E. Bay Sanctuary Covenant v. Barr (385 F. Supp. 3d 922, 2019)

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). 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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), they provide relevant guidance for interpreting the asylum statutes, see Cardoza-Fonseca , 480 U.S. at 439-40, 107 S.Ct. 1207.

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, 119 S.Ct. 1439, 143 L.Ed.2d 590 (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). Neither the safe third country exception nor the one-year rule apply to "an unaccompanied alien child." Id. § 1158(a)(2)(E).

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/filesforce/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. 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. 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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, 129 S.Ct. 365.

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 , 349 F.Supp.3d 838 (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, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (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.

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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).

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, 104 S.Ct. 2778 ). 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 , --- U.S. ----, 135 S. Ct. 2480, 2489, 192 L.Ed.2d 483 (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, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) ). In recent years, the Supreme Court has cautioned that courts may not "engage[ ] in cursory analysis" of these statutory questions. Pereira v. Sessions , --- U.S. ----, 138 S. Ct. 2105, 2120, 201 L.Ed.2d 433 (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 , --- U.S. ----, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (alteration in original) (quoting Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680, 696, 111 S.Ct. 2524, 115 L.Ed.2d 604 (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, 104 S.Ct. 2778 ; 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, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) (alteration in original) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 353, 133 S.Ct. 2517, 186 L.Ed.2d 503 (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, 132 S.Ct. 476, 181 L.Ed.2d 449 (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, 91 S.Ct. 1312, 28 L.Ed.2d 592 (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, 91 S.Ct. 1312. "[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, 91 S.Ct. 1312.

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. 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 to help him in any country he passed through, and whether he made any attempts to seek asylum before coming to the United States," 19 I. & N. Dec. at 473-74, those factors were not given dispositive weight, and they were to be considered among a host of other relevant factors in their totality:

In addition, the length of time the alien remained in a third country, and his living conditions, safety, and potential for long-term residency there are also relevant. For example, an alien who is forced to remain in hiding to elude persecutors, or who faces imminent deportation back to the country where he fears persecution, may not have found a safe haven even though he has escaped to another country. Further, whether the alien has relatives legally in the United States or other personal ties to this country which motivated him to seek asylum here rather than elsewhere is another factor to consider. In this regard, the extent of the alien's ties to any other countries where he does not fear persecution should also be examined.

Id.

In 1990, the Attorney General expanded the mandatory firm resettlement bar to include IJ asylum determinations, thereby superseding Matter of Soleimani. See 8 C.F.R. § 208.14(c)(2) (1990). The 1990 regulations also amended the firm resettlement definition to permit an applicant to rebut a showing of a firm offer by establishing "[t]hat his entry into that nation was a necessary consequence of his flight from persecution, that he remained in that nation only as long as was necessary to arrange onward travel, and that he did not establish significant ties in that nation." Id. § 208.15(a). The Ninth Circuit subsequently upheld this regulatory bar as "a permissible construction of the statute," noting that "[f]irm resettlement has long been a decisive factor in asylum policy," and that "[e]ven before the regulation was promulgated in 1990, firm resettlement seems to have precluded a grant of asylum in practice." Yang v. I.N.S. , 79 F.3d 932, 939 (9th Cir. 1996). Moreover, it reasoned, "[b]ecause firmly resettled aliens are by definition no longer subject to persecution, the regulation create[d] no conflict with" the Refugee Act. Id.

Congress revisited the issue of firm resettlement in 1996, when it enacted IIRIRA. In IIRIRA, Congress codified the firm resettlement bar, providing that asylum was unavailable to an alien who "was firmly resettled in another country prior to arriving in the United States." 8 U.S.C. § 1158(b)(2)(A)(vi).

