Complaint (2021-01-19)

Date: 2021-01-19

Summary

Exhibit B, filed January 19, 2021 as Document 130-3 in East Bay Sanctuary Covenant v. Barr, Case 4:19-cv-04073-JST, in the U.S. District Court for the Northern District of California, is a First Amended and Supplemental Complaint for Declaratory and Injunctive Relief. The plaintiffs, East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and Central American Resource Center in Los Angeles, challenge a Final Rule published December 17, 2020 that bars asylum for noncitizens who transited through another country before reaching the southern border. The complaint argues the rule violates the INA, the APA and the Congressional Review Act and was issued by DHS officials unlawfully serving in an acting capacity. It seeks an order vacating and enjoining the Final Rule. The 63-page exhibit is signed by counsel from the ACLU, SPLC and CCR.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 1 of 63

Exhibit B

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 2 of 63

1
2
3
4
5
6
7
8
9

Lee Gelernt*
Omar C. Jadwat*
Anand Balakrishnan*
Ming Cheung**
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2660
F:
(212)
549-2654
lgelernt@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org
mcheung@aclu.org

Attorneys for Plaintiffs (Additional counsel listed on following page)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

11
12
13

East Bay Sanctuary Covenant; Al Otro Lado;
Innovation Law Lab; and Central American
Resource Center in Los Angeles,

Plaintiffs,

16
17
18
19
20
21
22
23
24
25
26
27
28

Katrina Eiland (SBN 275701)
Cody Wofsy (SBN 294179)
Spencer Amdur (SBN 320069)
Julie VeroffMorgan Russell (SBN
310161296137)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0770
F: (415) 395-0950
keiland@aclu.org
cwofsy@aclu.org
samdur@aclu.org
jveroffmrussell@aclu.org

William Barr,Jeffrey A. Rosen, Acting Attorney
General, in his official capacity; U.S. Department
of Justice; James McHenry, Director of the
Executive Office for Immigration Review, in his
official capacity; the Executive Office for
Immigration Review; Kevin K. McAleenanPeter
Gaynor, Acting Secretary of Homeland Security,
in his official capacity; U.S. Department of
Homeland Security; Kenneth T. Cuccinelli, Acting
Director of the U.S. Citizenship and Immigration
Services, in his official capacity; U.S. Citizenship
and Immigration Services; John P. SandersMark
A. Morgan, Acting Commissioner of U.S.
Customs and Border Protection, in his official
capacity; U.S. Customs and Border Protection;
Matthew T. Albence, ActingTae D. Johnson,
Senior Official Performing the Duties of the
Director of Immigration and Customs
Enforcement, in his official capacity; Immigration
and Customs Enforcement,; Chad Mizelle, Senior
Official Performing the Duties of the General
Counsel for Homeland Security, in his official
capacity,
Defendants.

Case No.: 3:19-cv-04073-JST

FIRST AMENDED AND
SUPPLEMENTAL COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF
IMMIGRATION ACTION

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 3 of 63

1
2
3
4
5
6
7
8
9
10
11
12
13

Melissa Crow*
SOUTHERN POVERTY LAW CENTER
1101 17th Street, NW Suite 705
Washington, D.C. 20036
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org
Mary Bauer*
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Attorneys for Plaintiffs
*Admitted pro hac vice
**Pro hac vice application forthcoming
** Application for admission pending

Baher Azmy***
Angelo Guisado***
Ghita Schwarz***
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
T: (212) 614-6464
F: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gschwarz@ccrjustice.org
Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
Angélica Salceda** (SBN 296152)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclunc.org
vtalla@aclunc.org
asalceda@aclunc.org

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 4 of 63

INTRODUCTION

1
2

Defendants have re-imposed an unlawful ban on asylum that was previously enjoined

or vacated by two separate federal courts, including this Court. The new final rule (“Final Rule”),

which is set to take effect one day before the end of the current administration, suffers from the same

defects as the previously enjoined and vacated interim final rule (“Interim Rule”). Both iterations of

6
7
8
9

the policy violate this nation’s asylum laws by denying asylum to anyone who enters, attempts to
enter, or arrives in the United States through the southern border without having applied for and
been denied asylum in a country through which they transited, with limited exceptions. Neither

iteration contains a reasoned explanation, and both were promulgated in violation of the

Administrative Procedure Act’s (“APA”) notice-and-comment requirements and are contrary to law.

Furthermore, the Final Rule was published less than 60 days before its effective date, contrary to the

13
14

Congressional Review Act (“CRA”), and was issued by unlawfully appointed Department of
Homeland Security (“DHS”) officials; the Final Rule must therefore be vacated and enjoined on

15
16
17
18
19
20
21
22
23
24
25

those additional grounds.
1.2.

The United States has a longstanding commitment under domestic and international

law to protecting people fleeing persecution from further harm.
2.3.

The Immigration and Nationality Act reflects Congress’s carefully considered

balance between effectuating our broad, historic commitment to international humanitarian law
principles in the context of our asylum system and ensuring fairness and efficiency in the process. In
crafting our asylum laws, Congress sought to implement the principles in the 1951 Refugee
Convention, which was designed to avoid the horrors visited on refugees around World War II.
3.4.

As part of our nation’s commitment to the protection of people fleeing persecution

and consistent with our international obligations, it is longstanding federal law that merely transiting

through a third country is not a basis to categorically deny asylum to refugees who arrive at our
1
shores.
FIRST AM. AND SUPPL. COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 5 of 63

4.5.

Specifically, Congress expressly provided in the Immigration and Nationality Act

(“INA”) that a noncitizen is ineligible for asylum in the United States only if she “was firmly

resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).

The concept of firm resettlement—which involves far more than a mere transitory relationship with

a third country—dates back to international agreements crafted after World War II, and takes into

6
7
8
9

account the ties an individual fleeing persecution formed with another country and his or her
particular ability to enjoy safety and legal protection there.
5.6.

Moreover, Congress expressly spoke to when an asylum seeker may be removed to a

third country and required to seek protection there: only where the United States and that country

have entered into a bilateral or multilateral agreement, the removal is pursuant to that agreement, and

there is a determination that the asylum seeker would not face persecution and “would have access to

13
14
15
16

a full and fair procedure for determining a claim to asylum” in that country. 8 U.S.C.
§ 1158(a)(2)(A).
6.7.

Indeed, Congress made clear that noncitizens may apply for asylum regardless of

where they enter the United States, “whether or not at a designated port of arrival.” 8 U.S.C.

§ 1158(a)(1). All asylum seekers coming from a country other than a country contiguous to the

United States who enter between ports of arrival necessarily transited through another country before

reaching the southern border. Congress therefore guaranteed that they, too, should be able to seek

21
22
23
24

asylum free of any categorical restriction based on their route to the United States.
7.8.

Together, these provisions illustrate the careful balance Congress struck between

protecting vulnerable individuals from harm and sharing the burdens of asylum processing with

other countries in which safety and fair processing can be assured and are appropriate, and its

decision that only in specific narrow circumstances could a noncitizen’s transit or even residence in

a third country justify a denial of protection in the United States.

28
2
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 6 of 63

8.9.

Despite Congress’s clear commands, on July 16, 2019, the then-Attorney General,

William Barr, and the then-purported Acting Secretary of Homeland SecurityDHS, Kevin

McAleenan, promulgated an interim final rule (“Interim Rule”) providing that noncitizens who

transit through another country prior to reaching the southern border of the United States are

ineligible for asylum here. The Interim Rule, which takestook effect on July 16, 2019, has only

6
7
8

three narrow exceptions, for those who applied for protection in a transit country and were denied it
in a final judgment; who meet the definition of a “victim of severe form of trafficking in persons”; or

who transited only through countries that are not parties to the 1951 Convention on the Status of

Refugees, the 1967 Protocol Relating to the Status of Refugees, or the Convention Against Torture.

Mexico, the only country adjoiningwhich adjoins the southern border of the United States, is a party

to the 1951 Refugee Convention, the 1967 Refugee Protocol, and the Convention Against Torture.

13
14
15
16

10.

The Rule thusThe Interim Rule took effect immediately, without following the APA’s

notice-and-comment requirements.
11.

Both the Ninth Circuit and this Court subsequently held that the Interim Rule should

be preliminarily enjoined as arbitrary and capricious and contrary to law. E. Bay Sanctuary

Covenant v. Barr, 964 F.3d 832, 857-58 (9th Cir. 2020); E. Bay Sanctuary Covenant v. Barr, 385 F.

Supp. 3d 922, 930-31 (N.D. Cal. 2019). Defendants’ petition for rehearing en banc is currently

pending in the Ninth Circuit. Prior to the Ninth Circuit’s decision, the U.S. Supreme Court stayed

21
22
23
24

this Court’s injunction pending appeal without opining on the merits, Barr v. E. Bay Sanctuary
Covenant, 140 S. Ct. 3, 3 (2019).
12.

On June 30, 2020, Judge Timothy J. Kelly on the U.S. District Court for the District

of Columbia vacated the Interim Rule nationwide because the agencies failed to comply with the

notice-and-comment requirement of the APA. Capital Area Immigrants’ Rights Coal. v. Trump

(“CAIR”), 471 F. Supp. 3d 25, 57, 60 (D.D.C. 2020). Although the government has appealed the

28
3
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 7 of 63

1
2

decision vacating the Interim Rule, it did not seek a stay of that ruling and the Interim Rule is thus
currently not in effect nationwide.

13.

On December 17, 2020, then-Attorney General Barr and then-Acting Secretary of

Homeland Security, Chad Wolf, published the Final Rule, which is practically identical to the

Interim Rule enjoined by this Court and the Ninth Circuit and vacated by Judge Kelly in the District

6
7
8
9

of Columbia. See 85 Fed. Reg. 82,260, 82,262. The Final Rule is set to take effect on January 19,
2021.
14.

The Final Rule purports—but fails—to comply with the APA’s notice-and-comment

requirements. See 85 Fed. Reg. at 82,261. Although the Final Rule regards the Interim Rule as a

notice of proposed rulemaking for notice-and-comment purposes, the Interim Rule was issued by

McAleenan, who was then unlawfully serving as Acting DHS Secretary, rendering the Interim Rule

13
14
15
16
17
18
19
20
21
22
23
24

(and therefore the Final Rule) without force and effect. The agencies also unlawfully limited the
comment period to 30 days, frustrating Plaintiffs’ and the public’s efforts to fully address the new
and complex policy.
15.

The Final Rule also violates the Congressional Review Act, which requires all major

rules be published at least 60 days before they take effect.
9.16.

Like the Interim Rule, the Final Rule bars virtually every noncitizen fleeing

persecution from obtaining asylum in the United States if they passed through another country on
their way here, no matter the conditions or purpose of their journey through that country or their
prospect of protection, rights, or permanent legal status in that country. Accordingly, anyone fleeing
persecution from the ongoing humanitarian crisis in the countries that constitute the Northern

Triangle who reasonably does not apply for protection while en route —no matter how reasonable

that decision—will be categorically denied the opportunity to seek asylum in the United States and

likely forced to return to countries that are rife with danger and violence. The Final Rule is a part of

ana continued, unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum
4
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 8 of 63

1
2

system at the southern border, and cruelly closes our doors to refugees fleeing persecution, forcing
them to return to harm.

10.17. TheLike the Interim Rule, the Final Rule directly violates Congress’s clear

requirement that for a noncitizen to be denied asylum because of his or her relationship with a third

country, the noncitizen had to be firmly resettled in that third country or subject to a safe third

6
7
8
9

country agreement, as well as Congress’s requirement that asylum cannot be categorically denied
based on an asylum seeker’s route to the United States. It is also arbitrary and capricious.
18.

In additionAdditionally, the Attorney General Final Rule was approved and signed,

respectively, by two DHS officials who were unlawfully serving in an acting capacity, former Acting

Secretary of Homeland Security issuedWolf and Acting General Counsel Chad Mizelle.

12
13
14
15
16

19.

Because Wolf was not lawfully Acting DHS Secretary, the Rule immediately, without

abiding by Final Rule is contrary to law for that reason as well.
20.

Although Wolf purported to delegate the required procedural steps ofauthority to sign

and publish the Administrative Procedure Act (“APA”).Final Rule to Defendant Mizelle, he lacked

the authority to do so and, in any event, Mizelle also has been unlawfully performing his role as

Acting DHS General Counsel.

19
20
21
22
23
24
25
26
27

11.21. The unlawful tenures of Wolf and Mizelle are independent reasons why the Final
Rule is contrary to law and must be set aside.
12.22. Plaintiffs accordingly seek a declaration that theseDefendants’ actions violate the
INA, the Federal Vacancies Reform Act (“FVRA”), the Homeland Security Act (“HSA”), the
Appointments Clause, the CRA, and the APA, and an order vacating and enjoining the Final Rule.
JURISDICTION AND VENUE
13.23. This case arises under the APA, 5 U.S.C. § 701, et seq. and the ., the FVRA, 5 U.S.C.
§ 3345, et seq., the HSA, 6 U.S.C. § 111, et seq., the INA, 8 U.S.C. § 1101, et seq., the CRA, 5

28
5
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 9 of 63

1
2

U.S.C. § 801, et seq., and the Appointments Clause of the United States Constitution, U.S. Const.,
Art. II, § 2, cl. 2. This Court has subject matter jurisdiction under 28 U.S.C. § 1331.

14.24. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of

the United States and officers of the United States acting in their official capacity and 1) at least one

plaintiff resides in this district; and/or 2) a substantial part of the events or omissions giving rise to

6
7

the claim occurred in this district.

8
9
10
11
12
13

PARTIES
15.25. Plaintiff East Bay Sanctuary Covenant (“EBSC”) is a nonprofit organization
incorporated in California. EBSC’s main office is in Berkeley, California.
16.26. EBSC was founded in 1982 to assist refugees fleeing the civil wars and violence in El

Salvador and Guatemala. EBSC’s mission is to offer sanctuary, support, community organizing

assistance, advocacy, and legal services to people escaping political persecution, terror, war,

intolerance, exploitation, and other violence. In particular, one of EBSC’s critical missions is to

17
18
19
20
21

assist individuals fleeing persecution in applying for asylum in the United States. EBSC also trains
and mentors law students and attorneys to help clients apply for asylum.
17.27. Plaintiff Al Otro Lado is a nonprofit, nonpartisan organization established in 2014
and incorporated in California.

