Trump Immigration Rule 'Divorced From Reality,' Judge Says

By Jennifer Doherty
Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.

Sign up for our California newsletter

You must correct or enter the following before you can sign up:

Select more newsletters to receive for free [+] Show less [-]

Thank You!

Law360 (March 11, 2021, 10:04 PM EST) -- A California federal judge blocked a Trump-era rule aimed at speeding up removal proceedings, calling the government's justification of its 30-day window for public comments "wholly divorced from the reality of the COVID-19 pandemic."

U.S. District Judge Susan Illston's nationwide injunction handed an early victory to four nonprofits fighting the rule Wednesday. Centro Legal de la Raza, Immigrant Legal Resource Center, RAICES and the Tahirih Justice Center challenged the U.S. Department of Justice and its Executive Office for Immigration Review over the rule earlier this year.

Looking at the rule in the context of other immigration regulations also supported the organizations' claims that the government had not given the public adequate time to comment on the far-reaching policy changes, according to Judge Illston.

"Plaintiffs have shown that they are likely to succeed on their claim that the 30 day public comment period provided for the rule was inadequate under the [Administrative Procedure Act], particularly in the context of the global COVID-19 pandemic and the numerous other concurrent regulatory changes to the immigration system, many of which directly intersect with the rule at issue here," she wrote.

The final appellate procedure rule was published in the Federal Register on Dec. 16, the same day as another EOIR rule revamping asylum procedures and filing deadlines. And both rules came five days after the U.S. Departments of Justice and Homeland Security finalized a broader omnibus rule overhauling asylum and withholding of removal.

Two days later, the EOIR finalized a third rule modifying immigration court fees, all while two proposed rules concerning continuances and motions to reopen were pending.

"The staggered nature of this rulemaking in conjunction with other related rules resulted in an arbitrary and capricious failure to consider the combined impact of numerous intersecting policy changes," Judge Illston wrote, noting that "30 days for a rule of this magnitude is already short."

While she acknowledged that there was no hard and fast standard for notice and comment periods in federal rulemaking, the judge nodded at Ninth Circuit precedent stipulating 90 days as the usual window.

In Judge Illston's view, the EOIR's determination that the pandemic would have "no effect" on the adequacy of its 30-day comment period was undercut by a series of statements from interested parties explaining why they were prevented from addressing certain issues about the rule or from commenting at all before the window closed.

Other government entities' recognition of the severe and ongoing difficulties COVID-19 caused in both business operations and people's personal lives further hurt the EOIR's stance, she said.

"These statements are wholly divorced from the reality of the COVID-19 pandemic which has caused significant and numerous hardships throughout society," the judge wrote before returning to her "serious concerns about the piecemeal method in which the departments published this [rule] and other related proposed rules."

Judge Illston further endorsed the immigrant advocates' position that the rule was not the product of reasoned decision-making, pointing out the EOIR completely omitted any mention of a yearlong review of the immigration court system it had commissioned from Booz Allen Hamilton while claiming that the rule's new policies make backlogged U.S. immigration courts more efficient.

Digging deeper into the arguments, she also backed the groups' position that changes to immigration court briefing schedules, new restrictions on administrative closures and limitations on judges' authority to reopen cases were arbitrary and capricious. The immigration advocates also raised "serious questions" regarding the EOIR's adherence to the Regulatory Flexibility Act and then-Attorney General William Barr's delegation of rulemaking authority to then-EOIR Director James McHenry.

Rather than addressing assertions that the rule's faster and more rigid proceedings would deprive people of humanitarian relief they were entitled to receive, the government justified the rule based on its purported efficiency gains, Judge Illston concluded, finding that an injunction weighed in the public's interest.

Jenny Zhao of the Asian Americans Advancing Justice — Asian Law Caucus, which represents the four organizations, called the ruling "a rebuke of the federal government's abuse of power to accelerate deportations" in a statement Thursday.

"But we need more than a pause on one piece of the last administration's inhumane immigration policy," she continued.

Retired Immigration Judge Paul Wickham Schmidt, a former chairman of the Board of Immigration Appeals who was also general counsel to the Immigration and Naturalization Service at the time of the EOIR's creation, likewise praised Judge Illston's order in an interview with Law360 Thursday.

Judge Schmidt, a vocal opponent of the Trump administration's management of the EOIR, characterized the rule as part of a larger effort to discourage immigrants by stacking the courts against them, rather than a good-faith effort to reduce ballooning backlogs.

"When your docket is 1.3 million, it's not the fact that someone is getting a few extra days in a continuance, it's the fact that DHS is adding more cases," he said.

As for whether the DOJ under President Joe Biden would continue defending the rule — as it is for one of the Trump-era asylum rules — Judge Schmidt said it was hard to say. But newly confirmed Attorney General Merrick Garland should prioritize changing the EOIR, as he stated his mission would be to restore nonpartisanship and defense of civil rights as pillars of the department, the judge said.

"If Garland wants to straighten out the Department of Justice, he's got to straighten out EOIR. EOIR is a living refutation of everything Garland says he stands for," Judge Schmidt told Law360.

Representatives for the DOJ did not respond to a request for comment Thursday.

The immigrant advocates are represented by Jingni (Jenny) Zhao, Anoop Prasad and Glenn Michael Katon of Asian Americans Advancing Justice — Asian Law Caucus, Seferina Young Berch, Stephen Chang, Naomi Ariel Igra, Michael O McGuinness, Scott T. Nonaka and Irene Inkyu Yang of Sidley Austin LLP, and Judah Ben Lakin and Amalia Margarete Wille of Lakin & Wille LLP.

The government is represented by Christina P. Greer of the DOJ's Civil Division, and Adrienne Zack of the U.S. Attorney's Office for the Northern District of California.

The case is Centro Legal de la Raza et al. v. Executive Office for Immigration Review et al., case number 3:21-cv-00463, in the U.S. District Court for the Northern District of California.

--Additional reporting by Jack Queen. Editing by Adam LoBelia.

For a reprint of this article, please contact

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!