintiffs had suffered an injury in follow the Lesson Plan, and that USCIS uses it not only as
fact because they alleged that new “credible fear policies a training material but also for disciplinary purposes. (Ex. B
impermissibly raise their burden and deny plaintiffs a fair to Pls.’ Mot., ECF No. 36-3, at 76–78.) Internal memoranda
opportunity to seek asylum and escape the persecution they from DHS further reveal that USCIS performs a quality
have suffered”).10 assurance “review of [credible fear] determinations based
on the revised lesson plan[.]” (Ex. 28 to Admin. Record,
*14 Consequently, Defendants’ primary arguments with ECF No. 61-25, at 3 (emphasis added).) Thus, the Court
respect to Article III standing are that these Plaintiffs’ alleged finds that the record evidence is sufficient to show that the
procedural injuries are not fairly traceable to the Lesson Plan, challenged version of the Lesson Plan was in effect at the
and that, in any event, an order from this Court vacating the time that Plaintiffs’ credible fear determinations were made,
Lesson Plan and requiring USCIS to undertake new credible and that the Lesson Plan's prescriptions are binding on USCIS
fear determinations for these Plaintiffs would not actually asylum officers, who use them to determine whether asylum
redress those injuries. (See Defs.’ Mot. at 27–29; see also seekers have a credible fear as is necessary to establish their
Defs.’ Reply at 10–12.). On the traceability front, Defendants asylum eligibility. Accordingly, Plaintiffs have demonstrated
attempt to assail the factual basis for Plaintiffs’ claim that it the requisite connection between the Lesson Plan and their
was the Lesson Plan that caused Plaintiffs’ alleged injuries; in alleged harm, and have therefore established traceability for
this regard, Defendants argue that “Plaintiffs have produced the purpose of the Article III standing inquiry. See Mendoza v.
zero evidence that the Lesson Plan, and the new standards it Perez, 754 F.3d 1002, 1012 (D.C. Cir. 2014) (explaining that
allegedly pronounced, played any role in Plaintiffs’ negative a plaintiff “need not show the agency action would have been
credible fear determinations.” (Defs.’s Mot. at 27.) But “[a] different had it been consummated in a procedurally valid
plaintiff who alleges a deprivation of a procedural protection manner—the courts will assume this portion of the causal
to which he is entitled never has to prove that if he had link”).
received the [proper] procedure the substantive result would
have been altered.” Sugar Cane Growers Coop. v. Veneman, Defendants’ redressability argument is likewise unavailing.
289 F.3d 89, 94 (D.C. Cir. 2002). Instead, “[a]ll that is Again, Plaintiffs are not asking the Court to require “DHS
necessary is to show that the procedural step was connected [to] reach any particular decision” about their credible fear of
to the substantive result.” Id. at 95 (emphasis added). And, persecution or torture; instead, they are merely requesting that
here, there is ample record evidence that connects the this Court order that the agency afford the procedures and “the
allegedly unlawful Lesson Plan provisions to the credible fear consideration that they are due under the statute.” Ramirez v.
determinations that the agency rendered with respect to each I.C.E., 338 F. Supp. 3d 1, 31 (D.D.C. 2018). Defendants argue
Plaintiff. nevertheless that Plaintiffs’ alleged injury is not redressable,
because even if the Court requires USCIS asylum officers
For one thing, it is clear that the April 2019 Lesson Plan to evaluate Plaintiffs’ asylum eligibility without reference to
was binding guidance for USCIS asylum officers at the the allegedly tainted Lesson Plan provisions, such an order
time that Plaintiffs’ interviews were conducted. Cf. Fed. does not pertain to the immigration judge's subsequent review
Forest Res. Coal. v. Vilsack, 100 F. Supp. 3d 21, 35 (D.D.C. of the asylum officer's determination, and thus addresses
2015). Indeed, the April 2019 Lesson Plan became effective “only one of two government actions that both independently
on April 30, 2019 (see Lesson Plan at 2), and Plaintiffs’ produce the same alleged harm.” Kaspersky Lab, Inc. v.
credible fear determinations took place between May and Dep't of Homeland Sec., 311 F. Supp. 3d 187, 219 (D.D.C.
June of 2019 (see Am. Compl., ¶¶ 8, 14, 21, 23, 25, 27). 2018). (See also Defs.’ Mot. at 29 (emphasizing that “it
Moreover, according to DHS, when making credible fear was the Immigration Judge—not a USCIS asylum officer
assessments, “Asylum Officers must continue to refer to the —who made the ultimate call on whether each Plaintiff
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had a negative credible fear of persecution or torture”).) In them, rendering their legal claims moot. (Defs.’ Mootness
so arguing, Defendants once again misconstrue the relevant Notice at 4.) Notably, it is Defendants’ “heavy burden” to
injury, which is not the substantive determination regarding show that there is no longer any case or controversy with
each Plaintiff's lack of a credible fear, but the asylum officer's respect to a plaintiff's claims, Honeywell Int'l, Inc. v. Nuclear
application of the allegedly unlawful Lesson Plan when each Regul. Comm'n, 628 F.3d 568, 576 (D.C. Cir. 2010) (internal
Plaintiff's credible fear determination was made. See Ctr. quotation marks and citation omitted), and the Supreme Court
for Biological Diversity v. E.P.A., 861 F.3d 174, 184–85 has made clear that, “[a]s long as the parties have a concrete
(D.C. Cir. 2017). And that harm occurred at the point in interest, however small, in the outcome of the litigation, the
which the asylum officer referenced the allegedly unlawful case is not moot[,]” Chafin v. Chafin, 568 U.S. 165, 172
Lesson Plan provisions, so it would be fully redressed by (2013). This Court finds that Defendants have not carried
a court order that requires new credible fear interviews for the heavy burden of establishing mootness, for the following
these Plaintiffs conducted by officers who do not rely upon reasons.
such allegedly unlawful standards when Plaintiffs’ asylum
eligibility is assessed.11 First of all, Defendants have not demonstrated that
Kiakombua, Emma, and Ana have actually been placed
*15 In short, if Plaintiffs’ claim that the USCIS asylum into full removal proceedings. The relevant statutory and
officers who undertook to determine whether they each had regulatory provisions plainly establish not only that “[e]very
a credible fear of persecution or torture could not lawfully removal proceeding ... is commenced by the filing of a
reference the Lesson Plan when making that determination notice to appear with the immigration court[,]” 8 C.F.R. §
—as the Court must assume for the purpose of evaluating 1239.1(a), but also that notice of “the time, place, and date
standing, see City of Waukesha v. E.P.A., 320 F.3d 228, of [the] hearing” must be given to the noncitizen before
235 (D.C. Cir. 2003)—then these Plaintiffs (to whom the the commencement of removal proceedings, 8 C.F.R. §
Lesson Plan was applied with respect to the adverse credible 1003.18(b); see also 8 U.S.C. § 1229(a)(1) (stating that, “[i]n
fear determination that each asylum officer made) have removal proceedings under section 1229a ..., written notice
established a procedural injury in fact that is fairly traceable (in this section referred to as a ‘notice to appear’) shall be
to the challenged agency action, and which an order of this given in person to the alien ... specifying ... [t]he time and
Court could potentially redress. 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
2. Defendants Have Not Persuasively Demonstrated filed with the immigration court. (See Kiakombua NTA at
Mootness 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
In the realm of threshold jurisdictional contentions,
‘notice to appear’ mean anything ..., they must mean that,
Defendants also insist that subsequent developments with
at a minimum, the Government has to provide noncitizens
respect to each Plaintiff have mooted all of the claims
‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that
that appear in Plaintiffs’ complaint. (See Defs.’ Reply
would enable them ‘to appear’ at the removal hearing in the
at 12; see also Defs.’ Mootness Notice at 1.) To hear
first place.” Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018).
Defendants tell it, “the challenged Lesson Plan is no longer
Thus, a Notice to Appear that is incapable of triggering the
causing” Plaintiffs Kiakombua, Emma, and Ana “any legally
initiation of a removal proceeding—such as the ones provided
cognizable injury[,]” because they have “each received the
to Plaintiffs Kiakombua, Ana, and Emma—do not suffice to
relief they requested” (Defs.’ Reply at 12–13; see also
establish that these Plaintiffs are presently in full removal
Defs.’ Mootness Notice at 1–4) insofar as USCIS has
proceedings within the meaning of the INA, such that their
placed them “into full § 1229a removal proceedings by
claims have become moot.
filing a Notice to Appear” (Defs.’ Reply at 13 (internal
quotation marks and citation omitted)). At the other end
*16 The cases that Defendants rely upon to support their
of the spectrum, Defendants argue that, because Julia and
mootness assertion with respect to these Plaintiffs are non-
Sofia “have [already] been removed” from the United States,
binding precedents from other jurisdictions and are also
the consequences of the allegedly tainted adverse credible
wholly inapposite. In Pierre-Paul v. Barr, 930 F.3d 684 (5th
fear determination have already played out with respect to
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Cir. 2019), for example, the Fifth Circuit held that a noncitizen claim and in any future immigration proceedings”).) The
could not challenge the immigration judge's jurisdiction on Court also agrees with Plaintiffs’ argument that, by focusing
appeal on the grounds that a statutorily defective Notice to exclusively on the purported limitations on USCIS's ability
Appear had been filed with the immigration court. Although to switch these Plaintiffs’ statuses unilaterally at this point
the panel held that, under the applicable regulations, a Notice in the process (without making any similar representations
to Appear that lacks time-and-place information may be concerning the power of any other defendant-agency to do
sufficient to vest jurisdiction in the immigration court, see so (see Defs.’ Mootness Notice at 3; Defs.’ Reply at 14)),
id. at 689–90, that holding says nothing about whether, per “Defendants have failed to carry their burden of proving that
the INA and its implementing regulations, the agency must there is no possibility that the women could be returned to
provide notice of the time and place of the full removal expedited removal” (Pls.’ Reply at 16). Cf. United States v.
hearing and file that notice with the immigration court in W. T. Grant Co., 345 U.S. 629, 633 (1953) (holding that such
order for a noncitizen to be deemed to have been placed in a disclaimer “does not suffice to make a case moot although
full removal proceedings, see 8 C.F.R. §§ 1003.18(b), 1239.1. it is one of the factors to be considered”).
And, indeed, “Congress's decision to nest ‘service’ of an
NTA under ‘[i]nitiation of removal proceedings’ suggests ... Furthermore, to be clear: it is not Plaintiffs’ responsibility
that Congress intended for service” of a statutorily compliant to establish a non-speculative possibility of their being
Notice to Appear “to operate as the point of commencement returned to expedited removal status, as Defendants suggest.
for removal proceedings.” Perez-Sanchez v. U.S. Att'y Gen., (See Defs.’ Mootness Notice at 3.) Rather, “a court may
935 F.3d 1148, 1154 (11th Cir. 2019). And “the agency [is] not not conclude that a defendant's voluntary cessation of
free to redefine the point of commencement[,]” id., because disputed conduct renders a case moot unless the party urging
“[i]f Congress has defined a term, then an implementing mootness demonstrates[,]” among other things, that it is
regulation cannot re-define that term in a conflicting way[,]” “absolutely clear that the allegedly wrongful behavior could
Ortiz-Santiago v. Barr, 924 F.3d 956, 961 (7th Cir. 2019). not reasonably be expected to recur.” Zukerman v. U.S.P.S.,
961 F.3d 431, 442–46 (D.C. Cir. 2020) (emphasis added)
Even if one assumes that the statutorily defective Notices (internal quotation marks and citation omitted); see also
to Appear that were issued to Kiakombua, Ana, and Emma Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980 (D.C.
after commencement of the instant case were sufficient to Cir. 2016) (rejecting the “tactic” of “attempting to foist [the]
trigger full removal proceedings for these Plaintiffs, it is burden onto” plaintiffs to establish that a case is not moot).
not at all clear that the legal claims concerning the Lesson And not only have Defendants failed to make such showing
Plan have been mooted as a result. See O.A. v. Trump, 404 under the instant circumstances, but Plaintiffs’ counsel avers
F. Supp. 3d 109, 139–40 (D.D.C. 2019) (holding that the that there have, in fact, been instances where “DHS has taken
issuance of a Notice to Appear after a complaint has been individuals in § 1229a proceedings and put them in expedited
filed does not moot a plaintiff's section 1252(e)(3) challenge). removal[.]” (Pls.’ Resp. to Defs.’ Mootness Notice at 3.)
