Groups sue Trump administration, Cuccinelli for unlawfully ignoring the human toll on asylum seekers with new directives

WASHINGTON — Today, on behalf of RAICES and seven asylum seekers, Democracy Forward, the Catholic Legal Immigration Network, Inc. and Proskauer Rose LLP sued the Trump administration to challenge several unlawful immigration directives issued by Trump appointee Ken Cuccinelli that eviscerate protections for asylum seekers fleeing persecution. The unlawful directives violate federal law because they curtail asylum seekers’ statutory rights, were implemented without considering the devastating impact on asylum seekers, and were issued without any notice.

The lawsuit also asserts that the asylum directives are invalid under the Federal Vacancies Reform Act and the Appointments Clause of the Constitution because they were issued by Ken Cuccinnelli, who was unlawfully appointed to serve as acting director of U.S. Citizenship and Immigration Services (USCIS). It was submitted in the U.S. District Court for the District of Columbia.

An asylum seeker’s case for refuge in the United States turns on the effective presentation of their asylum claim at what is called the “credible fear” interview. The outcome of this interview can be the difference between life or death if the immigrant is forced to return to a dangerous homeland. The administration's unlawful asylum directives are designed to diminish the likelihood of success for these asylum seekers by rushing them through their interview, and strip away critical protections designed to ensure that they understand their rights and have the opportunity to consult with counsel.

The asylum directives being challenged in this lawsuit: 

  • Cut in half the time for asylum seekers to consult a lawyer and prepare evidence to substantiate their fear of persecution which can leave them just a few hours to prepare for their interview, if that. 
  • Prohibit asylum seekers from obtaining a continuance except in extraordinary circumstances, such as being unconscious. Specifically, continuances are no longer granted when additional time is needed to prepare for the interview or overcome language barriers. 

The directives were first implemented at the South Texas Family Residential Center in Dilley, Texas, and subsequently at the Karnes County Residential Center in Karnes City, Texas. Both are family detention centers housing women and children that are run by for-profit private prison companies. The Karnes detention center houses approximately 1,300 women, primarily from El Salvador, Guatemala, and Honduras, who have experienced severe forms of trauma, including child abuse, rape, incest, domestic violence, and the persecution of their loved ones.

The directives are part of the Trump administration’s concerted effort to implement anti-immigrant policies designed to prevent asylum seekers from obtaining refuge in the United States. 

“Recognizing the human dignity of all people includes honoring their right to apply for asylum,” said Anna Gallagher, Executive Director of CLINIC. “The American people expect that when the government makes a life-or-death decision, the person affected will get their day in court. “These directives erode the last vestiges of due process for people who have already suffered greatly and seek protection in our country. They are contrary to immigration laws and the Constitution and must be stopped.”

“These unlawful directives issued by an unlawfully appointed official punish asylum seekers fleeing persecution and undermine American values,” said Democracy Forward Executive Director Anne Harkavy. 

“These latest policies are yet another attempt by the Trump administration to subvert basic principles of due process and fairness at the expense of the most vulnerable,” said Manoj Govindaiah, Director of Legal Strategy and Training at Refugee and Immigrant Center for Education and Legal Services. “These unlawful changes to longstanding policy were undertaken to ensure that asylum seekers have no true opportunity to seek refuge in the United States. We look forward to supporting these brave asylum seekers in their challenge to these unjust and callous changes.”  

“This is an important case seeking to uphold the rule of law even as it applies to the most vulnerable in society,” said William C. Silverman, Proskauer’s Pro Bono Partner.  “Immigrant families in detention who are seeking asylum in the U.S. must not be denied reasonable access to counsel. The new policy directives are unlawful and unjust.”
After Senate Majority Leader Mitch McConnell vowed to block Cuccinelli’s confirmation for any position, the Trump administration did an end run around the law with the extraordinary step of creating a new office for Cuccinelli in order to install him as the acting head of USCIS.

The Refugee and Immigrant Center for Education and Legal Services (RAICES) is a 501(c)(3) nonprofit that promotes justice by providing free and low-cost legal services to underserved immigrant children, families and refugees in Central and South Texas. RAICES is the largest immigration non-profit in Texas with offices in Austin, Corpus, Dallas, Fort Worth, Houston, and San Antonio.
Proskauer is an international law firm recognized for its excellence both in practicing law and serving clients. It is a trusted advisor to many of the world’s top companies, financial institutions, investment funds, not-for-profit institutions, governmental entities and other organizations across industries and borders. 
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.