- On Wednesday, a D.C. federal district-court judge vacated the third-country transit bar. That rule barred aliens who had passed through a third country or countries on their way to the United States without applying for asylum from applying for asylum in the United States.
- The bar had been published as an interim final rule, meaning that it was effective on the date of publication.
- The Administrative Procedure Act (APA) generally requires rules to be published at least 30 days before they take effect, to give notice to the public and to allow for public comment.
- There are exceptions to that 30-day notice-and-comment rule under the APA. One exception is where there is good cause for not complying that with 30-day requirement. Another is where the rule involves a foreign-affairs function of the United States.
- The components that issued the third-country transit bar rule – U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) – asserted that "good cause" justified them enacting the rule on an interim basis, because if there were a 30-day lag between publication and the rule, smugglers would tell potential migrants to come to the United States before the deadline, prompting a surge of such migrants in the interim.
- EOIR and USCIS also asserted that the foreign-affairs exception applied because compliance with notice-and-comment rulemaking would have hindered "ongoing diplomatic negotiations with foreign countries regarding migration issues, including measures to control the flow of aliens into the United States (such as the Migrant Protection Protocols)", as well as because of "the need to address the then-current humanitarian and security crisis that was occurring along the Southwest border.
- Judge Kelly erroneously found that USCIS and EOIR failed to establish that the "good cause" and "foreign affairs" exceptions applied to the IFR.
- He found that the basis for the good cause justification was, essentially, one article from the Washington Post, which suggested a link between U.S. immigration policy and the entry of aliens illegally into the United States. He ignored the components' expertise in the push and pull factors that encourage illegal immigration – including flawed U.S. immigration policies.
- Judge Kelly concluded that the IFR would only have downstream effects on U.S. foreign policy and diplomatic efforts, and that the rule would not clearly and directly involve a foreign affairs function of the United States. For that reason, he concluded that the foreign affairs exception to the 30-day notice and comment rule did not apply.
- That pinched application of the exception ignored APA legislative history, as well as the effect that publication of the rule before it became effective would have had on U.S. foreign relations and the administration's diplomatic efforts to stem the massive flow of aliens entering the United States illegally at the time the IFR was published.
On Wednesday, Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia issued an opinion vacating a July 16, 2019 interim final rule (IFR), which required aliens who entered illegally across the Southwest border to apply for asylum in a third country through which they passed before seeking that protection in the United States – the "third-county transit bar". Having reviewed that opinion, I think that it is legally and factually in error, but it raises important points about judicial review and the support for such interim administrative actions.
I have written on a number of occasions about the third-country transit bar in the past, including the fact that on September 11, 2019, the Supreme Court stayed an injunction of the IFR that had been affirmed by the Ninth Circuit, pending review by that circuit and any subsequent review by the Supreme Court. Judge Kelly's opinion is different, in that he actually vacates the IFR because it failed to comply with the notice-and-comment provisions in the Administrative Procedure Act (APA).
The APA requires that proposed rules should be published at least 30 days before they take effect, for public notice and comment, with exceptions. One is "good cause" for not doing so, an explanation of which must be published with the interim rule. Another, more general exception applies to a rule involving a "foreign affairs function of the United States."
The IFR was issued jointly by U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR), effective on the date of publication. Those components (the first in DHS, the second in DOJ) asserted that these two exceptions applied to their decision to issue the rule on an interim basis.
With respect to "good cause", the IFR explained that if USCIS and EOIR waited for the rule to be effective, smugglers would tell potential migrants to come to the United States before the deadline, prompting a surge of such migrants in the interim. That determination, in turn, was based on prior immigration history, and specifically alluded to a December 2018 district-court decision from the Northern District of California enjoining a separate November 2018 IFR, "Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims".
In that California decision, the judge noted that an October 2018 Washington Post article "indicates that the number of asylum seekers entering as families has risen in proportion to that of single adults and suggests a link to knowledge of" a then-current administrative policy to prosecute adults travelling with children who entered the United States illegally. For that reason, the judge there held the government had demonstrated "good cause" to publish that rule on an interim basis (but enjoined it because the plaintiffs had "demonstrated a likelihood of success on their claim that the Rule" was "substantively invalid.").
