New policy memo from @DOJ_EOIR about implementing the "death to asylum" regulations which don't go into effect for another month and will likely be enjoined before then. justice.gov/eoir/page/file…
As others have noted, the DHS portion of the rule suffers from the same legal problem as other recent DHS regs: the DHS doesn't have a a Secretary, and Chad Wolf's appointment as "acting" secretary was unlawful.
Also, both the DHS portion and the DOJ portion are plainly inconsistent with the statute and suffer from other APA problems (including not engaging in notice and comment in good faith).
The new definition of a "frivolous" application includes one that "is clearly foreclosed by applicable law" even if the applicable law is wrong. Since 1252 says you can't challenge applicable law until you lose and file a petition for review, this is going to be a huge problem.
A second provision makes this worse. The application won't be found frivolous if the applicant withdraws it, withdraws all other applications for relief, waives appeal, and agrees to voluntary departure. This is going to be used to steamroll asylum applicants
McHenry's new memo makes clear they fully understand this is the purpose of the new frivolousness definition.
The new rule also allows IJs to "pretermit" an asylum application if the judge decides the applicant has not made a "prima facie" case on the form itself. Lots of problems with this, starting with the form...
The hottest issue in asylum cases is about what "particular social group" means. But the asylum form never asks "what particular social group do you belong to." There's no way to make a "prima facie case" from just the form itself. uscis.gov/sites/default/…
There is a lot more here. But this last part is also concerning. McHenry is saying yeah the regulation isn't retroactive, but judges should go ahead and apply it retroactively. AND judges should apply it even if it is enjoined. Jaw-dropping lawlessness here.
On pretermitting asylum claims, the BIA has prohibited this for over 30 years. See Matter of Fefe. It repeated that rule in 2014 in Matter of E-F-H-L-. That decision describes at length why a hearing is required by the current statute.
It says INA 240(b)(4)(B) requires a hearing. And 240(c)(4)(B) requires the judge to base their decision on testimony given at the hearing. The final rule says 8 CFR 1240.11(c)(3) already allows for pretermission. But it doesn't, and E-F-H-L- explains why:
E-F-H-L- also explains that even though the Fefe rule was based on prior regulations, the current regulations contain the same requirement of a hearing.
This is one of the places the new rule is susceptible to challenge. The final rule says the agency can change its mind even if "prior judicial interpretations" of the regulations are contrary. But the Supreme Court's Skidmore test says those past interpretations are relevant.

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More from @MatthewHoppock

14 Dec
Spent the weekend reading this 600-page CIA report on the attempts to deport suspected Nazi war criminals. Lots of bad looks here for @JusticeDept. The report is posted in multiple parts on the CIA's CREST database. I combined them and uploaded them here: ia601406.us.archive.org/19/items/cia-a…
The report details a number of instances where federal agencies protected Nazi war criminals for years when it was beneficial and not publicly embarassing. Then when they were sufficiently embarassed the DOJ OSI tried to deport them but used shady evidence supplied by the USSR.
In the case of Edgars Laipenieks, even George H. W. Bush gets in on it. By the way, the article this report cites is also available in CREST. It says Bush "refused to elaborate" further.
Read 7 tweets
11 Dec
Another EOIR policy memo posted yesterday eliminates some of the adjournment codes previously existing, including adjournments to allow respondents to file applications for asylum and other relief. justice.gov/eoir/page/file…
This removes Code *05 (for filing asylum app), *06 (for filing other apps), *22 (rejected earliest hearing), ǂ23 (asylum app withdrawn), 24 (DHS to complete prints), *51 (contested charges).
This memo adds two new adjournment codes related to "case flow processing" - 9V (vacated MC hrg), and TQ (case reviewed for readiness and placed in trial queue). Not sure what TQ is supposed to be for. Btw prior memo's here: justice.gov/eoir/page/file…
Read 11 tweets
11 Dec
New EOIR policy memo PM 12-08 on the pro bono legal services list. Acknowledges IJs are required by regulations to "advise" all responents of the availability of pro bono legal services (which the case flow processing memo would make impossible). justice.gov/eoir/page/file…
Also acknowledges that when the respondent expresses a fear of persecution, at the time of filing an asylum application the statute requires the IJ to again give the respondent a copy of the current pro bono list. See 8 USC 1158(d)(4)(B). law.cornell.edu/uscode/text/8/…
Again, the new case flow processing memo makes that impossible because the hearing at which represented folks will be filing the asylum application gets cancelled. And, it's not true that represented folks don't need access to pro bono counsel. Attorneys withdraw...
Read 13 tweets
11 Dec
Yesterday @DOJ_EOIR posted this "Request a Speaker" portal to its website. Seems this would be related to the NAIJ suit saying EOIR won't let judges speak publicly. justice.gov/eoir/webform/r…
In July, the @Imm_Judges_NAIJ sued EOIR over the policy. Judge O'Grady in the EDVA denied an injunction in August, which NAIJ appealed to the 4th Cir. NAIJ filed its brief in September. Then on Nov. 2 the Federal Labor Relations Authority decertified the union.
Then, after the union was decertified, the EOIR filed its 4th Circuit brief saying NAIJ no longer had standing to challenge the public speaking policy, which I'm linking to her. assets.documentcloud.org/documents/2042…
Read 4 tweets
9 Dec
This answer was wrong also, and "status dockets" are largely nonexistent. EOIR's spokesperson knew that btw. Here's a little more on "status dockets."
There's an August 16, 2019 memo PM 19-13 which says judges can but don't have to implement a "status docket" but giving guidance where judges want to implement them. It's here. justice.gov/eoir/page/file…
"status dockets" are a great idea and work very well to do what EOIR says it wants to do here. FOIA results from November, 2019 show status dockets reduce backlog and hearing wait time. cdn.muckrock.com/foia_files/201…
Read 10 tweets
9 Dec
To be clear, the new process is entirely illegal and probably unconstitutional. 8 CFR 1240.10(a) - (c) require a hearing where the IJ reads and explains the charging document, takes an oral pleading, determines removability. If they can't sustain, (e) lets DHS add allegations
Once removability is determined, the judge is supposed to ask the respondent to designate the country of removal. Then under (f) the judge identifies alternative country of removal. *Then* under 8 CFR 1240.11(c) the applicant gets to apply for asylum.
You can't apply for asylum from a country that the judge hasn't even identified yet. And lots of cases aren't clear about what country of removal is even going to be involved. It's not automatic. There is a designation process.
Read 6 tweets

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