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East Bay Sanctuary Covenant v. Barr

United States District Court, N.D. California

July 24, 2019

EAST BAY SANCTUARY COVENANT, et al., Plaintiffs,
v.
WILLIAM BARR, et al., Defendants.

          ORDER GRANTING PRELIMINARY INJUNCTION RE: ECF NO. 3

          JON S. TIGAR, UNITED STATES DISTRICT JUDGE

         On July 16, 2019, the Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”) published a joint interim final rule, entitled “Asylum Eligibility and Procedural Modifications” (the “Rule” or the “third country transit bar”). The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country.

         Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress. Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress. This new Rule is likely invalid because it is inconsistent with the existing asylum laws.

         First, Congress has already created a bar to asylum for an applicant who may be removed to a “safe third country.” The safe third country bar requires a third country's formal agreement to accept refugees and process their claims pursuant to safeguards negotiated with the United States. As part of that process, the United States must determine that (1) the alien's life or freedom would not be threatened on account of a protected characteristic if removed to that third country and (2) the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection there. Thus, Congress has ensured that the United States will remove an asylum applicant to a third country only if that country would be safe for the applicant and the country provides equivalent asylum protections to those offered here. The Rule provides none of these protections.

         Congress has also enacted a firm resettlement bar, pursuant to which asylum is unavailable to an alien who was firmly resettled in another country prior to arriving in the United States. Before this bar can be applied, however, the government must make individualized determinations that an asylum applicant received an offer of some type of permanent resettlement in a country where the applicant's stay and ties are not too tenuous, or the conditions of his or her residence too restricted, for him or her to be firmly resettled. Again, the Rule ignores these requirements.

         Additionally, there are serious questions about the Rule's validity given the government's failure to comply with the Administrative Procedure Act's notice-and-comment rules. The government made the Rule effective without giving persons affected by the Rule and the general public the chance to submit their views before the Rule took effect. The government contends that it did not need to comply with those procedures because the Rule involves the “foreign affairs” of the United States. But this exception requires the government to show that allowing public comment will provoke “definitely undesirable international consequences, ” which the government has not done. Indeed, the Rule explicitly invites such comment even while it goes into effect. Thus, the government will still suffer the ill consequences of public comment - which, to be clear, are entirely speculative - but without gaining the benefit to good rule-making that public comment would provide.

         Next, the Rule is likely invalid because the government's decision to promulgate it was arbitrary and capricious. The Rule purports to offer asylum seekers a safe and effective alternative via other countries' refugee processes. As the Rule expressly contemplates, this alternative forum will most often be Mexico. But the government's own administrative record contains no evidence that the Mexican asylum regime provides a full and fair procedure for determining asylum claims. Rather, it affirmatively demonstrates that asylum claimants removed to Mexico are likely to be (1) exposed to violence and abuse from third parties and government officials; (2) denied their rights under Mexican and international law, and (3) wrongly returned to countries from which they fled persecution. The Rule also ignores the special difficulties faced by unaccompanied minors. Congress recognized these difficulties by exempting “unaccompanied alien child[ren]” from the safe third country bar. The Rule, which applies to unaccompanied minors just as it does to adults, casts these protections to one side.

         Lastly, the balance of equities and the public interest tip strongly in favor of injunctive relief. While the public has a weighty interest in the efficient administration of the immigration laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its representatives are not imperiled by executive fiat. Also, an injunction in this case would not radically change the law - or change it at all. It would merely restore the law to what it has been for many years, up until a few days ago. Finally, an injunction would vindicate the public's interest - which our existing immigration laws clearly articulate - in ensuring that we do not deliver aliens into the hands of their persecutors.

         For these reasons, and the additional reasons set forth below, the Court will enjoin the Rule from taking effect.

