Las Ams. Immigrant Advocacy Ctr. v. Wolf

507 F.Supp.3d 1

LAS AMERICAS IMMIGRANT ADVOCACY CENTER, et al., Plaintiffs,

v.Chad WOLF, in his official capacity as Acting Secretary of Homeland Security, et al., Defendants.

No. 19-cv-3640 (KBJ)

United States District Court, District of Columbia.

Signed November 30, 2020

Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, Washington, DC, Anand Balakrishnan, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Andre Ivan Segura, Pro Hac Vice, Thomas Paul Buser-Clancy, Pro Hac Vice, Kathryn Lynn Huddleston, Pro Hac Vice, American Civil Liberties Union Foundation of Texas, Houston, TX, Bernardo Rafael Cruz, Pro Hac Vice, Brantley Shaw Drake, Pro Hac Vice, American Civil Liberties Union of Texas, El Paso, TX, for Plaintiffs.

Erez Reuveni, Brian Christopher Ward, Courtney Elizabeth Moran, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

This Court recently discerned an impermissible conflict between parts of a training manual that the United States Citizenship and Immigration Services ("USCIS") issues to assist its asylum officers in making determinations regarding whether or not asylum seekers who are subject to expedited removal have a credible fear of persecution and the terms of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , and that statute's implementing regulations. See Kiakombua v. Wolf , No. 19-cv-1872, 498 F.Supp.3d 1, 10–11 (D.D.C. Oct. 31, 2020). In the instant case, the Court has been similarly called upon to determine the lawfulness of certain other written policies that the Department of Homeland Security ("DHS") has crafted to implement the federal government's statutory process for the evaluation of asylum requests made by noncitizens who arrive at the U.S. border.¹ In October of 2019, DHS issued two guidance memoranda that instituted new programs for faster processing of the asylum requests of individuals who are subject to expedited removal and who have either traveled through another country on their way to the United States or are Mexican nationals. Pursuant to the "Prompt Asylum Claim Review" ("PACR") process and the "Humanitarian Asylum Review Process" ("HARP"), such asylum seekers are afforded only one full calendar day to prepare for the initial screening stage of the statutory asylum application process, known as the credible fear interview. Cf. Kiakombua , 498 F.Supp.3d at 11–14 (describing the statutory and regulatory scheme that governs the interview and credible fear evaluation). Moreover, under both PACR and HARP, that one-day timeframe encompasses the statutorily required opportunity to consult with a person of the asylum seeker's choosing, such as an attorney.

Significantly for present purposes, PACR and HARP further establish that noncitizens who are awaiting credible fear interviews, as well as those who have requested an immigration judge's review of a negative credible fear determination, will be detained in facilities that are run by U.S. Customs and Border Protection ("CBP"), rather than in facilities that U.S. Immigration and Customs Enforcement ("ICE") operates, as used to be the case. Plaintiffs Las Americas Immigrant Advocacy Center and ten pseudonymous individuals (collectively, "Plaintiffs") have filed the instant action against DHS, USCIS, CBP, the Department of Justice ("DOJ"), and various leaders of those agencies, in their official capacities (collectively, "Defendants") to challenge this detention-placement policy on the grounds that, due to institution-related constraints, persons who are detained in CBP custody have restricted opportunities to consult with a person of their choosing during the credible fear interview process, as the immigration statutes require. (See Am. Compl. ("Compl."), ECF No. 2, ¶ 1.) Plaintiffs’ six-count complaint primarily alleges that there is an unlawful inconsistency between the PACR and HARP mandate that such persons be detained in a facility that is not equipped to facilitate interactions between such detained persons and their counsel, on the one hand, and the statutory and regulatory requirement that detained asylum seekers "may consult with a person or persons of [their] choosing prior to" a credible fear interview, 8 U.S.C. § 1225(b)(1)(B)(iv) ; 8 C.F.R. § 208.30(d)(4), and the fact that such persons have a right to counsel during full removal proceedings, see 8 U.S.C. § 1362, on the other. Plaintiffs also maintain that Defendants’ new detention-placement policy was adopted in an arbitrary and capricious fashion in violation of the Administrative Procedure Act ("APA"), and that it deprives asylum seekers of not only the procedural safeguards conferred by the INA and the Convention Against Torture but also their Fifth Amendment due process rights.