Judge Kelly concluded this referenced article was, essentially, the only evidence that the government relied on in asserting "good cause" for publishing the July 2019 IFR on an interim basis, as well. To be fair, while USCIS and EOIR alluded to some additional prior history in taking similar actions in the past, his representation is somewhat accurate.
The components were not writing on a blank slate, however. I would concur with both the conclusions in the Post article and the determination of the California district-court judge.
Illegal migration does not exist in a vacuum, but rather results from a number of "push factors" (such as poverty, violence, and a lack of opportunities in those foreign nationals' home countries) and "pull factors" (such as loopholes in U.S. law, and more order and better economic opportunities in this country). When aliens assert that they came to this country for a "better way of life", they are alluding to all of these factors, and yet no one disputes the truth of the underlying sentiment.
When one of those loopholes is about to close, those foreign nationals will migrate to "beat the clock" on the change, in much the same way as an individual or corporation would make financial decisions to avoid the effects of a pending tax increase. And, the lax credible-fear standard (which is really the focus of the July 2019 IFR) is likely the largest loophole that has encouraged migrants to enter this country illegally, as I have explained in the past.
Want proof? As I recently noted:
In FY 2009, a year in which the Border Patrol apprehended 556,041 illegal entrants, USCIS completed 5,523 credible fear cases. In FY 2019, by contrast, Border Patrol apprehended 859,501 illegal entrants, and AOs received 105,439 credible fear claims, completing 102,204 (75,252 of whom received a positive credible fear finding).
In fact, by FY 2018, 18 percent of all aliens apprehended by Border Patrol after entering illegally, or deemed inadmissible by U.S. Customs and Border Protection (CBP) officers at the ports of entry following a request for admission, made a credible-fear claim (up from 13 percent in FY 2017).
There is no proof that conditions in the countries from which most of those recent migrants hail (El Salvador, Guatemala, and Honduras) have deteriorated in recent years. In fact, the Center has proven that, almost exclusively, there is no correlation between homicide rates (the best marker of violence) in those countries and the rates at which nationals of those countries have entered the United States illegally in recent years.
More telling, however, as I have (again) recently reported: "In FY 2019 . . . only 15.33 percent of all aliens whose cases originated with a credible-fear claim were granted asylum, and 41.53 percent failed to file an asylum application at all." If those aliens were really coming to the United States fleeing persecution, they would apply for asylum – which was the alleged justification for their illegal act. The failure of so many to do so (coupled with the fact that so few who bothered to apply actually got granted asylum) shows that the majority are likely motivated by other factors.
Judge Kelly should have deferred to the components (each of which deals with thousands of actual aliens on a daily basis) on the issue of good cause for issuing the IFR on an interim basis. That said, however, the components should have provided a better record for him to make that decision. It is hardly news that Trump administration immigration proposals get subjected to litigation—the government should make it easier for DOJ lawyers to thereafter argue their cases.
In finding that the "foreign affairs function exception" does not justify interim publication, Judge Kelly was further off the mark. As the IFR states, complying with notice-and-comment rulemaking would have hindered "ongoing diplomatic negotiations with foreign countries regarding migration issues, including measures to control the flow of aliens into the United States (such as the Migrant Protection Protocols)" as well as "the urgent need to address the current humanitarian and security crisis along the southern land border between the United States and Mexico."
There was no question that there was a "humanitarian and security crisis" along the Southwest border in July 2019: Border Patrol apprehended 71,978 aliens along the border that month, 42,543 of whom were adults with children (without the IFR, the monthly total likely would have been higher). And, there was no question that the Trump administration was engaging in diplomatic initiatives to address that problem, as reporting on the IFR revealed.
That should have been the end of it. Notably, Judge Kelly does not question that there were such negotiations ongoing, or even that the complying with the APA would have complicated those efforts. He distinguished, however, between rules that "'clearly and directly' involve[] 'a foreign affairs function of the United States'", and those with mere "downstream" effects, deeming the IFR the latter.