         I. BACKGROUND

         A. Asylum Framework

         1. Overview

         In a related case, the Ninth Circuit has extensively summarized the general framework governing U.S. both immigration law generally and asylum in particular. See E. Bay Sanctuary Covenant v. Trump (E. Bay II), 909 F.3d 1219, 1231-36 (9th Cir. 2018).[1] The Court therefore reviews the relevant law more briefly, focusing on the provisions most relevant here.

         The current iteration of U.S. asylum law stems from the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), which Congress enacted in large part “to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577 [(‘1967 Protocol')], to which the United States acceded in 1968.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987). The 1967 Protocol, in turn, incorporates articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (“1951 Convention”). See 1967 Protocol, art. I. Although these international agreements do not independently carry the force of law domestically, see I.N.S. v. Stevic, 467 U.S. 407, 428 n.22 (1984), they provide relevant guidance for interpreting the asylum statutes, see Cardoza-Fonseca, 480 U.S. at 439-40.

         In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”). Under IIRIRA, an immigrant's ability to lawfully reside in the United States ordinarily turns on whether the immigrant has been lawfully “admitted, ” meaning that there has been a “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A); see also E. Bay II, 909 F.3d at 1232 (explaining that Congress has “established ‘admission' as the key concept in immigration law”). U.S. immigration law sets forth numerous reasons why aliens may be “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a).

         But “[a]sylum is a concept distinct from admission.” E. Bay II, 909 F.3d at 1233. Asylum “permits the executive branch - in its discretion - to provide protection to aliens who meet the international definition of refugees.” Id. Accordingly, “the decision to grant asylum relief is ultimately left to the Attorney General's discretion, ” see I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999); Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011), subject to the court of appeals' review for whether the Attorney General's decision was “manifestly contrary to the law and an abuse of discretion, ” 8 U.S.C. § 1252(b)(4)(D).

         The Immigration and Nationality Act (“INA”) sets forth the general rule regarding eligibility for asylum:

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.

8 U.S.C. § 1158(a)(1). Notwithstanding the grant of discretion to the Attorney General, Congress has established certain categorical bars to asylum. These exceptions to the general rule apply to aliens who (1) may be removed to a safe third country with which the United States has a qualifying agreement, (2) did not apply within one year of arriving in the United States, or (3) have previously been denied asylum. Id. § 1158(a)(2)(B)-(C).[2] Neither the safe third country exception nor the one-year rule apply to “an unaccompanied alien child.” Id. § 1158(a)(2)(E).[3]

         Congress also mandated that certain categories of aliens are ineligible for asylum. Id. § 1158(b)(2)(A)(i)-(vi). Most relevant here, an alien is ineligible for asylum if she “was firmly resettled in another country prior to arriving in the United States.” Id. § 1158(b)(2)(A)(vi). Congress further empowered the Attorney General to “by regulation establish additional limitations and conditions, consistent with [§ 1158], under which an alien shall be ineligible for asylum.” Id. § 1158(b)(2)(C).

         In addition to asylum, two other forms of relief from removal are generally available under U.S. immigration law. With some exceptions not relevant here, an alien is entitled to withholding of removal if “the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1231(b)(3)(A). However, “[t]he bar for withholding of removal is higher; an applicant must demonstrate that it is more likely than not that he would be subject to persecution on one of the [protected] grounds.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).

         An alien may also seek protection under the Convention Against Torture (“CAT”), which requires the alien to prove that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal, ” 8 C.F.R. § 1208.16(c)(2), and that the torture would be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, ” id. § 1208.18(a)(1).

         These forms of relief differ in meaningful respects. While an asylum grant is ultimately discretionary, withholding of removal or CAT protection are mandatory if the applicant makes the requisite showing of fear of persecution or torture. See Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005). At the same time, an applicant must meet a higher threshold to be eligible for the latter two forms of relief. See Ling Huang, 744 F.3d at 1152; Nuru, 404 F.3d at 1216. Moreover, “[u]nlike an application for asylum, . . . a grant of an alien's application for withholding is not a basis for adjustment to legal permanent resident status, family members are not granted derivative status, and [the relief] only prohibits removal of the petitioner to the country of risk, but does not prohibit removal to a non-risk country.” Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) (second alteration in original) (citation omitted); see also E. Bay II, 909 F.3d at 1236 (describing additional asylum benefits).

