PUBLISHED:January 14, 2021

Immigrant Rights Clinic, pro bono project challenge Trump-era asylum restrictions

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In cases before the Fourth and Ninth Circuit U.S. Courts of Appeals, faculty and students advocated against efforts to curtail the rights of vulnerable immigrants fleeing persecution.

Duke Law School’s Immigrant Rights Clinic and the Duke Immigrant and Refugee Project (DIRP) filed an amicus brief on Jan. 7 on behalf of the American Immigration Lawyers Association (AILA) before the U.S. Court of Appeals for the Fourth Circuit. The case, Portillo Flores v. Rosin, is being reheard by the entire Fourth Circuit following the earlier successful advocacy efforts by DIRP, the clinic, and other advocacy groups opposing the court’s panel decision.

A primary issue in the case relates to an important requirement for establishing eligibility for being granted asylum in the U.S. Under the law, applicants must show that they have suffered or fear future persecution at the hands of government actors or nonstate actors that their government is “unable or unwilling” to control. However, recent efforts to curb asylum eligibility have sought to make that unable-or-unwilling requirement more onerous, including by denying protection to applicants who flee their country without first trying to obtain local protection.

The amicus brief, representing more than 15,000 immigration attorneys across the country, argues that federal courts should determine whether the nation’s asylum laws are properly applied without deferring to the agency’s rejection of such claims. Amanda Dixon ’21, working pro bono through DIRP, drafted the brief with Senior Lecturing Fellow Shane Ellison, the clinic’s supervising attorney.

“It has been an honor to work on this amicus brief,” Dixon said. “Working on this issue really brought into focus the way that questions like standard of review that can seem arcane have serious impacts on the lives of our clients.”

Dixon has been involved in each step of the process, “providing critical assistance both in the architecture of the arguments and in their final construction,” Ellison said.

The brief represents the culmination of the clinic’s work on this subject. Ellison and Dixon filed an earlier version in November before the Ninth Circuit at the request of the Harvard Immigrant and Refugee Clinic in Sylvestre v. Barr. They also filed a brief before the Fourth Circuit in October at the request for rehearing stage in Portillo Flores.

In addition to these advocacy efforts, the Immigrant Rights Clinic celebrated a victory last month with the Catholic Legal Immigration Network (CLINIC). Their combined efforts secured a decision from the Ninth Circuit vacating the Board of Immigration Appeals decision, Matter of E-R-A-L-, a precedent that had narrowed protections for asylum-seekers facing persecution on account of their membership in certain groups. CLINIC and IRC published a joint practice advisory regarding the implications of the Ninth Circuit’s order available here.

Said Clinical Professor Kate Evans, the clinic’s director: “As we watch men, women, and children confront mounting obstacles to their pursuit of humanitarian protection in the U.S., it is a privilege to collaborate with national advocacy groups and successfully challenge these restrictions in federal court.”