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¦ From TRUMP on PAGE 13 he continued. “Hogan Lovells was
notice-and-comment period for this honored to stand with our clients in
rule through the APA’s “good cause” challenging and defeating this un-
exception. Government lawyers justified and lawless policy.”
said making the rule available for The judge also shut down the Jus-
comment before it was implement- tice Department’s argument that the
ed could cause a surge of asylum rule could not be challenged under
seekers at the border, but Kelly said a “foreign affairs” exemption for the
there was “not sufficient evidence” rulemaking procedures. Noting that
to meet the exception. there is little circuit precedent on
Kelly slammed DOJ attorneys for that front, Kelly said “it presents a
leaning heavily on an October 2018 closer call” but the arguments still
Washington Post article in mak- Timothy Kelly appearing for his “come up short.”
ing that argument, finding that the U.S. District Court judgeship “The rule overhauls the procedure
single newspaper article did not confirmation hearing in 2017.
provide evidence for their record Credit: Senate Judiciary through which the United States de-
cides whether aliens who arrive at
and there was little other evidence to support their our southern border are eligible for asylum here, no
claims. matter the country from which they originally fled,”
“Even assuming that the rule was likely to have had Kelly wrote. “These changes to our asylum criteria
a similar effect as the regulatory change described do not ‘clearly and directly’ involve activities or ac-
in the article, the article contains no evidence that tions characteristic of the conduct of international
that change caused a surge of asylum seekers at the relations.”
border—let alone one on a scale and at a speed that The judge further denied DOJ lawyers’ claims that
would have jeopardized their lives or otherwise have immigration groups in the case lacked standing un-
defeated the purpose of the rule if notice-and-com- der existing immigration law, saying “the case law
ment rulemaking had proceeded,” Kelly wrote. “In stands in stark contrast.” He similarly panned an-
fact, the article lacks any data suggesting that the other argument that immigration groups could not
number of asylum seekers increased at all during challenge the rule on behalf of asylum seekers, writ-
this time—only that more asylum seekers brought ing that the “organizations are not claiming standing
children with them.” on behalf of their clients, or any other individual
The judge similarly rejected government charts asylum applicants.”
showing data on border enforcement and encoun- “Rather, the organizational plaintiffs argue that the
ters for not directly supporting DOJ’s claims. rule will directly injure them by making it harder for
“At bottom, as plaintiffs point out, defendants— them to conduct their own basic activities. Indeed,
‘despite studying migration patterns closely’—have defendants’ position would seem to preclude an or-
‘failed to document any immediate surge that has ganization from bringing an APA challenge to any
ever occurred during a temporary pause in an an- rule that even tangentially relates to immigration,”
nounced policy.’ That failure is striking,” Kelly wrote. Kelly wrote.
Hogan Lovells attorney Mitchell Reich, who argued Correction: This post was updated to accurately re-
the case, in a statement called the ruling “a massive flect the status of a similar case at the U.S. Court of
victory for asylum-seekers and the rule of law.” Appeals for the Ninth Circuit.
“Judge Kelly rightly concluded that the admin- ¦

istration failed to do its homework in issuing this Jacqueline Thomsen, based in Washington, is a re-
rule. It didn’t hear from interested parties, and it porter covering D.C. federal courts and the legal
didn’t give any remotely satisfactory explanation side of politics. Contact her at jathomsen@alm.
for ignoring normal administrative procedures,” com and follow her on Twitter @jacq_thomsen.

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