On Wednesday, Judge Emmet Sullivan, the federal judge presiding over the Michael Flynn sentencing, issued a ruling striking down Attorney General Jeff Sessions’ June decision to make “credible fear” asylum determinations more stringent.
Sessions wrote in June, “An applicant for asylum on account of her membership in a purported particular social group must demonstrate: (1) membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.”
He added, “An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.”
Not only did Sullivan strike down aspects of Sessions’ decision, he also ordered the federal government to bring back the immigrants deported by Sessions’ decision.
Sullivan wrote, “A general rule that effectively bars [asylum] claims based on certain categories of persecutors (i.e. domestic abusers or gang members) or claims related to certain kinds of violence is inconsistent with Congress’ intent to bring ‘United States refugee law into conformance with the [United Nations Protocol Relating to the Status of Refugees. The new general rule is thus contrary to the Refugee Act and the [Immigration and Nationality Act].”
Sullivan wrote that Sessions’ decision was “arbitrary and capricious,” adding, “The Attorney General’s directive to broadly exclude groups of aliens based on a sweeping policy applied indiscriminately at the credible fear stage, was neither adequately explained nor supported by agency precedent.”
Plaintiffs claim that the credible fear policies this Court has found to be unlawful have caused them irreparable harm. It is undisputed that the unlawful policies were applied to plaintiffs’ credible fear determinations and thus caused plaintiffs’ applications to be denied. Indeed, plaintiffs credibly alleged at their credible fear determinations that they feared rape, pervasive domestic violence, beatings, shootings, and death in their countries of origin. Based on plaintiffs’ declarations attesting to such harms, they have demonstrated that they have suffered irreparable injuries. The Court need spend little time on the second factor: whether other legal remedies are inadequate. No relief short of enjoining the unlawful credible fear policies in this case could provide an adequate remedy.
Plaintiffs do not seek monetary compensation. The harm they suffer will continue unless and until they receive a credible fear determination pursuant to the existing immigration laws. Moreover, without an injunction, the plaintiffs previously removed will continue to live in fear every day, and the remaining plaintiffs are at risk of removal. The last two factors are also straightforward. The balance of the hardships weighs in favor of plaintiffs since the “[g]overnment ‘cannot suffer harm from an injunction that merely ends an unlawful practice.’” And the injunction is not contrary to the public interest because, of course, “[t]he public interest is served when administrative agencies comply with their obligations under the APA.” Moreover, as the Supreme Court has stated, “there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” No one seriously questions that plaintiffs face substantial harm if returned to their countries of origin. Under these circumstances, plaintiffs have demonstrated they are entitled to a permanent injunction in this case.
Sullivan’s decision permanently bars the federal government from enforcing the rules according to Sessions’ decision.
The Justice Department issued a statement following the ruling:
DOJ on today’s “credible fear” ruling —> pic.twitter.com/yOLRdQu9pL
— Chris Geidner (@chrisgeidner) December 19, 2018