If there is any possibility that the prior adverse credible Therefore, this Court concludes that Defendants have failed
fear determination could be used to thwart Plaintiffs’ efforts to show that the claims Kiakombua, Ana, and Emma have
to obtain full consideration of their asylum applications, brought are now moot.
then their claims are not moot, and, here, the credible
fear findings appear to remain a part of each Plaintiff's *17 Defendants’ argument that Sofia's and Julia's removals
record. (See Ex. 8 to Admin. Record, ECF No. 61-8, at 19– from the United States have mooted their legal claims is even
20 (explaining that USCIS maintains “A-files of detained less persuasive. The D.C. Circuit permits the continuation of
aliens[,]” which include the asylum officer's “Interview similar challenges by noncitizens whom the government has
Notes—non-Q&A and Q&A format, both handwritten and already removed. See, e.g., Am. Immigr. Laws. Ass'n v. Reno
typed[,]” “Comments ... regarding negative credible fear (“AILA II”), 199 F.3d 1352, 1363 (D.C. Cir. 2000) (noting
determination[,]” and a “Memo of Adverse Information, if that, “[w]hen an alien returned to his native country, nothing
any.”); Ex. 11 to Admin. Record, ECF No. 61-10, at 3 prevented him from bringing suit here” under section 1252(e)
(showing that, as part of USCIS's “Record of Determination/ (3) of the INA). Moreover, this Court has little doubt that it
Credible Fear Worksheet” (Form I-870), asylum officers could grant Sofia and Julia effective relief notwithstanding the
inform noncitizens that “[t]he statements [they] make today fact that they have been returned to their home countries; for
[at the credible fear interview] may be used in deciding [their] instance, the Court could order “the government to return to
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the United States the plaintiffs who were unlawfully deported party would be subjected to the same action again” (internal
and to provide them with new credible fear determinations quotation marks, citation, and alteration omitted)).
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 B. This Court Has Subject-Matter Jurisdiction
the requested relief does not render a legal claim moot. The To Review Agency Action That Allegedly Violates
scope of relief “goes to the meaning of the [applicable statute] Provisions Of The INA
and the legal availability of a certain kind of relief[,]” and it The final threshold disagreement between the parties in
“confuses mootness with the merits” to argue that the case no this case centers around the scope and meaning of section
longer presents a live controversy because the court does not 1252 of Title 8 of the United States Code, and the extent
have the authority to grant the requested relief. Chafin, 568 to which that statutory provision preserves, or eliminates,
U.S. at 174. this Court's subject-matter jurisdiction over Plaintiffs’ claims
concerning the Lesson Plan. Plaintiffs maintain that “[t]he
Finally, this Court notes that moving a noncitizen from Lesson Plan is reviewable under the plain text of 8
expedited removal to full removal proceedings does not U.S.C. § 1252(e)(3)[,]” which “expressly authorize[s] judicial
necessarily portend dismissal (on mootness grounds) of a review of ‘Challenges on the validity of the [expedited
noncitizen's challenge to expedited removal procedures. In removal] system’ ” and, in particular, challenges to written
the immigration context, courts have consistently recognized regulations, policy directives, or guidelines that “implement”
the compelling concern that an agency whose removal the expedited removal statute (Pls.’ Mot. at 23); according
practices are challenged in court can effectively insulate to Plaintiffs, this grant of authority plainly encompasses
itself from judicial review by acting quickly to issue Notices “[judicial] review of a written policy and procedure (the
to Appear or to expedite removal, and then arguing that Lesson Plan) issued by the Secretary of Homeland Security
the court thereby lacks jurisdiction over those plaintiffs’ (through its component USCIS) to implement” the asylum
legal claims. See O.A., 404 F. Supp. 3d at 140 (rejecting aspect of the expedited removal scheme (id. at 23–24).
the argument that the court “would lose jurisdiction under Defendants respond that, while the Court might otherwise
§ 1252(e)(3) if the government moves the plaintiff from have had subject-matter jurisdiction over Plaintiffs’ claims
expedited to full removal proceedings—up to the moment the under 28 U.S.C. § 1331, “the INA precludes the Court
Court enters final judgment”—because “[t]hat reading of the from exercising jurisdiction over this case” precisely because
statute would attribute to Congress an intent to empower the Plaintiffs’ claims concern the agency's practices with respect
government to avoid an unfavorable decision at any time,” to screening individuals for expedited removal. (Defs.’ Mot.
and “[c]onsidered against the backdrop of the usual rule, at 30.) In this regard, Defendants point to the fact that the
which fixes statutory jurisdiction at the time the complaint INA (specifically, 8 U.S.C. § 1252(a)(2)(A)) “bars district-
is filed, that contention is a step too far”). In any event, court jurisdiction in cases involving orders of expedited
at a minimum, this concern raises the specter of a standard removal, other than as permitted by section 1252(e)”—a
exception to mootness: the “capable of repetition yet evading subdivision that Defendants read as authorizing “review only
review” doctrine. Del Monte Fresh Produce Co. v. United of regulations and written policies that establish the structure
States, 570 F.3d 316, 322 (D.C. Cir. 2009) (internal quotation and procedures for the expedited removal system.” (Id.
marks and alterations omitted). As Plaintiffs note (see Pls.’ (emphasis added)). In other words, in Defendants’ view,
Resp. to Defs.’ Mootness Notice at 7 n.6), Defendants issued section 1252(e) is the only potential basis for the exercise
Notices to Appear to Kiakombua first, and then to Ana and of this Court's subject-matter jurisdiction over Plaintiffs’
Emma, within days of learning about this lawsuit, presumably claims in light of section 1252(a)(2)(A), and the Court lacks
in an effort to moot their claims, which is precisely what jurisdiction under section 1252(e)(3) because the Lesson Plan
the “capable of repetition yet evading review” exception “does not ‘implement’ the expedited removal statute[.]” (Id.
seeks to avoid. See Del Monte, 570 F.3d at 322 (holding at 30–31.) Defendants further maintain that the Lesson Plan
that a plaintiff may avoid dismissal by demonstrating that does not satisfy section 1252(e) because it “is not a ...
“(1) the challenged action is in its duration too short to be regulation, policy directive, policy guideline, or procedure”
fully litigated prior to its cessation or expiration, and (2) and “Plaintiffs’ credible fear findings are not reviewable
there is a reasonable expectation that the same complaining expedited-removal ‘determinations’ ” (id.), and, regardless,
Plaintiffs have brought these claims more than 60 days after
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the alleged implementation of the challenged instructions (see courts of jurisdiction where, as here, the claims at issue
Defs.’ Reply at 17). concern a written policy directive, guideline, or procedure that
implements the statutory expedited removal process, and are
*18 Defendants are correct to observe, at the outset, that brought no later than 60 days after the agency promulgates
section 1252 plainly expresses Congress's intention to strip the challenged policy or procedure.
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
1. Section 1252(e)(3)(A) Of The INA Preserves This Court's
(e) of section 1252 states:
Subject-Matter Jurisdiction Under 28 U.S.C. § 1331 In These
(e) Judicial review of orders under section 1225(b)(1) Circumstances
... The scope and purpose of the judicial review that the text
of section 1252(e)(3) expressly preserves is addressed in
(3) Challenges on validity of the system the legislative history of the provision. Senator Orin Hatch
explained that “[i]t was very important to [the drafters] that
(A) In general there be judicial review of the implementation of the[ ]
provisions” of the INA concerning expedited removals,
Judicial review of determinations under section
because, “[a]lthough review should be expedited, the INS
1225(b) of this title and its implementation is available
and the Department of Justice should not be insulated from
in an action instituted in the United States District
review.” 142 Cong. Rec. S11,491 (daily ed. Sept. 27, 1996)
Court for the District of Columbia, but shall be limited
(statement of Sen. Hatch). In this regard, the D.C. Circuit has
to determinations of—
recently held (not once but twice) that, “although much of
(i) whether such section, or any regulation issued to section 1252 limits and channels judicial relief directly into
implement such section, is constitutional; or the federal appellate courts or habeas corpus proceedings,
subsection (e)(3) expressly provides in the expedited removal
(ii) whether such a regulation, or a written context for more traditional judicial review of challenges on
policy directive, written policy guideline, or written validity of the system, including agency policies governing
procedure issued by or under the authority of the credible-fear interviews.” Grace II, 965 F.3d at 891 (internal
Attorney General to implement such section, is quotation marks, citations, and alterations omitted); see also
not consistent with applicable provisions of this MTRNY II, 962 F.3d at 625. Thus, whether section 1252(e)
subchapter or is otherwise in violation of law. (3) is interpreted as a jurisdiction-granting provision, see
id. at 630, or as a provision that preserves the pre-existing
(B) Deadlines for bringing actions
jurisdiction of the Court in the context of the INA's other
Any action instituted under this paragraph must be jurisdiction-stripping provisions, see id. at 624–25, it is clear
filed no later than 60 days after the date the challenged that, per the language of section 1252(e)(3), this Court has
section, regulation, directive, guideline, or procedure jurisdiction to review the kinds of agency actions and legal
described in clause (i) or (ii) of subparagraph (A) is challenges that that particular subdivision addresses, see id.
first implemented. at 624–30.
Id. § 1252(e)(3)(A)–(B). However, as explained below,
Defendants’ contentions about the effect of section 1252(e) *19 Of course, Defendants contend that Plaintiffs’
with respect to the scope of this Court's subject-matter challenges to the Lesson Plan do not fit within section 1252(e)
jurisdiction miss the mark, and this is especially so in light (3)(A)’s prescribed judicial-review authorization, because the
of intervening D.C. Circuit case law that illuminates the Lesson Plan is not a “written policy directive, written policy
contours of section 1252(e)(3). In sum, this Court maintains guideline, or written procedure” that “implement[s]” the
its view that 28 U.S.C. § 1331 provides subject-matter expedited removal system that section 1225(b) establishes.
jurisdiction over Plaintiffs’ claims, see Make the Rd. N.Y. v. (See Defs.’ Mot. at 30–36.) This argument has little force,
McAleenan (“MTRNY I”), 405 F. Supp. 3d 1, 26–27 (D.D.C. however, both because of the plain language of section
2019), aff'd in relevant part, MTRNY II, 962 F.3d at 624– 1252(e)(3) and also due to the D.C. Circuit's reasoning in a
25, and that section 1252 of Title 8 does not strip federal
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recent binding opinion in Grace v. Barr, 965 F.3d 883 (D.C. guide, and usually impel toward an action, attainment, or
Cir. 2020). goal”); Guideline, Merriam-Webster Unabridged Dictionary
(online ed. 2020) (explaining that “guideline” is, with respect
Grace involved a challenge to “a host of executive- to a government action, “an indication or outline of future
branch policies adopted to implement the expedited-removal policy or conduct”); cf. Syncor Int'l Corp. v. Shalala, 127 F.3d
provisions” of the INA, including a ruling by the Attorney 90, 93 (D.C. Cir. 1997) (defining the term “guidance” in the
General and a guidance document that USCIS issued APA context as “a general statement of policy”). Consistent
concerning that adjudication. Grace II, 965 F.3d at 887, with the breadth of this plain language, courts in this circuit
889–90 (addressing Matter of A-B-, 27 I. & N. Dec. have generally suggested that the primary statutory limitation
316, 321 (A.G. 2018), wherein the Attorney General had on the types of policies concerning an agency's expedited
laid out new policies concerning asylum claims based on removal practices that can be challenged pursuant to that
persecution by non-state actors on account of an applicant's section is not the type of document that announces the policy,
membership in a particular social group). With respect to the but the fact that any such policy must be written down. See,
Attorney General's ruling, the D.C. Circuit held that A-B- e.g., Am. Immigr. Laws. Ass'n v. Reno (“AILA I”), 18 F. Supp.
qualified as an “implementation” of section 1225(b) within 2d 38, 58 (D.D.C. 1998) (holding that “unwritten” policies
the meaning of section 1252(e)(3), because A-B- “expressly are unreviewable), aff'd, AILA II, 199 F.3d 1352. In addition,
references the credible-fear standard and asylum officers’ Grace II tangentially involved DHS policies that had been
role in implementing the expedited-removal system[,]” and included in a prior version of the Lesson Plan at issue here,
its “overarching purpose, moreover, is to interpret section and the Circuit expressly indicated a lack of actual (or serious)
1158’s phrase ‘membership in a particular social group,’ dispute concerning whether that version of the Lesson Plan
which Congress incorporated into section 1225(b)[.]” Id. “reflect[s] USCIS's consistent practice”—and thus qualifies
at 895. The D.C. Circuit panel also concluded that A-B- as a policy or procedure—especially given that, in Grace II,
qualified as a “written policy directive” or “written policy USCIS “nowhere claim[ed] that immigration officials were
guideline” under section 1252(e)(3), because “agencies can free to depart” from the Lesson Plan. Grace II, 965 F.3d at
and do announce new policies in adjudications[,]” especially 902 (internal quotation marks and citations omitted).
