Matter of Negusie


December 3, 2018

The American Immigration Council, with other immigrant rights organizations, filed an amicus brief in Matter of Negusie. In Matter of Negusie, former Attorney General Jeff Sessions referred to himself the question of whether coercion and duress are relevant to the application of the immigration statute’s persecutor bar for individuals seeking asylum or withholding of removal. Sessions resigned as Attorney General before adjudicating the case. Following his resignation, President Trump designated Sessions’ chief of staff, Matthew G. Whitaker, as Acting Attorney General. 

The amicus brief argues that Mr. Whitaker lacks the authority to adjudicate Matter of Negusie, or any other immigration matter. Specifically, the brief explains how Mr. Whitaker’s designation violates the Appointments Clause of the Constitution, violates statutory law specifically governing succession to the Office of the Attorney General, and results from a misapplication of a more general statute, the Federal Vacancies Reform Act  The brief also outlines the critical flaws in the Department of Justice’s Office of Legal Counsel’s opinion, which was issued in support of the designation. Because President Trump’s installation of Mr. Whitaker as Acting Attorney General is unlawful, he cannot perform the duties of the office, which include referring and adjudicating immigration cases.

The amicus brief was authored by the Council and the law firm of Arnold & Porter Kaye Scholer LLP, ASISTA Immigration Assistance, Harvard Immigration and Refugee Clinical Program, Her Justice, Immigrant Defense Project, Northwest Immigration Rights Project, and Southern Poverty Law Center are signatories to the brief.

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