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Court decisions block Trump's moves to dismantle asylum process

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Court decisions block Trump's moves to dismantle asylum process

  • The highway that leads to the U.S.-Mexico border in Nogales, Sonora.
    Paul Ingram/TucsonSentinel.comThe highway that leads to the U.S.-Mexico border in Nogales, Sonora.

In a pair of decisions Wednesday, two different courts, one in San Francisco and one in Washington, D.C., ruled against the Trump administration's attempts to block people from seeking asylum in separate but important cases. 

In the first decision, U.S. District Court Judge Emmet Sullivan ruled that a decision made by former Attorney General Jeff Sessions to alter the standards of credible fear, a framework that allows people to apply for asylum, were "arbitrary, capricious, and in violation of the immigration laws."

In June, Sessions decided to intervene in an individual asylum case and overruled the decision of a judge with the Bureau of Immigration Appeals, arguing that the decision to protect a Guatemalan woman from her abusive spouse was "wrongly decided and should not have been issued as a precedential decision."

As he wrote in March, Sessions directed the BIA to brief him on "whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal." Following those briefings, Sessions decided that being the victim of domestic and gang violence is "merely personal," and not indicative of a membership in a "particular social group." This decision stripped away one of five protected grounds for asylum that people can use as a shield from deportation.

"Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum," Sessions said, later adding in a footnote: "Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution."

In August, the ACLU and the University of California’s Hastings Center for Gender and Refugee Studies filed suit on behalf of 12 adults and children who lost their asylum claims because of Session's decision.

This included "Grace" who fled Guatemala after she was raped, beaten and threatened by her partner for nearly 20 years because of her "indigenous heritage," Sullivan wrote, as well as "Carmen," who fled with her daughter after a local gang threatened her, and "Mina" who fled after her father-in-law was murdered by a gang.

In his 107-page decision, Sullivan wrote that "despite finding that the accounts they provided were credible," asylum officers were forced to give the plaintiffs a "negative credible fear determination" because of Sessions' decision. As a result, each plaintiff faced final orders of removal, or were removed from the United States before the lawsuit.

Sullivan granted a temporary restraining order, and then on Wednesday struck down the policy, arguing that Sessions' decision violates the Immigration and Nationality Act, the Refugee Act, and the Administrative Procedure Act. 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."

As part of his ruling, the policy is blocked and those who were "wrongfully removed under this policy" will be brought 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," he said.

"Again the independent federal courts serve as a bulwark against the Trump Administration's unlawful restrictions on access to asylum and disregard for the rule of law," said Anastasia Tonello, the president of the American Immigration Lawyers Association. " The Attorney General does not have the authority to rewrite asylum law for the administration. This decision further demonstrates why due process and justice demand a fully independent immigration court and immigration judges free from undue political influence of the executive branch."

While the administration lost in Washington, D.C., court, in California, administration lawyers also took a drubbing after U.S. District Judge Jon Tigar agreed to extend his own temporary restraining order, further hampering the administration's attempts to ban anyone who crossed into the United States between the U.S. ports from applying for asylum.

In early November, Homeland Security Secretary Kirstjen Nielsen and newly installed acting Attorney General Matthew G. Whitaker — who took over the post from his boss Sessions after he was sacked by the White House just after the midterm election — published an interim rule that would allow officials at the Homeland Security and Justice departments to amend regulations, and DHS to create a "screening process" specifically to bar people from seeking asylum if they entered the United States between ports of entry.

The following day, a group of civil rights groups, including the ACLU on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles, sued the Trump administration, arguing that the ban was illegal and in "direction violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar."

Tigar agreed with the plaintiffs, and said on November 20, that the ban "irreconcilably conflicts" with federal law and the "expressed intent of Congress" and blocked Trump administration officials from implementing the ban before the hearing on December 19.

Following Wednesday's hearing, Tigar wrote in his 30-page decision that "if anything, the inconsistency between the new regulation and the immigration laws has been stated more clearly. The harms to those seeking asylum are also even clearer, and correspondingly the public interest more plainly supports injunctive relief."

"Not surprisingly then, the result of the present motion is the same: the Court again concludes that Plaintiffs have established an overwhelming likelihood that the new rule barring asylum is invalid," Tigar ruled. "Accordingly, the Court will grant Plaintiffs’ request for a preliminary injunction."

Tigar's decision blocks the ban until March 19 when another conference will be held.

Lee Gelernt, the ACLU attorney who argued the case, said: "The court has once again made clear that the Trump administration cannot do an end-run around the decision by Congress to provide protection to vulnerable individuals regardless of where they seek asylum. This ruling will save lives."

"This administration continues to try to govern without the most elementary understanding of the roles of the three branches of our government, that Congress makes laws and the courts are there to act as a check on both Congress and the president," said Baher Azmy, the legal director of the Central American Resource Center in Los Angeles. "So today, as before, the court made clear that the president does not have the power to overturn decades-old asylum law and the international law obligation to permit individuals to seek asylum from terrifying persecution at home."

While the injunction was in place, Trump administration officials have twice tried to end-run around Tigar's ruling. Unwilling to wait for the December 19 hearing, the government appealed to the 9th Circuit Court, but was rebuffed last Wednesday by a three-judge panel. In an order written by Justices Edward Leavy, Jay S. Bybee, and Andrew Hurwitz, the court ruled: "We agree with the district court that the Rule is likely inconsistent with existing United States law. Accordingly, we DENY the Government’s motion for a stay."

And, last week, the administration filed an emergency appeal to the U.S. Supreme Court to undo the first temporary restraining order.

In his filing, Solicitor General Noel Francisco wrote that emergency appeal was necessary because the United States has "experienced a surge in the number of aliens who enter the country unlawfully from Mexico," and that a "temporary suspension of entry by aliens who fail to present themselves for inspection at a port of entry along the southern border is in the Nation’s interest."

Administration officials have not responded to requests for comment from

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