in the immigration context, and if “the Attorney General
could immunize credible-fear policies from judicial review by *20 Here, government counsel struggles valiantly to suggest
simply announcing them in section 1229a adjudications[,]” that USCIS asylum officers do have such freedom: he points
that “result would conflict with section 1252(e)(3)’s purpose” out that the Lesson Plan “do[es] not carry the force of
and text. Id. The D.C. Circuit further held that the related law” (Defs.’ Mot. at 22), and argues that it “does not ordain
USCIS guidance document was a “written policy directive” or enact any policy” (Defs.’ Reply at 15), but is merely an
or “guideline” that implements section 1225(b), because the “interpretive material” that “just states the law, as pronounced
document cited to section 1225(b), “describe[d] itself as a by statutes, regulations, and case law” (Defs.’ Mot. at 32–
‘policy memorandum’ that ‘provides guidance’ to USCIS 33). Those assertions (which contradict the position that the
officers[,]” and “instruct[ed] ‘all USCIS employees’ on how government took in Grace II) are difficult to square with
to apply A-B- ‘consistent[ly]’ throughout several types of internal DHS memoranda that plainly indicate that the agency
proceedings, including ‘credible fear ... adjudications.’ ” Id. itself understands the Lesson Plan to be binding on asylum
at 892 (internal citations and emphasis omitted). 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
Drawing from the D.C. Circuit's analysis in Grace II, it fail to point to a single piece of evidence that supports their
is clear to this Court that the Lesson Plan also qualifies current contention that the Lesson Plan is not binding on
as a “written policy directive, written policy guideline, or the officers that are required to apply its prescriptions when
written procedure” that implements the expedited removal they make credible fear determinations—and, to the contrary,
scheme and thus can be challenged in federal court under all of the evidence in front of this Court—including DHS
section 1252(e)(3). 8 U.S.C. § 1252(e)(3)(A)(ii). To begin internal memoranda—suggests otherwise. See CropLife Am.
with, the plain meaning of the statutory terms “directive” and v. E.P.A., 329 F.3d 876, 883 (D.C. Cir. 2003) (“[T]he agency's
“guideline” sweeps broadly. See, e.g., Directive, Merriam- characterization of its own action is not controlling if it self-
Webster Unabridged Dictionary (online ed. 2020) (defining servingly disclaims any intention to create a rule with the
“directive” as, inter alia, “something that serves to direct, ‘force of law,’ but the record indicates otherwise.”). And
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to the extent that the Lesson Plan's provisions are binding Merriam-Webster Unabridged Dictionary (online ed. 2020)
on asylum officers, they are not reasonably characterized as (defining “implement” as, inter alia, to “give practical effect
something other than a written policy directive, guidance, or to and ensure of actual fulfillment by concrete measures”);
procedure, as Defendants now maintain. see also Grace II, 965 F.3d at 892 (determining whether an
agency action was an “implementation” of section 1225(b)
Nor does it matter that the Lesson Plan is part of the “Asylum without considering whether it was the agency's intent to
Division Officer Training Course,” and that training materials implement that provision).
are not explicitly listed as reviewable documents under section
1252(e)(3)(A)(ii). (See Defs.’ Mot. at 32–33.) The Lesson In any event, even if Defendants are right that intentionality
Plan itself belies Defendants’ argument, insofar as its express is required for implementation under section 1252(e)(3),
purpose is “to explain” to asylum officers how to make a there is no question that, by issuing the Lesson Plan, the
credible fear determination. (Lesson Plan at 2.) Thus, there agency intends to facilitate the first stage of the asylum
can be no doubt that the document is intended to guide and review process that section 1225(b) establishes: the very first
direct asylum officers in making those determinations. It is page of the training manual announces that the agency's
also well established that the particular label that an agency “purpose” in providing this Lesson Plan regarding credible
chooses to affix to a challenged policy is not dispositive of fear determinations is “to explain how to determine whether
whether a written policy document falls within the purview an alien subject to expedited removal ... has a credible fear
of section 1252(e)(3) of the INA, as the D.C. Circuit made of persecution or torture” (Lesson Plan at 2), which is a task
clear. See Grace II, 965 F.3d at 895–96. Given this, and also that an asylum officer has the indisputable duty to perform
the established fact that asylum officers are required to follow pursuant to the expedited removal scheme established in
the Lesson Plan's guidance in this regard, the Lesson Plan 8 U.S.C. § 1225(b). Moreover, and perhaps even more
unquestionably counts as a written policy directive, policy significantly, in the course of articulating what Plaintiffs
guideline, or procedure within the meaning of section 1252(e) maintain are new and unlawful principles for evaluating
(3) of the INA. credible fear, the Lesson Plan repeatedly and specifically
cites section 1225(b) and explicitly references the statutory
The Court is also compelled to conclude that the Lesson standard for credible fear determinations. (See, e.g., Lesson
Plan “implements” the expedited removal statute for the Plan at 6, 9, 12, 14, 19.) Cf. Grace II, 965 F.3d at 892
purpose of section 1252(e)(3)(A). Consistent with the (relying on similar statements of purpose and citations to
D.C. Circuit's holding in Grace II, an agency's written determine whether a particular agency action “implements”
recitation of its understanding of the substantive and section 1225(b)). Thus, USCIS plainly intended the Lesson
procedural standards of asylum law that pertain to credible Plan to be used by its agents to carry out the task of making
fear determinations is an implementation of the various credible fear assessments pursuant to section 1225(b), and
procedures that section 1225(b) requires. See Grace II, as a result, this Court concludes that the Lesson Plan is
965 F.3d at 892. The Lesson Plan is doing exactly that, properly construed as a written policy directive, guideline,
insofar as it is specifically designed to help the asylum or procedure that implements the provisions of the expedited
officers whom section 1225(b) charges with making credible removal statute for the purpose of section 1252(e)(3).
fear determinations to fulfill that responsibility. Defendants’
responsive contention that the Lesson Plan does not qualify
as an implementation of the expedited removal scheme
2. Plaintiffs’ Claims Are Not Time-Barred
because an “ ‘implementation’ involves intentional action to
accomplish a specific obligation, not a collateral consequence *21 In their reply brief, Defendants pivot to yet another
of actions taken to accomplish a different goal” (Defs.’ Mot. potential basis for asserting that section 1252(e)(3)’s judicial
at 31 (emphasis added and citation omitted))—an argument review requirements are not satisfied under the circumstances
that was not raised in Grace II—is mistaken, because neither presented here; they contend that “Congress has imposed
the ordinary meaning of the word “implementation” nor the a jurisdictional requirement that these challenges be filed
text of section 1252(e)(3)(A) includes such a specific intent ‘no later than 60 days after the date the challenged section,
requirement. See Bryan A. Garner, A Dictionary of Modern regulation, directive, guideline, or procedure ... is first
Legal Usage 422 (2d ed. 2001) (explaining that the verb implemented[,]’ ” but “most of the 2019 Lesson Plan has been
“to implement” ordinarily means “to carry out”); Implement, operative for years, to say nothing of the underlying statutes,
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regulations, external policies, and other materials cited in claims in Plaintiffs’ complaint, which concern an amended
the Lesson Plan, much of which has also been operative for Lesson Plan that the agency first sent out less than 60 days
years.” (Defs.’ Reply at 17 (emphasis in the original).)12 prior to the filing of this lawsuit, are timely.
Assuming arguendo that the 60-day requirement of section
1252(e)(3)(B) is jurisdictional in nature—which is not at *22 There is really no basis in law or logic for Defendants
all clear, given that section 1252(e)(3) does not speak in to suggest otherwise. Nevertheless, Defendants argue that
jurisdictional terms, see MTRNY I, 405 F. Supp. 3d at 26, section 1252(e)(3)(B) requires the Court to determine which
rev'd on other grounds, MTRNY II, 962 F.3d 612; see also of the amended “parts of a reviewable agency document are
United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015) [actually] new” (Defs.’ Reply at 18), as distinguished from
(observing that “most time bars are nonjurisdictional”); those amended sections that are substantially similar to the
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (suggesting prior iteration because, for example, only “some language on
that courts should “press[ ] a stricter distinction between the margins” has changed (Hr'g Tr. at 41:23–25). To support
truly jurisdictional rules ... and nonjurisdictional claim- this contention, defense counsel emphasizes that the agency
processing rules” (internal quotation marks omitted)); but see has “discretion to reword” its guidance documents, and argues
Vijender v. Wolf, No. 19-cv-3337, 2020 WL 1935556, at *2– that it should be able to do so without restarting the 60-day
6 (D.D.C. Apr. 22, 2020) (concluding that the 60-day bar is clock. (Id. at 42:7.) In the agency's view, then, the Court must
jurisdictional)—Defendants’ insistence that Plaintiffs’ claims “figure out [what] degree of deviance” there is between the
concerning the Lesson Plan have been brought outside of the prior version of a written policy provision and the challenged
prescribed 60-day window are far off base. amendment in order to determine whether such changes are
sufficiently substantive to restart the statutory clock. (Id. at
First of all, per the plain text of section 1252(e)(3), a legal 43:14–15.)
claim concerning a written policy directive, guidance, or
procedure that implements the expedited removal system Nothing in the statute requires this result. In particular,
is timely if the “action” is brought “no later than 60 days section 1252(e)(3) plainly authorizes judicial review of
after the date the challenged section, regulation, directive, written policies, guidelines, or procedures that implement
guideline, or procedure ... is first implemented.” 8 U.S.C. the expedited removal statute, without regard to whether
§ 1252(e)(3)(B) (emphasis added). Defendants have yet to such policies deviate substantively from an agency's prior
explain how language that appeared in the Lesson Plan for practices. Thus, consistent with binding precedent, the “first”
the first time in April of 2019 could possibly have been implementation language in section 1252(e)(3)(B) need not,
challenged previously. And, indeed, it is clear from both the and should not, be read that broadly. Cf. MTRNY II, 962 F.3d
text and operation of section 1252(e)(3)(B) that, by enacting at 623–24 (explaining that the strong “presumption favoring
that provision, Congress merely intended to limit the timing judicial review of administrative action” applies “even where,
of court challenges to within 60 days of when any particular as here, the statute expressly prohibits judicial review—in
policy prescription “first” issues. other words, the presumption dictates that such provisions
must be read narrowly” (internal quotation marks and citation
Plaintiffs’ legal action unquestionably fits within that omitted)). Accordingly, all that is necessary for timeliness
timeframe. The original complaint in this case was filed on under section 1252(e)(3)(B) is what indisputably happened
June 25, 2019 (see Compl., ECF No. 1, at 21)—within 60 here: that the lawsuit Plaintiffs have filed to challenge
days of April 30, 2019, which is the date that is listed on aspects of an agency's written policy directive concerning
the first page of the relevant version of the Lesson Plan (see implementation of the expedited removal scheme is brought
Lesson Plan at 2). Defendants concede that “this challenge within 60 days of when the agency issues the document that
was brought within 60 days of the April 30th Lesson Plan contains the challenged prescriptions.
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
C. The Lesson Plan Violates The INA And Its
1252(e)(3)(B) begins to run on the “effective date” of the
Implementing Regulations
relevant regulation or written policy, AILA II, 199 F.3d at
Having determined that Plaintiffs have Article III standing
1355 (holding that, because the challenged regulation was
to bring the claims in this lawsuit, that Plaintiffs’ claims are
“effective April 1, 1997,” a challenge to that regulation “had
not moot, and that the Court has subject-matter jurisdiction
to be filed no later than sixty days after April 1”). Thus, the
to consider Plaintiffs’ legal challenge (see supra Sections
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IV.A–B), the Court now turns to the merits of the complaint's ambiguous, “even after a court has resorted to all the standard
contention that the Lesson Plan is unlawful. As a reminder, tools of interpretation.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414
Plaintiffs have cited alternative and independent grounds for (2019). If it is, then the relevant question becomes whether
this proposition, beginning with the contention that certain Defendants’ interpretation is “reasonable” or “within the zone
provisions of the Lesson Plan are “not consistent with the of ambiguity the court has identified after employing all its
governing [immigration] statutes and regulations” pursuant to interpretive tools.” Id. at 2415–16.
section 1252(e)(3). (Pls.’ Mot. at 39; see also Am. Compl. ¶
90.)13 When this Court applies these standards to evaluate the bulk
of the provisions of the Lesson Plan that Plaintiffs point to as
*23 To substantiate this particular claim, Plaintiffs’ examples of the unlawful nature of this guidance, the Court
complaint sets out various examples of ways in which concludes that USCIS has unlawfully required screening
the Lesson Plan allegedly transgresses the INA and its officers to make credible fear determinations in a manner
implementing regulations. (See, e.g., Am. Compl. ¶ 85(c) that is manifestly inconsistent with the two-stage asylum
(asserting that the Lesson Plan “directs asylum officers eligibility framework that the INA plainly establishes. In
to make negative credible fear determinations based on addition, the Court finds that certain Lesson Plan provisions
what are actually discretionary factors, not eligibility speak to aspects of the credible fear process that neither
criteria” (emphasis omitted)); id. ¶ 83 (arguing that the Lesson Congress nor DHS has expressly addressed, but in so doing
Plan “increases the evidentiary burden the asylum seeker USCIS improperly relies on unreasonable interpretations
must carry to pass a credible fear screening”); see also Pls.’ of the established statutory scheme. Therefore, the Court
Mot. at 39–50 (expounding further upon the alleged conflict concludes that various aspects of the Lesson Plan cannot be
between the credible fear standards in the Lesson Plan and squared with the INA's mandates.
