Defining Matters
Jan. 11, 2021

Kramer Levin Obtains Preliminary Injunction Blocking “Death to Asylum” Rule That Would Have Barred Most Claims and Particularly Harmed LGBTQ Refugees

On Jan. 8, 2021, U.S. District Judge James Donato of the Northern District of California granted a Kramer Levin team’s request for a preliminary injunction blocking the outgoing Trump administration’s changes to the asylum rules from going into effect in less than three days. The changes, referred to by opponents as the “Death to Asylum Rule,” would have negatively impacted almost every aspect of the asylum system, and would have made it nearly impossible for LGBTQ and HIV-positive refugees who are fleeing persecution in their home countries to receive asylum in the United States. Likewise, the changes would have almost entirely banned asylum for those making gender-based claims and for victims of non-state violence.

Kramer Levin filed the suit against the Department of Homeland Security and the Department of Justice with co-counsel Lambda Legal Defense and Education Fund and Immigration Equality, two longstanding pro bono partners, on behalf of multiple immigration legal services providers who represent LGBTQ and HIV-positive refugees. Since the final rule was published, the team worked around the clock to prepare the 100+ page complaint and TRO motion papers. Because the Trump administration’s changes were the result of agency rulemaking, President-elect Biden could not simply undo the damage by executive order after his inauguration. If the rules had not been blocked from going into effect, tens of thousands of refugees with meritorious claims would have faced removal to life-threatening situations before the rules could be undone through further rulemaking. 

Kramer Levin argued that, among the rule’s many flaws, it was invalid because purported DHS Acting Secretary Chad Wolf lacked authority to promulgate the rule as he had not been validly appointed, which several other courts have found. In granting the injunction and rejecting Defendants’ attempts to defend Wolf’s appointment, Judge Donato found that, “In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through. … But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum... Plaintiffs provide legal services and other assistance to those seeking asylum and similar protections from persecution or violence in their home countries. They have provided ample evidence that if enacted, the Rule would harm this mission. … A nationwide injunction is warranted.”

The team is led by Litigation partner Jeffrey S. Trachtman, Intellectual Property partner Aaron Frankel and Litigation special counsel Jason M. Moff, and includes Litigation partner Alan R. Friedman, Litigation associates Chase Henry Mechanick, Ryan Gander and Irene Weintraub, Intellectual Property associate Austin Manes and Real Estate associate Charlotte Courtade.

Read the order here.

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