Hogan Lovells Attorneys Prepared to Take Asylum Case to SCOTUS

By Melissa Heelan Stanzione

Hogan Lovells attorneys who filed suit over President Donald Trump’s step to keep migrants attempting to cross from Mexico out of the U.S. while they seek asylum are prepared to take the case to the Supreme Court, if necessary, partner Neal Katyal told Bloomberg Law.

The pro bono suit filed in Washington federal district court by Katyal and other Hogan lawyers as well as attorneys from a legal aid group, challenges the interim policy that took effect Nov. 9 in response to Trump administration concerns about a caravan of refugees heading through Central America to the Southern Border.

Trump cited security, but Katyal said the ban is “obviously illegal,” “deeply inhumane” and departs from decades of understanding of asylum law.

The complaint says that U.S. immigration laws reflect the congressional commitment “to aid persons fleeing persecution regardless of their point of entry.”

Katyal and Hogan are no strangers to the Supreme Court or to challenging this administration.

He represented Hawaii at the high court in its challenge to its controversial ban on travelers from a number of predominantly Muslim countries. The justices upheld a watered down version in June.

Fleeing Gang Violence

The firm filed the brief Dec. 3 on behalf of a Honduran mother fleeing gang violence with her son, who was a minor. The son was repeatedly attacked by members of MS-13 because he wouldn’t join the gang. They also threatened to kill him and his mother, who refused to live with the gang as their wife, the brief said.

The plaintiffs entered the U.S. via an illegal border crossing on Nov. 10, one day after the asylum ban went into effect. Asylum officers informed them on Nov. 19 that they were ineligible for asylum because of their method of entry.

Even though there are potentially hundreds of class members, the mother and son were picked to represent the plaintiffs because the were “uniquely and immediately” affected by Trump’s rule, Elizabeth Hagerty, another Hogan lawyer working on the case, told Bloomberg Law.

The complaint, filed in the U.S. District Court for the District of Columbia, alleges that the Trump administration’s “categorical bar” on asylum for anyone entering the U.S. outside approved ports of entry is unconstitutional and in violation of federal law.

The plaintiffs are asking the court to block its enforcement.

Calculated Move

The ban is also being challenged in a California federal court. On Nov. 19 that court temporarily blocked the action, saying it violates federal law. Several days later, the court denied the administration’s request to allow the rule to go into effect while it appealed the court’s earlier ruling.

The move to file a complaint in a second court this week was part of the strategy for Hogan and Katyal, who said it’s important to have multiple courts weighing in on such nationally prominent matters.

And because the complaint here alleges violations of administrative law, an area in which the D.C. Circuit holds plenty of authority, it made sense to include the court as “part of this conversation,” Katyal said. He added the case could ultimately be reviewed by the Supreme Court.

The government’s response is due Dec. 12, Mitchell P. Reich, another Hogan attorney on the case, told Bloomberg Law. Hogan then has two days to file its reply, and a hearing will then be held Dec. 17, Reich said.