Washington, D.C. November 1, 2019 – Monday, a group of asylum seekers and the Refugee and Immigrant Center for Education and Legal Services (RAICES), represented by Democracy Forward and the Catholic Legal Immigration Network (CLINIC), pushed back against the Trump administration’s opposition to their request for a nationwide preliminary injunction in a case challenging several recently implemented policy directives that eviscerate protections for families fleeing persecution. The groups argue that the directives are unlawful because they violate the federal immigration laws, the Administrative Procedure Act, and the Rehabilitation Act, and were issued by an unlawfully appointed Trump official, Ken Cuccinelli. The directives are yet another example of the administration’s animus toward asylum seekers, particularly asylum seekers of color.
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The filing also highlights that the administration justified its implementation of the directives with a two-page memorandum that simply referred to the “situation at the Southwest border” without any explanation or supporting evidence for why the directives were necessary.
“The administrative record confirms that the Trump administration stripped legal protections from asylum seekers without any justification or supporting evidence,” said Democracy Forward Counsel John Lewis. “The administration recklessly broke the law in service of a xenophobic agenda, and unlawfully appointed Acting USCIS Director Ken Cuccinelli directed the process.”
Further, Monday’s court submission refutes the administration’s position that the Federal Vacancies Reform Act allows the president to appoint virtually anyone s/he wants to serve in an acting role for a Senate-confirmed position, denying the Senate its Constitutional role in approving high level administration officials. After Senate Majority Leader Mitch McConnell vowed to block Cuccinelli’s confirmation for any role in the Trump administration, the president did an end run around the law by taking the extraordinary step of creating a new office for Cuccinelli in order to install him as the acting head of USCIS.
The directives make it harder for asylum seekers to demonstrate that they have a “credible fear” of returning to their home country, including by unlawfully denying them adequate time to consult with an attorney or other third parties prior to their “credible fear” interview. The stakes here are high; the “credible fear” interview can be the difference between life or death if the immigrant is forced to return to a dangerous homeland where they might fear, among other things, persecution by the government, physical or sexual abuse from a domestic partner, or violence from transnational criminal gangs.
The group’s reply brief in support of its motion for preliminary injunction was filed on October 28, 2019 in the United States District Court for the District of Columbia. The groups will appear in court for oral argument on December 3, 2019.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.