Welcome to “The Brief,” a monthly roundup of Democracy Forward’s latest work to hold the Trump administration accountable. Read on below for news of our victories, newest filings, latest case updates, and resources to learn more.


Happy Holidays. All of us here at Democracy Forward wish you a safe and festive holiday season!

2020 is finally ending, and the corrupt Trump administration is wrapping up, but our work is nowhere near over. Agencies are rushing to finalize an avalanche of last-minute policies that could leave lasting impacts after Trump leaves office.

Trust us to keep our eye on the (snow)ball and continue fighting to undo the harmful actions this waning administration takes on its way out the door.

Without further ado, read on to check out our newest case challenging unconstitutional, unchecked power, four fresh-fallen updates on our lawsuits, and how we’re staying vigilant on this admin’s COVID-19 accountability:

Brand new, first-of-its-kind suit filed ⚖️

 

Challenging DHS’s violation of the Constitution by using unappointed CBP agents to fast-track deportations

I.M. v. Wolf, CBP, et al.

What did the Trump admin do? More than 100,000 people are deported from the United States every year on the basis of expedited removal orders. In expedited removal, low-level DHS employees decide non-citizens’ rights and issue fast-track deportation orders that are largely unreviewable.

This power is a “significant authority” that, according to the Constitution’s Appointment Clause, must be exercised by appointed officials. But the low-level DHS agents who issue expedited removal orders aren’t appointed at all. That’s plain unconstitutional.

Who’s harmed? The Trump administration has expanded expedited removal, allowing CBP and ICE agents to issue those orders anywhere in the United States. That puts the lives of millions of people in the hands of unappointed and unaccountable DHS employees.

What we’re doing: Alongside the National Immigrant Justice Center and Latham & Watkins, we filed a habeas corpus petition and complaint seeking to void our client’s expedited removal order and reinstate his visa.

In the news — Law360 | Immigrant Sues Gov’t Over Removal By Low-Level Employees

“Friday’s petition urged the judge to reinstate I.M.’s visa and reverse his removal order… The National Immigrant Justice Center said in a statement that the executive branch is abusing its power and upending many immigrants’ lives. The Trump administration’s unlawful tactics to prevent immigrants and travelers from entering the United States, including expanding expedited removal nationwide, have separated thousands of families and put livelihoods at risk,’ said Mark Fleming, NIJC associate director of litigation.

“Counsel and representatives of the government did not immediately respond to Law360’s requests for comment Monday… I.M. is represented by Democracy Forward, the National Immigrant Justice Center, and Steven P. Croley and James Henry Barker III of Latham & Watkins LLP.”

Learn more about our case here →

Keeping the Trump admin on thin ice 🥶

 

Pressing on w/ suit over Labor Dept.’s unlawful rollback of U and T visa certification policy that protected exploited immigrant workers

The Department of Labor unlawfully and abruptly upended a successful victim-protection visa program by unnecessarily requiring the involvement of criminal law enforcement agencies in the application certification process. Even worse, these changes apply to requests submitted in good faith based on the prior rule.

Even though DHS officials told the Dept. of Labor Wage and Hour Division that its role in detecting criminality and providing “critical evidence” of the applicant’s victimization is invaluable, just days later, DOL chose to eviscerate the successful program.

In contrast to its prior policy, DOL now:

  • Refers worker complaints to a criminal law enforcement agency before certifying a request,
  • Requires that law enforcement agency to agree with DOL’s assessment of a potentially qualifying crime before certifying many requests,
  • And no longer mandates that its certification decisions be made in a timely manner.

These unlawful new requirements discourage immigrant victims of labor trafficking and abuse from reporting workplace crimes to authorities — making it harder for victims to find relief and for exploitative employers to be caught.

Last week, DOL held a public call for idea submissions of how it could improve on combating labor trafficking. So on behalf of NOWCRJ, we left DOL WHD a tip to consider a return to its prior, effective U and T certification policy.

