UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) M.M.V., et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 19-2773 (ABJ) ) WILLIAM BARR, ) in his official capacity as ) Attorney General of the ) United States, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Plaintiffs, proceeding under pseudonyms, are seeking asylum in the United States. That process is now governed by a new regulation, referred to as the Transit Ban, which requires asylum seekers to apply first in another country on the way here. See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019). The ban restricts asylum eligibility to those who have applied for protection in another country while in transit to the United States and were denied protection in that country. This lawsuit does not challenge the Transit Ban directly; plaintiffs challenge what they allege are written regulations, directives, or procedures that have been issued by the administration to implement and enforce the new asylum restrictions. Second Am. Compl. [Dkt. # 54] ¶¶ 1, 3. Plaintiffs are mothers and their children who are detained at the South Texas Family Residential Center who have been issued negative credible fear and reasonable fear determinations and have received orders to be removed from the United States. Id. ¶ 12. Defendants are William P. Barr, the Attorney General of the United States; James McHenry, the Director of the Executive Office for Immigration Review; Chad F. Wolf, the Acting Secretary of the Department of Homeland Security; Matthew T. Albence, the Acting Director of Immigrations and Customs Enforcement; Mark Morgan, the Acting Commissioner of Customs and Border Protection; Kenneth T. Cuccinelli, the Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services; and Andrew Davidson, the Acting USCIS Asylum Division Chief. Id. ¶¶ 112–18. Plaintiffs claim that the new policies are unlawful under the Administrative Procedure Act, 5 U.S.C. §§ 553, 706(2), because they are contrary to law, arbitrary and capricious, and the Department of Homeland Security (“DHS”) failed to employ appropriate notice and comment procedures in enacting them. Second Am. Compl. ¶¶ 174–82, 189–93. Plaintiffs also claim that the new procedures are unconstitutional because they do not afford the necessary due process to non-citizens and violate their rights under the First and Fifth Amendments. Id. ¶¶ 183–88. Plaintiffs seek equitable relief in the form of an order enjoining defendants from issuing expedited removal orders and continuing to apply the new policies and procedures, as well as a declaratory judgment stating that the new policies are contrary to law. Id. at 66–67, Prayer for Relief. Plaintiffs moved for a temporary restraining order on September 25, 2019. Pls.’ First Mot. for TRO [Dkt. # 13] (“Pls.’ First TRO Mot.”). Defendants opposed the motion, Defs.’ Mem. in Opp. to Pls.’ First TRO Mot. [Dkt. # 26] (“Defs. Opp. to First TRO Mot.”), and they moved to dismiss the case in part for lack of subject matter jurisdiction on February 14, 2020. ...
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