18.28. Al Otro Lado is a legal services organization that serves indigent deportees, migrants,

refugees, and their families, and operates primarily in Southern California, and Tijuana, Mexico. Al

Otro Lado’s mission is to coordinate and provide screening, advocacy, and legal representation for

25
26
27

individuals in asylum and other immigration proceedings; to seek redress for civil rights violations;
and to provide assistance with other legal and social service needs.

28
6
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 10 of 63

1
2
3

19.29. Plaintiff Innovation Law Lab is a nonprofit organization that has projects in multiple
states, including an office in Oakland, California.
20.30. Innovation Law Lab seeks to advance the legal rights of immigrants and refugees in

the United States, with a focus on providing and facilitating representation to asylum seekers.

21.31. Plaintiff Central American Resource Center (“CARECEN”) is a nonprofit

6
7
8

organization incorporated in California.
22.32. CARECEN’s mission is to empower Central Americans and all immigrants by

defending human and civil rights, working for social and economic justice and promoting cultural

diversity. CARECEN offers low-cost immigration legal services; community education programs;

and advocacy and organizing to achieve fair and more inclusive immigration, education, and labor

laws and policies in Los Angeles. A central part of CARECEN’s mission is to provide legal

13
14
15
16

counseling and representation to asylum seekers.
23.33. Defendant William BarrJeffrey A. Rosen is the Acting Attorney General of the
United States. He is sued in his official capacity. In that capacity, he issued the interim final rule

challenged in this suit. The Attorney General is responsible for the administration of the

immigration laws pursuant to 8 U.S.C. § 1103 and is empowered to grant asylum or other relief.

19
20
21
22
23
24
25

24.34. Defendant U.S. Department of Justice (“DOJ”) is a cabinet-level department of the
United States federal government.
25.35. Defendant James McHenry is the Director of the Executive Office for Immigration
Review (“EOIR”). He is sued in his official capacity.
26.36. Defendant EOIR is the sub-agency of DOJ that, through its immigration judges,
conducts limited review of negative credible fear determinations.

26
27
28
7
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 11 of 63

27.37. Defendant Kevin K. McAleenanPeter Gaynor1 is the Acting Secretary of Homeland

1
2

Security. He is sued in his official capacity. In that capacity, he issued the interim final rule

challenged in this suit. He directs each of the component agencies within the Department of

Homeland Security. In his official capacity, Defendant McAleenanGaynor is responsible for the

administration of the immigration laws pursuant to 8 U.S.C. § 1103, and is empowered to grant

6
7

asylum and other immigration benefits.
28.38. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level

8
9

department of the United States federal government. Its components include U.S. Citizenship and

Immigration Services (“USCIS”), Customs and Border Protection (“CBP”), and Immigration and

Customs Enforcement (“ICE”).

12
13

29.39. Defendant Kenneth T. Cuccinelli is the Acting Director of USCIS. He is sued in his
official capacity.

30.40. Defendant USCIS is the sub-agency of DHS that, through its asylum officers,

15
16

conducts interviews of individuals who apply for asylum.
31.41. Defendant John P. SandersMark A. Morgan is the Acting Commissioner of CBP. He

17
18

is sued in his official capacity.

32.42. Defendant CBP is the sub-agency of DHS that is responsible for the initial processing

and detention of noncitizens who are apprehended near the U.S. border or who present themselves at

ports of entry.

33.43. Defendant Matthew T. AlbenceTae D. Johnson is the ActingSenior Official

23
24

Performing the Duties of the ICE Director of ICE. He is sued in his official capacity.
34.44. Defendant ICE is the sub-agency of DHS that is responsible for carrying out removal

25
26

orders and overseeing immigration detention.

27
28

By listing Defendants and their formal titles here and throughout this Complaint, Plaintiffs do not
concede that these officers are lawfully serving in those capacities.
8
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 12 of 63

1
2

45.

Defendant Chad Mizelle is the Senior Official Performing the Duties of the General

Counsel for Homeland Security. He is sued in his official capacity.
BACKGROUND

3
4

The U.S. Asylum System

35.46. Asylum affords protection to individuals who have a “well-founded fear of

persecution” on account of any one of five protected grounds: race, religion, nationality, political

7
8
9

opinion, or membership in a particular social group. 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C.
§ 1101(a)(42)(A). Withholding of removal also offers protection to individuals targeted on account

of one of the five grounds, but it requires an applicant to show that such persecution is more likely

than not—a much higher standard of proof than that needed for asylum.

12
13
14
15
16
17

36.47. Congress also provided asylees with certain benefits that are critical to the
noncitizen’s safety and ability to successfully transition to a life free from persecution. See 8 U.S.C.
§§ 1159(b) (ability to adjust to the status of a lawful permanent resident); 1427 (ability to become a
United States citizen after being lawfully admitted for permanent residence). The spouse and
children of a person granted asylum are likewise eligible for asylum. 8 U.S.C. § 1158(b)(3). These

benefits are not available with certain other forms of relief from removal, like withholding of

removal.

37.48. There are three principal ways for an individual to seek asylum:

38.49. First, where a noncitizen is not in any kind of removal proceedings, his or her

22
23
24
25

application is “affirmative.” See 8 C.F.R. §§208.2(a), 208.9. He or she files an application with
USCIS, and has an interview with an asylum officer.
39.50. Second, a noncitizen in ordinary removal proceedings, see 8 U.S.C. § 1229a, may

apply for asylum as a form of relief from removal, 8 C.F.R. § 208.2(b). These applications are

referred to as “defensive” asylum applications.

28
9
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 13 of 63

40.51. Third, Congress established an alternative process, “expedited removal,” applicable to

certain noncitizens who are arriving at ports of entry or apprehended after entering without

inspection. See 8 U.S.C. § 1225(b)(1); see also Designating Aliens for Expedited Removal, 69 Fed.

Reg. 48,877 (Aug. 11, 2004) (expedited removal applicable to those who entered without inspection

and are apprehended within 14 days of entry and 100 miles of the border).

6
7
8

41.52. As part of the expedited removal system, a noncitizen who expresses a fear of return
to his or her home country is entitled to a “credible fear” screening interview. 8 U.S.C. §

1225(b)(1)(B). If the screening officer finds a “significant possibility” that the individual “could

establish eligibility for asylum,” he or she is placed in regular removal proceedings and may apply

for asylum. Id.

12
13
14

U.S. Law on Asylum Seekers and Third Countries
42.53. Federal law provides several forms of protection for individuals fleeing persecution

and torture. These forms of protection include asylum, 8 U.S.C. § 1158; withholding of removal, 8

U.S.C. § 1231(b)(3); and protection under the Convention Against Torture, see Foreign Affairs

Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, §

2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231); 8 C.F.R. § 208.18.

19
20
21

43.54. The modern asylum system was established by the Refugee Act of 1980, Pub. L. 96212, 94 Stat. 102, which was incorporated into the INA. The Act reflects “one of the oldest themes

in America’s history—welcoming homeless refugees to our shores,” and “gives statutory meaning to

our national commitment to human rights and humanitarian concerns.” Sen. Rep. No. 256, 96th

Cong., 1st Sess. 1 (1979), reprinted in U.S. Code Cong. and Admin. News 141, 141.

25
26
27
28

44.55. The statutory provisions governing asylum represent an effort by Congress to bring
the United States into compliance with its international obligations under the 1951 Refugee
Convention and the 1967 Protocol.
10
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 14 of 63

45.56. It is obvious and well understood that asylum seekers often pass through third

countries on their way to seeking refuge in the United States. Accordingly, in crafting the statutory

provisions governing asylum, Congress took care to ensure that noncitizens within our country or at

the border would be able to seek asylum even if they transited through another country to reach the

United States.

6
7
8

46.57. 8 U.S.C. § 1158(a)(1) provides: “Any alien who is physically present in the United
States or who arrives in the United States (whether or not at a designated port of arrival and

including an alien who is brought to the United States after having been interdicted in international

or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with

this section or, where applicable, section 1225(b) of this title.” Congress thus was clear that entering

the United States at or between ports of arrival is not a basis to categorically deny asylum to

13
14
15
16

refugees. In so providing, Congress recognized that many asylum seekers would transit through
another country before reaching the United States. That is because, except for Mexicans arriving at
the southern border and Canadians arriving at the northern border, virtually all asylum seekers

arriving between ports of arrival at a land border necessarily transit through at least one other

country before reaching the United States. In guaranteeing that entering the United States at or

between ports of arrival could not be a basis for categorically denying asylum, Congress also

guaranteed that merely transiting through another country to reach the United States could not be a

21
22
23
24

categorical barrier either.
47.58. Congress also spoke directly to the circumstances when a noncitizen may be deemed
ineligible for asylum based on his or her relationship with a third country. 8 U.S.C. § 1158(b)(2)(A)

specifically provides that a noncitizen shall be ineligible for asylum if he or she “was firmly resettled

in another country prior to arriving in the United States.” The plain text of the statute, agency

regulations, and case law have long made clear that firm resettlement requires far more than merely

transiting through another country.
11
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 15 of 63

48.59. Under international law, firm resettlement requires more than transiting through a

third country. For example, the 1951 United Nations Convention Relating to the Status of Refugees

provides that it shall not apply to a person who “acquired a new nationality, and enjoys the

protection of the country of his new nationality” or “is recognized by the competent authorities of

the country in which he has taken residence as having the rights and obligations which are attached

6
7
8
9

to the possession of the nationality of that country.” Art. 1, §§ C(3), E, adopted July 28, 1951, 189
U.N.T.S. 150.
49.60. In 1980, the former Immigration and Naturalization Service (“INS”) issued interim

regulations providing that a noncitizen would be considered firmly resettled “if he was offered

resident status, citizenship, or some other type of permanent resettlement by another nation and

traveled to and entered that nation as a consequence of his flight from persecution.” 8 C.F.R.

13
14
15
16

§ 208.14 (1981). The regulations further provided for an exception if the asylum applicant
established “that the conditions of his residence in that nation were so substantially and consciously
restricted by the authority of the country of asylum/refuge that he was not in fact resettled.” Id.

Officers were to consider “the type of housing, whether permanent or temporary, made available to

the refugee, the types and extent of employment available to the refugee, and the extent to which the

refugee received permission to hold property and to enjoy other rights and privileges (such as travel

documentation, education, public relief, or naturalization) available to others resident in the

21
22
23
24

country.” Id.
50.61. The Attorney General amended the firm resettlement regulations in 1991. The
definition of firm resettlement provided in those regulations is substantially the same as the current

firm resettlement regulations set out at 8 C.F.R. §§ 208.15, 1208.15. The 1991 regulation provided

that a noncitizen would be “considered to be firmly resettled if, prior to arrival in the United States,

he entered into another nation with, or while in that nation received, an offer of permanent resident

status, citizenship, or some other type of permanent resettlement unless” he could establish that “his
12
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 16 of 63

entry into that nation was a necessary consequence of his flight from persecution, that he remained

in that nation only as long as was necessary to arrange onward travel, and that he did not establish

significant ties in that nation” or that “the conditions of his residence in that nation were so

substantially and consciously restricted by the authority of the country of refuge that he was not in

fact resettled.” 8 C.F.R. § 208.15 (revised Jan. 1, 1991). The regulation directed that the asylum

6
7
8

officer and/or immigration judge undertake an individualized inquiry and consider the following
factors: “the conditions under which other residents of the country live, the type of housing made

available to the refugee, whether permanent or temporary, the types and extent of employment

available to the refugee, and the extent to which the refugee received permission to hold property

and to enjoy other rights and privileges, such as travel documentation including a right of entry

and/or reentry, education, public relief, or naturalization, ordinarily available to others resident in the

country.” Id.

51.62. Congress then adopted the current firm resettlement bar, 8 U.S.C.

15
16

§ 1158(b)(2)(A)(vi), in 1996, when it amended the INA in the Illegal Immigration Reform and

Immigrant Responsibility Act. In so doing, it codified the regulatory definition of “firm

resettlement.”

52.63. The implementing regulation on firm resettlement was finalized in 2000, and is

substantively identical to the 1991 version. 2 It provides: “An alien is considered to be firmly

21
22
23
24
25

resettled if, prior to arrival in the United States, he or she entered into another country with, or while
in that country received, an offer of permanent resident status, citizenship, or some other type of
permanent resettlement unless he or she establishes: (a) That his or her entry into that country was a
necessary consequence of his or her flight from persecution, that he or she remained in that country

26
27
28

Although the Trump administration recently attempted to alter the firm resettlement definition
through a separate rulemaking, 85 Fed. Reg. 80274, 80282-83, that rule has been preliminarily
enjoined, Pangea Legal Services v. U.S. Dep’t of Homeland Security, No. 20-CV-09253-JD, 2021
WL 75756, at *7 (N.D. Cal. Jan. 8, 2021). The 2000 regulatory definition thus remains operative.
13
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 17 of 63

only as long as was necessary to arrange onward travel, and that he or she did not establish

significant ties in that country; or (b) That the conditions of his or her residence in that country were

so substantially and consciously restricted by the authority of the country of refuge that he or she

was not in fact resettled. In making his or her determination, the asylum officer or immigration judge

shall consider the conditions under which other residents of the country live; the type of housing,

6
7
8

whether permanent or temporary, made available to the refugee; the types and extent of employment
available to the refugee; and the extent to which the refugee received permission to hold property

and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or

reentry, education, public relief, or naturalization, ordinarily available to others resident in the

country.”

