Cody Wofsy, Staff Attorney, ACLU Immigrants’ Rights Project & Katrina Eiland, Staff Attorney, ACLU Immigrants’ Rights Project

Grace,* an indigenous woman from a small village in Guatemala, came to the United States seeking protection from beatings, sexual assault, and death threats. Grace made the long and treacherous journey from Central America, arriving at the border in June. She was deeply traumatized, having been raped, beaten, and threatened with death for more than two decades at the hands of her abusive partner, a non-indigenous man, who frequently disparaged and mocked her for being indigenous and unable to read and write.

After she tried to leave him, her abuser and his gang member sons continued to pursue and terrorize her. The local authorities could not or would not protect Grace from this unrelenting violence. In fact, at one point, they even helped her abuser forcibly evict her from her home.

Under our asylum laws, Grace has a strong claim to receive protection in the U.S. and — under rules established by Congress more than 20 years ago — she should have been given a fair chance to prove her case in court. Instead, she was swept up in the Trump administration’s attack on refugees, particularly women and children seeking safety from Central America. Her asylum claim was quickly denied, and she now faces deportation back to the all-too-real threat of death.

Tell Sessions: Give Domestic Violence Survivors Safe Haven

Today, Grace and a group of other asylum seekers, predominantly women and children from Central America, filed a major challenge to the Trump administration’s campaign to eviscerate our asylum laws. In June, Attorney General Jeff Sessions intervened in an individual asylum case, Matter of A-B, issuing a deeply flawed legal decision. While the issues actually presented by the case were narrow, Sessions took the opportunity to launch an assault against longstanding elements of U.S. asylum law, in particular, the standards by which claims like Grace’s are evaluated.

“Generally,” he asserted, “claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”

The administration then issued guidance instructing asylum officers to apply Sessions’ highly questionable decision to the “credible fear” process at the border. A “credible fear” interview is a threshold screening that determines whether there is a “significant possibility” that an immigrant could show they are eligible for asylum in a full hearing with evidence, witnesses, and appeals. If so, they get that chance; if not, they are quickly removed from the United States.

By applying these broad and unjustified changes to the credible fear process, the government is attempting to subvert decades of settled asylum law and setting up asylum seekers like Grace to fail their interviews. For example, gender-based persecution has been recognized as a basis for asylum for decades. However, Sessions has declared that the plight of domestic and gang violence survivors is “merely personal.”

This statement reflects a fundamental misunderstanding of domestic violence, harkening back to an era when rape and partner abuse were viewed as private matters as well as of the brutality and scope of gang violence. Yet it has long been clear that an asylum seeker fleeing persecution by someone who is not the government — like a gang, an intimate partner, or a powerful political or social group — is eligible for asylum if she can show that the government is “unable or unwilling” to protect her, meaning that the government will not provide effective protection. But Sessions now wants applicants to have to show that their government either “condoned” the violence or other harm or was “completely helpless” to stop it.

That is not the law and never has been. But the government has now directed asylum officers to fully implement those new, illegal rules to credible fear screenings — leading to unjustified deportations of vulnerable refugees like Grace. And the guidance to asylum officers goes even further, directing them to ignore any court rulings that are inconsistent with Sessions’ new decision. That direction conflicts with the Constitution’s separation of powers principles because, as the Supreme Court explained 200 years ago, it is the courts, not executive branch officials that must ultimately decide “what the law is.” 

The plaintiffs filed suit in Washington, D.C., under a special process Congress set up to challenge illegal policies or procedures related to expedited removal and credible fear. Represented by the ACLU and the University of California’s Hastings Center for Gender and Refugee Studies, the plaintiffs claim the new rules in the credible fear system violate the Refugee Act of 1980, the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause, and the Constitution’s bedrock separation-of-powers principles.

When the Refugee Act of 1980 was passed, the Senate committee that approved the legislation observed that it reflects “one of the oldest themes in America’s history — welcoming homeless refugees to our shores.” Indeed, providing shelter, safety, and a new life to the victims of persecution has long been part of our national identity, even if not always an ideal we have lived up to.

The Trump administration's effort to eliminate that protection betrays our values and flouts our laws. The courts must step in to stop it.

*To protect the safety of the plaintiffs, names are pseudonyms.

It was nearly a year ago that President Trump announced the end of Deferred Action for Childhood Arrivals, the program that gave some 800,000 young people who grew up in this country the opportunity to live and work here legally. Since then, there have been multiple lawsuits challenging the Trump administration’s decision to shut down the program, but also one challenging the legality of continuing it.

