CLINIC Fights “Midnight Regulations” Through Litigation

Last Updated

January 27, 2021


In the final weeks of the Trump administration, the Department of Homeland Security and the Department of Justice finalized multiple regulations, which, if implemented, would dramatically alter the substantive rights of asylum seekers and other vulnerable noncitizens, and strip away procedural protections in immigration court. Working with colleague organizations, CLINIC has served as an organizational plaintiff to enjoin these unfair, anti-immigrant rules. CLINIC is uniquely positioned to play this role, since we have affiliates in virtually every state and can therefore help make the case to federal courts for the need for nation-wide relief rather than localized injunctions. This article highlights CLINIC’s role in some of these cases.

The prior administration launched an all-out assault on the rights of asylum seekers, culminating in the publication of several asylum regulations that would make it virtually impossible for asylum seekers to win their cases. CLINIC is an organizational plaintiff in two of these lawsuits, Pangea v. DHS and Pangea (II) v. DHS. The first of these cases challenges regulations that greatly expand criminal bars to asylum. Among other changes, this rule would bar from asylum a noncitizen who “smuggled” a family member across the border, who unlawfully re-entered the United States, or who is accused (with no need for any criminal charges) of being a gang member. On Nov. 19, 2020, Judge Illston of the Northern District of California issued a temporary restraining order preventing the rule from going into effect. The government has appealed the ruling to the Ninth Circuit Court of Appeals.

The second case, Pangea (II) v. DHS, challenges the Omnibus Asylum Regulations, also known as the “Death to Asylum” regulations, which would essentially eliminate asylum by requiring denial of gender-based claims, most private actor claims, and requiring discretionary denials in most circumstances. Among other changes, the rule would mandate denials for asylum seekers who have spent more than 14 days in a third country en route to the United States, entered without inspection between ports of entry, or was in the United States unlawfully for more than a year prior to filing. In this case, Judge Donato, also of the Northern District of California, issued a preliminary injunction on Jan. 8, 2021, enjoining the rule nation-wide.

CLINIC is also an organizational plaintiff in two cases challenging regulations that would severely limit noncitizens’ rights in immigration court. In CLINIC v. EOIR, we challenged regulations that dramatically increase filing fees in immigration court and before the Board of Immigration Appeals, or BIA, including raising the cost of a Notice of Appeal from $110 to $975. On Jan. 18, 2021, Judge Mehta of the District Court of the District of Columbia issued an order staying the implementation of most of the increased fees. The Court did not enjoin the $35 increase in fees for motions to reopen before the immigration court, the increased fee for appealing attorney disciplinary proceedings, or the fee for filing an asylum application, because that fee has already been enjoined through other litigation.

Finally, in CLINIC (II) v. EOIR, we challenged regulations that significantly change EOIR procedures, including ending administrative closure, eliminating immigration judges’ and the BIA’s ability to reopen cases sua sponte, and severely restricting briefing extensions before the BIA. The lawsuit seeks an injunction against this rule, but the rule went into effect on Jan.15, 2021.

In addition to CLINIC’s litigation work on these regulations, we serve as counsel in numerous federal court cases, including a challenge to USCIS policy changes that make it more difficult for Temporary Protected Status holders to adjust status to lawful permanent resident (CARECEN v. Cuccinelli), a challenge to USCIS policies that force unaccompanied children to pursue asylum in immigration court when they are entitled to be interviewed in a non-adversarial setting by an asylum officer (J.O.P. v. DHS) and a challenge to Credible Fear Interview guidance that largely prevents asylum seekers with family-based claims from passing their initial screening interviews (S.A.P. v. Barr). We have also engaged in federal litigation to force the government to comply with requests under the Freedom of Information Act to obtain information about: the Department of Homeland Security’s policies on formerly separated families, the termination of Temporary Protected Status designations and United States Citizenship and Immigration Services Special Immigrant Juvenile Status training materials. Federal litigation is an important tool in CLINIC’s toolkit to protect noncitizens from unfair government actions and to shed light on those actions.