In Washington, U.S. District Judge Timothy J. Kelly has ruled against the Trump Administration in its important “third-country asylum rule” — prohibiting undocumented immigrants from claiming asylum in the United States if they did not first try to claim it in a country they passed through on their way to the U.S. border. The ruling is yet another example of how basic failures to follow procedure or submit supporting evidence has hampered the rollout of major policy initiatives. Kelly was not questioning the underlying deference to the Administration or the ultimate merits. Rather as in the recent loss before the Supreme Court under DACA (or the Deferred Action for Childhood Arrivals program), the court found that the government had failed to satisfy the minimal requirements of the Administrative Procedure Act, or APA. Since the start of the Administration, there has been a lack of attention to detail and basic procedure that has resulted in a series of technical violations. It has incurred losses that were not only avoidable but easily avoidable with adherence to the governing case law on the APA.
In 2019, the Departments of Justice and Homeland Security revised 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum along the Southern Border if someone enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.
The prohibition had three limited exceptions, including:
(1) an alien who demonstrates that he or she applied for protection from persecution or torture in at least one of the countries through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country;
(2) an alien who demonstrates that he or she satisfies the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11; or,
(3) an alien who has transited en route to the United States through only a country or countries that were not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The problem was that the rule was promulgated without satisfying the requirements of the APA which is governing federal law. Kelly stressed “There are many circumstances in which courts appropriately defer to the national security judgments of the Executive. But determining the scope of an APA exception is not one of them.”
Notably, such requirements take time but would not have likely changed the policy.
The APA requires, among other things, a notice and comment period. Indeed, it is the best known part of the Act. The Administration, again,, short circuited the process and just dismissed that part of the law. It argued two exceptions. First, under the “good cause” exception, it argued that it did not have to provide notice and an opportunity to comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). Second, it argued under the “foreign affairs function” exception, the normal notice-and-comment requirements do not apply “to the extent that there is involved . . . a military or foreign affairs function of the United States.” Id. § 553(a)(1).
The problem is that the law in the area is clear. This Circuit, like most, has taken the inverse perspective. When the scope of a change is greatest, so is the “the greater the necessity for public comment.” American Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
What is notable is that the court states that, as in the DACA case, the Administration simply declined to submit support for the application of the exceptions. Thus, on the second exception, it stressed:
“The Court reiterates that there are many circumstances in which courts appropriately defer to the national security judgments of the Executive. But determining the scope of an APA exception is not one of them. As noted above, if engaging in notice-and-comment rulemaking before implementing the rule would have harmed ongoing international 47 negotiations, Defendants could have argued that these effects gave them good cause to forgo these procedures. And they could have provided an adequate factual record to support those predictive judgments to which the Court could defer.25 But they did not do so.”
Judge Kelly presents a cogent and convincing opinion on why the Administration cannot simply dismiss this requirement of federal law. Once again, however, this is a procedural not a substantive victory. This is a loss based on how a new policy was executed, not what that policy sought to achieve. To put it simply, this is yet another self-inflicted wound.
Here is the opinion: CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION et al v. TRUMP et al