Wednesday, December 19, 2018
Judge Emmet Sullivan (D.D.C.) today ruled that several aspects of the DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious and therefore invalid under the Administrative Procedure Act.
Judge Sullivan vacated the credible fear policies; permanently enjoined the government from applying those policies and from removing plaintiffs who are currently in the United States without first providing a valid credible fear determination; and ordered the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with a new credible fear determination. (At the same time, the court identified portions of the standards that were not inconsistent with the INA.)
The ruling means that the government cannot implement its sweeping and unilateral restrictions on asylum claims at the credible fear stage based on domestic violence and gang violence. It follow by just a couple weeks another significant ruling against Administration asylum restrictions.
The ruling is a huge victory for asylum claimants, and a serious blow against the Trump Administration's efforts to restrict the bases for asylum at the credible fear stage by unilateral agency action.
The case tested then-AG Sessions's ruling in Matter of A-B- and a USCIS Policy Memo, both of which had the effect of denying asylum to victims of domestic violence and gang violence. The court ruled that most of the standards in these administrative documents violated the INA and the APA.