Complaint for Declaratory and Injunctive Relief 20 U.S
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Case 3:20-cv-09253 Document 1 Filed 12/21/20 Page 1 of 108 1 Naomi A. Igra, SBN 269095 Sabrineh Ardalan (pro hac vice forthcoming) [email protected] [email protected] 2 S. Patrick Kelly, SBN 275031 Sameer Ahmed, SBN 319609 [email protected] [email protected] 3 SIDLEY AUSTIN LLP Zachary Albun (pro hac vice forthcoming) 555 California Street, Suite 2000 [email protected] 4 San Francisco, CA 94104 Deborah Anker (pro hac vice forthcoming) Telephone: +1 415 772 1200 [email protected] 5 Facsimile: +1 415 772 7400 Nancy Kelly (pro hac vice forthcoming) Facsimile: +1 415 772 7400 [email protected] 6 John Willshire Carrera (pro hac vice forthcoming) Douglas A. Axel, SBN 173814 [email protected] 7 [email protected] HARVARD LAW SCHOOL SIDLEY AUSTIN LLP HARVARD IMMIGRATION AND REFUGEE 8 555 West Fifth Street CLINICAL PROGRAM Los Angeles, CA 90013 6 Everett Street, WCC 3103 9 Telephone: +1 213 896 6000 Cambridge, MA 02138 Facsimile: +1 213 896 6600 Telephone: +1 617 384 7504 10 Facsimile: +1 617 495 8595 Attorneys for Plaintiff 11 Additional Counsel on next page 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN FRANCISCO 15 PANGEA LEGAL SERVICES; DOLORES Case No. 20-cv- _______________ STREET COMMUNITY SERVICES, INC.; 16 CATHOLIC LEGAL IMMIGRATION Hon. ___________________ NETWORK, INC.; and CAPITAL AREA 17 IMMIGRANTS’ RIGHTS COALITION, 18 Plaintiffs, 19 v. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 20 U.S. DEPARTMENT OF HOMELAND SECURITY; ADMINISTRATIVE PROCEDURE ACT 21 CHAD F. WOLF, under the title of Acting CASE Secretary of Homeland Security; 22 KENNETH T. CUCCINELLI, under the title of Senior Official Performing the Duties of the 23 Deputy Secretary for the Department of Homeland Security; 24 U.S. CITIZENSHIP AND IMMIGRATION SERVICES; 25 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; 26 TONY H. PHAM, under the title of Senior Official Performing the Duties of the Director of 27 U.S. Immigration and Customs Enforcement; U.S. CUSTOMS AND BORDER PROTECTION; 28 COMPLAINT Case 3:20-cv-09253 Document 1 Filed 12/21/20 Page 2 of 108 1 MARK A. MORGAN, under the title of Senior Official Performing the Duties of the 2 Commissioner of U.S. Customs and Border Protection; 3 U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, under the title of U.S. 4 Attorney General; EXECUTIVE OFFICE FOR IMMIGRATION 5 REVIEW; and JAMES MCHENRY, under the title of Director 6 of the Executive Office for Immigration Review, 7 Defendants. 8 9 Ben Schwarz (pro hac vice forthcoming) Jamie Crook, SBN 245757 [email protected] [email protected] 10 SIDLEY AUSTIN LLP Annie Daher, SBN 294266 60 State Street, 36th Floor [email protected] 11 Boston, MA 02109 Blaine Bookey, SBN 267596 Telephone: +1 617 223 0300 [email protected] 12 Facsimile: +1 617 223 0301 Karen Musalo, SBN 106882 [email protected] 13 Brian C. Earl (pro hac vice forthcoming) CENTER FOR GENDER & REFUGEE [email protected] STUDIES 14 SIDLEY AUSTIN LLP UC HASTINGS COLLEGE OF THE LAW 787 Seventh Avenue 200 McAllister Street 15 New York, NY 10019 San Francisco, CA 94102 Telephone: +1 212 839 5300 Telephone: +1 415 565 4877 16 Facsimile: +1 212 839 5599 Facsimile: +1 415 581 8824 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT Case 3:20-cv-09253 Document 1 Filed 12/21/20 Page 3 of 108 1 INTRODUCTION 2 1. This action challenges a sweeping final rule that transforms the asylum process and 3 effectively prevents most applicants from establishing claims for asylum, withholding of removal, 4 and protection under the Convention Against Torture (“CAT”), Procedure for Asylum and 5 Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 6 2020) (the “Omnibus Asylum Rule”1 or “the Rule”).2 If allowed to go into effect on January 11, 7 2021, the Rule will devastate the asylum system, plaintiff organizations, and the vulnerable 8 populations they serve. 9 2. The Department of Homeland Security (“DHS”) and the Department of Justice 10 (“DOJ”) (together, “Agencies” or “Defendants”), rushed to promulgate the Rule in the waning hours 11 of the Trump Administration. Defendants gave the public only 30 days to comment on a Rule that 12 effects multiple wide-ranging changes to the asylum system and upends asylum law as it has 13 developed over the last forty years. The Rule flies in the face of decisions by immigration 14 adjudicators and Article III courts requiring asylum rules to be consistent with the humanitarian 15 purpose of the Refugee Act of 1980, which incorporated the 1967 Protocol to the Refugee 16 Convention into U.S. law. The Refugee Act established an asylum system consistent