Originally Published in The Intercept
Akela Lacy - March 17, 2021
A federal judge in California last week suspended implementation of the rule, while a judge in D.C. has questioned the Biden administration’s defense of it.
A FEDERAL JUDGE in California last week ordered the federal government to temporarily suspend implementation of a rule that would severely limit avenues for relief in immigration court. The rule went into effect during the final week of Donald Trump’s presidency, and the Biden administration has defended its issuance in two lawsuits challenging its implementation.
The measure codified a push by former Attorney General Jeff Sessions and other anti-immigration hardliners, concentrating decision-making power in the hands of a person selected by a political appointee and restricting the ability of people seeking immigration relief to present evidence that might keep them from being deported.
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A coalition of immigration advocacy groups sued over the rule in the U.S. District Court for the District of Columbia on January 11, just days before it went into effect January 15. Several other legal services organizations sued over the rule in the U.S. District Court for the Northern District of California on January 19, one day before President Joe Biden took office. In both lawsuits, the plaintiffs had asked the court for a preliminary injunction on the rule’s implementation as well as a stay of the rule in its current form and that it eventually be found unlawful and set aside. While the plaintiffs have argued that the courts have the power to put the rule on hold because it was unlawful at inception, the Justice Department has argued that the rule can’t be undone in court and must instead go through a regulatory process.
U.S. District Judge Susan Illston of the U.S. District Court for the Northern District of California granted a preliminary nationwide injunction in the case she is overseeing last Wednesday, meaning that the rule is now temporarily on hold and the Justice Department is barred from enforcing it while it undergoes further examination by the court. In light of the ruling from California, the parties in the Washington, D.C., suit filed a request to postpone their case; on Tuesday, U.S. District Judge Richard J. Leon denied that request in part but gave the parties more time to file briefings on whether he has authority to stay the rule. The Department of Justice declined to comment on the pending case in Washington, D.C., and did not respond to a request for comment on the case in California.
“We were surprised that they were fighting so hard against even putting the rule on a pause.”
Upon entering office, Biden inherited many lawsuits challenging Trump-era policies. The president has made good on some of his promises to roll back Trump’s anti-immigration policies, including by withdrawing the federal government’s defense of some of them in court. Just this month, the Justice Department announced that it would stop defending a policy restricting asylum and denying green cards to immigrants who use programs to obtain food stamps or assistance with housing. The Biden administration also requested last month that the Supreme Court suspend consideration of lawsuits over Trump’s border wall and the asylum program.
Yet the Justice Department’s defense of the immigration proceedings rule puts the president at odds with his promise to make the immigration system more humane. “We were somewhat surprised at how vigorously the administration was defending this rule,” said Victoria Neilson, managing attorney for the Catholic Legal Immigration Network’s Defending Vulnerable Populations Program, an organizational plaintiff in the Washington, D.C., suit.
One part of the rule, which would prohibit judges from reopening certain old orders for removal, “basically would result in separated families,” Neilson said, giving as an example a situation where someone with an old removal order receives approval for a family visa that would allow them to be reunited with their family; under the rule, a judge would no longer have the ability to reopen the old deportation order in the interest of justice and vacate it, which would prevent the person from using the visa. “So we were surprised that they were fighting so hard against even putting the rule on a pause.”
BIDEN’S DEPARTMENT OF Justice argued that plaintiffs don’t have standing in the Washington, D.C., case and that the courts don’t have jurisdiction on the matter in either case because the Immigration and Nationality Act precludes courts from reviewing issues related to removal orders unless done so during a judicial review of a final order, which requires that a petition be filed with the appropriate court of appeals. Illston, the California judge, disagreed with the Justice Department’s argument about jurisdiction.
The Justice Department has also argued that plaintiffs undercut their own claims that the rule would cause irreparable harm by not requesting a stay of the rule until after its effective date. In the California suit, Illston disagreed with Department of Justice’s argument that plaintiffs were improperly trying to change the status quo.
“I don’t really get it. Both sides have so much to lose.”
In her decision, Illston found that the plaintiffs would likely succeed in proving that the 30-day period for public comment on the rule was not sufficient, considering the scope of the rule, and that as such the implementation of the rule is arbitrary and capricious in its “failure to consider the combined impact of numerous intersecting policy changes.” Illston wrote that nationwide relief from the rule was appropriate and that such relief was necessary “to remedy the irreparable harm” the groups showed they and their clients would suffer under the rule and “where defendants have not proposed a workable alternative.”
In oral arguments in the Washington, D.C., case in early March, Leon, the federal judge, questioned the Biden administration’s defense, asking why they couldn’t simply pause the rule until federal courts evaluated whether it should be upheld. The Department of Justice said that the agency was reviewing the rule and that the review was a priority but that it would take time to evaluate.
“I don’t really get it. Both sides have so much to lose,” said Leon. “I’m at a loss to understand why it is, especially in light of President Biden’s order to review for fairness any new rules, why — why that — a stay of the rule being put into effect pending the outcome of litigation doesn’t make sense from both sides’ perspective.”
THE TRUMP RULE put in place a series of changes that make it more difficult for people in immigration proceedings to receive relief. That included cementing the end of a process called administrative closure in federal regulation, codifying a change Sessions had made in 2018 in one of his major steps toward reshaping the immigration courts. (The change was made in the Matter of Castro-Tum, a case before the Board of Immigration Appeals, the highest administrative body that interprets and applies immigration laws, that Sessions referred to himself for review.) Administrative closure had until then allowed immigration judges to more easily manage their often backlogged caseloads by temporarily removing cases from their docket, allowing individuals to pursue other avenues for relief and to move forward with related proceedings that might have bearing on their case.
The basis of the rule is part of a “long-held belief of a lot of the anti-immigration lobby,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, a nonprofit that uses litigation, research, and advocacy to try to improve immigration policy and strengthen immigrant rights, “which is that the immigration courts are too generous, there are too many opportunities for people to challenge deportation orders, and it should be that judges operate more like deportation bureaucrats than independent judges who try to exercise their independent discretion in the interest of justice.”
Proponents of the rule, he added, think that “immigration lawyers use delay tactics to keep their clients in the United States” and that “due process is not as important as ensuring the efficient deportation of immigrants, and we should create new rules that make it harder and harder for people to fight their cases and remain in the United States.”
The rule also gives power to an attorney general appointee to decide thousands of immigration cases each year; decreases from 90 to 14 days the allowable time for extensions on deadlines to file appeals with the Board of Immigration Appeals; and restricts the ability of people who’ve received removal orders to try to reopen their cases and seek another chance to stay in the U.S.
In addition, the rule gives enormous power to the director of the Board of Immigration Appeals to effectively decide thousands of cases a year. “Which means, essentially, it gave an enormous amount of power to a single person in clear violation of Congress’s intent of how to sort of structure the immigration court system,” Reichlin-Melnick said.
According to plaintiffs in the suit, the rule would also unlawfully deprive a person of their right to access a full and fair hearing in immigration court and limit their right to present evidence and select their own legal counsel.
“The Trump administration’s last-minute barrage of changes will be devastating to the fairness and efficiency of the immigration courts,” said Jeffrey Dubner, managing senior counsel at Democracy Forward, which is party to the Washington, D.C., suit, referring to the myriad impacts the rule has on different parts of the immigration court system. “They make it harder for noncitizens to show that their claims for relief are valid and tie immigration courts’ hands even where the law is clearly on a noncitizen’s side. We will continue to fight to stay and ultimately reverse these changes.”