As I noted last week, the Trump administration recently finalized a regulation that imposes numerous new restrictions on refugees seeking asylum. I singled out a provision of the regulation that would generally bar asylum based on tax noncompliance, even if the noncompliance was unintentional and caused little or no revenue loss.  

The regulation was slated to take effect for asylum
applications filed on or after today. However, a federal court order has now
blocked the regulation.

On Friday, Judge James Donato of the US District Court for Northern California issued a nationwide preliminary injunction against enforcement of the regulation. Ruling in two lawsuits filed by various organizations that provide legal services and other assistance to asylum seekers, Judge Donato concluded that the regulation was likely illegal and that allowing it to take effect would cause irreparable harm.

Judge Donato held that Chad F. Wolf’s assumption of the position of Acting Secretary of Homeland Security likely violated the legal order of succession and that Wolf therefore likely acted without lawful authority when he approved the regulation. Noting that all four of the US District Court judges who had previously addressed the question had concluded that Wolf was not validly serving as Assistant Secretary, Judge Donato remarked that the administration had “recycled exactly the same legal and factual claims made in the prior cases” with little explanation of why the previous rulings were wrong. Judge Donato said, “In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.” As he observed, the Government Accountability Office has also concluded that Wolf is not validly serving as Acting Secretary.

The organizations that filed the lawsuits also challenged the new regulation as arbitrary, capricious, unlawful, and procedurally improper under the Administrative Procedure Act. In view of his issuance of an injunction based on Wolf’s likely lack of lawful authority, Judge Donato found it unnecessary to decide whether those challenges would also have justified an injunction. Nevertheless, he offered a few cogent observations about the rulemaking process that led to the adoption of the regulation. Judge Donato noted that over 87,000 public comments were submitted on the proposed regulation, despite the inexplicably short 30-day comment period, and that the comments “overwhelmingly opposed” the proposal, “often with detailed reasoning and analysis.” He aptly observed that the “tidal wave of responses barely made an impact on the government,” which finalized the regulation with virtually no changes. As I noted last week, the administration failed to meaningfully address important issues that my comment and other comments raised about the proposed regulation’s tax provision.

Thanks to Judge Donato’s ruling, refugees will not, at least for now, be turned away because of minor unintentional tax noncompliance.

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