         2. Procedures for Asylum Determinations

         Asylum claims may be raised in three different contexts. First, aliens present in the United States may affirmatively apply for asylum, regardless of their immigration status. See 8 U.S.C. § 1158(a)(1); Dep't of Homeland Sec. & Dep't of Justice, Instructions for Form I-589: Application for Asylum and Withholding of Removal, at 2 (rev. Apr. 9, 2019), https://www.uscis.gov/system/files force/files/form/i-589instr.pdf. Affirmative applications are processed by U.S. Citizenship and Immigration Services (“USCIS”). 8 C.F.R. § 208.2(a). A USCIS asylum officer interviews each applicant and renders a decision. Id. §§ 208.9, 208.19. The officer may grant asylum based on that interview. Id. § 208.14(b). If, however, the officer determines that the applicant is not entitled to asylum and that the applicant is otherwise “removable” - i.e., lacks lawful immigration status - the officer is generally required to refer the applicant to immigration court for the appropriate removal proceeding before an immigration judge (“IJ”). Id. § 208.14(c).

         Second, an asylum claim may be raised as a defense in removal proceedings conducted pursuant to 8 U.S.C. § 1229(a), sometimes referred to as “full removal proceedings.” Matter of M-S-, 27 I. & N. Dec. 509, 510 (BIA 2019). An alien in full removal proceedings may renew a previously denied affirmative asylum application or file one with the immigration judge in the first instance. See 8 C.F.R. § 1208.4(b)(3)(iii). If the application is denied, the immigration judge must also consider the alien's eligibility for withholding of removal and, if requested by the alien or suggested by the record, protection under CAT. Id. § 1208.3(c)(1). An alien who is denied relief in these proceedings has a number of options for obtaining additional review. The alien may file a motion to reconsider or reopen proceedings with the IJ, 8 U.S.C. § 1229(a)(6)-(7), or appeal the decision to the Board of Immigration Appeals (“BIA”), 8 C.F.R. § 1003.1(b)(3). If the BIA denies relief, the alien may likewise file a motion to reconsider or reopen with the BIA, 8 C.F.R. § 1003.2(b)-(c), or petition for review of the BIA's adverse decision with the relevant circuit court of appeals, 8 U.S.C. § 1252(d).

         Finally, asylum claims may be raised in expedited removal proceedings. By statute, these proceedings apply “[w]hen a U.S. Customs and Border Protection (‘CBP') officer determines that a noncitizen arriving at a port of entry is inadmissible for misrepresenting a material fact or lacking necessary documentation.” Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097, 1100 (9th Cir. 2019) (citing 8 U.S.C. §§ 1182(a)(6)(C), 1182(a)(7), 1225(b)(1)(A)(i)). As a further exercise of its regulatory authority, 8 U.S.C. § 1225(b)(1)(A)(iii), DHS had, at the time this suit was filed, “also applie[d] expedited removal to inadmissible noncitizens arrested within 100 miles of the border and unable to prove that they have been in the United States for more than the prior two weeks.” Thuraissigiam, 917 F.3d at 1100. On July 23, 2019, however, DHS published a notice that it was expanding the scope of expedited removal to apply “to aliens encountered anywhere in the United States for up to two years after the alien arrived in the United States.” Designating Aliens for Expedited Removal, 84 Fed. Reg. 35, 409, 35, 409 (July 23, 2019); see also 8 U.S.C. § 1225(b)(1)(A)(iii). Aliens determined to fall within those categories shall be “removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under [8 U.S.C. § 1158] or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i).

