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A Day After Tearing into Michael Flynn, Judge Takes Aim at President Trump


After making a name for himself by excoriating Michael Flynn during Tuesday’s contentious sentencing hearing for the former national security adviser, U.S. District Judge Emmet Sullivan just took out a huge chunk of President Donald Trump‘s immigration policy.

Sullivan struck down recently-enacted Justice Department policies, which made it more difficult for immigrants to claim asylum over domestic or gang-related violence concerns.

Enacted this past summer, those stringent Trump administration policies were determined to be “unlawful” under current federal law. Perhaps more pointedly, Sullivan also ruled that the asylum-seeking immigrant-plaintiffs who brought the lawsuit leading to Wednesday’s decision were unlawfully deported–and ordered that they be returned to the United States.

The 107-page memorandum opinion begins with an ominous history lesson for the Trump administration:

When Congress passed the Refugee Act in 1980, it made its intentions clear: the purpose was to enforce the “historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.”

Judge Sullivan goes on to explain that Congress later amended the act to allow for expedited removal of certain refugees–but only under extremely limited circumstances. That is, such expedited removals can occur only in cases where refugees do not have a “credible fear” of being persecuted in their country of origin. This compromise, Sullivan notes, “struck a balance between an efficient immigration system” and making sure that refugees wouldn’t be returned to a place where they would almost certainly face persecution.

The opinion continues and explains how such “credible fear” determinations are to be made:

Congress intended the credible fear determinations to be governed by a low screening standard. A credible fear is defined as a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum. If, after a credible fear interview, the asylum officer finds that the alien does have a “credible fear of persecution” the alien is taken out of the expedited removal process and referred to a standard removal hearing before an immigration judge.

The issue here is that asylum-seeking immigrants–defined statutorily as “refugee[s]”–are supposed to be afforded greater protections when facing deportation than other undocumented immigrants. That’s been the law in the United States for nearly 40 years.

When Jeff Sessions‘ Department of Justice diluted those protections earlier this year, however, the administration overstepped its bounds, according to Sullivan. The Trump administration’s unilateral decision to restrict domestic violence and gang-related violence asylum claims was determined to be in violation of Administrative Procedure Act (APA) rules about how changes in policy are made–finding the new policies “arbitrary and capricious.”

Sullivan also determined that the Trump administration’s attempt to limit asylum claim rights was also in violation of U.S. immigration law viz. the Immigration and Naturalization Act (INA)–the statute which later incorporated the Refugee Act and which currently governs both asylum claims and deportation procedures.

The decision continues with a rebuke of the Trump administration’s attempts to make policy by proclamation.

“The Court finds that several of the new credible fear policies…violate both the APA and the INA…many of these policies are inconsistent with the intent of Congress as articulated in the INA,” Sullivan notes. “And because it is the will of the Congress–not the whims of the Executive–that determines the standard for expedited removal, the Court finds that those policies are unlawful.”

The import of Sullivan’s decision is both broad and specific in scope and application:

The Court further permanently enjoins the government from continuing to apply those [credible fear] policies and from removing plaintiffs who are currently in the United States without first providing credible fear determinations consistent with the immigration laws. Finally, the Court orders the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with new credible fear determinations consistent with the immigration laws.

[Image via Mark Wilson/Getty Images]

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