Appeals Court Upholds Block on Trump Administration Policies Narrowing Asylum Criteria

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
July 18, 2020Updated: July 19, 2020

The Trump administration suffered a setback after a federal appeals court upheld a block on several immigration policies that sought to narrow the criteria for asylum for illegal immigrants.

The District of Columbia Circuit Court of Appeals in a 2–1 ruling on July 17 upheld a lower court’s decision to block the Trump administration from enforcing several key policies that made many individuals running from domestic abuse or local criminal activity ineligible for asylum. The case is cited as Grace v. Barr.

In 2018, then-Attorney General Jeff Sessions issued a decision in a case called Matter of A–B– (pdf), in which an El Salvadoran woman was seeking asylum based on domestic violence she experienced for years in her home country. He reversed the grant of asylum to the woman and established a rule that closed the door for asylum to individuals claiming well-found fear due to domestic abuse or gang violence perpetrated by non-governmental actors.

His decision essentially reverted the asylum criteria to what it was before 2014, when the Obama administration opened it up to include private criminal cases, including domestic violence.

Sessions’s decision didn’t change the definition of asylum, but rather made it more difficult for individuals to show “credible fear of persecution” so that they would not be removed under the “expedited removal” process.

The Department of Homeland Security issued new guidelines shortly after Sessions’s ruling, requiring asylum officers to follow the new standards in all removal proceedings and credible fear determinations.

The 12 asylum-seekers, represented by the American Civil Liberties Union (ACLU) and the Center for Gender & Refugee Studies, subsequently filed a lawsuit against the administration in 2018, claiming the policies raised the standard to meet certain criteria for asylum beyond what Congress had intended.

They also claimed that Sessions’s policies violated federal laws such as the Administrative Procedure Act and the U.S. Constitution.

The district court ruled in favor for the asylum seekers, declaring the challenged policies unlawful and blocking the administration from enforcing them.

The court on July 17 upheld part of the lower court’s ruling by blocking the administration from enforcing two key policies—one where the asylum seeker needs to show that their home government either condoned the private behavior or demonstrated a complete helplessness to protect them, and another policy where officers must apply the law of the circuit where the credible fear interview occurs.

Meanwhile, two other policies that were previously blocked were overturned in the July 17 decision.

An ACLU attorney who argued the case, Cody Wofsy, called the ruling a “major defeat” for the administration.

“This ruling is a major defeat for the administration’s assault on asylum rights and the law,” Wofsy said in a statement.

A Justice Department spokesperson said in a statement to The Epoch Times that it’s carefully evaluating the court’s decision.

“The Attorney General’s decision in 2018 simply reaffirmed what had been settled law for decades—and rejected the single decision issued by the Board of Immigration Appeals during the Obama Administration that broke from settled law,” the statement said.

“Indeed, in a decision last year, the United States Court of Appeals for the Fifth Circuit noted that the Attorney General’s decision in A–B– was not only ‘permissible under the statute,’ but was a ‘much more faithful interpretation of the INA [Immigration and Nationality Act]’ than the 2014 Board decision it overruled.”

“We will continue to defend the Attorney General’s and the Administration’s efforts to restore integrity to our asylum system,” the spokesperson said in the statement.

Charlotte Cuthbertson contributed to this report.