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D.C. Circ nixes challenge to credible-fear asylum interview policies

4 minute read

REUTERS/Jose Luis Gonzalez

  • Most of the policies could not be challenged because they were unwritten
  • Asylum applicants claimed policies adopted to implement the Trump-era "transit ban" were illegal

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(Reuters) - A U.S. appeals court on Friday tossed out a challenge to various policies the federal government has implemented for interviewing asylum applicants, saying courts have no power to review most of them because they are unwritten.

A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected claims by more than 120 asylum applicants that the DOJ interviews were unnecessarily adversarial and occurred without adequate notice, and that interviewers were improperly trained and did not explain the basis for their decisions.

The court also said the plaintiffs' challenge to a written 2019 policy requiring that determinations that individuals have a credible fear of persecution in their home countries be reviewed for fraud was untimely.

The plaintiffs, represented by Greenberg Traurig, claimed the challenged policies violated their due-process rights and were contrary to the Immigration and Nationality Act, which establishes criteria for granting asylum.

Caroline Heller of Greenberg Traurig, the lead lawyer for the plaintiffs, did not immediately respond to a request for comment. Nor did DOJ.

The plaintiffs filed their lawsuit in 2019 after the adoption of a rule by DOJ and the Department of Homeland Security known as the "transit ban." The rule required foreign nationals to first apply for asylum in another country that they passed through on the way to the U.S. before seeking asylum here.

A federal judge in Washington, D.C., struck down the transit ban last year in a separate lawsuit.

The plaintiffs in Friday's case did not challenge the rule directly. Rather, they said that 11 interview policies DOJ and other agencies adopted to implement the rule were unlawful. All of the plaintiffs were deemed not to have a credible fear of persecution, exposing them to deportation.

U.S. District Judge Amy Berman Jackson last year granted the government's motion to dismiss the bulk of the case. She said she lacked jurisdiction to hear the challenges to 10 of the policies, either because they were informal unwritten regulations or the challenges were untimely.

Jackson said that only 18 plaintiffs had standing to challenge the fraud-review policy. She also rejected a bid to add nearly 200 more plaintiffs to the case.

The plaintiffs appealed, noting that federal immigration law only bars court challenges to "procedures and policies adopted by the Attorney General." Since the policies at issue were unwritten, they were never formally "adopted," and the jurisdictional bar did not apply, they said.

The D.C. Circuit on Friday disagreed, noting that the jurisdictional limits in the law include an exception for "a written policy directive, written policy guideline, or written procedure."

"A bar on reviewing 'adopted' policies, subject to an exception permitting review of 'written' policies, would make no sense if all adopted policies had to be written, for the exception would then be coextensive with the rule," Circuit Judge Gregory Katsas wrote.

The court also agreed with Jackson that the plaintiffs' challenges to the remaining policies were untimely because they were filed more than 60 days after the policies took effect.

The panel included Circuit Judges Sri Srinivasan and Douglas Ginsburg.

The case is M.M.V. v. Garland, U.S. Court of Appeals for the D.C. Circuit, No. 20-5106.

For the plaintiffs: Caroline Heller of Greenberg Traurig

For the government: Erez Reuveni of the U.S. Department of Justice

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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