with 17 international obligations to prevent refoulement—the return of refugees to persecution—and to 18 provide a pathway for refugees to seek permanent residence and family reunification in the United 19 States. At its core, the Rule is contrary to law because it so narrows the availability of asylum and 20 related protections that the United States will cease to provide humanitarian protections required 21 under the Refugee Act and under the CAT. 22 3. The Rule effects numerous substantive and procedural changes to the asylum system 23 that violate the Administrative Procedure Act (“APA”) because they are contrary to law, in excess of 24 the Agencies’ authority, arbitrary and capricious, and violate the United States’ treaty obligations 25 and the Constitution. 26 1 The Rule affects withholding of removal and protection under the CAT as well as asylum, but for ease of reference, Plaintiffs’ references to “asylum” may include all three forms of protection. 27 2 Plaintiffs also challenge the implementation of the Rule through a related policy memorandum, and revisions to the Form I-589 Application for Asylum and for Withholding of Removal and the 28 instructions for its use. See ¶¶ 52–53, infra. 1 COMPLAINT Case 3:20-cv-09253 Document 1 Filed 12/21/20 Page 4 of 108 1 4. First, the Rule establishes new de facto bars to asylum eligibility by requiring that 2 adjudicators “will not” exercise discretion in favor of an asylum applicant if any of nine factors 3 apply, except in “extraordinary circumstances.” 85 Fed. Reg. at 80282. The Rule also adds three 4 “significant adverse discretionary factors,” including whether the asylum seeker entered the United 5 States unlawfully. Id. These factors severely restrict the adjudicator’s ability to consider the totality 6 of circumstances on a case-by-case basis, as decades of asylum law requires.3 The Rule thus flouts 7 federal court decisions holding that Defendants’ similar recent attempts to restrict asylum eligibility 8 are unlawful, including a decision granting a preliminary injunction to these plaintiffs in Pangea 9 Legal Servs. v. DHS, 20-CV-07721-SI, 2020 WL 6802474 (N.D. Cal. Nov. 19, 2020) (“Pangea I”). 10 5. The Rule’s de facto bars depart dramatically from the principle that “[t]he danger of 11 persecution should generally outweigh all but the most egregious of adverse factors.” EBSC II, 950 12 F.3d at 1274 (quoting Matter of Pula, 19 I. & N. Dec. at 474). Absent extraordinary circumstances, 13 the Rule would deny asylum to an applicant who has already proven that she qualifies for asylum if, 14 for example, she: 15 • failed to file a tax return, regardless of the reason for the failure; 16 • failed to report any income that would generate tax liability; 17 • had any outstanding tax obligation, regardless of the amount in arrears; 18 • spent more than 14 days in any one country while en route to the United States; 19 • was unlawfully in the United States for more than a year cumulatively, even if changed 20 circumstances or extraordinary circumstances justify the delay in applying for asylum; 21 • withdrew or abandoned a previous asylum application; or 22 • missed her asylum interview, even if it was for good cause, unless she can demonstrate 23 by a preponderance of evidence the existence of exceptional circumstances.4 24 25 26 3 See E. Bay Sanctuary Covenant v. Barr, 950 F.3d 1242, 1274 (9th Cir. 2020) (“EBSC II”) (asylum review requires a “totality of the circumstances” approach) (quoting Matter of Pula, 19 I. & N. Dec. 27 467, 473–74 (BIA 1987), superseded by statute on other grounds by Godoy v. Holder, 434 Fed. App’x 634 (9th Cir. 2011)). 28 4 85 Fed. Reg. at 80282. 2 COMPLAINT Case 3:20-cv-09253 Document 1 Filed 12/21/20 Page 5 of 108 1 6. Courts have already rejected similar bars as contrary to the Refugee Act. For 2 example, the Rule’s de facto bar based on a refugee’s prior fourteen-day sojourn in another country 3 is unlawful under East Bay Sanctuary Covenant v. Barr, which struck down a similar bar based on 4 the “countries through which the alien transited en route to the United States.” 964 F.3d 832, 847 5 (9th Cir. 2020) (“EBSC III”). And by the same reasoning the Ninth Circuit applied in that case, all of 6 the Rule’s de facto bars are contrary to law because they effectively preclude asylum for those with 7 bona fide claims, and could return refugees to persecution for trivial misconduct, contrary to the text 8 and purpose of the Refugee Act. 9 7. Second, the Rule unlawfully expands the “firm resettlement” bar, 85 Fed. Reg. at 10 80282, which precludes asylum for those “firmly resettled in another country prior to arriving in the 11 United States.” 8 U.S.C.