United States District Court, N.D. California
ORDER GRANTING PRELIMINARY INJUNCTION RE: ECF NO.
TIGAR, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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
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
these reasons, and the additional reasons set forth below,
the Court will enjoin the Rule from taking effect.
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). The Court therefore reviews the relevant
law more briefly, focusing on the provisions most relevant
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.
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).
“[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. §
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
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). Neither the safe
third country exception nor the one-year rule apply to
“an unaccompanied alien child.” Id.
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. §
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).
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).
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
Procedures for Asylum Determinations
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),
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).
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).
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).
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).
The Challenged Rule
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.
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.
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.
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.
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. 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,
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.
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.
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.
MOTION FOR PRELIMINARY INJUNCTION
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.
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.
Likelihood of Success on the Merits
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)).
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.
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
the Organizations have standing to prosecute this lawsuit.
Substantive Validity: Chevron
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
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
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.”).
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.
Firm Resettlement Bar
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.
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. 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).
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 ...