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Judge Likely to Block Trump-Era Changes to Immigration Court

The Trump administration said the changes will improve efficiency, but critics say it comes at the expense of fairness and due process in the immigration court system.

SAN FRANCISCO (CN) --- A federal judge signaled Tuesday that she will block a series of Trump-era changes to immigration court procedures that critics say make it harder for noncitizens to fight deportation orders.

The rule finalized on Dec. 16, 2020, limits immigration judges’ power to stay cases, reopen cases, set briefing schedules and grant extensions. The Trump administration argued the reforms are intended to promote efficiency. Critics say the administration did not consider that the changes could prevent immigrants from obtaining relief they are entitled to pursue under federal law.

“I don’t think it’s appropriate to say it’s more efficient this way, even if people are not getting the benefit of relief that Congress provided,” Senior U.S. District Judge Susan Illston said during a virtual hearing.

Centro Legal de la Razza and three other immigration legal services providers sued the Executive Office for Immigration Review (EOIR), an agency of the U.S. Department of Justice, in January. They want Judge Illston to issue a preliminary injunction that would suspend the rule, which took effect on Jan. 15. The rule is currently under review by the Biden administration but remains in effect.

During a hearing Tuesday, U.S. Justice Department lawyer Christina Greer argued the court lacks jurisdiction to review the case. She said federal law bars district courts from reviewing any dispute relating to the removal of an unauthorized immigrant. Her opponents say they are not challenging the removal of a particular immigrant. Rather, they are contesting the legality of a rulemaking process.

Illston, a Bill Clinton appointee, rejected the government’s argument that she lacks authority to review the case.

“I think the court does have jurisdiciton,” Illston said.

The judge also questioned why the Trump administration did not consider a government-commissioned report by Booz Allen Hamilton from 2017 that recommended EOIR work with the Department of Homeland Security (DHS) to “administratively close cases awaiting adjudication in other agencies or courts.” Instead of acting on that recommendation, EOIR decided to limit the power of judges to administratively close such cases in its rule.

Greer could not say why EOIR did not consider the study for its rule, but she insisted the report did not recommend using administrative closures to improve efficiency. Rather, it suggested that EOIR consult with DHS on certain policy changes that could streamline caseloads, she said.

“It did not make a finding that administrative closure would promote efficiency,” she argued.

The rule also expedites briefing schedules and limits briefing extensions for immigration appeals. Immigrant advocates say this makes it even harder for those fighting deportation orders to meet a 21-day deadline for filing briefs.

Some immigrants don’t realize the clock has started ticking until they receive a mailed appeal notice and court transcripts. That can take up to a week, or a third of the 21-day period they have to file briefs, said plaintiffs’ attorney Jingni “Jenny” Zhao of the Asian Law Caucus.

Greer argued immigrants can prepare appeal briefs long before the notices and transcripts are mailed out. They can do so by submitting a Freedom of Information Act (FOIA) request for immigration court records, she said.

“That does not seem to be an efficiency improver,” Illston said. “To require immigrants who don’t have a lawyer yet to file a FOIA to get help on whether they can write their appellate brief.”

The legal aid groups also argued that a 30-day comment period for the rule, which started on Aug. 26, 2020, was too short, especially during a pandemic and at a time when at least four other immigration-related rule changes were pending.

Greer said the government believes the public had an adequate opportunity to participate. She said more than 1,200 comments were received, and that the agency considered and addressed them in its final rule.

“A lot of the comments said we don’t have enough time to give you good comments,” Illston noted.

Greer argued the plaintiffs failed to specify what they would have said had they been given more time.

In their motion for a preliminary injunction, the legal aid groups argued that multiple commenters stated “they were unable to address the interplay of the rule with other proposals --- an issue defendants sidestepped completely.”

Judge Illston found the time for submitting comments was too brief.

“I do believe the 30-day comment period was inadequate and that renders the whole thing arbitrary and capricious,” Illston said.

However, she was less persuaded by claims that the attorney general did not properly delegate rulemaking authority to former EOIR director James McHenry to issue the rule.

“I didn’t find the strength of those arguments to be as strong as the others,” Illston said.

The judge added that she found an amicus brief submitted by 37 former immigration law judges particularly illuminating because it helped illustrate some of “real-life consequences” of the rule.

The former immigration judges wrote that the rule “makes it more difficult for applicants and defense counsel to brief relevant issues and present evidence, creates new challenges for immigration judges to consider extraordinary changes in circumstances and to control the timing of their own docket, and severely limits the [Board of Immigration Appeals’] authority to make legally sound decisions and remain an apolitical rung in the immigration system.”

A motion for a preliminary injunction is also pending in separate lawsuit challenging the same Trump-era rule in the District of Columbia.

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