Before this Court at present are the parties’ cross-motions for summary judgment. (Pls.’ Mot. for Summ. J., ECF No. 35; Defs.’ Cross-Mot. for Summ. J., ECF No. 49.) Plaintiffs’ motion reiterates their core arguments that DHS's policy of placing asylum seekers in CBP custody prior to their credible fear interview violates various statutory rights (see Pls.’ Mem. in Supp. of Cross-Mot. for Summ. J. ("Pls.’ Mot."), ECF No. 35-1, at 10); that the agency's decision making process with respect to the changed detention-placement policy was arbitrary and capricious under the APA (see id. at 9); and that the resulting asylum-review procedure violates the Due Process Clause (id. at 10).² Defendants’ cross-motion for summary judgment contends, as a threshold matter, that the Court lacks subject-matter jurisdiction over Plaintiffs’ claims, that Plaintiffs lack standing, and that Plaintiffs’ claims have become moot. (See Defs.’ Mem. in Opp'n to Pls.’ Mot. for Summ. J. and in Supp. of Defs.’ Cross-Mot. for Summ. J. ("Defs.’ Mot."), ECF No. 49-1, at 11–12; Defs.’ Notice of Suppl. Authority, ECF No. 71, at 1.) Defendants also argue that the detention-placement policy does not violate any statutory or constitutional rights of Plaintiffs, and that the policy resulted from decision making procedures that are consistent with the APA. (See Defs.’ Mot. at 12.)

As explained below, this Court concludes that Defendants’ threshold arguments about the Court's subject-matter jurisdiction, Plaintiffs’ standing, and the mootness of the claims in this legal action are baseless, largely for the reasons that the D.C. Circuit recently articulated in Make the Rd. New York v. Wolf , 962 F.3d 612 (D.C. Cir. 2020) (" MTRNY II "), and Grace v. Barr , 965 F.3d 883 (D.C. Cir. 2020). However, this Court cannot find that the detention-placement policy at issue here transgresses the INA's prescriptions regarding the initial stage of the asylum application process or any other statute or regulation, nor can it conclude that the detention-placement policy was adopted in an arbitrary or capricious manner in violation of the APA. Moreover, given binding case law, the Court must also find that the detention-placement policy at issue here does not violate the Constitution's Due Process Clause. Accordingly, Plaintiffs’ motion for summary judgment must be DENIED , and Defendants’ cross-motion for summary judgment must be GRANTED . A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

A. Overview Of The Procedures Afforded To Asylum Applicants Under Federal Law

The statutory and regulatory scheme that governs the United States government's consideration of asylum applications is described in detail in this Court's Memorandum Opinions in Kiakombua , see 498 F.Supp.3d at 11–14, and Make the Rd. New York v. McAleenan , 405 F. Supp. 3d 1, 12–21 (D.D.C. 2019) (" MTRNY I "), rev'd on other grounds , 962 F.3d 612 (D.C. Cir. 2020). Those descriptions are incorporated into the instant opinion by reference, and the Court will assume general familiarity with their discussion of the applicable legal framework.

As relevant here, the reader is reminded that, as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 302, 110 Stat. 3009-546, 3009-579 (1996), Congress created the process of "expedited removal[,]" which "enables federal immigration officers to slate certain undocumented noncitizens for rapid deportation ‘without further hearing or review[.]’ " MTRNY I , 405 F. Supp. 3d at 10 (quoting 8 U.S.C. § 1225(b)(1)(A)(i) ). Congress determined that "rapid removal procedures were ‘necessary’ because ‘thousands of aliens arrive in the U.S. at airports each year without valid documents and attempt to illegally enter the U.S.[,]’ " id. at 15 (citation omitted), and "[e]xisting procedures to deny entry to and to remove illegal aliens from the United States" were too "cumbersome and duplicative" to address this influx at the nation's borders, see id. at 13 (citation omitted). Consequently, Congress "adopted IIRIRA's expedited removal scheme to substantially shorten and speed up the removal process." MTRNY II , 962 F.3d at 618.

With the addition of expedited removal, Congress effectively established a bifurcated set of procedures for determining whether an asylum seeker will be granted authorization to remain in the United States or will be removed. Per the pre-existing formal removal pathway (which applies to most noncitizens who are not already authorized to remain in the United States), the government provides a number of procedural guarantees as an asylum application is being processed, including the right to written notice of the charge of removability, see 8 U.S.C. § 1229(a)(1) ; to a hearing before an immigration judge, see id. § 1229a(a)(1); to representation by counsel, see id. § 1229a(b)(4)(A); to examine and cross-examine witnesses and present evidence, id. § 1229a(b)(4)(B); to appeal an adverse decision to the Board of Immigration Appeals, see 8 C.F.R. §§ 1003.1(b...