ACLU’s lawsuit may force Trump to stop granting asylum applications

The American Civil Liberties Union (ACLU) is suing Attorney General Jeff Sessions to prevent his domestic abuse decision from being used for credible fear determinations in expedited removal proceedings.

Sessions is trying to eliminate the need for asylum hearings on applications that are based on improper persecution claims. These meritless cases are contributing to an immigration court backlog crisis. If he is prevented from doing this by issuing precedent decisions to provide guidance on how asylum cases are supposed to be handled, the administration will resort to more extreme measures. 

{mosads}The United States does not have to grant any asylum applications. Asylum is discretionary, and the Supreme Court has held that the president can suspend the entry of aliens into the United States when he finds that their entry “would be detrimental to the interests of the United States.”

The court declined to decide whether “some form of inquiry into the persuasiveness of a president’s finding is appropriate.” It seems unlikely, however, that the court would reject a president’s finding that discretionary asylum grants should be suspended until the immigration court backlog crisis is brought under control because allowing the backlog to continue is detrimental to the interests of the United States.

This would not leave asylum seekers without a way to avoid persecution. Withholding of removal is available too and it is mandatory when eligibility has been established. The main difference in eligibility requirements is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that it is more likely than not that he will be persecuted.

But withholding does not entitle aliens to remain in the United States. It just prevents them from being deported to a country where they will be persecuted 

The backlog crisis.

The backlog has risen every year since fiscal 2006. It reached 733,365 cases in June 2018. The average wait time for a hearing is 717 days — just shy of two years.

This has resulted in ICE making fewer arrests of deportable aliens from the interior of the country. Deportations of aliens from the interior have dropped by almost 50 percent in the last five years, and that number has continued to decline since January 2017, when President Donald Trump began his presidency.

Even with no new arrests, it would take four years to eliminate the backlog.

Expedited removal proceedings.

Expedited removal proceedings are supposed to prevent aliens from getting into the country for asylum hearing on the basis of asylum claims that do not have a significant chance of success. If they can’t establish a credible fear of persecution, they are removed without further proceedings. 

According the Executive Office for Immigration Review, cases originating with credible fear findings have risen from 3,127 in fiscal 2008 to 68,077 in fiscal 2017.

The total number of asylum applications in immigration court proceedings has risen from 13,213 in fiscal 2008 to 120,094 in fiscal 2017. This includes asylum applications that did not originate in expedited removal proceedings.

Only 6,995 of the 120,094 applications were granted. 

The low grant rate can’t be attributed to Trump’s allegedly hostile attitude towards immigrants. The number of grants during the last year of the Obama administration was only 4,863.

Congress has severely limited federal court jurisdiction over expedited removal proceedings.  

With one exception, the statutory provisions on “Judicial review of orders of removal” provide that no court shall have jurisdiction to review a removal order issued in expedited removal proceedings. 

The exception is habeas corpus proceedings to determine whether an alien should not be in expedited removal proceedings because he is a lawful permanent resident or has been granted refugee or asylum status.

Challenges to the validity of the system, however, are treated differently. Review is permitted to determine whether sections of the expedited removal provisions, or regulations issued to implement them are constitutional.

Review also is permitted to determine whether such regulations, a written policy directive, written policy guideline, or written procedure issued to implement expedited removal proceedings are inconsistent with the provisions on judicial review of removal orders or are otherwise in violation of law.

But ACLU’s claim isn’t based on a challenge to any of the expedited removal proceedings statutory provisions or written directives for implementing those provisions. ACLU is trying to prevent the implementation of an asylum law precedent.

If ACLU prevails, expedited removal orders will be subject to court scrutiny whenever they were impacted by the issuance of a new asylum law precedent, and the statutory provisions on judicial review make it very clear that Congress wanted to prevent that from happening.

Moreover, it isn’t necessary. The judicial review provisions provide for administrative and federal court review of such precedent decisions in regular removal proceedings, which is where ACLU should be litigating this case.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.