‘Unclear’ if Judge’s Ruling Requires Return of All Deported Asylum Seekers

Migrants 'Are Not Coming into the U.S.A'

Art Arthur, a resident fellow at the Center for Immigration Studies (CIS) and former immigration judge, told Breitbart News it is “unclear” if a federal court ruling on Tuesday requires the U.S. government to return of all previously deported aliens whose asylum requests were rejected.

Arthur offered his analysis in an interview Wednesday on Breitbart News Tonight with SiriusXM host Rebecca Mansour.

In a memorandum opinion in Grace v. Whitaker, Judge Emmet G. Sullivan ordered the federal government to return the case’s plaintiffs to the U.S., writing, “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.”

Arthur said, “I certainly enjoyed my time as an immigration judge, but I also actually wrote some of the law that was interpreted by the judge [and] attorney general when I was counsel for the House Judiciary Committee.”


Arthur provided background on the law governing expedited removal of aliens and asylum claims related to credible fear of persecution.

“Back in 1996, Congress wanted to make it as easy as possible to remove individuals who had just arrived in the United States and didn’t have proper documentation or who had attempted to enter by fraud,” explained Arthur. “They created a system called ‘expedited removal,’ and it worked very well. If you show up at a port of entry and you don’t have a visa, they put you on the next plane back. That’s exactly what this rule does, and does it at our border and our ports within the United States, as well.”

Arthur continued, “There’s an exception, however, to expedited removal, and it’s called, ‘credible fear.’ If you show up without proper documents, and you assert that you have a credible fear of persecution, then you’ll be interviewed by an asylum officer, and that’s to comply with our requirements under the 1967 Protocol to the Refugee Convention. So in order to comply with international law, there’s this very limited exception, and if you claim that you have a credible fear — you say you want asylum — you’re put in front of an asylum officer who gives you an interview to determine if you actually have a credible fear.”

Arthur noted, “It’s a screening standard. It’s a lower standard than the well-founded fear standard that we used for asylum cases. It’s such a low standard, in fact, that in about 89 percent of all cases in which this screening takes place, the asylum officer finds that the alien has a credible fear. If the asylum officer finds that the alien has credible fear, the alien is taken out of those expedited removal proceedings and is put into regular removal proceedings before an immigration judge — a person like I was —  so that they can make an asylum claim.”

A CIS analysis shows that 90 percent (18,184 of 17, 969) of asylum credible fear claims — in which interviews were conducted with the asylum claimants — were affirmatively established by asylum officers during the federal government’s 2018 fiscal year (October 1 through September 30).

Arthur said, “We’ve seen the numbers of these claims boom from three countries in Central America —  Guatemala, Honduras, and El Salvador — in recent years.”

Arthur explained the legal parameters of asylum claims.

“In order to be granted asylum, you don’t get asylum because you’re poor,” stated Arthur. “You don’t get asylum simply because someone threatened you or harmed you. You can only be granted asylum if you have a well-founded fear of persecution or past persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion. Four of those standards are very straight-forward: race, religion, nationality, and political opinion. The fourth one, though, is the wild card; membership in a particular social group.”

Arthur went on, “Then-Judge Alito — when he was on the Third Circuit — said in a case that any group of two or more people could potentially be a particular social group. So, consequently as the law has developed, we’ve actually developed some standards to identify those groups. One of the things that we did in the Real ID Act of 2005 — and I was the primary drafter of this provision — was to say that one of those five factors: race, religion, nationality, membership in a particular social group, or political opinion; had to be at least one central reason for the harm that you feared.”

Arthur continued, “So if I got mugged, I would have to prove that I got mugged on account of one of those five factors, not because the mugger wanted my money. If somebody beat me up, I had to have been beaten up because of one of those five factors, not because the person was drugged or angry with me personally because of something I’d said.”

Arthur said the aforementioned criteria for determining credible fear of persecution, which was laid out in a policy memorandum issued by former Attorney General Jeff Sessions in the Matter of A-B, were not applicable in Grace v. Whitaker.

“[Jeff Sessions’s] policy memorandum was at issue in the case called Grace versus Whitaker, and the plaintiffs in that case had applied for credible fear and been denied,” explained Arthur. “Now, normally when you’re denied credible fear you don’t get an appeal right, and in fact Congress specifically made it very difficult for anyone to ever appeal any expedited removal order. it could only be appealed at the District Court of the District of Columbia, and only in very limited circumstances.”

“The judge who happens to sit in the District of Columbia found that those very specific circumstances applied, even though, respectfully, I don’t believe that they do,” said Arthur.

Mansour noted how Sullivan is the same judge overseeing the criminal prosecution — led by Special Counsel Robert Mueller — of former National Security Adviser Michael Flynn. Sullivan said to Flynn on Tuesday, “Arguably, you sold your country out.”

Arthur remarked, “The D.C. District Court doesn’t have jurisdiction over any immigration cases, because there are no immigration courts in the District of Columbia. So you’re talking about an area of the law in which this judge had no expertise whatsoever, because they just don’t hear these cases.”

Arthur said he does not know if Sullivan’s order in Grace v. Whitaker’s mandates the return of the case’s 12 plaintiffs or of the thousands of aliens removed following denials of credible fear claims under similar circumstances.

“I’m having a bit of difficulty determining whether it is only the named plaintiffs or whether it’s the entire class of plaintiffs that this applies to,” said Arthur. “It’s unclear whether it just applies to those 12 adults and children or whether it’s going to apply to every alien who has had their claim denied under Matter of A-B-.”

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