Federal Judge Blocks Trump’s Policy Gutting Asylum for People Fleeing Domestic and Gang Violence

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

A federal judge in Washington, D.C., permanently blocked a June 2018 “expedited removal” policy that gutted asylum protections for immigrants fleeing domestic violence and gang brutality. Holding that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims,” 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’s 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 “credible fear” 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 “expedited removal,” they were required to pass a threshold “credible fear” screening with an asylum officer before they could get a full hearing on their asylum claims. But under the Trump administration’s new policy, the asylum officers concluded that our clients did not have a “credible fear of persecution” and ordered them deported without a hearing.

That’s not because the asylum officers didn’t find their accounts credible — they did — it’s because the Trump administration had illegally changed the rules.

In June, former Attorney General Jeff Sessions chose to intervene in an individual asylum case, Matter of A-B-, 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.

“Generally,” Sessions asserted, “claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” He followed this up with a footnote stating, “Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.”  

In order to support this claim, Sessions argued that the plight of domestic and gang violence survivors is “merely personal” and not indicative of membership in a “particular social group” — 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 — like a gang, an intimate partner, or a powerful political or social group — must show that the government either “condoned” the violence or other harm or was “completely helpless” to stop it. This was a stark departure from the existing standard, which is that asylum seekers must show that the government is “unable or unwilling” to effectively protect them.  

That’s 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 “significant possibility” 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’ decision in Matter of A-B-, and related policy guidance with respect to expedited removal proceedings, unlawful. For example, the court invalidated Session’s requirement that people fleeing persecution by nongovernmental actors need to show that their home country government either “condoned” the persecution or is “completely helpless” to prevent it. The court also struck down the government’s 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’s own words: “[B]ecause 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.”

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

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Ms. Gloria Anasyrma

I just don't understand how a wonderful man like President Trump can be against granting asylum to these women since he is such a womanizer himself.

Anonymous

It is cases like that remind me of my mother's deep commitment to the ACLU over the last 60+ years has always been about justice, which at a core is 'what is fair?' or even more specifically the biblical injunctions about the golden rule - walk in another person's shoes, then pay attention to what your heart tells you.

Thank you very much for the incredible work you do, especially these days.

Anonymous

Since you think that these people should be here. You need to go to their countries and help them out or self deported back to great grandparents home country and take all the illegal aliens with you. This country is a shit hole place thanks to you and your kind please leave and take all the illegal aliens/dreamers and people who over stay their visas.

Jeremy Clason, Esq.

Very well done, ACLU! Major victory.

Anonymous

You have your head up your butt on the immigration issue.

Anonymous

How true. The American taxpayers are going to have pay for these illegal aliens and kids with is wrong. America is going to spent billions of hard working American taxpayers money to help Mexico and South America and we still have support all the illegal aliens or so call asylum seekers. When does the AMERICAN TAXPAYERS GET A BREAK FROM THESE LEECHES and when can we use as American taxpayers use or taxes for ourselves.

Anonymous

I bet you think the GOP has this governing thing worked out, but they don't. The smartest thing they could pull right now would be to resign both Trump and Pence, and allow Ryan to rise to the presidency before the New Year. Personally, I'm looking forward to Pelosi rising to the presidency next year when Trump and Pence are both indicted, and everything is disclosed to the levels of their crimes and misdemeanors. The whole 2017 Trump campaign and transition team are corrupt and will be prosecuted to the fullest extent of the law. But you divert the discussion to some manufactured immigration issue you've been fed.

Paul Wickham Schmidt

Congrats on a job well done and on standing up for the rights of all Americans against the lawlessness and White Nationalism of Trump, Sessions, Miller, Nielsen, et al.!

Hopefully, this is a step in showing the unconstitutionality of an Immigration “Court” System that is controlled by a biased, unqualified, unethical political official like Jeff Sessions (or Matt Whitaker).

You and your colleagues are leaders of the New Due Process Army! Keep up,the good fight!

Thanks and best wishes for continuing success is upholding the rule of law.

PWS

richard

I thought this was the AMERICAN Civil Liberties Union. YOU ARE NOT FIGHTING FOR AMERICANS, YOU ARE FIGHTING AGAINST US.

Chuy

I get it it's bad but running from it does not fix it .
It only gets bigger
There is gang Violence everywhere . We may help 1 or two people
We can't bring everyone here. Russia is bad on females so is
Iraq / Africa / China / Syria /Iran / hell you name it there is bad all over
we need to fix it if I missed a place sorry even USA
The more people the more we will see humanity fail

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