This past Friday, the Department of Homeland Security’s random policy change deeming youths between the ages of 18 and 20 years old ineligible for special immigration protection ran into a brick wall in the form of the U.S. District Court for the Southern District of New York.  In his decision in R.F.M. v. Nielsen, Judge John G. Koeltl held that DHS’s sudden policy shift denying Special Immigrant Juvenile Status (or SIJS, for short) to qualified youths over the age of 18, a group that it had previously approved under the same statute for nearly three decades, (1) was contrary to the plain language of the statute it claimed to interpret; (2) lacked a reasonable explanation, (3) was premised on an erroneous interpretation of state law, and (4) was not enacted with adequate notice, as required by the Administrative Procedures Act.  For these reasons and more, Judge Koeltl concluded that the policy shift was arbitrary and capricious, in excess of statutory jurisdiction, and without observance of the procedure required by law. The judge further granted the plaintiffs’ motions for class certification and for summary judgment.

What exactly did DHS do to invoke such a strong judicial rebuke?  SIJS was created by Congress in 1990 to provide a path to legal residence for immigrant youths who have suffered abuse, neglect, or abandonment.  The statute defines juveniles eligible for such benefit as those under the age of 21, and applicants under that cut-off age were generally afforded such status.  However, in early 2018, the present administration suddenly and without warning began denying applications involving applicants over the age of 18. Sounding very much like Herr Zeller in The Sound of Music claiming that “nothing in Austria has changed,” government counsel attempted to argue that there had been no change in policy, a claim that Judge Koeltl outright rejected in light of clear evidence to the contrary.  As the L.A. TImes reported in January, the impact of the policy shift was magnified by another DHS policy directive to commence deportation proceedings against those whose applications for benefits are denied, an action that had previously rarely been taken against juvenile applicants.

What immediately struck me about the new DHS policy at the time of the shift was its position that the New York Family Court lacked jurisdiction over youths who had reached the age of 18 as a basis for denying the petitions.  How could a federal agency feel it had the right to rule on a state court’s jurisdiction over a matter of state law? Of course, Judge Koeltl noted in his decision that in spite of a USCIS Policy Manual requiring the agency to rely on the state court’s expertise on such matters, and prohibiting the agency from reweighing the evidence itself or substituting its own interpretation of state law for that of the state court,  DHS nevertheless did exactly that, substituting its own interpretation of New York law for that of the New York Family Court in arguing for that court’s lack of jurisdiction. Of course, DHS’s improper interpretation wasn’t even a correct one; with the judge finding that DHS’s conclusion “is based on a misunderstanding of New York State law.”

Just in case there was any doubt as to its bad faith, the Government even opposed the motion that the young Plaintiffs be allowed to proceed anonymously in the action, identified only by their initials.  What possible reason other than harassment could DHS have in opposing such motion made by young plaintiffs who had suffered abuse or abandonment?

Not coincidentally, there has been a surge in SIJS-eligible youth arriving at the border in recent years, with most coming from the besieged Northern Triangle countries of El Salvador, Guatemala, and Honduras.  Youths in those countries run a shockingly high risk of being targeted for domestic violence, forced gang recruitment, and other physical and psychological harm. These are children that we are talking about. Nevertheless, the Trump Administration has consistently targeted citizens of these countries, inaccurately labeling them as criminals and deriding the legitimacy of their motives for seeking refuge in this country.  And, like pieces in a puzzle, the shift in SIJS policy is just one more way that the Trump Administration has created obstacles for a group it should be seeking to protect.

Hats off to the Legal Aid Society and the law firm of Latham and Watkins for their outstanding representation of the plaintiffs.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

Here’s a link to the “full text” of the case Jeffrey discusses, courtesy of our good friend Dan Kowalski over at ltl G. Koeltl

https://drive.google.com/file/d/1tItg1FYOtkm_eqI_oDeWuuofA6p-ZObl/view?usp=sharing

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What about the DOJ attorneys who are defending these patently illegal actions in court, often without providing any rationale that would pass the “straight face test?” Why is it OK to present “pretextual” reasons for policies that publicly available information shows are actually based on bias, undue outside influence, ignoring facts, and sometime outright racism, and xenophobia? Why are DOJ attorneys and their supervisors, who are also members of the bar, allowed to operate in an “ethics free zone?”

Don’t expect any help from newly minted Trump sycophant AG Bill Barr. Despite his “Big Law Corporate Patina” and his bogus claim that he seeks to “restore confidence” in the DOJ, his first project is reputed to be a scurrilous Trump-type attack on Federal Judges issuing nationwide injunctions who are among those (the private, often pro bono, bar and NGOs being others) having the courage to stand up for the rule of law and our Constitution against the outrageous onslaughts of Trump, his cronies, and his team of disingenuous lawyers who seem to believe that they have been immunized from the normal rules of ethical and professional conduct.

No, Barr isn’t just a “conservative lawyer.” I actually worked for a number of  very “conservative” lawyers both in and out of Government. While I didn’t always agree with their policies and their legal arguments (that wasn’t a job requirement), I did find them willing to listen and consider “other views” and occasionally be persuaded. Moreover, they all had a respect for both our legal system and the Constitution, as well as Federal Judges and those on “the other side” of issues that I find completely, and disturbingly lacking in the Trump Administration and its “ethnics free” legal team.

Not only are the efforts of the Trump Administration to “undo” provisions of our law that “work,” promote justice, and save lives illegal and immoral, they also are tying up rousources with frivolous and unnecessary litigation. What if all of that time and effort were put into solving problems and making our country better, rather than destroying it?

PWS

03-20-19