The Trump Administration’s last-minute rulemaking on refugee law hit a roadblock on January 8 when a federal district court in San Francisco granted a request from organizations that represent refugees to issue a nation-wide preliminary injunction that will stop the rule from going into effect as scheduled on January 11. District Judge James Donato found that the plaintiffs are likely to prevail on their claim that “Acting” Secretary Chad Wolf of the Department of Homeland Security (DHS) did not have the authority to approve the rule because he was not validly appointed to that position. The court will schedule a hearing soon to consider the plaintiffs’ further argument that the rule violates the Administrative Procedure Act and is inconsistent with federal immigration statutes and treaty obligations. Pangea Legal Services v. U.S. Dept. of Homeland Security, No. 20-cv-09253-JD; Immigration Equality v. U.S. Dept. of Homeland Security, No. 20-cv-09258-JD.
The federal Immigration and Nationality Act authorizes asylum in the United States for any foreign national found to be a “refugee,” which includes any person who cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Determining who qualifies as a refugee is up to the Secretary of Homeland Security or the Attorney General. During the Clinton Administration, Attorney General Janet Reno formally signified that people who suffered persecution on account of their sexual orientation could be considered members of a “particular social group” and since then many LGBTQ people have been awarded asylum in the United States, which allows them to live and work here, to travel abroad and to return. Those who do not qualify for asylum may avoid being removed from the U.S. by showing that their “life or freedom would be threatened” in their home country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” a status referred to as “withholding of removal.”
In addition, the United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. No party to the treaty “shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.” In some cases, LGBT petitioners have been able to claim protection under this Treaty due to the severe mistreatment of LGBTQ people in their home countries.
As part of its general policy of reducing the flow of people from other countries into the United States, the Trump Administration has promulgated a variety of policies formally approved by Chad Wolf, all of which are under attack in the courts. Last June 15, DHS and the Justice Department published a notice of proposed rulemaking in the Federal Register, purporting to establish new rules intended to “streamline” the process of dealing with refugee applicants. As usual with this Administration, “streamline” is a euphemism for sharply restricting the ability of people to qualify as refugees.
Most harmful for LGBTQ applicants is that the rule would eliminate all gender-based refugee claims, would drastically tighten the list of circumstances under which somebody who came to the U.S. without a visa issued by the State Department could claim refugee status and seek to remain here, and would apparently do away with the class of situations where the persecution is perpetrated by non-governmental actors. Despite the complexity of the proposed rules, which took up 43 pages of small-type text in the Federal Register, only 30 days were given for public comment. Judge Donato notes that over 87,000 comments were submitted “and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”
Despite the flood of adverse comments, DHS and DOJ published a final rule in the Federal Register on December 11 that is “substantially the same” as the June 15 proposed rule, and set it to go into effect in one month. The plaintiffs in this case promptly filed their lawsuits, two of which are combined before Judge Donato. Immigration Equality, an LGBT rights organization, is one of the lead plaintiffs, with Lambda Legal and private attorneys helping to litigate the case. The plaintiffs promptly filed a motion to stop the new rule from going into effect while the litigation proceeds.
In granting the motion, Judge Donato described the odd way the Trump Administration failed to comply with established procedures for designating the Secretary of DHS. By statute, the DHS Secretary is to be nominated by the President and confirmed by the Senate, but the last person confirmed by the Senate, Kirstjen Nielsen, resigned effective April 10, 2019, and no new Secretary has been confirmed. Under existing rules, Christopher Krebs, the Director of Cyber Security and Infrastructure Security, was supposed to become “Acting Secretary” and the President was to send the Senate a nomination for a new Secretary to be confirmed. Trump has frequently stated his preference for “Acting” people to head agencies so he could quickly fire them if necessary. Trump tweeted out a statement bypassing the usual procedures, stating that Kevin McAleenan, the Commissioner of Customs and Border Protection, would be the “Acting Secretary.” Since this was not in accord with the succession plan spelled out in a 2016 Executive Order, McAleenan’s appointment was arguably not valid. McAleenan then adopted a succession plan in November 2019 that effectively made Chad Wolf his successor when McAleenan resigned. Since McAleenan was not legally in his position, he did not have the authority to do this, so Wolf’s appointment is also likely invalid.
Since a new regulation requires the approval of the Secretary and there is no validly appointed Secretary of DHS, the plaintiffs have a strong argument that the regulation was not validly promulgated and cannot take effect. At least, Judge Donato concluded, they are likely to prevail on this point when the court reaches the merits of the case. For purposes of deciding on issuing the preliminary injunction that is all he had to decide, putting off to later the plaintiffs’ argument that the regulation is inconsistent with the statute and the country’s treaty obligation.
Judge Donato was scathing in describing the Justice Department’s attempt to justify Wolf’s authority in the face of four previous adverse decisions by federal courts. The government filed appeals of three of those rulings but withdrew two of the appeals and one is still pending. “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” he commented. “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not.” To the judge’s apparent astonishment, the government’s attorney at the hearing on this motion, August Flentje, just argued that the prior court rulings were “wrong, with scant explanation,” which Donato characterized as a “troubling strategy. In effect, the government keeps crashing the same car into the gate, hoping that someday it might break through.”
“A good argument might be made, at this point in time, the government’s arguments lack a good-faith basis in law or fact,” continued Donato, but he concluded it was unnecessary for him to make such a drastic finding, since his own review of the record indicates that “the latest decision before this order correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.”
This case shows the Trump Administration’s general contempt for the federal judiciary, especially (but not only) when a judge appointed by President Barack Obama (such as Judge Donato) is hearing the case. Judge Donato found that letting the rule go into effect would irreparably harm the plaintiff organizations in their missions to represent asylum seekers, and that the balance of hardship between the plaintiffs, the government, and the public interest all tilted in favor of issuing the injunction.
Once a final regulation has been published in the Federal Register, it cannot be simply withdrawn by the next Administration, but this preliminary injunction will give breathing room for the Biden Administration’s incoming DHS and DOJ leadership to put the wheels in motion under the Administrative Procedure Act to terminate or replace it, if the court doesn’t dispose of it first by issuing a final ruling on the merits that it was invalidly promulgated. Issuing the preliminary injunction was a promising first step.
Among the attorneys working on the case are Immigration Equality Legal Director Bridget Crawford and Executive Director Aaron Morris, Lambda Legal attorneys Jennifer C. Pizer, Omar Gonzalez-Pagan and Richard Saenz, and cooperating attorneys Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff and Austin Manes from the law firm Kramer Levin Naftalis & Frankel LLP.