Asylum Confidentiality: Judge Leaves DHS Posts Up

Asylum confidentiality, one of the oldest privacy promises in immigration law, just met a hard limit in federal court. U.S. District Judge Jia M. Cobb in Washington on Wednesday refused to order the Department of Homeland Security to take down social media posts that disclosed what deported Malian national Moussa Diawara wrote in his asylum application, including a claim about his sexual orientation, even as she said she was “deeply troubled” by the disclosure, Law360 reported. The ruling matters beyond one case: the rule shielding every asylum file may be only as strong as the homeland security secretary’s willingness to keep it.

Diawara asked for a temporary restraining order requiring the posts to come down and barring further disclosures. Judge Cobb denied it because, on the limited record before her, he had not shown the disclosures were likely unauthorized, according to Law360 and Law&Crime, which published the 13-page order.

A rule written with an escape hatch

The regulation at the center of the case, 8 C.F.R. 208.6, says information in or about an asylum, withholding or Convention Against Torture application “shall not be disclosed without the written consent of the applicant.” The same sentence carries an exception: disclosure is also allowed at the discretion of the secretary. The rule exists because exposure itself can put an applicant, or relatives back home, at risk from the very people the applicant fears.

Diawara argued that the discretion belonged only to the attorney general. Judge Cobb rejected that reading, according to Law&Crime, reasoning that the rule predates DHS and that, once immigration authority moved from the Justice Department to DHS, references to the attorney general naturally point to the homeland security secretary. That leaves the central question unanswered: whether the secretary, or someone acting with the secretary’s authority, actually approved these disclosures. The judge wrote that she was left “with more questions than answers” and that her ruling “is not to say that the record vindicates Defendants,” Law&Crime reported.

How a 60 Minutes segment led to the posts

Diawara, 57, lived in the United States for about 25 years and has a U.S. citizen wife and two children, according to Fox News and Law&Crime. An immigration judge ruled in 2012 that he could not be sent to Mali, based on his fear of persecution for converting to Christianity, Law&Crime reported, citing 60 Minutes. ICE arrested him in July and deported him to Ghana, which sent him on to Mali within days. The legal questions that removal raised were examined in an earlier report on the Ghana-to-Mali case.

After 60 Minutes featured him in a segment on third-country deportations, DHS General Counsel James Percival wrote on social media that he had “pulled” Diawara’s file and that “his claimed reason for fearing Mali was that he is ‘gay,’ just in case you’re wondering how bad the immigration fraud problem is,” according to Fox News and Law&Crime. Fox reported that Diawara’s 2009 application described persecution based on his sexual orientation, and that DHS had told CBS before the broadcast that he was married to a woman with whom he has two children. ICE’s official account reposted what purported to be the application with the words “Fake & Gay!”, Law&Crime reported.

DHS frames the disclosure as exposing fraud a national broadcast left out; his lawsuit says the agency spread confidential asylum material to millions. Judge Cobb wrote that Diawara “is in danger” partly because of the posts and that the conduct is hard to square with DHS’s long-recognized commitment to safeguarding asylum confidentiality, according to Law&Crime.

What the administrative record could decide

The case is not over. Judge Cobb said she is open to ordering DHS to produce the administrative record, and she directed the parties to file a joint status report by Friday, Nov. 13, saying whether Diawara will seek a preliminary injunction, Law&Crime reported. That record is where the dispute is likely to be won or lost. If it shows a documented decision by the secretary, the regulation’s own text gives DHS a strong defense, and the remaining claim would be whether the decision was arbitrary under the Administrative Procedure Act. If it shows an official acting without that sign-off, the disclosure looks much more like the kind of breach the rule was written to prevent.

For asylum applicants, the practical effect is plain: the confidentiality rule was never absolute, and a court may not step in quickly when DHS decides an application belongs in a public argument. Attorneys can expect more questions from clients about who can see their declarations, a topic already live after the Board of Immigration Appeals let DHS use redacted copies of other applicants’ declarations to challenge boilerplate claims. The order also lands the same week the Board rejected a “women without partners” social group, another sign of closer scrutiny of how asylum claims are framed.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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