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 1. The INA And Its Regulations Plainly Establish A Two-
substantive statutes and regulations. (See generally Defs.’ Stage Framework To Demonstrate Asylum Eligibility In The
Mot. at 48–54; Defs.’ Reply at 32–40.) Expedited Removal Context, And Provide Standards For
Making The Required Assessment At Each Stage Of The
As explained below, this Court finds that Plaintiffs have Process
the better of this argument. In reaching that conclusion, the
Court has applied the well-worn deference framework that To start, it bears repeating that, under the INA, DHS
governs a federal court's determination of whether or not may designate certain noncitizens for expedited removal,
an agency has faithfully interpreted the law in relation to see 8 U.S.C. § 1225(b)(1)(A)(iii)(I)–(II), and the process
its own pronouncements. See Grace II, 965 F.3d at 896 for determining whether those individuals will be granted
(noting that it is “well settled” that traditional principles of asylum, or will be removed from the United States swiftly, has
agency deference “are applicable to the Attorney General's two stages: (1) an initial screening to determine whether or not
interpretation of the INA” and its implementing regulations the noncitizen has a credible fear of persecution or torture in
(internal quotation marks and citation omitted)). Thus, to the their home country (if she does not, she is slated for expedited
extent Plaintiffs are challenging Defendants’ interpretation removal without an additional hearing), and (2) full removal
of the INA, the Court asks “whether Congress has directly proceedings, during which the noncitizen bears the burden of
spoken to the precise question at issue[,]” because courts establishing her eligibility for asylum.
“must give effect to the unambiguously expressed intent of
Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, *24 Moreover, and importantly, the legal standard for
Inc., 467 U.S. 837, 842–43 (1984). But “if the statute is whether or not a noncitizen clears the first hurdle in this
silent or ambiguous with respect to the specific issue, the two-stage process—i.e., whether she is entitled to a positive
question for the court [becomes] whether the agency's answer credible fear determination or an adverse one—is specifically
is based on a permissible construction of the statute.” Id. addressed in the INA. Section 1225(b) defines “credible fear
at 843. And where Plaintiffs seek to challenge Defendants’ of persecution” as follows:
interpretation of regulations that implement the INA, the
Court asks whether the regulation is “genuinely” or “truly”
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Moreover, the interviewee “is not represented by counsel, and
For purposes of this subparagraph, the term “credible may be completely unfamiliar with United States immigration
fear of persecution” means that there is a significant laws and the elements necessary to demonstrate eligibility
possibility, taking into account the credibility of the for asylum.” Ramsameachire v. Ashcroft, 357 F.3d 169, 179
statements made by the alien in support of the alien's (2d Cir. 2004) (Sotomayor, J.). Thus, this first stage of the
claim and such other facts as are known to the officer, asylum eligibility process is intended to be a mere “screening
that the alien could establish eligibility for asylum under interview[,]” Thuraissigiam, 140 S. Ct. at 1965, during which
section 1158 of this title. “[t]he applicant need not show that he or she is in fact eligible
Id. § 1225(b)(1)(B)(v). As relevant here, a noncitizen is for asylum—a ‘credible fear’ equates to only a ‘significant
eligible for asylum under section 1158 if she demonstrates possibility’ that the alien would be eligible.” Id. (emphasis
that she “is a refugee[,]” id. § 1158(b)(1)(A)—a term that the in original); see also Ferreira v. Lynch, 831 F.3d 803, 809
statute defines as a noncitizen “who is unable or unwilling (7th Cir. 2016) (“[T]he credible-fear interview is not meant to
to return to ... [her] country because of [past] persecution be a detailed account of the events supporting an applicant's
or a well-founded fear of persecution on account of race,
asylum claim[.]”).15
religion, nationality, membership in a particular social group,
or political opinion,” id. § 1101(a)(42)(A).14 *25 It is also important to note that the noncitizens who
are found to have a credible fear of persecution after the
The INA also specifically addresses the manner in which credible fear interview are statutorily entitled to proceed
government officers undertake to assess whether a noncitizen to the next stage of the process: section 1225(b)(1)(B)(ii)
has a credible fear of persecution. A trained “asylum states unequivocally that, “[i]f the officer determines at the
officer” interviews the noncitizen, id. § 1225(b)(1)(B)(i), and time of the interview that an alien has a credible fear of
determines whether she has a credible fear of persecution, persecution (within the meaning of clause (v)), the alien shall
“taking into account the credibility of the statements” of the be detained for further consideration of the application for
applicant in support of her claim and “such other facts as are asylum” in the context of full removal proceedings. 8 U.S.C.
known to the officer,” id. § 1225(b)(1)(B)(v). The applicable § 1225(b)(1)(B)(ii) (emphasis added); see also 8 C.F.R. §
regulations clarify that “[t]he purpose of the interview shall 208.30(e)(5)(i) (providing that a noncitizen who “is able to
be to elicit all relevant and useful information bearing on establish a credible fear of persecution but appears to be
whether the applicant has a credible fear of persecution[,]” subject to one or more of the mandatory bars to applying for,
and that the interview is to be conducted “in a nonadversarial or being granted, asylum ... shall nonetheless” be placed in
manner[.]” 8 C.F.R. § 208.30(d). full removal proceedings).
During this credible fear interview, the noncitizen “may With respect to the second stage of the asylum-eligibility
present other evidence” concerning “whether the applicant process, asylum seekers have a full hearing before an
has a credible fear of persecution or torture[,]” id. § 208.30(d) immigration judge, see 8 U.S.C. § 1229a, during which they
(4); however, such additional proof is only provided “if may be represented by counsel, see id. § 1362. The goal,
available[,]” and is not required, id. Accordingly, courts in relevant part, is to “refer[ ] to specific facts sufficient to
have long held that “the credible fear interview does not demonstrate that the applicant is a refugee[,]” id. § 1158(b)
require the level of detail expected of the petitioner for (1)(B)(ii), and if the judge “determines that the applicant
an asylum claim[,]” Yang v. Ashcroft, 99 F. App'x 124, should provide evidence that corroborates otherwise credible
125 (9th Cir. 2004), especially since these “often rushed” testimony, such evidence must be provided unless the
assessments can occur under “tense conditions,” Lin Ming applicant does not have the evidence and cannot reasonably
Feng v. Sessions, 721 F. App'x 53, 55 (2d Cir. 2018). As obtain the evidence[,]” id. Per the applicable regulations,
a practical matter, a noncitizen “appearing at a credible “[t]he burden of proof is on the applicant for asylum to
fear interview has ordinarily been detained since his or establish that he or she is a refugee[,]” and the noncitizen
her arrival in the United States and is therefore likely to “may qualify as a refugee either because he or she has suffered
be more unprepared, more vulnerable, and more wary of past persecution or because he or she has a well-founded fear
government officials than an asylum applicant who appears of future persecution.” 8 C.F.R. § 208.13(a)–(b).
for an interview before immigration authorities well after
arrival.” Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009).
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Finally, the INA and its implementing regulations make clear to asylum[.]” (Lesson Plan at 13 (internal quotation marks
that even those noncitizens who establish that they are eligible omitted).) This policy is in direct conflict with the plain text
for asylum because they qualify as refugees are not entitled of the INA and its regulations in three related ways.
to asylum under U.S. law. In other words, at the end of the
day, asylum is discretionary relief that the federal government First of all, the INA only requires that a credible fear
“may grant” to anyone the agency “determines ... is a interviewee have a “significant possibility” of establishing her
refugee” in the context of full removal proceedings. 8 U.S.C. eligibility for asylum, 8 U.S.C. § 1225(b)(1)(B)(v), which is
§ 1158(b)(1)(A) (emphasis added). DHS has promulgated not the same as demanding “more than significant evidence
regulations that lay out various discretionary criteria to guide that the applicant is a refugee” (Lesson Plan at 13). These
agency officials in deciding whether to grant asylum to two standards plainly differ, for at least the simple reason that
noncitizens. In particular, a noncitizen who demonstrates the credible fear screening interview, as Congress envisioned
that she has been persecuted in the past “shall also be it, focuses primarily on the “statements” of the applicant
presumed to have a well-founded fear of persecution on during the interview, not necessarily any evidence. 8 U.S.C. §
the basis of the original claim[,]” 8 C.F.R. § 208.13(b)(1), 1225(b)(1)(B)(v); see also 8 C.F.R. § 208.30(d)(4) (providing
although an asylum officer can, “in the exercise of his or that the noncitizen “may present other evidence” only “if
her discretion,” deny the asylum application of a noncitizen available”). By contrast, the Lesson Plan expressly requires
entitled to such a presumption by making a finding, “by a the asylum officer to evaluate the applicant's evidence. And
preponderance of the evidence[,]” that either “[t]here has the fact that the “significant evidence” language that appears
been a fundamental change in circumstances such that the in the Lesson Plan “comes from the D.C. Circuit” in a
applicant no longer has a well-founded fear of persecution” or completely different context (Defs.’ Reply at 34) is of no
“[t]he applicant could avoid future persecution by relocating moment. It is entirely inapposite that a D.C. Circuit panel
to another part of the applicant's country of nationality[,]” once suggested that one of “the elements of a cause of action
id. § 208.13(b)(1)(i). If the asylum officer makes either for negligent or reckless spoliation of evidence” under D.C.
finding, the noncitizen bears the burden of establishing that law is “a significant possibility of success of the potential
she “may be granted asylum, in the exercise of the decision- civil action if the evidence were available[,]” and that, in
maker's discretion,” id. § 208.13(b)(1)(iii), for “humanitarian that respect, “ ‘significant possibility’ ... implies a showing
reasons[,]” Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. higher than the already recognized standard of ‘significant
1989), including “compelling reasons for being unwilling or evidence.’ ” Holmes v. Amerex Rent-A-Car, 180 F.3d 294, 297
unable to return to the country arising out of the severity of the (D.C. Cir. 1999) (quoting Holmes v. Amerex Rent-A-Car, 710
past persecution[,]” or when “there is a reasonable possibility A.2d 846, 852, 854 (D.C. 1998)). Thus, Defendants cannot
that he or she may suffer other serious harm upon removal to rely on that language or that reasoning to contend that the
that country[,]” 8 C.F.R. § 208.13(b)(1)(iii). Lesson Plan's clear shift toward mandating an evidentiary
showing at the credible fear stage is consistent with what the
INA requires.
2. Certain Provisions Of The Lesson Plan Conflate
Second, and similarly, applicants have a credible fear under
The Initial Credible Fear Screening Standards With
the INA if there is a significant possibility that they “could
The Requirements For Asylum Eligibility, And Are
establish” that they are refugees during the next stage of
Thus Manifestly Inconsistent With The INA's Express
the process, 8 U.S.C. § 1225(b)(1)(B)(v) (emphasis added),
Prescriptions
which means that the Lesson Plan's requirement that a
credible fear interviewee have significant evidence that she
a. The Lesson Plan Requires That A Noncitizen “Identify “is a refugee” unquestionably heightens the bar (Lesson Plan
More Than Significant Evidence That The Applicant Is A at 13 (emphasis added)). “Congress’ use of a verb tense is
Refugee Entitled To Asylum” In Order To Pass The Credible significant in construing statutes[,]” United States v. Wilson,
Fear Screening 503 U.S. 329, 333 (1992), and there is no doubt that the
word “is” connotes “a more certain determination” than
*26 The Lesson Plan specifically instructs USCIS asylum “could[,]” Yusupov v. Att'y Gen. of U.S., 518 F.3d 185, 201
officers that “the credible fear significant possibility standard (3d Cir. 2008) (focusing on a different provision of the INA).
of proof ... requires the applicant to identify more than Therefore, USCIS's requirement of certainty, as conveyed by
significant evidence that the applicant is a refugee entitled
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the use of the present tense “is,” is in tension with Congress's together, “are sufficient to satisfy the credible fear standard”:
deliberate employment of the verb phrase “could”—for the “(1) there is a significant possibility ... that the applicant
latter conveys that a possibility, rather than certainty, suffices experienced past persecution on account of a protected
at the credible fear stage of the asylum-eligibility process. characteristic, (2) the conditions that gave rise to such
persecution continue to exist in the applicant's home country,
Third, because even those noncitizens who ultimately manage and (3) the applicant could not avoid such persecution by
to establish that they qualify as refugees under the statute relocating within his or her home country[.]” (Id. at 19; see
are thereby only rendered eligible for asylum, see 8 U.S.C. also id. at 36 (same).) And the Lesson Plan further indicates
§ 1158(b)(1)(A), it is misleading to the point of conflict for that, “if the evidence does not establish ... reasons why
the Lesson Plan to require applicants to make a showing of internal relocation is not possible, a negative credible fear
entitlement to asylum at the credible fear stage—or, indeed, determination is appropriate.” (Id. at 19.)
