San Francisco, California (December 24, 2020) – Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.
“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”
The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.
For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.
“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.” The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum.
They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve. The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.
The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiplecourts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.
IN SUM: CGRS, the Harvard Immigration and Refugee Clinical Program, and Sidley Austin LLP represent plaintiff organizations CLINIC, Pangea Legal Services, Dolores Street Community Services, and CAIR Coalition. Our joint statement can be found below and at this link. A copy of the complaint can be found here, and of our TRO motion here.
By Melanie NathanAfrican Human Rights Coalition
Trump’s New Asylum law eviscerates Asylum as we know it. This will be one of the most profound stains on his legacy, pointing to his failed humanity and hateful administration. ANYONE supporting this should be ashamed. And should not be allowed to forget what they have participated in – from voters to Republican Party to the White House itself. While I have no doubt Biden will reverse all this horrendous cruelty, it will be a process, and it is still law for now. DESPITE 90,000 objections registered through the Government portal during the process to make it law. 90,000 objections, including ours at AHRC that they ignored….. However this litigation is still important, even knowing Biden will likely reverse this.
By Melanie Nathan
African Human Rights Coalition