‘Failure Is Striking’: Trump-Tapped Judge Throws Out Administration’s Asylum Restriction
U.S. District Judge Timothy Kelly panned DOJ attorneys for leaning heavily on a single newspaper article in arguing the asylum restriction was exempt from rulemaking procedures.
By Jacqueline Thomsen July 01, 2020 at 08:37 AM
A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.
U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.
In Tuesday’s ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law’s “notice-and-comment” requirement before enacting the rule. He did not address other legal claims made against the policy.
Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA’s “good cause” exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was “not sufficient evidence” to meet the exception.
Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.
“Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded,” Kelly wrote. “In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them.”
The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ’s claims.
“At bottom, as plaintiffs point out, defendants—‘despite studying migration patterns closely’—have ‘failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.’ That failure is striking,” Kelly wrote.
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Those with NLJ access (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link. The link to the full decision in CAIR Coalition v Trump is in the excerpt. I’ll have to admit that as an admirer of CAIR’s unrelenting efforts to protect our Constitution and our legal system from Trump’s racist-inspired lawlessness, the caption of this case is particularly fitting and satisfying.
Bravo for U.S. District Judge Timothy Kelly for taking his job as an independent decision-maker and his oath to uphold the Constitution and the laws of the U.S. seriously!
This decision also casts doubt on the judicial integrity of those Supreme Court Justices who ignored the law to “greenlight” this same invalid regulation in the Barr v. East Bay Sanctuary. So far, the lower Federal Courts that have taken time to examine and reflect on the law have found Trump’s action’s unlawful. Makes one wonder why the Supremes’ majority was so overanxious to “get on with the killing” of refugees when the individual interests are life or death while the government interests are fabricated or highly exaggerated, factually inaccurate, pretexts.
When policy is made by Stephen Miller’s racist talking points rather than expert input and honest deliberation involving the common good, bad things are going to happen to those we are supposed to protect, not reject for fabricated reasons.
Still, Trump shouldn’t worry too much. He can still take his bad faith case to the D.C. Circuit where Judge Naomi “Show Me Where to Sign on My Master’s Bottom Line” Rao awaits. And, then there’s the J.R. Five who have shown the willingness and ability to accept almost any kind of unethical BS laid out by outgoing Trump SG Noel Francicso to “stick it to” vulnerable asylum seekers.
How will “The Five” function come October Term without Francisco to relay Trump’s wishes and to feed them thin cover stories that most lawyers would recognize as phony as a three-dollar bill?
Due Process Forever!
PWS
07-01-20