         If a noncitizen expresses an intent to seek asylum, the applicant is referred to an asylum officer for a credible fear interview to determine whether the applicant “has a credible fear of persecution.” Id. § 1225(b)(1)(B)(v). To have a credible fear, “there [must be] a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.” Id. Applicants who demonstrate a credible fear of a basis for asylum, withholding of removal, or protection under CAT, are generally placed in full removal proceedings for further adjudication of their claims. Id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(e)(2)-(3), (f). By contrast, if the officer concludes that no credible fear exists, applicants are “removed from the United States without further hearing or review, ” except for an expedited review by an IJ, which is ordinarily concluded within 24 hours and must be concluded within 7 days. 8 U.S.C. § 1225(b)(1)(B)(iii)(I), (III); see also 8 C.F.R. § 1208.30(g).

         B. The Challenged Rule

         On July 16, 2019, the DOJ and the DHS published a joint interim final rule, entitled “Asylum Eligibility and Procedural Modifications.” 84 Fed. Reg. 33, 829 (July 16, 2019) (codified at 8 C.F.R. pts. 208, 1003, 1208). In general terms, the Rule imposes “a new mandatory bar for asylum eligibility for aliens who enter or attempt to enter the United States across the southern border after failing to apply for protection from persecution or torture in at least one third country through which they transited en route to the United States.” Id. at 33, 830.

         Under the Rule, “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.” 8 C.F.R. § 208.13(c)(4). The Rule provides three exceptions. First, the Rule does not apply if the alien “applied for protection from persecution or torture in at least one country . . . 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.” Id. § 208.13(c)(4)(i). Second, the Rule exempts “victim[s] of a severe form of trafficking in persons, ” as defined in 8 C.F.R. § 214.11. 8 C.F.R. § 208.13(c)(4)(ii)). Finally, the Rule does not apply if “[t]he only countries through which the alien transited en route to the United States were, at the time of the transit, not parties to [the 1951 Convention, the 1967 Protocol, or CAT].” Id. § 208.13(c)(4)(iii). In sum, except for qualifying trafficking victims, the Rule requires any alien transiting through a third country that is a party to one of the above agreements to apply for protection and receive a final denial prior to entering through the southern border and seeking asylum relief in the United States.

         The Rule also sets forth special procedures for how the mandatory bar applies in expedited removal proceedings. In general, “if an alien is able to establish a credible fear of persecution but appears to be subject to one or more of the mandatory [statutory] bars to applying for, or being granted, asylum . . . [DHS] shall nonetheless place the alien in proceedings under [8 U.S.C. § 1229a] for full consideration of the alien's claim.” 8 C.F.R. § 208.30(e)(5)(i). An alien subject to the Rule's third country bar, however, is automatically determined to lack a credible fear of persecution. Id. § 208.30(e)(5)(iii). The asylum officer must then consider whether the alien demonstrates a reasonable fear of persecution or torture (as necessary to support a claim for withholding of removal or CAT protection). Id. The alien may then seek review from an IJ, on the expedited timeline described above, of the determination that the Rule's mandatory bar applies and that the alien lacks a reasonable fear of persecution or torture. Id. § 1208.30(g)(1)(ii).

         In promulgating the Rule, the agencies invoked their authority to establish conditions consistent with 8 U.S.C. § 1158. 84 Fed. Reg. at 33, 834. They also claimed exemption from the Administrative Procedure Act's (“APA”) notice-and-comment requirements. See 5 U.S.C. § 553(b)-(d). As grounds for an exemption, they invoked § 553(a)(1)'s “military or foreign affairs function” exemption and § 553(b)(B)'s “good cause” exemption. 84 Fed. Reg. at 33, 840-42. They also invoked § 553(d)(3)'s “good cause” waiver of the thirty-day grace period that is usually required before a newly promulgated rule goes into effect. Id. at 33, 841. The Court discusses the proffered reasons for both the Rule and the waiver of § 553 requirements as relevant below.

