Hogan Lovells obtains key pro bono victory for groups challenging asylum ban

Washington, D.C., 1 July 2020 – A team from global law firm Hogan Lovells represented several nonprofit groups in the successful challenge to a rule that had effectively prevented those entering the United States across the southern border from seeking asylum.

On Tuesday, Judge Timothy Kelly of the U.S. District Court for the District of Columbia struck down the federal government's second asylum ban. The ruling in Capital Area Immigrants' Rights Coalition v. Trump ends a restrictive policy that categorically disqualified individuals from seeking asylum unless they already had sought similar protection in another country first.

"Judge Kelly's ruling is a massive victory for asylum-seekers and the rule of law," said Mitchell Reich, the attorney at Hogan Lovells who argued the case. "Judge Kelly rightly concluded that the Administration failed to do its homework in issuing this rule. It didn't hear from interested parties, and it didn't give any remotely satisfactory explanation for ignoring normal administrative procedures. Hogan Lovells was honored to stand with our clients in challenging and defeating this unjustified and lawless policy."

The lawsuit was brought by Capital Area Immigrants' Rights (CAIR) Coalition, Human Rights First, Refugee and Immigrant Center for Education and Legal Services (RAICES), and nine individual asylum seekers, represented by Hogan Lovells. The case was consolidated with a related case brought by the Tahirih Justice Center and several additional asylum seekers.

The federal government issued the rule at issue, "Asylum Eligibility and Procedural Modifications," on July 16, 2019. The plaintiffs brought suit the same day, charging that the policy exceeded the administration’s authority under the asylum laws and failed to comply with the procedural requirements of the Administrative Procedure Act.

In a 52-page decision, Judge Kelly concluded that the Administration "unlawfully dispensed" with notice-and-comment requirements in issuing the rule. The decision goes into effect immediately, ending application of a restrictive rule that has been in effect for nearly a year and has impacted thousands of asylum seekers.

Judge Kelly's ruling is of enormous significance for asylum-seekers. It is often impossible for individuals to seek or obtain asylum in third countries en route to the United States due to safety concerns and severe deficiencies in those countries' asylum systems. The asylum rule thus operated as a virtual bar to those entering the United States at the southern border from seeking asylum, regardless of the merits of their claims.

"The court determined what we have all known since this rule was created—that it is illegal, it violates everything this country stands for, and it must be thrown out. The court's decisive action is a victory for all asylum seekers and human rights protectors everywhere," said Manoj Govindaiah, Director of Litigation at RAICES.

"By striking down this rule, Judge Kelly reaffirmed two fundamental principles. The protection of asylum seekers fleeing for safety is intertwined with our national values and that the United States is a country where the rule of law cannot be tossed aside for political whims. For many of the individual asylum seekers we fight alongside, this ruling removes an unjust barrier to their security," said Claudia Cubas, Litigation Director at CAIR Coalition.

"Judge Kelly's ruling is proof that the administration cannot do an end-run around the law," said Hardy Vieux, Senior Vice President, Legal, at Human Rights First.

The Hogan Lovells team included Mitchell Reich, Neal Katyal, Craig Hoover, Justin Bernick, T. Weymouth, Michael West, and Heather Briggs in Washington, D.C., Thomas Schmidt and Mohan Warusha-Hennadige in New York, and former Hogan Lovells lawyers Elizabeth Hagerty and Kaitlin Welborn.

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