Following IIRIRA, the Attorney General issued interim implementing regulations. In addition to tracking the mandatory firm resettlement bar, 8 C.F.R. §§ 208.13(c)(2)(B), 208.15 (1997), the regulations also included a provision for discretionary denials "if the alien can be removed to a third country which has offered resettlement and in which the alien would not face harm or persecution," id. § 208.13(d). In subsequent cases, the Ninth Circuit concluded that these regulations had replaced the factors cited in Matter of Pula as a basis for discretionary denial of asylum. See Mamouzian v. Ashcroft , 390 F.3d 1129, 1138 (9th Cir. 2004) ("Stays in third countries are now governed by 8 C.F.R. § 208.15, which specifies how and when an opportunity to reside in a third country justifies a denial of asylum."); Andriasian v. I.N.S. , 180 F.3d 1033, 1044 (9th Cir. 1999) ("The amended regulations now specify how and when an opportunity to stay in a third country justifies a mandatory or discretionary denial of asylum by an IJ or the BIA."). In Andriasian , the Ninth Circuit elaborated on its rationale, explaining that a contrary reading would defeat the regulations' "purpose ... to ensure that if this country denies a refugee asylum, the refugee will not be forced to return to a land where he would once again become a victim of harm or persecution." 180 F.3d at 1046-47. "[T]he discretionary authority to deny asylum when a refugee has spent a brief period of time in a third country but has no opportunity to return there or, if he does, would be subject to further serious harm, would permit just such a result and would totally undermine the humanitarian policy underlying the regulation." Id. at 1047. Thus, "[t]hat a refugee has spent some period of time elsewhere before seeking asylum in this country is relevant only if he can return to that other country. Otherwise, that fact can in no way, consistent with the statute and the regulations, warrant denial of asylum." Id. at 1047.

In 2000, the Attorney General finalized the regulations implementing IIRIRA. During the rulemaking process, the government received comments expressing concern that the discretionary denial regulation was inconsistent with the statutory safe third country bar. Asylum Procedures, 65 Fed. Reg. 76,121 -01, 76,126 (Dec. 6, 2000). Although the government maintained that the regulation was a proper exercise of the Attorney General's authority pursuant to 8 U.S.C. § 1158(b)(2)(C), it nonetheless "decided to remove it from the regulations to avoid confusion." Id. ; cf. 8 C.F.R. § 208.13 (2001). Consistent with the Ninth Circuit's recognition that these regulations created a unified scheme "specif[ying] how and when an opportunity to reside in a third country justifies a denial of asylum," Mamouzian , 390 F.3d at 1138, some courts have since held that a "stay in a third country before arriving in the United States cannot support a denial of [an] asylum claim" where the IJ finds that applicant "was not firmly resettled," Tandia v. Gonzales , 437 F.3d 245, 249 (2d Cir. 2006) (per curiam) (emphasis omitted); see also Prus v. Mukasey , 289 F. App'x 973, 976 (9th Cir. 2008) ; cf. Shantu v. Lynch , 654 F. App'x 608, 617 (4th Cir. 2016) (noting the Tandia court's decision and inviting the BIA to consider on remand whether a finding that a third country provides a " 'safe haven' remains a factor that may properly be considered in a discretionary asylum determination").

Under the current statutory scheme, "[d]etermining whether the firm resettlement rule applies involves a two-step process: First, the government presents 'evidence of an offer of some type of permanent resettlement,' and then, second, 'the burden shifts to the applicant to show that the nature of his [or her] stay and ties was too tenuous, or the conditions of his [or her] residence too restricted, for him [or her] to be firmly resettled.' " Arrey v. Barr , 916 F.3d 1149, 1159 (9th Cir. 2019) (alterations in original) (quoting Maharaj v. Gonzales , 450 F.3d 961, 976-77 (9th Cir. 2006) (en banc)); see also 8 C.F.R. § 208.15. Further, because "firmly resettled aliens are by definition no longer subject to persecution," an applicant may provide evidence of persecution in the third country to "rebut the finding of firm resettlement" there. Arrey , 916 F.3d at 1159-60 (first quoting Yang , 79 F.3d at 939 ).

ii. Safe Third Country Bar

Though a more recent innovation, the safe third country bar also provides guidance regarding the statutory scheme that Congress enacted.

Shortly prior to IIRIRA, the Attorney general promulgated a regulation providing for discretionary denials of asylum where "the alien can and will be deported or returned to a country through which the alien traveled en route to the United States and in which the alien would not face harm or persecution and would have access to a full and fair procedure for determining his or her asylum claim in accordance with a bilateral or multilateral arrangement with the United States governing such matter."

