A federal judge on Wednesday blocked the Trump administration’s policy that makes it difficult for victims fleeing domestic and gang violence to qualify for asylum in the United States and ruled that some people deported under the policy have to be returned.
In a rebuke of the policy established by former Attorney General Jeff Sessions, Judge Emmet Sullivan agreed with a group of women and children who argued the policy unlawfully imposed a heightened standard in reviewing their claims, concluding that the administration must stop deporting migrants currently in the US “without first providing credible fear determinations consistent with the immigration laws.”
“It is the will of Congress – not the whims of the Executive – that determines the standard for expedited removal,” wrote Sullivan of the US District Court for the District of Columbia.
Earlier this year, Sessions said that in order to qualify for asylum, victims must show that their home country was unable or unwilling to assist them, and that “the government condoned the private actions.”
The attorney general has full authority over the immigration courts – a separate court system which operates under the Justice Department.
The ruling is the latest legal setback against President Donald Trump’s efforts to limit asylum claims. Earlier this month, an appeals court upheld a ruling barring the administration from denying asylum to people crossing over the southern border between ports of entry.
During a hearing on the credible fear issue in August, Sullivan erupted at the Justice Department when it was revealed that two of the plaintiffs were literally on a plane to El Salvador while the hearing was going on. Sullivan ordered the two immediately returned to the US and threatened to hold Sessions and others in contempt.
The lead attorney for the American Civil Liberties Union on this case, Jennifer Chang Newell, welcomed the ruling, telling CNN, “We think that this is an important setback to the Trump administration’s all-out assault on asylum seekers and we will keep fighting against these wrongheaded policies.”
However, Sarah Pierce, a policy analyst at the non-profit Migration Policy Institute, said Wednesday’s ruling was unlikely to change the status quo, given its narrow scope focused solely on the initial stage of “credible fear” interviews.
The vast majority of asylum seekers already pass the credible fear interview, a trend that has continued even after Sessions came out with the new standard in June, said Pierce, who is also an immigration attorney. Rather it has been immigration judges themselves using the more stringent standard in their courtrooms that has affected asylum seekers the most.
“Those hearings are not covered by the judge’s ruling, only that initial credible fear interview,” she said. “So not much will change. It’s not as sweeping a ruling as it sounds.”
Indeed, data from USCIS shows the percentage of asylum applicants passing their credible fear interview has remained roughly stable each month throughout all of 2018, and has even gone up slightly. In January, about 76% passed the interview, the records show. In June, the month the new standard went into effect, 74% passed. Meanwhile, by September, the most recent month available, 79% of asylum seekers passed the interview.
The Justice Department on Wednesday immediately asked Sullivan to place the ruling on hold, pending appeal, except in relation to the specific individuals who brought the legal challenge.
“Under the laws passed by Congress, asylum is only for those who have a legitimate fear of persecution on the basis of their race, nationality, religion, political opinion, or membership in a particular social group,” said department spokesman Steven Stafford. “Attorney General Sessions’ ruling … was about following that requirement. We are reviewing our options with regard to this ruling, and we will continue to restore the rule of law in our immigration system.”