Fertig writes: "With just over a week to go before the end of the Trump Administration, immigration advocates filed a federal lawsuit in the Washington, D.C. district court against a Department of Justice rule they claim would create 'devastating' new barriers to those with cases in immigration court."
A 2018 protest in lower Manhattan against ICE, family separations and US border policies. (photo: M. Stan Reaves/Shutterstock)
13 January 21
ith just over a week to go before the end of the Trump Administration, immigration advocates filed a federal lawsuit in the Washington, D.C. district court against a Department of Justice rule they claim would create “devastating” new barriers to those with cases in immigration court.
The rule, which was announced in December, is set to take effect on Friday. It is being challenged by five immigration advocacy organizations around the country, including Brooklyn Defender Services.
In their complaint, the plaintiffs asked the court to reject a “last-ditch attempt to eviscerate the immigration court system” and the tools they use, as legal service providers, to represent immigrants. They also accused the administration of circumventing “clear legal requirements in the eleventh hour” to achieve goals it couldn’t accomplish through regular means.
They said the rule would make it harder for immigrants to appeal decisions by immigration judges, which are sent to the Board of Immigration Appeals. Both the judges and the BIA are housed within the Justice Department.
If an attorney asks for an extension, the BIA could only grant 14 days more to file their brief; currently it could grant up to 90 days. The plaintiffs said shorter time frames will lead to “summary and erroneous dismissals and deportation orders.”
The BIA also wouldn’t be allowed to consider evidence that immigrants are newly-eligible for asylum and other ways of staying in the U.S., based on a change in fact or law.
Andrea Sáenz, Attorney-in-Charge of the New York Immigrant Family Unity Project at Brooklyn Defender Services, gave the example of a client who has been detained for years and who has a U.S. citizen wife and children. She said a district attorney agreed to vacate his conviction, giving him the ability to apply for permanent residency or Deferred Action for Childhood Arrivals (DACA).
“That kind of motion will not be able to be considered by the agency,” she explained.
She also said litigation is needed to block the rule, even if President-elect Joe Biden plans to scrap it. “The Biden administration will have to go through the formal rule-making process to withdraw it,” Saenz explained, “which will take time, during which immigrants' cases will be subject to the rule and treated more unfairly.”
The Department of Justice doesn’t comment on litigation. But when the agency posted the rule in the Federal Register last month, it said “commenters are incorrect that the rule is intended to have an effect on immigration rates or an alien’s opportunity to be heard.”
It also cited a backlog of nearly 85,000 appeals at the end of fiscal year 2020, noting, “the changes to the rule should help both meritorious claims be adjudicated more quickly, which will benefit aliens, and meritless claims adjudicated more quickly, which will benefit the public and the government.”
But the plaintiffs claim the rule violates due process guarantees in the Immigration and Nationality Act. They also allege it violates the Administrative Procedure Act, the process for federal rule-making that caused the Trump administration to lose other court cases - notably its attempt to end DACA.
Immigration advocates also see the rule as part of a clear pattern.
“The Trump Administration campaigned on punishing immigrants and for the last four years, time and time again made changes to hurt all categories of immigrants across the board, even those with families who have built lives in New York City,” said Rex Chen, immigration director for Legal Services NYC. “Now they are trying to finalize rules just before Trump’s term ends.”
Last Friday, a federal judge in California blocked a rule set to take effect this week that would have made it much harder for immigrants to win asylum based on gender discrimination and gang violence.
According to CBS news, another rule set to take effect a day before Inauguration Day would revive a policy struck down in court last summer that bars non-Mexican migrants, including unaccompanied children, from applying for U.S. asylum at the southern border.
Besides Brooklyn Defender Services, the other plaintiffs in the lawsuit are: Catholic Legal Immigration Network, Inc., Florence Immigrant and Refugee Rights Project, HIAS, and National Immigrant Justice Center.
