This lawsuit challenges the Biden administration’s sweeping May 2023 asylum ban and several new expedited removal policies that dramatically alter the screening interview process for asylum seekers and wrongfully return many back to persecution and grave danger.

NIJC joined the American Civil Liberties Union Immigrant Rights Project, the ACLU of the District of Columbia, and the Center for Gender & Refugee Studies to sue the Biden administration on behalf of individual asylum seekers, Las Americas Immigrant Advocacy Center, and Refugee and Immigrant Center for Education and Legal Services.

This case complements an ongoing challenge to the Biden asylum ban litigated by the same organizations as counsel on behalf of a different group of nonprofit organizations that serve asylum seekers.

This suit focuses on the ban’s changes to the expedited removal process, which flout existing legal mandates. Congress took critical steps to ensure that rapid deportations would not wrongfully return people to potential persecution. In particular, Congress established the “credible fear interview” to ensure that people with potential claims for asylum would be protected from wrongful removal and allowed to fully develop and present their asylum claims.

The lawsuit charges that the new ban’s procedures illegally upend this system by requiring asylum seekers to prove — during the initial interview, under a much higher standard than Congress mandated — that the ban doesn’t apply to them.

In addition, the Biden administration has made numerous other harmful changes to the expedited removal process, further undermining protections for noncitizens and increasing the risk they will be removed to persecution and torture. Those related policies include:

• Decisions to deport individuals to Mexico even if they are not Mexican citizens
• “Voluntarily” returning certain individuals who are not from Mexico to that country 
• A reduced timeline for consultations prior to credible fear interviews, which now take place for many individuals while they are detained by Customs and Border Protection

Using immigration employees who are not trained asylum officers to conduct credible fear interviews. M.A. et al. v. Mayorkas was filed in the U.S. District Court for the District of Columbia.

Plaintiffs

The individual plaintiffs for this case are noncitizens who came to the United States to seek asylum and were either unlawfully issued expedited removal orders because of the rule or were subjected to “voluntary” return to Mexico under the rule’s implementation.

Plaintiff M.A. is an asylum seeker from Guatemala who fears persecution in that country from her husband, a member of the MS-13 gang, and his associates. Soon after M.A. married, her husband became abusive—physically harming her and threatening her life. M.A. separated from him and demanded a divorce, but her husband refused. M.A. fled Guatemala and entered the United States without authorization and without a CBP One appointment, and turned herself into immigration officials. At her credible fear interview, M.A. was deemed ineligible for asylum because she did not overcome the Rule’s bar. She was denied the opportunity to seek withholding of removal and CAT protection after the officer concluded that she did not demonstrate a reasonable possibility of persecution or torture. An immigration judge upheld that decision and M.A. was deported to Guatemala.

Plaintiff J.P. is an asylum seeker from Venezuela who fears persecution in that country. J.P. is a political activist who fled Venezuela after he was threatened, beaten, and forced to leave school because of his political activism. J.P. approached the U.S.-Mexico border at a port of entry without obtaining an appointment on CBP One. After J.P. was forced to wait to seek asylum, he was processed on May 12, 2023. J.P. later spoke to an immigration officer and tried to express his fear of returning to Venezuela. Instead, he was asked only about Mexico. J.P. explained that he also feared returning to Mexico, because he had been robbed and threatened there. J.P. was then coerced into signing a paper agreeing to “voluntarily” depart the United States and he was returned to Mexico.

Plaintiff F.C. is an asylum seeker from Ecuador who fears persecution in that country. He fled his home after he cooperated with a police investigation of Los Lobos, a criminal organization that is prominent in Ecuador. F.C. fled Ecuador. He did not seek asylum in the countries he passed through because Los Lobos has a presence or reach in each of them. In Mexico, F.C. learned about CBP One, but after attempting to get an appointment without success, he decided, given the risks, that he had to leave Mexico. F.C. entered the United States without authorization or a CBP One appointment and turned himself in to immigration officials. In his credible fear interview, the asylum officer found F.C. ineligible for asylum because he did not overcome the Rule’s bar. He was denied the opportunity to pursue withholding of removal and CAT protection after the officer concluded that he did not demonstrate a reasonable possibility of persecution or torture. An immigration judge affirmed that decision in late June.

The Organizational Plaintiffs are organizations that serve asylum seekers which include Las Americas Immigrant Advocacy Center and Refugee and Immigrant Center for Education and Legal Services (RAICES).
 

Timeline

May 12, 2023 - The Circumvention of Lawful Pathways Rule takes effect

June 23, 2023 - Plaintiffs filed complaint

July 10, 2023 - Plaintiffs filed amended complaint

Relevant Documents

• Amended Complaint (July 10, 2023)
   

In The Media

• Press Release: Immigrants’ Rights Advocates Sue Government Over Asylum Ban And Rapid Deportation Process That Places Asylum Seekers In Grave Danger
   
• The New York Times: Lawyers Say Helping Asylum Seekers in Border Custody Is Nearly Impossible (July 22, 2023)