         C. Procedural History

         Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center (the “Organizations”) filed this lawsuit on July 16, 2019, the day the Rule went into effect. Complaint (“Compl.”), ECF No. 1.[4] The Organizations filed a motion for temporary restraining order (“TRO”) the following day. ECF No. 3. The Court set a scheduling conference for the morning of July 18, 2019. ECF No. 13, 15.[5] At the conference, the government suggested that the parties proceed directly to a hearing on a preliminary injunction on the administrative record but represented that it would likely not be able to produce the record until July 23, 2019. After considering the parties' positions, the Court ordered the government to file its opposition to the TRO on July 19, 2019, and the Organizations to file a reply on July 21, 2019. ECF No. 18 at 1. The Court further ordered the government to file the administrative record by July 23, 2019, stating that the Court “contemplates that the administrative record may be useful in subsequent proceedings but will not be the subject of argument at the July 24 hearing.” Id. at 1-2.

         The government filed the administrative record simultaneously with its opposition to the TRO on July 19, 2019, ECF No. 29, citing extensively to the record throughout its opposition, ECF No. 28. The Court then issued a notice to the parties that it was considering converting the motion to a preliminary injunction, given that both sides would have an opportunity to address the administrative record in their papers. ECF No. 30. The Organizations' reply did, in fact, address the record and the government's citations to it. ECF No. 31. At the hearing, both parties agreed that it would be appropriate to convert the motion to a preliminary injunction. The Court therefore does so. See ECF No. 30.

         The Organizations' motion relies on the three claims advanced in their complaint. First, they claim that the Rule is substantively invalid because it is inconsistent with the statutes governing asylum. Compl. ¶¶ 137-143. Second, they claim that the Rule is procedurally invalid because the agencies violated the APA's notice-and-comment requirements, 5 U.S.C. § 553(b)-(d). Compl. ¶¶ 144-147. Finally, they argue that the Rule is procedurally invalid because the agencies failed to articulate a reasoned explanation for their decision. Id. ¶¶ 148-150.

         II. MOTION FOR PRELIMINARY INJUNCTION

         A. Legal Standard

         The Court applies a familiar four-factor test on a motion for a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839-40 & n. 7 (9th Cir. 2001). A plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

         To grant preliminary injunctive relief, a court must find that “a certain threshold showing [has been] made on each factor.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per curiam). Assuming that this threshold has been met, “‘serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

         B. Likelihood of Success on the Merits

         1. Standing

         The government challenges the Organizations' Article III and statutory standing, but only in a footnote. ECF No. 28 at 16 n.1. The government concedes that its positions are generally irreconcilable with the Ninth Circuit's and this Court's rulings in a prior case brought by the Organizations, challenging a different regulation imposing a mandatory bar on asylum eligibility (the “illegal entry bar”). Id.; see generally E. Bay Sanctuary Covenant v. Trump, No. 18-cv-06810-JST (N.D. Cal.). While the Court considers these arguments, it does so correspondingly briefly. Cf. Holley v. Gilead Scis., Inc., 379 F.Supp.3d 809, 834 (N.D. Cal. 2019) (“‘Arguments raised only in footnotes, or only on reply, are generally deemed waived' and need not be considered.” (quoting Estate of Saunders v. Comm'r, 745 F.3d 953, 962 n.8 (9th Cir. 2014)).

