Circuit Court Narrows D.C. Judge’s Injunction on Trump Border Restrictions

On July 7, I reported that Judge Randolph Moss of the U.S. District Court for the District of Columbia had issued an order blocking restrictions implemented by President Trump that have brought an unprecedented level of security to the Southwest border. DOJ appealed, and on August 1, a three-judge panel of the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) narrowed that order in a decision that’s kind of a win for the administration, and kind of not.

Proclamation 10888

This all started on Inauguration Day, when Trump issued Proclamation 10888, “Guaranteeing the States Protection Against Invasion”.

Under congressional authority provided the president in sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), section 1 of the proclamation suspended the entry of “aliens engaged in the invasion across the southern border” (i.e., illegal entrants) and section 2 restricted their ability to apply for asylum under section 208 of the INA.

Again relying on sections 212(f) and 215(a) of the INA, section 3 suspended the entry of both illegal entrants and aliens stopped at the ports who failed “to provide Federal officials with sufficient medical information and reliable criminal history and background information” necessary to determine whether they are inadmissible under sections 212(a)(1) through (3) of the INA barring admission of aliens on health-related, criminal, and national security grounds, respectively.

Relying on the federal government’s duty to “protect each state against invasion” in Article IV, section 4 of the U.S. Constitution, section 4 of Proclamation 10888 again “suspend[ed] the physical entry of any alien engaged in the invasion across the southern border of the United States”.

Turning again to sections 212(f) and 215(a) of the INA (and to the Constitution generally), section 5 directed DHS, DOJ, and the State Department to “take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States”.

RAICES v. Noem

On February 3, a group of NGOs filed a complaint in the D.C. District Court in Refugee and Immigrant Center for Education and Legal Servs. [RAICES] v. Noem, contending — among other things — that the proclamation violates the “asylum statute” at section 208 of the INA, the “withholding of removal statute” at section 241(b)(3) of the INA, and provisions of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implementing the U.N. Convention Against Torture (CAT).

Asylum, withholding of removal under section 241(b)(3) of the INA (also called “statutory withholding”), and CAT are forms of protection that bar DHS from removing an alien from the United States. The two latter protections — which are premised on international agreements — are more limited in the benefits they convey than the former.

Simply put, aliens granted asylum are placed on a path to a green card and citizenship and can petition for their immediate family members to come to the United States, whereas a statutory withholding or CAT grant simply bars DHS from deporting aliens to a designated country or countries.

While section 208(a) of the INA permits “any alien who is physically present in the United States or who arrives in the United States” to apply for asylum, section 208(b) of the INA allows the attorney general and secretary of DHS to deny asylum to aliens who satisfy the statutory burdens for that protection in the exercise of discretion.

Neither the attorney general nor the DHS secretary, however, can deny statutory withholding or CAT to aliens who show eligibility in the exercise of discretion. Overly simplistically, asylum is a “discretionary” protection the president, DHS, and DOJ can bar aliens from receiving, whereas statutory withholding and CAT are “mandatory” protections.

Judge Moss’s Opinion

RAICES was assigned to Judge Moss, and on July 2, he issued an opinion ruling on the plaintiffs’ claims.

In that opinion, Judge Moss granted plaintiffs’ pending motion for summary judgment, finding neither section 212(f) nor the Constitution permit the president to “abrogate” the INA with respect to illegal migrants’ ability to seek asylum, statutory withholding, and CAT.

Next, over DOJ’s opposition, he certified a class “consisting of all individuals who are or will be subject to the Proclamation and/or its implementation and who are now or will be present in the United States”. (Emphasis added.)

Finally, he enjoined the government “from implementing the Proclamation to remove” members of that expansive class “using non-statutory repatriation or removal proceedings”, i.e., without subjecting them to expedited removal, placing them in removal proceedings under section 240 of the INA, or reinstating their previously issued removal orders under section 241(a)(5) of the INA (which I’ll discuss below).

DOJ’s Stay Application

In his opinion, Judge Moss stayed his orders for 14 days to give the government an opportunity to seek a stay from the D.C. Circuit, and on July 7, DOJ filed an emergency motion for a stay pending appeal of Judge Moss’s opinion to the circuit court.

On July 11, the D.C. Circuit granted a temporary administrative stay of that order (which exempted individual named alien plaintiffs) pending the panel’s further consideration, and set the matter for expedited briefing.

D.C. Circuit’s Per Curiam Order

On August 1, the three-judge panel issued a per curiam order (unsigned but for the court as a whole) dissolving its earlier administrative stay and denying in part and granting in part DOJ’s application for a longer stay.

On the upside for the Trump administration, that stay blocked (for now) Judge Moss’s order to the degree that it vacated portions of the proclamation barring illegal entrants from applying for asylum, and narrowed the scope of that order to aliens “present in the United States while Proclamation 10888 and/or its implementation is in effect” — not to those who may come later.

On the downside, the panel denied the government’s request for a stay of the District Court order as it relates to aliens seeking statutory withholding and CAT.

In other words, DHS won’t for now have to consider whether aliens who come illegally are eligible for asylum, again a discretionary form of protection, but it does have to screen those aliens for statutory withholding and CAT claims.

Each of the three judges issued a separate opinion, with Judge Patricia Millett concurring in the per curiam order and Judges Cornelia Pillard and Gregory Katsas concurring in part and dissenting in part. Each had his or her own points, but Judge Millett’s concurrence reflects the consensus of the trio.

