Immigration: District Judge Declares New Asylum Restrictions Unlawful

U.S. District Judge Emmet G. Sullivan on December 17, 2018 blocked several Trump administration policies that made it more difficult for victims of gang and domestic violence to seek asylum in the United States. In a 107-page opinion, the Court rules that the policies are “arbitrary and capricious and contrary to law” and orders the government to cease their implementation.

To qualify for asylum, foreign nationals must establish that they have a “credible fear” of “persecution” in their home country based on their race, religion, nationality, political opinion or “membership in a particular social group.” On June 11, 2018, then-Attorney General Jeff Sessions issued a broad interim decision (the “Decision”) in an asylum case. In his opinion, Sessions wrote, contrary to a previously established policy, “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Sessions also examined and reinterpreted other requirements for credible fear determinations. On July 11, 2018, U.S. Citizenship and Immigration Services issued final guidance (the “Policy Memorandum”) to asylum officers and applied the policies articulated in the Decision.

Plaintiffs were twelve adults and children who sought asylum and the officers denied their claims after applying the new policies. Plaintiffs bring this action against the Attorney General alleging violations of, inter alia, the Administrative Procedure Act and the Immigration and Nationality Act. They argue that the standards articulated in the Decision and the Policy Memorandum unlawfully and arbitrarily imposed a heightened standard to their credible fear determinations.

The Court rules on both procedural and substantive matters. In terms of substantive issues, “many of these policies are inconsistent with the intent of Congress as articulated in the INA. And because it is the will of Congress—not the whims of the Executive—that determines the standard for expedited removal, the Court finds that those policies are unlawful.” Those policies include: (1) the general rule against domestic violence and gang-related claims during a credible fear determination; (2) the requirement that the alien must show “the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims”; (3) the Policy Memorandum’s formulation of the circularity standard, which led to the conclusion that domestic violence-based social groups that include “inability to leave” are not cognizable; (4) the requirement that an alien at the credible fear stage present facts that clearly identify the alien’s proposed particular social group; (5) the requirement that adjudicators disregard contrary circuit law and apply only the law of the circuit where the credible fear interview occurs. The Court also finds two standards lawful: (1) the requirement that asylum officers apply discretionary factors at the credible fear stage, and (2) the nexus requirement that when a private actor inflicts violence based on a personal relationship with the victim, the victim’s membership in a particular group may well not be “one central reason” for the abuse.

The Court permanently enjoins the government from continuing to apply those policies and from removing plaintiffs who are currently in the United States without first providing credible fear determinations consistent with the immigration laws. The Court also orders the U.S. “to return to the United States the plaintiffs who were unlawfully deported and to provide them with new credible fear determinations consistent with the immigration laws.”