E. Bay Sanctuary Covenanthouse v. Biden

683 F.Supp.3d 1025

EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. Joseph R. BIDEN, et al., Defendants.

Case No. 18-cv-06810-JST

United States District Court, N.D. California

Signed July 25, 2023

Michael A. Hammer, Office of U.S. Attorney, Newark, NJ, Norman Joel Gross, William E. Fitzpatrick, Office of the U.S. Attorney, Camden, NJ, John Williams Van Lonkhuyzen, U.S. Department of Justice, New York, NY, for Plaintiff.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Re: ECF Nos. 169, 176

JON S. TIGAR, United States District Judge

Before the Court are motions for summary judgment filed by Plaintiffs East Bay Sanctuary Covenant ("EBSC"), Central American Resource Center of Los Angeles, Tahirih Justice Center, National Center for Lesbian Rights, Immigrant Defenders Law Center, and American Gateways, ECF No. 169; and Defendants Joseph R. Biden, Merrick Garland, United States Department of Justice ("DOJ"), David Neal, Executive Office of Immigration Review, Alejandro Mayorkas, United States Department of Homeland Security ("DHS"), Ur Jaddou, United States Citizenship and Immigration Services, Troy A. Miller, United States Customs and Border Protection ("CBP"), Tae D. Johnson, and Immigration and Customs Enforcement ("ICE"), ECF No. 176. The Court will grant Plaintiffs' motion for summary judgment and deny Defendants' motion for summary judgment.

I. BACKGROUND

On May 16, 2023, DHS and DOJ published a final rule, Circumvention of Lawful Pathways ("the Rule"), which applies a presumption of asylum ineligibility to noncitizens who traveled through a country other than their own before entering the United States through the southern border with Mexico. 88 Fed. Reg. 31314, 31449-52 (May 16, 2023). Unless they meet one of several exceptions, such individuals will be presumed ineligible for asylum; they may rebut this presumption only upon a showing of "exceptionally compelling circumstances" at the time of entry. Id. The Rule provides exceptions for unaccompanied children, noncitizens authorized to travel to the United States pursuant to a DHS-approved parole process, certain noncitizens who present at a port of entry, and noncitizens who have been denied asylum or other forms of protection by another country. Id.

Plaintiffs are organizations that represent and assist asylum seekers. They argue the Rule is invalid under the Administrative Procedure Act ("APA") for three reasons: first, it is contrary to law; second, it is arbitrary and capricious; and third, it was issued without adequate opportunity for public comment.

A. Statutory Framework

"In 1980, to limit the [Executive's] parole power, create a predictable and permanent admissions system, and fulfill international obligations, Congress passed the Refugee Act," which "provided a statutory basis for asylum, the granting of status to refugees who arrive or have been physically present in the United States." Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1060 (9th Cir. 2017) (en banc); see also EBSC v. Biden (Entry V), 993 F.3d 640, 658 (9th Cir. 2021) ("[T]he Refugee Act of 1980 . . . established an asylum procedure available to any migrant, 'irrespective of such alien's status,' and irrespective of whether the migrant arrived 'at a land border or port of entry.' ") (quoting Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 105 (1980)).

This statutory basis is now found in the Immigration and Nationality Act ("INA"), which provides that any noncitizen who arrives in the United States, "whether or not at a designated port of arrival" and "irrespective of [their] status, may apply for asylum." 8 U.S.C. § 1158(a)(1).¹ The statute grants the Attorney General or Secretary of Homeland Security discretion to grant asylum to applicants who qualify as refugees, id. § 1158(b)(1)(A), defined as those "unable or unwilling to return to" their home countries "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," id. § 1101(a)(42). Certain noncitizens are statutorily barred from eligibility for asylum: those who have persecuted others on the basis of race, religion, nationality, membership in a particular social group, or political opinion; those who have been convicted by final judgment of a particularly serious crime; those who there are serious reasons to believe have committed a serious nonpolitical crime outside the United States prior to arrival; those who there are reasonable grounds to regard as terrorists or a danger to the security of the United States; and those who have firmly resettled in another country prior to arriving in the United States. Id. § 1158(b)(2)(A)(i)-(vi). The statute also provides that "[t]he Attorney General may by regulation establish additional limitations and conditions" on asylum eligibility, so long as such limitations and conditions are "consistent with this section." Id. § 1158(b)(2)(C).

