Overruling a decision by the Board of Immigration Appeals and more than 30 years of legal precedent, United States Attorney General William Barr ruled on Monday that persecution based on family ties no longer qualifies as grounds for asylum, with very few exceptions. The ruling represents another blow to Central American asylum seekers fleeing gang and domestic violence, particularly unaccompanied minors.
Last December, Matthew Whitaker, then the acting attorney general, referred a case known as "Matter of L-E-A" to himself for revision. The question at hand was whether, and under what circumstances, a migrant "may establish persecution on account of membership in a 'particular social group'" (one of the grounds for asylum in addition to race, religion, nationality, and political opinion) defined as family unit. In his decision, Barr wrote that most nuclear families are not "inherently socially distinct," and that "the fact that a criminal group—such as a drug cartel, gang, or guerrilla force—targets a group of people does not, standing alone, transform those people into a particular social group."
This ruling "further attempts to restrict asylum by targeting a new category of asylum seekers: families," Jeremy McKinney, second vice president of the American Immigration Lawyers Association said in a statement. "This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution. This decision unnecessarily makes asylum harder."
What Is the Matter of L-E-A?
In this case, a man known as L-E-A fled Mexico after members of a cartel called La Familia Michoacana attempted to extort his father, who owned a general store in Mexico City. When L-E-A and his father refused to sell drugs in the store, the cartel members tried to kidnap L-E-A, who then sought asylum in the U.S. An immigration judge denied his claim, finding that the persecution he suffered was not due to his membership in a particular social group, but rather to his interference in the drug trade.
Even though the BIA upheld the judge's decision in 2017, it also found that the relationship between L-E-A and his father qualified as a "particular social group," and affirmed the longstanding asylum law principle that family membership counts as basis for asylum. "To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm," the decision states.
Does the Attorney General Have the Authority to Overturn That Decision?
Yes. Under current regulations, the attorney general may adjudicate immigration cases through a certification power, which gives him or her the ability to pronounce new standards for the BIA and overturn longstanding precedent decisions. In June of 2018, then-Attorney General Jeff Sessions overruled a previous ruling saying that married women in Guatemala who were unable to leave their relationships could constitute a particular social group. The decision, known as "Matter of A-B," ultimately made it more difficult for migrants fleeing domestic and gang violence to be granted asylum.
This authority, however, is considered controversial, as it can be used to advance the executive branch's immigration policy and rewrite asylum laws. According to data compiled by Reuters, Sessions used his regulatory power to intervene in six immigration cases during his time as attorney general, while three different attorneys general during the eight years of the Obama administration only did it a total of four times.
Why Is This New Ruling Troubling and Who Will It Affect?
Several organizations argue that family units have for years been recognized as particular social groups by appeals courts and international refugee laws. In an important decision, the BIA established a rule to determine valid forms of particular social groups: that members must share immutable characteristics such as sex, color, or kinship ties—thereby confirming that membership in a family can qualify an applicant for asylum.
Barr's ruling, however, determines that a "family-based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor."
"Matter of L-E-A doesn't entirely eliminate family-based asylum," Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council wrote on Twitter. "If you're from a family which 'carries greater societal import' (rich, famous, politically connected) or if you're from a clan-based society, you can get asylum based on family status. Everyone else? Seemingly not."
Although the number of asylum seekers that might be affected by this decision is still unclear, advocates and attorneys believe it will mainly affect Central American families targeted by gangs. "Today's decision will almost certainly impact hundreds of thousands more claims than [Matter of A-B] did," immigration attorney Matt Cameron wrote. The restriction is also likely to negatively affect unaccompanied minors because family-based claims are central to their cases.