With new developments every few weeks, it is easy to lose track of what’s been happening in the courts. Here’s what you need to know.

Challenging DACA's Rescission

In California, New York, and Washington, D.C., plaintiffs have challenged the Trump administration’s decision to rescind the DACA program as arbitrary and capricious under the Administrative Procedure Act, a law that governs federal agencies. Courts in California and New York ordered the government to continue processing DACA renewals, but they did not order it to process new applications.

Per those orders, the U.S. Citizenship and Immigration Services agency is still processing DACA renewal applications.

Last Friday, August 3, the district court judge in the Washington, D.C., case ordered the Trump administration to begin accepting new DACA applications — in addition to the renewal applications that it is already processing. But the court stayed its order for 20 days to allow the government to seek a stay and appeal on an emergency basis.

We do not yet know what the administration will do next in this case, but it has not sought a stay in either the New York or the California case. That means that the government’s next move in the D.C. case will not affect the court orders in New York and California requiring USCIS to continue granting DACA renewals.

All of that bodes well for current and potential DACA recipients.

Challenging DACA's Legality

But the program still very much hangs in the balance because Texas and six other states are challenging the legality of the DACA program itself. On Wednesday, August 8, the district court in Texas will hold a hearing in that lawsuit, and it’s possible that the judge could issue an order ending the program any time after that hearing.

To be clear, such an order would be wrong: Not only is the DACA program legal, but if the Texas court were to strike it down, its order would directly conflict with the orders issued by the California, New York, and Washington courts. If the government were subject to such conflicting orders, it would likely seek relief from the Supreme Court quickly, and no one knows for certain how the Supreme Court would rule.

Because of the possibility that the Texas court will issue an unfounded order that leads to faster Supreme Court review, we recommend that DACA recipients who are eligible for renewal submit their applications as soon as possible. If the DACA program is struck down, you could lose your application fee, but applying sooner increases the chance that you will be able to renew while the program is still available.

Now, as before, if the government has terminated your DACA unfairly, please send an email to [email protected]. Our class action challenging unfair DACA terminations might be able to help you.

For more information on the pending litigation, please see this resource from the National Immigration Law Center: https://www.nilc.org/issues/daca/daca-litigation-timeline/.

Last week, civil rights groups, including the ACLU and Lambda Legal, urged the Eighth Circuit Court of Appeals to accept the case of Charles Rhines, a gay man in South Dakota whose sexual orientation may have played a role in his death sentence in 1993. 

In a related appeal, the Eighth Circuit denied relief on many of Mr. Rhines’s claims the day after the friend-of-the-court filing. But the federal appeals court didn’t address whether Mr. Rhines will be allowed to present evidence of anti-gay bias, as the groups had asked in their friend-of-the-court brief. The Eighth Circuit can still take the case, and it should. Here’s why.

As I noted in June, when the Supreme Court declined to review Mr. Rhines’s death sentence:

Some of the jurors who imposed the death penalty on Charles Rhines, who was convicted of murder, have said they thought the alternative — a life sentence served in a men’s prison — was something he would enjoy as a gay man.

During deliberations, the jury had often discussed the fact that Mr. Rhines was gay and there was “a lot of disgust” about it, one juror recalled in an interview, according to the court petition. Another said that jurors knew he was gay and “thought that he shouldn’t be able to spend his life with men in prison.” A third recounted hearing that if the jury did not sentence Mr. Rhines to death, “if he’s gay, we’d be sending him where he wants to go.”

That’s highly alarming. Yet Mr. Rhines has never had the chance to present this evidence of juror bias to a federal judge because he didn’t know about it until two decades later.

In 2016, jurors from his trial came forward to explain the role Mr. Rhines’s sexual orientation played in the decision to sentence him to death. Once Mr. Rhines learned of the anti-gay statements made during jury deliberations, he asked a federal trial judge to allow him to update his petition to add this new information. At every turn, Mr. Rhines’s pleas have been rejected. As a result, no federal judge has even considered the jurors’ statements to determine whether anti-gay bias was a motivation for the jury to sentence Mr. Rhines to death.

Fortunately, it isn’t too late for the Eighth Circuit to change that. As the civil rights groups explained in their friend-of-the-court brief, our judicial system has safeguards to prevent bias based on sexual orientation — but those safeguards are not failsafe. When they do fail, federal courts have a duty to step in to ensure that “our law punishes people for what they do, not who they are.”

That is particularly true in cases like Mr. Rhines’s, where bias against him because of his sexual orientation may have made the difference between life and death.