https://www.law360.com/articles/1282494/planned-asylum-overhaul-threatens-migrants-due-process

Analysis

Planned Asylum Overhaul Threatens Migrants’ Due Process

By Suzanne Monyak | June 12, 2020, 9:34 PM EDT

The Trump administration’s proposed overhaul of the U.S. asylum process, calling for more power for immigration judges and asylum officers, could hinder migrants’ access to counsel in an already fast-tracked immigration system.

The proposal, posted in a 161-page rule Wednesday night, aims to speed up procedures and raise the standards for migrants seeking protection in the U.S. at every step, while minimizing the amount of time a migrant has to consult with an attorney before facing key decisions in their case.

“It certainly sets a tone by the government that fairness, just basic day-in-court due process, is no longer valued,” said Shoba Sivaprasad Wadhia, director for the Center for Immigrants’ Rights Clinic at Penn State Law, University Park, Pennsylvania.

The proposed rule, which will publish in the Federal Register on Monday, suggests a slew of changes to the U.S. asylum system that immigrant advocates say would constitute the most sweeping changes to the system yet and cut off access for the majority of applicants.

Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said that it was as if administration officials took every precedential immigration appellate decision, executive order and policy that narrowed asylum eligibility under this administration and “wrapped them all in one huge Frankenstein rule that would effectively gut our asylum system.”

Among a litany of changes, the rule, if finalized, would revise the standards to qualify for asylum and other fear-based relief, including by narrowing what types of social groups individuals can claim membership in, as well as the very definitions of “persecution” and “torture.”

In doing so, the proposal effectively bars all forms of gender-based claims, for example, as well as claims from individuals fleeing domestic violence.

These tighter definitions and higher standards would make it difficult even for asylum-seekers who are represented to win their cases, attorneys said.

“I worry about how a rule like this can cause a chilling effect on private law firms, or even BigLaw, from even engaging with this work on a pro bono level because it’s just so challenging and this rule only puts up those barriers even more,” said Wadhia.

But for migrants without lawyers, the barrier to entry is particularly profound. For instance, the rule permits immigration judges to pretermit asylum applications, or deny an application that the judge determines doesn’t pass muster before the migrant can ever appear before the court.

This could pose real challenges for migrants who may not be familiar with U.S. asylum law or even fluent in English, but who are not guaranteed attorneys in immigration court.

“If you’re unrepresented, give me a break,” said Lenni B. Benson, a professor at New York Law School who founded the Safe Passage Project. “I don’t think my law students understand ‘nexus’ even if they’ve studied it,” she added, referring to the requirement that an individual’s persecution have a “nexus” to, or be motivated by, their participation in a certain social group.

Dree Collopy of Benach Collopy LLP, who chairs the American Immigration Lawyers Association‘s asylum committee, told Law360 that she thought the pretermission authority was the most striking attack on due process in the proposal, noting that some immigration judges have asylum denial rates of 90% or higher.

“Giving all judges the authority to end an asylum application with no hearing at all is pretty jaw-dropping,” she said. “Those 90%-denial-rate judges are doing that with the respondent in front of them who’s already testifying about the persecution they’ve suffered or their fear.”

The proposal also allows asylum officers, who are employed by U.S. Citizenship and Immigration Services and are not required to have earned law degrees, to deem affirmative asylum applications frivolous, and to do so based on a broader definition of “frivolous.”

Currently, applicants must knowingly fabricate evidence in an asylum application for it be deemed frivolous. But the proposal would lower that standard, while expanding the definition of “frivolous” to include applications based on foreclosed law or that are considered to lack legal merit.

The penalty for a frivolous application is steep. If an immigration judge agrees that the application is frivolous under the expanded term, the applicant would be ineligible for all forms of immigration benefits in the U.S. for making a weak asylum claim, Collopy said.

“And under the new regulation, everything is a weak application,” she added.

Benson also said that allowing asylum officers to deny applications conflicts with a mandate that those asylum screenings not be adversarial.

When consulting for the U.S. Department of Homeland Security during the Obama administration, Benson had once supported giving asylum officers more authority to grant asylum requests on the spot when migrants present with strong cases from the get-go. But with this proposal, DHS “took that idea,” but then went “the negative way,” she said.

. . . .

“I can’t even think of a single client I have right now that could get around this,” Collopy said.

“It’s a fairly well-crafted rule,” said Yale-Loehr. “They clearly have been working on this for months.”

But it may not be strong enough to ultimately survive a court challenge, he said.

The proposal was met with an onslaught of opposition from immigrant advocates and lawmakers, drawing sharp rebukes from Amnesty International, the American Immigration Council and AILA, as well as from House Democrats.

Rep. Jerrold Nadler, D-N.Y., who chairs the House Judiciary Committee, and Rep. Zoe Lofgren, D-Calif., who leads the committee’s immigration panel, slammed the proposal in a Thursday statement as an attempt “to rewrite our immigration laws in direct contravention of duly enacted statutes and clear congressional intent.”