12
13
14
15
16

53.64. Furthermore, Congress also spoke directly to the circumstances when noncitizens
may be returned to a third country to have their asylum claims processed there. 8 U.S.C.
§ 1158(a)(2)(A) provides that the Attorney General may do so only when he or she “determines that
the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than

the country of the alien’s nationality or, in the case of an alien having no nationality, the country of

the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on

account of race, religion, nationality, membership in a particular social group, or political opinion,

and where the alien would have access to a full and fair procedure for determining a claim to asylum

21
22
23
24

or equivalent temporary protection, unless the Attorney General finds that it is in the public interest
for the alien to receive asylum in the United States.”
54.

The only such agreement that the United States has entered into is with Canada. See

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-

instructions-agreements/agreements/safe-third-country-agreement/final-text.html.

27
28

55.

The United States has attempted to negotiate third-country agreements with Mexico

and Guatemala, but has not succeeded in obtaining such agreements, and in any event, an agreement
14
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 18 of 63

1
2
3

with those particular countries would not satisfy the INA’s strict requirements for such agreements.
See 8 U.S.C. § 1158(b)(2)(A).
56.65. These statutory provisions governing asylum and a noncitizen’s relationship to or

opportunity to apply for asylum in a third country, including 8 U.S.C. §§ 1158(a)(1), (b)(2)(A), and

(b)(2)(A)(vi), represent a carefully crafted effort by Congress to satisfy its domestic and international

6
7
8
9
10

obligations to protect those fleeing persecution and torture while also taking account of the need to
share the burden of protecting asylum seekers with those countries capable of offering safety and full
and fair asylum proceedings.
57.66. Our immigration laws track international humanitarian law, under which protection of

an individual fleeing persecution is paramount and individuals may not be required to seek

protection in a country where they lack a genuine guarantee of safety and access to a functioning

13
14
15
16
17
18

procedure, even if they transited through that country.
58.67. The 1951 Refugee Convention and the 1967 Protocol do not require refugees to apply
for protection in the first country where it could have been sought and do not require refugees to be
returned to a country that was crossed in transit.
59.68. The United Nations High Commissioner for Refugees (“UNHCR”) has consistently

issued guidance on the “safe third country” concept, noting that the “primary responsibility to

provide protection rests with the State where asylum is sought.” Asylum should not be refused

21
22
23
24
25

“solely on the ground that it could be sought from another State,” and an asylum-seeker should not
be required “to seek asylum in a country with which he has not established any relevant links.”
UNHCR’s analysis provides significant guidance for courts on issues of refugee law.
60.69. UNHCR has also explained that the mere fact that a country is a party to the 1951

Convention and/or its 1967 Protocol does not allow one to be required to seek asylum in that

country.

28
15
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 19 of 63

61.70. Consistent with this long-standing guidance, UNHCR has publicly stated that the

Ruletransit ban at issue here jeopardizes the right to non-refoulement and ignores the lack of

effective international protection in transit countries. See UNHCR Deeply Concerned About New

U.S. Asylum Restrictions (July 15, 2019), https://www.unhcr.org/en-

us/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-restrictions.html.

6
7
8
9

The Interim Final Rule
62.71. On July 16, 2019, DefendantWilliam Barr, in his former role as Attorney General,
and DefendantKevin McAleenan, in his former role as Acting Secretary of Homeland Security,

promulgated an interim final rule pursuant to 8 U.S.C. § 1158(b)(2)(C), which provides that the

Attorney General may “by regulation establish additional limitations and conditions, consistent with

[§ 1158], under which an alien shall be ineligible for asylum,” and 8 U.S.C. § 1158(d)(5)(B), which

provides that the Attorney General may “provide by regulation for any other conditions or

14
15
16
17

limitations on the consideration of an application for asylum not inconsistent with this chapter.”
63.72. The Interim Rule rendersrendered ineligible for asylum noncitizens who transit
through another country before arriving in the United States, with only extremely limited exceptions.

64.73. Specifically, the Interim Rule providesprovided that “any alien who enters, attempts

to enter, or arrives in the United States across the southern land border on or after” the effective date

of the Interim Rule “after transiting through at least one country outside the alien’s country of

citizenship, nationality, or last lawful habitual residence en route to the United States,” shall be

22
23
24
25

found ineligible for asylum unless one of three conditions is met: (1) “The alien demonstrates that he
or she applied for protection from persecution or torture in at least one country outside the alien’s
country of citizenship, nationality, or last lawful habitual residence through which the alien transited

en route to the United States, and the alien received a final judgment denying the alien protection in

such country;” (2) “The alien demonstrates that he or she satisfies the definition of ‘victim of a

severe form of trafficking in persons’ provided in 8 C.F.R. 214.11;” or (3) “The only countries
16
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 20 of 63

through which the alien transited en route to the United States were, at the time of the transit, not

parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol

Relating to the Status of Refugees, or the United Nations Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment.”

5
6
7
8

65.74. NoncitizensUnder the Interim Rule, noncitizens subject to expedited removal who
seek protection willwould be screened by an asylum officer. The asylum officer willwould
determine whether the noncitizen iswas subject to the bar set out in the Interim Rule. If the asylum

officer determines that the noncitizen iswas subject to the bar, the asylum officer willwould deny

asylum and then apply the reasonable-fear standard, rather than the credible-fear asylum standard, to

assess the noncitizen’s claims for statutory withholding of removal and Convention Against Torture

protection. A noncitizen who passespassed the reasonable-fear screening willwould be placed in

13
14
15
16

removal proceedings where they willwould be permitted to apply for withholding and/or Convention
Against Torture protection. A noncitizen maycould seek review of the asylum officer’s
determination that he or she iswas subject to the eligibility bar before an immigration judge. If the

immigration judge affirmsaffirmed the determination that the bar applies, and that the noncitizen

hashad failed to passmeet the reasonable fear standard, the applicant willwould be subject to removal

without any opportunity for judicial review.

20
21
22
23
24

75.

TheThe APA generally requires a period of public notice and comment on proposed

regulations to ensure that agency actions are transparent, lawful, and appropriately vetted. But
Defendants issued the Interim Rule without following this statutory obligation. Instead, Defendants
claimed “good cause” to bypass the notice-and-comment procedures normally required for a

rulemaking pursuant to 5 U.S.C. § 553(b)(B), and the 30-day waiting period that is required even

where notice and comment are not, 5 U.S.C. § 553(d). They also invoked the “foreign affairs”

exception to those procedures. 5 U.S.C. § 553(a)(1).

28
17
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 21 of 63

76.

Both this Court and the Ninth Circuit have held that the Interim Rule should be

preliminarily enjoined because Plaintiffs were likely to succeed in showing that the Interim Rule was

contrary to law and arbitrary and capricious. E. Bay, 964 F.3d at 857-58; E. Bay, 385 F. Supp. 3d at

930-31.

5
6
7
8

77.

Both this Court and the Ninth Circuit found that the Interim Rule was likely

inconsistent with 8 U.S.C. § 1158, in light of the paramount concern for safety evidenced in the
firm-resettlement (§ 1158(b)(2)(A)(vi)) and safe-third-country bars (§ 1158(a)(2)(A)). E. Bay, 964

F.3d at 846-49 (“A critical component of both bars is the requirement that the alien's ‘safe option’ be

genuinely safe.”); E. Bay, 385 F. Supp. 3d at 944-45 (“By contrast, the Rule does virtually nothing to

ensure that a third country is a ‘safe option.’”).

12
13
14
15
16

78.

Both the Ninth Circuit and this Court held that the Interim Rule was likely arbitrary

and capricious because (1) the agencies’ conclusion that Mexico provides a safe option is
contradicted by the record and fails to address evidence that Mexico is unsafe for asylum seekers, (2)
the agencies failed to justify the assumption that a noncitizen who failed to apply for asylum in a

third country is unlikely to have a meritorious asylum claim, and (3) the agencies failed to

adequately consider the effect of the Interim Rule on unaccompanied minors. E. Bay, 964 F.3d at

849-50; see also E. Bay, 385 F. Supp. 3d at 951-57.

20
21
22
23
24
25
26

79.

On June 30, 2020, Judge Timothy J. Kelly on the U.S. District Court for the District

of Columbia rejected the agencies’ arguments for bypassing notice-and-comment procedures,
granted the plaintiffs’ motions for summary judgment, and vacated the Interim Rule on that basis.
CAIR, 471 F. Supp. 3d at 57, 60.
Issuance of the Nearly Identical Final Rule
80.

On December 17, 2020, then-Acting Secretary of Homeland Security Chad Wolf and

former Attorney General William Barr issued the Final Rule, which is virtually identical to the

Interim Rule.
18
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 22 of 63

81.

The Final Rule purports to comply with notice-and-comment requirements by

responding to public comments submitted within 30 days of the publication of the Interim Rule. 85

Fed. Reg. at 82,261.

82.

5
6
7
8

The Final Rule makes only minor changes that fail to address any of the fatal defects

in the Interim Rule as identified by the Ninth Circuit and this Court and as alleged by Plaintiffs. See
id. at 82,262.
83.

Specifically, the Final Rule provides that “any alien who enters, attempts to enter, or

arrives in the United States across the southern land border on or after July 16, 2019, after transiting

through at least one country outside the alien’s country of citizenship, nationality, or last lawful

habitual residence en route to the United States,” shall be found ineligible for asylum unless one of

three conditions is met: (1) “The alien demonstrates that he or she applied for protection from

13
14
15
16

persecution in at least one country outside the alien’s country of citizenship, nationality, or last
lawful habitual residence through which the alien transited en route to the United States and the alien
received a final judgment denying the alien protection in such country;” (2) “The alien demonstrates

that he or she satisfies the definition of ‘victim of a severe form of trafficking in persons’ provided in

8 C.F.R. 214.11;” or (3) “The only country or countries through which the alien transited en route to

the United States were, at the time of the transit, not parties to the 1951 United Nations Convention

relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.” Id. at

21
22
23
24

82289-90.
66.84. Like the Interim Rule, the Final Rule does not require any individualized assessment
of the asylum system in the country or countries through which a noncitizen transited through en

route to the United States, or any assessment of the asylum seeker’s protection claims or reasons for

not seeking protection in the transit country. It does not require an assessment of whether the transit

country had a functioning asylum system capable of processing the asylum seeker’s claim in a full

and fair manner; whether the country was able to offer the asylum seeker effective protection against
19
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 23 of 63

persecution or torture; whether the asylum seeker could even access—practically or legally—the

asylum system; whether the asylum system would recognize the asylum seeker’s particular claim for

protection; or why the asylum seeker otherwise did not apply for protection. If, for example, an

asylum seeker has a protection claim rooted in persecution based on sexual orientation but the transit

country does not offer asylum on that basis, the asylum seeker would nonetheless be subject to the

6
7
8
9
10

Interim Rule. So too if the asylum seeker faced threats to her safety in the transit country and
staying to apply for asylum and receive a final judgment would have required her to risk further
harm.
67.

The Rule further does not require that a transit country have signed the 1951 Refugee

Convention, 1967 Protocol, and the Convention Against Torture for the asylum seeker to be deemed

ineligible for asylum in the United States. Rather, it is sufficient that the transit country has signed

13
14
15
16
17
18

only one. An individual thus will be denied asylum for transiting through a country that signed the
Convention Against Torture but not the 1951 Refugee Convention without applying for protection,
even if the individual had a claim for asylum but not for relief under the Convention Against
Torture.
68.85. ManyIndeed, many countries that are plainly unable to provide adequate protection to

asylum seekers and lack full and fair asylum systems nonetheless are signatories to the 1951

Refugee Convention, includinginternational refugee agreements. For example, countries such as

21
22
23
24

Afghanistan, Chad, the Democratic Republic of Congo, Iran, Somalia, and Sudan are signatories to
the 1951 Refugee Convention. The U.S. State Department has recognized in its Country Reports
that many signatories to the Convention do not adequately protect refugees or lack adequate asylum

processing systems. For example, Egypt is a signatory to the Convention, but according to the State

Department, Egypt’s “laws do not provide for granting asylum or refugee status, and the government

has not established a comprehensive legal regime for providing protection to refugees.” Similarly,

28
20
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 24 of 63

1
2

Angola is a signatory to the Convention, but according to the State Department, “[t]he law provides
for the granting of asylum or refugee status, but the law did not function during the year.”

69.86. TheLike the Interim Rule, the Final Rule contains no exception for unaccompanied

children as defined in 6 U.S.C. § 279(g). They, too, must apply for protection in a country through

which they transit or will be deemed ineligible for asylum in the United States, irrespective of their

6
7
8

age, knowledge of or ability to understand the Interim Rule’s requirements, or knowledge of or
ability—practical or legal—to access the asylum system in a transit country. By contrast, Congress

expressly exempted unaccompanied children from the safe third country exception in the INA. See 8

U.S.C. § 1158(a)(2)(E).

70.87. Under the Rule, asylumLike the Interim Rule, the Final Rule arbitrarily disfavors

certain asylum seekers, particularly those without resources. Asylum seekers with the financial

13
14
15
16
17
18

means, time, and other resources required to obtain travel documents, a visa, and plane tickets to the
United States are still able to access asylum. But asylum seekers who are forced to flee immediately
because of exigent danger, and so lack the time to make such preparations, as well as asylum seekers
without adequate financial resources, will be denied.
71.

Because the Rule provides that the eligibility bar will not apply to individuals who

receive final judgments denying them protection, individuals whose asylum claims have already

been rejected once are still considered eligible for asylum in the United States, while individuals

21
22
23
24

whose claims have not been rejected are considered ineligible.
72.

On July 15, 2019, Defendant James R. McHenry, Director of the Executive Office for

Immigration Review in the Department of Justice, issued guidance entitled “Guidelines Regarding

New Regulations Governing Asylum and Protection Claims.” The Guidelines review the substance

of the Rule and the screening process it establishes.

27
28
21
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 25 of 63

73.

On the same day, John Lafferty, head of USCIS’s asylum division, also advised

asylum officers regarding the new Rule. Lafferty informed asylum officers that the division was

“being asked to adapt and to do so with very little time to train and prepare.”

4
5
6
7
8

88.