at any point in the asylum-eligibility process. (See Lesson
Plan at 13.) And to the extent that this part of the Lesson These required findings, and the consequences of establishing
Plan also appears to demand a more substantial showing than them as set forth in the Lesson Plan, bear no relationship to the
what section 1225(b)(1)(B)(v) requires, it unlawfully alters assessments that Congress has prescribed when credible fear
the credible fear standard. (See Pls.’ Mot. at 43–44.) 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
b. The Lesson Plan Imports Factors That Are Relevant For
8 U.S.C. § 1225(b)(1)(B)(v), and once this statutory standard
Asylum Relief During The Full Removal Proceeding Stage
is satisfied, the applicant must be deemed to have a credible
Into The Initial Credible Fear Determination Process
fear of persecution. The statute says nothing about country
*27 Under the INA, a noncitizen “who has suffered conditions or the ability of the person to relocate. And the
past persecution or who has a well-founded fear of being fact that the regulations list such factors as potential bases for
persecuted in the future is eligible for asylum,” Gutierrez- the eventual denial of asylum in the discretion of the agency
Rogue v. I.N.S., 954 F.2d 769, 771 (D.C. Cir. 1992) (internal after a full hearing is neither here nor there as far as the
quotation marks and citation omitted); yet, the ultimate initial credible fear screening is concerned; indeed, even when
“decision whether to grant asylum is within the discretion of the agency is required to deny asylum to certain refugees
the Attorney General[,]” id. The INA's regulations identify ultimately, it is clear that asylum officers must still allow
particular grounds for the discretionary denial of asylum such persons to proceed beyond the credible fear stage of the
to established refugees who suffered persecution in the process. Cf. 8 C.F.R. § 208.30(e)(5)(i) (indicating that not
past, including “a fundamental change in circumstances even mandatory grounds for denial of asylum are sufficient to
such that the applicant no longer has a well-founded fear warrant an adverse determination at the credible fear stage).
of persecution” or the ability to “avoid future persecution
by relocating to another part of the applicant's country of This all means that USCIS is not free to add factors that the
nationality[.]” 8 C.F.R. § 208.13(b)(1)(i). This Court agrees regulations recognize at other stages of the process to the
with Plaintiffs that, insofar as the Lesson Plan requires asylum considerations that an asylum officer must take into account
officers to consider these kinds of discretionary factors at the during the credible fear assessment. Yet, that is precisely what
credible fear stage of the asylum eligibility process, it plainly the Lesson Plan does. (See, e.g., Lesson Plan at 19–20, 25,
subverts the INA's two-stage asylum scheme. 36). And, of course, the mere fact that the Lesson Plan cites to
the actual text of the regulations concerning the discretionary
For instance, according to the Lesson Plan, if “internal factors in the margins of the relevant Lesson Plan pages (see,
relocation is reasonable, the applicant does not have a credible e.g., Lesson Plan at 19 (citing 8 C.F.R. § 208.13(b)(1)) does
fear of persecution.” (Lesson Plan at 16; see also id. at 20 not alleviate the conflict (see Defs.’ Mot. at 53 (asserting
(making “a significant possibility that the applicant cannot that the Lesson Plan “direct[s] students to read sections 208
reasonably internally relocate within his or her country” and 235 of the INA, which are codified at 8 U.S.C. §§ 1158
one of the required elements for a positive credible fear and 1225 and which draw the contrast between discretionary
determination).) The Lesson Plan also specifically instructs asylum and the non-discretionary credible fear process” and
USCIS asylum officers that the following findings, taken suggesting that, as a result, “the Lesson Plan is completely
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consistent with the INA”)). If anything, such citations only avoid the alleged persecution[,]” because, “[i]f such internal
serve to create confusion, inasmuch as they underscore the relocation is reasonable, the applicant does not have a credible
discrepancies between the Lesson Plan's dictates and the fear of persecution.” (Id. at 16.)
statutes and regulations upon which the agency's training
materials are purportedly based. These evidentiary burdens are plainly at odds with the
regulations that pertain to credible fear determinations. (See
*28 The bottom line is this: the Lesson Plan plainly Pls.’ Mot. at 42–43.) For instance, under the regulations,
contradicts the unambiguous text of the INA and its a presumption of asylum eligibility due to past persecution
implementing regulations in this significant regard, and may be rebutted at the full removal hearing stage if the
nothing in Defendants’ motion or argument demonstrates agency shows, by a preponderance of the evidence, that the
that the Lesson Plan faithfully describes what the governing conditions in the country of origin have changed. See 8
prescriptions establish regarding how USCIS asylum officers C.F.R. § 208.13(b)(1)(i)(A). But, as explained, in the Lesson
are supposed to identify a noncitizen who has a credible fear Plan, it is the noncitizen who must show that those country
of persecution. 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 Lesson Plan at 20.) Furthermore, even
though the regulations permit agency officials to exercise
c. The Lesson Plan Places A Burden On The Asylum Seeker
the discretion to deny asylum when a preponderance of
Who Suffered Past Persecution To Show Unchanged Country
the evidence establishes that an applicant who suffered past
Conditions And The Unavailability Of Internal Relocation As
persecution might be able to reasonably relocate within her
Prerequisites For A Favorable Credible Fear Determination
country of origin, see 8 C.F.R. § 208.13(b)(1)(i)(B), the
The third example in the category of direct contradictions Lesson Plan plainly flips that burden onto the shoulders of
between the unambiguous text of the INA and the Lesson Plan those credible fear interviewees (see Lesson Plan at 16, 25).
is straightforward: the Lesson Plan not only impermissibly Thus, for this reason, too, this aspect of the Lesson Plan
requires asylum officers making credible fear assessments to conflicts with the INA's implementing regulations.
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 3. Certain Provisions Of The Lesson Plan Are Based Upon An
this, the Lesson Plan states that, unless the noncitizen Unreasonable Interpretation Of The INA's Asylum Review
“establish[es] each one of the elements below,” he or she Process
“must receive a negative credible fear determination” (Lesson
Plan at 20), and one of the listed elements is “Future Fear *29 In addition to those parts of the Lesson Plan that
(Well-Founded Fear)[,]” which the Lesson Plan says requires, contradict the express requirements of the INA and its
among other things, a showing by the noncitizen that is implementing regulations concerning what is necessary for
sufficient to “demonstrate[ ]” either “past persecution based noncitizens to be considered to have a credible fear such
on continuing country conditions” or a “well-founded fear” that they advance to full removal proceedings, as described
of persecution (id.). Another element that noncitizens must above, other parts of the Lesson Plan establish unreasonable
establish to avoid a negative credible fear determination standards for the credible fear determination with respect
under the Lesson Plan concerns “Internal Relocation” (id. at to matters that Congress has not specifically addressed,
25); that is, when the noncitizen fears persecution by non- given the thrust of what the INA and its regulations
government actors, she bears the burden of demonstrating prescribe. Put in Chevron and Kisor parlance, the following
that there is “a significant possibility that the applicant cannot Lesson Plan provisions can be said to be based on an
reasonably internally relocate within his or her country” (id. unreasonable interpretation of the INA, and thereby exceeded
at 25; see also id. at 20 (“[I]f the evidence does not the reasonable boundaries of any ambiguity to be found in the
establish a significant possibility ... [that] internal relocation statute and related regulations.
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
a. The Lesson Plan's Mandate That Noncitizens Provide
relocate to another area of his or her home country in order to
“Evidence” And “Facts” That Pertain To “Every Element”
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Of Their Asylum Claim Is Plainly Unreasonable Given The see Goldstein v. S.E.C., 451 F.3d 873, 881 (D.C. Cir.
Statutory Requirements 2006) (explaining that, whether an agency's construction is
reasonable depends, in part, “on the construction's fit with
During full removal proceedings, an asylum seeker must the statutory language, as well as its conformity to statutory
offer specific facts that pertain to every element necessary purposes” (internal quotation marks and citation omitted));
to show that she is a refugee. See 8 U.S.C. § 1158(b)(1)(B) see also Kisor, 139 S. Ct. at 2416 (same for regulatory
(i) (“To establish that the applicant is a refugee within the provisions). As discussed above, it is clear beyond cavil that
meaning of [section 1101(a)(42)(A) of the INA], the applicant the credible fear evaluation is intended to be merely an initial
must establish that race, religion, nationality, membership in screening interview that poses a relatively low bar for asylum
a particular social group, or political opinion was or will be applicants, see Thuraissigiam, 140 S. Ct. at 1965; see also
at least one central reason for persecuting the applicant.”); Yang, 99 F. App'x at 125 (explaining that “the credible fear
see also Matter of A-B-, 27 I. & N. Dec. 316, 340 (A.G. interview does not require the level of detail expected of
2018), abrogated on other grounds, Grace II, 965 F.3d 883 the petitioner for an asylum claim”); therefore, the required
(explaining that, during full removal proceedings, an asylum reasonableness analysis need not detain the Court for long.
applicant “must present facts that undergird each of the[ ]
elements” necessary to establish eligibility for asylum, and *30 Again, section 1225’s text plainly indicates that an
the agency “has the duty to determine whether those facts asylum applicant can be found to have a credible fear when
satisfy all of the legal requirements for asylum”). But the the asylum officer concludes that the noncitizen might be
INA is silent with respect to the standard of proof that applies able to establish the elements of her claim with the assistance
when a noncitizen is undergoing an assessment for credible of counsel during the subsequent full removal proceeding,
fear of persecution: all that Congress says is that there must even if the noncitizen cannot be said to have established all
be “a significant possibility ... that the alien could establish of those elements at the time of her credible fear interview.
eligibility for asylum[.]” 8 U.S.C. § 1225(b)(1)(B)(v). (See Pls.’ Reply at 29); see also 8 U.S.C. § 1225(b)(1)(B)(v).
The INA's implementing regulations also make clear that the
The Lesson Plan fills this gap by providing that “[t]he credible fear interview is only designed “to elicit all relevant
applicant bears the burden of proof to establish a credible and useful information bearing on whether the applicant has
fear of persecution” by “produc[ing] sufficiently convincing a credible fear of persecution,” 8 C.F.R. § 208.30(d), and
evidence that establishes the facts of the case, and that USCIS's Form I-870—which asylum officers use to take
those facts must satisfy every element of the relevant legal notes during credible fear interviews—expressly indicates
standard[.]” (Lesson Plan at 11.) It further emphasizes that, that “[t]here may be areas of the individual's claim that were
“[i]n order to establish a credible fear of persecution, the not explored or documented for purposes of this threshold
applicant must establish each one of the elements” listed in screening” (Ex. 11 to Admin. Record, ECF No. 61-10, at 5).
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 In sum, it is entirely unreasonable for the Lesson Plan to
a negative credible fear determination” (id.). According to demand that, during the credible fear interview, the noncitizen
the Lesson Plan, the necessary elements that a noncitizen establish “facts” that “satisfy every element” of her future
must establish at the credible fear stage, by offering facts and asylum claim as a prerequisite to getting a favorable credible
evidence that go to each element, are: (1) a well-founded fear fear determination. (Lesson Plan at 11.) Imposing such a
of persecution, (2) based on either past persecution or a risk of requirement is tantamount to making asylum applicants prove
future persecution (3) due to membership in a particular social that they are a refugee during their credible fear interviews,
group, in addition to the discretionary elements for denial even though Congress has made abundantly clear that a
of asylum discussed above, such as (4) continuing country noncitizen need only carry that burden after she has shown
conditions and (5) inability to relocate internally. (See Lesson a credible fear of persecution and has been placed in full
Plan at 21–26.) removal proceedings. See 8 U.S.C. § 1158(b)(1)(B)(ii). Put
another way, even though the statute and regulations do not
The task of determining whether the Lesson Plan's speak directly to the standard of proof that is applicable
interpretation is a “permissible” or “reasonable” one, at the credible fear stage of the asylum eligibility process,
Chevron, 467 U.S. at 843–44; Kisor, 139 S. Ct. at 2416, the one that the Lesson Plan adopts is not based on a
necessarily requires the Court to focus on the purpose
of credible fear interviews as Congress envisioned them,
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reasonable interpretation of those binding statutory and *31 The legislative history of the credible fear provision
regulatory requirements. 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
b. The Lesson Plan Unreasonably Permits Asylum Officers To
to establish a credible fear of persecution, the applicant for
Require Corroboration In The Context Of The Credible Fear
asylum would need to establish that ‘it is more probable
Interview Process
than not that the statements made by the alien in support
The Lesson Plan erects another impermissible hurdle for of the alien's claim are true, and ... there is a significant
noncitizens at the initial stage of the asylum eligibility possibility, in light of such statements ... that the alien could
process, to the extent that it provides that “the asylum establish eligibility for asylum.’ ” H. Rep. No. 104-469,
officer is ... entitled to determine that the applicant must at 529 (Mar. 4, 1996). However, certain members of the
provide evidence that corroborates the applicant's testimony, House of Representatives and the Senate believed that that
even where the officer might otherwise find the testimony was “simply too onerous a standard for an asylee to meet
credible.” (Lesson Plan at 12.) The Lesson Plan states who has just escaped dangerous persecution.” Id. And,
that, “[i]n cases in which the asylum officer determines ultimately, Congress “struck a compromise by rejecting the
that the applicant must provide such evidence, the asylum higher standard of credibility included in the House bill”
officer must provide the applicant notice and the opportunity and adopting the enacted credible fear provision, which was
to submit evidence, and the applicant must provide the “intended to be a low screening standard for admission into
evidence unless the applicant cannot reasonably obtain the the usual full asylum process.” 142 Cong. Rec. S11,491 (daily
evidence.” (Id. (emphasis in the original).) To be sure, at the ed. Sept. 27, 1996) (statement of Sen. Hatch).
point in which the Lesson Plan provides this authority for
asylum officers to mandate corroboration, it cites the general It is certainly true that “credible fear interviewees are
statutory and regulatory provisions that apply to credible [reasonably] asked to provide all of the reasons for their
fear determinations. (See id. (citing 8 U.S.C. § 1225(b)(1) concern about being removed,” Zhang, 585 F.3d at 724
(B)(v); 8 C.F.R. § 208.30(e)(2)).) But nothing about eliciting (emphasis in original), but “they are not required to give a
corroborating evidence appears in those provisions. And, detailed and specific account of the bases for their claims,
in fact, USCIS seems to have imported the corroboration as applicants for asylum must in their asylum application[,]”
standards from the statutory provision that addresses full id. (internal quotation marks and citation omitted). Thus, the
asylum proceedings, see 8 U.S.C. § 1158(b)(1)(B)(ii), and Lesson Plan's instruction that an asylum officer might require
adopted those standards nearly verbatim with respect to the interviewee to “provide evidence that corroborates the
the Lesson Plan's instructions for making a credible fear applicant's testimony, even where the officer might otherwise
determination. find the testimony credible” (Lesson Plan at 12 (emphasis
added))—i.e., even when “the credibility of the statements
Thus, once again, the question for this Court is whether it is made by the alien in support of the alien's claim” is not in
reasonable for the agency to employ a standard that applies question, 8 U.S.C. § 1225(b)(1)(B)(v)—clearly transforms
to full asylum proceedings—i.e., the authority to request the credible fear interview, which is a mere screening
corroboration—in the context of the credible fear process, process that is primarily focused on assessing the noncitizen's
given the INA's purposes and in light of relevant statutory credibility as a means of determining whether she could
and regulatory language. See Chevron, 467 U.S. at 843–44; ultimately and eventually establish refugee status, into a
Kisor, 139 S. Ct. at 2416. And for the reasons that follow, probing quest for evidence that is virtually indistinguishable
given both “the goals of the statute[,]” Vill. of Barrington, from full asylum eligibility proceedings.
Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir.
2011) (internal quotation marks and citation omitted), and the Consequently, this Court has little doubt that the Lesson Plan's
“statutory purposes[,]” Abbott Labs. v. Young, 920 F.2d 984, authorization of demands for corroboration at the credible
988 (D.C. Cir. 1990), the Court cannot discern a reasonable fear stage rests on an unreasonable interpretation of what the
fit between the Lesson Plan's corroboration requirement and INA and its implementing regulations allow. (See Pls.’ Mot.
the credible fear process that Congress created. at 46–47.)
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important, because the Lesson Plan's reformulation might
well lead asylum officers to make an adverse credible fear
c. The Lesson Plan Unreasonably Requires The Screening
determination in cases where it would be appropriate to find
Officer To Consider Whether The Noncitizen's Home
that the noncitizen does have a credible fear of persecution
Government Has “Abdicated Its Responsibility” To Control
using the BIA's unable-or-unwilling standard.
Persecution
The Lesson Plan's effort to assist asylum officers with the To understand why this is so, consider the example that the
core task of identifying when a noncitizen has a credible fear D.C. Circuit contemplated in Grace II: where a person seeks
of persecution by defining the term “persecution”—which asylum after the murder of their child due to the devastating
the INA does not specifically address—is impermissible impact of organized crime in their home community, the fact
for substantially similar reasons. At least ever since Matter that the local authorities “responded to the crime scene, took
of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), the term statements from the asylum seeker and his wife, and autopsied
“persecution” as it appears in the INA has been understood the body[,]” Grace II, 965 F.3d at 899, indicates that the
to refer to “harm or suffering ... inflicted either by the government had not necessarily “abdicated its responsibility
government of a country or by persons or an organization to control persecution” (Lesson Plan at 24); however, if there
that the government was unable or unwilling to control[,]” is evidence that “organized criminals generally operated with
id. at 222; see also generally Bringas-Rodriguez v. Sessions, impunity” in the community nonetheless, the government
850 F.3d 1051, 1062–69 (9th Cir. 2017) (collecting cases can rightly be said to be unable to offer its citizens
applying the “unable or unwilling” standard). In Grace protection, Grace II, 965 F.3d at 899. Consequently, USCIS
II, the D.C. Circuit set aside the agency's attempts to cannot reasonably instruct its officers that the hallmark of
recharacterize the “unable or unwilling” standard as referring “unwilling or unable” is that the government has abdicated its
solely to circumstances in which the noncitizen's home responsibility to protect its citizens without running afoul of
country has “condoned the behavior or demonstrated a its prior pronouncement that a credible fear of persecution can
complete helplessness to protect the victim.” Grace II, 965 be established based on the government's inability to afford
adequate protection. Cf. Kisor, 139 S. Ct. at 2417–18.
F.3d at 897 (internal quotation marks and citation omitted).16
But USCIS continues in this impermissible vein with the
Defendants’ arguments to the contrary are not persuasive.
language that it has adopted in the Lesson Plan: it explains
Defendants maintain that, “when read in context and with
that, “[f]or a credible fear of persecution, there must be
the deference it is due,” the Lesson Plan does not unlawfully
a significant possibility the applicant can establish that
change the unable-or-unwilling standard; its “discussion
the entity that harmed the applicant (the persecutor) is ...
of a government abdicating its responsibility to control a
an entity that the government is unable or unwilling to
persecutor is simply explanatory, provided as a counterpoint
control[,]” but because “[a]sylum officers must recognize that
to the explanation that it is not enough to merely show
no government can guarantee the safety of each of its citizens
that the government lacks resources[.]” (Defs.’ Reply at 37
or control all potential persecutors at all times[,]” “[i]t is not
(emphasis added).) But, of course, an explanation that does
sufficient for an applicant to assert that the government lacks
not faithfully adhere to the statutory or regulatory standard
sufficient resources to address criminal activity[;] [r]ather, the
that it purports to explicate is owed no deference. See Circus
government must have abdicated its responsibility to control
Circus Casinos, Inc. v. N.L.R.B., 961 F.3d 469, 483 (D.C.
persecution.” (Lesson Plan at 23–24 (emphasis added).)
Cir. 2020) (“Courts do not defer to an agency's arbitrary
and capricious interpretation of its own standard.”). And,
*32 This Court finds that the Lesson Plan's guidance is a
here, as in Grace II, the agency's explanation portends a
departure from prior agency regulations and adjudications,
situation in which asylum officers “can choose between the
and one that is not owed deference under Kisor, for largely
two standards”—“unwilling or unable” versus abdication of
the same reasons that D.C. Circuit expressed in Grace II.
the duty to protect—such that a noncitizen “appearing before
Specifically, a government need not entirely abdicate its
one official may suffer deportation” while an “identically
protection duties in order to be unable to control persecution
situated” noncitizen “appearing before another may gain the
by third parties. (See Pls.’ Mot. at 47 (arguing that the Lesson
right to stay in this country.” Grace II, 965 F.3d at 900
Plan improperly “conflates the two prongs of the relevant
(internal quotation marks, alteration, and citation omitted).
standard—that the government be ‘unable or unwilling
to control’ the persecutor”).) Moreover, that distinction is
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Thus, this Court finds the Lesson Plan's effort to illuminate ones as necessary to evaluate their entitlement to press their
the meaning of “persecution” is not based on a reasonable asylum claims in full removal proceedings, is warranted.
interpretation of the “unable or unwilling” standard that
the agency had previously announced in its adjudications
interpreting that term, and is therefore impermissible.
1. Vacatur Is An Appropriate Remedy Under These
Circumstances
D. The Unlawful Provisions Of The Lesson Plan Cannot
*34 It is blackletter law that vacatur is “a form of equitable
Be Severed From The Remainder Of The Document,
relief that the Court may award, withhold, and craft to fit the
So The Court Will Exercise Its Equitable Authority To
circumstances of the case before it.” Sierra Forest Legacy v.
Vacate The Entire Lesson Plan And Will Also Order
Sherman, 951 F. Supp. 2d 1100, 1106 (E.D. Cal. 2013); see
New Credible Fear Determinations For These Plaintiffs
also 73A C.J.S. Public Administrative Law and Procedure
*33 Based on the prior discussion, the Court has concluded
§ 552 (Sept. 2020) (explaining that “vacatur is a species of
that certain parts of USCIS's “Lesson Plan on Credible Fear
equitable relief”). Indeed, according to the D.C. Circuit, when
of Persecution and Torture Determinations” conflict with
a reviewing court declares that the challenged action of an
the INA and its implementing regulations in various ways,
administrative agency violates the law, vacatur is the “normal
as Plaintiffs allege in their complaint. (See Section IV.C.,
remedy,” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110
supra.)17 Accordingly, Plaintiffs are entitled to summary (D.C. Cir. 2014), and the “ordinary result” that follows from
judgment with respect to the first claim for relief in their the court's determination, Nat'l Mining Ass'n v. U.S. Army
complaint, given the Court's conclusion that certain parts of Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998). In
the Lesson Plan impermissibly conflict with the INA and its essence, a vacatur order takes the unlawful agency action
implementing regulations as a matter of law. (See Am. Compl. “off the books[,]” AFL-CIO v. Chao, 496 F. Supp. 2d 76,
¶¶ 90, 92–93.) Plaintiffs have presented the remaining claims 92 (D.D.C. 2007), which is an entirely appropriate response
for relief—including their contention that the Lesson Plan when a plaintiff successfully establishes that the agency's
violates the notice-and-comment provisions of the APA—in conduct violates the law, see, e.g., Int'l Union, United Mine
the “alternative” (Pls.’ Mot. at 39); therefore, the Court need Workers of Am. v. Fed. Mine Safety and Health Admin., 920
not proceed to evaluate Plaintiffs’ APA and constitutional F.2d 960, 966–67 (D.C. Cir. 1990).
claims at this juncture. Instead, the question now becomes
what remedy is appropriately afforded to these Plaintiffs It is notable that federal courts have equitable power to
based upon their success in establishing their entitlement to order vacatur even in the absence of a specific statutory
relief with respect to their first claim. authorization. See 73A C.J.S. Public Administrative Law
and Procedure § 552 (Sept. 2020); see also Franklin v.
In this regard, Defendants insist that, per the terms of section Gwinnett Cty. Pub. Sch., 503 U.S. 60, 70–71 (1992) (“The
1252(e)(3), the Court can only issue a declaratory judgment general rule ... is that absent clear direction to the contrary
—i.e., the Court “may only determine the Lesson Plan's by Congress, the federal courts have the power to award any
lawfulness, and lacks statutory authority to enjoin or vacate appropriate relief in a cognizable cause of action brought
the Lesson Plan or stay removals.” (Defs.’ Mot. at 63.) pursuant to a federal statute.”). But the appropriateness of
The Court rejects this unfounded contention for the reasons such relief is further underscored by the fact that Congress has
explained below. To the contrary, it is well settled that federal specifically prescribed this particular remedy when agency
courts have equitable power to order the vacatur of unlawful action violates the law and the plaintiff brings her claim
agency conduct—in whole or in part—and nothing in the INA under the APA. See 5 U.S.C. § 706(2) (stating that, under
restricts or withdraws that established authority. Furthermore, the specified circumstances, a “reviewing court shall ... hold
in the instant case, it is appropriate for the Court to vacate the unlawful and set aside agency action”).
Lesson Plan in its entirety, because the unlawful provisions
are not severable from the rest of the document. In addition, Nothing in the INA divests the federal courts of their
to ensure that Plaintiffs are made whole, the Court has traditional power to vacate unlawful agency action. (But
determined that a limited injunction that requires USCIS to see Defs.’ Mot. at 62–67.) In support of the argument that
void Plaintiff's credible fear determinations, and provide new this Court cannot vacate the Lesson Plan, Defendants first
point to section 1252(e)(1)(A), which provides that “no court
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may enter declaratory, injunctive, or other equitable relief that the district court had issued as a remedy for a legal
in any action pertaining to an order to exclude an alien determination that the district judge made pursuant to section
in accordance with section 1225(b)(1) of this title except 1252(e)(3). See id. at 908–09.
as specifically authorized in a subsequent paragraph of this
subsection[.]” 8 U.S.C. § 1252(e)(1)(A). The agency reads *35 Still, Defendants argue that, even if the INA itself
this provision to strip federal courts of all such equitable does not place limits on this Court's remedial powers, a
remedies in all circumstances. (See Defs.’ Mot. at 63.) But vacatur is not appropriate in this case as a matter of the
as the D.C. Circuit recently explained, section 1252(e)(1) equities. (See Defs.’ Mot. at 65 (citing Allied-Signal, Inc.
(A) is inapplicable to “challenges on the validity of the v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150–
expedited-removal system”—like the one at issue here— 51 (D.C. Cir. 1993).) To be sure, courts “have commonly
given that such challenges are “authorized in a subsequent remanded without vacating an agency's rule or order where
paragraph” of the INA, namely section 1252(e)(3). Grace the failure lay in lack of reasoned decisionmaking, [and] also
II, 965 F.3d at 907 (internal quotation marks, citations, and where the order was otherwise arbitrary and capricious[.]”
alterations omitted). In addition, Congress must have meant Int'l Union, 920 F.2d at 966; see also Allied-Signal, 988 F.2d
for section 1252(e)(1)(A)’s restrictions to apply only when at 150 (remanding without vacating where the agency action
a court is called upon to examine “underlying credible-fear is “inadequately supported”). But where the agency action is
determinations[,]” id.; otherwise, it would have “expressly “so crippled as to be unlawful[,]” and not simply “potentially
authorized the district court to review expedited-removal lawful but insufficiently or inappropriately explained[,]” it is
policies yet simultaneously prohibited it from issuing any clear beyond cavil that the common “practice is to vacate the
remedies[,]” id. agency's order[.]” Radio-Television News Directors Ass'n v.