If the rule is finalized — the timing is tight during an election year — attorneys said it would likely face a constitutional challenge alleging that it doesn’t square with the due process clause by infringing on an individual’s right to access the U.S. asylum system.

And while the administration will consider public feedback before the policy takes effect, attorneys said it could still be vulnerable to a court challenge claiming it violates administrative law.

Benson said the proposed rule fails to explain why its interpretation of federal immigration law should trump federal court precedent.

“They can’t just do it, as much as they might like to, with the wave of a magic wand called notice-and-comment rulemaking,” she said.

Yale-Loehr predicted a court challenge to the policy, if finalized, could go the way of DHS’ public charge rule, which was struck down by multiple lower courts, and recently by a federal court of appeals, but was allowed by the U.S. Supreme Court to take effect while lawsuits continued.

If the policy is in place for any amount of time, it will likely lead to migrants with strong claims for protection being turned away, attorneys said. But Yale-Loehr didn’t believe it would lead to fewer asylum claims.

“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”

–Editing by Kelly Duncan.

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Read Suzanne’s full analysis at the above link.

Although nominally designed to address the current Immigration Court backlog by encouraging or even mandating summary denial without due process of nearly 100% of asylum claims, as observed in the article, the exact opposite is likely to happen with respect to backlog reduction.

As Professor Steve Yale-Loehr points out, finalization of these regulations would undoubtedly provoke a flood of new litigation. True, the Supreme Court to date has failed to take seriously their precedents requiring due process for asylum seekers and other migrants. But, enough lower Federal Courts have been willing to initially step up to the plate that reversals and remands for fair hearings before Immigration Judges will occur on a regular basis in a number of jurisdictions. 

This will require time-consuming “redos from scratch” before Immigration Judges that will take precedence on already backlogged dockets. It will also lead to a patchwork system of asylum rules pending the Supreme Court deciding what’s legally snd constitutionally required.

While based on the Court Majority’s lack of concern for due process, statutory integrity, and fundamental fairness for asylum seekers, particularly those of color, shown by the last few major tests of Trump Administration “constitutional statutory, and equal justice eradication” by Executive Order and regulation, one can never be certain what the future will hold. 

With four Justices who have fairly consistently voted to uphold or act least not interfere with asylum seekers’ challenges to illegal policies and regulations, a slight change in either the composition of the Court or the philosophy of the majority Justices could produce different results. 

As the link between systemic lack of equal justice under the Constitution for African Americans and the attacks on justice for asylum seekers, immigrants, and other people of color becomes clearer, some of the Justices who have enabled the Administration’s xenophobic anti-immigrant, anti-asylum programs might want to rethink their positions. That’s particularly true in light of the lack of a sound factual basis for such programs. 

As good advocates continue to document the deadly results and inhumanity, as well as the administrative failures, of the Trump-Miller White nationalist program, even those justices who have to date been blind to what they were enabling might have to take notice and reflect further on both the legal moral obligations we owe to our fellow human beings.

In perhaps the most famous Supreme Court asylum opinion, INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987), Justice Stevens said: 

If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United. States acceded in 1968.

These proposed regulations are the exact opposite: without legislation, essentially repealing the Refugee Act of 1980 and ending  U.S. compliance with the international refugee and asylum protection instruments to which we are party. Frankly, today’s Court majority appears, without any reasonable explanation, to have drifted away from Cardoza’s humanity and generous flexibility in favor of endorsing and enabling various immigration restrictionist schemes intended to weaponize asylum laws and processes against asylum seekers. But, are they really going to allow the Administration to overrule (and essentially mock) Cardoza by regulation? Perhaps, but such fecklessness will have much larger consequences for the Court and our nation.

Are baby jails, kids in cages, rape, beating, torture, child abuse, clearly rigged biased adjudications, predetermined results, death sentences without due process, bodies floating in the Rio Grande, and in some cases assisting femicide, ethnic cleansing, and religious and political repression really the legacy that the majority of today’s Justices wish to leave behind? Is that how they want to be remembered by future generations? 

Scholars and well-respected legal advocates like Professor Shoba Sivaprasad Wadhia, Professor Stephen Yale-Loehr, Professor Lenni Benson, and Dree Collopy have great expertise in immigration and asylum laws and an interest in reducing backlogs and creating functional Immigration Courts consistent with due process and Constitutional rights. Like Professor Benson, they have contributed practical ideas for increasing due process while reducing court backlogs. Instead of turning their good ideas, like “fast track grants and more qualified representation of asylum seekers, on their heads, why not enlist their help in fixing the current broken system?

We need a government that will engage in dialogue with experts to solve problems rather than unilaterally promoting more illegal, unwise, and inhumane attacks on, and gimmicks to avoid, the legal, due process, and human rights of asylum seekers. 

As Professor Yale-Loehr presciently says at the end of Suzanne’s article:

“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”

Isn’t it time for our Supreme Court Justices, legislators, and  policy makers to to recognize the truth of that statement and require our asylum system and our Immigration Courts to operate in the real world of refugees?

Due Process Forever! Complicity Never!

PWS

06-16-20