This case is a response to the Attorney General's decision in Matter of A-B-, issued in June 2018, and updated guidelines for asylum officers the Department of Homeland Security (DHS) issued a month later, instructing them to apply Matter of A-B-'s holding to credible fear screenings.

On August 7, 2018, this suit was filed in the U.S. District Court for the District of Columbia by asylum applicants plaintiffs all ordered removed following the rejection of their asylum claims at the credible fear assessment stage. They alleged that the Attorney General's decision in Matter of A-B- articulated new, unlawful standards for adjudicating asylum claims relating to domestic and gang violence. The defendants were the Attorney General, the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and the Executive Office for Immigration Review (EOIR). The plaintiffs filed these claims under the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the Refugee Act of 1980. Represented by the ACLU and the Center for Gender & Refugee Studies, the plaintiffs sought declaratory and injunctive relief, as well as attorneys' fees and costs. They claimed that the defendants unlawfully implemented this new screening standard for asylum seekers in expedited removal proceedings, effectively depriving all applicants of their right to pursue asylum. The case was assigned to Judge Emmet Sullivan.

The plaintiffs claimed that as a result of these new policies most credible fear claims connected to domestic or gang violence were categorically denied; applicants were required to show that their home government "condones or is completely helpless" to protect them from feared persecution (as opposed to the prior "unable or unwilling" standard). This placed a higher burden on individuals seeking asylum based on membership in a particular social group. Moreover, asylum adjudicators were instructed to ignore any federal court of appeals decisions that conflicted with these new credible fear policies.

On August 8, 2018, the plaintiffs filed for a preliminary injunction and an emergency motion for stay of removal because two of the plaintiffs were subject to imminent removal. At an emergency hearing on August 8, the defendants agreed that the two plaintiffs would not be removed prior to 11:59 pm on August 9. However, following a hearing on the motions on the morning of August 9, the court learned that the two plaintiffs had in fact been removed from detention and placed on a flight to El Salvador during the hearing. The Court issued an oral order requiring the defendants to return the two plaintiffs to the U.S. as soon as possible.

On August 9, 2018, the court also granted a temporary stay of removal for all the plaintiffs pending the Court's determination of whether it had jurisdiction to enter a stay of removal in the case. 2018 WL 3812445.

On September 12 the defendants filed for summary judgment, claiming that the court lacked jurisdiction to hear the plaintiffs' claims, and furthermore, that all of the plaintiffs' claims failed as a matter of law. The plaintiffs filed a cross motion for summary judgment on September 26, alleging that their claims were justiciable and that they were entitled to summary judgment on the merits.

Four parties filed amicus briefs in support of the plaintiff's motion for summary judgment on October 2 and 3, 2018. The amici were filed by Tahrih Justice Center; a group of 10 law professors specializing in administrative law; the attorneys general of California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington; and the United Nations High Commissioner of Refugees.

The District Court heard arguments on the cross motions on November 19, 2018. Judge Sullivan partially granted and partially denied the motions for summary judgment in a December 19, 2018 opinion. He found several parts of the DHS's policies and rules based off of Matter of A-B- to be in violation of the APA's arbitrary and capricious standard:

the general rule against credible fear claims relating to domestic and gang violence. . . the requirement that a noncitizen whose credible fear claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim”. . . the Policy Memorandum’s rule that domestic violence based particular social group definitions that include “inability to leave” a relationship are impermissibly circular. . . the Policy Memorandum’s requirement that, during the credible fear stage, individuals claiming credible fear must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground. . . the Policy Memorandum’s directive that asylum officers conducting credible fear interviews should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-”. . . [and] the Policy Memorandum’s directive that asylum officers conducting credible fear interviews should apply only the case law of “the circuit where the alien is physically located during the credible fear interview.”

He vacated all of these policies and permanently enjoined the defendants from using them going forward. In addition, he ordered the defendants to bring back any plaintiffs who had been removed from the United States under the now-enjoined policies and to give them a new creditable fear evaluation. He granted the defendant's summary judgment motion with respect to due process and nexus and discretion claims. 344 F.Supp.3d 96.

The defendants appealed the summary judgment decision to the D.C. Court of Appeals on January 17, 2019. They also filed a motion to stay district court proceedings, but Judge Sullivan denied the motion on January 25; this left the injunction in place and forced the defendants to continue reporting on compliance with the injunction during the appeal. 2019 WL 329572.

The appellate court has not ruled on the defendant's appeal as of June 2020. The U.N. High Commissioner for Refugees and the state attorneys general from the district court amicus briefs, among others, filed amici for the appeal as well.

Sam Kulhanek - 11/29/2018
Ellen Aldin - 06/12/2020


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