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.
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. See id. § 1225(b)(1)(B)(ii); 8 C.F.R.
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 they have already applied for asylum in a country through which they traveled while en route. See id. at 33,843. The Transit Rule does not bar aliens claiming to fear persecution from seeking other relief such as withholding of removal or protection under the Convention Against Torture. See id. at 33,837-38.
The original plaintiffs in this case are 126 inadmissible aliens caught trying to enter the country across the southern border. Each of them seeks asylum or claims to fear persecution but has received an adverse credible-fear determination. The plaintiffs do not challenge the Transit Rule itself. Instead, they challenge the government's administration of credible-fear interviews under IIRIRA and the Transit Rule, as allegedly reflected in eleven sub-regulatory policies. The plaintiffs allege the following:
The plaintiffs argue that these policies violate the Immigration and Nationality Act, the Administrative Procedure Act, and the First and Fifth Amendments.
The district court granted the motion to dismiss, denied the joinder motions, and lifted the administrative stay for all but 18 of the plaintiffs. M.M.V. v. Barr, 456 F.Supp.3d 193 (D.D.C. 2020). The court held that it lacked jurisdiction to review all but one of the alleged policies, either because the policy was unwritten or because the challenge to it was untimely. Id. at 209-20. As to the ninth challenged policy, the court held that only 18 of the plaintiffs had both timely challenged the policy and been themselves subjected to it. The court thus dismissed the challenges made by all other plaintiffs, and it refused to join the would-be plaintiffs. Id. at 220-23. The court then entered final judgment under Federal Rule of Civil Procedure 54(b) on the claims of the dismissed plaintiffs. Those plaintiffs appealed, and we have jurisdiction under 28 U.S.C. § 1291.
The district court held that IIRIRA barred its review of ten of the eleven alleged policies because either the policy was unwritten or the challenges to it were untimely. We agree.
In a section titled "Matters not subject to judicial review," IIRIRA states that "[n]otwithstanding any other provision of law ... no court shall have jurisdiction to review" four specified categories of agency action. 8 U.S.C. § 1252(a)(2)(A). The fourth of these covers, "except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title." Id. § 1252(a)(2)(A)(iv). Subsection (e), the referenced exception, permits judicial review of any "regulation, or a written policy directive, written policy guideline, or written procedure issued" under section 1225(b). Id. § 1252(e)(3)(A)(ii).
The bar on review of "procedures and policies adopted" to implement section 1225(b)(1) plainly extends to the alleged policies at issue here, which govern credible-fear interviews in expedited-removal proceedings under section 1225(b)(1). The plaintiffs object that if the policies are unwritten, they cannot be "adopted" within the meaning of section 1252(a)(2)(A)(iv). But adoption does not require a writing, as the plaintiffs' own cited dictionary confirms. Adopt, Merriam-Webster's Collegiate Dictionary (10th ed. 1999) ("to accept formally and put into effect"). Moreover, the statutory exception permits review of any "written policy directive, written policy
The plaintiffs also contend that the challenged policies fall outside section 1252(a)(2)(A)(iv) because they were not lawfully adopted. The plaintiffs invoke district-court decisions holding that the then-Acting Director of USCIS was unlawfully appointed, L.M.-M. v. Cuccinelli, 442 F.Supp.3d 1, 24-29 (D.D.C. 2020), and that the Transit Rule was unlawfully promulgated, Capital Area Immigrants' Rights Coalition v. Trump, 471 F.Supp.3d 25, 44-57 (D.D.C. 2020). But section 1252(a)(2)(A)(iv) requires only that the disputed policies be "adopted." And its bar on judicial review of certain "policies adopted" would be ineffective if "adopted" were construed to mean "lawfully adopted" as determined by a reviewing court.
Next, the plaintiffs argue that the alleged policies fall within the exception permitting review of written procedures or policies. But they identify no written documents implementing alleged policies 1, 3, 4, 5, 7, 8, 10, and 11 in their list above. The plaintiffs argue that a writing is unnecessary because subsection (e) permits review of regulations as well as written policy directives, guidelines, and procedures. But the subsection permits review of "such a regulation," and that phrase references "any regulation issued to implement" section 1225(b). 8 U.S.C. § 1252(e)(3)(A). Because issued regulations must be published in the Federal Register, they must be written. See 5 U.S.C. § 552(a)(1). Moreover, this reading best harmonizes "such a regulation" with the following phrase "or a written policy directive, written policy guideline, or written procedure," which covers only written items. See Yates v. United States, 574 U.S. 528, 543, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) ("a word is known by the company it keeps").