8 C.F.R. § 208.14(e) (1995). At that time, no such agreement existed.

Congress then codified that bar as part of IIRIRA, converting it into a mandatory bar that disqualified aliens from applying for asylum if:

[T]he Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

8 U.S.C. § 1158(a)(2)(A). Congress further provided that the bar would not apply to "unaccompanied alien child[ren]." Id. § 1158(a)(2)(E).

To date, the United States has entered into only one such agreement, with Canada. Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, Can.-U.S., Dec. 5, 2002 ("Canada Third Country Agreement"). The agreement generally provides that, between the two nations, the country through which the alien transited (i.e., "the country of last presence") will adjudicate the alien's claim for refugee status. Id. , art. IV, ¶ 1. However, the agreement contains exceptions where the "receiving country" will adjudicate the claim, including where the applicant has at least one family member with refugee or other lawful status or a family member who is at least 18 years old and has a pending refugee claim. Id. , art. IV, ¶ 2. Notwithstanding that allocation of adjudicatory responsibility, each country reserved the right to examine any claim at its own discretion if it would serve its public interest to do so. Id. , art. VI.

c. Discussion

The government represents that, like the firm resettlement and safe third country bars, the Rule provides a means of separating asylum applicants who truly have "nowhere else to turn" to avoid persecution, 84 Fed. Reg. at 33,834 (quoting Matter of B-R- , 26 I. & N. Dec. at 122 ), from "economic migrants seeking to exploit our overburdened immigration system," id. at 33,839; see also ECF No. 28 at 17 ("[T]he Department heads determined ... that aliens who fail to apply for protection in at least one third country through which they transited should not be granted the discretionary benefit of asylum, because they are not refugees with nowhere else to turn.").

The Organizations first contend that "Congress spoke directly to the issue of seeking asylum in another country and created two narrow circumstances where asylum can be denied based on a third country." ECF No. 3-1 at 14. Implicit in this argument is that the Rule fails at Chevron step one because Congress has articulated the only permissible mandatory bars in this area. See Chevron , 467 U.S. at 842, 104 S.Ct. 2778. The Organizations'

position has some force. As noted above, some courts, including the Ninth Circuit, have treated the regulations based on the firm resettlement bar as establishing the only circumstances under which "an opportunity to stay in a third country justifies a mandatory or discretionary denial of asylum by an IJ or the BIA." Andriasian , 180 F.3d at 1044 ; see also Prus , 289 F. App'x at 976 ; Tandia , 437 F.3d at 249 ; Mamouzian , 390 F.3d at 1138. But as the Organizations acknowledged at the hearing, the Court need not decide that question today.

Even assuming that the statute does not prohibit the government from adopting additional mandatory bars based on an applicant's relationship with a third country, any such bar must be consistent "with the design and structure of the statute as a whole" to survive Chevron step two. Util. Air Regulatory Grp. , 573 U.S. at 321, 134 S.Ct. 2427 (citation omitted). The Rule fails this test in at least two respects.

First, as the government emphasizes, the two statutory bars "limit an alien's ability to claim asylum in the United States when other safe options are available." Matter of B-R- , 26 I. & N. Dec. at 122. But in keeping with that purpose, both provisions incorporate requirements to ensure that the third country in question actually is a "safe option[ ]." Id. 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. 8 U.S.C. § 1158(a)(2)(A). 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. Id.

Similarly, in enacting the firm resettlement bar, Congress left in place the pre-existing regulatory definition, under which the government must make individualized determinations that the applicant received "an offer of some type of permanent resettlement" in a country where the applicant's "stay and ties [were not] too tenuous, or the conditions of his [or her] residence too restricted, for him [or her] to be firmly resettled." Arrey , 916 F.3d at 1159 (alterations in original) (quoting Maharaj , 450 F.3d at 976 ). As the Ninth Circuit has recognized, the purpose of these requirements "is to ensure that if this country denies a refugee asylum, the refugee will not be forced to return to a land where he would once again become a victim of harm or persecution." Andriasian , 180 F.3d at 1046-47 ; see also Yang , 79 F.3d at 939 ("[F]irmly resettled aliens are by definition no longer subject to persecution ....").

