Recently, a federal judge in Washington D.C., Emmet Sullivan, struck down the June 2018 decision from former Attorney General Jeff Sessions in Matter of A-B-, which restricted asylum protections for immigrants fleeing domestic violence and gang brutality.
The asylum applicant in Matter of A-B- claimed eligibility for asylum based on her membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common” with their partners. In the decision, the former Attorney General reversed the Board of Immigration Appeals’ (BIA) grant of asylum to the applicant, and overruled the precedential decision of Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), upon which the BIA relied to grant the case. Although the underlying legal framework for asylum eligibility remained in place, this decision created numerous hurdles for victims of domestic violence and others who have faced persecution by private actors. Furthermore, for unrepresented asylum applicants, the June 2018 decision presented an almost unsurmountable barrier.
The ACLU and the University of California’s Hastings Center for Gender and Refugee Studies brought a lawsuit on behalf of 12 adults and children who told U.S. asylum officers that they were victims of sexual abuse, kidnappings and beatings in their home countries. They were denied asylum in the United States despite a finding that their fears were sincere. The individuals were placed in a summary deportation process known as “expedited removal,” and as such, were required to pass a threshold “credible fear” screening with an asylum officer before they could get a full hearing on their asylum claims. Pursuant to the policy established this past June, the officers determined that the individuals did not meet the standard of having a credible fear of persecution and were ordered deported.
On December 20, 2018, Judge Sullivan found the policy contrary to longstanding federal and international laws stating, “… it is the will of Congress – not the whims of the Executive – that determines the standard for expedited removal.” Judge Sullivan ordered the government to return to the United States any plaintiff in the case who was deported as a result of the policy, and prevent further deportations.
Although the federal government may appeal the decision, Judge Sullivan’s ruling recognizes the judicial branch’s role in interpreting laws, and holds that those pertaining to immigration be no exception.