The Final Rule contains only two minor substantive changes that do not impact

Plaintiffs’ claims. First, the Final Rule no longer exempts individuals who applied for and were
denied protection from torture in a third country; in other words, the exemption set forth in 8 C.F.R.
§§ 208.13(c)(4)(i), 1208.13(c)(4)(i) would be limited to individuals who applied for and were denied

asylum in a third country. 85 Fed. Reg. at 82,262, 82,289. Second, a third country’s status as a

signatory to the Convention Against Torture is no longer determinative of the country’s ability to

provide asylum. Id. Accordingly, individuals subject to the Final Rule need not apply for protection

in a third country that is a signatory to the Convention Against Torture (but not a signatory to either

13
14
15
16

1951 Refugee Convention or the 1967 Refugee Protocol) in order to qualify for the exemption set
forth in 8 C.F.R. §§ 208.13(c)(4)(iii), 1208.13(c)(4)(iii). However, because the Final Rule is aimed
at asylum applicants arriving at the U.S.-Mexico border and Mexico is a signatory to 1951 Refugee

Convention and the 1967 Refugee Protocol, the elimination of the reference to the Convention

Against Torture has no practical impact on the operation of the rule. See E. Bay, 964 F.3d at 855

(“The Rule targets only asylum applicants entering at our southern border with Mexico.”). Thus, the

net effect of the changes in the Final Rule is to further narrow the Interim Rule’s already limited

21
22
23
24
25
26
27
28

exemptions, making it harder for asylum seekers at the southern border to comply with the policy.
89.

The Final Rule continues to be inconsistent with the firm-resettlement and safe-third-

country bars.
90.

The Final Rule again fails to adequately consider whether Mexico, Guatemala, or any

other transit country is in fact a safe option for asylum seekers.
91.

The Final Rule continues to rest on an unsupported assumption that a noncitizen who

has failed to apply for asylum in a third country is unlikely to have a meritorious asylum claim.
22
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 26 of 63

92.

The Final Rule again fails to adequately consider the effect of the policy on

unaccompanied minors.

The 30-Day Comment Period for the Final Rule Was Inadequate

4
5
6
7
8
9

93.

The APA requires that the public be given a meaningful opportunity to participate in

rulemaking. 5 U.S.C. § 553.
94.

The customary comment period is 60 days. See Exec. Order No. 13,653, 76 Fed.

Reg. 3,821, 3,821-22 (Jan. 18, 2011) (“To the extent feasible and permitted by law, each agency
shall afford the public a meaningful opportunity to comment . . . on any proposed regulation, with a

comment period that should generally be at least 60 days.”); Exec. Order No. 12,866, 58 Fed. Reg.

51,735, 51,740 (Sep. 30, 1993) (“[E]ach agency should afford the public a meaningful opportunity to

comment on any proposed regulation, which in most cases should include a comment period of not

less than 60 days.”).

14
15
16
17
18

95.

The agencies have failed to explain their decision to depart from the customary 60-

day period and to provide a comment period of only 30 days.
96.

The agencies have failed to explain why a 60-day comment period was not feasible.

97.

The policy set forth in the Interim Rule and the Final Rule is complex and requires

commenters to engage in extensive research and analysis of the asylum systems in potential transit

countries, to determine whether they may serve as safe options for asylum seekers.

21
22
23
24
25
26
27

98.

The policy also has the effect of virtually eliminating asylum at the southern border,

which has wide-ranging impacts domestically, including on the economy and the labor market, not
to mention the effects on thousands of immigrant families hoping to use asylum to reunite with loved
ones. Those effects all require extensive research and analysis.
99.

The shortened comment period prevented Plaintiffs from fully exploring the

significance of the policy and submitting more detailed comments than they did.

28
23
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 27 of 63

1
2
3
4

Defendants Failed to Publish the Final Rule At Least 60 Days Before Its Effective Date
100.

The CRA prohibits any “major rule” from taking effect until at least 60 days after

publication of the rule in the Federal Register. 5 U.S.C. § 801(a)(3)(A).
101.

A “major rule” is one that “is likely to result in” (i) “an annual effect on the economy

of $100,000,000 or more,” (ii) “a major increase in costs or prices for consumers, individual

industries, Federal, State, or local government agencies, or geographic regions,” or (iii) “significant

7
8
9
10
11
12
13
14
15
16
17
18
19

adverse effects on competition, employment, investment, productivity, innovation, or on the ability
of United States-based enterprises to compete with foreign-based enterprises in domestic and export
markets.” 5 U.S.C. § 804(2).
102.

As numerous studies have found, asylum seekers are a valuable source of labor for

key industries.
103.

In 2019 alone, the United States received over 128,000 defensive asylum applications

and over 49,000 affirmative applications from non-Mexican nationals of Latin American origin,
almost all of whom would be denied asylum under the Final Rule. If even 10% of those asylum
seekers had even a minimum wage job, their annual economic impact would easily exceed
$100,000,000.
104.

Indeed, one expert analysis concluded that even a two percent reduction in the

number of asylum seekers would easily cost the U.S. economy and fisc over $100 million, in the first

year alone.

22
23
24
25

105.

The Final Rule asserts, without explanation, that it is not a “major rule” within the

meaning of the CRA. 85 Fed. Reg. at 82,289.
106.

The Final Rule is scheduled to take effect less than 60 days from its date of

publication.

The Final Rule Was Issued by Unlawfully Appointed DHS Officers

28
24
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 28 of 63

107.

The Final Rule was approved by then-Acting DHS Secretary, Chad Wolf. See 85

Fed. Reg. at 82,289 (“The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed

and approved this document . . . .”).

4
5
6
7
8

108.

After approving the Final Rule, Wolf “delegat[ed] the authority to electronically sign

[the Final Rule] to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General
Counsel for DHS, for purposes of publication in the Federal Register.” Id.
109.

Both the Secretary and the General Counsel for DHS are offices that require

appointment by the President and advice and consent of the Senate. 6 U.S.C. § 112(a)(1) (“There is

a Secretary of Homeland Security, appointed by the President, by and with the advice and consent of

the Senate.”); § 113(a)(1)(J) (providing that the “General Counsel, who shall be the chief legal

officer of the Department,” shall be “appointed by the President, by and with the advice and consent

13
14
15
16

of the Senate”).
110.

Neither Wolf nor Mizelle has been confirmed by the Senate to his respective position,

and neither was lawfully serving in his respective acting role when the Final Rule was approved and

signed. Wolf’s nomination to serve as DHS Secretary was withdrawn; Mizelle has never been

formally nominated to serve as DHS General Counsel.

Legal Framework

111.

21
22
23
24
25
26

Under the Appointments Clause, the President “shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint . . . all other Officers, of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established by Law.” U.S.
Const., Art. II, § 2, cl. 2.
112.

Congress has also enacted various statutes that govern the appointment of acting

officials, including the FVRA, a generally applicable law, and the HSA, a DHS-specific statute.

27
28
25
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 29 of 63

113.

The FVRA specifies the categories and tenures of individuals who may serve in an

acting capacity when a Senate-confirmed position, such as DHS Secretary or General Counsel, is

vacant. See 5 U.S.C. §§ 3345-3349d.

4
5
6
7
8

114.

Under the FVRA, the “first assistant” to the vacant office automatically assumes the

acting role unless the President designates another official in accordance with the Act’s
requirements. 5 U.S.C. § 3345(a)(1).
115.

Barring certain exceptions, an acting official may not serve beyond 210 days after the

position becomes vacant. 5 U.S.C. § 3346(a). One exception is that an official may serve in an

acting capacity “once a . . . nomination for the office is submitted to the Senate, from the date of

such nomination for the period that the nomination is pending in the Senate.” 5 U.S.C. § 3346(a)(2).

Once the allotted period has elapsed, the FVRA mandates that “the office shall remain vacant.” See

13
14
15
16
17
18
19
20
21
22
23
24

5 U.S.C. § 3348(b).
116.

Barring certain exceptions not applicable here, an individual whose nomination is

pending in the Senate may not serve pursuant to the FVRA in an acting capacity in the office for
which their nomination is pending. 5 U.S.C. § 3345(b)(1)(B).
117.

Actions taken by officers acting in violation of the FVRA “shall have no force or

effect” and “may not be ratified.” 5 U.S.C. § 3348(d).
118.

The FVRA is the “exclusive means” for designating acting officials for Senate-

confirmed positions, unless another statute “expressly” authorizes another mechanism. 5 U.S.C.
§ 3347(a).
119.

The HSA sets out the order of succession for vacancies arising in the position of

Secretary of Homeland Security. 6 U.S.C. § 113(a)(1)(A), (F); § 113(g). The Deputy Secretary and

then the Under Secretary for Management are each designated as “first assistant” to their immediate

superiors—a reference to the FVRA, see 5 U.S.C. § 3345(a)(1)—and are therefore first and second

in line to serve as Acting Secretary. 6 U.S.C. §§ 113(a)(1)(F), (g)(1).
26
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 30 of 63

120.

In addition, “the Secretary may designate” other DHS officers “in a further order of

succession to serve as Acting Secretary” if the first two offices in the order of succession are vacant.

6 U.S.C. § 113(g)(2).

121.

5
6
7
8
9
10

An Acting Secretary is an inferior officer, who may perform the duties of a principal

officer for only a limited period of time.
122.

Indefinite, interim service as an Acting Secretary violates the Appointments Clause’s

requirement that principal officers be nominated by the President and confirmed by the Senate.
123.

An Acting Secretary, as an inferior officer, may not lawfully designate another Acting

Secretary.

Wolf’s and McAleenan’s Unlawful Tenures as Acting DHS Secretary

124.

13
14
15
16

There has not been a Senate-confirmed DHS Secretary since the departure of former

Secretary Kirstjen Nielsen on April 10, 2019. This is the longest cabinet-level vacancy in U.S.
history.
125.

On September 10, 2020, President Trump nominated Wolf to serve as DHS Secretary

and submitted his nomination for Senate confirmation. The White House later announced the

withdrawal of Wolf’s nomination on January 7, 2021, and Wolf thereafter resigned, effective

January 11, 2021, at 11:59 P.M.

20
21
22
23
24

126.

Because Wolf was not first assistant to the DHS Secretary, he could not, pursuant to

the FVRA, lawfully serve as Acting DHS Secretary during the pendency of his nomination. See 5
U.S.C. § 3345(b)(1).
127.

Wolf was not lawfully designated as Acting Secretary under the HSA because his

predecessors failed to properly modify the order of succession under the HSA to place him in the

role. In fact, neither McAleenan, who issued the Interim Rule, nor Wolf, who issued the Final Rule,

was validly serving as Acting Secretary at the time of their respective actions.

28
27
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 31 of 63

128.

At least six district courts have held that Wolf’s predecessor, McAleenan, lacked

authority to designate Wolf as Acting Secretary. See Pangea Legal Services v. DHS, No. 20-cv-

9253, 2021 WL 75756, at *5 (N.D. Cal. Jan. 8, 2021); La Clinica De La Raza v. Trump, No. 19-cv-

4980, 2020 WL 7053313, at *6-7 (N.D. Cal. Nov. 25, 2020); Batalla Vidal v. Wolf, No. 16-cv-4756,

2020 WL 6695076, at *8 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rights Project v. USCIS, No.

6
7
8
9
10

19-cv-3283, 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020) ; Immigrant Legal Resource Center
(ILRC) v. Wolf, No. 20-cv-5883, 2020 WL 5798269, at *7-9 (N.D. Cal. Sept. 29, 2020); Casa de
Maryland, Inc. v. Wolf, No. 20-cv-2118, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).
129.

At the time of Nielsen’s resignation, DHS had two different orders of succession, one

of which was applicable to any vacancy caused by a resignation and another to any vacancy caused

by an emergency. See DHS Delegation No. 106 (Revision No. 08.5), DHS Orders of Succession and

13
14
15
16

Delegations of Authority (Apr. 10, 2019); Exec. Order No. 13,753, 81 Fed. Reg. 90,667 (Dec. 9,
2016). Prior to her resignation, Nielsen designated the CBP Commissioner (then McAleenan) as the
next in line to serve as Acting Secretary in the event of an emergency, but not in the event of a

resignation. Upon Nielsen’s resignation, McAleenan assumed the role of Acting Secretary, even

though the rightful successor pursuant to the resignation line of succession was Director of the

Cybersecurity and Infrastructure Security Agency (formerly known as Under Secretary for National

Protection and Programs) Christopher Krebs.

21
22
23
24

130.

On July 12, 2019, McAleenan issued the Interim Rule despite having unlawfully

assumed the office of Acting Secretary. 84 Fed. Reg. at 33,829, 33,845.
131.

On November 8, 2019, the 212th day after Nielsen left office, McAleenan attempted

to revise DHS Delegation 106 to consolidate the emergency and resignation orders of succession

under the HSA, 6 U.S.C. § 113(g)(2). DHS Delegation No. 106, Revision No. 8.6, DHS Orders of

Succession and Delegations of Authority (Nov. 8, 2019) (“November Delegation”).

28
28
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 32 of 63

132.

The November Delegation was apparently intended to install Wolf as McAleenan’s

successor, by elevating in the order of succession the office that Wolf occupied at the time (Under

Secretary for Strategy, Policy, and Plans).

4
5
6
7
8

133.

Because McAleenan was not lawfully serving as Acting Secretary, however, he

lacked the authority to issue the November Delegation. The previous line of succession—in which
Wolf was not next in line—therefore remained in effect.
134.

Moreover, the HSA empowers only a Senate-confirmed DHS Secretary to change the

order of succession. See 6 U.S.C. § 113(g)(2). Thus, even if McAleenan had been properly elevated

to Acting Secretary by Nielsen, he was without statutory authority to modify the order of succession.

11
12
13
14
15
16
17
18

135.

Accordingly, both McAleenan’s Interim Rule and change to the order of succession

in the November Delegation lacked force and effect.
136.

On November 13, 2019, McAleenan resigned as CBP Commissioner and as Acting

DHS Secretary.
137.

Even though the November Delegation was invalid, Wolf purported to assume the

role of Acting Secretary upon McAleenan’s resignation.
138.

On August 14, 2020, the Government Accountability Office (“GAO”) concluded that

neither McAleenan nor Wolf had been lawfully performing the functions of Acting DHS Secretary.

