The Trump Administration’s immigration agenda recently suffered another setback after a U.S. federal court enjoined the government from enforcing credible fear policies outlined in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and a U.S. Department of Homeland Security (“DHS”) Policy Memorandum issued subsequent to the decision. In Grace v. Whitaker, No. 18-CV-01853 (EGS), 2018 WL 6628081 (D.D.C. Dec. 19, 2018), Judge Sullivan held that several of the policies implemented after the Attorney General’s decision, through the DHS memorandum, violated the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act.
In June 2018, former Attorney General Jeff Sessions certified A-B- to himself and reversed A-B-’s favorable grant of asylum based on membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Under the INA, the Attorney General has the authority to adjudicate immigration cases, either through the Attorney General’s own motion or by referral from the Board of Immigration Appeals (“BIA”) or the DHS.
In deciding A-B-, Sessions overruled Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014), a precedential decision by the BIA holding that victims of domestic violence could seek asylum through the protected ground of membership in a particular social group (“PSG”). Although A-R-C-G- did not establish a general rule that all PSGs based on a claim of domestic violence were cognizable, the decision nevertheless resolved a disagreement among immigration judges as to whether victims fleeing from domestic violence could seek relief under asylum law.
Through his decision, former Attorney General Sessions also issued new asylum policies and standards. He, for example, declared that “[g]enerally, claims … pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Immigration advocates generally criticized the former Attorney General’s decision for casting doubt on whether claims asserting persecution by non-state actors merited relief.
Following the decision in A-B-, on July 11th, 2018, the DHS issued a Policy Memorandum that applied the former Attorney General’s determinations to the credible fear interview process. Credible fear interviews are part of the process for those seeking asylum at the border. In an effort to curtail immigration, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and implemented “expedited removal proceedings” for many asylum seekers. As part of these proceedings, those seeking asylum at the border must first demonstrate that they have a “credible fear of persecution,” meaning that “there is a significant possibility” that they can “establish eligibility for asylum” before their claims are adjudicated. Asylum officers conduct these interviews and must use a low screening standard to minimize the risk of deporting eligible persons back to the country from which they are fleeing.
It was the implementation of the DHS Policy Memorandum that was at issue in Grace, filed by the American Civil Liberties Union and the Center for Gender & Refugee Studies on behalf of twelve Central American adult and children plaintiffs. During their credible fear interviews, the plaintiffs alleged sexual abuse, kidnapping, and other forms of violence at the hands of their partners and gangs in their home countries; however, due to the new policies, all were issued negative credible fear determinations. At the time the lawsuit was filed, some plaintiffs had already been removed and others were at risk of imminent removal.
As part of his decision, Judge Sullivan held that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims” and enjoined the government from continuing to implement the new policies that had such an effect. The judge also ordered the government to return all wrongfully-deported plaintiffs and to provide credible fear interviews to all plaintiffs consistent with the law.
Given the current refugee crisis at the U.S. southern border, the Grace decision is particularly timely. As numerous sources report, Central Americans are fleeing unprecedented violence in their home countries. Many cities in the “Northern Triangle,” made up by Guatemala, Honduras, and El Salvador, are among the most dangerous in the world; and, significantly, women and children are particularly vulnerable at home and on the journey to find refuge.