Friday, January 25, 2019
Judge Emmet G. Sullivan (D.D.C.) today denied the government's request to stay the court's earlier order vacating the government's restrictions on asylum pending appeal. The ruling means that the court's order will remain in place--and the government can't enforce its crabbed "credible fear" standard in expedited removal proceedings--while the government appeals the earlier ruling.
Recall that the court halted DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings, because those standards violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious under the Administrative Procedure Act. (AG Sessions initiated the change in a ruling in Matter of A-B-, and DHS followed up with administrative guidance.) Those standards restricted claims by individuals who claim asylum based on a fear of domestic violence and gang violence.
The government claimed that the court only had authority to rule on the government's standards with regard to the plaintiffs in this case, and not across the board.
But the court rejected that argument, pointing to the language of the INA and the legislative history. The court also wrote that the government won't be irreparably harmed, and that third parties (other immigrants subject to the government's standard) would be harmed with a stay.
The ruling underscores the court's original order on the merits.