See GAO, No. B-331650, Decision: Matter of Department of Homeland Security—Legality of

21
22
23
24

Service of Acting Secretary of Homeland Security (“GAO Decision”) (Aug. 14, 2020),
https://tinyurl.com/yyf2eqew. Per the GAO Decision, DHS’s succession orders at the time of
Nielsen’s resignation assigned the Acting Secretary role to a different official (Mr. Krebs), thereby

precluding McAleenan from lawfully serving as Acting Secretary. Id. As such, the GAO concluded

that McAleenan had not validly served as Acting Secretary and that his designation of Wolf as his

successor was therefore also invalid. Id.

139.

Notwithstanding the GAO decision, Wolf continued his unlawful service.

29
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 33 of 63

140.

1
2

On September 10, 2020, President Trump nominated Wolf to serve as DHS Secretary

and submitted his nomination for Senate confirmation.

141.

According to a memorandum issued by Wolf, if McAleenan’s November Delegation

had been invalid, Peter Gaynor, the Administrator of the Federal Emergency Management Agency

(“FEMA”) would have become Acting DHS Secretary by operation of law. 85 Fed. Reg. 59,651,

6
7

59,653 (Sept. 23, 2020).
142.

On the day of Wolf’s nomination, Gaynor issued a memo titled, “Order Designating

the Order of Succession for Secretary of Homeland Security” (“Gaynor Memo”). See Letter by

DHS, Batalla Vidal, No. 16-cv-4756, Dkt. 341 (E.D.N.Y. Nov. 13, 2020) (addressing sequence of

events). In that order, Gaynor purported to exercise authority under 6 U.S.C. § 113(g)(2) to adopt

the same November Delegation that McAleenan had issued to re-install Wolf as Acting Secretary.

13
14
15
16

143.

On November 14, 2020, Gaynor reissued the same memo because the original memo

may have been issued before Gaynor could have assumed the office of Acting Secretary. See Peter
T. Gaynor, Order Designating the Order of Succession for the Secretary of Homeland Security (Nov.

14, 2020). He again purported to exercise “any authority vested in [him] as Acting Secretary”

pursuant to the order of succession in place when Secretary Nielsen resigned in April 2019 and to

use that authority to re-amend the order of succession to re-assign the Acting Secretary role to Wolf.

Id.

21
22
23
24

144.

Under both iterations of the Gaynor Memo, Wolf purportedly became Acting DHS

Secretary, effective immediately. Following the Gaynor memos, Wolf attempted to ratify actions
taken during his and McAleenan’s unlawful tenures, including McAleenan’s issuance of the Interim

Rule. See DHS, Ratification of Department Actions (Nov. 16, 2020); DHS, Ratification of Certain

Actions (Nov. 16, 2020).

27
28

145.

However, Gaynor lacked the authority to adopt the November Delegation. Like

McAleenan before him, even assuming Gaynor served momentarily as Acting Secretary, he lacked
30
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 34 of 63

authority to change the order of succession, an authority granted only to a Senate-confirmed

Secretary of Homeland Security. The Gaynor Memo’s adoption of the November Delegation was

thus without legal force, unlawful, and otherwise a nullity.

4
5
6
7
8
9

146.

Even if an Acting Secretary could change the further order of succession, Gaynor

never assumed the role of Acting Secretary. He was never sworn in, and DHS never submitted any
notice to Congress that Administrator Gaynor was serving as Acting Secretary, as it has done for
past Acting Secretaries.
147.

And even assuming Gaynor did assume the role of Acting Secretary, Gaynor did not

resign as FEMA Administrator or Acting Secretary or otherwise create a new vacancy in the role of

Acting Secretary that would trigger the order of succession and a transfer of duties to Wolf.

12
13
14
15
16
17
18
19
20
21
22
23
24

148.

Wolf, therefore, was never lawfully designated to serve as Acting Secretary pursuant

to 6 U.S.C. § 113(g)(2)’s further order of succession, and thus never lawfully assumed the functions
and duties of Acting Secretary.
149.

Even if he did assume the role of Acting Secretary, Wolf could not lawfully ratify

prior actions that had no force or effect under the FVRA. 5 U.S.C. § 3348(d)(2).
150.

On December 17, 2020, Wolf purported to approve the Final Rule despite not

lawfully serving as Acting Secretary.
151.

By that point, 617 days had also elapsed since the vacancy created by former

Secretary Nielsen’s departure, nearly three times the FVRA’s 210-day limit on acting service.
152.

Moreover, Wolf’s purported indefinite service as Acting DHS Secretary violated the

Appointments Clause, because Wolf was acting as a principal officer without being confirmed by the

Senate to the role.

153.

Because Wolf was not lawfully serving as Acting Secretary, his ratification of the

Interim Rule was ineffective. Even if Wolf had been lawfully serving as Acting DHS Secretary

28
31
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 35 of 63

when he issued the ratification memos, ratification was barred by the FVRA. See 5 U.S.C.

§ 3348(d)(2).

154.

4
5
6
7
8

Because Wolf was not lawfully serving as Acting Secretary, his approval of the Final

Rule is also contrary to law.
155.

On January 7, 2021, the White House announced that Wolf’s nomination as DHS

Secretary had been withdrawn.
156.

On January 11, 2021, Wolf announced his resignation as Acting Secretary, effective

that night at 11:59 P.M., citing the number of “meritless” court rulings that he was unlawfully

serving as Acting Secretary. Prior to his resignation, Wolf purported to designate, under the HSA, a

new order of succession that would install Gaynor as the next Acting DHS Secretary. See DHS,

Ratification, at 2 (Jan. 14, 2021),

13
14
15
16
17
18

https://www.dhs.gov/sites/default/files/publications/20_0113_undersecretary-wolf-ratificationdelegable-prior-actions.pdf. Because Wolf was unlawfully serving as Acting Secretary and because
only a Senate-confirmed Secretary may alter the order of succession, Wolf’s designation of Gaynor
was ineffective.
157.

Gaynor then purported to assume the role of Acting DHS Secretary, pursuant to both

the original line of succession governing resignation-related vacancies (that McAleenan and Gaynor

purportedly eliminated) and Wolf’s new, unlawful order of succession. Id.

21
22
23
24

158.

Although Wolf purported to resign as Acting Secretary, he resumed his prior role as

Under Secretary for Strategy, Policy, and Plans.
159.

The day after Wolf’s resignation as Acting Secretary, Gaynor delegated the full

extent of the Secretary’s rulemaking authority to Wolf. DHS Delegation No. 23028, Delegation to

the Under Secretary for Strategy, Policy, and Plans (Jan. 12, 2021),

https://www.dhs.gov/sites/default/files/publications/20_0112_delegation-23028-final-rules-

regulations-other-matters.pdf.
32
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 36 of 63

160.

Two days later, on January 14, 2021, Wolf issued what would be his third ratification

memo, approving each and every of his previously unauthorized actions as Acting Secretary, as well

certain of McAleenan’s unauthorized rulemaking, including the Interim Rule. DHS, Ratification

(Jan. 14, 2021), https://www.dhs.gov/sites/default/files/publications/20_0113_undersecretary-wolf-

ratification-delegable-prior-actions.pdf.

6
7
8
9

161.

Gaynor and Wolf’s latest maneuver to circumvent constitutional and statutory limits

on their authority is barred by the FVRA, violates the Appointments Clause, and is contrary to basic
principles of ratification.

Defendant Mizelle’s Unlawful Tenure as Acting General Counsel of DHS

162.

12
13

electronically sign the Final Rule for purposes of the Federal Register to Defendant Mizelle, in the
latter’s capacity as the official discharging the duties of General Counsel for DHS.

163.

15
16

After he originally approved the Final Rule, Wolf delegated authority to

Although Defendants have referred to Mizelle as the “Senior Official Performing the

Duties of the General Counsel for DHS,” rather than “Acting General Counsel for DHS,” Mizelle

has been performing duties reserved for the General Counsel and is therefore acting as General

Counsel, notwithstanding his formal title.3

19
20

164.
§ 113(a)(1)(J).

21
22
23
24

The General Counsel for DHS is a position requiring Senate confirmation. 6 U.S.C.

165.

Any vacancy in the office of General Counsel for DHS is therefore subject to the

FVRA’s requirements, including the statute’s 210-day limit on the service of acting officers. 5
U.S.C. § 3345(a) (making FVRA applicable to any office for which an appointment “is required to

be made by the President, by and with the advice and consent of the Senate”); id. § 3346 (providing

an aggregate limit of 210 days for service by acting officers, starting from the date of the vacancy).

27
28

Notably, Mizelle’s publicly available LinkedIn page identifies his present title as “Acting General
Counsel.” Chad Mizelle, LinkedIn (last visited Jan. 3, 2021), https://www.linkedin.com/in/chadmizelle-36366917.
33
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 37 of 63

1
2
3
4
5
6
7
8
9

166.

The most recent Senate-confirmed General Counsel for DHS, John Mitnick, was fired

on September 17, 2019.
167.

To date, the President has not formally submitted to the Senate the nomination of any

individual to serve as General Counsel for DHS.
168.

The 210-day period during which an acting official may discharge the duties of

General Counsel therefore elapsed on April 15, 2020, more than eight months before Mizelle signed
the Final Rule on December 17, 2020.
169.

Because Mizelle is performing the duties of General Counsel for DHS in violation of

the FVRA’s 210-day limit on acting service, his signature on the Final Rule is without force and

effect, and the Final Rule was published in the Federal Register without the requisite authority. See

5 U.S.C. § 553(d) (substantive rules may not take effect until at least 30 days after required

13
14
15
16
17

publication).
170.

Wolf’s ratification memo dated January 14, 2021, was unlawful, ineffective, and, in

any event, does not purport to ratify Mizelle’s unauthorized signing of the Final Rule.
74.1.

The APA generally requires a period of public notice and comment on proposed

regulations to ensure that agency actions are transparent, lawful, and appropriately vetted. But

Defendants issued the Rule without following this statutory obligation. Instead, Defendants claimed

“good cause” to bypass the notice-and-comment procedures normally required for a rulemaking

21
22
23
24
25
26

pursuant to 5 U.S.C. § 553(b)(B), and the 30-day waiting period that is required even where notice
and comment are not, 5 U.S.C. § 553(d). They also invoked the “foreign affairs” exception to those
procedures. 5 U.S.C. § 553(a)(1).
The Administration’s Persistent Attacks on Asylum Seekers
75.171.

The new Rule bearsInterim and Final Rules bear stark resemblance to the

November 8, 2018 interim final rule (“2018 Rule”), also enacted pursuant to 8 U.S.C. §

1158(b)(2)(C), and President Trump’s signed 2018 Proclamation entitled “Presidential Proclamation
34
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 38 of 63

Addressing Mass Migration Through the Southern Border of the United States” (“2018

Proclamation”). The 2018 Rule provided that all persons subject to a presidential proclamation

concerning the southern border issued pursuant to the INA § 212(f), 8 U.S.C. § 1182(f), or INA §

215(a)(1), 8 U.S.C. § 1185(a)(1), were ineligible for asylum. The Proclamation suspended the entry

of all persons entering without inspection at the southern border.

6
7
8

76.172.

Together, the 2018 Rule and 2018 Proclamation barred people from obtaining

asylum if they entered the United States somewhere along the southern border other than a

designated port of arrival—in direct violation of Congress’s clear command that manner of entry

cannot constitute a categorical asylum bar.

11
12
13
14
15
16

77.173.

On November 9, 2018, East Bay Sanctuary Covenant, Al Otro Lado,

Innovation Law Lab, and Central American Resource Center—the same Plaintiffs in this action—
challenged the procedural and substantive validity of the 2018 Rule. On December 19, 2018, the
district court granted a preliminary injunction preventing the government from taking any action to
continue to implement the 2018 Rule. The order remains in effect pending a final

judgementjudgment and is before the Ninth Circuit on the merits. On December 21, 2018, the U.S.

Supreme Court denied the government’s request for a stay pending appeal of the district court’s

order granting a temporary restraining order.

20
21
22
23
24

78.174.

The newFinal Rule serves to bar a similar group of people in a categorical

fashion—noncitizens who transit through another country prior to reaching the southern border.
Indeed, the newFinal Rule is more draconian than its 2018 counterpart because it forecloses the
protection of asylum to those who seek asylum even at a port of entry. As such, asylum seekers

coming from a country other than a country contiguous to the United States—such as those from the

Northern Triangle—are left with only two more limited forms of protection—withholding of

removal and protection under the Convention Against Torture—regardless of whether they present

themselves at a port of arrival.
35
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 39 of 63

79.175.

The newFinal Rule is the latest in a series of attacks on asylum seekers and a

furtheryet another attempt to undermine the statutory provisions governing asylum.

Asylum Seekers at the Southern Border

Dire Conditions in Central America Have Prompted Many to Seek Refuge Elsewhere

80.176.

6
7
8
9
10

Individuals who arrive at the southern border seeking protection in the United

States through the asylum process, including children, are fleeing some of the most dangerous
countries in the world.
81.177.

Although asylum seekers come to the southern border from all over the world,

many come from El Salvador, Guatemala, and Honduras, countries known as the “Northern

Triangle.” According to a recent report from UNHCR, these countries are experiencing epidemic

levels of violence. Human rights groups have compared the levels of violence in this region to those

typically seen in war zones.

14
15
16
17
18
19

82.178.

Those who leave often are running from life-threatening situations, leaving

everything behind to make a dangerous journey. In particular, violence against women by criminal
armed groups has escalated dramatically in Central America, and those governments have been
unable or unwilling to provide effective protection.
83.179.

Asylum seekers fleeing their home countries in Central America face an

arduous journey to the United States, involving a high risk of violence, including sexual assault,

along the way.

84.180.

23
24
25
26
27

Many asylum seekers from Central American have no choice but to travel by

land to the United States due to documentation requirements that would be necessary to board a
plane, as well as financial constraints.
85.181.

