吃瓜大本营

The Trump administration鈥檚 campaign to dismantle our asylum system just suffered another major setback.

A federal judge in Washington, D.C., permanently blocked a June 2018 鈥渆xpedited removal鈥� policy that gutted asylum protections for immigrants fleeing domestic violence and gang brutality. Holding that 鈥渢here is no legal basis for an effective categorical ban on domestic violence and gang-related claims,鈥� Judge Emmet Sullivan struck down the policy for being contrary to the Immigration and Nationality Act, the Refugee Act, and the Administrative Procedure Act. As part of the injunction, the court ordered the government to bring our plaintiffs who were wrongfully removed under this policy back to the United States so that they can pursue their asylum claims. Under the court's order, each of our plaintiffs will receive a new credible fear interview and their expedited removal orders will be canceled.

The ACLU and the University of California鈥檚 Hastings Center for Gender and Refugee Studies brought the lawsuit on Aug. 9 on behalf of 12 adults and children who all had their asylum claims wrongfully rejected at the 鈥渃redible fear鈥� screening stage based on the unlawful policy.

Our clients, predominantly women from Central America, endured extensive sexual and physical violence in their countries of origin. Fearing they would be killed, along with their young children, they sought refuge in the U.S. Grace* fled Guatemala after being raped, beaten, and threatened for over 20 years by her abusive partner, who frequently disparaged her indigenous heritage. She sought help from local authorities, only to have them assist her persecutor in forcibly evicting her from her home. Mina* escaped her country after a gang murdered her father-in-law and local police did nothing to help. Gang members broke down her door and beat her so badly that she was unable to walk the next day. They told her that they would rape her and mutilate her body unless she left town.

Because our clients were placed in a summary deportation process known as 鈥渆xpedited removal,鈥� they were required to pass a threshold 鈥渃redible fear鈥� screening with an asylum officer before they could get a full hearing on their asylum claims. But under the Trump administration鈥檚 new policy, the asylum officers concluded that our clients did not have a 鈥渃redible fear of persecution鈥� and ordered them deported without a hearing.

That鈥檚 not because the asylum officers didn鈥檛 find their accounts credible 鈥� they did 鈥� it鈥檚 because the Trump administration had illegally changed the rules.

In June, former Attorney General Jeff Sessions chose to intervene in an individual asylum case, -, where he reversed the grant of asylum to a Salvadoran woman who fled horrific sexual and domestic violence at the hands of her then-husband. Sessions used that ruling to issue a broad, and deeply flawed, legal decision that sought to disqualify whole categories of claims as legitimate grounds for asylum in the United States.

鈥淕enerally,鈥� Sessions asserted, 鈥渃laims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.鈥� He followed this up with a footnote stating, 鈥淎ccordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.鈥�

In order to support this claim, Sessions argued that the plight of domestic and gang violence survivors is 鈥渕erely personal鈥� and not indicative of membership in a 鈥減articular social group鈥� 鈥� one of the five protected grounds for asylum. But his conclusion ignored decades of settled law that individuals fleeing gender-based violence can satisfy the asylum standards.

He also said that an asylum seeker fleeing persecution by someone who is not the government 鈥� like a gang, an intimate partner, or a powerful political or social group 鈥� must show that the government either 鈥渃ondoned鈥� the violence or other harm or was 鈥渃ompletely helpless鈥� to stop it. This was a stark departure from the existing standard, which is that asylum seekers must show that the government is 鈥渦nable or unwilling鈥� to effectively protect them.

That鈥檚 not how the credible fear process was supposed to work. When Congress established expedited removal in 1996, it deliberately established a low threshold screening standard so that no one with a potentially meritorious asylum claim would be sent back to danger. Credible fear interviews are meant to determine whether there is a 鈥渟ignificant possibility鈥� that an immigrant could show they are eligible for asylum in a full deportation hearing with evidence, witnesses, and appeals. If so, they get that chance; if not, they are quickly removed from the United States.

By ratcheting up the credible fear standard, the Trump administration put thousands of immigrants at risk of being removed to places where they fear for their lives.

The court found key aspects of Sessions鈥� decision in Matter of A-B-, and related policy guidance with respect to expedited removal proceedings, unlawful. For example, the court invalidated Session鈥檚 requirement that people fleeing persecution by nongovernmental actors need to show that their home country government either 鈥渃ondoned鈥� the persecution or is 鈥渃ompletely helpless鈥� to prevent it. The court also struck down the government鈥檚 new rule that asylum officers can just ignore court of appeals precedents that are inconsistent with Matter of A-B-. As a result, the administration is now permanently blocked from applying these unlawful policies to credible fear proceedings going forward.

In the court鈥檚 own words: 鈥淸B]ecause it is the will of Congress 鈥� not the whims of the Executive 鈥� that determines the standard for expedited removal, the Court finds that those policies are unlawful.鈥�

*To protect the safety of the plaintiffs, names are pseudonyms.

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