Acting AG Matthew G. Whitaker Lacks Authority to Decide Immigration Case, Say Immigration Groups

The American Immigration Council and other immigrant rights organizations have filed a legal brief that explains why President Donald Trump’s designation of Matthew G. Whitaker as acting attorney general is unlawful. As a result, the brief asserts, Whitaker lacks the authority to decide a critical immigration case.

In November 2018, President Trump appointed Whitaker in an acting position to replace former Attorney General Jeff Sessions as head of the Department of Justice. The amicus (friend of the court) brief argues that Whitaker’s designation is unconstitutional, and therefore, he lacks authority to exercise the powers of the head of the Justice Department. These powers include referring already-decided immigration cases to himself in order to revisit their holdings.

The brief was filed in Matter of Negusie, a case in which Sessions referred to himself the question of whether asylum seekers found to be persecutors may continue to qualify for asylum by showing they acted under coercion or duress. Sessions invoked a federal regulation that allows the attorney general to reconsider cases already decided by the Board of Immigration Appeals—the body that hears appeals from immigration courts nationwide—but he resigned from office before deciding the case.

The brief argues that Whitaker’s designation as acting attorney general violates the Appointments Clause of the Constitution and a specific federal statute governing succession to the Office of the Attorney General. Also outlined in the brief are the critical flaws in the Department of Justice’s Office of Legal Counsel’s opinion that was issued to defend Whitaker’s designation.

“Implicit in the authority granted to the attorney general over immigration cases is the legality of his or her appointment,” said Trina Realmuto, directing attorney at the American Immigration Council. “The improper appointment of the acting attorney general not only is unlawful, but undermines the rule of law that the head of the Justice Department is obligated to uphold.”

“We can add the Appointments Clause to the long and growing list of constitutional protections this president has overrun. The result here is that Mr. Negusie’s fate could be decided by an illegitimate attorney general. It would be a travesty if the U.S. Justice Department, the agency responsible for law enforcement, followed such a lawless path,” said Robert N. Weiner, partner at the law firm of Arnold & Porter.

The amicus brief was authored by the Council and the law firm of Arnold & Porter Kaye Scholer LLP. ASISTA Immigration Assistance, Harvard Immigration and Refugee Clinical Program, Her Justice, Immigrant Defense Project, Northwest Immigrant Rights Project, and Southern Poverty Law Center are signatories to the brief.

You can view the full brief online here.

Asylum seekers being turned away by ICE

migrant familiesRefugees seeking asylum in the United States now face an even more difficult process after President Trump signed a presidential proclamation limiting applications to official ports of entry. CNN explains: 

The proclamation put into effect a new rule the Trump administration entered into the federal registry on Friday that would ban migrants from applying for asylum outside of official ports of entry. The American Civil Liberties Union has already called the rule “illegal,” and legal challenges are expected to follow.

However, The Daily Beast reports that even those who are following the latest orders are being turned away because of bottlenecks resulting at official ports of entry. And HuffPost has more on the ongoing fight to get justice for migrants being detained at the border by ICE.

What happens when a nation ends birthright citizenship

President Donald TrumpIn his anti-immigration actions before the midterm election, President Trump threatened to end birthright citizenship, a constitutionally-guaranteed right. According to CNN, “Such a step would be regarded as an affront to the US Constitution, which was amended 150 years ago to include the words: ‘All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.'” While critics pointed out that Trump couldn’t simply eliminate constitutional rights with an executive order, what would happen if a nation did decide to stop granting birthright citizenship? That’s what the Dominican Republic did. How did it work out? Find out in this article at The Atlantic. 

Video: The 14th Amendment

ICE agents immigrationPresident Trump’s statement that he can take away the citizenship birthrights guaranteed in the 14th Amendment with an executive order are simply stirring up fear, according to his wife’s immigration attorney. Michael Wildes talked to CNN‘s Jake Tapper about Trump’s threats to deny citizenship to people born in the US.

The 14th Amendment states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

 

Immigration advocate says ‘dreamers’ need more cities and states willing to defy Trump

CongressWhile a bipartisan bill introduced in Congress aims to address two of the more pressing issues on immigration, a path to citizenship for ‘dreamers’ and spending more on border security along the Mexican border with the US, the proposal may not have a good chance of getting President Trump’s signature. If Washington is unable to agree on a solution to the expiration of the DACA program in March, one immigration advocate is calling on cities, counties and states to find the courage to stand up to the Trump administration’s tougher policies and actions on immigration. Juan Escalante says with some states like Florida considering their own stricter immigration legislation, more states need to step up on behalf of dreamers like New York, New Jersey and California. You can read more in Escalante’s column at HuffPost.

Mexico border arrests drop sharply under Trump

Mexico mapThe Department of Homeland Security reports that arrests of people trying to sneak across the US-Mexico border have dropped to their lowest levels in 46 years. The Washington Post reports that “During the government’s 2017 fiscal year, which ended Sept. 30, U.S. border agents made 310,531 arrests, a decline of 24 percent from the previous year and the fewest overall since 1971.” While the drop may be credited to President Trump’s tough talk about beefing up border security, in May the number of border arrests started climbing again. Meanwhile, the number of arrests of undocumented immigrants has risen 42 percent in the past year, according to Immigration and Customs Enforcement (ICE). Read more about the numbers at The Washington Post.

Can Congress save the DACA?

CongressAs President Trump decides to end the Deferred Action for Childhood Arrivals (DACA) program enacted by President Obama, members of Congress are gearing up for what could be a contentious fight over continuing protection for young undocumented immigrants. Both Democrats and some Republicans are indicating they’re willing to work on a plan to offer permanent legal status to young immigrants who have been in the country illegally. The president plans to phase out the DACA program over six months, giving Congress time to find a final solution. Details on the forthcoming political battle are available at The Washington Post.