The vast majority of asylum seekers from Central America thus arrive at the

southern border after traveling by land across one or more countries. Those coming from Guatemala

28
36
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 40 of 63

necessarily transit through Mexico, and those coming from El Salvador and Honduras transit through

Guatemala and Mexico.

86.182.

4
5
6
7
8

Many of the migrants coming to the southern border have legitimate claims to

asylum.
87.183.

According to UNHCRDHS statistics, in fiscal year 2015, 822018, 75 percent

of the womenindividuals from El Salvador, Guatemala, Honduras, and Mexico who were subject to
a credible fear screening by an asylum officer were found to have a significant possibility of

establishing eligibility for asylum or protection under the Convention Against Torture. that they

have been persecuted or have a well-founded fear of persecution if returned to their country.

11
12
13
14
15
16

88.184.

Between fiscal years 20142017 and 2016, 8,8482019, 10,943 people from El

Salvador, Guatemala, and Honduras were granted asylum affirmatively, and 3,50212,359 people
from those countries were granted asylum defensively.
Guatemala Is Not Safe for Asylum Seekers and Lacks a Fair, Functioning Asylum System
89.185.

For most asylum seekers, remaining in Guatemala and seeking protection

there is not an option. The country lacks a full and fair asylum processing system, and is often

extremely dangerous for migrants.

19
20
21
22
23
24

90.186.

According to the U.S. State Department, rape, violence against women,

trafficking, violence against LGBTQ persons, gang recruitment of children, and corruption are
serious issues in Guatemala.
91.187.

The State Department’s Overseas Security Advisory Council reports that

“Guatemala remains among the most dangerous countries in the world” and has an “alarmingly high

murder rate” that “appears driven by narco-trafficking activity, gang-related violence, a heavily

armed population, and police/judicial system unable to hold many criminals accountable.”

27
28

92.188.

Guatemala was in the top four countries whose nationals were granted asylum

in the United States in fiscal years 2015, 2016, and 2017.
37
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 41 of 63

1
2

93.189.

Guatemala’s asylum system is new and barely functioning.

94.190.

According to the U.S. State Department, UNHCR “reported that identification

and referral mechanisms for potential asylum seekers” in Guatemala “were inadequate,” and “[b]oth

migration and police authorities lacked adequate training concerning the rules for establishing

refugee status.”

6
7
8

95.191.

According to the UNHCR, only 262 people applied for refugee status in

Guatemala between January and November 2018, and that number was a 75 percent increase from

the prior year. Since 2015, Guatemala has received on average fewer than 100 cases per year for

asylum processing. In the last two years, it has only decided roughly 20 to 30 asylum cases. There

are very few officials working on the asylum process in Guatemala, and its capacity to handle

asylum claims is extremely limited.

13
14
15
16
17

96.192.

The Final Rule is silent as to Guatemala’s asylum system and ability to protect

migrants from persecution or torture. Cf. 85 Fed. Reg. at 82,276 (responding to concerns about
safety in Mexico, Guatemala, and other transit countries by stating that asylum seekers should “seek
aid from the government in the country in which the individuals have been targeted”).

18
19
20
21
22
23
24

193.

The Final Rule also ignores the obvious impact of recent Hurricanes Eta and Iota on

Central American governments’ capacity to offer asylum to nationals of other countries. According
to USAID, Central American governments currently lack sufficient capacity to provide basic post-

disaster relief due to widespread damage and food shortages. USAID, Latin America – Storms (Dec.

11, 2020), https://www.usaid.gov/sites/default/files/documents/12.11.2020_USAID-

BHA_Latin_America_Storms_Fact_Sheet_8.pdf.

Mexico Is Not Safe for Asylum Seekers and Lacks a Fair, Functioning Asylum System
38
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 42 of 63

97.194.

For most asylum seekers, remaining in Mexico and seeking protection there is

not an option. The country lacks a full and fair asylum processing system, and is often extremely

dangerous for migrants.

98.195.

5
6
7
8

According to the U.S. State Department’s 2017 Mexico Country Report,

“violence against migrants by government officers and organized criminal groups” is one of “[t]he
most significant human rights issues” in Mexico. The State Department also reported in 2018 that
the dangers that forced many Central American migrants to flee their homes are likewise present in

Mexico, as the presence of Central American gangs has “spread farther into the country and

threatened migrants who had fled the same gangs in their home countries,” that there were reports of

migrants being victimized “by criminal groups and in some cases by police, immigration officers,

and customs officials,” that “[t]here were media reports that criminal groups kidnapped

13
14
15
16

undocumented migrants to extort money from migrants’ relatives or force them into committing
criminal acts on their behalf,” that “[t]here were numerous instances of armed groups limiting the
movements of migrants, including by kidnapping and homicides,” and that there were “5,824

reported crimes against migrants” and “99 percent of the crimes were unresolved” at the federal

level.

19
20
21
22
23
24
25
26

99.196.

Migrants in Mexico are at risk of kidnapping, disappearance, trafficking, and

sexual assault, among other harms. Lesbian, gay, bisexual, and transgender persons, as well as
people with indigenous heritage, regularly have been subject to persecution in Mexico. Children in
particular are at risk of robbery, sexual violence, kidnapping, femicide, extortion, and threats.
100.197.

Mexico experienced its highest number of murders recorded in 2018, up 33%

from 2017, which previously was the highest number recorded.
101.198.

President Trump has himself acknowledged that Mexico is not a safe place,

tweeting on January 31, 2019: “Very sadly, Murder cases in Mexico in 2018 rose 33% from 2017, to

33,341.” He further stated that the situation in Mexico is “[w]orse even than Afghanistan.”
39
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 43 of 63

102.199.

The asylum system in Mexico is not adequate to protect the rights of asylum

seekers. Among other problems, Central American asylum seekers in Mexico face a substantial risk

of being involuntarily repatriated to the countries they have fled. Intergovernmental and human

rights organizations have documented widespread instances of Mexican officials returning Central

American migrants to their home countries despite their fears of persecution or torture, without any

6
7
8

meaningful process.
103.200.

The U.S. Department of State has noted “incidents in which immigration

agents had been known to threaten and abuse migrants to force them to accept voluntary deportation

and discourage them from seeking asylum.” It further noted that “NGOs reported bribes sometimes

influenced the adjudication of asylum petitions and requests for transit visas.”

12
13
14
15
16
17
18

104.201.

Data from the Mexican government indicates that very few of the children

who are apprehended by Mexican immigration authorities are recognized as refugees or given other
formal protection in Mexico, and that Mexican immigration authorities routinely fail to inform
detained children about their right to seek protection and fail to adequately screen them for refugee
recognition.
105.202.

Despite Mexican law prohibiting the detention of children for migration

purposes, many children continue to be detained by Mexico’s immigration agency. Conditions in

Mexican detention centers have been widely reported to be harmful to children and in violation of

21
22
23
24

international law. Mexico also sometimes deports unaccompanied children to danger, in many cases
in violation of its own child protection laws.
106.203.

President Trump recently encouraged Mexico to deport individuals who

arrived on “caravans” regardless of their claims for asylum or other forms of protection: “Mexico

should move the flag waving Migrants, many of whom are stone cold criminals, back to their

countries. Do it by plane, do it by bus, do it anyway [sic] you want, but they are NOT coming into

the U.S.A. We will close the Border permanently if need be.”
40
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 44 of 63

107.204.

The RuleThe Final Rule fails to grapple with the overwhelming evidence that

Mexico is not safe for asylum seekers. It offers no analysis or evidence as to the adequacy of

Mexico’s asylum system and ability to protect migrants from persecution or torture in practice. It

notes only the number of that asylum applications Mexico received in 2016, 2017,there have

increased and 2018references the existence of Mexico’s formal asylum laws.

6
7
8

108.205.

Despite the growing number of asylum applications, Mexico’s Commission

for Refugee Assistance (“COMAR”) has not grown its personnel or its budget accordingly.

Mexico’s asylum system is strained as a result. COMAR has failedroutinely fails to make a

decisiondecisions within the time limits provided by Mexico law on 22,000 asylum cases, and had a

backlog of more than 5035,000 asylum claims are pendingas of June 2020.

Harms to Plaintiffs

13
14
15
16
17

109.206.

Plaintiffs are nonprofit organizations that provide assistance to asylum

seekers, including those who came to the United States after transiting through another country. The
newFinal Rule will cause each Plaintiff significant harm.
110.

Plaintiff East Bay Sanctuary Covenant provides legal and social services to

immigrants and refugees within the jurisdiction of the San Francisco Asylum Office, including

applicants in California, Washington, and Oregon. It offers clients legal assistance in affirmative

asylum applications; provides social services; and helps train professionals to assist immigrant and

21
22
23
24

refugee communities.
111.207.

EBSC’s affirmative asylum program is a key part of the organization’s

mission, is its most important program, and accounts for nearly half of its organizational budget.

Since 1992, EBSC has filed nearly 5,000 affirmative asylum cases. Over 97 percent of those

adjudicated cases have been granted.

27
28

112.208.

An estimated 50 percent of theA substantial percentage of clients in EBSC’s

affirmative asylum program in 2018 camecome to the United States through the southern land border
41
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 45 of 63

after transiting through a third country en route to seek asylum in the United States, and EBSC

expects that rate to be similar in the future.. Most of those clients fled persecution in Central

America.

4
5
6
7
8
9
10
11
12
13
14
15
16

113.209.

EBSC works mainly with low-income and poor individuals from around the

world, and works especially closely with vulnerable populations including victims of gender-based
violence and domestic violence, indigenous Guatemalans, LGBT individuals, those affected by
HIV/AIDS, and unaccompanied children.
114.

Funding for EBSC’s affirmative asylum program is based in part on the number of

cases EBSC handles per year, and the number of clients EBSC anticipates serving.
115.

EBSC experienced harm including frustration of its mission and diversion of

resources as a result of the Interim Rule. The newFinal Rule will also significantly harm EBSC as
an organization, seriously frustratesfrustrate EBSC’s mission, and cause it to divert organizational
resources.
116.210.

As a result of the new policy going into effect again, EBSC will have to

expend significant resources to adjust to a newthe shifting regulatory landscape and substantially

reduce its affirmative asylum practice, thus reducing the number of clients it can serve and

frustrating its mission of serving asylum seekers fleeing persecution and violence regardless of their

manner of entry, means of entry, or travel route.

21
22
23
24

117.211.

EBSC also will have to divert significant resources to, among other things,

understanding the new policy and its impact on the communities EBSC serves, and educating and
advising its staff, clients, and prospective clients accordingly. To properly counsel new prospective

clients who seek its affirmative asylum services going forward, EBSC will need to invest resources

in training multiple intake staff not only to screen for asylum eligibility based on the newFinal Rule,

but to conduct detailed screenings for alternative forms of relief to facilitate referrals or other forms

28
42
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 46 of 63

1
2
3

of assistance as appropriate. These alternative forms of relief, including withholding of removal and
Convention Against Torture protection, require a far greater expenditure of staff resources per client.
118.212.

Under the new policy, EBSC will no longer be able to train law students to

handle affirmative asylum cases, or would have to substantially reduce its training program, which

frustrates its mission of helping to train legal professionals to assist individuals fleeing violence and

6
7
8

persecution.
119.213.

The new policyFinal Rule also jeopardizes EBSC’s funding streams., which

depend in large part on per-case funding for affirmative asylum applications, many of which will be

rendered ineligible for asylum under the Final Rule If EBSC is no longer able to handle affirmative

asylum cases for individuals who enter after transiting through another country, it will face a marked

decrease in its budget and will have to significantly cut its program and staff, or dramatically

13
14
15
16

overhaul its program to provide types of assistance it is not currently equipped or trained to provide.
The grant that funds EBSC’s work is only to serve people who make under 250 percent of the
poverty guidelines. In practice, the few noncitizens who will remain eligible to apply affirmatively

for asylum under the new Rule will mostly be those who have visas of some kind and could travel to

the U.S. by air and so likely fall outside of the population it is EBSC’s mission to serve and outside

of the income requirements for EBSC’s services.

20
21
22
23
24

214.

Plaintiff Plaintiff Al Otro Lado serves indigent deportees, migrants, refugees and their

families, principally in Los Angeles and San Diego, California, and Tijuana, Mexico. Al Otro
Lado’s mission is to provide screening, advocacy, and legal representation for individuals in asylum
and other immigration proceedings, to seek redress for civil rights violations, and to assist deportees,

refugees, and other indigent immigrants with legal and social service needs. Through its Border

Rights Project, Al Otro Lado hosts legal orientation workshops and provides information about the

U.S. asylum system to migrants who wish to seek asylum in the United States. Its staff accompanies

some asylum seekers who wish to present themselves to CBP officers at the San Ysidro Port of
43
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 47 of 63

Entry, represent them at their credible/reasonable fear interviews, and assist them with their pro se I-

589 asylum applications.

120.215.

Al Otro Lado routinely provides representation or other assistance to asylum

seekers who have entered the United States after transiting through another country. Approximately

two-thirds of the individuals it serves out of its Tijuana officeSince the effective date of the Interim

6
7
8
9

Rule, Al Otro Lado has served approximately two thousand clients who transited through another
country en route to the United States.
121.216.

The newFinal Rule frustrateswill similarly frustrate Al Otro Lado’s mission

and will force Al Otro Lado to divert significant resources away from its other programs. Because

individuals who enter after transiting through another country are categorically ineligible for asylum

under the Final Rule, Al Otro Lado will once again have to revamp its representation strategy,

13
14
15
16
17
18

overhaul the materials it uses to train pro bono attorneys, and evaluate the eligibility of each of its
clients for other types of immigration relief. It will also have to expend resources to litigate
eligibility issues, including under the higher standard governing withholding of removal, resulting in
additional hearings and time spent on each case.
217.

The new policyLike the Interim Rule, the Final Rule will require Al Otro Lado to

engage in a massive community education campaign to inform client communities about the

significance of the transit ban policy.

21
22
23
24

122.218.

The Final Rule also jeopardizes some of Al Otro Lado’s most critical funding

streams.
123.219.

