This morning a federal judge will hear a challenge to the Trump administration’s recently announced changes to the rules governing asylum.
The changes came mere days after the midterm election and in response to the Central American caravan’s continued approach to the U.S. border. On November 9, 2018, Acting Attorney General Matthew Whitaker and Secretary of Homeland Security Kirstjen M. Nielsen jointly issued new regulations governing asylum claims. Those regulations provide that individuals who enter the United States in contravention of the presidential proclamation suspending entry of aliens through the southern border with Mexico, other than at a port of entry, are ineligible for asylum. The following day, President Trump issued the referenced proclamation.
The American Civil Liberties Union (ACLU) responded immediately, filing suit in a San Francisco-based federal court on behalf of four nonprofit organizations that assist asylum applicants: East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center in Los Angeles. In their lawsuit, the plaintiffs allege that the Trump administration’s newly issued asylum regulations violate the Administrative Procedure Act’s requirement that regulations be published 30 days prior to their effective date. The nonprofit organizations also argue that the regulations violate the Immigration and Nationality Act by barring those who illegally cross the southern border from qualifying for asylum.
On Monday, the ACLU will appear before federal judge Jon Tiger, a Barack Obama appointee, to argue the case and ask the court to issue a nationwide injunction enjoining the Trump administration from enforcing the new regulations. But the plaintiffs will face a high hurdle before the court even reaches the merits of their lawsuit: their standing to challenge the regulations.
These People Simply Don’t Have Standing
The Department of Justice argued in its brief that the plaintiffs lack standing to challenge the regulations at issue. The Trump administration is correct. To sue, a plaintiff must suffer a cognizable injury and, in this case, the changes to the rules governing asylum do not harm the nonprofit organizations.
The nonprofit organizations attempt to skirt the standing rule by claiming that the revised rules will force them “to divert significant resources to, among other things, understanding the new policy,” and “educating and advising its staff, clients, and prospective clients” on the new policy. The plaintiffs also complain the new regulations will reduce their funding, which is partly based on the number of clients they serve. Neither of these claimed injuries are enough for standing.
Perhaps recognizing the weakness of their argument, in a brief filed late Friday, the ACLU changed its tack, arguing for the first time that it has “third party standing” to challenge the new regulations. The ACLU then pointed to plaintiff Al Otro Lado, which is providing “legal assistance and support to nine unaccompanied minors,” including five LGBT children from Honduras who “have legitimate asylum claims.”
The ACLU’s third-party standing argument fares no better, though, for three reasons. First, the plaintiffs did not make this argument in their initial court filing and such belated arguments are waived. Second, even if the plaintiffs had not waived the argument, in order to assert third-party standing Al Otro Lado and the other nonprofit plaintiffs must still suffer an actual injury. It is not enough that the regulations harm third parties not before the court.
But, as noted above, the nonprofits’ claimed injuries—lost funding and needing to divert resources to get up to speed on the revised asylum regulations—are insufficient to establish standing. Finally, the individuals Al Otro Lado claims to represent have not yet entered the United States nor have been denied asylum, so their claims are also not yet ripe for review.
A proper application of governing law should compel Tiger to dismiss the plaintiffs’ lawsuit for lack of standing, leaving the merits of the asylum regulations for another day.
The Merits Are More Debatable
On the merits, it is a closer question. The Trump administration has a strong argument that it was justified in issuing the regulations without the normal 30-day notice period required by the Administrative Procedure Act. That notice period is not required if it would harm important national interests, and the DOJ and HHS reasonably stress that the imminent arrival of the caravan justified the regulations taking effect immediately.
On the other hand, whether the DOJ and HHS have authority to prohibit aliens who illegally cross the border from qualifying for asylum is less clear. By statute, Congress has provided that any alien physically present in the United States “may apply for asylum,” whether or not they entered at a designated port of arrival. But Congress also granted the attorney general discretion to grant (or deny) asylum, and as part of that discretion “the Attorney General may by regulation establish additional limitations or conditions, consistent with this section, under which an alien shall be ineligible for asylum.”
The issue the courts will face, then, is whether the attorney general’s additional condition that aliens enter at a port of entry to be eligible for asylum is consistent with the statutory provision stating an alien may apply for asylum whether he entered at a port of entry or otherwise. The courts have yet to address this question directly, and dicta from the case law could be read to support both the government and the ACLU’s position.
Trump’s Regulations Don’t Mean Returning Foreigners
It is unclear how Tiger will rule following Monday’s hearings, either on the issue of standing—which should be a slam dunk for the Trump administration—or on the merits should the court reach that question. However, should the Trump administration prevail, it is important to stress that the new regulations do not mean that our country will return aliens to their countries of origin to be persecuted or tortured.
To the contrary, the new regulations expressly provide that an alien retains the right to remain in the United States if he establishes a reasonable fear of persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. While under the INA this is called withholding of removal rather than asylum, the end result remains the same. The only difference is the standard of proof governing an alien’s claim.
Therein lies the real regulatory change and the real complaint: To receive asylum, an individual need only have a “well-founded fear of persecution” on account of any one of five protected grounds, which is a lower standard than the “reasonable fear” standard governing withholding of removal. But the “reasonable fear” standard is no high hurdle. It merely requires an individual to prove that such persecution is more likely than not.
While the open-borders crowd might object to any standard of proof, most Americans would find the “reasonable fear” standard strikes a reasonable balance between national interests and humanitarian objectives. The ACLU and other advocate organizations recognize this reality and thus spin the new Trump administration regulations as leaving families and young children facing “the prospect of being sent back to their persecutors.”
But, under the new regulations, the only aliens facing removal to their native lands are those who lack a reasonable fear of persecution. We should know soon whether those regulations will withstand their first legal challenge.