These Central Americans have a second chance at asylum after being "unlawfully" deported. First ICE needs to bring them back

By Kate Smith

/ CBS News

The violent history of MS-13

After years of rape, beatings and persecution from notorious gangs in their home countries, 12 Central Americans fled to the United States last year to seek asylum. But then-Attorney General Jeff Sessions had just issued a policy change: Domestic and gang violence would not be grounds for asylum.

They sued, and in December, a federal judge said the policy change was "unlawful," and those individuals would get a second chance. But six of them had already been deported back to their native countries and ICE agents still haven't brought them back.

Among the plaintiffs still stuck in Central America is Nora, an El Salvadorian women who survived years of beatings and rape by her partner, a known gang member. When Nora attempted to end the relationship in May of last year, her partner's gang targeted her, threatening to rape her and kill her children.

"In May, when Nora was walking home with her three young children, [her partner's friend] pursued her down the street and told her that he knew she lived alone with her children and that he would come to her house at night to have sex with her," according to the original complaint against Sessions' new asylum policy. "He showed her a gun in his waistband and then looked to her son, indicating that he would kill them both if she did not submit to his demands."

Shortly after the threat, Nora and her son fled El Salvador, seeking asylum in the United States. Even though an immigration officer believed her story — hers is a typical experience for women in the Central America — she did not pass her "credible fear" interview because of the new policy.

Generally, asylum is available to anyone who fears persecution in their home country because of their affiliation with one or more of five accepted groups: race, religion, nationality, political opinion or particular social group.

In his December ruling on the lawsuit, the judge called the policy change "arbitrary, capricious, and in violation of the immigration laws insofar as those policies are applied in credible fear proceedings."

Of the 12 plaintiffs in the case, Grace v. Whitacker, six had already been deported to Central America, five had been released from detention centers as they awaited removal, and one remains detained, according to Jennifer Chang Newell, an attorney with the ACLU's immigrants' rights project who worked to strike down Sessions' asylum policy.

The judge ordered that the six who had been removed be brought back to the United States for immigration proceedings. But the partial government shutdown has restricted ICE agents' ability to follow through, according to a status report filed by the government on January 18.

"Due to the lapse in appropriations, the normal process for paying departure and passport fees has become complicated," the report said.

Some of the plaintiffs have had to pay their own travel document fees — despite the judge's order saying that would be the government's responsibility — and told that they would be reimbursed eventually, according to the report.

"There's been a few logistical issues getting them back, things like travel documents, passports, parental consent and travel fees," said Newell in a telephone interview with CBS News on Friday.

As they wait, six of the plaintiffs remain in the countries and situations that prompted them to seek asylum in the first place. Nora and her son "continue to fear for their lives," according to the original complaint.

Though the plaintiffs will get a second chance at asylum, thousands others won't.

"If someone has already been removed because of the Sessions decision and they weren't part of the lawsuit, they're just out of luck," said Anne Dutton, an attorney at the Center for Gender and Refugee Studies who also worked on the case, in a telephone interview with CBS News on Friday.

What exactly happens to the plaintiffs next isn't clear. The government is appealing the decision. And last week's status report said part of the delay in returning the asylum seekers is because the "parties do not agree on the process that will be applied to the Plaintiffs once they are returned to U.S. soil."

The government argues that upon their arrival in the United States, Nora, her son and the other four should be detained until their credible fear interview, which could take months to schedule. Lawyers representing the Central Americans, however, believe that they should be able to begin that process without being held in a detention center.

First published on January 21, 2019

© 2019 CBS Interactive Inc. All Rights Reserved.

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