Biden Looms Over Trump’s Asylum Rule Clash At DC Circ.
Law360 (December 8, 2020, 11:09 PM EST) –
A D.C. Circuit judge on Tuesday questioned whether the incoming Biden administration’s likely plan to undo President Donald Trump’s push to strip asylum eligibility from migrants who cross the southern border outside a designated port of entry will moot ongoing litigation over the current White House policy.
President-elect Joe Biden’s vow to undo several of his predecessor’s policies was discussed by a three-judge panel examining the administration’s bid to undo U.S. District Judge Randolph Moss’ August 2019 ruling vacating the restrictive asylum rule. The trial judge found that the rule plainly runs afoul of the Immigration and Nationality Act’s provision that says any migrant “physically present in the United States or who arrives in the United States … whether or not at a designated port of arrival” can apply for asylum.
During Tuesday’s oral arguments, Senior U.S. Circuit Judge A. Raymond Randolph, who expressed sympathy toward the government’s request to overturn the trial court ruling, asked an attorney for immigration groups representing asylum-seekers whether Biden’s move would moot the case.
“This is a pure hypothetical. Let’s suppose that the Biden administration, if it becomes an administration, on the first day, Jan. 20, repeals [Trump’s order],” the judge said.
“We think it would be entirely appropriate for the courts to hold this case in advance, pending the inauguration, to see what happens,” Hogan Lovells‘ Mitchell Reich said. “I think we would need to see … whether there’s legal relief” that moots the case.
Chief U.S. Circuit Judge Sri Srinivasan, who often seemed likely to affirm the lower court order, later interjected that it appears the incoming administration will moot the case.
The administration’s asylum rule, issued in November 2018 by the U.S. Department of Justice and the U.S. Department of Homeland Security, was quickly challenged in California and D.C. federal courts. In California, a district judge granted a coalition of immigrant legal service groups’ bid for a preliminary injunction. A Ninth Circuit panel unanimously affirmed the lower court’s ruling in February, finding that the restriction on asylum eligibility violates federal immigration laws.
In his order last year, Judge Moss had also certified a nationwide class of migrants affected by the rule, rejecting the government’s argument that he lacked jurisdiction over the case and that the immigrant plaintiffs had no standing to sue.
On Tuesday, DOJ attorney Erez Reuveni asserted again that the groups who provide legal assistance to migrants lacked standing to challenge the asylum eligibility rule because their alleged need to adapt their work to changed legal conditions does not thwart their missions. In this case, the attorney insisted, only asylum-seekers may raise the claims alleged but either in individual removal proceedings or in federal court.
It’s the government’s view that the rule does not contradict federal law allowing migrants to apply for asylum, and that it does not prevent asylum eligibility for all migrants who entered the country illegally. In a recent filing to the appellate court, the administration maintained that the rule would deny asylum only to those who enter in contravention of a specific presidential proclamation tailored to the current circumstances at the border.
Judge Srinivasan voiced skepticism to Reuveni’s jurisdiction argument, drawing parallel with the U.S. Supreme Court‘s decision this summer blocking Trump from terminating the Deferred Action for Childhood Arrivals program, which shields hundreds of thousands of young unauthorized immigrants from deportation.
In that case, Department of Homeland Security et al. v. Regents of the University of California , Judge Srinivasan said the high court rejected a similar jurisdiction argument and pointed out that INA, “which bars review of claims arising from actions or ‘proceedings brought to remove'” a migrant “is inapplicable where, as here, the parties do not challenge any removal proceedings.”
In the matter before the D.C. Circuit, Judge Srinivasan reasoned, among other things, that the parties aren’t challenging any removal proceedings but the rule on asylum ineligibility itself.
In a hypothetical question, the judge later asked: “If the individuals get past the jurisdictional bars that you’ve asserted, and they have standing and you don’t contest the individual standing, and they fall within the zone of interest, does it matter if the organizations don’t?”
“No, I don’t think it does,” Reuveni said. “If you have one party with statutory jurisdiction and standing, then I think, under this court’s cases, it’s a no.”
In defense of the lawsuit, Reich said his clients aren’t arguing that the right to apply for asylum guarantees eligibility.
“Instead, the right to apply, irrespective of status, and whether or not you inserted a point of entry guarantees that you won’t have an application denied on that exact characteristic,” he said. “But there is a right to apply whether or not you entered a port of entry.”
In an exchange with Williams & Connolly LLP partner Amy Mason Saharia, another attorney for the migrants in the case, Judge Randolph cast strong doubt on the plaintiffs’ push to affirm the lower court order.
“Your claim is a facial challenge, so that includes a subset of the individuals who are affected by the rule,” the judge asserted. “But what about all the others? And what about the felons?”
Saharia shot back, “These people, all of these plaintiffs were categorically ineligible for asylum and otherwise would have been eligible. None of the plaintiffs are felons.”
The attorney acknowledged that none of her clients applied for asylum because they were “apprehended before they had the opportunity to do so.” But the fact that “apprehension forced them to raise their claims defensively changes nothing about the legal nature of those claims,” Saharia added. “The legal claims are the same for our plaintiffs and for individuals who would have applied affirmatively for asylum.”
U.S. Circuit Judge Karen Henderson, who was also on the panel, did not ask any questions during the hearing.
U.S. Circuit Judges Sri Srinivasan, Karen Henderson and A. Raymond Randolph sat on the panel for the D.C. Circuit.
The asylum-seekers are represented by Williams & Connolly LLP, Hogan Lovells, Human Rights First, National Immigrant Justice Center, Refugee and Immigrant Center for Education and Legal Services Inc. and Capital Area Immigrants’ Rights Coalition.
The government is represented by the U.S. Department of Justice’s Civil Division.
The case is O.A. et al. v. Trump et al., case number 19-5272, in the U.S. Court of Appeals for the District of Columbia Circuit.
–Editing by Michael Watanabe.
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