B. The Challenged Rule

The Rule establishes a "rebuttable presumption" of asylum ineligibility which applies to all noncitizens who enter the United States at the southern border between May 11, 2023, and May 11, 2025, "after . . . travel[ing] through a country other than [their] country of citizenship, nationality, or, if stateless, last habitual residence."² 88 Fed. Reg. at 31450. The presumption does not apply to unaccompanied minor children. Id. Otherwise, noncitizens are exempt from this presumption only if they (1) have "authorization to travel to the United States to seek parole, pursuant to a DHS-approved parole process"; (2) "[p]resented at a port of entry, pursuant to a pre-scheduled time and place, or presented at a port of entry without a pre-scheduled time and place," provided they demonstrate, by a preponderance of the evidence, that "it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle"; or (3) "[s]ought asylum or other protection in a country through which [they] traveled and received a final decision denying that application," provided the denial was for a reason other than abandonment of the claim.³ Id. To rebut this presumption, noncitizens must demonstrate, by a preponderance of the evidence, the existence of "exceptionally compelling circumstances" at the time of entry. Such circumstances exist in cases of acute medical emergencies, "imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder," or "severe . . . trafficking in persons." Id.⁴

In simpler terms, under the Rule, noncitizens other than Mexican nationals who cross the southern border are presumed ineligible for asylum unless they (1) have received advance permission to travel to the U.S. to apply for parole; (2) present at a port of entry for a pre-scheduled appointment (or without an appointment, if they can demonstrate an "ongoing and serious obstacle" that precluded pre-scheduling); or (3) have already sought and been denied asylum or other protection in another country en route to the U.S.⁵ The presumption may be rebutted only upon a showing of exceptionally compelling circumstances.

The Attorney General and DHS Secretary issued the challenged Rule "pursuant to their shared and respective authorities concerning asylum, statutory withholding, and CAT determinations" under the INA, including their discretionary authority to grant asylum to refugees, 8 U.S.C. § 1158(b)(1)(A); their authority to establish requirements and procedures to govern asylum applications, id.; and their authority to establish additional limitations and conditions for asylum eligibility "consistent with this section," id. § 1158(b)(2)(C). 88 Fed. Reg. at 31323.

The agencies issued a Notice of Proposed Rulemaking ("the Notice") on February 23, 2023, and received public comments until March 27, 2023. Circumvention of Lawful Pathways, 88 Fed. Reg. 11704, 11704 (Feb. 23, 2023). Including the last day, the comment period spanned 33 days.⁶ In promulgating the Rule, the agencies invoked the foreign affairs and good cause exceptions to the APA's required 30-day delayed effective date for substantive rules. Id. at 31444-47. The Rule took effect on May 11, 2023. Id. at 31314.

C. Procedural History

This case began in November 2018, when Plaintiffs filed suit to challenge an interim final rule, Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018), and accompanying presidential proclamation which together barred asylum eligibility for noncitizens who entered the United States outside of designated ports of entry ("Entry Rule"). ECF No. 1. This Court enjoined the Entry Rule. EBSC v. Trump (Entry I), 349 F. Supp. 3d 838 (N.D. Cal. 2018) (granting temporary restraining order); EBSC v. Trump (Entry II), 354 F. Supp. 3d 1094 (N.D. Cal. 2018) (granting preliminary injunction). The Ninth Circuit and Supreme Court declined to stay the temporary restraining order pending appeal. EBSC v. Trump (Entry III), 932 F. 3d 742 (9th Cir. 2018); Trump v. EBSC (Entry IV), — U.S. —, 139 S. Ct. 782, 202 L.Ed.2d 510 (2018) (mem.). This Court stayed the case in March 2019, pending resolution of the appeal. ECF No. 113. The Ninth Circuit subsequently held that the Entry Rule was substantively invalid and affirmed this Court's orders granting preliminary injunctive relief. Entry V, 993 F.3d at 640.

In 2019, DOJ and DHS issued an interim final rule that rendered noncitizens who crossed the southern border after traveling through a country other than their own categorically ineligible for asylum ("Transit Rule"). Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33829 (July 16, 2019). The Transit Rule contained three exceptions under which noncitizens could remain eligible for asylum: (1) if they had applied for...