F.C.C., 184 F.3d 872, 888 (D.C. Cir. 1999). Thus, Defendants
Defendants’ second statutory argument (see Defs.’ Mot. at 66) cannot reasonably dispute that vacatur is the norm where,
is similarly unpersuasive. The agency observes that section as here, the deficiencies that the court has identified are
1252(e)(3)(A) authorizes the United States District Court “substantively fatal[.]” Int'l Union, 920 F.2d at 967.
for the District of Columbia to make a “determination[ ]”
regarding whether certain regulations and written policies Defendants’ other remedy-related contention (see Defs.’
are valid, see 8 U.S.C. § 1252(e)(3)(A), and because a Mot. at 63) is also baseless. They insist that, absent a
“determination” can theoretically be conceived of as a class action—which Congress has expressly prohibited in
form of declaratory relief, Defendants surmise that the sole this context, see 8 U.S.C. § 1252(e)(1)(B)—“the Court
“specifically authorized remedy” in the relevant subsequent has no authority to vacate or enter an injunction against
paragraph, as per section 1252(e)(1)(A), is a declaration that the Lesson Plan,” but may only “order limited systemic
the agency's written policy is unlawful. (See Defs.’ Mot. at relief at the behest of individual aliens.” (Defs.’ Mot. at
66.) Of course, this interpretation ignores the fact that section 63.) (See also Defs.’ Grace Brief at 12 (“[I]n no event,
1252(e)(3) is not addressed to remedies. Moreover, the clear and for no claims, should any relief extend beyond the
context of that provision's reference to “determinations” is five Plaintiffs here[.]”).) With this argument, Defendants
that Congress is authorizing the United States District Court have cast a standard order that is directed solely to the
for the District of Columbia to undertake judicial review agency that is before the court and that vacates a particular
of the implementation of the expedited removal scheme, policy directive that Plaintiffs have successfully challenged
but further specifying that such review “shall be limited to (without purporting to create enforcement rights with respect
determinations of” certain legal issues, including whether the to anyone other than Plaintiffs) as a “prospective nationwide
written policy directive, guideline, or procedure is consistent injunction” that inappropriately “reaches the future credible
with the INA. 8 U.S.C § 1252(e)(3)(A)(ii). Establishing fear determinations of hundreds of thousands of aliens ‘none
that this Court is authorized to determine specified legal of whom are parties to the lawsuit,’ and ‘unconstrained by the
issues cannot be logically equated with the remedies that requirements’ of Rule 23.” (Defs.’ Mot. at 65.) Unfortunately
the Court may prescribe once such a determination has been for Defendants, this Court has seen this play before. See,
made. See Grace II, 965 F.3d at 907 (“ ‘Determination’ ... e.g., MTRNY I, 405 F. Supp. 3d at 71 (rejecting similar
denotes a decision, not a remedy.”) What is more, the D.C. contentions), rev'd on other grounds, MTRNY II, 962 F.3d
Circuit considered and rejected Defendants’ declaration-only 612. And in the end, contrary to Defendants’ representations,
interpretation in Grace II, when it upheld in part an injunction it is the “long-held understanding that once a rule is vacated,
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it is vacated for everyone.” D.A.M. v. Barr, No. 20-cv-1321, from its vacatur—is not a reason to conclude that the Court
2020 WL 5525056, at *7 (D.D.C. Sept. 15, 2020). lacks the power to nullify the unlawful government practice;
indeed, that collateral consequence is wholly irrelevant to
It suffices to note here that the argument that a court can the determination of whether or not a standard vacatur order
only vacate the agency's unlawful conduct with respect to is appropriate to remedy the violation of law that the court
the particular plaintiffs who have filed the legal action that has pronounced. Regardless, if a court concludes that an
is before it has no grounding in the Article III doctrine or agency action violates the law, vacatur is routinely ordered to
in any federal statute of which this Court is aware. This address that substantively unlawful conduct, notwithstanding
argument also conveniently ignores the fact that what is at the alleged windfall that the nullification gives to nonparties
issue in the lawsuit is the agency's unlawful conduct—here, (if being shielded from violative agency action can even
its issuance of a binding instruction manual that contains rationally be considered as such).
provisions that conflict with the INA—and that conduct,
when it was undertaken, was not directed at the Plaintiffs *36 The Court notes further that this typical result has
in this lawsuit. Thus, where the legal claim at issue is the rarely been an issue, because an administrative agency that
unlawfulness of an agency action of general applicability, it is acting in good faith and in the public's interest can be
makes no sense whatsoever to insist that a district court limit expected to heed the implications of the federal court's ruling
its vacatur to address solely the impact of the unlawful agency and desist voluntarily from engaging in conduct that the
action on the plaintiffs. In fact, doing so is tantamount to court has deemed unlawful (at least pending its appeal of the
transforming a facial challenge to agency conduct into an as court's determination) in any event. See Ramirez de Arellano
applied claim. It defies both law and logic. v. Weinberger, 745 F.2d 1500, 1565 (D.C. Cir. 1984) (en
banc) (Scalia, J., dissenting) (explaining that “it must be
It is also worth observing that no less an authority than assumed that officers of the Executive Branch will honor
the Supreme Court has made it abundantly clear that their oath to uphold the laws of the United States[,]” and
injunctions and vacaturs are distinct remedies, and that therefore “once a court takes it upon itself to pronounce that
the latter is considered substantially less intrusive. See the actions challenged here are unlawful all of the adverse
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165– effects of injunction ... ensue”); see also Alsea Valley All.
66 (2010) (explaining that injunctive relief is “a drastic and v. Dep't of Commerce, 358 F.3d 1181, 1186 (9th Cir. 2004)
extraordinary remedy, which should not be granted as a matter (explaining that a vacatur “prohibits, as a practical matter,
of course[,]” whereas a “partial or complete vacatur” of an the enforcement” of an unlawful agency action, but is not
agency's action is a different, “less drastic remedy” that, at actually “the practical equivalent of ‘enjoining’ ” the agency,
times, might be “sufficient to redress” a plaintiff's injury); and noting that such reasoning, “[t]aken to its logical end,”
see also Dep't of Homeland Sec. v. Regents of the Univ. of would “classify as ‘injunctive’ all declaratory relief that
California, 140 S. Ct. 1891, 1916 n.7 (2020) (recognizing this deems an agency rule unlawful”). It has apparently only
distinction by holding that affirmance of the “order vacating been in recent years that federal agencies have consistently
the [agency action] makes it unnecessary to examine the and audaciously demanded an entitlement to persist in the
propriety of the nationwide scope of the injunctions”). And unlawful conduct despite a federal court's ruling declaring
given the established and lengthy history of federal courts that conduct unlawful, which has manifested itself in the
employing their equitable powers to vacate unlawful agency strange argument that Defendants have presented here—i.e.,
actions, Defendants’ professed concern that a vacatur would that precisely because outsiders might benefit from a vacatur,
“reach[ ] the future credible fear determinations of hundreds the Court lacks the power to vacate the agency action and
of thousands of aliens none of whom are parties to the must instead craft a remedy that permits the agency to
lawsuit” (Defs.’ Mot. at 65 (internal quotation marks and continue to act in flagrant violation of the law as the court has
citation omitted)) is really neither here nor there when it announced it to be with respect to anyone who has not been
comes to demonstrating that this Court lacks the authority to joined as a party in the case before the court.18
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 Yet, here as elsewhere, Defendants have failed to provide any
upon other individuals who are not before the Court—indeed, persuasive reason why the potential incidental benefit that
conceivably, any and every person who might have otherwise is conferred to the rest of humanity when a court addresses
been subjected to the government's unlawful conduct benefits unlawful agency action by vacating the agency's conduct is
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sufficiently problematic, under the Constitution or otherwise, various unlawful provisions that Plaintiffs have successfully
to justify limiting a federal court's traditional power to nullify identified can be severed from the rest of the document. This
the actions of the defendant when that challenged conduct Court ordered the parties to provide supplemental briefing on
violates the law. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d this issue (see Pls.’ Suppl. Brief on Severability, ECF No.
1, 37 (D.D.C. 2020) (explaining that the “consequences” of a 68; Defs.’ Suppl. Brief on Severability, ECF No. 69), and
vacatur “with respect to parties not before the Court” simply after a careful review of both the parties’ arguments and the
“lie[ ] beyond this Court's jurisdiction”). And there is none, governing legal standards, the Court has concluded that the
in light of “[t]raditional administrative law principles[,]” unlawful parts of the Lesson Plan described in Section IV.C
which dictate that, “[w]hen a reviewing court determines above cannot, and should not, be severed by the Court.
that agency regulations are unlawful, the ordinary result is
that the rules are vacated—not that their application to the “Whether an administrative agency's order or regulation is
individual petitioners is proscribed.” Harmon v. Thornburgh, severable, permitting a court to affirm it in part and reverse
878 F.2d 484, 495 n.21 (D.C. Cir. 1989); see also Barr v. Am. it in part, depends on the issuing agency's intent.” North
Ass'n of Political Consultants, Inc., 140 S. Ct. 2335, 2351 Carolina v. F.E.R.C., 730 F.2d 790, 795–96 (D.C. Cir. 1984).
n.8 (2020) (explaining that, when “a provision [of law] is The necessary intent is ordinarily ascertained pursuant to a
declared invalid[,]” the invalid provision “cannot be lawfully two-prong test: (1) whether “the agency would have adopted
enforced against others”—and not just “against the plaintiff”); the same disposition regarding the unchallenged portion of
Grace v. Whitaker, No. 18-cv-1853, 2019 WL 329572, at *2 the regulation if the challenged portion were subtracted[,]”
(D.D.C. Jan. 25, 2019) (“There is no statutory requirement, as and (2) whether the parts of the regulation that remain can
the government argues, to declare a policy in violation of the “function sensibly without the stricken provision[,]” Carlson
law only as applied to the individual plaintiffs.”). In addition, v. Postal Regulatory Comm'n, 938 F.3d 337, 351 (D.C. Cir.
Defendants’ limited vacatur argument flies in the fact of the 2019) (internal quotation marks, citations, and alternation
“fundamental” notion that “agency policy is to be made, in omitted). With respect to the first prong, severance “is
the first instance, by the agency itself [and] not by courts[,]” improper if there is ‘substantial doubt’ that the agency would
Harmon, 878 F.2d at 494, since vacating or enjoining a rule have adopted the severed portion on its own.” Davis Cnty.
of general applicability only with respect to specific parties Solid Waste Mgmt. v. E.P.A., 108 F.3d 1454, 1459 (D.C. Cir.
“would be drawing a line which the agency itself has never 1997) (per curiam) (internal citation omitted). With respect to
drawn[,]” id. at 495. the second factor, the Court asks whether severance “would
severely distort the [agency's] program and produce a rule
*37 Therefore, in addition to declaring that certain strikingly different from any the [agency] has ever considered
provisions of the Lesson Plan are unlawful, this Court or promulgated[.]” MD/DC/DE Broadcasters Ass'n v. F.C.C.
will proceed to vacate all or part of the Lesson Plan, as (“MD/DC/DE I”), 236 F.3d 13, 23 (D.C. Cir. 2001).
in the ordinary course, to ensure that USCIS implements
the Court's determination with respect to the agency's Application of this standard severability analysis to the
unlawful action. Cf. A.B.-B., 2020 WL 5107548, at *9 facts of the instant case compels the conclusion that the
(declaring that DHS's policy to allow CBP officers to conduct unlawful portions of the Lesson Plan that the Court discusses
credible fear interviews instead of USCIS asylum officers above are not severable for at least three reasons. First,
violated the INA, and issuing a preliminary injunction under the Lesson Plan's stated purpose is “to explain how to
section 1252(e)(3) that prohibits DHS from implementing its determine whether an alien subject to expedited removal or
policy of authorizing CBP officers to conduct credible fear an arriving stowaway has a credible fear of persecution or
screenings). 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
2. The Unlawful Provisions Of The Lesson Plan Are Not
guidance document that excluded the directives concerning
Severable From The Remainder Of The Document, Such That
the credible fear determination that this Court has found to be
Vacatur Of The Entire Lesson Plan Is Required
unlawful. North Carolina, 730 F.2d at 796. Second, it is also
The next question that must be answered is whether the hard to imagine how the Lesson Plan “could function sensibly
Court needs to vacate the entire Lesson Plan, or whether the as a freestanding” guidance document without the unlawful
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provisions. MD/DC/DE Broadcasters Ass'n v. F.C.C. (“MD/ version of the Lesson Plan that Plaintiffs have filed to indicate
DC/DE II”), 253 F.3d 732, 735 (D.C. Cir. 2001). The various the changes that the agency made to produce the April 2019
directives are so interwoven that it is highly likely that version (see Ex. A to Pls.’ Mot., ECF No. 36-3, at 4–72)
severance would “severely distort” the binding instructions that the challenged portions are not isolated in the least;
that the agency has issued concerning how to administer the they involve hundreds of line strikes and additions, which
complex system of credible fear determinations, resulting in manifests the author's intent to integrate these edits into the
a policy document that is “strikingly different” from prior training materials in a manner that is comprehensive and
versions of the Lesson Plan. MD/DC/DE I, 236 F.3d at 23. wholesale.19
Third, and even more to the point, setting aside the post-hoc
representations that Defendants have made in the severance That said, this Court acknowledges the validity of
brief that the Court required them to file during the course of Defendants’ concern that “completely vacating the Lesson
this litigation (see, e.g., Defs.’ Suppl. Brief on Severability Plan” with immediate effect “would leave USCIS without
at 11), USCIS has not made any statement or given any an up-to-date training document reflecting the latest legal
other indication that it ever intended any of the Lesson Plan's developments, and instead force the agency to teach officers
provisions to function independently of the rest, see Sierra on materials that no longer reflect the law[.]” (Defs.’ Suppl.
