Doe v. Jaddou

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JANE DOE, Plaintiff, v. UR M. JADDOU, in her official capacity as Director of United States Citizenship and Immigration Services, TROY A. MILLER, in his official capacity as Senior Official Performing the Duties of the Commissioner of United States Customs and Border Protection, and ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, Defendants.

Civil Action No. TDC-24-0650

United States District Court, D. Maryland

May 8, 2024

MEMORANDUM OPINION

THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE

Plaintiff Jane Doe, an Iraqi refugee, has filed a civil action against the Director of United States Citizenship and Immigration Services (“USCIS”); the Senior Official Performing the Duties of the Commissioner of United States Customs and Border Protection (“CBP”); and the Secretary of Homeland Security ("the Secretary") alleging a violation of the Administrative Procedure Act (“APA"), 5 U.S.C. § 701-706 (2018), arising from Defendants' policy that individuals previously admitted to the United States as refugees are inadmissible for reentry to the United States without a refugee travel document. Doe has filed a Motion for a Preliminary Injunction, which is fully briefed. On April 29, 2024, the Court held a hearing on the Motion. The Court now issues its findings of fact and conclusions of law. See Fed.R.Civ.P. 52(a)(2). For the reasons set forth below, the Motion will be GRANTED.

FINDINGS OF FACT

I. The Policy

The Immigration and Nationality Act (“INA”), 8 U.S.C §§ 1101-1537 (2018), governs the admission of foreign nationals to the United States. The Refugee Act, Pub. L. 96-212, 94 Stat. 102 (1980), amended the INA to address the admission of refugees into the United States and granted to the Attorney General the discretionary authority to admit refugees into the United States:

[T]he Attorney General may, in the Attorney General's discretion and pursuant to such regulations as the Attorney General may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under [8 U.S.C. § 1157(c)(3)]) as an immigrant under [the INA].

8 U.S.C. § 1157(c)(1).

The Refugee Act exempts refugees from at least two statutory requirements. First, the INA requires that:

Except as otherwise specifically provided in [the INA], any immigrant at the time of application for admission-

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by [the INA], and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under [8 U.S.C. § 1181(a)], or

(II) whose visa has been issued without compliance with the provisions of [8 U.S.C. § 1153], is inadmissible.

8 U.S.C. § 1182(a)(7)(A)(i). The Refugee Act states that the provisions of § 1182(a)(7)(A) “shall not be applicable to any alien seeking admission to the United States under [§ 1157(c)].” Refugee Act § 207, 8 U.S.C. § 1157(c)(3).

Second, the INA requires that:

Except as provided in [8 U.S.C. § 1181(b) and (c)] no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and (2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General.

8 U.S.C. § 1181(a). The Refugee Act states that the provisions of § 1181(a) “shall not apply to an alien whom the Attorney General admits to the United States under [8 U.S.C. § 1157].” Refugee Act § 202, 8 U.S.C. § 1181(c).

The Homeland Security Act, Pub. L. 107-296, 116 Stat. 2135 (2002), transferred the authorities relating to refugees from the Attorney General to the Secretary of Homeland Security, id. at 2177-78. 2311, and the authority to conduct "adjudications of asylum and refugee applications” to the Director of the Bureau of Citizenship and Immigration Services within the Department of Homeland Security (“DHS”), now the Director of USCIS, id. at 2196. See 6 U.S.C. § 557 (2018); Mestanek v. Jaddou, 93 F.4th 164, 170-71 (4th Cir. 2024) (describing the transfer of the administration of federal immigration laws to USCIS and other components within DHS).

