At the moment nobody cares about immigration. After the president recently instigated a riot that resulted in his second impeachment and literally a million new COVID-19 infections this week, that’s probably fine.
However, these distractions make it a great time for news to fly under the radar. So I looked around and I’m sure a federal judge pretty much saved the asylum law last week.
The case concerned a new asylum rule by the Trump administration, which became final in December after the administration ignored all public comments on it. The declared aim of the new regulation was to “streamline” the asylum procedure, which is achieved by limiting the right to asylum. Immigrant advocates call it “death in the asylum” and that’s not exactly an exaggeration. The rule would establish a presumption against the granting of asylum based on claims from:
“Interpersonal animus or retaliation,” the definition of the persecuted sex that excludes both victims of domestic violence (who are predominantly female) and trans people from a range of organized crime-related conditions that are clearly aimed at excluding the escape of asylum seekers from gang-controlled gangs Blackmail in Central America, which is also an organized crime issue
The rule would also deny asylum to people who spend more than two weeks in a third country before reaching the United States and allow judges to deny some asylum claims without bothering to hold a hearing.
So, of course, people complained – twice. These lawsuits make the usual arguments of the Immigration and Nationality Act and the Administrative Procedure Act. However, both lawsuits were filed in late 2020, after which several courts had already ruled that acting DHS secretary Chad Wolf was not lawfully appointed. I’ve written about it before and I can’t stop mentally cackling about it because it’s such an easy mistake. The tl; dr is that there are constitutional and legal rules about who will succeed a Senate-approved DHS secretary and Trump has not obeyed them twice so Wolf has no power to make rules. You don’t have to take it from me; That’s what the GAO said in August.
On this basis, nonprofit immigration organizations scored four victories in 2020. On January 8, Justice James Donato of the Northern District of California ranked fifth and issued an injunction against the new asylum rule. And he made it clear that he wasn’t pleased:
If the government had come up with new facts or laws or an argument that had not been considered on this issue, it might have been a worthwhile exercise. It has not. The government has recycled the exact same legal and factual claims made in the previous cases, as if they had not been reasonably dismissed in reasoned submissions from multiple courts. This is a problematic process strategy. In fact, the government keeps crashing the same car into a gate, hoping that one day it could break through.
Also, according to Courthouse News, Donato didn’t crush any words at a hearing the previous day: “The government is still on the same 8-track tape and the sound is not getting any better.” (An 8-track format is an analog format for storing recorded music, kids.) He also compared Wolf to “a squatter in a rented building”. When a DOJ attorney argued that the judge should investigate former DHS secretary (and documented liar) Kirstjen Nielsen’s intention to change the order of succession even though she did not, the judge said, “You are not peddling any further the same bucket of fish until someone buys it. “
The good news is that most of these people will be put out like the trash they have next week and the Biden administration is free to cancel the rule. But they won’t have Wolf anymore to kick around because he stepped down as acting secretary on Monday. One of the reasons cited was that court rulings challenged his authority. Here’s a high five to the public interest attorneys who made this possible. Uno por uno.
Lorelei Laird is a freelance law writer and the only person you know who still has an I Believe Anita Hill bumper sticker. Find them at wordofthelaird.com.