The suit says the policies prevent migrants from getting a fair hearing on whether they should be able to stay in this country. It focuses on migrants who have been placed in fast-track deportation proceedings known as “expedited removal” and asks the court to bar the federal government from sending them out of the country.
“Without an injunction, Plaintiffs and thousands of other immigrants like them desperately seeking safety will be unlawfully deported to places where they fear they will be raped, kidnapped, beaten, and killed,” the ACLU said in the complaint.
The Justice Department did not immediately respond to a request for comment.
The lawsuit was filed on behalf of 12 migrants from Honduras, El Salvador and Guatemala — eight women, one man and three children. All failed their initial “credible fear” interviews, which is one of the first steps for asylum seekers in the fast-track removal process. Two of the children and their mothers have been deported; the rest of the plaintiffs are detained in Texas and New York. None were separated from their children.
The lead plaintiff is a Guatemalan woman who said a former partner raped her repeatedly, attacked her daughter until the younger woman suffered a miscarriage, and stole the title to their house.
Another plaintiff, a Honduran woman, said she escaped gang members who killed her father-in-law and beat her so badly she was unable to walk. A third said her husband in El Salvador has threatened to kill her. A recently orphaned teenager said she fled El Salvador because a violent gang moved into her home after her mother died.
To qualify for asylum, migrants must show that they have a fear of persecution in their native country based on their race, religion, nationality, political opinion or membership in a “particular social group,” a category that in the past has included victims of domestic violence and other abuse.
Under the fast-track removal system, created in 1996 under President Bill Clinton, asylum seekers are interviewed by a Department of Homeland Security asylum officer to determine whether they have a “credible fear” of returning home. Those who pass get a full hearing in immigration court.
In June, Attorney General Jeff Sessions vacated a 2016 Board of Immigration Appeals court case that granted asylum to an abused woman from El Salvador. As part of that decision, Sessions said gang and domestic violence in most cases would no longer be grounds for receiving 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 wrote at the time.
The ACLU lawsuit says the new policies — Sessions’s ruling and updated guidelines for asylum officers the DHS issued a month later — subject migrants in expedited removal proceedings to an “unlawful screening standard” that deprives them of their rights under federal law.
Asylum seekers previously had to show that the government in their native country was “unable or unwilling” to protect them. But now they have to show that the government “condones” the violence or “is completely helpless” to protect them, the lawsuit says.
Sessions and other federal officials say migrants and their smugglers are exploiting U.S. asylum laws to win the right to live in the United States while they await hearings in the backlogged asylum system. Such cases can stretch on for years, and many immigrants fail to show up in court when their turn comes to be heard.