The plaintiffs invoke the presumption of reviewability. "Although we presume that agency action is judicially reviewable, that presumption, like all presumptions used in interpreting statutes, may be overcome by specific language that is a reliable indicator of congressional intent." DCH Reg'l Med. Ctr. v. Azar, 925 F.3d 503, 505 (D.C. Cir. 2019) (cleaned up). Here, Congress obviously foreclosed judicial review: In a section titled "Matters not subject to judicial review," it provided that "no court shall have jurisdiction to review" several broad categories of agency action, subject only to exceptions specifically set forth. 8 U.S.C. § 1252(a)(2)(A). For the reasons explained above, we think it clear that one of these review bars applies, and its exception does not.
The plaintiffs also invoke the constitutional-doubt canon. But that interpretive tool does not apply if the statute at issue is unambiguous, Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830, 842, 200 L.Ed.2d 122 (2018), as the provisions discussed above are. In any event, our reading of section 1252(a)(2) does not raise any constitutional doubts. Just last term, the Supreme Court confirmed that aliens apprehended while trying to enter the country have no due process rights beyond what Congress has provided by statute, and that section 1252 thus does not violate due process by precluding judicial review of an "allegedly flawed credible-fear proceeding." DHS v. Thuraissigiam, ___ U.S. ___, 140 S.Ct. 1959, 1981-83, 207 L.Ed.2d 427 (2020).
Alternatively, the plaintiffs argue the district court erred in finding that
The plaintiffs further contend that the district court should have separately considered whether the jurisdictional bar covers their First Amendment and APA claims. But the bar is keyed to the nature of the challenged agency action, not the basis for the challenge. The plaintiffs invoke the First Amendment and the APA to contend that the challenged policies are unlawful, which still amounts to a challenge to "policies adopted" to implement section 1225(b)(1). 8 U.S.C. § 1252(a)(2)(A)(iv). Likewise, while the plaintiffs characterize their APA challenge as procedural rather than substantive, the bar plainly covers both kinds of challenges.
Finally, the plaintiffs contend that they were entitled to jurisdictional discovery. But they did not move for discovery below, so they cannot raise this argument on appeal. See Dunning v. Quander, 508 F.3d 8, 11 (D.C. Cir. 2007).
The second alleged policy was not timely challenged. Section 1252(e)(3) permits legal challenges to "a regulation, or a written policy directive, written policy guideline, or written procedure" to implement expedited-removal proceedings under section 1225(b), 8 U.S.C. § 1252(e)(3)(A)(ii), but it requires any such challenge to be "filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure ... is first implemented," id. § 1252(e)(3)(B). The district court correctly concluded that this deadline jurisdictionally barred review of the second alleged policy.
The plaintiffs seek to challenge what they describe as a new policy of allowing untrained employees of the United States Customs and Border Protection (CBP) to conduct asylum interviews. The relevant writing is an agreement signed by USCIS and CBP on July 10, 2019. This agreement permits CBP agents to conduct credible-fear interviews upon receiving adequate training to act as asylum officers. On July 15, 2019, CBP agents began conducting interviews pursuant to the agreement. On September 9, 2019, CBP agents began conducting interviews at the South Texas Family Residential Center, where the original plaintiffs were interviewed.
The plaintiffs object that their claims are subject to equitable tolling. But jurisdictional filing deadlines are not subject to tolling, see Bowles v. Russell, 551 U.S. 205, 213-15, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), and the time limit here is jurisdictional. In American Immigration Lawyers Association v. Reno, 18 F.Supp.2d 38 (D.D.C. 1998) (AILA), the district court held that the 60-day time limit in section 1252(e)(2)(B) "is jurisdictional rather than a traditional limitations period." Id. at 47. We affirmed that conclusion "substantially for the reasons stated in the court's thorough opinion." 199 F.3d 1352, 1357 (D.C. Cir. 2000).
The plaintiffs urge that AILA has been overtaken by recent Supreme Court decisions stressing that time limits are jurisdictional only if clearly stated as such. United States v. Kwai Fun Wong, 575 U.S. 402, 409, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015). This clear-statement rule is satisfied if the statute expressly "speak[s] in jurisdictional terms," Musacchio v. United States, 577 U.S. 237, 246, 136 S.Ct. 709, 193 L.Ed.2d 639 (2016), or "conditions the jurisdictional grant on the limitations period," Kwai Fun Wong, 575 U.S. at 412, 135 S.Ct. 1625.