         First, the Organizations have adequately demonstrated injury-in-fact to support Article III standing. The Ninth Circuit has repeatedly recognized that “‘a diversion-of-resources injury is sufficient to establish organizational standing' for purposes of Article III, if the organization shows that, independent of the litigation, the challenged ‘policy frustrates the organization's goals and requires the organization to expend resources in representing clients they otherwise would spend in other ways.'” E. Bay II, 909 F.3d at 1241 (first quoting Nat'l Council of La Raza v. Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015); then quoting Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en banc)). As in East Bay II, the Organizations have “offered uncontradicted evidence that enforcement of the Rule has required, and will continue to require, a diversion of resources, independent of expenses for this litigation, from their other initiatives.” Id. at 1242; see also ECF No. 3-2 ¶¶ 14-15, 17, 19; ECF No. 3-3 ¶¶ 12-17, 19; ECF No. 3-4 ¶¶ 16-19; ECF No. 3-5 ¶¶ 10-14. The Ninth Circuit likewise recognized that the Organizations “can demonstrate organizational standing by showing that the Rule will cause them to lose a substantial amount of funding.” E. Bay II, 909 F.3d at 1243. For similar reasons, three of the four Organizations have shown that the majority of the clients they serve would be rendered “categorically ineligible for asylum, ” and that they “would lose a significant amount of business and suffer a concomitant loss of funding” as a result. Id.; see also ECF No. 3-2 ¶¶ 15-16, ECF No. 3-3 ¶ 18; ECF No. 3-5 ¶¶ 6-7.

         Second, the Organizations' interests are “arguably within the zone of interests to be protected or regulated by the statute.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Here, the Ninth Circuit has already determined that the Organizations' “interests fall within the zone of interests protected by the INA, ” and these same “asylum provisions” in particular. E. Bay II, 909 F.3d at 1244.[6]

         Accordingly, the Organizations have standing to prosecute this lawsuit.

         2. Substantive Validity: Chevron

         a. Legal Standard

         The Organizations challenge “the validity of the [Rule] under both Chevron and State Farm, which ‘provide for related but distinct standards for reviewing rules promulgated by administrative agencies.'” Altera Corp. & Subsidiaries v. Comm'r of Internal Revenue, 926 F.3d 1061, 1075 (9th Cir. 2019) (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. Envtl. Prot. Agency, 846 F.3d 492, 521 (2d Cir. 2017)). “State Farm review for arbitrariness focuses on the rationality of an agency's decisionmaking process - i.e., ‘whether a rule is procedurally defective as a result of flaws in the agency's decisionmaking process.'” 33 Charles Alan Wright, Charles H. Koch & Richard Murphy, Federal Practice and Procedure, § 8435 at 538 (2d ed. 2018) (footnotes omitted) (quoting Catskill Mountains, 846 F.3d at 521). By contrast, the Chevron analysis considers “whether the conclusion reached as a result of that process - an agency's interpretation of a statutory provision it administers - is reasonable.” Altera Corp., 926 F.3d at 1075 (quoting Catskills Mountains, 846 F.3d at 521). Thus, where a plaintiff alleges that, as a result of an erroneous legal interpretation, the agency's action was “not in accordance with the law, ” 5 U.S.C. § 706(2)(A), or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, ” id. § 706(2)(C), courts apply the Chevron framework. See Nw. Envtl. Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).[7]

         Under Chevron, the Court first considers “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.” Campos-Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018) (quoting Chevron, 467 U.S. at 842). The Court “starts with the plain statutory text and, ‘when deciding whether the language is plain, . . . must read the words in their context and with a view to their place in the overall statutory scheme.'” Altera Corp., 926 F.3d at 1075 (quoting King v. Burwell, 135 S.Ct. 2480, 2489 (2015)). Consideration of “the legislative history, the statutory structure, and ‘other traditional aids of statutory interpretation'” supplements this plain text analysis. Id. (quoting Middlesex Cty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 13 (1981)). In recent years, the Supreme Court has cautioned that courts may not “engage[] in cursory analysis” of these statutory questions. Pereira v. Sessions, 138 S.Ct. 2105, 2120 (2018) (Kennedy, J., concurring) (observing that “reflexive deference” to the agency under Chevron “suggests an abdication of the Judiciary's proper role in interpreting federal statutes”). Rather, as it emphasized in an analogous context, “only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is ‘more [one] of policy than of law.'” Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019) (alteration in original) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991)).

