President Donald Trump’s administration has continued using “unlawful” asylum directives despite an October 31 United States court order striking them down, according to court documents obtained by Al Jazeera.
The case relates to a June 2019 lawsuit filed in the US District Court for the District of Columbia by the International Refugee Assistance Project on behalf of asylum seekers.
It alleges that directives used by US asylum officers who conduct screenings made it “far more difficult” for asylum seekers to pass what are known as credible fear interviews when applying for protection in the US.
Those policies, part of the Trump administration’s harsh stance on immigration, were found in an April 2019 “lesson plan” used by the US Citizenship and Immigration Services (USCIS).
A revised version of the plan was sent out in September 2019, and it was deemed “unlawful” at the end of October of this year by US District Judge Ketanji Brown Jackson, who said the directives placed “burdens on credible fear interviewees that extend far beyond the reasonable boundaries of Congress’s policy choices as reflected in the governing law”.
Brown Jackson ordered the US government to stop using the entirety of both lesson plans, as the plans could not exist without portions deemed unlawful by the court.
She also said the government must return to the US two deported asylum seekers affected by the policies so that their claims can be reheard.
But a transcript of a November 17 hearing in the same case obtained by Al Jazeera shows the September 2019 lesson plan remained in use last month, though some parts were redacted.
The guidelines set up further legal conflicts over US immigration even as Trump’s time in office nears its end and could create challenges for the administration of President-elect Joe Biden.
Trump ran on an anti-immigration platform in 2016, and consistently enacted hardline policies that lowered thresholds for refugee resettlement and restricted immigration, some of which courts found to be “capricious” and struck down.
In a “credible fear interview”, asylum seekers must establish before a US asylum officer a “significant possibility” that they have “been persecuted or [have] a well-founded fear of persecution or harm”, the US Department of Homeland Security says on its website.
The interviews typically required a low threshold of proof and allowed people with a fear of persecution to avoid deportation pending a decision by an immigration judge, IRAP Senior Supervising Attorney Deepa Alagesan, one of the lawyers on the case, told Al Jazeera.
That changed with the April 2019 lesson plan, Alagesan said.
The plan turned credible fear interviews “into a biased and adversarial hearing through which asylum officers are to apply erroneous legal standards”, IRAP said in its lawsuit.
One of the plaintiffs in the case, named with the pseudonym “Julia”, escaped El Salvador after she saw a neighbour killed by gangs that she said “threatened to kill her if she reported their crime to the police” on multiple occasions.
But a US asylum officer in May 2019 found she lacked a “credible fear of persecution or torture” under the lesson plans, according to the lawsuit. Julia was deported “shortly thereafter”.
During the November 17 hearing, Brown Jackson quoted from a government email that is not publicly available and was sent to US asylum officials that shows the vacated September 2019 plan was still being sent out to asylum officers, though six portions of it were redacted.
“The court vacated the April 2019 Credible Fear Lesson Plan in full, and it cannot be relied upon in making a credible fear determination. Also, certain provisions of the September 2019 Credible Fear Lesson Plan can no longer be relied upon in making a credible fear determination,” the email stated, as read by the judge.
“More specifically, the following six enjoined provisions cannot be relied upon in making credible fear determinations.”
You can't just redact out the unlawful portion, the six unlawful portions ... and call that a new lesson plan
Steven Platt, a lawyer with the Justice Department’s Office of Immigration Litigation, referred to the redacted version of the September 2019 lesson plan sent to asylum officers as a “new version” in the transcript.
But Brown Jackson disagreed. “The entire document had to go,” she said in court, according to the transcript. “You can’t just redact out the unlawful portion, the six unlawful portions … and call that a new lesson plan.”
She further clarified that her ruling ordering the government to create a “newly revised” version of the lesson plan means it goes “back to the drawing board” to draft a plan “taking into account the law as the Court has pronounced it”.
The government’s position in the hearing “defies explanation”, Alagesan told Al Jazeera. The government’s attorneys “made very clear that they understood the meaning of the judge’s order with respect to the earlier lesson plan”.
Platt said he would need to consult with USCIS, which handles asylum interviews, but that he imagined it would be easy for the agency to send a message to a large number of officials informing them that both lesson plans cannot be used.
Government lawyers provided the court with copies of their November 19 emails to asylum officers instructing them to discontinue use of the September 2019 lesson plan.
But Alagesan told Al Jazeera on December 1 there were no updates from the government on IRAP’s additional questions regarding compliance, including the amount of people affected during the time they were not complying with the judge’s order from November 1 to 19.
IRAP could not say exactly how many asylum seekers were affected by the continued use of the redacted lesson plans, Alagesan said.
But US immigration attorney Amy Maldonado told Al Jazeera that at least “59 people, 30 of whom are children”, are at risk of deportation due to guidance from the vacated lesson plans.
A separate lawsuit filed by Maldonado and others on behalf of dozens of asylum seekers claims they are all under “final orders of removal based on negative credible fear determinations which were issued in reliance” on the unlawful lesson plans.
What we see under the Trump administration is they enact unlawful policy after unlawful policy
The suit also asks the DC District Court to intervene and rule on the asylum seekers’ credible fear claims – regardless of when their original credible fear interviews took place – in line with the lesson plan ruling.
The lawsuit also claims the government is not reconsidering these deportation orders, despite their justification through the unlawful plans.
USCIS did not respond to Al Jazeera’s request for comment on the two cases.
“What we see under the Trump administration is they enact unlawful policy after unlawful policy. And then they’re struck down by the courts,” Maldonado said.
She said she was hopeful the people under threat of deportation would receive relief from the courts, but feared what could happen while Trump remains in office until January 20.
“We’re hoping and praying that we make it through to January 21.”