U.S. District Court for the District of Columbia, No. 1:23-cv-1843
Many asylum seekers who claim protection at the southwest border start their asylum process with a “credible fear interview,” an initial screening interview that assesses whether they will be allowed to fully present their asylum case in U.S. immigration court.
On May 10, 2023, the Biden administration issued a final rule that bars asylum for the vast majority of people seeking safety at the southwest border. The rule, dubbed the “asylum ban” by advocates, combines and repackages two Trump-era policies - known as the “entry” and “transit” bans - which were struck down by the courts as unlawful.
Subject to only a few narrow exceptions, the ban imposes a categorical bar on asylum for anyone who passes through one or more other countries en route to the U.S. border and does not apply for - and get denied - protection in at least one of those countries first.
Though credible fear interviews have historically focused on the strength of the asylum seeker’s case, the Biden administration chose to apply the ban (which is unrelated to the reason an asylum seeker fled their country) in credible fear interviews, while simultaneously heightening the burden of proof they must meet.
Other recent policy changes compound the harms of the asylum ban. For example, the government shortened the timeline for conducting credible fear interviews and authorized interviews to take place while asylum seekers are in the custody of U.S. Customs and Border Protection, changes that make it virtually impossible for asylum seekers to obtain legal orientation or counsel before their interview. Moreover, the government has begun misleading asylum seekers from certain countries about their eligibility for parole into the United States during the credible fear interview, coercing them into withdrawing their claims for protection.
The application of the ban in credible fear interviews and the related policy changes defy Congress’s intent in establishing the credible fear process – which was to ensure that people seeking refuge at our borders would not be swiftly returned to persecution or torture. We are arguing that Biden’s ban and the related policy changes violate our asylum laws and result in the unlawful return of people to countries where their lives are in danger.
CGRS is also challenging this same asylum ban in East Bay Sanctuary Covenant v. Biden.
Biden’s asylum ban will deny protection to most people seeking safety at the southwest border. The experiences of the 18 individual plaintiffs bringing this case demonstrate the grave risks facing those who are wrongly denied the chance to seek asylum. Some plaintiffs fled after being targeted for violence by repressive or corrupt governments. Others suffered severe physical or sexual violence inflicted by intimate partners, relatives, or organized criminal gangs. After being denied the opportunity to fully present their asylum claims due to the application of the asylum ban, all fear being returned to the violence they fled.
CGRS and our co-counsel filed this legal challenge in the U.S. District Court for the District of Columbia on June 23, 2023. Plaintiffs filed their motion for summary judgment on September 28, 2023. We are asking the court to strike down the application of the ban in credible fear proceedings and the related policy changes, so that asylum seekers at our borders are able to fairly present their claims for protection. The case is currently stayed before the district court.
CGRS is co-counsel, along with the ACLU Immigrants’ Rights Project, the ACLU of the District of Columbia, and the National Immigrant Justice Center.
We represent 18 individual asylum seekers who failed their credible fear interviews after the ban was applied to them and two organizational plaintiffs that serve people seeking asylum: Las Americas Immigrant Advocacy Center and RAICES.
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Contact Brianna Krong, Communications and Advocacy Manager, at krongbrianna@uclawsf.edu.
- Attorneys representing clients who may be subject to the asylum ban can request assistance from CGRS through our Technical Assistance Library.
- CGRS’s comment on the proposed version of the asylum ban rule can be read here.
- CGRS’s report on the dangers facing people seeking asylum in common countries of transit can be read here.