By contrast, the Rule does virtually nothing to ensure that a third country is a "safe option." The Rule requires only that the third country be a party to the 1951 Convention, the 1967 Protocol, or the CAT. 8 C.F.R. § 208.13(c)(4)(iii). While the firm resettlement bar requires a determination regarding each alien's individual circumstances, and the safe third country bar requires a formalized determination as to the individual country under consideration, the Rule ignores an applicant's individual circumstances and categorically deems most of the world a "safe option" without considering - or, as set forth below, in contravention of - the evidence in its own record. See AR 560-62, 581-83, 588. For example, the administrative record demonstrates abundantly why Mexico is not a safe option for many refugees, despite its party status to all three agreements. AR 561, 582, 588. In short, Congress requires consideration of an applicant's circumstances and those of the third country; the Rule turns its back on those requirements. On its face, this approach fundamentally conflicts with the one Congress took in enacting mandatory bars based on a safe option to resettle or pursue other relief in a third country.

The government's contrary arguments are not persuasive. First, the government contends that there is no conflict with the firm resettlement bar because that bar concerns aliens who have already received an offer of permanent resettlement, while the Rule disqualifies "those who could have applied (but did not apply) for protection in a third country." ECF No. 28 at 18. The government similarly asserts that the Rule need not resemble the safe third country bar because that bar, as implemented by the United States' sole safe third country agreement, (1) requires consideration of withholding of removal in Canada and (2) allows an alien to seek relief in the United States if Canada denies the asylum claim. Id. at 21; see also 8 C.F.R. § 208.30(e)(6).

The government's focus on the type of conduct that is subject to each bar, or any difference in consequences that flow from its application, is misplaced. ECF No. 28 at 18, 21-22. If a country is not a safe option, there is no reason to infer that an alien's failure to seek protection there undermines her claim. For purposes of the particular question of safety, it makes no difference whether the safe option is one that the alien had or has (in the case of the firm resettlement bar), will have (in the case of the safe third country bar) or forewent (in the case of the Rule).

In sum, when Congress barred asylum to an applicant with an alternative safe option in another country, it required "reasonable assurance that he will not suffer further harm or persecution there," Andriasian , 180 F.3d at 1046, in keeping with the long-held understanding that these bars apply to those who have somewhere else to turn, see Matter of B-R- , 26 I. & N. Dec. at 122. The Rule's sweeping approach makes no attempt to accommodate this concern, and so is antithetical to the statute's structure and "unmoored from the purposes and concerns of the underlying statutory regime." Altera Corp. , 926 F.3d at 1076 (quoting Judulang , 565 U.S. at 64, 132 S.Ct. 476 ).

Second, the Rule is based on an unrebuttable categorical inference that is arbitrary and capricious. The Rule's major premise is that "[a]n alien's decision not to apply for protection at the first available opportunity, and instead wait for the more preferred destination of the United States" is sufficiently probative that the alien should be denied asylum. 84 Fed. Reg. at 33,839.

The Ninth Circuit has rejected this assumption as unreasonable as applied to an individual on multiple occasions, consistent with the general principle that "[a] valid asylum claim is not undermined by the fact that the applicant had additional reasons (beyond escaping persecution) for coming to or remaining in the United States, including seeking economic opportunity." Dai v. Sessions , 884 F.3d 858, 873 (9th Cir. 2018) (citing Li v. Holder , 559 F.3d 1096, 1105 (9th Cir. 2009) ). In Melkonian v. Ashcroft , for instance, the IJ found the applicant ineligible for asylum "because he came to the United States in order to better himself and his family economically, when he could have remained in Russia without facing persecution." 320 F.3d 1061, 1067 (9th Cir. 2003). The Ninth Circuit deemed this reasoning erroneous as a matter of law, stressing "that a refugee need not seek asylum in the first place where he arrives." Id. at 1071. Rather, the Ninth Circuit explained, "it is 'quite reasonable' for an individual fleeing persecution 'to seek a new homeland that is insulated from the instability [of his home country] and that offers more promising economic opportunities.' " Id. (alteration in original) (quoting Damaize-Job v. I.N.S. , 787 F.2d 1332, 1337 (9th Cir. 1986) ). The court has similarly rejected the Rule's theory as a basis for finding claims of persecution not credible. See Damaize-Job , 787 F.2d at 1337 ("[The applicant's] failure to apply for asylum in any of the countries through which he passed or in which he worked prior to his arrival in the United States does not provide a valid basis for questioning the credibility of his persecution claims."); Garcia-Ramos v. I.N.S. , 775 F.2d 1370, 1374-75 (9th Cir. 1985) ("We do not find it inconsistent with a claimed fear of persecution that a refugee, after he flees his homeland, goes to the country where he believes his opportunities will be best. Nor need fear of persecution be an alien's only motivation for fleeing."). If this inference is unreasonable as applied to one asylum applicant, it is manifestly more so when applied to all such applicants.

