On June 25, 2019, five asylum seekers from Angola, Cuba, and El Salvador filed this lawsuit in the United States District Court for the District of Columbia. The plaintiffs sued the Department of Homeland Security and the Attorney General of the U.S. under the Refugee Act, 8 U.S.C. § 1158(a); Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3); Article 3 of the Convention Against Torture, 8 C.F.R. § 208.16(c), (d); and the Administrative Procedure Act, 5 U.S.C. § 706(2). The plaintiffs, represented by the International Refugee Assistance Program and the Refugee and Immigrant Center for Education and Legal Services, sought declarative, injunctive, and monetary relief, claiming violations of the credible fear process and the Fifth Amendment. The plaintiffs alleged that the Trump Administration issued a set of instructions (the "Lesson Plan") on April 30, 2019, to asylum officers that were designed to turn back as many asylum seekers as possible. The Lesson Plan allegedly made it far more difficult for asylum seekers to pass their “credible fear interviews.” If an asylum seeker is found to lack “credible fear,” they may be unable to apply for asylum. Specifically, the plaintiffs were found to lack “credible fear” and were denied the opportunity to apply for protection, and thus, were deported or were at imminent risk of being deported.

On August 19, 2019, the defendants moved for summary judgment. The defendants argued that the plaintiffs’ case should be dismissed because it was not a legal issue over which the court could exercise its judicial authority because there was no evidence that enjoining the Lesson Plan would remedy plaintiffs' injuries and because the Lesson Plan was not subject to judicial review under the APA. Furthermore, the defendants contended that the Lesson Plan had no real impact on the credible fear process and that it was just a minor update to account for developments in the case law.

On September 5, 2019, the plaintiffs cross-moved for summary judgment. The plaintiffs contended that they were entitled to summary judgment on the merits because the Lesson Plan was inconsistent with the statutory and regulatory scheme of the credible fear process and was in violation of the APA. With regards to the defendants’ contention that the Lesson Plan had no real impact, the plaintiffs rebutted that the record showed a significant change to policy.

As of October 2, 2019, the motions are pending before Judge Ketanji Brown Jackson.

Aaron Gurley - 10/03/2019


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