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NIJC, Dec. 23, 2020
"A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate two rules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection. The new rules, in effect since August, force asylum seekers to wait years for their cases to move through the backlogged immigration system before they may lawfully earn an income.
“These rules were one cruel part of the Trump administration’s continuous efforts throughout its single term in office to dismantle the United States’ commitment to provide refuge to people fleeing persecution,” said Keren Zwick, litigation director for the National Immigrant Justice Center, which is co-counsel in the case. “These particular rules betray so much of what our country is supposed to value; they try to deter asylum seekers from coming at all and deprive those who make it here of the means to support themselves and their families.”
The rules bar asylum applicants from receiving work permits for at least a year after they file their asylum applications and prevent some individuals from working for the entire duration of their cases—often several years.
Quinn Emanuel Urquhart & Sullivan, LLP, the Center for Gender & Refugee Studies, and Kids in Need of Defense also are providing co-counsel in the case, representing 14 individuals and three organizational plaintiffs before the U.S. District Court for the District of Columbia.
The individual plaintiffs in the case are asylum seekers, including transgender women and parents with small children, who fled political persecution, gender-based violence, or gang and drug-cartel violence and are prevented under the new rules from receiving work permits. Three organizational plaintiffs — AsylumWorks, Tahirih Justice Center, and Community Legal Services in East Palo Alto — say the new rules threaten to derail their missions to provide employment assistance and legal and social services to asylum seekers. Asylum seekers’ ability to earn an income is critical for them to be able to pursue their legal cases and meet basic needs such as housing and mental and medical healthcare, and to avoid falling victim to human trafficking or other exploitation. Furthermore, in many states, work permits are the only identification documentation asylum seekers receive until they are granted protection.
"This lawsuit is about upholding basic human dignity,” said Joan Hodges-Wu, founder and executive director of AsylumWorks, lead plaintiff in the case. “Asylum seekers are simply looking for a fair shake — the chance to work, pay for their own housing, feed and clothe their families. Our asylum system should be rooted in justice and compassion. Instead, this policy forces future Americans — many of whom have already escaped unspeakable hardship — into further danger and depravity. This is a crisis the Trump Administration is determined to make worse. Denying the right to work for one year means unnecessarily delaying the time before asylum seekers can become productive, tax-paying members of the workforce, and denying our country vital frontline workers willing to risk their lives at this critical time.”
“These rules will force courageous survivors of violence into dangerously precarious living situations, needlessly compounding their suffering. They will also make it significantly more difficult for asylum seekers to afford legal representation, which we know can make a life-saving difference in these cases, and to sustain themselves and their families while they seek protection,” said Annie Daher, staff attorney at the Center for Gender & Refugee Studies, co-counsel in the case. “The rules will undoubtedly result in refugees being wrongly denied asylum and ordered deported to the very dangers they have fled.”
In its comments to the Federal Register, the Trump administration said that governments should take responsibility for individuals who may be harmed by the rule, stating that asylum seekers who may become homeless as a result of the rule changes should “become familiar with the homelessness resources provided by the state where they intend to reside.”
The plaintiffs ask the district court to vacate the proposed rules, arguing the rules violate U.S. laws and that the government did not provide adequate rationale for the harm the rules would cause. The lawsuit also argues that Wolf was not validly serving in that role when the agency issued the rules and Mizelle was no longer validly serving in that role when he signed the rules. Federal courts have already found that Wolf was not lawfully appointed to his position when he enacted other harmful immigration rules, including the administration’s failed attempt to end the Deferred Action for Childhood Arrivals program.
Additional plaintiffs in the case offered the following statements:
Richard Caldarone, litigation counsel, Tahirih Justice Center: “Instead of allowing those fleeing violence and persecution to live their lives while they pursue relief in the United States, the government has deliberately chosen to condemn survivors and other asylum seekers to lengthy periods of homelessness, food insecurity, and unnecessary poverty. There are many understandable reasons why survivors of violence may wait more than a year to apply for asylum – including the need to heal from trauma or the need to avoid reliving painful memories. Our immigration system must uphold the right for survivors to work while their cases continue, rather than slamming the door shut to safety.”
Misha Seay, Managing Attorney, Community Legal Services in East Palo Alto: "These rules are a cruel attempt at forcing asylum seekers into poverty and homelessness if they choose to move forward with their asylum claims and wait for their day in court, which in some cases may take years. Asylum seekers will be stuck in a catch-22 of being unable to afford an attorney to help them apply for a work permit and seek asylum, and unable to lawfully work and earn a living so that they can afford to hire an attorney," says Misha Seay, Managing Attorney at Community Legal Services in East Palo Alto. "Our government's commitment to providing protection to those fleeing persecution cannot be fulfilled if we make their everyday life impossible while they navigate that process."