Harvard Immigration and Refugee Clinical Program blocks another Trump administration asylum rule

‘The government keeps crashing the same car into a gate, hoping that someday it might break through’

In a case brought in December by the Harvard Immigration and Refugee Clinical Program, along with other organizations, the U.S. District Court for the Northern District of California last week issued a preliminary injunction blocking a sweeping Trump administration rule that would, plaintiffs say, gut protections for people fleeing persecution and torture. The injunction halts the new rule’s implementation nationwide while the court considers a lawsuit brought by several immigrant rights groups.

“This is the most far-reaching of the midnight asylum regulations unveiled in the Trump administration’s final days,” said Clinical Professor of Law Sabrineh Ardalan ’02, who directs the Harvard Immigration and Refugee Clinical Program. “But try as it may, this administration cannot destroy our asylum system and rewrite our laws by executive fiat. We are confident that this rule will ultimately be struck down for good.”

The rule was signed by Chad Wolf, who has been filling the role of Acting Secretary of the Department of Homeland Security since November 2019. Friday’s ruling from U.S. District Judge James Donato builds on multiple court decisions finding that Wolf lacks the legal authority to head his agency and promulgate regulations, requiring nullification of the rule.

“This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority…to change the immigration regulations,” Judge Donato wrote in a 14-page opinion. “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not. The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts.”

“This is a troubling litigation strategy,” the judge concluded. “In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”

Harvard Law Students Again Play Integral Role

Following the rule’s publication in December, the Harvard Immigration and Refugee Clinical Program joined the Center for Gender & Refugee Studies, and Sidley Austin LLP in filing the lawsuit, Pangea Legal Services II v. DHS, on behalf of four non-profit organizations: Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition.

Despite being near the end of the semester, and with final exams and the holidays and winter break looming, students in the clinic who had been working on this issue once again swung into action.

“Our students were integral to this effort,” Ardalan said. “Over the summer, they drafted a public comment on the proposed rule. And then, when we heard the rule was set to be published on December 11, at the end of the semester, they nonetheless jumped in and drafted portions of the complaint, which we then filed on December 21.”

Rachel Cohen ’22, for instance, worked on submitting written comments urging changes to the proposed asylum rule over the summer at her internship at Legal Aid Justice Center (LAJC). Along with Gabriel Zimmerman ’22, Jason Golfinos ’22, and thanks to resources provided by partner organizations, she drafted sections of the complaint related to the unlawful changes to nexus doctrine outlined in the proposed rule.

Rachel Cohen

Rachel Cohen ’22

“I’ve been interested in immigration law for years,” said Cohen. “Prior to law school, I was a high school teacher and worked with many students who were undocumented, and [the Harvard Immigration Program] was one of the main reasons I came to Harvard.”

“I met Professor Deborah Anker at Admitted Students’ Weekend, joined her reading group, and eventually became a research assistant on her book ‘Law of Asylum,’ as did many other members of my reading group,” she said. “I worked on sections of the book related to nexus, so getting to work on the nexus section of this complaint was exciting because it tied together my research, my summer internship, and other impact litigation work I got to do earlier in my semester with HIRC. Obviously, it’s even more exciting that the [motion for a preliminary injunction] was successful!”

Criticism of Efforts to Deny Relief to Asylum Seekers

“The new rule was one of several regulations eliminating crucial protections for asylum seekers that the Trump administration announced in its final months as part of a rushed effort to try to codify its anti-immigrant agenda,” said Zachary A. Albun, clinical teaching and advocacy fellow at HIRC. “The rule violates the U.S.’s core legal and moral commitments to people who flee here for protection. I hope that as the U.S. moves on from this administration, the federal government adjusts its outlook and recognizes the immigrants in our communities are a source of strength.”

Zachary Albun

Zachary A. Albun, clinical teaching and advocacy fellow at HIRC

If enacted, plaintiffs believe the rule would deprive asylum seekers of due process, imposing new barriers to relief before they even have the opportunity to present their case in immigration court. For instance, they say, the rule allows judges to deny an asylum application without holding a hearing, and establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection, including a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which courts have already struck down as unlawful.

For asylum seekers who are able to get their case before a judge, the plaintiffs argue, the new rule radically redefines who qualifies as a “refugee,” enabling adjudicators to deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.

In his ruling, the judge also criticized the Trump administration’s attempt to approve such a sweeping new regulation with unusually little time for public comment. Despite being 43 pages long in the Federal Register’s three column per page format, he noted, the government provided only 30 days for public comment on the proposed new rule.

“The government did not say in the rulemaking process why such a truncated comment period was warranted, and counsel for the government at the injunction hearing could not provide one,” Judge Donato wrote. “Even so, over 87,000 comments were submitted, and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”

But the government seemed to ignore the negative feedback it did receive, he wrote, acting instead to entrench the severity of the rule’s provisions once it was finally promulgated. “The tidal wave of responses barely made an impact on the government,” he concluded.

Looking Forward

Asked about her hopes for the future, Ardalan says she hopes the change in administrations will lead to a new approach to dealing with U.S. immigration and asylum law.

“There needs to be a path to citizenship for so many people, including DACA recipients, TPS holders, and undocumented people here in the U.S.,” she said. “We need to rethink our immigration system. We need to end immigration detention. And we need to roll back all the terrible things that have been done to the asylum system in recent years, to make sure it provides the protections it was created and designed to provide.”