Latest Update April 4, 2021

Federal Court halts rule, agreed “irreparable harm absent a stay”

Our lawsuit prompted the court to stay the rule as we continue our legal fight to permanently set it aside. The judge wrote that staying the new rules “will best balance the equities at stake and serve the public interest.”

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In the waning days of the Trump administration, the Executive Office for Immigration Review (EOIR) — which operates the nation’s immigration courts under the Department of Justice — has unlawfully moved to deny immigrants their right to a fair hearing in court. The rule makes sweeping changes to immigration court procedures that will deny immigrants due process, cause wrongful deportations, and will actually result in less efficient proceedings, all under the duplicitous guise of “improving efficiency.”

By restricting immigrants’ ability to mount appeals and cutting off their access to existing avenues of legal support, many individuals may get deported without a fair chance for due process in immigration court. The rule’s changes also impose excessive hardships on advocates who serve immigrants in court.

It does so by:

  • Slashing the time allowed to file briefs, making it much harder for immigrants to find counsel to represent them in appeals before the Board of Immigration Appeals (BIA) and for their counsel to represent them in proceedings;
  • Politicizing decision-making in immigration proceedings by allowing EOIR’s director — an unconfirmed non-judicial official — to intervene in cases with new adjudicatory powers while imposing timeframes that prioritize speed over fairness;
  • Eliminating immigration judges’ and the BIA’s authority to administratively close proceedings or reopen them under their “sua sponte” authority to correct manifest injustices, which will deprive judges of essential case management tools and lead to people getting deported even if they are likely to get relief from U.S. Citizenship and Immigration Services;
  • Upending procedures for determining voluntary departure, a form of relief that avoids the devastating consequences of a removal order, such as prolonged family separation;
  • Allowing the BIA to make findings of fact despite its status as an appellate body, without an adequate opportunity for parties to challenge those facts;
  • And effectively prohibiting the BIA from considering evidence when immigrants are newly eligible for protection, such as asylum, based on a change in fact or law.

EOIR’s sweeping rule unlawfully eliminates essential means for immigrants to seek relief within the nation’s immigration courts, violating the Immigration and Nationality Act and requirements in the Administrative Procedure Act. The rule also violates the Fifth Amendment’s guarantee of due process and was unlawfully issued by the EOIR director, who lacks the necessary authority to issue these drastic changes.

We filed suit alongside five immigrant justice groups — the Catholic Legal Immigration Network (CLINIC), Brooklyn Defender Services (BDS), Florence Immigrant and Refugee Rights Project (FIRRP), HIAS (founded as Hebrew Immigrant Aid Society), and the National Immigrant Justice Center (NIJC) — to ask the court to vacate the rule and prohibit it from taking effect.

Our complaint for declaratory and injunctive relief was filed on January 11 in the U.S. District Court for the District of Columbia.

January 12, 2021

As the Trump admin scrambled to finalize policies in waning days, we filed suit.

February 3, 2021

We filed a motion for stay to halt the rule still in effect.

Each day the unlawful rule remains on the books, irreparable harm is done to countless immigrants navigating the nation’s immigration courts. We’re moving to put an immediate halt to the Trump-era rule to protect immigrants’ access to justice and to ensure federal agencies uphold the law.

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March 10, 2021

A similar lawsuit filed in N. California also found the Rule was likely unlawful and enjoined it nationwide.

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April 4, 2021

Our request to stay the rule was granted by federal court.

The judge affirmed that the groups “have shown likely irreparable harm absent a stay” and stated that staying the new rules “will best balance the equities at stake and serve the public interest.” We’ll be continuing our legal fight to permanently set aside the unlawful rule.

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Ben Seel

Counsel

Focusing on justice, national security, immigration, and health care issues.

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Jeffrey Dubner

Managing Senior Counsel

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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