A major Trump administration policy that sought to block victims of gang and domestic violence from claiming asylum in the U.S. is illegal, a federal judge ruled Wednesday.
The ruling by District Judge Emmet Sullivan overturned a sweeping policy change ordered in June by then-Atty. Gen. Jeff Sessions and has broad implications for thousands of Central American asylum seekers, especially women.
In addition to declaring the policy change illegal, Sullivan ordered the government to return to the United States people who’ve been deported as a result.
The administration is likely to appeal Sullivan’s ruling, but for now it could provide a second chance to asylum seekers whose claims were rejected while the policy was in place. Steven J. Stafford, a Justice Department spokesman, said in a statement that the administration was “reviewing our options with regard to this ruling, and we will continue to restore the rule of law in our immigration system.”
At issue in the case is the reach of the nation’s laws that promise asylum to people fleeing persecution. Under U.S. law, a person who has a “credible fear” of being persecuted because of his or her race, nationality, religion, political opinion or membership in a particular “social group” can petition for asylum in the U.S.
For more than two decades, immigration officials and courts have wrestled with how to apply that standard to people like those in the case before Sullivan — women and children fleeing rape, beatings and other violence at the hands of husbands or partners and victims of gang violence — who find that local officials ignore their pleas for help or, in some cases, side with their persecutors.
One plaintiff, identified in court documents as Grace, fled Guatemala after she and her children were sexually assaulted and beaten by her partner of more than 20 years, who disparaged her indigenous heritage. Grace went to local authorities — who instead helped her partner evict her from their home. Another, named Carmen, fled with her daughter after they were targeted by local gangs that knew she had fled her abusive husband and that they were alone.
When Sessions issued the policy revision in June, he wrote that such cases should usually not lead to asylum because the violence was caused by private individuals, not directly by governments.
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by nongovernmental actors will not qualify for asylum,” he wrote.
“The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote.
In announcing the change, Sessions overturned a major precedent in immigration law from 2014 that had allowed thousands of women from Central American to win asylum claims.
The standard Sessions created was “inconsistent with the intent of Congress” set out in federal immigration law, Sullivan ruled.
“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,” he wrote.
“The Court orders the government to return to the United States the plaintiffs who were unlawfully deported,” he continued, “and to provide them with new credible fear determinations consistent with the immigration laws.”
It’s been a busy week for Sullivan, who on Tuesday postponed sentencing for Trump’s former national security advisor, Michael Flynn, and publicly excoriated him, saying, “Arguably, you sold your country out!”
Sessions’ order was one of a number of policies the administration has put forth in an effort to curb legal immigration to the United States, but asylum claims have continued to rise, jumping nearly 70% from 2017, according to Department of Homeland Security data released this month.
The asylum backlog has exploded by more than 1,750% in the last five years to more than 300,000 cases — “crisis-level,” according to U.S. Citizenship and Immigration Services.
Roughly 80% of asylum applicants pass their initial credible fear interview, but only 10%-20% ultimately are granted asylum, according to U.S. Customs and Border Protection Commissioner Kevin McAleenan. Officials have cited this so-called “asylum gap” to support the White House’s argument that most asylum claims are illegitimate.
The administration’s policy change last summer was clearly targeted toward Central Americans, the largest group arriving at the U.S.-Mexico border.
Last month, more than 6,000 Central American migrants arrived in Tijuana. Poverty, inequality, government corruption and extreme levels of violence — on the part of both state security forces and gangs — have made the “Northern Triangle” countries of El Salvador, Honduras, and Guatemala among the most dangerous in the world, particularly for women.
In the case Sullivan decided Wednesday, the American Civil Liberties Union and the Center for Gender and Refugee Studies at UC’s Hastings College of the Law sued the Trump administration on behalf of Grace, Carmen and 10 other adults and children seeking asylum in the United States who alleged in interviews with asylum officers that they had been sexually abused, kidnapped and beaten in their home countries in Central America.
Officers found each of their accounts sincere, but denied their claims after applying the standards established by Sessions, Sullivan noted in his decision.
“This ruling is a defeat for the Trump administration’s all-out assault on the rights of asylum seekers,” Jennifer Chang Newell, managing attorney of the ACLU’s Immigrants’ Rights Project, who argued the case, said in a statement.
Newell said that six of the plaintiffs who had been removed from the U.S. over the last several months will now be returned.
Although the government will almost certainly appeal, said Cornell University Law School professor Stephen Yale-Loehr, “in the meantime … the federal court ruling ensures that people fleeing domestic violence or gang violence will have a fair shot.”