This actually occurred at the end of last week, and we are just getting to it now. But at nearly every turn, Team Trump cannot figure out how to do things lawfully. Or, more likely, they simply feel the law shouldn’t be a concern of theirs. Here we see this play out again, in East Bay III, in San Francisco, before Judge Tigar. [My prior two years’ worth of backgrounders begin at that link, there.]
Here is the full nine-page order — and it turns on the notion that the rule which limited these would be asylees’ credible fear hearings has itself been invalidated. That in turn likely entitles them each to a more robust credible fear hearing — one each is pretty likely to win. Here’s a bit:
…Proposed Intervenors argue that their interests will be practically impaired without intervention because they “will remain subject to removal under [the Rule’s] void policy unless they are permitted [to] intervene in this action.” Id. They also allege that unless Proposed Intervenors “are parties in this case, they will remain subject to removal under the Rule, even though the interim rule has been enjoined by this Court and vacated by another court.” Id. at 16.
The Court understands Proposed Intervenors’ argument that the Rule “deprived [them of] the ability to establish their credible fear under the proper standard and ultimately, their right to asylum.” Id. at 17. But it is not clear that intervention in this action would provide them an opportunity for the relief they seek.
Proposed Intervenors argue that “[v]acatur, without limitation or qualification, is retroactive and restores every party affected by the Rule to the status quo ante.” Id. at 5. But D.A.M. dismissed the same argument, noting “vacatur simply restored the prior regulatory status quo; the invalid rule was eliminated and replaced by any preexisting rule it had superseded.” 2020 WL 5525056, at *7….
Onward. As ever, wryly grinning at the eight plus years which passed so quietly, as the river bent inexorably toward… a new beginning.
नमस्ते