Section 1252 does both. First, it states that "no court shall have jurisdiction to review" agency "procedures and policies" to implement the expedited removal of aliens, "except as provided in subsection (e)." 8 U.S.C. § 1252(a)(2)(A). Subsection (a) thus conditions jurisdiction on satisfaction of the requirements of subsection (e). In turn, the first paragraph of subsection (e) likewise provides that "no court may... enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection." Id. § 1252(e)(1)(A). This formulation—restricting the courts rather than conferring rights and duties on the parties—is also framed in jurisdictional terms. Kwai Fun Wong, 575 U.S. at 410-11 & n.4, 135 S.Ct. 1625 ("jurisdictional statutes speak about jurisdiction, or more generally phrased, about a court's powers"). And it too conditions jurisdiction on satisfying the requirements that follow later in the subsection. Paragraph (3) of the subsection follows by authorizing judicial review "limited to" certain challenges to statutes, regulations, and written policies, 8 U.S.C. § 1252(e)(3)(A), with a deadline for "[a]ny action instituted under this paragraph," id. § 1252(e)(3)(B). Section 1252 thus twice conditions the relevant "jurisdictional grant" upon the associated "limitations period,"
The ninth challenged policy provides for credible-fear findings favorable to an alien to be reviewed by USCIS's Fraud Detection and National Security Directorate. This policy was first implemented on August 30, 2019. And it was timely challenged by the plaintiffs named in the original and first amended complaints. The district court concluded that the parallel challenges raised by all other plaintiffs or proposed plaintiffs were jurisdictionally untimely. The court thus dismissed the challenges to the fraud-review policy raised by the plaintiffs added to the second amended complaint. M.M.V., 456 F. Supp. 3d at 220. Likewise, it denied the pending joinder motions on behalf of plaintiffs proposed to be added to the case even later. Id. at 222-23.
To preserve the later challenges, the plaintiffs invoke the rule that if many plaintiffs seek the same relief and at least one of them has Article III standing, the court need not determine whether others also do. See, e.g., Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (FAIR). Assuming the FAIR rule governs the determination of statutory jurisdiction as well as Article III standing, it is nonetheless inapplicable for two reasons. First, the rule does not apply if each plaintiff seeks "additional" individualized relief. Town of Chester v. Laroe Estates, Inc., ___ U.S. ___, 137 S.Ct. 1645, 1651, 198 L.Ed.2d 64 (2017); see Lewis v. Casey, 518 U.S. 343, 358 n.6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("standing is not dispensed in gross"); Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 216 (4th Cir. 2017) (each plaintiff seeking "individualized relief" must prove Article III standing). Here, the plaintiffs seek an order enjoining the government from removing any one plaintiff without providing that plaintiff with further individualized adjudicatory process. J.A. 66-67. Second, the FAIR line of cases stands only for the proposition that a court "need not" decide the standing of each plaintiff seeking the same relief. Clinton v. City of New York, 524 U.S. 417, 431 n.19, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998). But it does not prohibit the court from paring down a case by eliminating plaintiffs who lack standing or otherwise fail to meet the governing jurisdictional requirements. See, e.g., Thiebaut v. Colorado Springs Utils., 455 F. App'x
The plaintiffs further contend that the 60-day filing deadline governs only the filing of an "action instituted under" paragraph (3) of section 1252(e). 8 U.S.C. § 1252(e)(3)(B). In their view, so long as one plaintiff institutes a timely "action," other plaintiffs may freely join it later, even if the filing deadline would have run had they been the initial filers.
This argument is foreclosed by AILA. In that case, the plaintiffs filed an amended complaint "adding several individual plaintiffs" more than 60 days after the challenged expedited-removal policies had been first implemented. See 18 F. Supp. 2d at 46-47. The district court dismissed the claims of these plaintiffs as untimely under section 1252(e)(3)(B), even though other plaintiffs in the case had timely challenged the policies. It reasoned that "Congress designed the statute so that the 60 days ran from a fixed point, the initial implementation of the challenged provisions, rather than from the date of application of IIRIRA to a particular alien." Id. at 47. Moreover, it continued, because the 60-day deadline was jurisdictional, the amended complaint could not "relate back" under Federal Rule of Civil Procedure 15(c). Id. On review, this Court specifically addressed "appeals by the individual aliens who filed late and for that reason had their claims dismissed." 199 F.3d at 1356-57. And we "affirm[ed] the dismissal of these claims substantially for the reasons stated in the [district] court's thorough opinion." Id. at 1357 (citing 18 F. Supp. 2d at 46-47). The plaintiffs seek to distinguish AILA on the ground that the district court there ended up dismissing all claims brought by all plaintiffs. Even so, the district court there specifically held that the claims of each plaintiff must be filed within the 60-day time limit, and we specifically affirmed on that basis.
The plaintiffs separately challenge the district court's refusal to join the proposed plaintiffs. But as explained above, the challenges by the proposed plaintiffs to the fraud-review policy also were untimely. The district court thus correctly concluded that joinder would have been futile because the disputed claims were untimely and there was no possibility of equitable tolling. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 794-95 (D.C. Cir. 1983). In their reply brief, the plaintiffs object that their second amended and proposed later complaints relate back to their original complaint under rule 15(c). Because the plaintiffs raised this point neither in the district court nor in their opening brief on appeal, it is twice forfeited. See McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010). And under reasoning in AILA that we specifically affirmed, it is also meritless. See 199 F.3d at 1356-57; 18 F. Supp. 2d at 46-47.