United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 11, 2020 Decided June 18, 2021 No. 20-5106 M.M.V., ET AL., APPELLANTS v. MERRICK B. GARLAND, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., APPELLEES Consolidated with 20-5129 Appeals from the United States District Court for the District of Columbia (No. 1:19-cv-02773) Caroline J. Heller argued the cause for appellants. With her on the briefs were Gregory P. Copeland, Sarah T. Gillman, Steven G. Barringer, and James E. Gillenwater. Erez Reuveni, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, and R. Craig Lawrence and Christopher C. Hair, Assistant U.S. Attorneys. 2 Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge, and GINSBURG, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge KATSAS. KATSAS, Circuit Judge: The plaintiffs here seek to challenge eleven alleged policies on how asylum officers conduct interviews in expedited-removal proceedings. As to ten of the policies, the district court lacked jurisdiction because either the policy was unwritten or the challenges to it were time-barred. As to the only other policy, which some plaintiffs had timely challenged, the district court permissibly declined to add new plaintiffs with parallel but untimely challenges. I A The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) sets forth expedited procedures to remove certain inadmissible aliens arriving at the border. 8 U.S.C. § 1225(b)(1). Aliens subject to expedited removal may either claim a fear of persecution or seek to apply for asylum. Id. § 1225(b)(1)(A)(i). If an alien does either, an asylum officer must interview the alien and determine whether he has a “credible fear of persecution.” Id. § 1225(b)(1)(A)(ii), (B)(ii). If the asylum officer finds such a credible fear, the alien must receive a full removal proceeding before an immigration judge, subject to further review in the Board of Immigration Appeals and a court of appeals. Id. §§ 1225(b)(1)(B)(ii), 1229a; Grace v. Barr, 965 F.3d 883, 887–88 (D.C. Cir. 2020). If the asylum officer finds no credible fear of persecution, the alien may seek review before an immigration judge. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). If the judge then disagrees with the asylum officer, the alien is placed in full removal proceedings. 3 See id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 1208.30(g)(2)(iv)(B), (C). If the judge agrees with the asylum officer, the alien may be removed without further review. See 8 U.S.C. § 1225(b)(1)(B)(iii)(I); 8 C.F.R. § 1208.30(g)(2)(iv)(A).1 The Attorney General and the Secretary of Homeland Security “may by regulation establish additional limitations and conditions … under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). Invoking this authority, the Attorney General and the Secretary jointly published regulations establishing new requirements for seeking asylum. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019) (Transit Rule). The Transit Rule provides that aliens seeking to enter the United States at the southern border are ineligible for asylum unless …
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