Follow our updates here →

Compelling former VA Sec. Shulkin to turn over his private emails with Trump associates

In the face of our lawsuit, former VA Secretary David Shulkin told a federal court in a sworn affidavit that he has produced all emails pertaining to government business that he sent or received on two personal email accounts while serving at the Department of Veterans Affairs.

Shulkin has previously acknowledged he “set up a new email address” to privately discuss VA policymaking with a group of three men — dubbed the “Mar-a-Lago Council” — who are tied to President Trump through his golf club and who unlawfully influenced VA policy on a sweeping range of issues.

The Federal Records Act requires that all business conducted on behalf of the American people be preserved and kept as part of the public record, including business conducted by private email. Shulkin’s disclosure is a win for accountability and transparency in government.

Look back on the case →

Surfrider Foundation joins suit against DOJ, EPA for unlawfully terminating Supplemental Environmental Projects

Making waves: The Surfrider Foundation — which works to ensure clean water and healthy beaches for all people — has joined Conservation Law Foundation in our suit against the Trump admin’s Justice Department and EPA for the unlawful termination of a successful, decades-old tool that allows polluters to fund environmental clean-up projects for injured communities.

Our lawsuit seeks to set aside a memo by senior DOJ official Jeffery Bossert Clark that wrongly prohibits Supplemental Environmental Projects from being included in pollution-related settlements of federal environmental enforcement actions.

Learn more about our suit here →

“We deserve to be seen” — Foster youth and advocates express need for crucial ACF AFCARS data in new video

The federal Administration for Children and Families still does not collect crucial data on the representation or outcomes of American Indian/Alaska Native or LGBTQ+ youth in foster care and adoption systems across the U.S.

survey released last month by New York City’s Administration for Children’s Services makes the stakes clear: LGBTQ+ youth are remarkably overrepresented in NYC’s foster care system and are more likely to report poor outcomes, like experiencing homelessness, depression, and negative experiences with police.

National data is indispensable. Gutting federal foster care data reporting is yet another part of the Trump administration’s insidious agenda to eliminate programs meant to survey the needs of BIPOC, LGBTQ+, and other marginalized communities.

The Trump administration’s unlawful actions have left marginalized foster youth in the shadows. Now, hear their voices: former foster youth, advocates, and leaders stress the harm of HHS’s rollback in foster care data reporting requirements.

Learn more about the case here →
Sleigh-bells ring, year-end hearings 🔔

 

Snowmen may melt on sunny days, bad actors may leave government, but regardless of the winds of change we will still see our lawsuits through to the end.

Here are our latest (virtual) court appearances:

VoteVets v. Department of Veterans Affairs

Senior Counsel Karianne Jones appeared in the U.S. Court of Appeals for District of Columbia Circuit for a hearing in our lawsuit on behalf of VoteVets against the Trump admin’s illegal outsourcing of veterans policy to the so-called “Mar-a-Lago Council.” Karianne presented the case before Judges Merrick Garland, Cornelia Pillard, and Robert L. Wilkins. Listen to the stream here →


TPS Beneficiaries, Central American Resource Center v. Cuccinelli, Wolf, DHS

Ben Seel, Counsel, appeared before Judge Reggie B. Walton of the U.S. District Court for District of Columbia and described in detail the vulnerable position of TPS beneficiaries, like our clients, if the administration ends the Temporary Protected Status program. In response, the Court instructed the government to provide it with advance notice before DHS can take any steps to remove our plaintiffs. Ben will be back in court next month to argue that the case should proceed to the merits. See the order here →


Robert F. Kennedy Human Rights et al v. Pompeo

Ben Seel also appeared in the U.S. District Court for the Southern District of New York before Judge John G. Koeltl to maintain that the final report of Pompeo’s unlawfully-formed Commission on Unalienable Rights should be barred from use. We’ll be presenting further arguments in the coming months. Learn more →