A federal judge on Wednesday struck down Justice Department rules that made it harder for asylum seekers to make successful claims based on fear of domestic abuse or gang violence, offering yet another judicial blow to the Trump administration’s efforts to unilaterally rewrite immigration law.
In his ruling, Judge Emmet Sullivan of the U.S. District Court in Washington concluded that the policies—which were rolled out by former Attorney General Jeff Sessions in June—were “arbitrary” and “capricious,” violating federal immigration law as crafted by Congress.
In his June order, Sessions sought to reverse a 2014 decision by the Board of Immigration Appeals, which held that victims of domestic violence may qualify for asylum. The BIA found at the time that women who are persecuted by their husbands but unable to leave their marriages or obtain help from law enforcement constitute a “particular social group,” one of the factors that would give them a right to seek asylum in the United States. A quirk in immigration law, however, permits the attorney general to singlehandedly reverse BIA decisions—and that’s precisely what Sessions tried to do, asserting that victims of domestic violence are not a “particular social group” because they are defined by their “vulnerability to private criminal activity” rather than a specific protected trait. He held that these women do not suffer true persecution because persecution is “something a government does.”
Sessions’ logic extended to victims of gang violence, since they, too, face persecution from private individuals, not directly from the government. He claimed that affected applicants may only receive asylum status if they demonstrate that their home government “condoned” violence against them, or demonstrated “complete helplessness” to stop it. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim,” he wrote.
In response to Sessions’ ruling, the American Civil Liberties Union filed suit in August on behalf of a dozen asylum seekers, mostly women from Central America, fleeing sexual and physical violence. Asylum officers found the asylum seekers’ stories credible—but they were still scheduled for “expedited removal” because asylum officers found they did not have a “credible fear of persecution” under Sessions’ new rules.
On Wednesday, Sullivan rejected Sessions’ interpretation of the law. He found that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims.” Like other asylum-seekers, would-be refugees who bring these claims have a right to a credible fear interview; the attorney general cannot carve out an exception with no basis in the text of the statute. Sullivan then repudiated Sessions’ cramped definition of “persecution.” Under federal statute, the judge wrote, a refugee faces persecution if her home government is “unable or unwilling to control” violence against her. She need not prove that the government refused to help her, an overly stringent standard that Sessions had no power to impose.
Finally, Sullivan found that victims of domestic abuse and gang violence may receive asylum as members of a “particular social group.” Not every victim will be permitted to remain in the U.S. But members of social groups—such as married women trapped in abusive relationships—may prove that their government was unable to protect them from violence, thus qualifying them for asylum. And the government must grant all such applicants credible fear interviews to determine who qualifies. Thanks to Sullivan’s order, asylum seekers denied an interview under Sessions’ policy will now be allowed to make their case.
Wednesday is not the first time a federal judge has found that the Trump administration has overstepped its ability to interpret immigration law, crossing over into unlawful policy-making in its campaign to curb immigration. This past summer, a District judge in San Diego ruled that family separation violated immigrants’ due process rights and ordered that the government reunite families that were separated under Trump’s “zero tolerance” policy. And just this month, the 9th U.S. Circuit Court of Appeals rebuked the administration for its attempt to rewrite a federal statute by denying asylum to immigrants who enter the country without authorization. The court affirmed an earlier decision by U.S. District Judge Jon S. Tigar holding that the new policy was unlawful. “Whatever the scope of the president’s authority,” Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The Trump administration would do well to heed Tigar’s warning. Over and over again, the president and his allies have tried to deport more asylum applicants by misreading or simply ignoring immigration statutes. These actions are unlawfully capricious, as Sullivan sternly reminded the country on Wednesday. His message is clear: The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.