Most of Al Otro Lado’s asylum clients are families traveling with minor

children. Because they will be ineligible for asylum under the new policy, spouses and minor

children can no longer be counted as derivatives in a single application. Al Otro Lado must now

prepare separate cases for each family member, exponentially increasing the number of hours

28
44
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 48 of 63

1
2

required to prepare a family’s case. Withholding and Convention Against Torture applications also
require more time and greater legal resources.

124.

The new Rule will also require Al Otro Lado to shut down or restructure its Border

Rights Project in San Diego, which is focused on helping detained asylum seekers apply for bond or

parole.

6
7
8

220.

Plaintiff Innovation Law Lab, among other services, has established “Centers of

Excellence,” whichThe Final Rule, like the Interim Rule, will significantly slow down our client

intake process because of the time it takes to explain the transit policy to clients. When the Interim

Rule was in effect, clients were often shocked to learn that they were required to apply for asylum in

countries as unsafe as Mexico and Guatemala. Explaining the transit ban was more time-consuming

relative to other border policies, as was the process of drafting declarations addressing each country

13
14
15
16

through which each client had transited. The Final Rule will again make intake more difficult and
time-consuming.
221.

Because Al Otro Lado receives funding on a per case basis, the fact that withholding

and Convention Against Torture claims are more difficult to prove and require more time and greater

legal resources means that the Final Rule, like the Interim Rule, will require the organization to

expend many more hours without a corresponding increase in funding.

20
21
22
23
24

125.222.

Plaintiff Innovation Law Lab serves asylum seekers across the United States,

including by providing workshops to individuals seeking to apply for asylum pro se, advocating for
the release of detained asylum seekers, providing direct representation to asylum seekers, and
coordinating pro bono representation to asylum seekers. Innovation Law Lab has staff and offices

from which it provides services in California, Oregon, Washington, Arizona, Texas, Illinois, and

Florida. It also coordinates pro bono representation of asylum seekers in California, Georgia, New

Mexico, North Carolina, Oregon, and Texas through its “Centers of Excellence.” These Centers of

Excellence provide support to noncitizens and their pro bono attorneys including legal, technical,
45
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 49 of 63

and strategic assistance in the preparation and presentation of claims. These projects are established

in Georgia, Kansas, Missouri, North Carolina, and Oregon, with expansion underway to Texas, New

Mexico, and California.

4
5
6
7
8
9
10

223.

The new policymajority of the asylum seekers Innovation Law Lab serves transit

through another country en route to the United States. Accordingly, the Interim Rule frustrated
Innovation Law Lab’s mission of serving asylum seekers and caused the diversion of organizational
resources, including by requiring it to revise its resources, templates, instructional guides, training
materials, and trainings.
224.

The Final Rule will further frustrate Innovation Law Lab’s mission to serve asylum

seekers, including those from Central America and others who must transit through a third country,

and will require Innovation Law Lab to significantlyagain divert its limited resources. The vast

13
14
15
16

majority of people Innovation Law Lab serves are asylum seekers, and nearly allthe majority of
itsthose asylum-seeking clients have traveled through a country other than their country of origin on
their way to the United States and did not seek asylum in the countries through which they transited.

The newFinal Rule thus wouldwill make a high percentage of the asylum seekers Innovation Law

Lab serves ineligible for asylum.

19
20
21
22
23
24

126.

The new policyFinal Rule will also, among other things, require Innovation Law Lab

to entirely rework the advice and guidance it provides in its legal services workshops, and respond to
a flood of inquiries and uncertainty from the immigrant communities Innovation Law Lab serves
regarding the attempt to change asylum law. The newFinal Rule will also make a significant
percentage of Innovation Law Lab’s new pro bono cases a great deal more complicated and will

require it to reevaluate relief eligibility in all of the cases that it screens and mentors. And because

withholding of removal and Convention Against Torture relief claims have a higher standard of

proof than asylum, do not allow for derivative applications, and are more time-consuming to handle,

28
46
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 50 of 63

1
2

the Centers of Excellence may begin to lose more cases, requiring a shift of significant resources
toward mentoring pro bono attorneys on complicated appeals.

3
4

127.225.

percentage of the clients in Innovation Law Lab’s detention-focused programs.

5
6
7
8

The new Rule will also eliminate release eligibility for a significant

128.226.

Innovation Law Lab also will have to deploy expensive and limited

engineering resources to recode its software to create new analytical modeling to account for the
newFinal Rule. Innovation Law Lab publishes materials for pro bono attorneys and asylum

applicants, including printed guides, worksheets, training videos, self-help videos, and other

resources that are used around the country. The new asylumFinal Rule will require Innovation Law

Lab to substantially revise this material and create new learning engagements and materials on the

asylumFinal Rule.

13
14
15
16

129.227.

Thousands of individuals rely on the Innovation Law Lab’s systems; the new

asylum. The Final Rule will require the organization to divert its limited resources away from other
projects and priorities.
130.228.

Plaintiff CARECEN in Los Angeles, California, provides immigration legal

services to clients throughout Southern California. These services include affirmative and defensive

representation for asylum seekers. CARECEN also educates immigrants through citizenship classes,

trainings to develop organizing and advocacy skills, and workshops to facilitate the integration of

21
22
23
24
25

immigrants into their communities. CARECEN also helps to organize immigrant communities to
advocate for their rights on specific policy issues. CARECEN is headquartered in Los Angeles, with
permanent offices in the San Fernando Valley (Van Nuys) and San Bernardino, as well as over 20
offsite locations throughout Los Angeles and Orange Counties.

131.

Nearly all of CARECEN’s asylum applicant clients entered the United States through

the southern border after transiting through at least one other country en route from their country of

origin.
47
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 51 of 63

132.229.

Funding for CARECEN’s asylum cases is based in part on the number of

cases it handles per year, and the number of clients it anticipates serving. TheLike the Interim Rule,

the Final Rule will seriously harm CARECEN in multiple respects, and frustrate CARECEN’s

mission and divert organizational resources.

5
6
7
8

230.

For example, One hundred percent of CARECEN’s mission as it relates tocurrent

clients seeking asylum applicants will transited through a third country en route to the United States,
approximately 25% of whom entered after July 16, 2019. Accordingly, many of CARECEN’s

current clients—and virtually all of its clients in the future—would be frustrated becausesubjected to

the Final Rule. The organization willwould be unable to fulfill its mission to assist most those

clients—including some of its current clients who entered after July 16, 2019—in submitting their

asylum seekers from Central America because applications to USCIS or pursuing their asylum

13
14
15
16
17

claims as part of their removal proceedings, because they willwould no longer be eligible for asylum
given that they traveled through another country en route to the United States and did not apply for
asylum in those countries. .
133.231.

CARECEN will be unable to fulfill its mission of helping asylum seekers

apply affirmatively to USCIS, and will instead be forced to assist themclients in applying for

withholding and Convention Against Torture protection in removal proceedings, only, a much more

resource-intensive process. Additionally, because the evidentiary standard for withholding and CAT

21
22
23
24

is higher, the inability to pursue asylum will also likely lead to a greater number of losses in
immigration court, and a greater number of appeals that must be filed by attorneys. The additional
staff time required to handle such caseseach case because of the more stringent standards for

withholding and CAT and lack of derivative applications will again require diverting resources from

other critical areas of work.

27
28

134.

CARECEN’s mission is to provide representation to asylum seekers, regardless of

their manner of entry or how they traveled to the U.S. CARECEN cannot, consistent with its
48
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 52 of 63

mission, cherry pick and serve only those few individuals who entered the U.S. without transiting

through a third country. It would also be difficult, as a practical matter, for CARECEN to verify in

the intake process when and how an individual traveled to the United States, and enter into an

attorney-client relationship accordingly. CARECEN would not be compensated for this additional

screening work, which would strain the organization’s resources.

6
7
8

232.

The impact of the Interim Rule on CARECEN’s operations is indicative of the harm

that the Final Rule will cause. Due to the Interim Rule, CARECEN’s attorneys had to reduce their

caseloads so that they could devote sufficient time and resources towards advancing the more

stringent withholding and Convention Against Torture claims, which were the exclusive avenues for

relief for many of our clients. As one example, CARECEN represented a Ukrainian husband and

wife in their removal proceedings. Absent the transit ban, CARECEN would have pursued an

13
14
15
16

asylum claim for one spouse, with the other as a derivative on the application. But because they
were made ineligible for asylum by the Interim Rule, CARECEN had to expend additional
resources, including representing the wife on the appeal of the denial of her withholding claim,

before ultimately obtaining asylum and derivative relief for both spouses after the Interim Rule was

vacated.

19
20
21
22
23
24
25
26
27
28

233.

Indeed, because of the resource drain caused by the Interim Rule, CARECEN will

also have tohad to stop nearly all intake of new clients so that it could focus on existing, resourceintensive withholding and Convention Against Torture cases. When the Interim Rule was in effect,
CARECEN was forced to reject 10 to 20 callers seeking representation per month, twice the typical
number of rejections.
234.

The inability to intake more cases meant that CARECEN could not obtain additional

funding, which is primarily provided on a per-case basis.
135.235.

The Final Rule will cause CARECEN to again divert resources to training

staff and educatingcounseling current and prospective clients about the effects of the new
49
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 53 of 63

policy.transit ban. Like the Interim Rule, the Final Rule will require CARECEN to contact all

impacted clients and counsel them on their options. CARECEN also operates a hotline to provide

general information to the broader immigrant community. The reinstatement of the transit ban in the

form of this Final Rule after the Interim Rule was vacated will create considerable confusion in our

clients and in the immigrant communities we serve, generate significant inquiries at our offices and

6
7
8

on our hotline, and require workshops to address and explain the changes to the community.
136.236.

Plaintiffs have also been harmed because they were denied the opportunity

tobrief 30-day post-Interim Rule comment. If Defendants had provided an opportunity for notice

and comment before the Rule, period prevented Plaintiffs from submitting their own separate

comments, which would have informed Defendants of their serious objections to the Rule, and they

may have convinced Defendants to adopt a different approachbeen more detailed and contained

13
14
15
16
17
18
19
20

additional information about specific harms to their organizations and clients had the agency
provided more for public comments.
FIRST CLAIM FOR RELIEF
(Violation of Immigration and Nationality Act and Administrative Procedure Act)
137.237.

All of the foregoing allegations are repeated and realleged as if fully set forth

herein.
138.238.

The Immigration and Nationality Act provides that “any“[a]ny alien who is

physically present in the United States or who arrives in the United States (whether or not at a

designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum in

23
24
25
26

accordance with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C.
§ 1158(a)(1).
139.239.

The Immigration and Nationality Act further provides that a noncitizen is

ineligible for asylum if he or she “was firmly resettled in another country prior to arriving in the

United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).
50
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 54 of 63

140.240.

The Immigration and Nationality Act likewise provides that asylum is not

available to a noncitizen “if the Attorney General determines that the alien may be removed,

pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's

nationality or, in the case of an alien having no nationality, the country of the alien's last habitual

residence) in which the alien'salien’s life or freedom would not be threatened on account of race,

6
7
8

religion, nationality, membership in a particular social group, or political opinion, and where the
alien would have access to a full and fair procedure for determining a claim to asylum or equivalent

temporary protection, unless the Attorney General finds that it is in the public interest for the alien to

receive asylum in the United States.” 8 U.S.C. § 1558(a)(2)(A).

11
12
13
14
15

141.241.

Any additional condition or limitation on asylum established by the Attorney

General must be “consistent with” § 1158. See 8 U.S.C. § 1158(b)(2)(C); see also id.
§ 1158(d)(5)(B) (requiring that “any other conditions or limitations on the consideration of an
application for asylum” be “not inconsistent with this chapter”).
142.242.

The Administrative Procedure Act, 5 U.S.C. § 706, provides that a Court

“shall hold

unlawful and set aside agency action, findings, and conclusions found to be – (A) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to

constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.”

143.243.

23
24

The Final Rule is contrary to law, including 8 U.S.C. §§ 1158(a)(1),

1158(a)(2)(A), and 1158(b)(2)(A)(vi).

SECOND CLAIM FOR RELIEF

(Violation of Administrative Procedure Act)

27
28

144.244.

All of the foregoing allegations are repeated and realleged as if fully set forth

herein.
51
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 55 of 63

245.

The APA requires notice and a meaningful opportunity for comment prior to the

promulgation of

245.

4
5
6
7

regulations. 5 U.S.C. §§ 553(b), (c). The Attorney General and Acting Secretary of

Homeland Security failed to provide notice and an opportunity to comment in a timely manner.
246.

The APA requires that a regulation be published “no less than 30 days before its

effective date.” 5 U.S.C. § 553(d). The Attorney General and Interim Rule was not an

adequate notice of proposed rulemaking because former Acting Secretary of Homeland

Security failed to publish the regulation 30 days before its effective date.

10
11
12
13
14
15
16
17
18
19
20

147.246.

The Attorney General and McAleenan lacked authority to issue it and former

Acting Secretary of Homeland Security have notWolf failed to effectively ratify it.
247.

articulated reasons sufficientEven if the Interim Rule provided adequate notice of

proposed rulemaking, it failed to showprovide the customary 60-day comment period.
248.

Defendants failed to explain why the customary 60-day period was not practicable or

why a shorter period was necessary.
249.

The agencies have not adequately explained, whether in the Interim Rule or the Final

Rule, the applicability of the good -cause why these requirements are inapplicable, nor is the or
foreign -affairs exception applicableexceptions to notice and comment.

21
22

THIRD CLAIM FOR RELIEF

(Violation of Congressional Review Act and Administrative Procedure Act)

250.

All of the foregoing allegations are repeated and realleged as if fully set forth herein.

251.

As a “major rule,” the Final Rule needed to be published at least 60 days before it

26
27
28

takes effect. 5 U.S.C. §§ 801(a)(3), 804(2).
252.

The Final Rule was published on December 17, 2020.

52
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 56 of 63

253.

The Final Rule is set to take effect on January 19, 2021, only 33 days after

publication.

254.

Fed. Reg. at 82,289.

255.

