Do not come into U.S. District Judge Richard Leon’s courtroom and pretend that 2 + 2 = 7. The judge has had it up to here with the Trump administration waltzing in and arguing with a straight face that actually they’ve changed the plain meaning of statutes and English vernacular by executive fiat.
This morning, Judge Leon called BS on the claim that border patrol agents are functionally the same as USCIS asylum review officers. The case was brought by four mothers and their seven children whose asylum claims were rejected by the very officers charged both with interdicting them and performing a “credible fear review.”
Under 8 U.S.C.§ 1225, when an asylum seeker requests to petition for asylum citing fear of persecution or violence in her home country, immigrations officers “shall refer the alien for an interview by an asylum officer.” This would appear on its face to suggest that the immigration officer and the asylum officer are two separate people, and indeed they were for upwards of twenty years.
But on June 25, 2019, Acting CIS Director Ken Cuccinelli issued a delegation purporting to deputize CBP agents as on-the-ground asylum adjudicators, making them in effect both police officers and judges at the same time. The edict to carry out President Trump’s directive to shove as many refugees out as quickly as possible was later reaffirmed in a January 30, 2020 Memorandum of Agreement.
Under the Immigration and Nationalization Act, asylum officers must be trained in “international human rights law, nonadversarial interview techniques, and other relevant national and international refugee laws and principles” and are obliged to conduct interviews in a “nonadversarial manner.” The Department of Homeland Security argued that CBP officials whose whole job is interdicting border crossers have received comparable training, but the court wasn’t buying it.
The Government contends that CBP agents who conduct asylum interviews receive “trainings consistent with (CIS’s) prior training history and experience” and therefore meet the statutory criteria. Poppycock! The training requirements cited in the Government’s declaration do not come close to being “comparable” to the training requirements of full asylum officers. Under the January MOA, CBP agents receive “approximately 80 hours of distance training and up to 120 hours of face-to-face training.” If “comparable” means “similar or equivalent,” then 2 to 5 weeks of distance and in-person training for CBP agents is in no way “comparable” to at least 9 weeks of formal training for CIS asylum officers. See Am.Heritage Dictionary 180 (4th ed. 2001). Indeed, the Government admits that it decided that “(t)he full scope of training required for USCIS asylum officers is not necessary for (CBP agents) assigned to the limited role of conducting credible fear interviews.” (arguing “the full scope of training” is not required” because of the “other duties” that CIS asylum officers perform that CBP agents do not). However, regardless of the reasoning for DHS’s decision, Congress disagreed. (Internal citations omitted.)
Judge Leon was similarly skeptical of the government’s assertion that “simply ceasing an interview if an agent discovers he or she was involved in apprehending the asylum seeker being interviewed” satisfies the law’s requirement that the proceedings be “nonadversarial.”
In short, words have meaning that can’t be arbitrarily redefined by magical, executive branch incantations. And the president cannot simply issue an executive order that two weeks of training is “comparable” to nine weeks of training and evade the immigration procedures mandated by duly enacted federal statute. No one is above the law — or at least, not yet.
A.B.-8., et al. v. MARK A. MORGAN, Acting Commissioner, U.S. Customs and Border Protection, et al. (Memorandum Opinion, No. 20-cv-846-RJL (D.D.C. August 20, 2020))
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.