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In the United States District Court for the District of Columbia Case 1:21-cv-00124 Document 1 Filed 01/14/21 Page 1 of 133 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TAHIRIH JUSTICE CENTER ) 6400 Arlington Blvd., Suite 400 ) Falls Church, VA 22042; ) ) and ) ) AYUDA, INC. ) 6925 B Willow Street NW ) Washington, DC 20012; ) ) Plaintiffs, ) ) v. ) ) PETER GAYNOR, purported Acting Secretary of ) Homeland Security, in his official capacity, ) 2707 Martin Luther King Jr. Avenue SE ) Civil Action No. _________________ Washington, DC 20528; ) ) CHAD MIZELLE, purported Senior Official ) COMPLAINT Performing the Duties of the General Counsel for ) (Violation of Immigration and the Department of Homeland Security, in his ) Nationality Act, Administrative official capacity, ) Procedure Act, Convention Against 2707 Martin Luther King Jr. Avenue SE ) Torture, United States Constitution, Washington, DC 20528; ) Homeland Security Act, and Federal ) Vacancies Reform Act) U.S. DEPARTMENT OF HOMELAND ) SECURITY ) 2707 Martin Luther King Jr. Avenue SE ) Washington, DC 20528; ) ) U.S. CITIZENSHIP AND IMMIGRATION ) SERVICES ) 20 Massachusetts Avenue, NW, Room 4210 ) Washington, DC 20529; ) ) JEFFREY ROSEN, Acting Attorney General of ) the United States, in his official capacity, ) 950 Pennsylvania Avenue, NW ) Washington, DC 20530; ) ) ) Case 1:21-cv-00124 Document 1 Filed 01/14/21 Page 2 of 133 U.S. DEPARTMENT OF JUSTICE ) 950 Pennsylvania Avenue, NW ) Washington, DC 20530; ) ) and ) ) EXECUTIVE OFFICE OF IMMIGRATION ) REVIEW ) 5107 Leesburg Pike ) Falls Church, VA 22041 ) ) ) Defendants. ) ) 2 Case 1:21-cv-00124 Document 1 Filed 01/14/21 Page 3 of 133 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i PRELIMINARY STATEMENT .....................................................................................................1 PARTIES .........................................................................................................................................3 JURISDICTION AND VENUE ......................................................................................................6 BACKGROUND .............................................................................................................................6 A. Background on the United States Asylum Program ................................................6 1. The Immigration and Nationality Act ..........................................................6 2. Asylum and Withholding of Removal .........................................................7 3. The Convention Against Torture ...............................................................10 4. The Asylum Application Process...............................................................11 B. Background on the Appointments Clause, the Federal Vacancies Reform Act, and the Homeland Security Act .....................................................................13 1. The Appointments Clause ..........................................................................13 2. The Federal Vacancies Reform Act ...........................................................14 3. The Homeland Security Act .......................................................................17 C. The Issuance of the Rule ........................................................................................18 GENERAL ALLEGATIONS ........................................................................................................20 A. The Defendants Lacked Authority To Promulgate the Rule .................................20 1. Chad Wolf Lacked Authority To Propose or Issue the Rule Because He Was Not the Lawful Acting Secretary of DHS ......................21 2. Chad Mizelle Had No Inherent Authority To Sign or Approve the Rule ............................................................................................................38 3. Wolf’s Purported Ratification of the Rule Has No Effect .........................40 B. The Rule as a Whole Is Unlawful Under the APA ................................................43 1. The Rule Does Not Provide Facts, Evidence or Rational Explanations To Support Its Stated Objections .........................................43 i Case 1:21-cv-00124 Document 1 Filed 01/14/21 Page 4 of 133 2. Defendants Provided Insufficient Time for Public Comment ...................47 C. The Rule’s List of Claims Purportedly Barred on Nexus Grounds Is Contrary to Law and Arbitrary and Capricious .....................................................50 1. The Entire List of Claims Barred on Nexus Grounds Violates the APA............................................................................................................51 2. The Rule’s “Gender” Bar Is Arbitrary and Capricious ..............................53 3. The Rule’s “Gender” Bar Violates the Equal Protection Clause ...............57 4. The Rule’s Bars on Claims Involving Interpersonal Animus Are Contrary to Law and Arbitrary and Capricious .........................................58 5. The Rule’s Bars on Claims Related to Resisting Gang Recruitment and Political Opposition to Gangs Are Arbitrary and Capricious .............61 6. The Rule’s Nexus Ban on Perceived Gang Affiliation Is Contrary to Law and Arbitrary and Capricious .........................................................62 D. The Rule’s Changes to PSGs Are Contrary to Law and Arbitrary and Capricious ..............................................................................................................64 1. The Rule Illegally Creates a New List of Disfavored PSGs ......................65 2. The Rule’s Changes to the Anti-Circularity Principle Are Arbitrary and Capricious ...........................................................................................71 3. The Rule’s Particularity and Social Distinction Requirements Are Arbitrary and Capricious............................................................................73 E. The Rule’s Restrictions on “Political Opinion” Violate the INA and the APA........................................................................................................................73 1. The Rule’s Restrictions on Political Opinion Claims Are Contrary to the INA ..................................................................................................74 2. The Rule’s Restrictions on Political Opinion Claims Are Arbitrary and Capricious ...........................................................................................76 F. The Rule’s Restrictions on the Definition of Persecution Are Contrary to Law and Arbitrary and Capricious .........................................................................78 G. The Rule’s Bar on Evidence that “Promotes Cultural Stereotypes” Excludes Relevant Country-Conditions Evidence and Is Arbitrary and Capricious ..............................................................................................................83 ii Case 1:21-cv-00124 Document 1 Filed 01/14/21 Page 5 of 133 H. The Rule’s Changes to Internal Relocation Are Contrary to Law and Arbitrary and Capricious........................................................................................85 1. The Rule Arbitrarily and Capriciously Overhauls the Internal Relocation Analysis ...................................................................................86 2. The Rule Impermissibly Shifts the Burden of Proof on Reasonableness of Internal Relocation ......................................................89 I. The Rule’s Changes to CAT Standards Are Contrary to Law and Arbitrary and Capricious .......................................................................................................90 1. The Rule Unlawfully Excludes Acts of Torture Conducted by Officials Who Are Not Acting in an Official Capacity .............................91 2. The Rule Arbitrarily and Capriciously Changes the Standard and Burden To Prove Acquiescence by a Public Official ................................93 J. The Rule’s New Discretionary Bars Are Contrary to Law and Arbitrary and Capricious .......................................................................................................96 1. The Discretionary Bars Are Contrary to Law and Exceed the Scope of the Agencies’ Rulemaking Authority ....................................................99 2. The Agencies Did Not Respond to Significant Comments .....................102 3. The Agencies Failed to Consider Alternatives ........................................103 4. The Agencies Failed to Consider the Harm to Individuals ......................104 5. Many of the Bars Have No Rational Connection to Facts Identified by the Agencies ........................................................................................106 6. The Agencies’ Justifications for the Discretionary Bars Are Contrary to the Evidence .........................................................................108 K. The Rule’s Changes to Firm Resettlement Are Contrary to Law and Arbitrary and Capricious......................................................................................109 1. The Rule Is Contrary to the Plain Meaning of “Firm Resettlement” .......111 2. The Expansion of the Meaning of “Firm Resettlement” Is Arbitrary and Capricious. ........................................................................................111 3. The Rule Arbitrarily Shifts the Burden of Proof .....................................113 L. The Rule Harms Plaintiffs ...................................................................................115
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