IMMIGRATION
Court Blocks Trump’s Bid to Restrict Refugee Claims
LGBTQ groups hold up anti-immigrant policy in president’s fi nal days in offi ce
BY ARTHUR S. LEONARD
The Trump Administration’s last-minute
rule on refugee law hit a roadblock
on January 8 when a federal district
court in San Francisco granted a request
from organizations that represent refugees
to issue a nationwide preliminary injunction
that will stop the rule from going into effect
as scheduled on January 11.
District Judge James Donato found that the
plaintiffs are likely to prevail on their claim that
“Acting” Secretary Chad Wolf of the Department
of Homeland Security (DHS) — who resigned on
January 11 — did not have the authority to approve
the rule because he was not validly appointed
to that position.
The court will schedule a hearing soon to
consider the plaintiffs’ further argument that
the rule violates the Administrative Procedure
Act and is inconsistent with federal immigration
statutes and treaty obligations.
The federal Immigration and Nationality Act
authorizes asylum in the United States for any
foreign national found to be a “refugee,” which
includes any person who cannot return to their
home country “because of persecution or a wellfounded
fear of persecution on account of race,
religion, nationality, membership in a particular
social group, or political opinion.” Determining
who qualifi es as a refugee is up to the
secretary of Homeland Security or the attorney
general.
During the Clinton Administration, Attorney
General Janet Reno formally signifi ed that
people who suffered persecution on account of
their sexual orientation could be considered
members of a “particular social group.” Since
then many LGBTQ people have been awarded
asylum in the United States, which allows them
to live and work here, to travel abroad, and to return.
Those who do not qualify for asylum may
avoid being removed from the US by showing
that their “life or freedom would be threatened”
in their home country “because of the alien’s
race, religion, nationality, membership in a particular
social group, or political opinion,” a status
referred to as “withholding of removal.”
In addition, the United States is a party to the
United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment
or Punishment. No party to the treaty “shall
expel, return or extradite a person to another
State where there are substantial grounds for
believing that he would be in danger of being
subject to torture.” In some cases, LGBTQ petitioners
have been able to claim protection under
this Treaty due to the severe mistreatment
of LGBTQ people in their home countries.
A court that blocked Trump’s late asylum rule cited Acting Homeland Security Secretary Chad Wolf lack of authority to approve the policy.
Wolf resigned January 11.
As part of its general policy of reducing the
fl ow of people from other countries into the
United States, the Trump Administration has
promulgated a variety of policies formally approved
by Chad Wolf, all of which are under attack
in the courts. Last June 15, DHS and the
Department of Justice (DOJ) published a notice
of proposed rule-making in the Federal Register
that purported to establish new rules intended
to “streamline” the process of dealing with refugee
applicants. As usual with this administration,
“streamline” is a euphemism for sharply
restricting the ability of people to qualify as
refugees.
Most harmful for LGBTQ applicants is that
the rule would eliminate all gender-based refugee
claims, would drastically tighten the list
of circumstances under which somebody who
came to the US without a visa issued by the
State Department could claim refugee status
and seek to remain here, and would apparently
do away with the class of situations where the
persecution is perpetrated by non-governmental
actors. Despite the complexity of the proposed
rules, which took up 43 pages of smalltype
text in the Federal Register, only 30 days
were given for public comment. Judge Donato
notes that over 87,000 comments were submitted
“and they overwhelmingly opposed the proposed
rule, often with detailed reasoning and
analysis.”
Despite the fl ood of adverse comments, DHS
and DOJ published a fi nal rule in the Federal
Register on December 11 that is “substantially
the same” as the June 15 proposed rule and set
it to go into effect in one month. The plaintiffs
in this case promptly fi led their lawsuits, two of
which are combined before Judge Donato. Immigration
Equality, an LGBT rights organization,
REUTERS/LEAH MILLIS
is one of the lead plaintiffs, with Lambda
Legal and private attorneys helping to litigate
the case. The plaintiffs promptly fi led a motion
to stop the new rule from going into effect while
the litigation proceeds.
In granting the motion, Judge Donato described
the odd way the Trump Administration
failed to comply with established procedures for
designating the secretary of DHS. By statute,
the DHS secretary is to be nominated by the
president and confi rmed by the Senate, but the
last person confi rmed by the Senate, Kirstjen
Nielsen, resigned effective April 10, 2019, and
no new secretary has been confi rmed.
Under existing rules, Christopher Krebs,
the director of Cybersecurity and Infrastructure
Security, was supposed to become “acting
secretary” and the president was to send
the Senate a nomination for a new secretary to
be confi rmed. Trump has frequently stated his
preference for “acting” people to head agencies
so he could quickly fi re them if necessary.
Trump tweeted out a statement bypassing the
usual procedures, stating that Kevin McAleenan,
the commissioner of Customs and Border
Protection, would be the “acting secretary.” Since
this was not in accordance with the succession
plan spelled out in a 2016 executive order, McAleenan’s
appointment was arguably not valid.
McAleenan then adopted a succession plan in
November 2019 that effectively made Chad Wolf
his successor when McAleenan resigned. Since
McAleenan was not legally in his position, he did
not have the authority to do this, so Wolf’s appointment
is also likely invalid.
Since a new regulation requires the approval
of the secretary and there is no validly ap-
➤ REFUGEE CLAIMS, continued on p.13
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