Las Ams. Immigrant Advocacy Ctr. v. Wolf

Las Ams. Immigrant Advocacy Ctr. v. Wolf

Opinion

 [*8]  MEMORANDUM OPINION

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, 2020 U.S. Dist. LEXIS 203294, 2020 WL 6392824, at *3 (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  [*9]  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 [**4]  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, 2020 U.S. Dist. LEXIS 203294, 2020 WL 6392824, at *4-5 (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 [**5]  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 [**6]  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.

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