On Dec. 17, 2018, the district court for the District of Columbia, in Grace v. Whitaker, struck down the administration’s new credible fear policies. On June 11, 2018, former Attorney General Jeff Sessions issued a decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018), where he attempted to fundamentally change the legal requirements for asylum eligibility. While the legal holding in Matter of A-B- was narrow—overturning a prior precedent decision, in Matter of A-R-C-G-—Sessions used expansive language on issues that were not before him in the case.

On July 11, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum implementing Matter of A-B- and its applicability to affirmative asylum, credible fear and reasonable fear screenings. The USCIS Policy Memorandum incorporated much of the dicta from Matter of A-B- and treated it as precedent. The Center for Gender and Refugee Studies and the American Civil Liberties Union brought a federal lawsuit challenging the application of the USCIS Policy Memorandum and Matter of A-B- to credible fear screenings in expedited removal.

Plaintiffs, who included several women who suffered severe sexual and gender-based persecution, argued that the new credible fear policies established in the USCIS Policy Memorandum and Matter of A-B- unlawfully and arbitrarily imposed a heightened standard to their credible fear determinations in violation of the Immigration and Nationality Act (INA) and the Administrative Procedures Act (APA). Traditionally, credible fear screenings are conducted using the low “significant possibility” standard to ensure that valid asylum seekers are not wrongfully returned to places where they could suffer persecution. The district court agreed with the plaintiffs and rejected the new credible fear polices. The court held that they violated the APA because they are “arbitrary, capricious and contrary to law” and that they violated the INA in five key respects.

First, the court concluded that the new credible fear policies incorrectly allow for a blanket rejection of all credible fear claims based on gang-related and domestic violence. Second, the court rejected use of a heightened standard for the past persecution analysis in credible fear screening. The established past persecution standard is one where the asylum seeker who suffered harm from a private actor must establish that the government was unable and/or unwilling to protect her. However the new credible fear policies incorrectly heightened this standard so that the asylum seeker must establish that the government “condones” or is “completely helpless” in protecting her. The court rejected this heightened standard because it is contrary to decades of established case law and the statutory refugee definition. See INA § 101(a)(42)(A).

Third, the court concluded that the credible fear policies incorrectly interpret “circularity” in particular social group analysis. That is, the court rejected the new blanket denial of common particular social groups associated with domestic violence claims that USCIS said were impermissibly circular, or defined by the harm the asylum seeker suffered. The court held that each case must be viewed independently and subjected to a case-by-case analysis, and that “[t]he Policy Memorandum’s interpretation of the rule against circularity ensures that women unable to leave their relationship will always be circular.” Further, the court noted that the Policy Memorandum’s interpretation improperly changes the circularity rule from settled case law. See Matter of M-E-V-G-, 26 I & N Dec. 227, 242 (BIA 2014) (particular social groups are cognizable if based on immutable characteristics—even those based on past experiences independent of persecution).

Fourth, the court rejected the Policy Memorandum’s requirement that credible fear applicants delineate all potential particular social groups at the early credible fear stage, when most asylum seekers are unrepresented. Finally, the court determined that the Policy Memorandum improperly instructs asylum officers to ignore circuit case precedent if it is contrary to BIA case law. And the court determined that the Policy Memorandum improperly instructs asylum officers to only apply the case law in the circuit where the credible fear applicant is detained and not the circuit law most favorable to the applicant, which has been the previous policy.

The court permanently enjoined the credible fear policies pertaining to these five key aspects.  This means that going forward, asylum officers cannot apply the heightened standards in credible fear interviews. The court further ordered the Department of Homeland Security to return to the United States all plaintiffs whose credible fear applications were improperly denied based on these impermissible credible fear policies.

It is likely the government will appeal this decision and it remains to be seen whether it will seek a stay of the order.