         If, after exhausting those tools, the Court concludes the rule or regulation is ambiguous, it turns to Chevron step two. Id. There, the Court determines whether the agency's construction is “arbitrary, capricious, or manifestly contrary to the statute, ” again taking into account “the statute's text, structure and purpose.” Altera Corp., 926 F.3d at 1075 (first quoting Chevron, 467 U.S. at 843; then quoting Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007)). “Thus, an agency interpretation that is ‘inconsisten[t] with the design and structure of the statute as a whole,' does not merit deference.” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (alteration in original) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)). Ultimately, the regulation “fails if it is ‘unmoored from the purposes and concerns' of the underlying statutory regime.” Altera Corp., 926 F.3d at 1076 (quoting Judulang v. Holder, 565 U.S. 42, 64 (2011)); see also S.J. Amoroso Const. Co. v. United States, 981 F.2d 1073, 1075 (9th Cir. 1992) (“If a regulation is fundamentally at odds with the statute, it will not be upheld simply because it is technically consistent with the statute.”).

         b. Statutory Framework

         The Organizations argue that the Rule conflicts with the two statutory provisions that currently disqualify asylum applicants based on third countries: (1) the firm resettlement bar and (2) the safe third country bar. These provisions reflect “[t]he core regulatory purpose of asylum, ” which “is not to provide [applicants] with a broader choice of safe homelands, but rather, to protect [refugees] with nowhere else to turn.” Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 2013) (quoting Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011)). To determine whether the Rule is consistent with these statutory bars, the Court reviews their history in greater depth.

         i. Firm Resettlement Bar

         The concept of firm resettlement has a long history in U.S. immigration law. It was first introduced in a 1948 statute, although the language was later dropped in 1957 legislation and subsequent acts. Rosenberg v. Yee Chien Woo, 402 U.S. 49, 53 (1971). Interpreting those later statutes, which limited asylum to those fleeing persecution, the Supreme Court concluded that they nonetheless required the government to take the “the ‘resettlement' concept . . . into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution.” Id. at 56. “[T]he correct legal standard, ” the Rosenberg Court explained, was whether the applicant's presence in the United States was “reasonably proximate to the flight and not . . . following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.” Id. at 57.

         In 1980, Congress passed the Refugee Act “to bring the INA into conformity with the United States's obligations under the Convention and Protocol.” E. Bay II, 909 F.3d at 1233. Congress barred from asylum any alien “convicted of an aggravated felony, ” 8 U.S.C. § 1158(d) (1980), but did not impose other categorical restrictions. The agency then charged with administering asylum, the Immigration and Naturalization Service (“INS”) adopted additional regulatory bars, including one that required INS district directors to deny asylum to an applicant who had “been firmly resettled in a foreign country.” 8 C.F.R. § 208.8(f)(1)(ii) (1981). The regulations went on to define “firm resettlement” in greater detail.[8] In addition, those regulations imposed a discretionary bar, providing that a district director could deny asylum if “there is an outstanding offer of resettlement by a third nation where the applicant will not be subject to persecution and the applicant's resettlement in a third nation is in the public interest.” Id. § 208.8(f)(2).

         Because this regulatory bar applied only to district directors, the BIA subsequently concluded that it did “not prohibit an immigration judge or the Board from granting asylum to an alien deemed to have been firmly resettled.” Matter of Soleimani, 20 I. & N. Dec. 99, 104 (BIA 1989). Instead, it explained, “firm resettlement is a factor to be evaluated in determining whether asylum should be granted as a matter of discretion under the standards set forth in Matter of Pula, 19 I & N Dec. 467 (BIA 1987).” Matter of Soleimani, 20 I. & N. Dec. at 103. In Matter of Pula, the BIA had rejected a rule that accorded illegal entry so much weight that its “practical effect [was] to deny relief in virtually all cases, ” instructing instead that “the totality of the circumstances and actions of an alien in his flight from the country where he fears persecution should be examined in determining whether a favorable exercise of discretion is warranted.” 19 I. & N. Dec. at 473. And although the BIA included as relevant factors “whether the alien passed through any other countries or arrived in the United States directly from his country, whether orderly refugee procedures were in fact available ...


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