Class Action Lawsuit Challenges Trump’s Proclamation Limiting Asylum Seekers

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Two Honduran refugees have filed a proposed class action lawsuit challenging a recent interim final rule and proclamation set in place by the Trump Administration that effectively prevents aliens from seeking asylum in the United States.

The timeline in the case, which was filed on behalf of the plaintiffs by non-profit advocacy groups CAIR Coalition and RAICES, begins on November 9, 2018, when Acting Attorney General Matthew Whitaker and Secretary of Homeland Security Kirstjen Nielsen, both named as defendants, issued an interim final rule that declared individuals subject to a presidential proclamation would be ineligible for asylum. The next day, President Trump signed a proclamation suspending all individuals from entering the country without inspection through the southern border. In effect, the lawsuit explains, the rule and proclamation prevent all aliens from seeking asylum if they enter the country outside an approved port of entry.

The case—filed against the president, several government officials, and six government agencies associated with immigration—argues that the rule and proclamation overstep the Constitution and federal laws governing the treatment of asylum seekers. Federal law, the lawsuit argues, clearly allows individuals fleeing their countries based on a “well-founded fear of persecution” to seek asylum regardless of how they enter the United States.

The new rule, however, imposes a heavier burden of proof on aliens who enter the country illegally, the lawsuit explains. In order to obtain relief, these individuals, the case says, must prove they have a “reasonable fear,” or a 51 percent chance, of facing persecution or torture should they be forced to return to their respective countries. In other words, the suit explains, they must effectively show that they will “more likely than not” be harmed upon their return. Asylum seekers who enter the country at approved ports of entry, on the other hand, are supposedly subjected to “credible fear” interviews, during which they must show that they have a “well-founded fear,” or about a 10 percent chance, of persecution or torture. Passing a reasonable fear interview, according to the case, is “much more difficult” than proving to have a well-founded fear—the current standard by which federal law allows asylum to be granted.

As for the plaintiffs, the case explains that the two individuals—a mother and son referred to in the complaint by their initials—fled Honduras in October 2018 after members of the Mara Salvatrucha (MS-13) gang attacked the son and threatened to kill both him and his mother for refusing to affiliate with the gang. When the mother informed U.S. immigration officials that she had not entered the country through an approved port of entry, she was told she was ineligible for asylum and was subjected to a reasonable fear interview. The case argues that implementation of the new rule will expose the plaintiffs to “a significantly increased risk” of forcible return to Honduras, where they have allegedly faced, and would continue to face, threats of violence and the endangerment of their lives.