In the summer of 2018, Attorney General Jeff Sessions and the United States Citizenship and Immigration Services implemented new policies governing asylum claims – particularly claims based on domestic violence and gang-related violence – by immigrants placed in summary “expedited removal” proceedings. These “expedited” proceedings afford immigrants far fewer rights (including rights to judicial review) than regular immigration proceedings.
When Congress created “expedited removal” proceedings in 1996, it was careful to build in protections for asylum seekers. These protections require that every individual who comes to this country seeking humanitarian protection be given a fair chance to establish eligibility for asylum and related protection from deportation. Specifically, immigrants in expedited removal who express fear of return to their home countries must be afforded a threshold screening interview with an asylum officer, called a “credible fear” interview. At that interview, the question is not whether that person will ultimately be eligible for asylum, but only whether there is “a significant possibility” that the person will be entitled to asylum. If the noncitizen passes this low “credible fear” screening standard, the law requires that she be taken out of expedited removal and allowed to pursue her claim for asylum in regular removal proceedings, where she is entitled to a full trial-type immigration court hearing and administrative appellate review, followed by review in the federal court of appeals. Congress intended the credible fear standard to be low, so that asylum seekers would be given the benefit of the doubt and no one with a potentially meritorious asylum claim would be sent back to danger.
But the government’s new policies unlawfully elevate the credible fear standard far above the low threshold Congress enacted and prevent asylum seekers from ever pursuing their asylum claims. The new credible fear policies unlawfully change the credible fear standard in at least three ways. First, they impose a presumption that individuals fleeing domestic violence and gang-related violence cannot demonstrate credible fear, even though Congress has required each case to be heard on its own facts. Second, the new policies unlawfully raise the bar for showing credible fear by forcing immigrants to meet new standards that are higher than and contradict the standards Congress has set. Third, the new policies require asylum officers to ignore any federal court of appeals decisions that conflict with the new credible fear policies, thus elevating the views of Attorney General Sessions above the authoritative constructions of federal immigration law by the courts.
Each of these instructions by themselves unlawfully alters and heightens the credible fear standard and deprive asylum seekers of their right to pursue asylum. Taken together, their effect is to distort the credible fear process beyond recognition.
On August 7, 2018, we filed a lawsuit in federal court challenging these new policies on behalf of 12 immigrants – adults and children who fled their home countries after suffering pervasive sexual abuse, kidnapping, beatings, shootings, the murder of family members, and/or death threats. They all received negative credible fear determinations under the new policies even though they would have demonstrated credible fear under a proper application of the immigration laws. Four of our plaintiffs have already been deported.
Two of our clients were at risk of immediate deporation on the night of August 9, and so on August 8, we filed motions for a temporary restraining order and preliminary injunction to protect our clients. Without an injunction, plaintiffs and thousands of other immigrants like them desperately seeking safety will be unlawfully deported to places where they are at serious risk of being raped, kidnapped, beaten, and killed.
On August 9, during the court hearing on our motion to stay the deportation of two of our clients, we learned that the government was already in the process of deporting them, contrary to the government’s prior assurances. The judge ruled from the bench that our clients must be returned to the United States immediately and that the plane with our clients should either be turned around in midair or returned to the United States upon landing with our clients aboard. The court also granted the stay of further efforts to remove our clients. The government complied with the order and returned on our clients to the United States on the evening of August 9. On August 10, the court ordered the government “to file a comprehensive report to the Court explaining the circumstances surrounding the removal of plaintiffs on the morning of August 9, 2018, notwithstanding the representations from the attorney for the defendants that the government would not remove the plaintiffs prior to 11:59 pm that day.”
The court received briefing throughout the fall of 2018 on the lawfulness of the government’s new asylum policies and our entitlement to an injunction. On December 19, 2018, the court ruled largely in our favor and issued a permanent injunction against most of the problematic policies we challenged, including the presumption against credible fear claims relating to domestic and gang violence, the heightened standard for showing that an asylum seeker was at risk from private violence in the face of inaction by authorities in her home country, and the instruction to asylum officers to ignore any federal court of appeals decisions that conflict with the new credible fear policies. The court further vacated the determinations that our clients lacked credible fear and ordered that any of our clients who have already been deported because of the unlawful asylum policies must be returned to the United States so that they can receive new proceedings under the proper legal standard.
The government appealed, challenging both the substance of the ruling and the federal courts’ jurisdiction to hear the case. In July 2020, the appeals court affirmed in part and reversed in part. Importantly, the court held that the challenged agency policies were reviewable in court, and that the government’s new instructions—including its heightened standard for showing that an asylum seeker was at risk from private violence in the face of inaction by authorities in her home country—were unlawful under federal administrative law because the government had changed its previous rules without explaining or acknowledging these changes. But the court reversed the district court’s order regarding the presumption against credible fear claims relating to domestic and gang violence, because, according to the appeals court, the challenged policies did not bar these claims and still require each to be reviewed on its merits.