6
7

Defendants have failed to explain why the Final Rule is not a “major rule.” See 85

Accordingly, the Final Rule must be set aside as “not in accordance with law” and “in

excess of statutory . . . authority.” 5 U.S.C. § 706(2)(A), (C).
FOURTH CLAIM FOR RELIEF

(Violation of Administrative Procedure Act, Arbitrary & Capricious)

9
10
11
12
13
14
15
16

148.256.

All of the foregoing allegations are repeated and realleged as if fully set forth

149.257.

The APA provides that courts “shall . . . hold unlawful and set aside agency

herein.

action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A).
150.258.

Among other reasons, the Final Rule is arbitrary and capricious because, in

adopting it, Defendants have failed to articulate a reasoned explanation for their decision, which

represents a change in the agency’sagencies’ longstanding policy; considered factors that Congress

did not intend to be considered; entirely failed to consider important aspects of the problem; and

offered explanations for their decision that run counter to the evidence before the agency.

21
22
23
FIFTH CLAIM FOR RELIEF

(Violation of the Homeland Security Act, 6 U.S.C. § 113(g)(2)
and the APA, 5 U.S.C. § 706(2)(A), (C))

25
26

259.

All of the foregoing allegations are repeated and realleged as if fully set forth herein.

27
28
53
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 57 of 63

1
2
3

260.

The Secretary of Homeland Security must be appointed by the President with the

advice and consent of the Senate. 6 U.S.C. § 112(a)(1).
261.

The FVRA is the “exclusive means” for authorizing an acting official, unless an

alternative statutory provision “expressly” authorizes certain other mechanisms to fill positions in an

acting capacity temporarily. 5 U.S.C. § 3347(a).

6
7
8
9

262.

The HSA provides that “the Secretary may designate such other officers of the

Department in further order of succession to serve as Acting Secretary.” 6 U.S.C. § 113(g)(2).
263.

McAleenan and, subsequently, Wolf both improperly assumed the position of Acting

Secretary in violation of the order of succession as it existed following Nielsen’s resignation.

Accordingly, neither had legal authority to serve as Acting DHS Secretary, and neither had authority

to issue or ratify either the Interim Rule or the Final Rule.

13
14
15
16

264.

Additionally, even if McAleenan had been properly serving as Acting Secretary, he

did not have authority to change the order of succession under the HSA to place Wolf next in line
because the HSA reserves the authority to change the succession order to Secretaries and not to

Acting Secretaries. 6 U.S.C. § 113(g)(2). Accordingly, the November Delegation under which Wolf

purportedly assumed the role of Acting Secretary was invalid.

19
20
21
22
23
24
25

265.

The memo issued by Peter Gaynor, which attempted again to elevate Wolf to Acting

Secretary on September 10, 2020, and again on November 14, 2020, was itself unlawful under 6
U.S.C. § 113(g)(2), because Gaynor did not properly assume the role of Acting Secretary. Even if
he did, as an Acting Secretary, Gaynor did not have authority to change the order of succession.
266.

Wolf thus did not, at any point, become Acting DHS Secretary.

267.

Because Wolf never became Acting Secretary and because an Acting Secretary may

not alter DHS’s order of succession, his attempt to install Gaynor on January 11, 2021, was also

ineffective.

28
54
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 58 of 63

268.

Because Wolf was not Acting DHS Secretary when he approved the Final Rule on

December 17, 2020, the Final Rule is unlawful, without force and effect ab initio pursuant to 5

U.S.C. § 3348(d)(1), and must be set aside as “not in accordance with law” and “in excess of . . .

authority” under the APA. 5 U.S.C. § 706(2)(A), (C). See also 6 U.S.C. § 112(e) (identifying

“issuance of regulations” as a “function” of the DHS Secretary); see also 8 U.S.C. § 1103(a)(3)

6
7
8
9

(assigning powers and duties of the Secretary to include establishing regulations). Wolf’s unlawful
actions as Acting Secretary may not be ratified, see 5 U.S.C. § 3348(d), and in any event, Wolf’s
ratification attempts were invalid.

SIXTH CLAIM FOR RELIEF

(Violation of the Time Limitation of the Federal Vacancies Reform Act,
5 U.S.C. § 3346(a), and the APA, 5 U.S.C. § 706(2)(A), (C))

12
13
14
15

18
19

270.

The Secretary of Homeland Security is an officer who must be appointed by the

271.

Congress enacted the FVRA to reclaim its “Appointments Clause power” and reassert

its authority over temporary appointments. See Sw. Gen., Inc. v. NLRB, 796 F.3d 67, 70 (D.C. Cir.
2015), aff’d, 137 S. Ct. 929 (2017).
272.

20
21

All of the foregoing allegations are repeated and realleged as if fully set forth herein.

President with the advice and consent of the Senate. 6 U.S.C. § 112(a)(1).

16
17

269.

Under the FVRA, an acting official may not fill a vacancy beyond 210 days from the

date the vacancy occurs. 5 U.S.C. § 3346(a)(1).
273.

The office of DHS Secretary became vacant upon Secretary Nielsen’s resignation on

April 10, 2019. The 210-day time limit for an Acting Secretary therefore expired on November 6,

2019.

25
26
27
28

274.

Because McAleenan’s November Delegation was issued on November 9, 2019, after

the 210 days permitted by the FVRA, the November Delegation purporting to elevate Wolf to Acting
Secretary had no “force or effect.” 5 U.S.C. § 3348(d)(1).
55
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 59 of 63

275.

Additionally, Wolf’s ratification of the Interim Rule and his approval of the Final

Rule are similarly invalid because both occurred outside of the 210-day period allowed under the

FVRA.

276.

Final Rule.

6
7
8

277.

Accordingly, Wolf was unlawfully serving as Acting Secretary when he issued the

The Final Rule must therefore be declared without force and effect under the FVRA,

5 U.S.C. § 3348(d)(1), and set aside as “not in accordance with law” and “in excess of … authority”

under the APA. 5 U.S.C. § 706(2)(A), (C). Wolf’s and McAleenan’s unlawful actions may not be

ratified, see 5 U.S.C. § 3348(d), and in any event, Wolf’s ratification attempts were invalid.

SEVENTH CLAIM FOR RELIEF

(Violation of the Appointments Clause and the APA, 5 U.S.C. § 706(2)(B))

13
14
15
16
17
18

278.

All of the foregoing allegations are repeated and realleged as if fully set forth herein.

279.

The appointment of an Acting DHS Secretary with an indefinite term of office

violates the Appointments Clause of the United States Constitution, and the Acting DHS Secretary’s
actions must be set aside as contrary to law.
280.

The Appointments Clause provides that principal officers of the United States,

including heads of executive departments, must be appointed by the President “by and with the

Advice and Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2.

21
22
23
24
25

281.

An acting officer—who is carrying out the functions of a principal officer—is an

inferior officer and may serve in that capacity only for a limited time.
282.

As head of department, the Secretary of Homeland Security is a principal officer.

283.

By purporting to exercise the functions and duties of the Secretary of Homeland

Security free from any time limitation, McAleenan, Wolf, and Gaynor have sought to serve as

principal officers. Because they were not nominated by the President or confirmed by the Senate,

their service as principal officers violated the Appointments Clause.
56
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 60 of 63

1
2
3

284.

On December 17, 2020, when Wolf purported to approve the Final Rule, the office of

the Secretary of Homeland Security had been vacant without a permanent appointee for 617 days.
285.

Wolf became the longest-serving Secretary of DHS under this administration, acting

or otherwise, surpassing both John Kelly and Kirstjen Nielsen, the two Senate-confirmed Secretaries

of DHS.

6
7
8
9

286.

Wolf’s tenure became indistinguishable from that of a permanent, Senate-confirmed

DHS Secretary, making him a principal officer.
287.

Thus, even if Wolf’s service as Acting Secretary of Homeland Security was

consistent with the HSA and FVRA, his indefinite ascension to that office without the advice and

consent of the Senate violated the Appointments Clause.

12
13
14
15
16
17
18

288.

Because Wolf’s purported service as Acting DHS Secretary was in violation of the

Appointments Clause, his approval of the Final Rule was unlawful.
289.

Similarly, when former Acting Secretary McAleenan, also serving without time

limitation, purported to issue the Interim Rule, which was adopted by the Final Rule with minor
changes, he lacked the authority to do so and violated the Appointments Clause.
290.

Wolf may not circumvent the constitutional limit on his service as Acting Secretary

by purporting to take a subordinate role and exercising via delegation the functions assigned to the

Secretary of DHS.

21
22
23
24

291.

The Final Rule is therefore invalid and must be vacated as contrary to law and

constitutional authority, 5 U.S.C. § 706(2)(B). Wolf’s and McAleenan’s unlawful actions may not
be ratified, see 5 U.S.C. § 3348(d), and in any event, Wolf’s ratification attempts were invalid.

EIGHTH CLAIM FOR RELIEF

(Violation of the Time Limitation of the Federal Vacancies Reform Act,
5 U.S.C. § 3346(a), and the APA, 5 U.S.C. § 706(2)(A), (C))

27
28

292.

All of the foregoing allegations are repeated and realleged as if fully set forth herein.

57
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 61 of 63

293.

Wolf purported to delegate authority to electronically sign the Final Rule to

Defendant Mizelle, in the latter’s capacity as the official discharging the duties of General Counsel

for DHS. 85 Fed. Reg. at 82,289.

4
5
6
7
8

294.

An appointment as General Counsel for DHS requires advice and consent of the

Senate, 6 U.S.C. § 113(a)(1)(J).
295.

Any vacancy in the office of General Counsel for DHS is therefore subject to the

FVRA’s requirements, including the 210-day limit on interim service of an acting official. 5 U.S.C.

§ 3345(a); id. § 3346.

296.

11
12
13
14
15
16

on September 17, 2019.
297.

298.

299.

21
22
23
24

Mizelle was not lawfully performing the functions and duties of the office of General

Counsel for DHS, which, under the FVRA, was required to remain vacant after 210 days. 5 U.S.C.
§ 3348(b).

By December 17, 2020, when Mizelle purported to sign the Final Rule on Wolf’s

behalf, 457 days had elapsed, more than twice the maximum period allowed under the FVRA.

17
19

The most recent Senate-confirmed General Counsel for DHS, John Mitnick, was fired

Because Mizelle’s acting service violated the FVRA, his attempt to sign the Final

Rule on Wolf’s behalf was without force and effect.
300.

Because Mizelle could not lawfully perform the functions and duties of the General

Counsel for DHS, Wolf’s attempt to delegate authority to Mizelle, in his official capacity as the
Senior Official Performing the Duties of the General Counsel for DHS, was ineffective.
301.

Because of Mizelle was not lawfully serving as an officer or employee of DHS, Wolf

could not lawfully delegate the Secretary’s functions to Mizelle. See 6 U.S.C.§ 112(b)(1) (limiting

the delegation of “any of the Secretary’s functions to any officer, employee, or organizational unit of

the Department”).

28
58
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 62 of 63

1
2
3
4
5
6
7
8
9

302.

Because Mizelle was without statutory authority to sign the Final Rule on Wolf’s

behalf, the publication of the Final Rule was unauthorized.
303.

Because the Final Rule has not been lawfully published, the APA precludes it from

taking effect. See 5 U.S.C. § 553(d).
304.

Accordingly, the Final Rule must be set aside as “not in accordance with law” and “in

excess of statutory . . . authority” under the APA. 5 U.S.C. § 706(2)(A), (C). Mizelle’s
unauthorized signing of the Final Rule may not be ratified, see 5 U.S.C. § 3348(d), and in any event,
Wolf’s ratification was invalid and did not purport to ratify Mizelle’s signature.
PRAYER FOR RELIEF

10
11
12
13
14
15
16

WHEREFORE, Plaintiffs respectfully pray for the following relief:
a. A declaration pursuant to 28 U.S.C. § 2201 that the interim final ruleFinal Rule is unlawful
and invalid;
b. Postponement and stay of the Final Rule’s effective date pending judicial review under 5
U.S.C. § 705;

c. An order vacating the Final Rule;

b.d.A preliminary and permanent injunction enjoining Defendants, their officials, agents,

employees, assigns, and all persons acting in concert or participating with them from

implementing or enforcing the interim final ruleFinal Rule;

21
22
23
24

c.e. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and expenses
pursuant to any applicable law;
d.f. Such other and further relief as the Court deems equitable, just, and proper.

25
26
27
28

Dated: July 16, 2019January 19, 2021
Lee Gelernt*

Respectfully submitted,

59
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:19-cv-04073-JST Document 130-3 Filed 01/19/21 Page 63 of 63

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Omar Jadwat*
Anand Balakrishnan*
Ming Cheung**
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org
mcheung@aclu.org
Melissa Crow*
SOUTHERN POVERTY LAW CENTER
1101 17th Street, NW Suite 705
Washington, D.C. 20036
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org
Mary Bauer*
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org

/s/ Katrina Eiland
Katrina Eiland (SBN 275701)
Cody Wofsy (SBN 294179)
Spencer Amdur (SBN 320069)
Julie VeroffMorgan Russell (SBN
310161296137)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
keiland@aclu.org
cwofsy@aclu.org
samdur@aclu.org
jveroffmrussell@aclu.org
Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
Angélica Salceda**
AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclunc.org
vtalla@aclunc.org
asalceda@aclunc.org
Baher Azmy***
Angelo Guisado***
Ghita Schwarz***
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Telephone: (212) 614-6464
Facsimile: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gschwarz@ccrjustice.org

17
18
19
20
21
22
23
24

Attorneys for Plaintiffs

25
26
27

***Admitted pro hac vice
** Pro hac vice application forthcoming
** Application for admission pending

28
60
FIRST AM. AND SUPPL. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

File and source

File: gov.uscourts.cand.344869.130.3.pdf
Size: 793,548 bytes
SHA-256: 9bcb7230bccc30d4f6ba2d6ef966f6ed13abe1331a4e9ddf9aeb0d92f1a9534b
Our copy: gov.uscourts.cand.344869.130.3.pdf
Original: archive.org

Complaint (2021-01-19)

Summary

Full text

File and source

Related records