The Practical Implications

Under that order, DHS must screen aliens who come to the borders and the ports illegally to determine whether they have facially valid claims of persecution (for statutory withholding) or torture (for CAT) before they can be removed. Here’s how that will work — and the problems the administration will face.

Even under Judge Moss’s order as amended by the D.C. Circuit, section 235(b)(1) of the INA permits CBP officers and Border Patrol agents to summarily remove aliens without proper admission documents who enter illegally under “expedited removal”.

As Judge Millett noted, regulations implementing that expedited process require officers to “read a form to” aliens subject to expedited removal “‘saying U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country’”, and instructing those aliens “to advise the officer about any ‘fear’ or ‘concern’ about ‘being removed from the United States or about being sent home’”.

If aliens subject to expedited removal thereafter claim a fear of persecution or torture if returned, they must be interviewed by USCIS asylum officers to determine whether they have a “credible fear of persecution” before those aliens can seek asylum from an IJ.

The expedited removal statute defines a “credible fear of persecution” as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.

Note that the expedited removal statute only mentions asylum eligibility, but regulations at 8 C.F.R. § 235.3(a)(4) extend that asylum officer review to cover CAT, too, requiring USCIS asylum officers to also determine whether aliens have a credible fear of torture.

Also, however, note that a separate “reasonable fear” regulation at 8 C.F.R. § 208.31 requires asylum officers to screen aliens who return illegally after a prior deportation and claim a fear of persecution and torture specifically for statutory withholding and CAT claims.

As alluded to above, section 241(a)(5) of the INA permits DHS to “reinstate” aliens’ prior removal orders without first issuing a new expedited removal order or obtaining a formal removal order from an immigration judge.

That regulation requires the department, however, to allow those aliens to make persecution and torture claims before they are removed.

Aliens subject to reinstatement aren’t eligible for asylum, but may be eligible for statutory withholding and CAT, and 8 C.F.R. § 208.31(c) provides rules asylum officers must follow in determining whether aliens subject to reinstatement may be eligible for those protections, a process referred to as “reasonable fear” review to distinguish it from the lower statutory “credible fear” standard.

To be granted statutory withholding, aliens must show it’s more likely than not they will be persecuted if returned on account of race, religion, nationality, membership in a particular social group, or political opinion; and to receive CAT, they must show it’s more likely than not that they will be tortured.

Those “more likely than not” burdens of proof are more onerous than the “well-founded fear” standard for asylum, and consequently, the “reasonable fear” standard is higher than the showing required for credible fear.

The problem is that 8 C.F.R. § 208.31 only applies to reinstatement cases (and to certain aliens convicted of aggravated felonies), not to aliens apprehended entering illegally who haven’t been previously removed or who don’t have criminal histories (that we are aware of).

In light of the circuit court’s order, however, that regulatory “reasonable fear” definition will likely be the standard asylum officers use to screen illegal entrants while the proclamation is in effect.

As an aside, aliens found to have a reasonable fear under the regulations are placed into “withholding only” proceedings before immigration judges under 8 C.F.R. § 208.31(e), at which statutory withholding and CAT are the sole forms of relief, but again that regulation only applies to aliens with prior removal orders and aggravated felony convictions — not to most of the aliens crossing the border illegally now.

Aliens who pass reasonable fear under the RAICES order could presumably seek any other form of relief they’re eligible for from the immigration court, but under the proclamation will (again likely) be limited to filing statutory withholding and CAT applications.

Alternatively, under Biden-era regulations at 8 C.F.R. §§ 208.2(a)(2) and 208.9(a)(1) (that I believe are unauthorized by the INA and therefore illegal), asylum officers can consider applications filed by illegal entrants they’ve found to have a credible fear of persecution and torture and adjudicate them.

The problem is that, under the latter regulation, asylum officers must wait at least 21 days to consider those applications.

There are no legal limits on how fast immigration judges can consider statutory withholding and CAT applications filed by illegal applicants who pass credible/reasonable fear under RAICES, but as a practical matter those removal proceedings are unlikely to be completed in less than 21 days, and both the regulation and the INA provide that those aliens have a right to counsel.

Which brings me to Flores v. Lynch, a 2016 Ninth Circuit decision that upheld in part a lower court order requiring DHS to release alien children entering illegally with adults in “family units” (FMUs) within 20 days of encounter by DHS.

The first Trump administration attempted to modify that order by regulation, only to have the district court judge who issued the first 20-day order and the Ninth Circuit enjoin those regulations.

Given that the Biden-era asylum officer regulation requires USCIS to wait 21 days to adjudicate statutory withholding and CAT applications by illegal entrants who pass credible/reasonable fear, and that it’s unlikely immigration judges can adjudicate those cases any more quickly, DHS under the RAICES order will be forced to either release both the adults and children in FMUs found to have a fear of harm after entering illegally — or detain the adults, release the kids, and face claims of “family separation”.

Family separation, as I’ve explained many times in the past, was a political disaster for Donald Trump in the 2020 election, so you can bet the number of adults who show up at the border illegally with children and well-rehearsed persecution and torture claims will skyrocket thanks to the RAICES court.

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The latest circuit court order on Trump’s border proclamation is a split decision: DHS can keep passing on illegal entrants’ asylum claims (for now), but must also consider whether they’ll be persecuted or tortured. When family migrants start pouring in thanks to RAICES, though, remember you heard it here first.