This would suggest that he is not familiar with diplomatic negotiations, which generally involve either niceties resembling a dance or threats bordering on coercion (and usually a mix of both). All foreign-policy effects are "downstream", at least until there are signatures from both sides on diplomatic agreements, and even then there are no guarantees.
Worse, in my mind, he ignores Congress's clear direction on applying the foreign-affairs exception in the legislative history of the APA. The House Report for that law, issued just over a month before it was signed, states:
The phrase "foreign affairs functions," used here and in some other provisions of the bill, is not to be loosely interpreted to mean any agency operation merely because it is exercised in whole or part beyond the borders of the United States but only those "affairs" which so affect the relations of the United States with other governments that, for example, public rule-making provisions would provoke definitely undesirable international consequences. [Emphasis added.]
Under those terms, the IFR would plainly be exempt from the notice-and-comment rule, given the number of foreign nationals who would have traversed illegally through various countries to avoid the 30-day deadline, and the number who would have crowded asylum offices in those countries in lieu of coming to the United States. Why does he ignore the House Report? Because "this test is unmoored from the legislative text" and "the Supreme Court has repeatedly instructed [that] 'the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.'"
I have previously complained about the Supreme Court's failure to follow such legislative history, particularly where it provides clear guidance on the issues under review. And I continue do so, on an institutional basis: I have drafted such reports for Congress (including the one cited in the foregoing post), and Congress issues them to guide decision-makers, specifically, administrative agencies and the courts.
Simply put, the laws are voluminous enough, and Congress can only pack so much into the legislative text. And, even the best-written laws will always leave some wiggle room for interpretation. Legislative reports tell decision-makers what the drafters are thinking at the time they actually do just that: legislate.
To deviate from such guidance, unless the text explicitly says otherwise, substitutes the adjudicator for the legislator, a clear violation of balance of powers. Respectfully, Judge Harold Leventhal was wrong: Using legislative history is not always "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." Sometimes, it is looking for the bar. In this case, the House in drafting its report on the APA is the bartender.
Plus, there is no way to avoid the fact that the way that the United States treats another countries' foreign nationals is directly tied to the way that country treats our nationals (the State Department has a whole page on the reciprocity of visa-issuance fees between the United States and other nations, to bring this concept down to its basest level – money). And, there is no clearer statement on how the United States will treat foreign nationals who enter illegally than the IFR.
DOJ will likely appeal this decision to the DC Circuit, if it has not already. As Judge Kelly notes, however, travel restrictions on aliens entering the United States illegally in response to the Wuhan coronavirus pandemic (which I have described elsewhere) "appear[] to have effectively closed the southern border indefinitely to aliens seeking asylum" and therefore his vacating the IFR "will not result in prohibitively disruptive consequences."
That is only true as long as those restrictions are in effect, however. USCIS and EOIR may want to use that time to beef up and reissue the IFR.
One final point. As this analysis shows, I believe that Judge Kelly was in error, but he made some good points. The Post describes him as a "Trump appointee", suggesting that in its mind, the IFR was even further off the mark than if it had been issued by a judge appointed by a Democratic president. Those who hope that judges appointed by this or any Republican administration will issue only decisions that benefit Republican policies don't understand how courts should or do work or what judges do.
Americans, regardless of their political beliefs, should not desire to have judges issue results-oriented decisions. We know that they may (and almost always do) have their own judicial philosophy, and as the section above on legislative history reflects, Judge Kelly was true to "textualism", most often attributed to the late conservative Justice Antonin Scalia. That doctrine cuts both ways.
If judges do issue results-oriented decisions, they have assumed the mantle of the legislature and the executive. That is bad for our Republic. Alexander Hamilton said in Federalist No. 78 that "the judiciary is beyond comparison the weakest of the three departments of power." It should stay that way, and judges should comport themselves accordingly. But, don't be disappointed if you don't get the outcome you had hoped for.