Moreover, the government cites nothing in the administrative record to support the inference. Instead, the government relies on a series of cases of which none supports its position, placing its greatest weight on the BIA's discussion of third country transit in Matter of Pula , 19 I. & N. at 473-74. See 84 Fed. Reg. at 33,839 n.8 ; ECF No. 28 at 17. The government notes that Matter of Pula includes as adverse factors supporting denial of asylum "whether the alien passed through other countries or arrived in the United States directly from his country, whether orderly refugee procedures were in fact available to help him in any country he passed through, and whether he made any attempts to seek asylum before coming to the United States." Id.

As an initial matter, the Court again notes that courts have concluded that Matter of Pula was superseded by the mandatory firm resettlement bar on this point. See, e.g. , Andriasian , 180 F.3d at 1044. Moreover, Matter of Pula 's nuanced discussion only highlights the ways in which the Rule fails to account for other factors influencing whether the failure to seek official protection in a third country is probative as to "the validity and urgency of the alien's claim." 84 Fed. Reg. at 33,839. There, the BIA instructed that adjudicators should consider "the length of time the alien remained in a third country, and his living conditions, safety, and potential for long-term residency," as well as "whether the alien has relatives legally in the United States or other personal ties to this country which motivated him to seek asylum here rather than elsewhere. Matter of Pula , 19 I. & N. Dec. at 473-74. The BIA further emphasized that "an alien who is forced to remain in hiding to elude persecutors, or who faces imminent deportation back to the country where he fears persecution, may not have found a safe haven even though he has escaped to another country." Id. at 474. Read fairly and completely, Matter of Pula does not support the rationale for the Rule's categorical bar.

The government also cites Kalubi v. Ashcroft , 364 F.3d 1134 (9th Cir. 2004), but Kalubi is not on point. There, the Ninth Circuit suggested in dicta that "[i]n an appropriate case, 'forum shopping' might conceivably be part of the totality of circumstances that sheds light on a request for asylum in this country." Id. at 1140 (emphasis added). Because that dicta simply restates the Matter of Pula analysis, it provides no additional justification for a categorical bar.

Tellingly, the government does not cite a single case where third country transit, short of firm resettlement, played a substantial role in denying asylum. Cf. Matter of Pula , 19 I. & N. Dec. at 475 (granting asylum and noting that it did "not appear that [the applicant] was entitled to remain permanently in either [third] country" and reasonably "decided to seek asylum in the United States because he had many relatives legally in the United States to whom he could turn for assistance"). The government's lone citation related to the safe third country bar further underscores the arbitrary and capricious nature of the Rule's failure to account for alternative explanations for failing to apply elsewhere. In United States v. Malenge , the Second Circuit noted that a criminal defendant's asylum claim would normally have been barred by the Canada Third Country Agreement. 294 F. App'x 642, 644-45 (2d Cir. 2008). But, "[u]nder an exception created by Article 4 of the Agreement, [the defendant] was entitled to pursue asylum in the United States at the time of her arrival, because her husband was already living here as a refugee with a pending asylum claim." Id. at 645.

Finally, as discussed in greater detail below, the administrative record evidence regarding conditions in Mexico abundantly demonstrates alternative reasons why aliens might not seek protection while transiting through third countries.

Accordingly, the Court concludes that the Organizations are likely to succeed on the merits of their claim that the Rule is substantively invalid.

3. Notice-and-Comment Requirements

The Court next turns to the Organizations' notice-and-comment claims.

a. Legal Standard

The APA requires agencies to publish notice of proposed rules in the Federal Register and then allow "inte