Club v. F.E.R.C., 867 F.3d 1357, 1366 (D.C. Cir. 2017). Cf. Brief on Severability at 16.) Of course, this Court has ruled
AFL-CIO v. N.L.R.B., No. 20-cv-0675, 2020 WL 3041384, that the current version of the training manual does not
at *19 (D.D.C. June 7, 2020) (observing that, by stating accurately reflect the law, and the inability to rely on an
that it “would adopt each of these amendments individually, unlawful policy document is the ordinary impact of the
or in any combination, regardless of whether any of the vacatur of such agency action. Also, after more than a year of
other amendments were made[,]” the agency had specifically litigation over the particular provisions of the Lesson Plan that
addressed severability in the challenged rule (internal citation are specifically identified in Plaintiffs’ complaint, Defendants
omitted)). cannot reasonably complain that the Court's ruling catches
them off guard. The Court also finds it odd that USCIS argues
*38 Undaunted, Defendants assert that “[t]here is no doubt both that a vacatur order would be substantially disruptive
that USCIS would have issued the Lesson Plan” without because it would create “a vacuum on guidance for any new
the challenged provisions, because “USCIS has repeatedly developments in immigration law since 2017” (id. at 8),
revised its Lesson Plan” over the years, and “the vast majority and that the provisions that the Court has found unlawful
of the Lesson Plan under review in this case ... has been are discrete and severable, because the April 2019 version
included in several past iterations of the Lesson Plan.” (Defs.’ “has been included in several past iterations of the Lesson
Suppl. Brief on Severability at 11.) But this argument cuts Plan” (id. at 11). The former merely underscores the non-
against the agency's severability position instead of bolstering severability finding that the agency contests. And, if the latter
it. For one thing, it appears that USCIS issues an entirely new is the case, then responding to the vacatur should not be
Lesson Plan when there is an update, instead of maintaining particularly onerous, for the agency can rely on the allegedly
previous portions and repealing only certain segments as substantially similar 2017 version of the Lesson Plan while it
circumstances change. (See, e.g., Defs.’ Status Report, ECF fashions relevant updates that are consistent with the law.
No. 58, at 1 (explaining that “the primary effect of the
September 2019 Lesson Plan[,]” which replaced the April Nor is this a case in which vacating the entire Lesson
2019 Lesson Plan, “is to incorporate a discussion of a new Plan would necessarily create confusion, see Chamber of
immigration administrative decision, Matter of L-E-A-, 27 Commerce v. S.E.C., 443 F.3d 890, 909 (D.C. Cir. 2006)
I. & N. Dec. 581 (A.G. 2019)”).) This editorial prerogative (staying a vacatur order on this ground), or deprive one or
indicates the connectedness of the document's directives and more parties of significant rights, see Bauer v. DeVos, 332 F.
the agency's apparent view that particular provisions of this Supp. 3d 181, 185 (D.D.C. 2018). The instant detailed opinion
manual are not wholly independent of the rest. Cf., e.g., explains why various provisions of the Lesson Plan violate
Am. Petroleum Inst. v. E.P.A., 862 F.3d 50, 71–72 (D.C. the INA, and thus should be sufficient to guide the agency's
Cir. 2017) (explaining that the court could not find that two reconsideration and preparation of training materials that
provisions were “wholly independent” because “[a]t no point accurately describe the statutory and regulatory requirements.
in the record does EPA propose keeping [one provision] and Furthermore, and importantly, the Court is ever mindful
repealing [the other]”). It is also clear from the redlined that, at bottom, the process of revising the Lesson Plan to
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conform with the INA and its regulations is quintessentially the government “cannot suffer harm from an injunction that
the agency's responsibility, and not this Court's. Cf. Regents, merely ends an unlawful practice[.]” R.I.L-R v. Johnson, 80
140 S. Ct. at 1914 (noting that making “difficult decision[s]” F. Supp. 3d 164, 191 (D.D.C. 2015) (quoting Rodriguez v.
concerning policy matters is the “agency's job”). This means Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)). And the
that it would be less than prudent under the circumstances Supreme Court has further recognized that, although there is
presented in this case for the Court to undertake its own “a public interest in prompt execution of removal orders[,]”
amendment process, by identifying and striking only certain there also “is a public interest in preventing aliens from being
portions of the Lesson Plan; rather, given the integrated nature wrongfully removed, particularly to countries where they are
of the unlawful provisions and the lack of any indication that likely to face substantial harm.” Nken v. Holder, 556 U.S. 418,
USCIS intended for any portion to be severable, the better 436 (2009). Thus, this Court is satisfied that injunctive relief
course of action is for the Court to vacate the entire document, is proper.
and thereby facilitate the agency's own decisionmaking
processes concerning the necessary revisions. See, e.g., ACA Injunctive relief is also warranted because, given the Court's
Int'l v. F.C.C., 885 F.3d 687, 708 (D.C. Cir. 2018). 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
3. Plaintiffs Are Entitled To New Credible Fear
States, 949 F. Supp. 2d 36, 43 (D.D.C. 2013) (quoting Am.
Determinations
Fed'n of Gov't Emps., AFL-CIO v. F.L.R.A., 778 F.2d 850,
*39 Lastly, this Court has determined that vacatur of the 862 n.19 (D.C. Cir. 1985)), which is to void the credible fear
Lesson Plan is not sufficient to redress Plaintiffs’ injuries determination that were made with respect to each Plaintiff
fully, and that “specific injunctive relief” is necessary for each pursuant to the unlawful Lesson Plan, and to provide Plaintiffs
individual Plaintiff (Pls.’ Reply at 40), for several reasons. with new credible fear determinations that do not apply
the unlawful standards in that document. As noted above,
First, the instant circumstances satisfy the familiar four-factor Defendants’ argument that the Court lacks the authority to
test for injunctive relief. See eBay Inc. v. MercExchange, issue any kind of injunctive relief (see Defs.’ Mot. at 65)
L.L.C., 547 U.S. 388, 391 (2006) (holding that a grant relies on an interpretation of the INA that has been rejected
of injunctive relief requires consideration of the plaintiff's on numerous occasions, by all levels of the federal judiciary.
irreparable injury, the adequacy of the remedies available See, e.g., R.I.L-R, 80 F. Supp. 3d at 184 (“[W]here a petitioner
at law, the parties’ balance of hardships, and the public seeks to enjoin conduct that allegedly is not even authorized
interest). Plaintiffs’ sworn declarations establish the potential by the statute, the court is not enjoining the operation of the
for irreparable injury, insofar as they detail the rapes, beatings, statute, and § 1252(f)(1) therefore is not implicated.” (internal
shootings, and family deaths that Plaintiffs experienced alternations, quotation marks, and citations omitted)); see
previously in their countries of origin and might experience also Reno v. Am.-Arab Anti-Discrimination Comm., 525
again in the future if their asylum applications are not U.S. 471, 481 (1999) (noting that section 1252(f) only
re-evaluated in accordance with the standards that the “prohibits federal courts from granting classwide injunctive
law prescribes, and if they are removed pursuant to such relief against the operation of §§ 1221–1231”); Grace II, 965
procedurally defective credible fear determinations. (See Exs. F.3d at 907 (explaining that section 1252(f)(1) “places no
B–G to Pls.’ Mot., ECF No. 36-3, at 79–111.) It is also restriction on the district court's authority to enjoin agency
sufficiently clear that, “without an injunction, the plaintiffs action found to be unlawful”). Thus, nothing in the INA
previously removed will continue to live in fear every day, prevents this Court from enjoining the agency to take certain
and the remaining plaintiffs are at risk of removal.” Grace I, actions to remedy prior unlawful agency conduct.
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 *40 Notably, returning Plaintiffs Julia and Sofia (who have
and declaring it unlawful would provide only partial relief already been removed) to the status quo ante means that
to Julia and Sofia, who have already been removed, and to Defendants will have to facilitate the return of these Plaintiffs
Kiakombua, Ana, and Emma, who seemingly remain subject back to the United States, at no cost to Plaintiffs Julia and
to unlawful removal orders. The balance of the hardships Sofia. See, e.g., Grace I, 344 F. Supp. 3d at 144 (holding that
favors injunctive relief for Plaintiffs’ benefit as well, because the Court has the authority to order the return of plaintiffs
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for evaluating asylum eligibility in the expedited removal
unlawfully removed, and doing so), aff'd in relevant part,
context, which includes an initial screening assessment of
Grace II, 965 F.3d at 909. Consistent with this Court's Order,
whether prospective asylum applicants have a credible fear
these Plaintiffs must be afforded every opportunity to meet
of persecution in their home countries. The credible fear
with a properly trained USCIS asylum officer, and they
evaluation is meant to be a “low bar” for the noncitizen,
must be interviewed in accordance with the standards and
insofar as the interviewing officer need only determine that
requirements of the INA and its implementing regulations.
there is a significant possibility that the applicant would be
And they must not be made to fear the burden of having to find
eligible for asylum. Thuraissigiam, 140 S. Ct. at 1965–67.
the means of making the journey back to the United States
Yet, as explained in this Memorandum Opinion, USCIS's
border, or having to incur the financial costs involved. Cf.
amended “Lesson Plan on Credible Fear of Persecution or
Order, Grace v. Whitaker, No. 18-cv-01853, ECF No. 105, at
Torture” imports into the credible fear evaluation various
3 (Dec. 19, 2018) (ordering “defendants to bring back into the
standards and burdens that apply only to the second stage
United States, at no expense to plaintiffs, any plaintiff who has
of the statutory scheme, and places burdens on credible
been removed pursuant to an expedited removal order prior
fear interviewees that extend far beyond the reasonable
to this Order”).
boundaries of Congress's policy choices as reflected in
the governing law. Thus, the Lesson Plan qualifies as a
With respect to Plaintiffs Kiakombua, Ana, and Emma,
written directive, guideline, or procedure that implements
Defendants might opt to confirm (through the issuance of
the expedited removal scheme in a manner that unlawfully
proper Notices to Appear) that these Plaintiffs have already
diverges from the INA and its implementing regulations. See
cleared the credible fear hurdle, in lieu of providing new
8 U.S.C. § 1252(e)(3)(A)(ii).
credible fear screenings. However, if the agency determines
that new credible fear interviews are required, these Plaintiffs’
As a result, this Court concludes that the parts of the Lesson
evaluations, too, must be fully consistent with the INA and
Plan that conflict with the INA and related regulations—
its regulations, and thus must not rely in any way upon
identified in Section IV.C, supra—must be DECLARED
the now invalidated Lesson Plan or any of its unlawful
UNLAWFUL. Furthermore, because the unlawful parts are
provisions. Only if each Plaintiff's circumstances are assessed
not severable from the remainder of the document, the
anew pursuant to, and consistent with, all applicable statutory
Lesson Plan must be VACATED in its entirety, and the
and regulatory requirements concerning the credible fear
matter remanded to the agency for further consideration in
stage of the asylum application process will this Court's
light of this Court's opinion. In addition, as detailed in the
order enjoining Defendants to provide new credible fear
accompanying Order, Defendants will be ENJOINED to void
determinations for Plaintiffs be satisfied.
the credible fear determinations that were previously made
with respect to each Plaintiff and to provide each Plaintiff with
V. CONCLUSION a new credible fear screening that does not rely in any respect
The INA and the regulations that federal agencies have on the unlawful policies in the vacated Lesson Plan.
promulgated to govern the modern asylum application
process plainly reflect “the historic policy of the United
All Citations
States to respond to the urgent needs of persons subject to
persecution in their homelands[.]” 8 U.S.C. § 1521 note. One Slip Copy, 2020 WL 6392824
manifestation of this policy is the statute's two-stage process
Footnotes
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.
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
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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 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).
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).
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).
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.)
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.”
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.)
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.
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.
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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.
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.)
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)).
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 process laid out in the INA and its implementing regulations.
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.”).
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)).
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
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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).
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.
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.
End of Document © 2020 Thomson Reuters. No claim to original U.S.
Government Works.
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