In 1997, the Immigration and Naturalization Service (“INS”), the predecessor agency to USCIS, promulgated regulations governing the issuance of refugee travel documents ("RTDs”). 8 C.F.R. §§ 223.1-223.3 (2023); see Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10312 (Mar. 6, 1997). These regulations (“the RTD Regulations”) require that "a person who holds refugee status" must have “a refugee travel document to return to the United States after temporary travel abroad unless he or she is in possession of a valid advance parole document.” 8 C.F.R. § 223.1(b). An RTD applicant "must submit the application while in the United States and in valid refugee status.” Id. § 223.2(b)(2)(i). However, a USCIS officer may “as a matter of discretion .. . accept and adjudicate an application for a refugee travel document from an alien who had previously been admitted to the United States as a refugee” and “who departed from the United States without having applied for such refugee travel document, provided the officer”:

(A) Is satisfied that the alien did not intend to abandon his or her refugee or asylum status at the time of departure from the United States;

(B) The alien did not engage in any activities while outside the United States that would be inconsistent with continued refugee or asylum status; and

(C) The alien has been outside the United States for less than 1 year since his or her last departure.

Id. § 223.2(b)(2)(h). The decision to approve or deny an RTD application is “an exercise of discretion,” Id. § 223.2(e), and the denial of an RTD application may be appealed, Id. § 223.2(g). RTDs are valid for one year, Id. § 223.3(a)(2), and may not be extended, Id. § 223.3(c). Even with an RTD. a refugee returning to the United States is to be “examined as to his or her admissibility under the” INA and referred for removal proceedings if deemed inadmissible. Id. § 223.3(d)(2).

On November 23, 1999, Bo Cooper, General Counsel of the INS, issued a memorandum on readmitting refugees without RTDs. Bo Cooper, Memorandum re: Readmission of Asylees and Refugees Without Travel Documents (Nov. 23, 1999) ("the Cooper Memorandum”), Mot. Prelim. Inj. Ex. C-l, ECF No. 25-4. The Cooper Memorandum states multiple times that the lack of an RTD renders a returning refugee inadmissible to the United States:

Refugees . . . who leave the United States without permission or with expired refugee travel documents are inadmissible under [8 U.S.C. § 1182(a)(7)] of the [INA],

* * *

A refugee . . . who fails to obtain [an RTD] cannot be admitted under the [INA], Therefore,... refugees who leave the United States without permission, or whose refugee travel document has expired, are rendered inadmissible by their action.

* * * The lack of a valid and unexpired refugee travel document renders a returning refugee . . . inadmissible, and he or she may not be readmitted to his prior status without it.

Cooper Mem. at 2, 5. The Cooper Memorandum also provides that when officers examine refugees with valid RTDs for admissibility, they “should be mindful of [8 U.S.C. § 1157(c)],” which “sets forth the grounds of inadmissibility under [8 U.S.C. § 1182] that are not applicable to refugees and those that may be waived in the case of refugees.” Id. at 3. It further notes that “it is often appropriate for INS to facilitate the return of refugees ... to the United States when they are stranded overseas due to the absence or expiration of a refugee travel document,” discusses the procedure for applying for a discretionary grant of an RTD outside of the United States or at a port of entry, and states that a refugee who fails to obtain an RTD within one year of departure from the United States or who allows an RTD to expire may be considered for “a discretionary grant of parole,” but notes that parole does not constitute readmission to the United States or to refugee status. Id. at 4-5. The Cooper Memorandum is required reading for USC1S International Operations Officers who will be charged with adjudicating parole requests.

II. Plaintiff Jane Doe

Plaintiff Jane Doe, proceeding under a pseudonym, is an Iraqi national residing in Iraq. Doe's father had worked in Iraq with United States government or military personnel as a translator, and in 2006. Doe's father was threatened and then murdered by Shiite militants for his work. Shiite militants later threatened to harm Doe due to her father's affiliation with the United States. In 2015, Doe, her husband, and her two children applied for admission to the United States as refugees. In 2016, USCIS granted the refugee applications of Doe and her children but deferred a decision as to Doe's husband. In June 2016, Doe decided to travel to the United States with her children while they awaited a final decision on her husband's refugee application.

Doe and her children did not remain in the United States for long. Between June and July 2016. Doe's husband received a death threat from Shiite militants-a letter with a bullet enclosed-resembling the threat issued to Doe's father before he was killed. Around that time, USCIS denied the refugee...