No Judicial Authority in Challenge to Asylum Policies, Feds Tell Judge

(AP Photo/Gregory Bull)

PORTLAND, Ore. (CN) — The Trump administration told a federal judge Tuesday that there is no legally permissible way for immigrant advocates to challenge what they say is a biased system that, in some jurisdictions, results in fewer than 2% of asylum seekers being allowed to remain in the United States.

Las Americas Immigrant Advocacy Center and other groups including the Southern Poverty Law Center sued the government this past December, claiming the Trump administration’s immigration policies imposed arbitrary timelines that forced judges — all resulting in outcomes in line with the administration’s anti-immigrant animus. The groups said the policies prevent them from providing adequate legal representation to the immigrants they serve and violate laws imposed by Congress.

“In the immigration courts, the tradition of judicial independence has been turned upside down,” the lawsuit states. “Systemic dysfunction and anti-immigrant animus create a Kafkaesque reality where prosecution merges with judging and the ultimate goal is deportation rather than fair adjudication.”

In a hearing Tuesday on the government’s motion to dismiss, Trump administration attorneys said no court can exercise oversight over such policies — even if they are alleged to be illegal. Instead, Assistant U.S. Attorney Brian Ward said immigration cases must be appealed on an individual basis.

That was a route that the advocacy groups called wholly inadequate, as it would not result in the “systemic review” they seek.

U.S. District Judge Karin J. Immergut had questions for Ward. 

“If any administration, now or in the future, any administration adopts policies that violate the statutes, is that reviewable?” Judge Immergut asked. “Assuming the plaintiffs have established that there is some harm to their organization’s resources, because the administration has implemented policies that violate the intention of Congress — let’s just assume that’s true — what would be the recourse? Somehow there’s no review to those claims?”

Ward said it would be up to the individual immigrant to appeal a specific case. If that isn’t sufficient, Ward said, then the advocacy groups are out of luck.

“There’s a way in which these claims need to be brought,” Ward said via telephone conference. “Congress has said if it can’t be brought by an individual alien to the court of appeals, then there is no court that has jurisdiction. Even if that eliminated some type of claim from review entirely, that is permissible.”

Immergut asked, “So even if it violates congressional statutes, you’re saying there would be no reviewability?”

Ward responded: “Congress has said the way we intend to review that is through a concrete individual challenge.”

The advocacy groups claim the government runs the immigration system without regard to fairness, logic or the law. Immigration courts rushed some cases to the point that the legal groups couldn’t properly question witnesses or examine government evidence, while delaying other cases for so long there is a backlog of 1 million pending cases, according to court documents.

Tess Hellgren, an attorney with plaintiff Innovation Law Lab said Tuesday that the enormous backlog is evidence of Attorney General William Barr’s failure to ensure that the immigration system is based on federal law. And the government’s Enforcement Metrics Policy requires immigration judges to hurry asylum cases in order to meet arbitrary benchmarks — or risk losing their jobs, the lawsuit states.

“Some cases are being rushed, while others languish on the docket,” Hellgren said. “Plaintiffs have expended resources to develop cases where their work is wasted because judges are deciding cases on extrajudicial factors.”

But the government said those claims should be dismissed because they aren’t concrete or particular enough.

“All they’re asking for here is the court to speculate that there might be some sort of bias or impact,” Ward said Tuesday.

Immergut was skeptical.

“It seemed to me there was evidence that the administration’s bias influenced policy and the allegation is really a systemic bias that ends up hurting the legal services organization,” she said. “Don’t I have to draw inferences in favor of the plaintiffs at this stage? Why doesn’t saying there is a bias on the part of people who create these policies and that hurts us as a legal organization, why isn’t that enough for a bias claim?”

“That doesn’t mean that the court should accept unfair allegations,” Ward said.

“But they quote officials,” Immergut said.

“Their allegation is that the administration came in and they were biased,” Ward said. “That doesn’t show that there is bias as a whole.”

Immergut took the arguments under advisement and said she would issue a ruling “as soon as I am able.”

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