The Refugee Act authorizes executive branch officials to grant asylum to people who are unable or unwilling to return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” A later amendment to the immigration laws created an expedited removal process for certain individuals arriving in this country without proper documentation, but permitted those individuals to remain in the country and apply for asylum if they can show a “credible fear of persecution.”

In June 2018, then-Attorney General Jeff Sessions issued a decision in a case called Matter of A-B-, in which a woman from El Salvador was seeking asylum based on years of domestic violence she had experienced in her home county. In denying her claim, Sessions imposed limits on who can qualify as a member of a “particular social group” under the Refugee Act and in other ways made it more difficult to obtain—and even apply for—asylum. Among other things, the decision established a new principle that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Shortly after the decision, the Department of Homeland Security issued a policy memorandum directing asylum officers to follow these new standards in all future removal proceedings and credible fear determinations.

In August 2018, twelve asylum seekers from El Salvador, Guatemala, and Honduras filed a lawsuit in district court challenging Sessions’ decision and the policy memorandum. In December 2018, the district court ruled in the plaintiffs’ favor and permanently enjoined the government from applying these new policies. The government then appealed to the D.C. Circuit, and CAC filed an amici curiae on behalf of current members of Congress and bipartisan former members of Congress in support of those challenging the new Trump Administration rules.

Our brief made two major points. First, the Attorney General’s new rules are at odds with the text and history of the Refugee Act. When Congress passed that law in 1980, it deliberately included the phrase “particular social group” because it was broad enough to encompass asylum claims arising from unique social and political dynamics in individual countries. The Attorney General’s new rules, which effectively impose a categorical bar on asylum claims related to domestic and gang violence, regardless of social context and the individual circumstances of each case, violates the Refugee Act.

Second, the new rules violate the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In passing that legislation, Congress struck a careful balance between the need to enhance immigration controls and the need to make sure that people with potentially valid asylum claims would not be summarily forced back to their countries of persecution. Congress achieved that balance by shielding individuals who express a fear of persecution from expedited removal if they can surmount a threshold screening process meant only to establish that their claims are “credible” and offer “a significant possibility” of making them eligible for asylum. This generous standard was designed to exclude only those who “indisputably” have no right to claim protection as refugees.

The D.C. Circuit ruled largely in favor of the plaintiffs, upholding critical portions of the district court’s injunction against the Trump administration’s new rules. In particular, the court of appeals held that two aspects of these rules were arbitrary and capricious under the Administrative Procedure Act. Based in part on concessions made by the government, the court also held that the new rules do not prohibit asylum claims arising from domestic or gang violence. Such claims, therefore, will continue to be analyzed on a case-by-case basis in the context of the society where the claim arises—the standard that the court explained is required by the law.