A Trump administration regulation that would have imposed the most restrictive rules governing asylum in modern American history was blocked Jan. 8 by a federal judge in San Francisco, providing a reprieve to thousands of immigrants from restrictions that, for many, would have likely prevented them from ever gaining entry to the U.S. The decision came on the same day t the 4th Circuit Court of Appeals upheld an judicial blockade against an executive order requiring state and local governments to make the call on whether to accept refugees.
Judge James Donato of the U.S. District Court for the Northern District of California granted a preliminary injunction against a Trump administration regulation claimed by the Department of Homeland Security to be an effort to establish “streamlined proceedings” for asylum decisions. The rule specifies a desire to adopt an “expedited” process for asylees that would forbid admission to the country if an immigrant remains in a country other than their homeland or the U.S. for more than a specified period. Among other features, the rule also, as a practical matter, bars asylum requests deriving from persecution on the basis of gender, gang violence, or domestic violence, and allows immigration judges to deny asylum requests without a hearing.
The rule, which was finalized on Human Rights Day (Dec. 10), had been condemned by asylee advocates. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent,” said Jamie Crook, director of litigation at the Center for Gender & Refugee Studies at the University of California Hastings College of Law in a statement released Dec. 24. “If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”
Donato accepted an argument that the rule, formally labeled Procedures for Asylum and Withholding of Removal [and] Credible Fear and Reasonable Fear Review, is void because the Department of Homeland Security leader who signed it, then-Acting Secretary Chad Wolf, was not confirmed by the Senate and did not lawfully assume the role of acting secretary. Former DHS Secretary Kirjsten Nielsen had ordered a succession plan in April 2019 that determined who would fill the role of secretary if a disaster or an emergency required replacement of that officer, but which did not address the question of succession in the case of a resignation or vacancy created by other means. Nielsen’s order, Donato found, “should have resulted in Christopher Krebs, the Director of Cyber Security and Infrastructure Security, assuming” the office of DHS secretary.
Because the person who actually took over the authority over DHS from Nielsen, former commissioner of Customs and Border Protection Kevin McAleenan, was not her proper successor, his alteration of the line of succession to designate then-Under Secretary Wolf as the department official who would assume the role of acting secretary once McAleenan office left it was invalid. “Because the passing of the torch from Nielsen to McAleenan was ineffective, the attempt by McAleenan to pass it in turn to Wolf had no legal effect whatsoever,” Donato wrote.
University of Denver Sturm College of Law professor César Cuauhtémoc García Hernández said the judicial obstacle to enforcing the rule is one the Trump administration itself created. “The problem here is … the Federal Vacancies Reform Act, which allows the Department of Homeland Security to create its own succession plan,” he said. “When DHS did do that under President Trump, it then did not actually follow the binding plan” it mandated.
Donato’s decision follows four other federal district court opinions that have rejected DHS immigration-related regulatory moves on grounds that Wolf, who resigned in the wake of the Jan. 6 insurrection at the U.S. Capitol, lacked the legal authority to act as acting secretary. One of those opinions, a November 2020 ruling by a federal judge in New York, invalidated the Trump administration’s effort to repeal the Deferred Action for Childhood Arrivals program instituted by President Barack Obama’s administration.
Garcia-Hernández pointed out that the risks to immigrants with a chance for asylum in the U.S. from the rule are great. “Advocates expressed an enormous amount of concern that, in that effort to expedite a silent decision-making, they were actually positioning people to lose viable asylum claims,” he said. The way this would have happened is that immigrants would lose eligibility for asylum if they spent “a significant amount of time in some third country,” according to Garcia-Hernández.
As for the effective bar on gender persecution claims, Garcia-Hernández said the rule would bar asylum even where gender-based persecution is done by gangs with the encouragement or knowledge of a foreign government. This, he explained, would be a troubling development in U.S. law. “Asylum law has never been about saving people from all forms of violence,” Garcia-Hernández said. “It’s very specific.” Included in the violence that can lead to an award of asylum is that perpetrated by governments. “A lot of violence is inflicted with the knowledge of police officers or prosecutors, who either do not prioritize prosecution of gender-based violent conduct or simply permit it,” Garcia-Hernández continued. “They turn the other eye or, in some cases, assist with that kind of violence.”
Potential asylees from the Central American region known as the Northern Triangle are especially vulnerable to this type of neverland of legalism. A November 2017 report by Amnesty International found that “Lesbian, Gay, Bisexual, Transgender and Intersex people are particularly exposed to violence in the Northern Triangle countries.” That reality led the United Nations Refugee Agency to conclude in March 2016 that LGBTI people in the Northern Triangle qualify for asylum protection under the 1951 Refugee Convention and its 1967 Protocol. “We know that, in some Central American countries, gangs have effectively displaced police officers and courts,” Garcia-Hernández said. “In other instances police officers and courts are fully working in partnership with gangs.”
While the U.S. has never joined the Refugee Convention, American law tracks the nation’s general obligation under international law to avoid the refoulement of refugees to their home countries. That is one reason the Immigration and Nationality Act makes asylum available to any “refugee,” a term that covers people who are at risk of “persecution” or who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” and to immigrants whose “life or freedom would be threatened in [their home] country because of [her or his] race, religion, nationality, membership in a particular social group, or political opinion.”
Whether the Department of Justice planned to ask the 9th U.S. Circuit Court of Appeals to stay Donato’s injunction was unclear at press time. The rule would have gone into effect Jan. 11.