Photo: US Customs and Border Protection

In what could be a big blow to Donald Trump's attempts to end asylum as we know it, a federal judge in Washington DC has overturned a rule aimed at excluding victims of domestic violence or gangs from seeking asylum in the US. Wednesday's ruling by DC District Court Judge Emmet Sullivan is one more case of the judiciary reminding Trump the executive branch can't just ignore immigration laws passed by Congress, thanks. Sullivan has had a busy week -- he's the same judge who told Michael Flynn to take his "I WUZ FRAMED" bullshit and ram it right up his Deep State. With his ruling telling the administration it just can't make shit up to please Stephen Miller, Judge Sullivan wins the week.

Judge Sullivan's ruling, which dives into some arcana of immigration law and federal rule-making procedure, is a surprisingly good read, especially in the bits where he's giving the administration a good chewing out. But first, let's quicklike review how Team Trump tried to make an entire class of immigrants ineligible for asylum.

Back in June, then-Attorney General Jeff Sessions invoked a little-used quirk of immigration law to redefine who can qualify for asylum. Since immigration courts are actually part of the executive branch, not the judiciary, the AG has the power to unilaterally decide whether previous immigration cases were decided lawfully, as if the AG were the Supreme Court of immigration. So Sessions decided he'd overturn a key 2014 immigration case which held that people endangered by domestic violence or gangs in their home countries could qualify for asylum if those countries are unable to protect them from the gangs or abusive spouses who threaten their safety.

Well gosh, that's the basis for most claims for asylum by Central Americans, so how about we make it no longer a valid basis, huh? Sessions wrote an order to immigration judges,

Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum [...] The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

Sessions insisted that unless governments had specifically declared they wouldn't protect women in abusive relationships or victims of gangs, it didn't constitute "persecution" of a "particular social group" under US asylum law. So tough shit, go home, and maybe buy a gun to protect yourself, you're not our problem. Hey, maybe you'll live long enough to fix your shithole country, but honestly, we don't care about murders, rapes, and other violence unless it's committed by a government. "Private" crime that endangers people's lives, said Sessions, may be a real darn shame, but "the asylum statute does not provide redress for all misfortune."

What's more, Sessions ordered that his new guidelines for who can apply for asylum be applied immediately at the border, where anyone claiming asylum is entitled to a screening for "credible fear" of harm if returned to their home country. Sessions wanted asylum officers to apply only the new standard and deport as ineligible anyone seeking asylum on the basis of danger from an abusive spouse or a gang. The plaintiffs in the case Sullivan ruled on Wednesday were a group of 12 asylum seekers who had been rejected at the "credible fear" interview for not meeting Sessions's new standard. They sued with the help of the ACLU and the Center for Gender and Refugee Studies at UC Hastings.

Sullivan threw out most of the new rules imposed by Sessions, writing that

many of these policies are inconsistent with the intent of Congress as articulated in the [Immigration and Nationality Act]. And because it is the will of Congress—not the whims of the Executive—that determines the standard for expedited removal, the Court finds that those policies are unlawful.

The judge also issued an injunction barring the government from applying the more restrictive standards and from deporting anyone based on them, and ordered all credible fear interviews to be based on existing immigration law instead. And he also ordered the government to find and return to the US any of the plaintiffs who may have been deported so they can get a proper credible fear interview. Unfortunately, since this wasn't a class action, that particular second chance for asylum only applies to the 12 plaintiffs in the case, not the Crom knows how many people who may have also been disqualified since June -- which could amount to hundreds per month.

Sullivan was especially firm in pointing out that arbitrarily changing who counts as having a credible fear of harm or death is a bad idea, noting that when Congress set the standard, it intended it to be a fairly low bar, because for fuckssake you don't want to risk sending anyone back to die. The statute is pretty clear on that, he pointed out: "there should be no danger that an alien with a genuine asylum claim will be returned to persecution."

The final determination of whether someone qualifies for asylum comes in the applicant's actual asylum hearing, so no, the government isn't allowed to send people back to possible death just because Fox News has convinced a "president" too many people are allowed to stay in the US and that they're all lying about being persecuted. The DOJ has already filed an motion to stay Sullivan's order to use the more expansive credible fear standard, because gosh it would make Trump mad if we had to follow the law and give people a chance at asylum.

As Vox's immigration reporter Dara Lind points out, it's not entirely clear how much practical impact Sullivan's ruling will have at the border, since it's not altogether clear how widely the new standard Sessions imposed was actually applied in credible fear screenings:

The rate at which people passed their credible fear interviews (as opposed to being rejected) dipped slightly over the summer, from 88-90 percent over the months before Sessions's ruling to 84-85 percent in June, July, and August. But by September 2018 (the last month statistics are available), it was back up to 90 percent. [...]

That difference of 5 percent still accounts for a few hundred people a month — and given that the stakes of deporting someone back to a country where they'd be in danger are literally life or death, that's not nothing.

The ruling is likely to drive wingnuts to new heights of crazy. Over at the Gateway Pundit, the Stupidest Man on the Internet, Jim Hoft, frothed that the ruling had "ordered deported illegal aliens to be brought back," which seems rather to miss the point that someone who's wrongly been denied asylum isn't exactly an illegal alien. The whole comments section over there is a toxic master class in completely wrong notions about immigration and law, and makes you wonder whether there's any hope at all of bringing a large portion of the US anywhere close to reality. There's a research topic.

Big picture: Once again, the judiciary is being a big old meanie to poor Donald Trump, probably because judges are all being paid by George Soros.

This is the second judicial ruling in December to tell Trump he can't arbitrarily remake federal law according to his anti-immigrant whim. Earlier this month, the Ninth Circuit in California (THE FAKE ONE, as Trump will tell you) blocked new rules aimed at refusing any chance of asylum to those who don't cross the border at an official port of entry. Trump has asked the Supreme Court to intervene in that case, of course, because the judge who originally ruled against him was appointed by Barack Obama and therefore is not a real judge. Judge Sullivan was appointed by Bill Clinton, but was also appointed to lower judgeships by Ronald Reagan and George H.W. Bush, peace be upon him.

Anyway, he's still a fake judge, so get ready for the mad tweeting!

[Politico / Vox / Grace et al v. Whitaker ruling / ACLU]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.


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